R v Feaunati [2017] NZDC 27712 (5 December 2017)

Last Updated: 24 August 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT TIMARU

CRI-2015-003-000473

[2017] NZDC 27712

THE QUEEN

v

[TIMOTI FEAUNATI]

Hearing:	5 December 2017
Appearances:	A McRae for the Crown T Founier as Counsel to Assist
Judgment:	5 December 2017

ORAL JUDGMENT OF JUDGE B A FARNAN [ON APPLICATION TO WITHDRAW PLEAS]

[1] I have before me an application by [Timoti Feaunati] under s 115 Criminal Procedure Act 2011. The defendant is seeking to vacate pleas of guilty entered in respect of charges of rape and injuring with intent to injure.

Background

[2] The defendant was originally charged with the following offences; male assaults female under s 194(b) Crimes Act 1961, injuring with intent to injure under s 189(2) of the Crimes Act, two charges of sexual violation by rape under s 128(1)(a) of the Crimes Act; and, finally, a breach of protection order charge under s 49(1)(b) Domestic Violence Act 1995.

R v [TIMOTI FEAUNATI] [2017] NZDC 27712 [5 December 2017]

[3] The defendant had pleaded guilty in respect of the male assaults female charge on 7 June 2016. The defendant then pleaded guilty on 20 March 2017, which was the scheduled first day of his trial. Various pleas were entered following a sentence indication to the charges of injuring with intent to injure, sexual violation by rape, and the breach of the protection order charge. It was intended that no evidence would be offered at the defendant’s sentencing on the second sexual violation by rape charge.

Current application

[4] Today Mr Founier, on behalf of the defendant, has confirmed that the s 115 application simply relates to seeking to vacate Mr [Feaunati]’s guilty pleas in respect of the rape charge and the injuring with intent to injure charge.

[5] The guilty plea in relation to the breach of protection order can remain.

[6] The indicated sentence was a starting point of eight and a half years, with a three-month uplift to take into account the defendant’s previous offending, and a 10- month credit for a guilty plea. This would result in an end sentence for the defendant of seven years and 11 months’ imprisonment.

[7] The defendant now seeks leave to vacate the guilty pleas he entered on 20 March 2017.

[8] The grounds the defendant relies upon to vacate his pleas are that the guilty pleas entered on that date were not genuine guilty pleas, such that it would be a miscarriage of justice were leave not to be granted to vacate the guilty pleas in respect of the single rape charge and the injuring with intent to injure charge. The defendant has waived privilege and has sworn an affidavit in support of his application. Additionally, a sworn affidavit from the defendant’s previous counsel, Mr McCall, has also been received by the Court.

[9] The Crown oppose the defence application.

[10] The matter proceeded to a hearing before me on 8 April 2017 in the Christchurch District Court, as a matter of convenience to all involved. At the hearing

Mr McCall gave evidence but the application had to be adjourned part-heard, due to insufficient time to complete Mr [Feaunati]’s evidence.

[11] The defendant gave evidence today at the resumed hearing, this time in the Timaru District Court.

Case for applicant Mr [Feaunati]

[12] The defendant relies on s 115(1) of the Criminal Procedure Act 2011 which provides that a plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with. Section 115 reflects the same terms as the repealed s 42 Summary Proceedings Act 1957, and the section allows the vacation of a plea until the time of sentence.

[13] The defendant has not engaged counsel in respect of this application but Mr Founier was appointed to assist the Court in respect of the defendant’s application. Mr Founier assisted the defendant in filing his application to vacate his guilty plea and on the completion of the defendant’s affidavit. Mr Founier has also assisted the Court today in re-examining the defendant at the conclusion of Mr McRae’s cross-examination. Mr Founier also made Mr [Feaunati]’s submissions to the Court today.

Affidavit and evidence of Mr [Feaunati]

[14] It is the defendant’s evidence that when he was first charged with these offences, he applied for legal aid. As he was able to choose his counsel, he chose Mr Rupert Glover, as Mr Glover was known to the defendant as an experienced trial counsel. Unfortunately for the defendant, Mr Glover encountered serious health problems and was unable to represent him through to trial. Mr [Feaunati] was subsequently assigned a new lawyer. He was not asked by the Legal Services Agency as to who he would wish to have act for him, but rather he was simply assigned a counsel on what appears to be a random basis. It is the defendant’s evidence that he did not establish a working relationship with any of the lawyers who were assigned to him, and consequently he went through a number of lawyers before mid-February of

2017 when he was assigned to be represented by Mr McCall. Mr McCall went on to become the defendant’s trial counsel.

[15] Mr [Feaunati] deposed in his affidavit of June 2017, which appears to be an undated affidavit, that his instructions to Mr McCall were that he wanted to defend all of the charges i.e. remaining not guilty. By the time Mr McCall had been assigned to represent the defendant, there was a trial date already set and that was scheduled for 20 March 2017 in this Court. It was Mr [Feaunati]’s view that that was not much time for Mr McCall to get to grips with his case, and Mr [Feaunati] confirmed that in evidence today.

[16] In his affidavit, Mr [Feaunati] deposed that his defence was that the complainant had consented to the sexual activity, or there were reasonable grounds for him believing that she had consented. His defence to the injuring charge was that the injury was accidental and that he believed he would need to give evidence about these matters. However, during the course of the hearing there has been clear evidence, not refuted by Mr [Feaunati], that he did not wish to give or call evidence. Mr [Feaunati]went on to further depose in his affidavit that he did not recall discussing with Mr McCall what his evidence would be, and he did not believe he was properly prepared in this regard. However, I again note, that evidence also appears to be inconsistent with the evidence at trial and at this hearing today, and that Mr McCall himself had serious misgivings of running a defence involving consent without the defendant’s apparent willingness to give evidence.

[17] Mr [Feaunati] does not appear to dispute this fact at the hearing. Rather, he has accepted that he told Mr McCall - wrongly, he now says - that he could not remember the sexual activity, as he thought that would put him in a better position at his forthcoming trial. It is Mr [Feaunati]’s evidence that on the morning of the trial Mr McCall came to see him and said the Judge told him that he would be getting 10 years for the charges he was facing, and that he should accept a sentence indication. He further deposed that the way Mr McCall told him, he, Mr [Feaunati], felt that he did not believe that Mr McCall was acting for him. In addition, he formed a view that Mr McCall was underprepared and he believed that Mr McCall did not want to conduct his defence. Mr [Feaunati] confirmed those factors in evidence today, saying he felt

under pressure to accept the sentence indication. I will address that further in this decision.

[18] Additionally, the defendant, in his affidavit, deposed to the fact that he felt pushed into having to accept the sentence indication because he would not be adequately defended, and he believed he had no other choice but to accept a sentencing indication. He said he did not believe that Mr McCall could properly defend him, and that after he had pleaded guilty Mr McCall sent him a copy of his invoice which he, Mr McCall, had submitted to the Legal Services Agency; Mr [Feaunati] said he could not reconcile the amount of work done or the time that Mr McCall had actually spent with him. He said it was after that, that he had tried to sack Mr McCall for what appears to be the second time.

[19] The defendant went on to depose that if he wanted to plead guilty or get a sentence indication, he would have done it much earlier, as he understood that a greater credit is given the earlier a plea is made. He deposed, “If I wanted to plead guilty, I would’ve done that at least at callover” which took place on 28 February 2017. He acknowledged that the charges were serious and he did not believe that he had been properly advised or represented by Mr McCall. The defendant, Mr [Feaunati], has expanded on his affidavit evidence in his oral evidence for the purposes of this hearing.

Affidavit and evidence of Mr McCall

[20] The defendant’s former counsel, Mr McCall, swore an affidavit dated 20 June 2017, and also gave oral evidence. Mr McCall does not accept that he was ill prepared and not ready to go to trial. He rejects the proposition that at any point in time he was not acting in Mr [Feaunati]’s best interests, nor did Mr McCall accept that he did not want to conduct the defence. He confirmed that he was ready to proceed with the trial on 20 March 2017.

[21] Further, Mr McCall’s evidence, both orally and in his affidavit, gave much more detail than does the defendant in respect of Mr McCall’s involvement in representing the defendant. He said that he received the assignment on 3 February this

year and arranged to have an AVL meeting with Mr [Feaunati] on 7 February. During the course of that initial meeting, the defendant raised with Mr McCall the fact that the complainant had sworn an affidavit making certain admissions concerning her mental health. As a result of that information, Mr McCall then travelled to Mr Glover’s office (Mr Glover being Mr [Feaunati]’s former counsel) and obtained a copy of the affidavit.

[22] Subsequently, on 28 February 2017, there was a pre-trial argument undertaken by Mr McCall on behalf of the defendant at the Ashburton Court. The Court date was the first time that Mr McCall had met the defendant face-to-face, as he had previously been communicating with him either by phone, letter or AVL. It is Mr McCall’s evidence that, during their meeting at the Ashburton Court, the defendant confirmed that he did not wish to give evidence at trial, nor did he have any witnesses he would wish to have called on his behalf, and the defendant said that he believed the complainant had consented because she did not object to the actual sexual intercourse.

[23] Today the defendant said he saw Mr McCall on that occasion in Ashburton for about 30 minutes. It is Mr McCall’s evidence that the defendant advised him that he would be pleading guilty to the charge of injuring with intent, although Mr McCall had advised him that there could potentially be a challenge to the issue of intent or recklessness regarding the injury occurring, and the not guilty plea was at that stage maintained. Today, Mr [Feaunati] explained he wanted to plead guilty to the injuring charge, as he thought he would look better in Court.

[24] Mr McCall subsequently wrote a letter of report to the defendant, dated 2 March 2017, and that was attached to his affidavit as an exhibit. In that letter, Mr McCall detailed the outcome of the pre-trial hearing, which was related to an application by the Crown to adduce propensity evidence in the nature of ‘relationship’ propensity. In that letter, additionally, Mr McCall explained the consent issue and what was required to be proven; although the letter refers to, and I am directly quoting, “If the defendant does not wish to give evidence, then the issue of reasonable belief could not be put before the Court.”

[25] Mr McCall went on to explain to the defendant, in that letter, the associated risks of not giving evidence if a reasonable ground for belief defence was to be run on his behalf.

[26] The letter, in my view, was in plain and clear language and should have left the defendant in no doubt as to the options that were available to him in terms of decision making as to whether to give evidence or not. Although I also acknowledge that Mr McCall was candid in his evidence on 8 August in the Christchurch District Court that the detailed letter may have been above Mr [Feaunati]’s understanding of the language that he had used. The letter referred to sections of the Crime Act, but Mr McCall said he explained the letter to Mr [Feaunati] in more plain, easy to follow, language when he spoke to him. Mr McCall also said that Mr [Feaunati] never told him he could not understand the letter. Looking objectively at this letter, while acknowledging that it is somewhat legalistic, it is clear in its contents regarding the issue of consent; in my view.

[27] After Mr [Feaunati] received the detailed letter, he subsequently sent an email through the prison services to Mr McCall, advising that he was not happy with Mr McCall’s performance in representing him. This, Mr McCall said, came as a complete surprise to him, and when he attempted to withdraw as being a counsel for Mr [Feaunati], Legal Aid advised that if he, Mr McCall, were to be dismissed then no other lawyer would be assigned. Subsequently Mr McCall spoke to Mr [Feaunati] at a meeting at the prison in which the defendant confirmed he had panicked when he had read the letter from Mr McCall because of the impending trial date, but now wanted to have Mr McCall represent him.

[28] Additionally, at the same meeting, the defendant and Mr McCall had further discussions. They went through the basis of the defence that Mr McCall wished to put forward and Mr McCall took detailed instructions from the defendant regarding the statement made by the various witnesses. Mr McCall also said in evidence that he told the defendant on 15 March 2017 that the Crown were prepared to drop one of the rape charges, but at that time the defendant said he was not interested in a deal as he wanted to go to trial; although the defendant said to him that he, the defendant, would be found guilty if the complainant turned up to Court.

[29] Mr McCall said in evidence that although the defendant was insistent that he wanted to go to trial, the closer to the trial date, he became increasingly apprehensive and Mr McCall tried to allay his fears by saying it is not a foregone conclusion until the complainant gives evidence.

[30] Mr McCall said he wanted to give the defendant some hope, but that Mr [Feaunati] could not give him clear instructions as he said he had no memory of the events. The only apparent issue was consent but from the outset, because of Mr [Feaunati]’s instructions that he did not want to give or call evidence, that was going to place some difficulty with such a defence, as the defence on reasonable grounds is run usually on the basis that a defendant gives evidence to explain their position.

[31] On 14 March 2017, Mr McCall received an email from the defendant indicating that he was being sacked. He said that he was somewhat perplexed but that he felt that matters had resolved between them, following the later meeting at the prison which occurred, I think, the next day and which I have just discussed. Mr McCall said that he thought that Mr [Feaunati] was trying to delay the trial and that he proffered the position of having Mr McCall sacked or tried to sack him to delay the inevitability of a trial. Mr McCall was aware that Mr [Feaunati] had held Mr Glover in high esteem, but he also understood that Mr [Feaunati] had told Mr Glover he would not be giving evidence. As he was aware that there was a short time between when he was assigned and when the trial was to be undertaken, he deposed of the fact that he took careful steps to ensure that he took clear instructions from Mr [Feaunati] and to consider his defence.

[32] Mr McCall commented that once the sentence indication was given, that he gave the defendant time to consider the sentence indication. Mr [Feaunati] had asked his counsel, Mr McCall, whether the complainant was present at Court on the morning of the trial, and he was told that she had come to Court that day to give evidence. Mr McCall said he was clear to Mr [Feaunati] that he did not have to accept the sentence indication and that he could walk away from it. Mr McCall felt that the defendant’s decision to accept the sentence indication appeared to be based on his knowledge that the complainant was at Court that day to give evidence.

[33] In the complainant’s evidential video, she presented with a black eye and a shoulder injury which was, I understand, the basis of the injury charge. The challenge for the defence in respect of all of the charges that would have been before the jury, was the lack of memory and particularly in relation to the sex stage. Mr McCall confirmed that he had a discussion with the defendant about that if he pled guilty, there would be a first strike warning and no minimum parole period. Further, it was Mr McCall’s evidence that he had a sense that the defendant wanted to plead guilty, as I have referred to him knowing that the complainant was present at Court.

[34] Mr [Feaunati] in his evidence, accepted that after Mr Glover became unavailable, he went through a number of lawyers – 10 or 11 – before Mr McCall. He said he wanted to have confidence in that person and he wanted to choose his own lawyer, and he thought it was best that he did not give evidence. However, he is now saying that he can remember the incidents around the sexual activity. He repeated in cross-examination, when he gave evidence today, that the reason he told Mr McCall that he had no memory was that he thought that that was the better position for him to have at the trial. His further evidence today was that he felt that he never clicked at all with Mr McCall and that all his dealings with Mr McCall had been rushed. In evidence, he also said that he would have given evidence and given his version of events, but he accepts that he had not told Mr McCall that, and that he had thought it was best that he say nothing. He acknowledged that he had been involved in a jury trial process before but that was some time ago, maybe in 1999 or possibly 2000, the defendant was not sure.

My analysis

[35] In terms of the evidence that I have heard during the course of this hearing, I was impressed by Mr McCall’s evidence. He was candid in acknowledging that the detailed letter he sent to Mr [Feaunati], which I have already discussed, may have been above the language of true understanding for [Feaunati]. However, while Mr [Feaunati] was generally clear leading up to the trial that he wanted to plead not guilty, I also accept that he made comments to Mr McCall or others along the lines of, “I am fucked”, and if the complainant turns up, that he would be found guilty.

[36] I accept Mr McCall’s evidence that the only apparent issue or defence was consent, but that this was going to be difficult to run on the basis of Mr [Feaunati]’sthen instructions that he had no memory of the sexual activity and that he was firm that he did not want to give evidence. Mr [Feaunati] has not, during the course of this hearing, disputed that aspect of Mr McCall’s evidence and, in fact, has explained in more detail as to why he stood by his position regarding his memory.

[37] During the course of Mr [Feaunati]’s evidence, it was apparent that the only lawyer he had faith in was Mr Glover, who unfortunately was not available. Mr [Feaunati]’s actions in “sacking” (for lack of a better word) a large number of lawyers before Mr McCall leads the Court to the ultimate conclusion that Mr [Feaunati] did not like the advice he was receiving from other lawyers, or was seeking to delay his trial. He repeated on a number of occasions that he wanted a “real good lawyer” but did not explain what he meant by that. Having had Mr Glover and known of his reputation, the Court can only conclude that, in Mr [Feaunati]’s mind, no one else would be good enough, and Legal Aid would not permit the defendant to have another lawyer in any event. That was certainly one of the reasons, Mr [Feaunati] confirmed in evidence today, that he was not more assertive in expressing his displeasure regarding Mr McCall’s continuing representation of him.

[38] Mr [Feaunati] repeated in his evidence several times that on the day of the scheduled trial, being 20 March 2017, he felt he had no choice but to ask for a sentence indication; he felt he had no choice but to accept it, once it was given; he felt he had no choice and felt under pressure to plead guilty when the charges were put to him, because of the pressure he felt, particularly from Mr McCall. He said, however, that when he did enter his guilty pleas to the charges, as they were put to him he said it (“guilty”) quietly because that was representative in some way of his reluctance to plead guilty.

[39] Mr [Feaunati] said that Mr McCall told him that if he did not take the sentence indication, he would get 10 years’ imprisonment. Mr [Feaunati] accepted he never conveyed his reluctance to either get, receive, or accept a sentence indication to Mr McCall or anyone else on 20 March. He accepts that he asked if the complainant was at Court that day. He felt that Mr McCall did not have a commitment to fight his case

at trial. Mr [Feaunati] accepted he signed written instructions to seek, in the first instance, and to then accept a sentence indication, but he said in his heart this was not what he wanted. Likewise, Mr [Feaunati] appeared to be hanging his hat on the hope that the complainant would not attend Court to give evidence. If she did appear he seemed to appreciate, from his comments which I have already referred to, that the prosecution had a strong case against him.

[40] The decision to allow a guilty plea to be withdrawn is a discretionary one for the Court. The Court should only grant leave if it is in the interests of justice to do so. In determining the interests of justice, the Court should have regard to the interests not only of the defendant but also the victims and witnesses; in this case, primarily the complainant as well as the defendant. I need to consider various matters which include whether the defendant appreciates the nature of the charge or did not intend to admit his guilt; whether the defendant’s ability to enter a guilty plea was affected by lack of capacity; or other relevant matters; I also need to consider whether there is a possible defence to the charge or charges of which the defendant was unaware when he pleaded guilty, whether because of incompetent legal advice or otherwise; finally, if there is or was some impropriety in the conduct of the proceedings or of the prosecution.

[41] Leave is seldom given where a defendant has had competent and correct legal advice before plea, and if the Court is satisfied the plea was made freely and on an informed basis. This includes if a defendant had an arguable defence which he chose not to advance after proper advice about the charge, and the quality of the defence.

Submissions for Mr [Feaunati], by Mr Founier as counsel to assist

[42] I have already indicated that Mr Founier made the defendant’s submissions to this Court and I will now refer to those submissions.

[43] In addition to the oral submissions that Mr Founier made today, he has also filed written submissions which I have read and considered. Mr Founier has submitted that there is a combination of discrete components in this case which might not individually meet the threshold for a successful application under s 115, but that in combination could or should give the Court concern that Mr [Feaunati] has not ‘had

his day in Court’. Mr Founier accepted that some of those components might be, or were, attributable to the defendant, but others were not.

[44] Having had a satisfactory assignment and representation by Mr Glover; Mr Founier submitted that it is clear that the defendant had confidence in Mr Glover, particularly due to Mr Glover’s reputation as an experienced trial counsel. However, one of the factors which Mr Founier has urged the Court to consider (which was, to some extent, outside the defendant’s control) was the position of the Legal Services Agency not being prepared to assign a new counsel once the relationship between Mr McCall and the defendant had broken down.

[45] Additionally, Mr Founier submitted that although Mr McCall was assigned six weeks out from trial - which, from the lawyer’s perspective in a case such as this, might not be too problematic - the Court’s focus should be on the defendant’s position and that his position and perspective was likely to be quite different. It was clear from Mr [Feaunati]’s evidence that he formed a view that there was insufficient time for Mr McCall to be properly prepared within the timeframe available. Further, Mr Founier submitted that the defendant did attempt to deal with some of the issues, particularly when he raised his preliminary concern regarding his representation by Mr McCall directly with Mr McCall.

[46] Further, Mr Founier submitted that on 20 March it was the defendant’s expectation that he was coming to Court for a trial, and then something happened which brought about a radical shift from going to trial, and then at the end of the day to pleading guilty. He submitted that there was not adequate time to consider the sentence indication and confirmed that the Criminal Procedure Act provides for the Court to allow an accused person up to five days to consider a sentence indication, and that that is usually the amount of time a defendant is given to consider such a weighty decision, such as was the position for Mr [Feaunati]. Mr Founier submitted that it is better that such decisions are made without pressure and that the defendant, Mr [Feaunati], found himself under pressure.

[47] Finally, Mr Founier posed the question, “Does Mr [Feaunati]’s circumstances look like something has gone wrong with the trial process?” and if the Court concludes

that the answer to that question is ‘Yes’, then the application by Mr [Feaunati] should be successful.

Submissions by Crown in response

[48] Mr McRae made submissions on behalf of the Crown. He asked the Crown to look at the timing. He referred to the request for the sentence indication and that there was sufficient time to consider that indication request. Further, once the indication request was made and the indication given, there was further time to consider the sentence indication. Some of that time was for Mr [Feaunati] on his own, without any pressure from anyone else, including his counsel. Even once he had accepted the sentence indication, or at least expressed a view to Mr McCall that he wished to accept the sentence indication, he had the additional lunch period of well over an hour to consider and could have changed his mind. Further, Mr McRae submitted that there was yet another opportunity for Mr [Feaunati] to make it clear that he did not want to accept the sentence indication when the charges were put to him at the Court appearance in the afternoon of 20 March.

[49] The Crown submit that the defendant is no stranger to the criminal justice system and that the defendant was well and robustly advised by his counsel, particularly if one considers the letter that was sent to him by Mr McCall dated 2 March, and that the defendant must have weighed up those factors. Mr McRae submits that there was no error that has been identified that can be attributable to Mr McCall, and that Mr McCall is an experienced counsel; his advice was not deficient; that any purported defence was likely to be difficult to progress, particularly taking into account the statements made by the defendant post the allegations, and also the fact that the defendant had clearly indicated he was not intending to give evidence. Finally, Mr McRae submits that it is not in the interests of justice to grant leave for a defendant who has received advice from experienced counsel and had sufficient time to consider matters.

[50] Both counsel have, in their written submissions and today (Mr McRae orally) referred to various cases. In particular I refer to the two decisions of R v Keegan1 and R v Merrilees2. In the Keegan decision, the Court commented at paragraph 60:

Anyone facing serious charges will inevitably be under pressure to a greater or lesser extent in the context of criminal procedure. The fact that an accused may be stressed and felt under pressure, when making a decision to plead guilty, is not ordinarily sufficient to amount to a miscarriage of justice.

Mr McRae submits that that is applicable to Mr [Feaunati]’s circumstances.

[51] Further, in respect of the Merrilees decision, the Court noted at paragraph 35,

It is often the case that an offender pleads guilty reluctantly but nevertheless does so for various reasons, they may include securing of advantages to withdrawal of other charges and discounts. Later regret, over entering a guilty plea, is not the test as to whether the plea can be properly impugned.

Discussion

[52] I will now turn to the various matters I need to consider. Having heard from Mr McCall and the defendant, both orally and in their evidence, there is nothing to suggest that Mr [Feaunati], in my view, did not appreciate the nature of the charges he was facing. Although he previously said he could not remember the sexual activity in issue, he qualified that in his evidence today by now saying he does have some memory. However, there is no evidence before me to suggest he did not appreciate that he was charged with rape, a serious assault, and a breach of the protection order charge; and he had, as early as June 2016, pleaded guilty to an associated male assaults female charge.

[53] To ensure that I did not reach the wrong conclusion regarding Mr [Feaunati]’s capacity, I arranged for him to be assessed after the last Court hearing by a forensic nurse, who reported to the Court that Mr [Feaunati] had no capacity issues and was fit to plead and instruct counsel.

1 Keegan v R [2010] NZCA 247.

2 R v Merrilees [2009] NZCA 59.

[54] Likewise, I cannot conclude there is any possible defence to the charge for which the defendant was unaware when he pleaded guilty. Although he now says he can now remember the sexual activity, this memory does not give him a defence or place him in any different position from when Mr McCall advised him, if he wanted to run consent as the issue at trial.

[55] Finally, I cannot conclude that there was any impropriety in the conduct of the proceedings or of the prosecution. The prosecution acted appropriately throughout and Mr McCall gave detailed, careful advice, as would be expected from an experienced defence counsel. Mr McCall was aware when he accepted the assignment to act for Mr [Feaunati] that time was of the essence. I accept his evidence (and there is no evidence to contradict this) that within a week of him receiving the assignment to represent Mr [Feaunati], he had an AVL meeting with him. He also commented that he felt that he had established a rapport with Mr [Feaunati].

[56] I cannot conclude that Mr [Feaunati] had an arguable defence which he chose not to run after proper legal advice, any potential defence was consent. He was aware of that and he chose not to give evidence or at least gave instructions that he was not going to give evidence, even though Mr McCall had clearly indicated that that would be an impediment.

[57] On the day of the sentence indication (although, I accept, a decision to seek and accept a sentence indication had to be made in a timely way in this case) I cannot accept on the evidence before me that Mr McCall had put pressure on the defendant to either seek in the first instance, or accept otherwise, the sentence indication that was given. It was the trial Judge who raised the prospect of a sentence indication. Mr [Feaunati] could have immediately said, “No, I don’t want a sentence indication”, as he had previously indicated. He had time to consider whether or not to seek the sentence indication in the first instance, and he then chose to seek the sentence indication, in my view, on the evidence before me. Having then had the opportunity of a sentence indication, he could have refused to accept the sentence indication. That is not unknown in cases; defendants are given sentence indications and defendants do refuse sentence indications.

[58] Mr [Feaunati] was, in my view, given time to consider whether or not to accept the sentence indication and some of that time he had available to him, on his own, without pressure from anyone including Mr McCall. Even after he had indicated an acceptance of the sentence indication, there was a period during which he could have then said he was not going to accept the sentence indication and still wished to proceed to trial.

[59] Likewise, once his case was called again in the afternoon and when the charges were put to the defendant, instead of indicating guilty pleas, he could have said, “No, I wish to pursue my not guilty pleas.”

[60] In terms of ultimate outcome and strength of the prosecution case, the complainant’s evidential interview I understand would have made it clear from her physical presentation that she had been injured. In any event, the defendant himself had previously indicated that he wished to plead guilty to that particular charge, so it would seem to me that there was a strong case against him in respect of the injuring charge. Likewise the defendant’s comments - made perhaps regretfully, I accept - regarding, “I am fucked” and “If she gives evidence, I will be convicted”, leads me to conclude that the defendant did intend to plead guilty once he had received the reality check of Judge Maze’s sentence indication.

[61] In reaching my decision today, I also have considered the cases that I have referred to, as well as the others in counsels’ submissions.

Result

[62] Therefore, Mr [Feaunati], having carefully considered the case law and in particular the passages I have referred to, and the evidence, my conclusion is that I prefer the evidence of Mr McCall.

[63] I cannot conclude that your guilty pleas were affected either by lack of capacity or other relevant matters.

[64] I do not grant you leave to vacate your guilty plea. Your application is refused.

B A Farnan

District Court Judge