MATEPARAE v R [2019] NZCA 177

MATEPARAE v R [2019] NZCA 177 [23 May 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA23/2018[2019] NZCA 177BETWEEN DENYS MATENE MATEPARAEAppellantAND THE QUEENRespondentHearing: 6 May 2019Court: Courtney, Venning and Lang JJCounsel: C J Tennet for AppellantE J Hoskin for RespondentJudgment: 23 May 2019 at 10 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Mateparae was found guilty by a jury on four charges of indecent assault.He appeals against conviction on the basis that errors by his counsel and the trial Judgeresulted in a miscarriage of justice.1The Crown case[2] The charges related to an incident that occurred at the St Lukes shopping malllate on the afternoon of 24 May 2015. The Crown alleged that Mr Mateparae waspresent at the mall on that date and indecently assaulted a nine year old girl in a shopwithin the mall on four separate occasions in the space of a few minutes.[3] The Crown case was largely based on the evidence of the complainant togetherwith CCTV footage filmed in and around the mall on the afternoon of the incidentsgiving rise to the charges. The complainant said she went to the mall with her mother,her brother and her sister. Whilst she was sitting on a couch with her mother outsidea book shop she noticed a man nearby who kept looking at her and smiling. She saidthis person had a bald head and was wearing a black T shirt and black pants. She alsosaid he was wearing a black cap with the peak facing backwards. She said the manwas in his 20's or 30's and that his skin was lighter in colour than hers.[4] The complainant said that she and her mother then entered the book shop and,once inside, her mother took her brother to the toilet. The complainant remained inthe store with her sister.[5] The complainant said that the man she had seen outside the shop came up toher. He then said "excuse me" before squeezing her on the buttocks. She moved awaybut the man followed her. He then said "excuse me" again before touching her vagina.At this point the complainant moved to the other end of the store but again the manfollowed her. She said that he came up to her and said "excuse me" before touchingher vagina on a second occasion. The complainant said she immediately moved toanother area of the store but the man continued to follow her. On this occasion shesaw him taking a photograph on a black cell-phone. The complainant could not tell1 The Notice of Appeal referred to an appeal against both conviction and sentence but the appealwas only advanced against conviction and counsel has since confirmed this to be the correctposition.whether he was taking a photograph of her or of books in the shop. At that point hetouched her vagina for the third time. The complainant said she then ran to the backof the store where she waited for her mother to return. They then left the store.The complainant immediately told her mother what had happened, and her fathercontacted the police about the incident when they got home.[6] The police subsequently uplifted and viewed CCTV footage taken on 24 May2015 from cameras positioned in and around the mall. Footage taken within the mallshows a male person wearing a black top and distinctive black trousers standing in thevicinity of the book shop at around 4.50 pm. That person was also wearing blackshoes with coloured markings on them and a black cap with yellow writing on it.Whilst the person was in the vicinity of the bookshop he was wearing his cap withthe peak facing backwards. At this point the complainant and other members of herfamily can be seen on and around a seat outside the book store.[7] The footage then shows the complainant and her family going into the bookstore shortly before 5 pm. A few minutes later the complainant's mother and brotherleft the store. The man with his cap on backwards then entered the store atapproximately 5 pm and remained in the store until 5.09 pm. After leaving the storehe walked to the carpark. He then departed the mall in a Nissan Primera motor vehicleat 5.12 pm. The police were able to ascertain that this vehicle had arrived atthe carpark at approximately 4.12 pm.[8] On 1 June 2015 a member of the security staff at the mall saw a man who fittedthe description of the person given by the complainant a week earlier. The police werecalled and they arrested this person in the mall carpark. The man declined to providethe police with his details, but they ascertained from a driver's licence found in hiswallet that he was Mr Mateparae. The police then seized Mr Mateparae'sblack cellphone and took him back to the police station. They subsequentlydiscovered the Nissan Primera motor vehicle in which Mr Mateparae had arrived atthe mall parked a short distance from where he had been arrested.[9] The police searched Mr Mateparae's home address following his arrest andlocated a cap and T shirt similar to those worn by the person identified in the CCTVfootage taken on 24 May 2015. The police also searched photographs stored onMr Mateparae's cellphone and found a photograph of him wearing a black cap withthe peak facing backwards.[10] The complainant undertook evidential videotaped interviews on 28 May and15 June 2015. During the second interview she was shown a photographic montagethat included a photograph of Mr Mateparae. She picked out Mr Mateparae as beingthe person she believed had indecently assaulted her on 24 May 2015.Grounds of appeal[11] On Mr Mateparae's behalf, Mr Tennet advances three grounds of appeal.2First, he contends that Ms Priest, Mr Mateparae's trial counsel, failed to adequatelycross-examine Detective Sergeant Scott Wilson, one of the detectives who dealt withMr Mateparae on 1 June 2015. Secondly, he contends the Judge ought to have abortedthe trial or given the jury directions after Ms Priest made what Mr Tennet described asa significant error during her cross-examination of another police officer,Detective Walsh. Thirdly, Mr Tennet contends that Mr Mateparae elected not to giveevidence in circumstances where he had received inadequate advice from Ms Priest.Mr Tennet contends that, viewed individually and collectively, these errors resulted ina miscarriage of justice.Approach[12] The approach to be taken in relation to an appeal against conviction onthe basis of trial counsel error is now well established through cases such as R vSungsuwan, R v Scurrah, Hall v R and, most recently, Swain v R.3 In short,the appellant must show that justice has miscarried. The issue will generally bewhether errors by trial counsel create a real risk that they may have affected theultimate outcome.42 At the commencement of the hearing Mr Tennet abandoned a ground of appeal relating to latedisclosure by the Crown.3 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730; Scurrah v R CA159/06, 12 September2006; Hall v R [2015] NZCA 403, [2018] 2 NZLR 26; and Swain v R [2018] NZCA 259.4 R v Sungsuwan, above n 3, at [70].[13] In Hall, this Court observed a miscarriage of justice may occur if trial counselfails to follow the defendant's instructions in relation to three fundamental trialdecisions.5 These relate to the plea to be entered, the election whether the defendantis to give evidence and reliance upon the defendant's version of events in advancingthe defence case.6 Errors of judgment in other areas will only lead to a miscarriage ofjustice where the decision in question was not one a competent lawyer would havemade, and the decision may have affected the ultimate outcome.7[14] In Hall, the appellant alleged the cross-examination of the complainant by histrial counsel was "weak".8 He contended it ought to have been conducted in a waythat cast greater doubt on the complainant's credibility. The Court held thatthe cross-examination and closing address had placed the relevant matters in issuebefore the jury and that this type of criticism of trial counsel should be avoided.9The fact that someone else may have made a greater or stronger challenge to some ofthose matters was of no moment.10Cross-examination of Detective Sergeant Wilson[15] Detective Sergeant Wilson received advice on the afternoon of 1 June 2015that security guards from the St Lukes shopping mall were maintaining surveillanceof a male person who matched the description of the person suspected of indecentlyassaulting the complainant on 24 May 2015. He then sent two members of his staff tothe shopping mall to investigate this issue. A short time later Detective SergeantWilson received advice that the officers had located and arrested the person at the mall.[16] Later that day Detective Sergeant Wilson was given the cellphone upliftedfrom Mr Mateparae at the time of his arrest. He was subsequently contacted byMr Mateparae's partner. After Detective Sergeant Wilson obtained her details, he toldher Mr Mateparae was under arrest. She then provided the detective withMr Mateparae's address and cellphone number. She also provided the detective with5 Hall v R, above n 3, at [65].6 At [65].7 At [77].8 At [126].9 At [127].10 At [127].the password needed to gain access to Mr Mateparae's cellphone, as well as detailsabout the Nissan Primera motor vehicle he was currently driving.[17] Detective Sergeant Wilson subsequently used the password to gain access toMr Mateparae's cellphone. He found and took screen shots of photographs onthe cellphone that he considered may be of interest to the investigation. Theseincluded a photograph of Mr Mateparae wearing his cap backwards. No photographsof the complainant or the shop where the assault had allegedly taken place were foundon the cellphone.[18] Ms Priest cross-examined Detective Sergeant Wilson regarding several issues.One of these was the fact that the detective had obtained the password to the cellphonefrom Mr Mateparae's partner. The detective agreed that he knew the cellphonebelonged to Mr Mateparae. Ms Priest then suggested to the detective that it was"a bit unfair" to ask Mr Mateparae's partner to provide access to a cellphone when itcontained private information belonging to another person. The detective respondedto this question as follows:A. She — well, I was informed prior to this that she had the passcode,I advised her why Mr Mateparae was with us and that there could besome evidence in that phone and that she didn't have to give me thepasscode if she didn't want to, but for us to be able to determine ifthere was evidence in that phone, I needed that passcode and she gaveit to me.Q. Do you agree a fairer way would have been to ask — haveMr Mateparae provide the PIN number to his own phone?A. No, I was — wasn't dealing with Mr Mateparae, so obviously ifMr Mateparae had given his passcode to [Detective Walsh] would'vebeen — would have superseded that, so we needed the passcode so Iasked her, she gave it to me.[19] Ms Priest then obtained confirmation from the detective that he had not madeany notes of his discussion with Mr Mateparae's partner about the password. He alsoconfirmed the cellphone did not hold any photographs of the complainant or the shopat the mall where the incident had taken place. Ms Priest then had the detectiveproduce a cropped version of one of the photographs obtained from the cellphone andproduced by the Crown at the trial. This showed Mr Mateparae wearing his capbackwards. Ms Priest said she arranged for the detective to produce this photographto emphasise the fact that it had been taken some considerable time prior to 24 May2015.[20] The ground of appeal arises out of the fact that Ms Priest says she recognisedthe detective when he was called to give evidence. She had previously made hisacquaintance approximately six years earlier when their children were members ofthe same soccer team. She said that he was an acquaintance rather than a friend, andthat she had not seen him for many years. Ms Priest raised the fact that she knewDetective Wilson with Mr Mateparae before he gave evidence. She also told him shecould arrange for another lawyer to cross-examine the detective if that wasMr Mateparae's wish. Mr Mateparae did not require this to be done. He signed awritten instruction confirming both that he was aware of the connection betweenMs Priest and the witness and that he wished her to undertake the cross-examinationof the witness.[21] Mr Tennet contends that, although Ms Priest acted appropriately in raisingthe issue with Mr Mateparae, she then failed to adequately cross-examine the detectiveregarding the circumstances in which he obtained the password from the cellphonefrom Mr Mateparae's partner. Mr Tennet submits Ms Priest ought to havecross-examined the detective more vigorously to establish that Mr Mateparae's partnerhad initially been resistant to the detective's attempts to obtain the password from her.[22] We see no merit in this ground of appeal. First, the manner in which Ms Priestchose to cross-examine the detective fell very much within her discretion astrial counsel. This Court would not normally attempt to second guess an exercise ofjudgment in this area, particularly where it relates to a peripheral issue. Secondly,the information stored on Mr Mateparae's cellphone provided some support forthe defence case. The complainant was sure the person who assaulted her had takenphotographs on his cellphone whilst they were in the shop. The fact that the policecould not find any photographs of the complainant or the shop on Mr Mateparae'scellphone obviously supported his argument that he was not the person who hadassaulted her. Ms Priest was also able to obtain confirmation from the detective thatthe photograph found on the cellphone of Mr Mateparae wearing his hat backwardswas taken a considerable time before the incident giving rise to the charges. There wastherefore little point in Ms Priest challenging the detective more vigorously regardingthe circumstances in which he had obtained the password from Mr Mateparae'spartner.[23] This ground of appeal fails as a result.The cross-examination of Detective Walsh[24] Detective Walsh was one of the police officers who went to the St Lukesshopping mall and arrested Mr Mateparae on the afternoon of 1 June 2015.After the officers seized Mr Mateparae's cellphone he refused to give themthe password to allow them to gain access to the information stored on the device.At that point Detective Walsh warned Mr Mateparae that he could be charged withfailing to provide the password.[25] Ms Priest questioned the detective about the basis for his belief that such acharge could be laid. She undertook this line of cross-examination because shebelieved the police had no ability to charge a person with refusing to provide apassword of access code to a cellphone.[26] During the evening adjournment, however, counsel for the Crown ascertainedthat it was in fact an offence for a person to fail to provide an access code to a computerwhen being asked to do so by a lawful authority.11 The following morning the Judgeindicated his view that a cellphone amounted to a computer for the purposes of thischarge. Ms Priest then applied in the absence of the jury for a mistrial.12 She arguedthere was a risk the jury would be unfairly prejudiced against Mr Mateparae by the factthat she had cross-examined the detective based on an erroneous appreciation ofthe law. The Judge refused the application because he did not consider Ms Priest'serror created a risk that Mr Mateparae would not receive a fair trial.[27] Before advancing the application for a mistrial Ms Priest advisedMr Mateparae that the application was unlikely to succeed. She also advised him thather cross-examination could form a ground for appeal if he was ultimately convicted.11 Search and Surveillance Act 2012, ss 130 and 178.12 Juries Act 1981, s 22.[28] Ms Priest then resumed her cross-examination of Detective Walsh on otherissues. In her closing address she dealt with the issue as follows:Now, I've just been advised this morning that it is in fact an offence to provide,not to provide an access code to a computer system and that that includes acellphone. You will recall that I challenged the officer on this, I was wrong.This is a legal matter, I got it wrong, I'm embarrassed and I'm sorry but whatyou need to know is this, you can't hold my mistake against Mr Mateparae,he relied upon me to get the law right on that and I didn't.[29] The Judge did not refer to Ms Priest's error in his summing up. Mr Tennetcontends that a miscarriage of justice has occurred because the Judge should eitherhave aborted the trial or, alternatively, given the jury appropriate directions aboutthe issue in his summing up.[30] We do not consider there is any merit to this ground of appeal. Ms Priest'serror related to an issue that was of marginal significance in the overall context ofthe trial. It clearly did not warrant the Judge declaring a mistrial, and expressdirections about the issue in the summing up would have run the risk of giving it undueemphasis. We consider Ms Priest dealt with the issue appropriately in her closingaddress, and there is no reason to believe the jury gave it any weight in theirdeliberations.[31] This ground of appeal accordingly fails.Failure to call Mr Mateparae to give evidence[32] Mr Mateparae elected not to give evidence. He now contends that Ms Priesterred in not calling him to give evidence. He believes he ought to have hadthe opportunity to tell the jury that he was not the person who indecently assaultedthe complainant.[33] Ms Priest says Mr Mateparae had indicated from the outset that he did not wishto give evidence. She told him, in accordance with her usual practice, to keep an openmind about that issue and not to make a final decision until the end of the Crown case.[34] At the end of the Crown case Ms Priest says she discussed the issue again withMr Mateparae at considerable length. By that stage she had prepared a brief ofthe evidence Mr Mateparae would give if he elected to give evidence. She says hewas happy with the brief and made several alterations to it in his own handwriting.Ultimately, however, Mr Mateparae decided not to give evidence. At Ms Priest'srequest he signed the following file note:14.12.17I Denys Mateparae have spoken to my lawyer about my election to giveevidence. I know it is entirely up to me. I have been advised about the gapsin my case if I don't give evidence (there are few) and I know I'll becross-examined by [the prosecutor] who will go through the offending againif I give evidence. I make this decision freely and without any pressure. I haveno questions. I elect to not give evidence. I know I have to live with thisdecision if found G or NG. I elect to call evidence from [an ESR scientist](DNA).13[Signed] D Mateparae[35] Ms Priest says her handwritten notes made during the trial confirm that duringher discussions with Mr Mateparae before he made his decision she emphasisedthe key elements of the Crown case, as well as the likelihood that the prosecutor woulduse his cross-examination of Mr Mateparae as a platform to highlight these inanticipation of his closing address. She also summarised areas of the evidence inwhich she considered her cross-examination of the Crown witnesses had underminedaspects of the Crown case. Furthermore, Ms Priest considered there was little valuein Mr Mateparae giving evidence because he could say no more than that he was notthe offender.[36] Ms Priest's evidence satisfies us that Mr Mateparae made his decision not togive evidence on an informed basis, and after appropriate consideration ofthe advantages and disadvantages of giving evidence.[37] We also agree with Ms Priest's assessment that Mr Mateparae's evidence couldnot add a great deal to his denial that he was the person responsible for indecentlyassaulting the complainant. His brief of evidence records that he could not remember13 The final sentence of the note relates to the fact that the police did not arrange for the clothingworn by the complainant on 24 May 2015 to be tested for the presence of contact DNA that mayhave been deposited by the person who had assaulted her. Ms Priest called a scientist fromthe Institute of Environmental Science and Research (ESR) to tell the jury about the types ofevidence a DNA analysis of the complainant's clothing may have produced.what he had been doing on 24 May 2015. He would have said he "may have drivenpast St Lukes shopping mall" and that he did not "remember exactly whether [he] wentinto St Lukes shopping mall itself or not". He would also have said that, even if hedid enter the shopping mall, he never had any interactions with a child.[38] We consider the vague nature of Mr Mateparae's proposed evidence means itwould have been of little assistance in rebutting the case for the Crown. Ms Priest alsoneeded to be mindful of the fact that the Crown case included evidence thatMr Mateparae's cellphone had polled cell sites in the vicinity of the St Lukes shoppingmall in the late afternoon of 24 May 2015. Mr Mateparae's initial instructions toMs Priest had been that he had not entered the shopping complex on that date.Ms Priest had therefore instructed her own expert to investigate the cellphoneevidence. This revealed that Mr Mateparae's cellphone had polled an internal cell siteat the shopping complex during this period. This meant he must have been insidethe complex at or around the time the complainant said she was assaulted.This information effectively precluded Ms Priest from leading evidence fromMr Mateparae that he was not present at the complex on the afternoon of the incidentgiving rise to the charges.[39] We therefore agree that there would have been little benefit in Mr Mateparaegiving evidence in those circumstances. If he elected to do so, however, he wouldprovide the prosecutor with an ideal opportunity to emphasise the strongest featuresof the Crown case. It follows that we do not consider a miscarriage of justice hasoccurred because Mr Mateparae did not give evidence at his trial.Result[40] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent