STEWART v R [2017] NZCA 253

STEWART v R [2017] NZCA 253 [14 June 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA296/2016[2017] NZCA 253BETWEEN CRAIG DUNCAN STEWARTAppellantAND THE QUEENRespondentHearing: 22 May 2017Court: Asher, Venning and Ellis JJCounsel: D Reece for AppellantK S Grau for RespondentJudgment: 14 June 2017 at 11.30 amJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Introduction[1] Craig Duncan Stewart appeals his conviction on six charges of sexual violationby unlawful sexual connection, following a jury trial in the District Court at Aucklandin May 2016. He complains that his counsel Mr Nairn made serious errors in advisinghim and in the conduct of the trial.[2] Mr Stewart also appeals against his sentence of six years' imprisonment.However, Mr Reece for Mr Stewart advised that if the conviction appeal failed, theappeal against sentence would not be pursued.[3] The charges relate to alleged sexual violation of two young victims who wereknown to Mr Stewart through family connections. Both girls alleged that Mr Stewartsexually violated them while they were sleeping at his house during overnight stays in2011. They gave evidence of him getting into bed with them, and waking up with himpenetrating them. The assaults were intrusive, and they would wake up sore. Therewere approximately five overnight visits. The girls' accounts had similar features,although there were differences.[4] There was a complaint to their parents by the oldest victim towards the end of2011 where only some aspects were revealed. This led to their father visitingMr Stewart and confronting him, but he took matters no further after the provision ofan innocent explanation by Mr Stewart. Three years later there was a family occasion,which led to the eldest sister giving more details of what she alleged Mr Stewart haddone, and which led to the parents contacting the police. This led to the police layingcharges.[5] The trial that has resulted in the appeal was the second trial for Mr Stewart onthese allegations. It followed a hung jury at the first trial in December 2015.Approach[6] To succeed on appeal Mr Stewart must establish that his trial counsel erred,and in a way that created a real risk that the outcome of the trial was affected.1 Theremust be a reasonable possibility that if no error had been made the jury would havereturned a more favourable verdict.[7] Mr Reece focused on two key aspects of counsel incompetence:1 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110]; and Wiley v R [2016] NZCA 28,[2016] 3 NZLR 1 at [27].(a) a failure by counsel to properly advise Mr Stewart whether he shouldgive evidence, and to give him a choice; and(b) a failure to produce relevant photographs.Background[8] This case is complicated by the fact that there were two trials and two differentbut associated counsel. In terms of advice, the entire period of the two trials can beseen as a continuum. It is necessary to set out the relevant facts in greater detail.[9] The charges covered a period from 1 January 2011 to 1 January 2012. Thecharges were laid in February 2015. Prior to this Mr Stewart had given a detailedstatement to the police on 12 February 2015. In that two hour and 20 minutestatement, Mr Stewart denied any sexual contact with either of the complainants. Theyused to come to his home regularly, and he would go into their room to read them astory and to check on them and his young son who was sleeping in the same room. Headmitted lying on the same bed as them to read them a story but denied initiating anyphysical contact with them at all. He could not explain the allegations that had beenmade against him.The first trial[10] Following the laying of charges against him, Mr Stewart instructedMr Arlan Arman as counsel. The fee was $24,000. The trial began on4 December 2015. There were five or six meetings and the issue of whether or notMr Stewart should give evidence at the trial was discussed.[11] In a file noted dated 10 July 2015 Mr Arman records that he met withMr Stewart, and their discussion covered the matter of Mr Stewart giving evidence:Talked to Craig about potentially giving evidence at trial. Gave the standardpros and cons and highlighted that this particular interview was veryexhaustive. Craig agreed and said he had nothing more to add. I told him thatwas a sound decision but he could always change his mind later if he wantedto.[12] Consistent with that file note, Mr Arman deposed that in the lead-up to the firsttrial he outlined to Mr Stewart the advantages and disadvantages of giving evidence.There was the ability to give compelling sworn evidence before the jury,counterbalanced against the risk of undesired answers and impressions arising fromthe Crown cross-examination. Given that Mr Stewart had already given an interviewthat was two hours and 20 minutes long, he had nothing to add to what he had alreadysaid.[13] In Mr Arman's view it would not be wise for Mr Stewart to risk openinghimself up to cross-examination by experienced Crown counsel. Mr Arman says hemade it clear at all times that the decision was ultimately that of Mr Stewart and hemust bear the consequences. He gave him time to decide. Mr Arman said that it wasMr Stewart's preliminary view that he did not wish to give evidence at trial as it wouldexpose him to cross-examination without any great benefit.[14] Mr Stewart in his affidavit stated that he was always of the view that it wasimportant for a jury to see and hear him and his version of events. He claims hepressed Mr Arman up until the first trial on the question of him giving evidence andthat he received advice suggesting that the downsides were considerable and that inMr Arman's view he should not give evidence. He said that he felt he had no optionbut to let the question of him giving evidence drop.The second trial[15] Following the first trial and the hung jury, Mr Stewart sent Mr Arman an emailexpressing his approval of the decisions that had been made:I, and Erica both feel you did an excellent job, as best as you could in thecircumstances. Things could be very different. I may not be home typing youthis letter, or I could be at home awaiting sentencing. So we are feeling morepositive than we were three months out from the first trial.[16] Mr Stewart also sent Mr Arman an email setting out his detailed views on thepending second trial, in which he expressed strong and clear instructions on the variousdecisions to be made, and listed specific questions to be put to the relevant witnesses.For instance, he wrote to Mr Arman:I may need to take your advice that you offered several times, "that as mylawyer I may instruct you to do things that you would advise me not to, but asmy lawyer if I insist that you do and say these things, that you are obliged tofollowing my instructions".[17] Mr Arman decided that he did not wish to defend Mr Stewart in a second trial,although he was prepared to remain involved. Mr Arman stated that his workload wasvery heavy at the time. Mr Stewart deposed that Mr Arman advised him that thedefence case should be run by a new lawyer who could provide a "fresh set of eyes"and perhaps an alternative viewpoint to tip the balance and obtain an acquittal. Mrand Mrs Stewart wanted Mr Arman to remain as Mr Stewart's lawyer and he said thathe would "instruct an agent of their choosing" for the retrial. He would remain as a"principal" or "consultant".[18] Some three weeks before the trial began Mr Arman ultimately recommendedMr Darren Nairn, a barrister of Manukau to be defence counsel. The fee was to besplit equally between them. Mr Stewart signed a formal instruction to Mr Arman thatMr Nairn should appear as "your agent" in respect of the trial and would carry out allthe major trial duties. Mr Arman was to remain in a "supervisory and assistive"capacity, and Mr Stewart confirmed that he understood that Mr Arman would not beat the trial. The trial was set down to begin on 18 April 2016.[19] The first meeting between Mr Stewart and Mr Nairn was on 29 March 2016.Mr Arman was present. Mr Stewart deposed that he indicated to Mr Nairn that hethought it was very important that he give evidence in his own defence. He felt thatthe jury should hear his side of the story and see him being cross-examined. He saidhe wanted the jury to see him as a person. He stated that in a conversation withMr Nairn on 15 April 2016:I told him that I thought this was what was missing from the defence case inthe first trial. Also present at that meeting was my wife Erica and her uncleGordon Friend.[20] He claims that Mr Nairn strongly disagreed with him and made it clear that ifhe gave evidence he would almost certainly be convicted. Mr Arman supportedMr Nairn on this. Mr Stewart stated that he was not advised that it was his choice asto whether he gave evidence and there was no advice on the positive effects of givingevidence. He felt that the decision was not his and that he had no option but to agreeto not give evidence.[21] In a file noted made following the meeting on 29 March 2016, Mr Arman notedthat they had discussed trial strategy:Stewart wants to do the same thing as last time but wants to be more"aggressive" in questioning the witnesses. Briefly canvass whether he wantsto give evidence but Craig thinks it's best to stick to previous approach.[22] The trial began. Mr Arman was there at the start of the trial but did not staythrough it.[23] Mr Stewart claimed that after the trial started he raised the issue of him givingevidence briefly once or twice with Mr Nairn but continued to get the same negativeresponse from him. He stated that "I resigned myself to not giving evidence but I feltthat it was a bad decision and a big mistake." In effect then Mr Stewart was statingon oath that while he was fully aware that an important decision had to be made as towhether he gave evidence, he received only negative advice about this from Mr Armanand Mr Nairn, and that the effect of their strong views was to take away any choice onhis part.[24] Mr Arman and Mr Nairn in their evidence presented a different perspective.They both agreed that they were each of the view that it was not in Mr Stewart'sinterest to give evidence. He had provided a full statement which, if accepted by thejury or if it gave rise to a reasonable doubt, would lead to his acquittal. In thatstatement he had strongly denied any sexual contact with the girls. But, they say, itwas always made clear that it was the choice and decision of Mr Stewart as to whetherhe gave evidence.[25] Mr and Mrs Stewart were cross-examined by the Crown and Mr Arman andMr Nairn were cross-examined by Mr Stewart's counsel, Mr Reece. The Crown didnot seek to cross-examine Mr Friend. Mrs Stewart and Mr Friend had both givenevidence of being present at discussions with Mr Nairn and Mr Arman where theyasserted that Mr Stewart had stated that he wanted to give evidence and that the ideawas dismissed by Mr Arman and Mr Nairn. They did not think it was Mr Stewart'schoice as to whether he gave evidence.Analysis[26] It is clear that it is ultimately for a defendant, not for counsel, to decide whetherhe or she will give evidence.2 It was stated in R v K:3[41] We also remark that the proper role of counsel should be to put beforetheir client all the pros and cons of giving evidence and thus to ensure thattheir client makes an informed choice on that issue. While there is nothingwrong in proffering advice on the better course to take, it should be madeabsolutely clear that the client can reject that advice. Mr K should have beentold by Mr Le'Au'Anae specifically that it was his choice alone whether ornot to give evidence. He was not.[27] Counsel may recommend a course of action, but it must always be made clearthat the defendant is free to accept or reject that advice.4 Any such advice must includean assessment of whether a defendant, in all the circumstances, is likely to be a soundwitness and whether there is evidence that the defendant can give that is not alreadybefore the jury.5 The advice and the choice should not be last-minute.6[28] It is good practice for counsel in a criminal trial to obtain written instructionsas to whether their client wishes to be called to give evidence.7 Neither Mr Arman norMr Nairn did so. However, in relation to the two trials there is a relevant trail of emailsand file notes that clearly demonstrate that Mr Stewart is not a man to be bullied intodoing something he did not want to do. He appreciated that decision-making powerlay with him and that his counsel were obliged to follow his instructions. On twooccasions, in relation to each trial, he is recorded as not wishing to give evidence.When these file notes were put to Mr Stewart in the light of his claim that he was givenno adequate choice, he could offer no satisfactory explanation as to why suchcontradictory notes existed.2 R v Accused [1988] 2 NZLR 385 (CA) at 390.3 R v K [2009] NZCA 176.4 Nightingale v R [2010] NZCA 473 at [12].5 Chambers v R [2011] NZCA 218 at [15].6 W v R [2012] NZCA 238 at [26].7 Shore v Police [2014] NZHC 503 at [1]; and Din v R [2015] NZCA 316 at [32].[29] We do not accept the evidence of Mr and Mrs Stewart and Mr Friend thatMr Stewart was given no choice in the lead-up to the second trial about whether heshould give evidence, or that he was subjected to unreasonable pressure. The emailthat we have referred to and other communications, and Mr Stewart's performance inthe witness box, showed him to be a man who had obtained a good understanding ofthe court process, and required his lawyers to follow his instructions. He had not givenevidence at the first trial, and he was very well-informed of the trial process and itsdynamics. It is clear that there was a considerable amount of discussion before thefirst trial and some discussion before the second about him giving evidence.[30] Mr Arman and Mr Nairn advised him against it and we can see why they gavethat advice. Mr Stewart had a lot to lose if he gave evidence. The impact of his helpfulstatement to the police could have been destroyed by a bad performance. There wasthe chance that a very good performance in the witness box by him might haveimproved his position, but that could in no way be predicted. Their advice cannot becriticised. We agree with the Crown's submission that it would have been risky forMr Stewart to expose himself to cross-examination in the face of a strong Crown casewith very similar allegations by two complainants who had no discernible hostilitytowards Mr Stewart or reason to hurt him, and had no underlying personal difficultiesthat could have been exploited to undermine their credibility. Mr Stewart appeared tohave a theory of the case that the girls' mother had put them up to making the falseallegations to save her marriage. If he was going to pursue that line in answeringquestions, he would have likely damaged his case as such an intention wasunsupported by any evidence and would seem very far-fetched.[31] It would have been wrong for counsel to have taken that advice so far as tohave pressured Mr Stewart into a decision without him having a genuine choice, butwe are satisfied that this did not occur. As we have set out, Mr Stewart was articulateand decisive in his correspondence. Having seen him cross-examined, we are satisfiedthat he had a good understanding of the court process, and his options. He receivedclear advice, he understood it and he knew that the final decision was his. He chosenot to give evidence.[32] There is clear support for this view in the file note of 29 March 2016, whichcontradicts Mr Stewart's claim that he felt he had no option. Unfortunately thisfile note and other handwritten file notes of Mr Arman were not disclosed to Mr Reecewhen privilege was waived by Mr Stewart and full disclosure was sought. Mr Armanaccepted that he had made a mistake in not sending his file notes, wrongfully thinkingthat there was no obligation to disclose his own notes. This was, as Mr Armanacknowledged, a significant error by him and it has undoubtedly exacerbated thedivide between the parties and Mr Stewart's developing sense of injustice, which mayhave been avoided if he had seen the file notes earlier.[33] Nevertheless it has not been suggested that the file note is false. It plainlyrecords a decision by Mr Stewart that in all the circumstances he would not giveevidence.[34] We must also record that we do not think that the concept of principal and agentadopted by Mr Arman and Mr Nairn has a place in the role of counsel in a criminaltrial. If counsel represent a client in a criminal trial they are both officers of the Court,and they have duties that have nothing to do with contract. Their duties are to theCourt and their client, whatever the arrangement between them.[35] Nevertheless, we are satisfied that Mr Stewart was properly advised on theissue of giving evidence, and made an informed choice.The photographs[36] Mr Stewart complains that Mr Nairn failed to produce photographs of the twogirls that were taken at Mr Stewart's address on 22 December 2011. These werephotographs that showed happy family scenes at the first birthday of Mr andMrs Stewart's son. The two girls were in their pyjamas. The photographs arguablyestablished that they stayed overnight on 21 December 2011, and might have beenseen as an advocacy tool by the defence, given that they appeared to show relaxed andhappy children. Mr Reece argued that these established that the girls stayed over afterthe first (partial) disclosure of the abuse, and were therefore inconsistent with evidencegiven by the girls' parents that the girls never slept at the Stewarts' home again afterthe first disclosure.[37] Mr Nairn accepted that he was shown these photographs by Mrs Stewart at thestart of the second trial. They were part of a series of photographs. When he wasgiven them they were not date-stamped and there was no indication as to who hadtaken them. He observed in his affidavit that a sleepover on 21 December 2011 wasnot inconsistent with the Crown case. The complainants were never firm about datesor sequence.[38] Mrs Stewart in her affidavit stated that she saw the photographs as of greatimportance, and that they would have corroborated her evidence. Mr Reece in hissubmissions referred to the photographs as "gold" in terms of putting the defence case.[39] We are unable to agree. The photographs would have been admissible as theydo show when one sleepover took place. However, they are not in any significant wayinconsistent with the Crown case or any specific evidence from a Crown witness. TheCrown witnesses were vague about dates. If the photographs had been put intoevidence it is likely in our view that it would have been accepted by Crown witnessesthat there was a sleepover on 21 December 2011 and the disclosure must have occurredsometime not long after that date. It was never clear when the final stay took place.If the defence had sought to place reliance on the apparently at ease demeanour of thecomplainants, the Crown would have certainly wished to call counter-intuitiveevidence. This was likely to at least cancel any benefit to the defence.[40] Therefore we do not consider the fact that they were not produced materiallyweakened the defence. Such photographs do not prove a date that is significant forthe defence. They do not prove, as Mrs Stewart asserts, that the girls did stay happilyat the Stewart home over that night. They have no particular importance.Other alleged errors[41] Mr Reece made a number of other subsidiary criticisms of Mr Nairn's conductas trial counsel.[42] It was submitted that he did not interview Mr Stewart and some of thewitnesses until shortly before the beginning of the trial. However, the situation wasunusual in that Mr Nairn had not only all the benefit of all preparation for the first trial,but the notes of evidence relating to all the witnesses, which recorded their testimony.He was working with Mr Arman who had done the first trial. There was therefore lessof a need than might ordinarily be the case to interview witnesses well prior to thetrial.[43] It was also argued that trial counsel failed to adequately cross-examine thecomplainants. In particular, he failed to ask them certain questions, for instance aboutthe layout of the house. On our reading of the notes of evidence, the points that couldbe made as to uncertainties and contradictions in the evidence of the complainantsabout the house were in fact made.[44] Consistent with Mr Stewart's instructions, Mr Nairn questioned the girls'mother about the parents' marital difficulties being the catalyst that led to theirdaughters making false allegations, albeit in an oblique manner. He did not labour thepoint about the parents encouraging the girls to make false allegations. However, thiscould be considered sensible, given that this line of defence posed very considerabledifficulties. Mr Nairn rightly emphasised the reaction of the parents after the initialpartial complaint, which it could be fairly said was underwhelming.[45] It was suggested that Mr Nairn should have put to the complainants theresponse of Mr Stewart in his DVD statement to the allegations made by thecomplainants. We cannot agree. This sort of question would have probably led to thecomplainants reaffirming their evidence.[46] It is easy to suggest that extra questions could be asked by counsel. We do notconsider that there was any deficiency in Mr Nairn's approach.[47] It was also suggested that Mr Nairn's opening statement, opening address andclosing address failed to put before the jury in a clear and organised way the defenceof Mr Stewart. However, this submission overlooks the fact that the defence ofMr Stewart was most clearly put by Mr Stewart himself, when he made his fullstatement to the police.[48] It was suggested that Mr Nairn should have put to the jury reasons why thecomplainants were lying, and closely analysed the weak points of the Crown case.The difficulty with this submission is that there was no easy explanation as to whyboth complainants would have come up with stories which were similar and detailed,and corroborated by a complaint (although not a full complaint) at the time.[49] On our analysis there is no clear deficiency in the addresses of counsel. Goodaddresses are not always well-organised, and well-organised addresses may have littlesubstance. In the end on an overview it seems to us that the points that could be madeon behalf of Mr Stewart were made for him.[50] We should add that the summing-up of Judge Gibson that followed the closingswas comprehensive and the jury could have been left in no doubt as to the key pointsof the Crown and defence cases. The burden and standard of proof were emphasised,and the various defence points reiterated. Although the defence was not run on thebasis of consent or reasonable belief in consent, the Judge nevertheless directed theCrown to prove those elements. All appropriate directions were made.[51] Thus in conclusion we do not consider that any of these further points raisedon behalf of Mr Stewart have any merit.Sentence[52] As we have indicated above, Mr Stewart did not wish to pursue the appealagainst sentence if the conviction appeal failed. Therefore, having dismissed theappeal against conviction we do not need to address the appeal against sentence.Result[53] The appeal against conviction and sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent