MANIRAKIZA v NEW ZEALAND POLICE [2020] NZHC 1555

MANIRAKIZA v NEW ZEALAND POLICE [2020] NZHC 1555 [3 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-451[2020] NZHC 1555BETWEEN EMMANUEL MANIRAKIZAAppellantAND NEW ZEALAND POLICERespondentHearing: 29 June and 1 July 2020Appearances: D Taumihau and P S Dean for AppellantJ V Barry for RespondentJudgment: 3 July 2020JUDGMENT OF LANG J[on appeal against conviction]Solicitors:Crown Solicitor, Auckland[1] Mr Manirakiza was found guilty on a charge of indecent assault following aJudge-alone trial before Judge A C Roberts on 19 October 2019.1 On the same datethe Judge sentenced Mr Manirakiza to nine months supervision.[2] Mr Manirakiza appeals against conviction on the basis that his trial counsel,Mr Paul Heaslip, erred in several respects in conducting Mr Manirakiza's defence.Mr Manirakiza says Mr Heaslip failed to advise him the Judge could take into accountthe evidence of the female complainant and to advise him he could give evidence inhis own defence. He also says Mr Heaslip failed to properly brief the only witnesscalled for the defence at trial. This resulted in the witness giving evidence that wasunfavourable to the defence.2[3] The appeal must be determined in accordance with s 232 of the CriminalProcedure Act 2011 (the Act). This Court is required to allow the appeal if for anyreason a miscarriage of justice has occurred.3 In this context a miscarriage of justicewill have occurred if an error or occurrence in relation to or affecting the trial hascreated a real risk that the outcome of the trial was affected.4The hearing in the District Court[4] It was common ground that there was a lengthy history of acrimony betweenMr Manirakiza and the complainant. They lived on opposite sides of a shareddriveway. The discord resulted in the complainant serving a trespass order onMr Manirakiza prohibiting him from coming onto her property.[5] The prosecution called two witnesses, the female complainant and a policeofficer who responded to a call from neighbours who heard the incident that resultedin Mr Manirakiza being charged.1 New Zealand Police v Manirakiza [2019] NZDC 264242 In closing submissions Mr Taumihau abandoned grounds of appeal alleging Mr Heaslip had failedto ensure other defence witnesses were called to give evidence and that he failed to take adequatesteps to obtain an adjournment of the trial at the close of the Crown case.3 Criminal Procedure Act 2011, s 232(c).4 Section 232(4)(a).[6] On the evening of Saturday 4 August 2018, Mr Manirakiza was dropped off atthe driveway to his address by two friends, Messrs Olivier Mugisho and NkwameOsei. The complainant said that as Mr Manirakiza walked down the driveway to hisaddress he saw the complainant in the carport of her address. He approached her andbegan to make offensive and inappropriate remarks. He then walked up to her andplaced his hands on her shoulders and her breasts.[7] The complainant immediately began yelling at Mr Manirakiza and a physicalaltercation occurred. At this stage Mr Manirakiza's associates were still in their car atthe top of the driveway. They heard the yelling and Mr Osei and Mr Mugisho walkeddown the driveway to find out what was happening. The complainant said they beganpushing and shoving her, and that she punched Mr Mugisho in the mouth as a result.The incident came to an end when the police arrived at the address.[8] Constable Munster, one of the police officers who responded to a call from aneighbour, spoke briefly to Mr Osei as he was leaving the address. The officers thenarrested the complainant after she told them she had punched Mr Mugisho during theincident. They took her back to the police station where they obtained a detailedstatement from her. This persuaded the police that the complainant had been the victimof the incident that had occurred in the driveway of her address. They released herwith a warning and returned to speak to Mr Manirakiza. Constable Munster said theyfound Mr Manirakiza "incoherently drunk", but he denied any wrongdoing towardsthe complainant. He was arrested and charged with indecent assault and breaching thetrespass notice.5[9] Mr Manirakiza did not give evidence at trial but called Mr Osei to giveevidence on his behalf. Mr Osei gave evidence about the physical altercation he hadobserved between Mr Manirakiza and the complainant. He said he saw thecomplainant with her hands around Mr Manirakiza's throat. He also gave evidencethat when he arrived at the scene he heard the complainant say "Emmanuel[Mr Manirakiza] have touched me".5 The Judge dismissed the latter charge.[10] The Judge accepted the truthfulness of the complainant's account. He rejectedmuch of what Mr Osei said because Mr Heaslip had not put it to the complainant.However, the Judge considered the comment Mr Osei said he heard the complainantmake about Mr Manirakiza touching her was "telling". The reasons for the Judge'sdecision are encapsulated in the following paragraphs:As to the assault, I have no hesitation in accepting the complainant's evidence,"He grabbed my boobs". As I have said, I found her to be a truthful andreliable witness. The laying on of hands, I am satisfied occurred. Mr Heaslipaddressed me, he submitted that there was no indication at all that thedefendant had secured any sexual excitement from the act. That is nothowever the test. The issue is, whether there was a touching in circumstancesof indecency. Of course I am satisfied, noting the distress after the incident,that this complainant did not consent to the touching.Mr Manirakiza is not a young man and would well understand the problemsthat attach to uninvited, unsolicited touchings. As I stress, he is not a youngman, he would know and understand, particularly in circumstances such asthis, where tempers are frayed, and the circumstances suggest furtherdeterioration, that this would [not] be an act that the complainant wouldaccommodate. I am helped in my determination recognising the disharmonybetween the parties and the fact that it was a two-handed grabbing. Consentcould not be contemplated. I am satisfied too, that even in the circumstancesof a physical and oral dispute, there were circumstances of indecency, that isan area where men should ensure that here is no contact unless it is truly [by]consent. I find the charge of indecent assault proved.Trial counsel error[11] There is no dispute regarding the principles to be applied when trial counselerror is advanced on appeal. In short, it is not sufficient for the appellant todemonstrate there has been error by trial counsel in conducting the defence. Rather,the test is whether a miscarriage of justice has occurred.[12] The leading judgment is that of the Supreme Court in R v Sungsuwan.6 In thatcase the Supreme Court observed:7 while the ultimate question is whether justice has miscarried, considerationof whether there was in fact an error or irregularity on the part of counsel, andwhether there is a real risk it affected the outcome, generally will be anappropriate approach. If the matter could not have affected the outcome anyfurther scrutiny of counsel's conduct will be unnecessary. But whateverapproach is taken, it must remain open for an appellate Court to ensure justicewhere there is a real concern for the safety of a verdict as a result of the6 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.7 At [70].conduct of counsel even though, in the circumstances at the time, that conductmay have met the objectively reasonable standard of competence.[13] In R v Scurrah, the Court of Appeal summarised the approach to be taken asfollows:8[17] The approach appears to be, then, to ask first whether there was anerror on the part of counsel and, if so, whether there is a real risk that it affectedthe outcome by rendering the verdict unsafe. If the answer to both questionsis "yes", this will generally be sufficient to establish a miscarriage of justice[18] On the other hand, where counsel has made a tactical or other decisionwhich was reasonable in the context of the trial, an appeal will not ordinarilybe allowed even though there is a possibility that the decision affected theoutcome of the trial. This reflects the reality that trial counsel must makedecisions before and during trial, exercising their best judgment in thecircumstances as they exist at the time [14] In R v Hall, the Court of Appeal identified trial decisions that can be describedas fundamental.9 An election whether to give evidence is a fundamental trial decision,as is the obligation to ensure the defendant is properly informed before the election ismade. The involves an assessment as to whether the defendant was properly advisedof the state of the case he or she faces, its strengths and weaknesses and the advantageand disadvantages of giving evidence.10 Trial counsel should also make it clear to thedefendant that the decision as to whether to give evidence is entirely that of thedefendant.11[15] Where errors in making less fundamental trial decisions are relied on, amiscarriage of justice will generally only occur if the decision in question was not onea competent trial lawyer would have made and if what actually happened may haveaffected the outcome.12[16] In the present case Mr Manirakiza alleges Mr Heaslip made two fundamentalerrors. First, he failed to advise Mr Manirakiza that the Judge could take thecomplainant's evidence into account in assessing Mr Manirakiza's guilt. Secondly, he8 R v Scurrah CA159/06, 12 September 2006.9 R v Hall [2015] NZCA 403, [2018] 2 NZLR 26 at [65].10 Weston v R [2019] NZCA 541 at [42].11 Nightingale v R [2010] NZCA 473 at [10].12 At [77].failed to advise Mr Manirakiza that he had the right to give evidence in his owndefence.[17] Mr Manirakiza also contends Mr Heaslip also made another error that mayhave affected the outcome of the trial. This is that he failed to ensure Mr Osie wasproperly briefed before he gave evidence. Had Mr Heaslip taken that step he wouldhave discovered Mr Osie was likely to give evidence about the remark that he heardthe complainant make. This undermined the defence in a significant way. HadMr Heaslip become aware of what Mr Osei was likely to say he would not have calledMr Osei as a witness and Mr Manirakiza would have given evidence in his owndefence instead.Failure to advise Mr Manirakiza the Judge could take the complainant's evidenceinto account[18] Mr Manirakiza said in his affidavit filed in support of the appeal that hebelieved the case would be decided on the basis of the evidence given by independentwitnesses. He therefore did not know the Judge would take into account the evidencegiven by the complainant. He did not become aware that his understanding wasincorrect until he obtained advice from counsel representing in relation to the presentappeal.[19] Mr Heaslip disputes Mr Manirakiza's evidence on this point. He saysMr Manirakiza always understood the prosecution would be relying largely on thecomplainant's evidence and that the Judge would be taking it into account.[20] I have no hesitation in accepting Mr Heaslip's evidence on this point.Furthermore, prior to the trial Mr Manirakiza provided Mr Heaslip with a statement inwhich he set out his version of events. The affidavit began with the following passage:1. I am writing the present affidavit in response to the statement madeby [], the plaintiff, before New Zealand Police and subsequentcharges levelled against me in the proceedings before The WaitakereDistrict Court CRN 180-9000-5236.2. The allegations put forward by the plaintiff are absolutely false. I willdraw in this affidavit undisputable evidence proving that theallegations are unfounded and constitute a clumsy distortion of events.[21] This passage demonstrates quite clearly that Mr Manirakiza knew he neededto counter the allegations made by the complainant. Mr Manirakiza was also presentwhen the complainant gave her evidence by CCTL link as the first witness for theprosecution. I have no doubt he was well aware the Judge would be taking herevidence into account in making his decision. No other witness was able to giveevidence for the prosecution about the central events that took place on the night ofthe incident giving rise to the charges. This ground of appeal has no merit.Failure to advise Mr Manirakiza of his right to give evidence[22] Mr Manirakiza contends Mr Heaslip never advised him he had the ability togive evidence at the trial. If he had been given that opportunity he would have toldthe Judge that the complainant abused him verbally and attacked him physically as hewalked down his driveway. His associates then intervened to stop that attack. Hewould also have denied touching the complainant on either the shoulders or thebreasts.[23] In his affidavit filed in support of the appeal Mr Manirakiza deposes:72 I also did not realise that I could have stood up in Court and told theCourt what happened that night.73 Although Paul did speak to me about giving evidence, I thought thatthis meant having witnesses give evidence that support my version ofevents.74 When Paul told me that there was a case to answer, I thought that mywitnesses would answer it for me.75 The Judge did not speak to me about standing up in Court and givingmy version of events.78 I have not been through a trial before in New Zealand.79 I am not a lawyer, so I am unaware of the process.83 [If] I had known what I meant to give evidence in my case [sic], thenI would have told the Court for myself, what happened.[24] Mr Heaslip disputes these assertions. He says Mr Manirakiza was well awarehe had the right to give evidence and decided on advice not to do so. He says theyagreed there were dangers in Mr Manirakiza giving evidence because this riskedMr Manirakiza being cross-examined about his acrimonious relationship with thecomplainant. Mr Heaslip was also concerned Mr Manirakiza would become agitatedor angry during cross-examination and this may affect the way in which the Judgeviewed his evidence. He deposes:70 I completely refute the suggestion that Mr Manirakiza did not realisethat he could give evidence. We had a number of discussions aboutthat, including the potential benefits and negatives associated withthat decision over my time acting for him. That included the twohours and 15 minutes or so between the conclusion of the prosecutioncase and the defence case. I advised him that the decision of whetherhe gave evidence or not was completely up to him. I also said thatjust because he gave evidence did not mean he had to prove anything.Similarly, if he did not give evidence that could not count against him.However, I did say that in this case I believed there was a case torespond to, and that unless there was some evidence from the defence(either from him and/or another witness) that the Judge may notentertain a reasonable doubt about the account the complainant hadgiven. It was in that context that I discussed the particular advantageof Mr Osei giving evidence in this case for the defence alone (for thereasons discussed above at particular 51-53).71 I told him that in this case, the advantage of his evidence was that hecould completely refute the complainant's account, as being presentfor the entire incident. However, the disadvantages in this case wereas I set out above at 53. The Police Officer who attended alsodescribed him as heavily intoxicated. Mr Manirakiza would be opento cross-examination about his history with the complainant, whichmight agitate him in giving evidence and not make him the bestwitness. However, I said in this case, we had the opportunity to callMr Osei, and that there was a real advantage to calling him becauseof his ability to undermine the complainant's account of the locationof the incident – assuming he said what we thought he was going tosay.72 I impress upon all of my clients the importance of the decision as towhether to give or call evidence. Despite the difficulties weexperienced in trying to locate defence witnesses, I gave my adviceon this issue carefully and thoroughly, as I always do.[25] Mr Heaslip says Mr Manirakiza agreed with his advice that there were risks ingiving evidence and that Mr Osei would be able to provide the Judge with evidenceabout the role the complainant played in the incident. He then recorded the outcomeof this discussion in a written instruction that Mr Manirakiza signed. This was asfollows:I Emmanuel Manirakiza confirm and instruct:1. I have heard the prosecution case.2. Paul advises me there is a case to answer. In short she says I grabbedher boobs & was on her property. The officer gave evidence there wasa valid trespass notice.3. I understand I have a right to give evidence but no onus of proof.4. I want to call Osei & Tigre.5. Osei is available & will be here at 2.15 pm.6. Paul and I try and find Tigre's number.7. We are still trying to track down Olivier but if we cannot locate himthen we will flag him.(Emphasis added)[26] I accept Mr Heaslip's evidence regarding the advice he gave to Mr Manirakizaabout his right to give evidence. It is in line with what one would expect of anyreasonably competent defence counsel and is supported by the written instructionsMr Manirakiza signed at the close of the prosecution case. I have no doubt thatMr Heaslip advised Mr Manirakiza fully regarding the risks and rewards associatedwith him giving evidence, and that Mr Manirakiza made an informed decision not togive evidence. He did so on the basis of his understanding that Mr Osei would begiving evidence to support the defence case.[27] This ground of appeal fails as a result.Failure to properly brief Mr Osei's evidence[28] At an early stage Mr Manirakiza identified several persons who might be ableto give evidence for the defence in relation to the charge of indecent assault. Theseincluded Messrs Olivier Mugisho and Kwame Osei, who were in the car at the top ofthe driveway when they heard yelling down the driveway. They both came down thedriveway to see what was happening. Mr Mugisho had been charged with assaultingthe complainant and Mr Manirakiza's bail conditions prohibited him from having anycontact with Mr Mugisho before trial.13[29] Mr Heaslip acknowledges he was aware these witnesses could give evidencethat was potentially relevant to the charge. There is a conflict in the evidence as towho assumed responsibility for contacting the witnesses and ensuring they would beavailable to give evidence at the trial. Mr Heaslip says he was unable to contact thewitnesses using the telephone numbers provided by Mr Manirakiza and understoodMr Manirakiza would be contacting them. Mr Manirakiza says he believedMr Heaslip was making contact with the witnesses.[30] I suspect the answer lies somewhere in the middle. There is certainly evidenceto suggest Mr Heaslip agreed to contact the witnesses because he sent Mr Manirakizaan email to that effect on 15 July 2019. He also confirmed he spoke to Mr Mugisho'scounsel about the prospect of Mr Mugisho giving evidence for the defence.[31] At the very least, however, I consider any reasonably competent defencecounsel would have contacted Mr Manirakiza not later than the week prior to the trialto ensure he had matters in hand. If Mr Heaslip had then discovered Mr Manirakizahad not been in contact with the witnesses he would still have had sufficient timebefore trial to ensure the witnesses were briefed and available to give evidence thefollowing week. As it turned out, the fact that the witnesses were not at court did notbecome apparent until the morning of the trial.[32] Mr Heaslip and Mr Manirakiza spoke to Mr Osei by cellphone on the morningof the trial. During this discussion Mr Osei agreed to give evidence but said he couldnot come to court until later in the day. he also outlined in broad terms the evidencehe could give. This was that the complainant was the aggressor during the incidentthat led to the charge, and that the altercation occurred on Mr Manirakiza's side of thedriveway rather than near the complainant's carport as she alleged. Mr Heaslipproposed to rely on Mr Osei's evidence about these issues to submit that thecomplainant's evidence about Mr Manirakiza touching her breasts was unreliable.13 It appears that the charges against Mr Mugisho have now either been withdrawn or dismissed.[33] Mr Osei did not mention during this discussion that the complainant had saidMr Manirakiza had touched her. Nor is it surprising that Mr Heaslip did not askMr Osei directly about that issue because the complainant's statement to the police didnot contain any reference to her having made the remark.[34] The prosecution case finished at 11.45 am and the Judge then took the morningadjournment. When court resumed Mr Heaslip advised the Judge that Mr Manirakizaelected not to give evidence but would be calling Mr Osei, who would not be availableuntil 2.15 pm. The Judge then adjourned with some reluctance until 2.15 pm.[35] Mr Osei had agreed to be at Court by 2 pm that day. He did not arrive until2.15 pm when the hearing was scheduled to resume. Mr Heaslip sought a shortadjournment so he could discuss Mr Osei's evidence with him but the Judge directedhim to call his witness. This meant Mr Heaslip had no further opportunity to briefMr Osei's evidence before he gave evidence.[36] After describing in evidence-in-chief how Mr Manirakiza had left the vehicleand walked down the driveway Mr Osei gave the following evidence:Q. Just in your own words, describe what happens next?A. So I stopped the car, Emmanuel got out of the car, he's walking downto his house and then whilst me and Olivier was talking in the car wesee a noise, yelling noise, so Olivier told me, "Oh I think there'ssomething going on." So we got out of the car, the lady Emmanuelneighbour holding Emmanuel by the throat saying that, "Emmanuel hastouched her."[37] Later during examination-in chief Mr Heaslip returned to the issue of what hadoccurred when Mr Osei arrived on the scene. At this point the following exchangeoccurred:Q. How did you try and calm her down?A. We told – I told her personally, "Please calm down, we can solve this.It doesn't need to resolve in violence, we don't know what happened,"but the lady was say that Emmanuel have touched me, and I said, wesaid, "We didn't see him touching you. All that we've seen now isyou holding his throat. Please calm down."Q. When she said, "Emmanuel has touched me," what did youunderstand that to mean?A. I don't know where he means, she means by that, that Emmanuel havetouched her.Q. Mm.A. That's what she claimed. I wasn't there that what happened.[38] Not surprisingly, the prosecutor also directed Mr Osei's attention to what thecomplainant had said during cross-examination:Q. So when you made the enquiry about what was happening, whypeople were upset, she spontaneously said, "It was because he touchedher"?A. That's what she said.Q. That's what she saidA. Yes.[39] Mr Osei's evidence on this issue obviously came as a complete surprise toMr Heaslip. He was also under no illusions as to its likely impact on the Judge. Hetherefore sought further instructions from Mr Manirakiza as to whether he wished tochange his plea after Mr Osei had completed his evidence. Mr Manirakiza elected tomaintain his plea of not guilty.[40] Mr Mushigo was working that day and could not attend court. After Mr Oseihad given evidence Mr Heaslip applied to the Judge for leave to adduce Mr Mushigo'sevidence by telephone link but the Judge declined the application. The Judge alsodeclined an application by Mr Heaslip for an order that he be permitted to produce acopy of a written statement Mr Mugisho had made to the police. Mr Heaslip thenmade closing submissions and the Judge delivered his decision.[41] I accept that nothing in the complainant's prior statements or her evidence attrial would have alerted Mr Heaslip to the prospect that she may have told Mr Oseiand Mr Mugisho that Mr Manirakiza had touched her. However, Mr Osei volunteeredhis evidence about that issue as soon as Mr Heaslip asked him what happened after heand Mr Mugisho approached Mr Manirakiza and the complainant in the driveway.This suggests he would have disclosed it to Mr Heaslip if he had briefed Mr Osei'sevidence in any detail before he gave evidence.[42] Events beyond Mr Heaslip's control clearly prevented Mr Heaslip frombriefing Mr Osei's evidence in any meaningful way on the day of the trial. I amsatisfied, however, that Mr Heaslip should not have left it until the day of the trialbefore attempting to brief the evidence. Mr Osei appears to have been readilycontactable on the day of the trial and there is no apparent reason why that would nothave been the case during the days leading up to the trial.[43] It may also have been possible for Mr Heaslip to have obtained leave from theJudge to allow Mr Manirakiza to give evidence after Mr Osei had given his evidenceeven though he had earlier told the Judge Mr Manirakiza would not be givingevidence. There is no way of knowing whether the Judge would have permitted thisto occur, but it was probably the only practicable means by which to salvage thedefence after Mr Osei had given his evidence. Mr Manirakiza does not rely on this asan additional error by Mr Heaslip, however, so I take it no further.[44] The fact that Mr Osei gave evidence about what the complainant said cannotconstitute a miscarriage of justice because there is nothing to suggest he was not tellingthe truth. However, if Mr Heaslip had known Mr Osei would give that evidence hewould obviously not have called him as a witness. In that event he and Mr Manirakizawould have been required to reconsider the issue of whether Mr Manirakiza shouldgive evidence. The instructions that Mr Manirakiza signed at the conclusion of theprosecution case recognised that there was a case to answer.14 In all likelihood thatwould also have been clear prior to the trial. If Mr Osei was not to be called as awitness Mr Manirakiza would have had little option but to give evidence himself tocounter the evidence given by the complainant even though this gave rise toappreciable risk.[45] I have therefore concluded that Mr Heaslip's failure to brief Mr Osei'sevidence prior to the trial was an error that directly affected Mr Manirakiza's decisionnot to give evidence in his own defence. If the error had not been made Mr Manirakizawould in all probability have elected to give evidence because he had no other meansof countering the complainant's version of events. The Judge would then have been14 Set out above at [25].faced with two competing accounts. It would therefore have been necessary for himto determine whether he was sure the complainant was telling the truth or whetherMr Manirakiza's evidence left him in a state of reasonable doubt. The Judge may wellhave decided in favour of the complainant but I have no means of determining that inthe present context.[46] The error has therefore created a real risk that the outcome of the trial wasaffected. This constitutes a miscarriage of justice in terms of s 232(2)(c) of the Act.Result[47] The appeal against conviction is allowed. The conviction and sentence are setaside, and I make a direction under s 233(3)(b) of the Act that a new trial is to be heldin the District Court.Lang J