JUDD v R [2021] NZCA 345

JUDD v R [2021] NZCA 345 [28 July 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION 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 AOTEAROACA315/2019[2021] NZCA 345BETWEEN CALEB BENJAMIN JUDDAppellantAND THE QUEENRespondentHearing: 14 June 2021Court: Courtney, Mander and Hinton JJCounsel: R M Mansfield for AppellantZ R Hamill for RespondentJudgment: 28 July 2021 at 10 amJUDGMENT OF THE COURTA Leave is granted to adduce fresh evidence.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Mr Judd was convicted in the Auckland District Court by a jury of two chargesof engaging in sexual conduct with a young person.1 The offending was alleged tohave been committed against a 13-year-old family friend in 2009, when Mr Judd was1 Crimes Act 1961, s 134(1).26 years old. Since his conviction, Mr Judd has been diagnosed as suffering from aform of Autism Spectrum Disorder, called Asperger's Syndrome (Asperger's). Heappeals his convictions on the basis that this condition, which was unknown at thetime of the trial, limited his ability to participate in his trial and deprived him of makingan effective and genuine election about whether to give evidence.[2] Mr Judd maintains that, had his condition been known, the trial process wouldhave been modified and support measures put in place to allow him to give evidenceand to call expert evidence. In light of these deficiencies, Mr Judd alleges his trial wasunfair and resulted in a miscarriage of justice.Background[3] Mr Judd was a friend of the complainant's best friend and, through her, he cameto meet the complainant and her older sister who was of a similar age to Mr Judd.Early in their association, this group, along with a friend of Mr Judd's, went ice skatingtogether. Afterwards they returned to the complainant's home and watched a movietogether. The complainant was seated at the end of a long sofa beside Mr Judd andthe group were covered by blankets. The first charge arises from an allegation that,while they were watching the movie, Mr Judd moved his hand under the blanket andrubbed the complainant's thighs. He then touched her genitalia outside her underwearbefore digitally penetrating her vagina.[4] The second charge arose from an incident that is alleged to have occurred sometwo weeks later. After exchanging texts that established no one else was at home,Mr Judd went to the complainant's home. The complainant described how he wentinto her bedroom and she followed. He removed his pants and coerced thecomplainant to masturbate him. Thereafter Mr Judd engaged in other sexual acts withthe complainant that included the digital penetration of her vagina and anus. Herequested the complainant perform oral sex on him. On the pretext that she could hearher mother's car returning home, the complainant brought this activity to an end.[5] A further incident occurred a few days later that was not the subject of a charge.Mr Judd and the complainant were in the lounge of the complainant's home while herolder sister was vacuuming in another part of the house. The complainant alleged thatMr Judd directed her to sit by him on the sofa and that, as she approached, he grabbedher and sat her on his lap before kissing her. The older sister entered the room andsaw them together. When questioned by her sister, the complainant begged her sisternot to tell anyone what had happened. She was terrified of getting into trouble andclaimed it was all her fault. Nothing was said to the complainant's parents.[6] Nothing further happened between Mr Judd and the complainant, althoughthey maintained friendly contact for some years after these incidents. Thecomplainant, in her evidence, described how Mr Judd was closely involved in the livesof her family and those she was close to, and frankly admitted that as a young teenager"there was a lot of things that I could get from him that I wouldn't otherwise haveaccess to", such as transport to parties, alcohol, and computer assistance. When sheturned 18 and became more independent she started to distance herself from Mr Judd.[7] No complaint was made until some eight years later when the complainant sawMr Judd at a supermarket with a teenage girl. She thought he may have beencontinuing his behaviour and decided he should be stopped. When Mr Judd wasspoken to by police he declined to make a statement.[8] The defence case at trial in respect of both charges was that no sexual activityhad occurred and that the complainant was not being truthful. In respect of the kissingincident, it was alleged the complainant had initiated the kiss "out of the blue".Mr Judd's first trial resulted in a jury disagreement. However, he was convicted at hissecond trial. He did not give evidence at either but called a number of witnesses inhis defence. Prior to sentencing, Mr Judd was referred to a psychologist, Ms SabineVisser, who diagnosed him as having Asperger's and provided him with therapy. Asentence of 12 months' home detention was imposed.2Further evidence[9] For the purposes of the appeal a further report was obtained from Ms Visserand affidavits prepared by Mr Judd and his father. The Crown obtained an affidavitfrom Mr Judd's trial counsel, Ms Kathryn Maxwell, and both she and Mr Judd2 R v Judd [2019] NZDC 12872.provided further oral evidence. Because of the nature of the issues that are raised onthe appeal there is no issue that the evidence is fresh.3 Leave is accordingly grantedto adduce this further evidence.The fresh evidenceMs Visser's opinion[10] Ms Visser considered Mr Judd fulfilled the criteria for a diagnosis ofAsperger's. She considered his symptoms to be in the "moderate category" and to bemost evident in the social aspect of functioning, marked by limited social abilities andextremely high levels of anxiety. Ms Visser also diagnosed Mr Judd as suffering frommajor depression and anxiety disorders, which in Mr Judd's case were said to manifestthemselves behaviourally in the avoidance of social interactions.[11] Ms Visser canvassed a range of generic characteristics that may be displayedby individuals with Asperger's. She identified two areas where she consideredMr Judd demonstrated particular deficits. These were difficulties in developing,maintaining and understanding relationships, and to some extent restricted andrepetitive patterns of behaviour, interests or activities. Ms Visser concluded thatMr Judd does not have an intellectual disability. He is highly intelligent and canotherwise function normally. His difficulties lie in social situations that make himvery uncomfortable and lead him to take a passive or submissive stance when dealingwith others.[12] Mr Judd had been diagnosed with depression and social phobia at around age17, following expressions of suicidal ideation. He has a fear of being observed byothers or being the centre of attention, which makes him anxious and isolated.Ms Visser herself observed Mr Judd's extreme anxiety. He maintained poor eyecontact and looked flushed and sweaty. She noted he fidgeted when discussing theoffending and that he struggled to communicate and became upset.3 See R v Bain [2004] 1 NZLR 638 (CA) at [22], as endorsed in Lundy v R [2013] UKPC 28, [2014]2 NZLR 273 at [116]–[120].[13] Ms Visser opined that Mr Judd's Asperger's would impact on his ability to copein the court environment and that a jury would need to be informed of his condition sothey would not misinterpret his symptoms as an indication of guilt. In her view, highlevels of anxiety would likely exhaust Mr Judd and his attention would deteriorate,making it difficult for him to follow the proceedings. Ms Visser suggested he wouldbe "unlikely to last for a full day in a courtroom". She opined that Mr Judd would notbe able to instruct counsel "in the moment", and that breaks would be required to allowcounsel to obtain his input, otherwise he would not volunteer information or raisequestions.[14] Other suggested modifications included dimming the courtroom lighting andlimiting unnecessary noise and movement. Ms Visser suggested that acommunication assistant be engaged to assist Mr Judd so that if more information wasrequired this person could prompt him and/or explain questions if he did notunderstand. This person could also assess Mr Judd's fatigue, gauge if hisconcentration was fading, and could explain in more basic terms what was happeningin the courtroom. Other suggestions included questioning Mr Judd in an even toneand using simple language.Mr Judd's evidence[15] Prior to his engagement with Ms Visser, Mr Judd knew he suffered fromdepression and anxiety but his recent diagnosis of Asperger's has helped him tounderstand how and why his functioning and interaction with others was different. Headvised he had greatly benefited from having now attended some 30 sessions with histreating psychologist, Ms Visser. Mr Judd maintained that because of his anxiety hehad struggled to meaningfully engage with his counsel, Ms Maxwell, and provide herwith instructions. While his father had attended some of his legal meetings andexplained at length how difficult it would be for Mr Judd to give evidence, he did notconsider it had been adequately conveyed to Ms Maxwell the extent to which he feltunable to give evidence in a courtroom.[16] Mr Judd explained how the trial was very stressful and he felt nervous andanxious throughout which required him to take medication. He felt he could not followthe trial and described himself as barely being able to sit through it. Mr Juddmaintained the idea of him giving evidence had been untenable. He accepted therehad been discussions prior to trial regarding whether he would do so and that a finaldecision was not made until after the end of the Crown case.[17] Mr Judd also accepted his trial counsel was aware of the anxiety anddepression from which he suffered but said that he had not fully advised her of theextent of how he was feeling both prior to and during the trial. While his family wasalso aware of how anxious he felt during the trial and about the prospect of givingevidence, they understood this was normal for him. Mr Judd claimed that, had hereceived therapy for his Asperger's before his trial, obtained support (by way ofcommunications assistance), and some modifications been made to the trial process tomake giving evidence less stressful, he would have felt comfortable and able to giveevidence.[18] In relation to the allegations themselves and his past relationship with thecomplainant, Mr Judd described how he had always been extremely shy, awkward andanxious in social settings, and very uncomfortable in interacting with the opposite sex.In relation to the charges, Mr Judd maintained he would therefore not have had theconfidence to become intimate, let alone sexually offend against the complainant, andthat evidence of his Asperger's diagnosis would have supported his defence of denial.Trial counsel's evidence[19] Ms Maxwell took over Mr Judd's brief after the first trial and met with Mr Juddin September 2018, some six months prior to his retrial. Thereafter she met withMr Judd on at least six occasions, sometimes together with his father, and engaged inregular email correspondence with him for the purpose of preparing for trial. Thatpreparation included organising witnesses and securing Facebook and emailcommunications between Mr Judd and the complainant that occurred over a longperiod after the date of the allegations. No complaint is advanced regarding trialcounsel's performance, who it is acknowledged ably assisted Mr Judd at trial and tookappropriate instructions based on the information before her at the time.[20] Ms Maxwell was aware that Mr Judd had a history of anxiety and depressionbut she found Mr Judd to be intelligent and fully engaged in preparing for trial. Asnoted, she met with him on many occasions. He did not present as either distressed orunwilling to engage with her. Ms Maxwell described how Mr Judd provided her withdetailed instructions that allowed her to prepare his brief of evidence and that heinvolved himself in the iterative process of preparing his defence. He liaised with herregarding defence witnesses, including the possible calling of a suitable computerexpert, and updated her about the collation of the Facebook and emailcommunications.[21] Ms Maxwell rejected the suggestion that Mr Judd was exhausted and onlywished to go home and sleep after court each day as she noted she received emailsfrom him at night during the trial. Neither Mr Judd nor his family indicated toMs Maxwell that he was unable to follow the trial, and neither she nor, to herknowledge, anyone else involved in the trial was aware of Mr Judd becomingdistressed. Ms Maxwell confirmed there was never any discussion regarding acommunications assistant but that, from her experience (which is considerable),Mr Judd did not need one.[22] Ms Maxwell outlined the discussions she had with Mr Judd regarding whetherhe should give evidence. Ms Maxwell considered Mr Judd's election not to giveevidence was the result of a risk-benefit analysis from which it was concluded that inthe circumstances the risks involved in giving evidence outweighed any benefits.Ms Maxwell considered this was why Mr Judd did not wish to give evidence and notbecause of a lack of alternative arrangements to facilitate him doing so, which shenever considered might be necessary.[23] In Ms Maxwell's view, Mr Judd made an informed election not to giveevidence. She considered Mr Judd's instructions were sensible and intelligent, that heparticipated fully in the preparation of his trial and in the trial itself, and she had noreason to think the matters now raised by Mr Judd affected the course he adopted.The evidence of Mr Judd's father[24] Mr Judd's father provided background about his son's difficult youth, duringwhich he suffered depression and anxiety; the problems he had making friendships atschool; and his limited social abilities. He commented that Mr Judd's Asperger'sdiagnosis explains a lot about his son's behaviour and that his recent assessment hasrevealed impediments to his ability to testify that were not previously fullyappreciated.The appeal[25] Mr Judd brings his appeal on the basis his recent, previously unknown,diagnosis of Asperger's limited his ability to participate in the trial and prevented himfrom making a valid election as to whether to give evidence. This, he submits, hasresulted in a miscarriage of justice because the consequential errors and irregularitiesthat occurred created a real risk the outcome of his trial was affected, or resulted inhim receiving an unfair trial.4 The following issues arise for our determination:(a) Did the diagnosis of Asperger's and his related anxiety prevent Mr Juddfrom participating in his trial?(b) Did his mental condition deprive him of making an effective electionas to whether to give evidence? Two further issues arise from thisquestion:(i) Did Mr Judd make a valid decision not to give evidence?(ii) Did the failure to consider modifications to the trial process andthe absence of expert evidence invalidate his election and/orrender his trial unfair?(c) Did the absence of evidence about his mental condition and extremesocial anxiety create a real risk of affecting the outcome of his trial?4 Criminal Procedure Act 2011, s 232(2)–(4).[26] Mr Mansfield, who appeared on behalf of Mr Judd, submitted the absence ofinformation about Mr Judd's condition and the consequences which flow from thatdisorder demonstrate there was a real risk that he was inhibited from presenting aneffective defence. First, had Mr Judd given evidence, Mr Mansfield argued the jurywould have had the benefit of hearing his responses to the allegations, his account ofthe relationship with the complainant, and his extreme nervousness and anxiety. Inthe absence of having given an interview to police, it was submitted there was noevidence from him as to what had occurred, or any evidence of him denying thecharges before the jury.[27] Second, it was submitted through giving evidence Mr Judd would have beenable to explain his inability to form relationships, his "paralysing fear of socialsituations", and his extreme shyness, to demonstrate the offending could not haveoccurred. It was also submitted that such evidence would have countered the Crown'scomments to the jury about the unusual nature of his friendship with young teenagers.[28] Third, the evidence from Mr Judd could have been complemented by expertevidence that would have informed the jurors about Mr Judd's condition and allowedthem to understand his unusual presentation or awkward demeanour while givingevidence.[29] Ms Hamill, who appeared for the Crown, submitted that notwithstandingMr Judd's underlying conditions Ms Maxwell's evidence of her interactions withMr Judd show that he did meaningfully engage in the trial process and his anxiety didnot impede his ability to participate. Ms Hamill submitted Mr Judd made an entirelyreasonable and considered strategic decision not to give evidence that was based onvalid reasons that were not related to his anxiety about doing so. It was submitted hissubsequent diagnosis of Asperger's does not undermine the quality of his election.[30] The Crown's position is that Mr Judd's conduct during the trial did notdemonstrate a need for additional support measures or the use of a communicationsassistant. The matters raised by Ms Visser regarding the management of Mr Judd'sanxiety, about which his counsel was aware, are concerns that are not borne out by theevidence of what occurred at the trial. Ms Hamill submitted that when regard is takenof Mr Judd's behaviour and the care exercised regarding his decision makingthroughout the trial process, the factors identified by Ms Visser, includingcommunications assistance, modifications to the trial process, and the possibility ofexpert demeanour evidence, would have made no material difference to the conductof the trial or Mr Judd's approach to it.[31] Finally, Ms Hamill argued evidence of Mr Judd's social difficulties and anxietywould have invited a comparison with aspects of the evidence that demonstrated thatMr Judd was not socially isolated and had made and maintained relationships andassociations with a range of people in a mixture of vocational and social settings.Did Mr Judd's diagnosis of depression, anxiety and Asperger's prevent him fromparticipating in his trial?[32] Mr Judd made several complaints in his affidavit that because he wasdepressed, very anxious and withdrawn, he was not able to engage in the necessarypreparation for his trial or properly instruct his counsel. Mr Judd maintained he couldnot follow the trial and that he found it "unmanageable". However, Mr Judd providedlittle or no details about these difficulties. He did not identify what parts of the trialhe was unable to follow or how his counsel's preparation was lacking as a result ofthese difficulties, nor what further preparatory steps he was prevented fromprogressing or raising with his counsel.[33] The evidence provided by Ms Maxwell about her engagement with Mr Judd,both before and during the trial, demonstrates that Mr Judd's defence wascomprehensively prepared and that he was extensively involved in that process. Thesame evidence discloses that Mr Judd's engagement with Ms Maxwell and with theproceeding continued throughout the trial.[34] Ms Maxwell had regular contact with Mr Judd in the period leading up to trialand on occasions Mr Judd's father attended meetings during which he explained hisson's anxiety and depression to her. Ms Maxwell perceived Mr Judd to be stand-offishand awkward, and she likened him to a "stereotypical computer guy", but she did notfind those traits interfered with the preparation of his case or hampered theirinteraction during the trial itself. Mr Judd has not identified any such deficiency.Although Ms Visser raises concerns as to how Mr Judd's condition might manifestitself during the trial, we accept the Crown's submission that it is not apparent theseconcerns in fact arose or, at least, affected his involvement in the trial.[35] During the trial, Mr Judd was granted bail over lunch, which he spent with hisfamily, and he was seated at counsel's bench apart from when the complainant gaveher evidence. Ms Maxwell described occasions when Mr Judd was actively engagedwith her during the course of the trial. After the first day he emailed her about thecomputer expert and the following morning forwarded to her other relevantinformation. As we have observed, Mr Judd has not articulated what part of the trialhe could not follow. Apart from the issue of his election not to give evidence, nodetails are offered regarding lines of questioning that were not pursued, or aspects ofhis defence that Ms Maxwell did not put forward that Mr Judd would otherwise havewished to have advanced but for his difficulties, or that he was unable to raise with hiscounsel.[36] Ms Maxwell described Mr Judd as being active throughout the trial andengaged in evidential matters and the trial issues. We therefore do not consider thatMs Visser's concerns regarding Mr Judd's ability to remain attentive and follow theproceedings throughout a full court day, or to be able to instruct counsel, volunteerinformation or raise questions, actually eventuated at trial. The experience of courtmay well have been draining but it is not apparent that Mr Judd required more breaksbeyond the normal adjournments taken during the court day. We note that Mr Juddhad the close support of members of his family and they raised no concerns at the timeregarding Mr Judd's functioning during the trial.[37] There was evidence that Mr Judd had developed the ability to mask the truelevels of his anxiety, which it was suggested would have concealed his underlyingdifficulties from his counsel. Ms Maxwell knew that Mr Judd suffered fromdepression and anxiety and she herself commented on how she had observedMr Judd's nervousness. It was not, however, something that she considered to besignificant. Having reviewed the material facts we do not consider they demonstratethat Ms Maxwell's view of her client was flawed or her assessment inaccurate,particularly when regard is had to Mr Judd's considered and active participation bothduring the process of preparing for trial and the trial itself.[38] We consider Mr Judd was closely engaged in his case. We do not and we areunable to discern how a subsequent diagnosis of Asperger's affects that conclusion inthe absence of Mr Judd contesting Ms Maxwell's narrative of his involvement withher as his trial counsel. As we have already noted, apart from the election to giveevidence, Mr Judd has not identified what he would have done differently or how hisunknown condition impacted on his defence or the fairness of his trial. We now turnto the nub of Mr Judd's appeal about whether his mental condition deprived him ofmaking an effective election to give evidence.Did Mr Judd's mental condition prevent him from making an effective election?[39] The election to give evidence is a fundamental trial decision. Trial counsel areunder an obligation to ensure the decision is a properly informed one.5 A properlyinformed decision is one that considers in the particular circumstances of a defendant'strial the potential benefits and risks associated with the defendant giving evidence.6However, the decision about whether or not to give evidence ultimately rests with thedefendant, not counsel.7[40] Mr Judd maintains that his unknown condition of Asperger's prevented himfrom being able to make a true or valid election about whether to give evidence. Thereare two aspects to this ground of his appeal. First, Mr Judd maintains that he wishedto give evidence but because of his acute anxiety at the prospect of doing so, which isnow known to be a manifestation of his recent Asperger's diagnosis, he did notmeaningfully exercise his right of election. Second, Mr Judd argues his election wasflawed because it was made without knowing the trial process could be modified andthat assistance could be provided to help him give evidence. He therefore did notexercise an informed choice about whether to give evidence.5 Van der Krogt v R [2020] NZCA 512 at [29], citing R v K (CA421/08) [2009] NZCA 176;Chambers v R [2011] NZCA 218 at [5]; and Tarring v R [2016] NZCA 452 at [26].6 Weston v R [2019] NZCA 541 at [25], citing Nightingale v R [2010] NZCA 473 at [12].7 Kumar v Police [2018] NZHC 3202 at [60], citing R v Accused (CA 78/88) [1988] 2 NZLR 385(CA) at 390; and Stewart v R [2017] NZCA 253 at [26].[41] Mr Judd says that because he has now received appropriate therapy for hiscondition he would be able to meaningfully participate in the proceedings and that histherapy sessions with Ms Visser have provided him with the necessary skills to be ableto give evidence with the benefit of appropriate assistance and modification to the trialprocess. These could include the use of an alternative mode of giving evidence andthe use of a communications assistant.Did Mr Judd make a valid decision not to give evidence?[42] Ms Maxwell's evidence was that, as early as 29 January 2019, she discussedwith Mr Judd the possibility of him giving evidence. On 13 March, she emailedMr Judd advising that the Crown Solicitor would be prosecuting the trial and that thiswas another matter to consider in assessing whether he should give evidence. Afterreceiving written comments from Mr Judd regarding his draft brief of evidence andhis suggestion of another possible witness, Ms Maxwell met with Mr Judd on19 March to finalise the Facebook and email evidence. Mr Judd had located somefurther emails and over subsequent days an updated brief was sent to Mr Judd as wellas the latest version of a proposed admitted facts document, which he indicated hewished to discuss with his father. Mr Judd provided Ms Maxwell with an update onthe proposed computer expert and they exchanged emails regarding another witnessand Mr Judd's bank records before a final meeting with both Mr Judd and his familywas held on 22 March.[43] After court on the second day of the trial, 27 March, with the Crown case nearcompletion, Ms Maxwell had a further discussion with Mr Judd about whether hewould give evidence. They had previously discussed the pros and cons of givingevidence on numerous occasions. Ms Maxwell's evidence is that Mr Judd wasprepared to give evidence if required, although he was nervous about doing so, but shedid not consider that an unusual reaction because most defendants express a level ofanxiety at the prospect of giving evidence. Both she and Mr Judd had reservationsabout whether the jury would respond well to him, and the seniority and experience ofthe prosecutor was a concern. They thought the Crown case had gone as well forMr Judd as could be expected and were concerned that other evidence might emergeshould he elect to give evidence that would be unhelpful to him — that is, the defencecase "might go backwards".[44] That evening Mr Judd emailed Ms Maxwell about the decision whether to giveevidence and advised as follows: we have discussed this as a family and we all feel it would be best not togive evidence. We have all the emails and [the] Facebook in and I think Iwould only be prepared to give evidence if they weren't allowed in.It's my opinion that it may do more harm than good at this stage.[45] After the Crown case concluded, the trial Judge gave Ms Maxwell time toconfer with Mr Judd regarding his election. Mr Judd signed a handwritten documentattesting to him having given his decision whether to give and call evidenceconsiderable thought, and that he had decided not to give evidence. In providing hisinstructions, Mr Judd noted he understood there "will be no specific explanation ordenial from me. That the case depends upon an assessment by the jury of the Crownevidence". Five witnesses were listed that he wished to call, four of whom, in theevent, gave evidence.[46] We have no doubt that Mr Judd was very anxious throughout his trial and thatthis anxiety likely played a part in his decision not to give evidence himself. However,we do not understand it is being suggested that Mr Judd was suffering from a level ofdifficulty that rendered him incapable of giving evidence or rendered him unfit to standtrial. Such an argument would not be supported by the evidence. Moreover, despiteMr Judd maintaining he could not contemplate giving evidence, we are not satisfiedthat, had it been concluded that it would be in his best interests to do so, or that heneeded to do so, he would not have entered the witness box.[47] We are satisfied that Mr Judd's election not to give evidence was based on acareful assessment of the risks and benefits of doing so. The reasoning for the decisionnot to call Mr Judd, which was not contested as being other than accurate, was sound.Mr Judd had succeeded in introducing defence evidence in the form of the email andFacebook communications between himself and the complainant that it was thoughtmay not otherwise have been able to be elicited without him giving evidence.Importantly, a range of issues, including the unlikelihood of the complainant beingsexually assaulted in the lounge in close proximity to others, and previous conflictingstatements the complainant had made, including to a doctor shortly after the offendingthat her only sexual involvement had been with a boy of her own age, were able to beraised to effectively challenge the prosecution case without Mr Judd giving evidence.[48] We do not consider Mr Judd's subsequent diagnosis of Asperger's invalidateshis decision not to give evidence or would have materially affected that decision. Aswe have already acknowledged, Mr Judd's anxiety likely played a part in his decisionbut we do not consider it was the definitive reason for making that strategic choice.Mr Judd discussed the issue with his family and accepted that giving evidence "maydo more harm than good", which is consistent both with Ms Maxwell's account of thefactors that informed his decision and her advice. How Mr Judd may have presentedto the jury was a valid consideration to take into account and there is no reason toconsider the same advice and election not to give evidence would still not be anappropriate and proper choice, even in light of Ms Visser's diagnosis. There remains,however, the question of whether Mr Judd's decision not to give evidence was a trulyinformed choice in the absence of having been aware of steps that may have assistedhim to give his evidence. We address that aspect separately later in this judgment.[49] Mr Mansfield submitted that the absence of information about his conditionand consequent decision not to give evidence "inhibited" Mr Judd from presenting aneffective defence. However, we do not consider that submission materially advancesMr Judd's argument. No issue arises about Mr Judd being unaware of the benefits anddrawbacks of giving evidence that formed part of the assessment he undertook withhis counsel when making that decision. As is apparent from the final instructionsMr Judd gave to Ms Maxwell, he knew that by not giving evidence there was no directtestimony from him before the jury denying the offending. However, as we havealready observed, the decision not to expose himself to cross-examination was ajustifiable course, particularly having regard to Mr Judd's position that the allegedoffending had simply not occurred and the limited further details he could provideabout the circumstances of the charges beyond what was already in evidence.[50] Mr Judd's narrative in relation to the first charge confirms the ice skating eventtook place and that the group returned to the complainant's house to watch television.Mr Judd does not recall where he sat on the sofa. While he deposes that he would nothave been sitting under a blanket, that appears to be his belief rather than any specificmemory. Three other witnesses gave evidence about this incident, one of whomrecalled the complainant and Mr Judd sitting at one end of the sofa, and there wasevidence the entire group were sitting under blankets and that it was unremarkable.The complainant was challenged that she could have told Mr Judd to stop orcomplained to others on the couch about what was happening. She was alsochallenged that others would have seen movement under the blanket, which was atheme Ms Maxwell returned to in her closing address when she remarked on theunlikelihood of Mr Judd having the opportunity to touch the complainant or to takethat risk in such close proximity to others.[51] In relation to the second incident, Mr Judd referred in his affidavit to the lackof any records of the text messages that the complainant said had been exchangedbefore and after the offending. But that point was able to be made without Mr Juddgiving evidence. It was the subject of cross-examination, and was referred to in thedefence closing in an endeavour to impugn the complainant's credibility. Mr Juddhimself recognises that there is little he can say about the allegations because hisposition is that this offending did not happen.[52] With regard to the kissing incident in respect of which there was no charge,Mr Judd in his affidavit accepts this incident occurred while he was alone with thecomplainant but that she unexpectedly initiated the kiss. Again, however, his positionin respect of that incident was able to be put to the jury on the basis the account thecomplainant gave to her sister, when she explained that it was "her fault", was thetruth.[53] It follows that, while Mr Judd did not make a statement to the police, this wasnot a case where it was necessary for Mr Judd to give evidence to present an effectivedefence. Trial counsel was able to present Mr Judd's position in a way that was notdiscernibly different from how the defence would have been advanced had he givenevidence. Mr Judd's brief of evidence and his affidavit filed in support of his appealdemonstrates that the evidence he could have given about the offending was relativelylimited. We consider this feature adds weight to the strategic sense of his decision notto give evidence and expose himself to cross-examination. This approach hadpreviously achieved some success at the earlier trial.[54] We are satisfied that notwithstanding Mr Judd's level of anxiety at the prospectof giving evidence and his preference to avoid such a course, his election not to giveevidence was the result of a combination of other valid considerations. We aresatisfied that while the prospect of doing so may have caused Mr Judd considerableanxiety, it did not vitiate the validity of his decision not to give evidence.[55] We turn now to Mr Judd's submission that had he known the trial process couldhave been modified and support provided to him, he would have been able to giveevidence and to call expert evidence.Did the failure to consider modifications to the trial process and other forms ofsupport, including the provision of expert evidence, prevent Mr Judd frommaking a meaningful election and/or render his trial unfair?[56] Mr Mansfield submitted that had Mr Judd known of his diagnosis he wouldhave been in a position to seek arrangements of the type recommended by Ms Visserto better allow him to participate in the trial and give evidence. This, it was argued,would likely have included the utilisation of a support person and/or a communicationsassistant. Further, expert evidence could have been called from a psychologist suchas Ms Visser to explain Mr Judd's demeanour when giving his evidence and his socialawkwardness. It was submitted that had Mr Judd had the benefit of such support andevidence, he would have elected to give evidence in his defence at trial. For thereasons we have already canvassed, we are not satisfied that would have been the case.However, the question arises whether, in the absence of being aware of thesealternative arrangements and expert evidence, Mr Judd's election not to give evidencewas sufficiently informed to be valid and effective.Trial modifications[57] Because of Mr Judd's high levels of anxiety, Ms Visser opined that Mr Judd'sconcentration could deteriorate during the course of the day and that he may havedifficulties keeping up with the proceedings. She suggested Mr Judd may not be ableto instruct counsel, and that breaks would be needed to allow his counsel to ask forMr Judd's input because he would not volunteer information or ask questions.Ms Visser referred to taking such steps as dimming courtroom lighting and limitingunnecessary noise and movement.[58] We have had the benefit of evidence from both Mr Judd and his trial counsel.While Mr Judd gave evidence of the difficulties he experienced during the course ofthe trial which required him to take medication to reduce his stress and anxiety, as wehave already observed, apart from the issue of his election, he has not identified howelse he was unable to interact with his counsel or was prejudiced in the presentationof his defence. We do not question that Mr Judd would have found the experiencestressful or even exhausting but we are satisfied he was able to effectively engage withhis counsel and meaningfully participate in his trial. We are satisfied he was able toprovide appropriate instructions during the trial to Ms Maxwell and we do not considerany of the suggested steps would have made any material difference either to thefairness of Mr Judd's trial or its outcome.Communication assistant[59] Ms Visser also suggested that a communication assistant could assist withMr Judd's communication so that if more information was required from him theassistant could "prompt Mr Judd and/or explain questions if he does not understand orresponds incorrectly". It was also considered that a communication assistant wouldbe able to assist in reducing anxiety, assess Mr Judd's fatigue and notice if his attentionwas lagging, and that this person could "explain in more basic terms what is going onin the courtroom and assess Mr Judd's understanding of the events".[60] Defendants are entitled to communication assistance to enable them tounderstand the proceeding and give evidence if they elect to do so.8 However,communication assistance need not be provided if the defendant can sufficientlyunderstand the proceeding and sufficiently understand oral questions and adequately8 Evidence Act 2006, s 80(1).respond.9 As this Court has observed, whether a communication assistant is requiredwill largely turn on the circumstances of each case.10[61] Mr Judd is not intellectually impaired. To the contrary, he is of highintelligence. While Mr Judd opines that a communication assistant would make himfell calmer and better equip him to understand and engage with the trial process, hemade no complaint of not understanding either the trial procedure or the evidence thatwas given. Our own observation of him being cross-examined, albeit with the use ofclosed circuit television, indicated he had no difficulty comprehending language andresponding to questions put to him.[62] Insofar as there is a concern that his condition may prevent him from providingfull answers and volunteering information, Mr Judd himself does not express thatconcern and we consider counsel equipped with a prepared brief of evidence wouldhave the skills to be able to elicit the necessary detail in the event Mr Judd gaveevidence. Neither Mr Judd nor Ms Maxwell refer to instances of him failing toprovide necessary particulars to his counsel or that he was not forthcoming in fullyexplaining his position. Ms Maxwell did not refer to any difficulties preparingMr Judd's brief of evidence and obtaining his input and comments on the draft sheprepared.[63] Ms Visser opined that a communication assistant may assist in noticing anyfatigue or lack of concentration on the part of Mr Judd but, again, no deficiency in thetrial process was identified to us that had resulted from such concerns. It was alsosuggested the communications assistant would be able to assist in reducing anxiety,but we note that Mr Judd had the support of family members throughout the trial andthat Ms Maxwell did not consider Mr Judd was other than fully engaged throughout.While neither were aware that he would later be diagnosed with an autistic spectrumdisorder, both his family and his counsel were aware of his difficulties with depressionand high levels of anxiety.9 Section 81(1).10 Mathews v R [2019] NZCA 131 at [23].[64] We are not satisfied a communication assistant was required or that anyadditional assistance was necessary in order for counsel to fulfil her responsibilities toensure her client understood the proceedings, could adequately participate in the trial,or could provide her with appropriate instructions.11 It follows that, in thecircumstances, we do not consider the unavailability of the support of acommunication assistant vitiated Mr Judd's decision not to give evidence.Mode of evidence[65] While Ms Visser did not mention in her report the use of an alternative modeof giving evidence, Mr Judd volunteered that such an arrangement would have helpedto make him feel calmer and, in his view, have better equipped him to understand andengage with the trial process. As with the lack of opportunity to use a communicationassistant, he is critical of that type of arrangement not being discussed with him.Ms Maxwell explained that neither an alternative mode of evidence nor acommunications assistant were discussed with Mr Judd because, from her experienceof interacting with him over a six-month period, they were not necessary. As noted,Mr Judd was cross-examined at the hearing of his appeal by closed circuit televisionand, to our observation, he coped very well . While we, of course, are unable to makeany definitive assessment of how he would have coped without that arrangement, forthe reasons we have traversed, we are satisfied the lack of consideration given to theuse of such a mode of evidence was not critical to the decision Mr Judd made not togive evidence.Expert evidence[66] We accept that had Mr Judd given evidence his high level of anxiety andself-consciousness may have resulted in him making a poor impression. How Mr Juddwould be perceived by the jury was a factor that Ms Maxwell and Mr Judd consideredwhen assessing whether he should give evidence. However, it was one of a numberof factors taken into account and, even with the benefit of expert evidence, Mr Judd'spresentation to the jury would have remained a relevant consideration. Behaviouraldisplays of nervousness and anxiety are matters commonly within the knowledge of11 Mathews v R, above n 10, at [23].jurors and, while no doubt a jury would be better equipped to assess Mr Judd as awitness after receiving evidence from a psychiatrist and receiving judicial directionsregarding the limitations of demeanour, it is likely there would still be residualconcerns about whether Mr Judd would make a good witness.[67] However, putting that observation aside, we are not satisfied the possibility ofexpert evidence would have made any material difference to Mr Judd's strategicdecision that it was in his best interests not to enter the witness box and give evidence.We accept the deployment of expert evidence to mitigate any poor impression Mr Juddmay have made should he have given evidence would have been a useful course, butwe do not consider such a factor alters the merits of Mr Judd's decision or renders thatdecision other than an informed and proper judgement.[68] In summary, having accepted the evidence of Ms Maxwell, we do not considerMr Judd's lack of knowledge of various modifications and support processes toameliorate his anxiety was critical to his election not to give evidence. Nor do weconsider his subsequent diagnosis, had it been known at the time of his trial, wouldhave altered the considered strategic decision Mr Judd made not to give evidence. Wedo not consider the subsequent diagnosis of Asperger's vitiates the quality of thatdecision. For the same reasons, we do not consider the trial was unfair.Whether evidence of Mr Judd's diagnosis and extreme social anxiety would haveassisted his defence that the offending did not occur[69] Mr Mansfield submitted that had Ms Visser's diagnosis been available earlier,Mr Judd would have been able to introduce this evidence of his lack of socialfunctioning to explain his inability to form relationships and his fear of socialsituations. It was submitted his extreme shyness was inconsistent with the offendingand explained why he formed friendships with teenage girls and did not maintainordinary friendships with his peers. However, we do not consider that such evidencewas likely to be effective.[70] Mr Judd called four witnesses at his trial who, while attesting to his shynessand lack of social confidence, also spoke of him maintaining a range of goodrelationships. One friend spoke of his long association with Mr Judd and anotherreferred to their social and professional history together. This and other evidenceabout Mr Judd included his use of social media, his socialising with various groups ofpeople, sharing accommodation while at university, and maintaining relationshipswith various families and engaging in activities with their members, in addition tohaving been successfully employed in different work environments. All this evidencetended to undermine suggestions of social isolation and moderated Mr Judd'sdifficulties of not being able to interact with people and establish relationships.[71] Ms Visser's report and the evidence provided both by Mr Judd himself and hisfather demonstrate he has considerable levels of stress and anxiety relating to deficitsin his social abilities which affect that aspect of his functioning. However, we doubtwhether expert evidence about his diagnosis of Asperger's would have beenparticularly effective when regard is had to the information provided at trial regardingMr Judd's work and social activities and his engagement with a number of people ofdifferent ages in different contexts. It is apparent that Mr Judd has a very close andsupportive family and a number of reasonably close friends. We also note the trialJudge, when sentencing Mr Judd, drew on an earlier report by Ms Visser andconcluded there was a nexus between his Asperger's and the offending. We thereforehave reservations whether providing expert evidence of Mr Judd's condition wouldnecessarily have been beneficial, indeed, giving such evidence may have carried asignificant risk and we consider it most unlikely that the outcome of the trial wouldhave been different.[72] There is no direct evidence in Ms Visser's report to support the assertion thatMr Judd's lack of social functioning would necessarily have assisted to explain "whatmay be perceived as unusual behaviour in forming friendships with girls who werehalf his age" or that he was predisposed to making such friendships. To the contrary,to the extent that a known characteristic of Asperger's is, as Ms Visser discusses, adifficulty in reading social cues and understanding non-verbal responses,cross-examination about this aspect may have led a jury to conclude that Mr Judd hadwrongly interpreted the teenage complainant's friendship with him. To explainMr Judd's contact with the complainant, his counsel at trial made the submission thatMr Judd knew various families through their church, and that family members had gotto know each other and would associate together as part of the same social circle. Weconsider this submission effectively mitigated any adverse inference that could bedrawn from Mr Judd's contact with the complainant and her friends.Conclusion[73] We consider Mr Judd meaningfully participated in his trial and reached hisdecision not to give evidence for sound reasons that were not eclipsed by his anxietyabout having to do so. We have also concluded that Mr Judd's decision not to giveevidence was not invalidated by him being unaware of potential support arrangementsor modifications to the trial process that, it was argued, may have enhanced hisparticipation in the trial and, in particular, his ability to give evidence.[74] We do not consider Mr Judd's diagnosis of Asperger's would have materiallyadvanced his defence, or that the belated timing of this diagnosis and the absence ofinformation about it at his trial has resulted in any miscarriage of justice.Result[75] Leave is granted to adduce fresh evidence.[76] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent