SIMPSON v R [2017] NZCA 510

SIMPSON v R [2017] NZCA 510 [13 November 2017]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA157/2017[2017] NZCA 510BETWEEN DANIEL PAUL SIMPSONAppellantAND THE QUEENRespondentHearing: 5 October 2017Court: Asher, Brown and Collins JJCounsel: M E Goodwin and A C Cresswell for AppellantZ R Johnston for RespondentJudgment: 13 November 2017 at 10 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Introduction[1] The appellant, Mr Simpson, appeals against his convictions for sexualviolation by rape and sexual violation by unlawful sexual connection. The appeal isadvanced on the basis of a number of alleged errors by his trial counsel, Ms Mason.[2] Mr Simpson and the complainant were related. The complainant had been outdrinking with friends one evening and had invited Mr Simpson to join them. Laterthat evening the complainant and Mr Simpson had returned to Mr Simpson's addresswhere they continued to drink alcohol. Eventually the complainant went to sleep inMr Simpson's bed. She was fully clothed.[3] Shortly after, Mr Simpson changed into some night garments and got into thebed. The complainant had fallen asleep. She woke up to find Mr Simpson behind herwith his arms wrapped around her in a position she described as "spooning". He wassqueezing her tightly and the front of his body was facing her back. She said he movedhis hand down the front of her pants and pulled her pants and underwear down toaround her thighs. He then put his fingers inside her vagina. He removed his fingersand put his penis inside her. The complainant became distressed and got out of bedand ran to her nearby home. She was found by her mother crying and told her motherthat she had been touched inappropriately by Mr Simpson.[4] The next day Mr Simpson went over to the complainant's home. There was anexchange with the complainant and her mother and Mr Simpson went home. He wasthen confronted at his home by the complainant's sister and the police were called.The police then became involved in investigating the rape complaint.[5] Later testing of a vaginal swab taken from the complainant showed that DNAfound in the complainant's vagina was at least 130 times more likely to have comefrom Mr Simpson than from any unrelated member of the public. However, the testingdid not demonstrate that the DNA had come from semen. Semen not identified to anyperson had also been found in the complainant's vagina. Whilst Mr Simpson couldnot be excluded as the possible source of this semen, the testing was unable to establishwhether it was in fact his semen. There was also a semen stain on the complainant'sunderwear. Testing established that Mr Simpson was the source of that semen. Thefact that sexual intercourse had occurred was not conceded by Ms Mason,Mr Simpson's counsel at both trials, as the DNA evidence did not conclusivelyestablish that penile penetration by Mr Simpson had occurred.[6] Defence counsel called evidence from Mr Simpson's current and formerpartners to the effect that the sexual intercourse could not have happened withMr Simpson in a spooning position in the way the complainant described it, given theirexperience of his physical characteristics. The effect of the evidence was that, giventhe small size of Mr Simpson's penis, physical co-operation from the female partnerwas necessary before sexual intercourse could occur in that position.[7] However, the primary defence at trial, was sexsomnia. Sexsomnia is a form ofsleepwalking, where the person who is asleep has sex or carries out sex-related actionswith another person. The defence was that Mr Simpson was asleep in that position atthe time of the sexual offending and the sexual actions, if they occurred as thecomplainant alleged, were done under a form of automatism. Expert evidence wascalled to support this contention and Mr Simpson's current and former partners alsogave evidence about particular episodes of Mr Simpson's sexsomnia.[8] Mr Simpson was interviewed by the police and gave his explanation of whathad happened. He said he woke briefly at 3 am and was in a "compromising position"with the complainant. He mentioned that he was on the drugs tramadol and panadolfor a toothache and suggested to the police that this affected his recollection. Heexplained further in a handwritten statement to the police later that day that he hadgone to sleep in the same bed with the complainant, and "I woke up and my hand wason [the complainant's] bum which freaked me out".[9] There was a first trial that resulted in a hung jury. Then, when the second trialbegan, there was a difficulty with the jury which led to that trial being aborted. TheCrown then began what in effect was the third trial that gave rise to the guilty verdicts.Mr Simpson was convicted after a four day hearing, and was ultimately sentenced tofour and half years' imprisonment. There is no appeal against sentence.[10] It is always possible after an unsuccessfully defended jury trial to second-guessadvice given and decisions that were made by trial counsel. However, the ultimatequestion is whether justice has miscarried.1 If the alleged incompetence raised would1 Hall v R [2015] NZCA 403 at [1].not have affected the outcome any further scrutiny of counsel's conduct will beunnecessary.2The issuesFailure to address a misstatement of the DNA evidence[11] Mr Goodwin for Mr Simpson submitted that a miscarriage of justice occurredbecause the Crown stated in closing that Mr Simpson's semen was found in thecomplainant's vagina, when the DNA evidence at trial did not support this. Trialcounsel agreed to the DNA evidence being presented as an agreed statement of facts,and did not discuss this with Mr Simpson, and did not challenge the Crown's incorrectstatement about the presence of Mr Simpson's semen.[12] We agree that the prosecutor's statement that there was "literally evidence ofthe defendant's semen being inside her vagina" was not strictly accurate. However, aswe have set out, a separate swab found that DNA (not proven to be part of the semen)that was 130 times more likely to belong to Mr Simpson than an unrelated member ofthe public was found in the complainant's vagina. Moreover semen that was identifiedas his semen was found on her underpants. The only male who had been close to herthat night was Mr Simpson. It was therefore close to an irresistible inference that,given Mr Simpson's non-semen DNA inside her vagina, and his actual identifiedsemen on her underpants, the semen that was inside her vagina that was not identifiedto any particular person was likely to be his semen. It could not have been the semenof anyone else, as the evidence did not show that any other male had been in closephysical proximity to the complainant that night.[13] Moreover, the prosecutor's statement was not, when taken in context, absolute.This was reflected by the prosecutor in his address to the jury referring to the "varyingprobabilities" of the semen being Mr Simpson's semen. This position was clearlyreiterated by the Judge in summing-up, when he characterised the prosecutor as havingspoken of the "odds" that the semen inside the complainant's vagina came from MrSimpson.2 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].[14] It is not surprising in these circumstances that Ms Mason sought to deal withthe DNA evidence by way of an agreed summary of facts, and did not criticise theCrown for its submission that it was Mr Simpson's semen inside the complainant'svagina. Such a denial was likely to seem silly to the jury, in the light of the provenfacts. Moreover any error in this area cannot be seen as having given rise to anymiscarriage of justice. While the fact that sexual intercourse occurred was notconceded by the defence, there was no strong challenge to this at the trial. Nor couldthere be, given the strength of the circumstantial evidence that we have referred to.[15] We record that we accept Ms Mason's evidence that she discussed the need foran agreed statement of facts with Mr Simpson. Although she did not recall havingshown the agreed facts to Mr Simpson, she had formed the view that the agreementappropriately reflected the defence's challenges as to what the DNA evidence did anddid not establish during the first trial. In these circumstances, her failure to obtainMr Simpson's approval of those facts was not a material error.A confused defence[16] It was submitted that trial counsel ran a confused defence case contrary toMr Simpson's instructions. Mr Simpson deposed that he had always instructedcounsel that he did not know if sexual intercourse had occurred and, if it had, hemaintained he had no memory of it. It must have been done by him in his sleep. Trialcounsel therefore ran the defence of sexsomnia and called an expert, Dr Fernando, togive evidence that on the material before him Mr Simpson could have sufferedsexsomnia on the night in question.[17] In addition to running this defence, defence counsel also raised with the jurythe possibility that the complainant had consented to any sexual activity that had takenplace. Mr Goodwin submitted that the defence of consent was at odds with the defenceof sexsomnia, and that running the two together could have given the impression thatMr Simpson was trying a number of defences that were not genuine. He submittedthat there was confusion and inconsistency in the defence strategy. The jury may havebeen left with the impression that Mr Simpson may have been awake when theoffending occurred and should therefore have been able to comment on whether thecomplainant was consenting.[18] We do not think that this is a fair criticism of the defence position. Mr Simpsonmaintained strongly and consistently that he had no recollection of there being anysex, save for him having his hand down the complainant's pants when he woke up.The DNA evidence plainly showed that his sexual actions had gone further than atouching to the exterior of the complainant's body. The presence of Mr Simpson'sDNA in her vagina indicated that there had been penetrative sex, and the presence ofhis semen on the complainant's underpants indicated that there had been more thantouching.[19] Therefore, as trial counsel rightly conceded before the jury, something sexualhappened. The sexsomnia defence was an explanation as to why Mr Simpson did notremember having sex. However, there was also a narrative available that the sex thathad occurred was consensual. There was the fact that the complainant had willinglygone and laid down in Mr Simpson's bed. Her version of events as it was told to theinterviewer, and under cross-examination, varied considerably on the details. Therewas also the evidence from Mr Simpson's current and former partners that sex in theposition described by the complainant would have required the complainant'sco-operation, given Mr Simpson's physical characteristics. The defence could havebeen criticised for not raising consent, given those facts.[20] We do not agree that the jury would have been left confused by the defenceraising consent alongside the defence of sexsomnia, or that it was left thinking thatMr Simpson was alleging consent because he actually recalled sex taking place. Inthe defence opening statement, which set the scene for the defence, sexsomnia was putforward as the main defence. The issues of whether full sexual intercourse took place,and whether it could be correct that the complainant did not physically cooperate, wereraised as subsidiary points. It was clear that these two points were subsidiary to themain defence, and were being put forward without any knowledge of what actuallyhappened on Mr Simpson's part. Although in the closing address counsel could haveput the defences more clearly, we do not consider that this was a significant error giventhe clear opening. The need for multiple defences really arose from the position ofMr Simpson stating that he could not remember what happened.Erroneous advice not to give evidence[21] It is common ground that Ms Mason discussed with Mr Simpson the questionof him giving evidence in relation to both trials. In both trials he signed writteninstructions to her that he did not wish to give evidence. Ms Mason made it plain inher affidavit and her evidence that she advised Mr Simpson against giving evidence,and did not think it wise for him to do so. Given that he could not remember what hadhappened, and had said so, his evidence could add little to what was already beforethe Court in his statement to police. The defence expert, Dr Fernando, supported hissexsomnia evidence. There was already evidence before the Court of Mr Simpsontaking tramadol, which could have made it more likely that he suffered fromsexsomnia.[22] Mr Goodwin submitted that because Mr Simpson did not give evidence, theCrown evidence that he had apologised when he went over to the complainant's homecould not be challenged. Mr Simpson could have clarified that his apology to thecomplainant related to him waking up with his hand down her pants, not to any rape.However, Ms Mason explained that she did not think it would advance Mr Simpson'scase for him to give evidence on this point, because a relative of the complainant wholived with her had given strong credible evidence that he had appreciated what he wasapologising for. He would have ended up in a direct credibility contest with a strongwitness that he was unlikely to win. It was better to leave that evidence unchallengedto protect Mr Simpson's credibility.[23] In our view this was an entirely legitimate position for Ms Mason to take. Asshe said, getting into a credibility contest with a strong Crown witness would havebeen pointless and damaging. The apology could still be interpreted by the jury in thecontext of Mr Simpson's lack of memory, and the fact that he woke up with his handdown the back of the complainant's pants.[24] In recommending against giving evidence, Ms Mason also took the view thatMr Simpson had suffered a significant head injury, was forgetful and easily confused.She was justifiably concerned how he would fare under cross-examination.[25] The documents that Mr Simpson signed acknowledging he did not wish to giveevidence referred to the fact that if he gave evidence and raised the issue of hischaracter, this could result in the admission of Crown evidence about an earlierincident. Some years earlier Mr Simpson had faced an allegation of sexuallyinterfering with a young girl. No charges had been laid and he did not stand trial. MsMason was concerned that Mr Simpson could be careless in answering questions andcould inadvertently mention his character, and the Crown could then have put to himthat he had been involved in this earlier incident.[26] We accept Mr Goodwin's point that there may have been good arguments toresist Mr Simpson being cross-examined on his character. However, they might nothave succeeded. We conclude that Ms Mason was acting responsibly when sheadvised Mr Simpson that a possible downside if he gave evidence was that he couldbe cross-examined along these lines.[27] Mr Simpson in his affidavit indicated that he wished to give evidence and waspressured not to do so. We have heard nothing in the evidence that gives us any causefor concern under this head. Ms Mason undoubtedly gave clear advice as to why shedid not think he should give evidence. But equally clearly we accept her evidence thatit was always left to Mr Simpson to choose, and that he made the decision not to giveevidence. On an objective test, his end decision was not at all unreasonable or foolish.It was made on two separate occasions, with the involvement of his supporters, andwithout undue pressure.Failure to call Mr Simpson's stepfather to give evidence[28] Mr Goodwin argued that Ms Mason should have called Mr Simpson'sstepfather as a witness. His stepfather saw him the day after the incident and couldhave given an account of Mr Simpson's distraught state as a result of finding out whatit was said had occurred.[29] Ms Mason deposed that Mr Simpson never mentioned his stepfather as apossible defence witness. We found Ms Mason to be a credible witness and we accepther evidence on this point. Further, the stepfather's evidence would have had verylimited probative value. He was not a witness of any of the crucial events. There wasa possibility that the stepfather's evidence to the effect that Mr Simpson was "verydistraught" could be contested by credible Crown witnesses. It is also possible thatevidence of his distress could be counter-productive in that it could undermineMr Simpson's position that he did not recall any sexual intercourse. We conclude thatthere were risks in calling the stepfather and that to do so would not have materiallyhelped Mr Simpson's defence.Misstated sexsomnia timeframe[30] The Crown had stated to the jury in closing that there was no evidence ofMr Simpson engaging in sexual intercourse while asleep in "six and a half or so years".The point was picked up by the Judge is his summing-up. Mr Goodwin submitted thattrial counsel should have raised the fact that it was two years before the incident inquestion that the last episode of sexsomnia had occurred with Mr Simpson's formerpartner, and that the six and a half years referred to the time between the last sexsomniaepisode and the trial. Without this correction the jury would have been influencedagainst Mr Simpson by the apparently long gap between episodes of sexsomnia.[31] This point has no substance. It is far from clear to us that the jury would havebeen in any way misled by what the Crown said. The jury had heard from the witnessthat there had been sexsomnia only a few years prior to the alleged rape. Knowingthat, the jury would have realised that the six and a half years was a timeframemeasured to the time of the trial. There would have been little point in Ms Masonrevisiting this issue in her closing.Overview[32] There were some general suggestions that Ms Mason lacked focus at trialbecause of a recent bereavement. However, on the material we have read we aresatisfied that counsel was fully focused throughout the trial.[33] The case against Mr Simpson was strong. There was powerful DNA evidenceindicating that sexual intercourse had taken place. Mr Simpson himself had to admitsome degree of sexual activity. His defence started from the position that an indecentassault, Mr Simpson having his hand down the complainant's pants, was admitted.The defence had an unenviable job, given the strength of the case against Mr Simpson,and his lack of recollection. Hard choices had to be made. This was never going tobe an easy case to defend. It is our overall assessment that Ms Mason did all that couldbe expected of counsel. The evidence falls far short of showing significant error thatcould have affected the outcome of the trial. Indeed, as we have pointed out, no errorat all has been shown on the part of Ms Mason.Result[34] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent