DJILALI v R [2017] NZCA 515

DJILALI v R [2017] NZCA 515 [14 November 2017]NOTE: HIGH COURT ORDER PROHOBITING PUBLICATION OFIDENTIFYING PARTICULARS OF COMPLAINANT REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA580/2016[2017] NZCA 515BETWEEN DJILALI DJILALIApplicantAND THE QUEENRespondentHearing: 5 October 2017Court: Winkelmann, Wylie and Whata JJCounsel: K S Holden for ApplicantZ R Johnston for RespondentJudgment: 14 November 2017 at 3 pmJUDGMENT OF THE COURTThe application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] In August 1995 Mr Djilali was found guilty, following a jury trial in theHigh Court at Auckland, on charges of abduction and attempted rape.On 22 September 1995 Blanchard J sentenced Mr Djilali to four years' imprisonment.11 R v Djilali HC Auckland T1/95, 22 September 1995.On 17 November 2016, 21 years later, Mr Djilali filed a notice of appeal against hisconvictions, seeking leave to appeal out of time.Background[2] Mr Djilali was born in Algeria and arrived in New Zealand in March 1994,when he was aged 27. The complainant's husband offered him accommodation at hisfamily's home. Mr Djilali would sometimes drive the complainant to her work. On28 October 1994 the complainant was brought home, not by Mr Djilali, but by twopeople whom she had approached on the Mangere Bridge foreshore, begging them forhelp. On examination, the complainant was found to have Mr Djilali's semen on herclothing and a mark on her neck. She said Mr Djilali had taken her to the MangereBridge foreshore and tried to rape her inside the car in which he had picked her upfrom work.[3] Prior to trial Mr Djilali was interviewed by police. In his affidavit filed insupport of this application, he says that he spoke French and Arabic at the time. Bythe time of the trial he had learnt some basic English but only enough to convey simplethings — not enough to follow, or take part in, a conversation. Mr Djilali thereforetook a friend along with him to act as his interpreter, and the police used that interpreterin the course of the interview. The complainant's allegations were put to Mr Djilaliduring the interview, and he responded that there had been no sexual contact betweenhim and the complainant in the car on that day. His general explanation was that thecomplainant had been pursuing him for a sexual relationship but that he had refusedto oblige.The Crown case at trial[4] At trial the complainant gave evidence that Mr Djilali would drive her homefrom time to time. On the occasions that he did she would sit in the back seat on theopposite side, as her religion did not allow women to sit close to men. On 28 October1994 Mr Djilali picked the complainant up from work at 11 pm. As usual, she sat inthe back on the opposite side and they spoke to each other in English. However, MrDjilali did not drive to their home, but instead to an area on the foreshore near MangereBridge. He stopped the car and got into the back seat. The complainant tried to openthe door but could not. Mr Djilali pushed her down and pulled her clothes off. Duringthe struggle he bit her neck. She scratched and punched him but he slapped her back.He held her hands to the side and kneeled on them. He tried to take off her pants butcould not get the zip undone and ejaculated on her pants.[5] On the complainant's account, when Mr Djilali saw a car coming, he jumpedoff her and she seized the opportunity to escape out of the driver's door. Sheapproached a car parked nearby and asked for help from a couple in the car. Theyasked her if she wanted to go to the police station but she said she wanted to see herhusband first. Mr Djilali tried to stop the car, saying the complainant was his friend.[6] Mr Bennett, the driver of the car, gave evidence. He said he had not met thecomplainant before that day, that she opened the passenger door of his car and got inyelling "help" and telling him to drive away. He said that while he was driving off aman tried to grab the keys and stop the car, whilst the complainant screamed "don'tstop, carry on" and started yelling "no, no, no". He said the complainant was crying.He took her home and helped her out of the car and to the door.[7] The complainant's husband was also called to give evidence, and gave anaccount which was generally corroborative of the complainant's in terms of thechronology of events.Mr Djilali's evidence at trial[8] Mr Djilali gave a detailed background of sexual interest between him and thecomplainant. He said that the complainant would visit him in his room and caress himand encourage him to have sex with her. He replied he could not with her husband inthe house. On one occasion, he told her that they should end their relationship and shereplied that she would make trouble for him if he did, by telling her husband that hehad asked her to be his girlfriend.[9] Mr Djilali said that the complainant would arrange to spend time with him afterwork, telling her husband lies about the time she finished. On more than one occasionthey used these opportunities to have sexual contact.[10] On 28 October Mr Djilali said he and the complainant had arranged to spendtime together after her work. To cover her late return home, she told her husband shewould be visiting her sister after work, and perhaps would stay the night.[11] After he picked her up from their work, they parked somewhere in the MangereBridge area. The complainant asked him to give her a love bite, so she would havesomething to remember him by. At some point they moved to the Mangere foreshoreto get more privacy. They again kissed but the complainant started to cry, pushing athim and asking him to take her home. She got dressed. She got out of the car andbegan to cry for help. Because she had taken the car keys he followed her to recoverthem and approached the car she was in, but he was unable to get the keys back. Hetherefore left the vehicle where it was and walked home.[12] Mr Djilali also explained why he had failed to give this version of events wheninterviewed. He said he was shocked. He was also concerned that the interpreterknew him, knew he was a Muslim, and so he did not want to admit the relationshipwith his friend's wife in front of the interpreter.[13] The essence of the defence version of events was put to the complainant incross-examination. She denied it, in particular that there had been any consensualsexual contact with Mr Djilali at any point.Proposed grounds of appeal[14] If granted leave, Mr Djilali wishes to pursue the following arguments onappeal:(a) Mr Djilali's videotaped interview should have been ruledinadmissible because it was unfairly obtained. Mr Djilali says theinterpretation was not of an adequate standard, and insufficient carewas taken to ensure that Mr Djilali understood the nature of hisrights in connection with the interview. The admission of theinterview gave rise to the risk of a miscarriage of justice, as the jurycould well have concluded that Mr Djilali was a liar when hechanged his story in the witness box.(b) The trial was unfair because Mr Djilali did not have time toadequately prepare for trial and his trial counsel failed to adequatelycross-examine on important points.Relevant principles[15] The test to be applied to applications to extend time to appeal under s 388(2)of the Crimes Act 1961 (the relevant legislative provision in this case) was discussedby this Court in R v Knight:2The touchstone is the interests of justice in the particular case. The discretionmust be exercised in accordance with the policy underlying the legislativeprovisions. The feature which provides the reason for the time-limit forappealing set by s 388(1) is the interest of society in the final determination oflitigation. That necessarily carries through as a powerful consideration indetermining whether leave should be granted under s 388(2) to appeal out oftime.[16] This Court identified the following as relevant considerations in R v Lee:3[F]actors of relevance to the balancing test include the wider interests ofsociety in the finality of decisions, the strength of the proposed appeal,whether the liberty of the subject is involved, the practical utility of anyremedy sought, the extent of the impact on others affected and on theadministration of justice, and any prejudice to the Crown.[17] The following issues arise in respect of this application:(a) the extent of the delay and the reasons for it;(b) the strength of the proposed appeal; and(c) any prejudice caused by the delay.[18] This is not a case in which the liberty of the applicant is at stake. Mr Djilalihas served his sentence. This is therefore a neutral factor on this application.2 R v Knight [1998] 1 NZLR 583 (CA) at 587.3 R v Lee [2006] 3 NZLR 42 (CA) at [99].The reasons for the delay[19] The delay in this case is extreme — 21 years following conviction. Mr Djilalihas filed an affidavit in which he explains that, when he was initially convicted, hislawyer advised him not to appeal as he had received a very lenient sentence and riskedthat sentence being increased on appeal. However, when he told prison staff that hewas innocent of the charges, they told him he should appeal his conviction but did nottell him how to go about that. He did not know that he could file a notice of appealhimself, and had no idea what to do without a lawyer to help him. When he was inprison he still had limited English and therefore a limited ability to make inquiries.[20] After his release from prison, Mr Djilali says he had little money and had toborrow money from friends to pay for a lawyer to challenge a deportation order againsthim. It took until 1998 to have the deportation order cancelled and until June 2004 toobtain a work permit. He then applied for permanent residency, which he obtained in2011. Throughout that period of time he says he was struggling financially to pay alawyer to help with the immigration matters.[21] Mr Djilali was also busy at work. He worked in the meat industry from 1999until 2001, when he started his own business. It was only when he sold his businessin 2016 for health reasons that he had the time and money to focus on an appeal againstconviction.Analysis[22] Two things emerge from the narrative of events provided by Mr Djilali. It isevident that Mr Djilali was aware of his right to appeal from the time of his conviction.He took advice from his counsel following sentence (the advice was not to appeal) andfrom prison staff.[23] Although lack of language skills and resources might excuse some delay,Mr Djilali could have applied for legal aid at any time. By 1998 he was sufficientlyorientated and resourced to instruct counsel to assist him with immigration matters.Our assessment is that by 1998 (at the latest) Mr Djilali had the means, knowledge andresources to pursue his appeal rights. Another 18 years passed before he chose to doso. In reality, he gave priority to other aspects of his life. He was free to do so, butthat does not excuse the gross delay in exercising his right of appeal.Strength of the proposed appealThe role of the interpreter[24] Counsel for Mr Djilali submits it is clear from the transcript of Mr Djilali'spolice interview that Mr Djilali and the interpreter did not understand the nature of MrDjilali's rights or how the videotaped interview could be used against Mr Djilali attrial. We do not agree that this clearly emerges from the transcript. All the transcriptrecords is the exchanges between the interpreter and the interviewing officer. We aretold by Crown counsel that the videotape has been destroyed. It is therefore impossibleto determine the adequacy of the information passed to Mr Djilali in Arabic. We attachweight to the fact that neither Mr Djilali nor his trial counsel raised any issue regardingthe conduct of this interview prior to trial, at a time when the conduct of the interviewwould have been much fresher in Mr Djilali's mind. We also attach weight to theabsence of any evidence from Mr Djilali, even on this application, to the effect that hedid not understand his rights when he was interviewed by police. We therefore see nomerit in the argument that the interview should not have been admitted in evidence.[25] As to the impact of the transcript at trial, we observe that Mr Djilali explainedin his evidence before the jury why he did not give the explanation he relied on at trial.Unfair trial[26] In his affidavit Mr Djilali says that he only met with his lawyer on twooccasions before his trial, for about one to two hours on each occasion. On bothoccasions his ex-partner assisted with interpreting. Although she could not speakFrench or Arabic, she knew enough to have a basic understanding of what he wassaying. However, Mr Djilali could not understand what she was saying to his lawyer— he "could only hope it was correct". As to trial, he does not believe he gave properinstructions to his lawyer because no Arabic interpreter was present. Mr Djilali claimshis lawyer did not go through the evidence properly with him, and he believes hislawyer failed to prepare his case properly.[27] Mr Holden, counsel for Mr Djilali on appeal, identifies the following allegedfailures on the part of trial counsel:(a) To cross-examine on the implausible aspects of the complainant'saccount, including her claims:(i) that Mr Djilali sat astride her while having his knees on each ofher hands;(ii) that she had been screaming for five to 10 minutes, since theoccupants of the other car heard nothing;(iii) that she had been attacked when neither the other car'soccupants or the husband said her buttons were undone; and(iv) that she had fought off Mr Djilali, scratching his face and arms,when there were no matching injuries to Mr Djilali.(b) To cross-examine as to how the complainant could have exited the carthrough the front passenger door when the scene-of-crime officer gaveevidence this door could not be opened from inside or outside the car.(c) To cross-examine on the complainant's evidence she told the driver ofthe car she had been raped, when the driver did not give evidence tothat effect.(d) And to cross-examine the scene-of-crime officer's evidence that the carwas parked hard against the hedge on the left side (which would stopthe complainant leaving the car through that door) when thephotographs do not bear that out, and the officer was able to get intothe car from that side.Analysis[28] Mr Djilali's complaint about the adequacy of the instructions taken by his trialcounsel, Mr Jenkin, and his ability to follow the trial and give meaningful instructionsagain centres on Mr Djilali's language difficulties. We are hampered in assessing thisground because Mr Djilali's trial counsel is now deceased. He cannot respond to thevarious claims made by Mr Djilali, some of which impugn his conduct of the trial.However, from our review of the transcript of the trial, it is apparent that Mr Jenkindid have adequate instructions, as he cross-examined Crown witnesses in accordancewith the account of events Mr Djilali later provided when giving evidence. Moreover,when leading Mr Djilali through his evidence, Mr Jenkins elicited from him hisexplanation of why he had not offered that explanation during the police interview. Itis also apparent from the record of the trial that Mr Djilali had the assistance of aninterpreter during the course of trial. Therefore, although we do not have the assistanceof Mr Jenkin's evidence on this issue, we are confident that Mr Djilali was notprejudiced in the conduct of his defence by language difficulties.[29] Mr Djilali's counsel also challenges aspects of Mr Jenkin's cross-examination.We observe that appeal is not the time for a "minute dissection of whether someaspects could have been dealt with differently or better".4 In this case, we see nothingin these criticisms that take them beyond a submission by Mr Holden that he thinksthe cross-examination of Crown witnesses could have been more effectivelyconducted. This is especially problematic when Mr Jenkin is not able to give evidenceas to his instructions in connection with the cross-examination.[30] Moreover, most if not all of the criticisms seem misplaced:(a) During the police interview, the interviewing officer observedscratches on Mr Djilali's hands, which is evidence of injuriesconsistent with a struggle.(b) There was no evidence that the other car was within earshot whenthe complainant said she was shouting and screaming.4 Michaels v R [2014] NZCA 258 at [49].(c) Cross-examination as to whether Mr Bennett heard the complainantsay she had been raped would not achieve much when Mr Bennett'sevidence was that she was in tears and yelling "help, help".(d) The account the complainant gave of Mr Djilali sitting astride herand holding her hands down with his knees does not strike us asimplausible. Mr Jenkin may well have made the assessment thatunless what the complainant described was clearly implausible, heshould not cross-examine on that detail, as to do so carried the riskof simply reinforcing in the jury's mind the complainant's evidenceon the point.(e) While the scene-of-crime officer did say that the driver's door couldnot be opened, and the complainant claimed to have left the carthrough that door, cross-examination on that point was unlikely todamage her credibility — it was not in dispute that she managed toget out from the car.(f) There was no necessary inconsistency between the scene-of-crimeofficer's evidence that it was "very difficult" to open the doors onthe passenger side of the car (because it was parked so hard againstthe vegetation) and the officer then gaining access to the car througha door on that side of the vehicle.[31] To conclude on this point, the transcript reveals the witnesses werecross-examined in accordance with the defence that was run: that the complainant andMr Djilali had a relationship and the complaint was false. This underminesMr Djilali's account that he was unable to communicate his defence to trial counsel.During the course of trial, Mr Djilali had available to him an Arabic interpreter. As totrial counsel's cross-examination, the fact that counsel might have pursued differentstrategies or have been stronger when cross-examining Crown witnesses does notprovide a ground of appeal.55 R v Hall [2015] NZCA 403 at [74]–[75].Any prejudice caused by delay[32] The prejudice to the Crown both on appeal and on any retrial, that might resultis insurmountable in this case. The videotape of the interview has been destroyed. MrJenkin is deceased and so cannot give evidence about the nature and extent of hisinstructions. However, as we say above, we can discern from the evidence given byMr Djilali that Mr Jenkin had taken sufficient instructions to enable him to sufficientlycross-examine the Crown witnesses.[33] We also accept the Crown's submission that the need for finality in criminalproceedings is a particularly potent consideration in this case. The offending isserious. A retrial so many years later risks distress to the complainant. We are toldthat the police believe that the complainant is now resident overseas, so that any newtrial would inevitably cause considerable disruption to her.Decision on leave[34] The lack of an adequate explanation for the extent of the delay in this case, andthe prejudice to the Crown given the nature of the proposed appeal, weigh heavilyagainst a grant of leave in this case. There is little to be placed on the other side of thescale. Our assessment of the proposed grounds of appeal is that they are weak.Result[35] We therefore decline the application for an extension of time to appeal.Solicitors:Crown Law Office, Wellington for Respondent