TAMAHAGA v R [2023] NZCA 599

TAMAHAGA v R [2023] NZCA 599 [28 November 2023]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA103/2023[2023] NZCA 599BETWEEN BRYCE IOTUA TAMAHAGAAppellantAND THE KINGRespondentHearing: 30 October 2023Court: Wylie, Mander and Muir JJCounsel: R D Mulgan for AppellantI S Auld for RespondentJudgment: 28 November 2023 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Muir J)Introduction[1] Bryce Tamahaga appeals his conviction, following a District Court jury trialbefore Judge Sainsbury, on two charges of sexual violation by unlawful sexualconnection.1 Mr Tamahaga was sentenced by the Judge to 27 months' imprisonment.2[2] On appeal, Mr Tamahaga claims that there has been a miscarriage of justicebecause his defence was advanced on the sole basis that the violations did not occurwhen his trial counsel should have run an additional defence that, if the victim hadbeen assaulted, she had misidentified her assailant. He claims a related miscarriageon the basis that the trial Judge did not direct the jury on the issue of identity.[3] Although numerous post-conviction admissions were made by the appellant,he says that these were false and simply designed to elicit a non-custodial sentencewhich the trial Judge had indicated might be available were he to acknowledgehis guilt.[4] The appeal falls to be considered under s 229 of the Criminal ProcedureAct 2011. Having regard to the nature of the appeal this requires that the appellantestablish a miscarriage of justice such that there is a real risk that the trial outcomewas affected.3[5] On 19 October 2023, Mr Tamahaga's associated appeal against his sentencewas abandoned.BackgroundThe offending[6] The appellant and his fiancé rented a two-storey apartment which they sharedwith another couple. Shortly before the offending, his fiancé's sister, K, came to livein the flat, taking the third upstairs bedroom. The flat was configured with the kitchenand living spaces on the ground floor and the bedrooms and bathroom on the first floor.1 Crimes Act 1961, s 128(1)(b) and 128B — maximum penalty of 20 years' imprisonment.2 R v Tamahaga [2022] NZDC 2270 [sentencing notes].3 Criminal Procedure Act 2011, s 232.[7] A flat-warming party was arranged to welcome K. She, in turn, invited thevictim, C, who was a friend. C and the appellant had known each other forapproximately four years but were not close friends.[8] There were a number of young people at the party, both male and female.Dancing and drinking occurred. Several of the attendees, including C, becameintoxicated. The evidence was that while dancing with the appellant, he groped herbottom. She also said that he was "touchy" when dancing with other girls.[9] At some point in the evening, C cut her foot on some broken glass. Theappellant and one of C's friends, A, helped her to the upstairs bathroom where thewound was cleaned and dressed. Her evidence was that while they were in thebathroom, the appellant tried to hold her hand, but she pulled it away. Once the woundhad been attended to, all three returned to the party.[10] Eventually, the party began to wind down with those present leaving or makingtheir way to bed. C's evidence was that the appellant helped her upstairs and onto thebed in her friend, K's, bedroom. Other evidence suggested that K and A may also havehelped her to bed, although there were differing accounts. It is not in dispute that theappellant was at least peripherally one of those involved in relocating C toK's bedroom.[11] C's evidence was that while she was on the bed with the appellant, who wasthe only other person in the room at the time, he lifted her dress, moved her underwearto one side, and inserted two of his fingers into her vagina. She said that after a timehe removed his fingers, left the room and went into the hallway (she surmised to checkif someone was coming up the stairs) and then returned, whereupon he resumed theassault while masturbating.[12] At some point she said the appellant left the room for a second time. C'sevidence was that when the appellant returned he climbed on top of her, straddling herwith his legs and was "grinding" on her. She said that he also attempted to kiss her onher face. A short time later A came back into the bedroom to check on C. The appellantwas still there. A spoke to the appellant using his name and asking him what he wasdoing in the room. C said that the appellant explained his presence on the basis thathe was trying to let the cat out.[13] C told A about the offending shortly after it had occurred, and the next daymade a statement to police and underwent a medical examination. She later gave anevidential video interview.Procedural history[14] The appellant was charged with two counts of sexual violation by unlawfulsexual connection and one count of indecent assault.[15] He was first tried in October 2021. A majority not guilty jury verdict wasreturned on the indecent assault charge. The jury could not reach a verdict on thesexual violation charges. A retrial on the sexual violation charges commenced on29 August 2022. The jury found him guilty of both charges. It is these verdicts whichare the subject of this appeal.[16] We note one pretrial application relevant to the appeal. This related to theadmissibility of male DNA evidence identified on the inside of C's vulva. Theevidence was not of sufficient quality to identify with certainty whose DNA it was orthe number of males (if more than one) from whom it had potentially originated.[17] The appellant made an application under s 44 of the Evidence Act on the basisthat he might wish to question the victim about the possibility that another personcould have committed the assault. In that respect, Judge Harrop noted by way ofa minute:[5] Mr Gill has said that the defence is that none of the alleged violationor touching occurred, but in part the s 44 application was made because hewanted to preserve the opportunity for asking both the ESR expert and thecomplainant about the possibility of another male having committed theseoffences on the night. However, there appears to be no evidence that was arealistic possibility, apparently neither the complainant or any other witnesssuggest this possibility and the complainant maintains that the defendantassaulted her in the way alleged on three separate occasions, having left theroom twice in between those three occasions. So she, on the face of it, is inno doubt about the identity of the offender and there is no confusion on herpart about who it was. However, there were other young males present at theparty so technically the possibility exists.[10] In this case there does not seem to be any particular reason whetherrelating to the complainant's examination or the surrounding evidence tosuggest that another offender may have been involved. It is a matter forMr Gill whether he wants, on behalf of the defendant, to pursue the possibilityas part of the defence that the offending did it occur but it was at the hands ofsomeone else, or to focus the defence squarely on the absolute denial that thedefendant makes of having contact of the complainant in the alleged way.C's account[18] The victim's evidence-in-chief was given primarily by way of her EVI. In itshe named the appellant as her assailant from the outset. She provided a narrative ofhow she came to be in bedroom alone with him and how the offending occurred. Theinterview included the following exchange:4[C]: [A female] said something along the lines of "oh Bryce canyou help [C] up to bed?" and so I know it was him who walkedme up the stairs and then he came into the bedroom with meand when I got into bed he sat down and he never left the roomand then he started fingering me. And then he left again. And when he came back in again Inever looked at him or anything cos I'd stayed lying againstthe wall, or lying facing the wall and he fingered me while hewas masturbating and then he walked out again. And whenhe came in the third time I looked up to see, thinking it was[A] or [K] coming into bed. Um but it was him so I just turnedback over and faced the wall. And pretended to go to sleepagain and that's when he got on top of me.[Interviewer]: Right.[C]: And then when he heard [A] coming up he left.[Interviewer]: Mmhm[C]: And then I heard him like speaking and I heard someone asklike "Bryce what are you doing in here?" and he said "Oh I'mtryna get the cat out".Interviewer: Mmhm.C: And like I could, I knew it was his voice because he was theonly male in the room.4 Interspersed in the transcript by multiple references to the interviewer nodding their head.The appellant's account[19] In his EVI the appellant said that it was A and K who had taken C to K'sbedroom. However, he did accept that he went upstairs to check on them and into theroom. He said that he left a short time later but remained upstairs and went into hisown room to check his cats. He said that after some time, he heard C call out to A andwent into her bedroom where he assisted C to get up and walk down the stairs.[20] The appellant did not give evidence at either trial.The defence approach to trial[21] The appellant's counsel in respect of both trials was Mr Steven Gill. He hasprovided an affidavit to this Court following a waiver of privilege. He was notcross-examined on his evidence.[22] He deposes that Mr Tamahaga's instructions throughout were clear, namelythat he denied committing the offences and that C and A were both so intoxicated thattheir evidence was unreliable and/or not credible. He says that the appellant providedhim with considerable evidence about the amount of alcohol drunk, possible drug useby both C and A and the nature of their behaviour over the evening. He says:11. The defence challenge was always that [C] wasn't violated at all thatevening and that it was a false allegation. This was the approach thatwas used at the first trial. Mr Tamahaga seemed to be pleased withthat result, as far as I am aware, and there was never any suggestionof changing the approach for the [retrial]. Even now, with the benefitof hindsight, I still believe that the best approach, which was theapproach that Mr Tamahaga and I discussed continually, was achallenge to the complainant's reliability and credibility.12. I never unilaterally decided on a 'tactic'. Mr Tamahaga and Idiscussed together the defence approach to the allegation.[23] Consistent with this evidence, cross-examination of the victim at the secondtrial focused primarily on her level of intoxication and the general unreliability of heraccount. Mr Gill put it to her that it was A and K and not the appellant who had takenher to bed which she denied saying the appellant had assisted. He also put it to herthat it was not realistic for events to have occurred in the way she alleged given therisk of detection. He referenced other people coming and going and using the upstairsbathroom. He questioned how credible it was to suggest that the appellant hadremoved his trousers and masturbated given the time it would have taken him to dressif another person had entered the room.[24] As Mr Gill acknowledges in his affidavit, he never put it to C that she had beenviolated but was mistaken as to who was responsible. He says that:14. admitting the violation would be tantamount to admitting that what[C] said was largely correct despite her level of intoxication and thatif she was correct about that then her identity of the perpetrator couldalso be correct. With such a limited number of possible perpetratorsthat would, if anything, narrow down the defence opportunities tosuccessfully challenge [C's] credibility and reliability.Events post-conviction[25] At an initial sentencing hearing approximately a month after trial, the Judgeindicated a desire to make "a couple of observations for everyone's benefit,including [C] and Mr Tamahaga". He said that on the authorities the starting point"has to be imprisonment". He then went on to observe, however, that anacknowledgement of the offending would give a degree of validation to the victim"even someone who has gone through two trials" and that it could mean that therecould be "other options on sentencing". The Judge said that he was "not making anypromises of any outcome" but said that "as things stand at the moment, the onlyoutcome is prison". He then made a reference to "imprisonment in the community"and noted that a "genuine acknowledgement" of wrongdoing "has flow on effects, itgives [him] flexibility in what [he] can do".[26] Crown counsel suggested that if there was to be any acknowledgement ofwrongdoing at that stage, it needed to be "in a tangible form that precluded there beingany opportunity to later go back on that". The Judge agreed, saying that, in that event,there would not have been a "genuine" acknowledgement of guilt and that anacknowledgment for the purposes of saying "what the Judge wants" and then lodgingan appeal was "not going to go down well".[27] At that point, Mr Gill arranged to confer with Mr Tamahaga. Mr Gill deposesto what next occurred:16. Before we even got to the cells to talk, Mr Tamahaga said to me "I didit Steve". When we sat down in the cells I asked why it is that at thislate stage he now admits the offending and not prior to the two trialswhere it was put that [C] had, in fact, made the whole thing up.17. Mr Tamahaga's answer was that he was ashamed about what hisfamily would think about his having offended in this way.18. The conversation really only took moments. I did not adviseMr Tamahaga about his rights of appeal against conviction atthat time.19. I said the Judge had referred to the possibility of being in jail at home,meaning there was a possibility of home detention. I accept that I maywell have said that it was unusual for a Judge to adopt this course.21. We returned to the Court and I advised the Judge that Mr Tamahagadid admit the offending to which Mr Tamahaga nodded as the CourtRecord notes.22. The prosecutor had an issue about myself as Counsel speaking onbehalf of Mr Tamahaga, and really wanted, it seemed to me, forMr Tamahaga to be sworn to give evidence about his admissions.23. The Judge, however, accepted Mr Tamahaga's admissions andremanded him for sentence.24. I accepted Mr Tamahaga's admissions at face value, that is that he infact commit the offences, and that he had not admitted the offendingearlier because he felt considerable shame.[28] At that point the Judge set a date for the Court to be updated on what courses,programmes and counselling might be appropriate. A sentencing was subsequentlyscheduled for 9 February 2023. Mr Gill deposes about what occurred in the periodbetween admission of offending and sentencing.25. Thereafter Mr Tamahaga admitted the offences openly, and I alwaysthought, honestly to the WELSTOP programme, the counsellors at aMarae, and his probation officer.26. The appellant also wrote, what I considered, a heartfelt, genuine,remorse letter addressed essentially to [C], which Mr Tamahaga wasprepared to read out in Court.27. At no time thereafter did Mr Tamahaga ever tell me that in fact hedidn't commit the offences.28. At no time did I consider the admissions made by Mr Tamahaga to thevarious counsellors, probation officers, [C] and the Court to beanything other than genuine expressions of remorse and not sometactic to obtain a particular result.[29] The appellant's letter of remorse was in fulsome terms, including theobservation that he "should have come clean a long time ago", that he was "disgustedwith how [he] handled [him]self" and that he had become "the person who [his]parents never raised [him] to be".[30] In Mr Tamahaga's affidavit in support of his appeal, Mr Tamahaga disputesthat he made admissions of guilt to any counsellor or probation officer, but he did notdeny the "I did it Steve" statement made en route to the cells. He says that he was"overwhelmed", "desperately anxious about the risk of going to jail" and simplyadopted what he thought was his "best tactic". He says that he is "ashamed to havebeen untruthful". We note that his denial of any wider acknowledgement of guilt isdifficult to reconcile with the contents of the Department of Corrections Provision ofAdvice to the Courts Report dated 13 January 2023 which includes anacknowledgement by Mr Tamahaga of sexual arousal at the time of the events, apossible explanation for the offending (sexual frustration in his primary relationship)and confirmation that he had maintained his not guilty pleas up until 5 October 2022because he was "ashamed of the offending and did not want his [whānau] or those whosupported him to know what he had done".The appellant's case[31] Counsel for Mr Tamahaga, Mr Mulgan, submits that trial counsel erred by notputting identity in issue. He says that Mr Tamahaga entrusted the analysis of viabledefences to his counsel, that what he describes as a "parallel defence of mistakenidentity" was never raised and that this would not have contradicted a challenge to theassault having never in fact occurred.[32] Although conceding that appeals relating to counsel error typically involvefailure to adhere to client instruction, he says there was a duty on the part of Mr Gillto analyse and advise on all viable defences arising from the facts.[33] He submits that counsel must be particularly vigilant where a defendant'spersonal impression of events "goes beyond what he is capable of knowing on hisversion of them". He says that counsel was not bound by Mr Tamahaga's personalimpression that C was so intoxicated as to be wholly mistaken about what occurredwhen she was put to bed.[34] He relies on Mohamed v R5 and R v K6 for the proposition that clientinstructions must be fully informed,7 and that counsel must raise relevant issues withtheir clients on their own initiative.8 He submits that deciding what defences to runare important decisions and that Mr Tamahaga should have been told that an identitydefence was also potentially available, and instructions taken accordingly.[35] He further submits that the trial Judge failed to give the jury adequatedirections about the identity issues which arose on the facts as disclosed. He suggeststhat everything turned on C's ability to make a positive identification, that shepurported to do so while drunk, face-down in a darkened room, having glimpsed theperpetrator only once when the light would have been behind him and not hearing himspeak.9 He submits that, in that context, the Judge erred in failing to:(a) give an identification warning in terms of s 126 of theEvidence Act 2006;(b) summarise the identification evidence in his summing up; and(c) treat identity as a separate step in the jury question trail provided.[36] In respect of the post-trial confession(s), he submits that they were unreliableand the product of a "terrified" defendant who identified no other realistic means ofavoiding jail time. He further submits that counsel was under an obligation to advisethat any confession could prove an obstacle on appeal and that in the absence of suchcaution, no weight should be placed on it.5 Mohamed v R [2023] NZCA 143.6 R v K [2009] NZCA 176.7 Mohamed, above n 5, at [77].8 R v K, above n 6, at [27]–[28].9 In our view, the proposition she did not hear him speak is inconsistent with her evidence.The Crown case[37] For the Crown, Mr Auld submits that C was in no doubt as to who assaultedher, that her evidence was corroborated by the fact that the appellant accepted he hadbeen in the bedroom alone with her and that there was no credible theory of the casethat the victim had been assaulted but had misidentified her assailant — particularlybecause, on his own account, there was no realistic opportunity for any other personto enter the room and commit the offending. Mr Auld says that there was a reasonableinference that the person who initiated the assault continued with it, even without thefurther visual identification by the victim when she looked up and saw the appellant'sface as he entered the room for the third time.[38] He submits that the appellant's instructions to his trial counsel were that he didnot commit the offending and that, within the scope of those instructions and havingregard to the evidence, it was a reasonable trial tactic to focus the defence on thevictim's reliability due to intoxication.[39] He says that there was no requirement for the trial Judge to direct the jury onidentity under s 126 of the Evidence Act when identity had not been put in issue bythe defence and where there was no credible narrative of misidentification.[40] He submits that the appellant's post-conviction admissions to the Court, thevictim and others are reliable and that his retraction for the purposes of the appeal are"entirely self-serving and not credible".DiscussionAlleged counsel error[41] We accept that it was logically possible for trial counsel to have run alternativedefences based on the propositions that C was either not offended against at all or, ifshe was, that there was reasonable doubt that the appellant was responsible. AsMr Mulgan submits, if Mr Tamahaga's instructions were that he did not assault C, hecould not have known whether the allegation of assault was false or whether she wassimply mistaken as to the identity of her assailant. However, trial counsel wasundoubtedly correct that this strategy (albeit one that he had identified and sought toreserve at the pretrial stage) carried with it significant risk. It would have inevitablyweakened the primary defence, namely that the victim was so intoxicated as to not bereliable or credible in her evidence that she had been assaulted. This is because itwould have risked the jury concluding that what the victim said was largely correctdespite her level of intoxication and if correct about that, then she was also correct inher identification.[42] As the Crown suggests, in order to run the alternative defences Mr Gill wouldhave had to have cross-examine C on the basis that she had been assaulted but hadmisidentified her assailant. We agree that it is difficult to see how such across-examination could have been advanced convincingly alongside the propositionthe offending had not occurred at all. That is particularly so where other "feasibility"based lines of cross-examination were being pursued — for example, the feasibility ofthe victim being assaulted in the bedroom when it was suggested people were comingand going from the upstairs bathroom and/or the feasibility of a masturbating assailantdressing himself in time to avoid detection by someone entering the room.[43] It is also difficult to see where such a cross-examination would have taken thedefence. C had known the appellant for four years. The uncontradicted evidence wasthat the defendant had some role in her relocation to the upstairs bedroom or was atleast present in the room at the time of relocation. Her evidence was that sherecognised the appellant's face when he returned to the bedroom for the second timeand his voice when he explained that his presence in the room was to "get the cat out".She also refers to the fact that he was addressed by name by the person who queriedhim about what he was doing in the room. We agree that putting the proposition tothe victim that she had misidentified the offender would, in these circumstances, havein all likelihood simply elicited further evidence as to why she was sure it was theappellant who had assaulted her.[44] We also agree with the Crown submission that there is no obligation on counselto advise on all available approaches to the conduct of a defence, particularly whensome approaches, while possible, are ill-advised. We accept that there will be cases,as in F(CA506/2014) v R,10 where there is a sufficiently strong evidential basis to runa defence of mistaken identity and where a failure by counsel to actively canvass theavailability of the alternative defence will give rise to a miscarriage of justice.11However, this case is not as clear-cut. The victim's identification was unequivocal,based on long-term acquaintance and visual and oral identification at various relevanttimes. There was no evidence to credibly support the proposition that any other malemay have committed the offence, particularly given the appellant's account that heremained upstairs throughout the relevant period and returned to K's bedroom whenshe heard C call out for A. This further narrowed the opportunity for any other maleto have been responsible.[45] We consider the case to have rested on the cusp of those where trial counselwas acting within the limits of his reasonable discretion and those where (if onlysubsequently to advise against the strategy), there was a responsibility to identify thepotential alternative defence. We consider best practice would have been to identifythe alternatives and to have obtained informed instructions. However, we do notconsider this to be a case where the absence of such exchange can be said, withoutmore, to establish a presumptive miscarriage of justice.12Alleged judicial error[46] We start with the submission that the trial Judge should have given a directionunder s 126(1) of the Evidence Act.[47] Section 126(1) provides that:In a criminal proceeding tried with a jury in which the case againstthe defendant depends wholly or substantially on the correctness of 1or more visual or voice identifications of the defendant or any otherperson, the Judge must warn the jury of the special need for cautionbefore finding the defendant guilty in reliance on the correctness ofany such identification.10 F (CA506/2014) v R [2015] NZCA 440.11 At [10]–[20]. That case concerned sexual offending against a young girl aged six or seven. Adefence not pursued at trial was that the appellant's brother was responsible, both having had therelevant opportunity, and with evidence that the appellant's brother had engaged in a similar sexualviolation of a young girl.12 Contrast Mohamed, above n 5, at [77], where this Court discussed that it is well accepted that afailure to ensure that a defendant makes a properly informed decision about an election whetherto give evidence can give rise to the risk of a miscarriage of justice.[48] Section 126(2), in turn, mandates particular elements of the warning which,although it need not be in any particular words, must:(a) warn the jury that a mistaken identification can result in a seriousmiscarriage of justice; and(b) alert the jury to the possibility that a mistaken witness may beconvincing; and(c) where there is more than 1 identification witness, refer to thepossibility that all of them may be mistaken.[49] This Court has previously accepted a Crown submission that the wording ofs 126 is awkward.13 We acknowledge that ultimately most criminal prosecutions arewholly or substantially dependent on the correctness of visual or voice identificationevidence to some extent or another. We accept that it is unlikely Parliament intendedtrial Judges to give this direction in every case and that the phrase "depends wholly orsubstantially" should ordinarily be confined to those cases where identification isin issue.14[50] In E v R, sexual assaults were committed against two separate victims on thesame night at a marae.15 This Court held that identification of the appellant as theoffender in respect of the first victim was not "at issue during the trial" and no s 126direction was therefore necessary.16 By contrast, the second victim's ability to identifythe appellant at the time of the offending was such an issue. It had been the subject ofspecific questioning and counsel had put to the victim the proposition that the offenderwas in fact the appellant's cousin. In those circumstances, the Court concluded that as 126 direction was necessary.17[51] Likewise, in Witehira v R, this Court found that a s 126 direction wasappropriate but only because the defence had specifically relied on the possibility that13 E (CA113/2009) v R (No 2) [2010] NZCA 280 at [63].14 At [60].15 See [4] and [7], where in respect of the first victim, the defendant at trial admitted meeting her ata toilet block, hugging her and falling over but denied sexual intercourse. See also [5] in respectof the second victim, she awoke to find someone behind her rubbing her leg and crotch who sheidentified through a brief glance by the light of her cell phone.16 At [66].17 At [67].the victim may have been mistaken as to the identity of the offender and there was areasonable basis for this on the facts.18[52] As we have indicated, the defence did not in this case put identity in issue,instead focusing on the reliability of the victim in terms of whether any offending hadoccurred at all. There was a reasonable tactical basis for that approach.[53] We accept that, independently of the way in which a case is run, if there is asufficient evidential foundation for concern that the victim may have misidentified herassailant, then a direction will be appropriate. That is consistent with the Judge'sobligation in every criminal case (and irrespective of specific statutory directive like s126) to ensure that a defendant receives a fair trial and that all relevant matters are putbefore the jury whether or not they are raised by counsel.19[54] But this depends on there being a sufficient evidential foundation. Here, andfor the reasons we have previously explained, that was not the case. In circumstanceswhere the appellant was well-known to C, accepted that he had been in K's room onat least two occasions, remained in the upstairs area throughout, was identified visuallyand by voice by C, had his name referenced by name by the person who queried hispresence in the room and where identification was never pursued incross-examination, there was simply no credible narrative justifying any specificidentity direction whether under s 126 or otherwise.[55] As to the Judge's question trail, the first question asked, "Has the Crown madeyou sure beyond reasonable doubt that the defendant effected the connection of one ormore of his fingers into the genitalia of the complainant?" We accept that thisconflated two discrete issues into one question: identity and the conductcomplained of.18 Witehira v R [2011] NZCA 658 at [47]. See also Pink v R [2022] NZCA 306 at [58].19 See for example R v Tavete [1988] 1 NZLR 428 (CA) at 431, where the Court provided theexample of a murder trial and stated that a trial Judge must give directions on the alternativedefences to murder, each reasonably open to the jury on the evidence, even where they are notadvanced by defence counsel for the tactical reason that they might weaken or perhaps destroy themain defence relied on. The Court noted that a "careful dispassionate direction by the trial Judgewill put the issue in a balanced perspective".[56] We do not regard this as ideal but nor are we satisfied that any miscarriageresulted from it, particularly where identity had not been placed in issue. We acceptthat a model question trail would have started with an enquiry into whether the jurywas sure that C had been assaulted, with a subsequent enquiry relating to defendantidentity. But in the circumstances of this case, no objection could have been taken toan observation by the trial Judge that the jury was unlikely to be troubled greatly bythe second question. That tends to predicate the outcome of any miscarriage enquiry.A miscarriage?[57] We have touched on a number of points relevant to this aspect of the enquiry.Even if our approach to counsel and the Judge's alleged errors is considered undulybenign, we are far from satisfied that a miscarriage has resulted. In addition to thepoints already covered in our discussion about the available identity evidence and theabsence of a credible alternative narrative, we are entitled to take into account theappellant's post-conviction admissions.20[58] We accept that where such admissions are called on, what is required is a caseby case assessment having regard to all the circumstances, including the positionadopted by the defendant at trial and the nature of the admissions made.[59] In this case we regard it as significant that the appellant's first admission ofguilt was made spontaneously to his counsel en route to the cells and was inunvarnished terms. We accept that he was likely to have been in a state of high anxietyabout the prospect of imprisonment but do not consider such a candid andstraightforward admission as that made — "I did it Steve" — in a (formerly) privilegedenvironment is likely to have been false.[60] Nor do we regard his expression of "disgust" in himself and observation thathe "should have come clean a long time ago" (addressed to C but made available tothe Court) as one able to be explained on the basis he now suggests. Character refereesdescribe him as a competent, intelligent, and an otherwise responsible adult. We20 See for example R v Vaituliao [2007] NZCA 525; M (CA428/09) v R [2010] NZCA 127; andGilfedder v R [2013] NZCA 426.consider him unlikely to have expressed personal "disgust" if simply angling forsentence leniency.[61] We are satisfied that the latest reversal of position reflects the ongoing shamewhich he considers he has brought to his family and is intended, if his appeal isdismissed, to at least provide him with a narrative for maintaining his innocenceamong those most loyal to him.[62] His acknowledgements of guilt fortify us in our conclusion that no miscarriageof justice has occurred in this case.Result[63] The appeal is dismissed.Solicitors:Langford Law, Wellington for AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent