G (CA403/2021) v R [2021] NZCA 623

G (CA403/2021) v R [2021] NZCA 623 [24 November 2021]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 AOTEAROACA403/2021[2021] NZCA 623BETWEEN G (CA403/2021)ApplicantAND THE QUEENRespondentCourt: Goddard, Woolford and Mander JJCounsel: N P Bourke for ApplicantP D Marshall for RespondentJudgment:(On the papers)24 November 2021 at 3.00 pmJUDGMENT OF THE COURTA An extension of time to apply for leave to bring a second appeal againstconviction is granted.B The application for leave to bring a second appeal against conviction isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)Introduction[1] On 12 June 2020, G1 was convicted of two charges of burglary, two charges ofrape, and one charge of sexual violation by unlawful sexual connection, followinga Judge-alone trial in the Whanganui District Court.2 Judge Crayton sentenced G to14 years' imprisonment, with a minimum period of imprisonment of seven years.3[2] G appealed against his conviction to the High Court. The appeal was heardbefore Grice J on 24 March 2021.4 He advanced three grounds of appeal: lack of a freeand informed choice as to the mode of trial based on inadequate advice from trialcounsel; failure of counsel to cross-examine on important aspects of the defence case;and failure to properly put the defence case to the Court. The Judge dismissed theappeal.5 As to the first ground, Grice J found that trial counsel's advice was adequate,based on impression and experience, and that he made no error.6[3] G now applies to this Court for leave to bring a second appeal againstconviction. He advances only one ground of appeal in this Court. He submits thata miscarriage of justice has occurred because he received erroneous legal advice, andtherefore did not make an informed decision when changing his original election froma jury trial to a Judge-alone trial.[4] The Crown opposes the application for leave to appeal.Extension of time to appeal[5] G's application for leave to appeal is filed out of time. Mr Bourke, counsel forG, submits that the delay is attributable to the time taken to obtain an opinion from1 G does not presently have name suppression. Notwithstanding, we have anonymised thisjudgment, following the approach in H v R [2019] NZSC 69, [2019] 1 NZLR 675 at [54]–[58] toenable it to be published without identifying the complainant.2 R v [G] [2020] NZDC 10945 [District Court reasons judgment].3 R v [G] [2020] NZDC 15722 [Sentencing notes] at [48].4 G v R [2021] NZHC 695 [High Court judgment].5 At [99].6 At [47].senior counsel on the merits of the appeal, when senior counsel was under themisapprehension that a "placeholder notice" had been filed. He notes that G hasalways wished to bring a second appeal.[6] While the Crown opposes the application for leave to appeal, it does not appearto oppose the application for an extension of time. Nor does the delay cause the Crownany prejudice. It is therefore in the interests of justice to hear the application.The offending[7] G is the uncle of the 15-year-old complainant (B). B's father is G's brother.B's parents formerly provided support to G, his partner and their children. Over time,however, their relationship became strained as a result of the behaviour of G and hispartner. This culminated in an altercation between G and his brother. On 27 January2016, G was trespassed from his brother's address by the police for a period of twoyears.[8] On 1 July 2016, G committed a burglary at his brother's address, for which hewas charged and convicted. He explained that the purpose of the burglary wasrevenge.[9] On two occasions in 2017, G entered his brother's address during the schoolholidays when B was home alone. On the first occasion in April 2017, G attacked andraped B in the hallway of the address. He told her "This is revenge". B mentionedthis incident to her then boyfriend but requested that he not tell anyone what hadhappened.[10] The second occasion occurred a few months later. G once again entered theaddress and accosted B. This time, he forced B onto a couch in the lounge and sexuallyviolated her by raping her and by penetrating her anus with his penis. B alsomentioned this incident to her then boyfriend, but was adamant that he could notdisclose that information. She feared that doing so would encourage G to act on histhreats to hurt them.[11] In September 2017, B attempted suicide. While at the hospital, B's thenboyfriend told B's parents that she had been raped by G. When B woke up, sheconfirmed this had happened. Police were notified and conducted an evidential videointerview with B. Following this, G was charged.The procedural history behind G's change of election[12] In January 2019, G elected a trial by jury. There is no dispute that this was hispreference. The jury trial was due to commence on 25 May 2020. However, the jurytrial was unable to proceed due to COVID-19 restrictions. The trial was postponed.G remained in custody.[13] G's trial counsel, Mr Waugh, called him to inform him that the trial had beenpostponed. The call took place by way of audio-visual link as no visitors werepermitted in prison at the time. Mr Waugh advised G that he was unsure when jurytrials would resume.[14] Mr Waugh confirmed his advice to G in a letter dated 5 May 2020. In the letter,he explained that due to the COVID-19 pandemic all jury trials had been postponeduntil at least 1 August 2020. Mr Waugh advised G that the trial:4. would be adjourned until the next available date. It is unknownwhen that would be but it could potentially mean another yearremanded in custody awaiting trial.5. If however you chose to change your election to Judge Alone Trial,your trial could proceed on the 25th of May.6. The decision to change your election is entirely up to you, we havediscussed your case and various matters that may influence yourdecision.[15] Mr Waugh then set out the Crown case. He explained that the evidence waslimited to B's evidential interview and some corroboration by other witnesses.There were no eye-witnesses, nor any DNA evidence. Mr Waugh said that the verdictwould come down to B's credibility, particularly under cross-examination. He advisedthat:12. As discussed, a Judge alone is potentially just as well placed as a jury,or better placed, given his experience assessing whether witnesses arelying to assess credibility. The judge who would hear your JudgeAlone Trial (Crayton) is a particularly fair judge. We also discussedthat there was perhaps some risk with a jury that they would beinfluenced by [B] being "a little girl in tears" and may be unable toassess her evidence as coldly and clinically as a Judge.13. We have discussed these matters at length, and as I understand it, youwish to have this matter resolved sooner rather than later and feel thatthere are benefits of either jury or judge alone trial. You maintain yourinnocence and feel that a Judge will see that [B] is lying.Your instructions14. Ultimately, it is your choice whether to change your election to Judgealone trial.15. If you change your election to Judge alone trial, your trial will proceedin the week of 25 May.[16] Mr Waugh has sworn an affidavit in this proceeding. He acknowledgesadvising G that it may be a year before a jury trial could proceed. Mr Waugh says that,at the time, he was unsure whether this time frame was realistic, or whether the delaymay be even longer. Prior to advising G, he deposes that he sought advice from theRegistry and other court users.[17] Mr Waugh noted that he did not discuss the prospect of re-applying for bail onthe basis of a change in circumstances, being an unknown delay before a trial couldproceed. G had previously been denied both ordinary bail andelectronically-monitored bail by the District Court. On appeal, the High Court grantedbail. However, G breached the terms of his bail and was remanded in custody.Mr Waugh says that he thought a further bail application was hopeless:At the time I was advising [G], I had recently been declined bail for anotherclient on appeal, where bail had been sought on the basis of delay due toCOVID, supported by a far stronger application than I believed could havebeen made for [G]. In this context, I did not see that [G] had any chance ofbeing granted bail, but I accept I should have discussed this with him further.[18] Some time later, G returned a signed copy of the letter to Mr Waugh, instructinghim to change his election to a Judge-alone trial. The Judge-alone trial was heldbetween 25 and 29 May 2020. Judge Crayton found G guilty of the offending ina 144-paragraph decision delivered on 12 June 2020.77 District Court reasons judgment, above n 2.The High Court decision under appeal[19] G advanced three grounds of appeal in the High Court.8 He wishes to maintainonly one of the three grounds on a second appeal — that there was an absence of a freeand informed choice as to the mode of trial such as to give rise to a miscarriage ofjustice, based on inadequate advice from trial counsel.9[20] Grice J emphasized that the right to elect a jury trial is one of the mostfundamental rights in the criminal justice system.10 The Judge considered that thechallenge was to the quality of advice received, as G knew that he was able to choosebetween trial modes.11[21] The Judge noted that, at the time, no one knew how long the delay caused byCOVID-19 restrictions would be.12 In light of that, she considered that Mr Waugh'sadvice did not undermine G's informed choice.13 The Judge also did not consider thatthe failure to mention bail during the discussions was an error, given the improbabilityof an application for bail succeeding.14 When considering the content of the advice,Grice J found that Mr Waugh gave proper advice on the options:[44] While he may not have set out the advantages and disadvantagesin his letter explicitly, that is not what is required. What is required is properadvice about why one mode of trial may be preferred over the other and ingeneral terms the defendant should be informed of the options. It is clear thatthe letter followed lengthy discussions of the options.[45] In this case it is also noteworthy that Mr Waugh's advice reflected thatwhich senior counsel advice in S (SC 36/2018) v R says she would have givenhad she been required to give the: that a Judge alone trial might be preferable"in extreme" sexual offending.[22] The Judge therefore dismissed this ground of appeal.15 The other grounds ofappeal were also rejected.168 High Court judgment, above n 4, at [15].9 At [15(a)].10 At [20].11 At [36].12 At [35].13 At [39].14 At [38].15 At [49].16 At [99].Approach to applications for leave to bring a second appeal against conviction[23] A convicted person may, with the leave of the second appeal court, appeal tothat court against the determination of the person's first appeal.17 Leave must only begranted where:18(a) the appeal involves a matter of general or public importance; or(b) a miscarriage of justice may have occurred, or may occur unless theappeal is heard.[24] In McAllister v R, this Court commented that there must be an argumentreasonably available that the court below was in error.19 That is subject to thequalification, however, that not every error will give rise to a miscarriage of justice.20The concept of a miscarriage of justice has particular relevance to an application forleave to appeal against conviction.21Applicant's submissions[25] Mr Bourke submits that Mr Waugh's advice about the degree of delay G facedwas incorrect, and that this meant that G's decision to change his election was notinformed because it was induced by trial counsel error. He submits that G's trial wouldhave been accorded priority because it involved a young complainant; allegations ofsexual offending; a defendant who was in custody; and somewhat historical offending(occurring three years prior). He notes that the Whanganui District Courtrecommenced jury trials on 17 August 2020.[26] Mr Bourke submits that Mr Waugh was aware of G's anxiety over the delay,and in that context championed the benefits of a Judge-alone trial and the particularjudge. He therefore submits that G's decision was influenced by negligent advice.The combination of this advice and the disadvantage arising out of COVID-19, hesubmits, effectively deprived G of his right to trial by jury. That result is unfair anda miscarriage of justice.17 Criminal Procedure Act 2011, s 237(1).18 Section 237(2).19 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37].20 At [38].21 At [38].Respondent's submissions[27] Mr Marshall, counsel for the respondent, submits that the criticism ofMr Waugh's advice is untenable. He submits that it pays no regard to theunprecedented circumstances faced by the country in responding to the COVID-19pandemic. On two occasions, the Chief Justice announced the suspension of jurytrials. In light of that, he submits, Mr Waugh's advice that it was not known when jurytrials would resume cannot be criticised.[28] Mr Marshall further submits that it is irrelevant that Mr Waugh did not adviseG that his trial would be prioritised in terms of scheduling. That is because there wasno way to know when jury trials would resume. G's concern was the possible time hewould be required to spend in custody, not whether his trial would be prioritised at theunknown time at when they would resume. He submits that even if it was appropriateto re-evaluate Mr Waugh's advice with the hindsight that a jury trial could haveoccurred that year, the advice was still adequate in correctly acknowledging the highdegree of uncertainty and emphasising the fact that the final decision was for G.[29] Mr Marshall submits that while the adjournment of G's trial precipitated thechange in election, that was not the only benefit of a Judge-alone trial raised byMr Waugh. Mr Waugh advised G that judges are experienced in assessing witnesses'credibility; that Judge Crayton was "a particularly fair judge"; and that there was somerisk a jury would be influenced by B being "a little girl in tears". These were alsorelevant factors in G's decision.Is there a reasonably available argument that a miscarriage of justice hasoccurred?The right to trial by jury[30] The right to elect a jury trial is of utmost importance. Section 24(e) of theNew Zealand Bill of Rights Act 1990 provides that everyone who is charged shall havethe right to the benefit of a trial by jury when the penalty for the offence is or includesimprisonment for two years or more. This is reinforced by s 50 of theCriminal Procedure Act 2011, which provides the procedural mechanism fordefendants charged with category 3 offences to elect a trial by jury.[31] In Siemer v Solicitor-General, the Supreme Court explained the significanceof the right to a jury trial:22[19] At this point it is necessary to consider the importance of the right totrial by jury in the criminal process. The primary and most important functionof the jury in a criminal trial is to determine the relevant facts of a case and toapply the law to reach a verdict of guilty or not guilty. In exercising thatfunction jurors bring a diverse range of perspectives, personal experiences andknowledge to bear in individual cases which judges may lack. As fact finders,jurors determine which of the admissible evidence presented at a trial is to bebelieved and acted upon. Juries ultimately decide whether the facts fit withina particular legal definition, according to community standards. In this waythey reflect the attitude of the community in their determination of guilt orinnocence.[20] The right to trial by jury is also generally seen as providinga safeguard against the arbitrary or oppressive enforcement of the law by thegovernment. It is a common perception that when jurors perceive thata prosecution has these characteristics they are likely to acquit. The same pointis made about trials where a law sought to be applied itself may be thought tobe arbitrary or oppressive by a jury. For these reasons the jury is seen asstanding between the accused and the state in a way that judges, who are swornto apply the law, are not always able to do.[32] In S v R, the Supreme Court reinforced the constitutional importance of theright to elect a jury trial.23 The Criminal Procedure Act was intended to simplify theprocedures relating to jury trials.24 The importance of jury trials was reflected by thefact the statutory scheme treats jury trials differently to Judge-alone trials.25The importance of informed choice[33] The right to a jury trial relies upon a defendant being able to make an informedchoice to elect a mode of trial. The Supreme Court commented that there are twoelements involved in a defendant making that informed choice:26The first goes to knowledge, that is, the defendant must know that he or shehas a choice as to the mode of trial. The second element goes to the advicea defendant should receive, that is, the right to take advice about the reasonsfor choosing one mode over another.22 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 (footnotes omitted).23 S v R [2018] NZSC 124, [2019] 1 NZLR 408 at [76]: the Supreme Court referred to the abovepassage from Siemer, and its decision in B (SC 12/2013) v R [2013] NZSC 151, [2014] 1 NZLR261 at [99] which explained that juries can act as the "conscience of the community".24 At [77].25 At [78].26 At [49].[34] In the context of a trial for alleged sexual offending, the Supreme Court statedthat there is no reliable basis on which it can be said that one mode of trial is fairerthan the other. There would necessarily be a degree of speculation about whethera jury or a judge may adopt differing approaches as the fact-finders.27[35] The Supreme Court considered that it was "difficult to review the reasons" formaking distinctions as to whether a judge or jury would likely favour the defendant'saccount of events in the circumstances of the case.28 While a defendant is entitled toan informed choice:29 it has to be recognised in considering the importance of the absence of thatchoice in this case that the advice that can be given about why one mode oftrial may be preferred over another is based on experience and impression.Analysis[36] There is no question in the present case that G was aware of his choice as tothe mode of trial. The issue is whether there is a reasonably available argument thatthe Judge erred by finding that no miscarriage of justice has occurred due to Greceiving erroneous legal advice, and therefore being unable to make an informeddecision when changing his original election from a jury trial to a Judge-alone trial.[37] There is some force in Mr Bourke's submission that G would have benefittedfrom Mr Waugh advising him that his trial would likely take priority when jury trialsrecommenced. The Solicitor-General's Guidelines for Prosecuting Sexual Violencestate that:30Avoiding delay8.1 Delays before trial can cause serious stress for complainants and otherwitnesses in sexual cases, where finality of the prosecution is a highpriority. Avoiding delay is therefore particularly important in thesecases, not only because it may improve the quality of a witness's27 At [53].28 At [55]–[56].29 At [56].30 Crown Law Solicitor-General's Guidelines for Prosecuting Sexual Violence (1 July 2019).evidence and participation in the trial, but also to achieve finality forcomplainants, which may in turn assist with their recovery.[38] The Law Commission noted that the courts take a similar view:313.34 Priority is afforded to certain kinds of cases when a court is setting itsroster for hearings. Under the District Courts' rostering protocol, thetrial of a case involving sexual violence must be given priority aheadof other kinds of hearings. Priority for sexual violence cases will bebalanced against the need to afford priority in other areas. Hearingsfor cases that are on a special list or hearings for sentencing of anoffender are given highest priority.3.35 The High Court currently identifies cases involving complainantsunder the age of 16 at the time the offending was committed and casesinvolving young defendants as having priority.[39] Had Mr Waugh advised G of this fact, the uncertainty may have been reducedto some extent. In particular, doing so may have helped alleviate some of G's anxietyresulting from being remanded in custody.[40] Nevertheless, we accept Mr Marshall's submission that the principalconsideration affecting G's choice was the time at which his trial could begin, notwhether his trial would be prioritised over others at that time. Even if Mr Waugh hadtold G that his jury trial would take priority, G's likely response would simply be toask when the jury trial could occur. That would inevitably lead to the same answer —that it was not known when jury trials would resume, and the delay may be quite sometime.[41] Given the unprecedented circumstances, Mr Waugh could not predict how longCOVID-19 restrictions would last, nor how the court would operate within thoserestrictions. Mr Waugh sought guidance from others, including the Registry, but asGrice J recognised "[d]ue to the COVID-19 restrictions, no one knew how long thedelay would be".3231 Law Commission The Justice Response to Victims of Sexual Violence (NZLC R136, December2015), citing Chief District Court Judge Doogue Rostering Protocol for District Courts ofNew Zealand (Ministry of Justice, 2014) at 4; and Letter from Geoffrey Venning(Chief High Court Judge) to Grant Hammond (President of the Law Commission) regardingAlternative Trial Practices (20 October 2015).32 High Court judgment, above n 4, at [35].[42] It perhaps would have been preferable for Mr Waugh to refrain from advisingG that electing a jury trial "could potentially mean another year remanded in custodyawaiting trial". Nevertheless, the crucial aspect of the advice was that there was noway to know when a jury trial could proceed. The addition of the period potentiallybeing one year appears to be an example used to illustrate to G that, given theuncertainty, if he wished to maintain his election of a jury trial he would need to beprepared for the possibility of being remanded in custody for an extended period oftime.[43] Further, there were other relevant considerations influencing G's choicebeyond the delay associated with a jury trial. Mr Waugh's advice canvassed thefollowing points that:(a) a judge alone was potentially just as well placed as a jury, or betterplaced, given their experience assessing whether witnesses are lying, toassess credibility;(b) Judge Crayton was in his view "a particularly fair judge"; and(c) there was perhaps some risk that a jury would be influenced by B being"a little girl in tears", and may be unable to assess her evidence ascoldly and clinically as a judge (who routinely deals with suchevidence).[44] As noted by Grice J, the points raised by Mr Waugh were matters of"experience and impression" that cannot be characterised as errors absent hindsight.33However, even with the benefit of hindsight, a guilty verdict does not necessarily meanthat any of the above points raised by Mr Waugh were incorrect. The trial judge is anexperienced District Court Judge who would be well placed to assess the credibilityof witnesses. Further, Mr Waugh's final point was consistent with that of seniorcounsel in S v R, who commented that where "the allegations involved particularlyupsetting or objectionable allegations — for example, sexual offending involving33 At [42]–[43], quoting S v R, above n 23, at [56].children, animals or 'extreme' sexual offending — I might recommend a [Judge-alonetrial]".34[45] We therefore do not accept Mr Bourke's submission that Mr Waugh improperlyextolled the benefits of a Judge-alone trial against the backdrop of warning G aboutthe possible lengthy delay. First, it would have been improper for Mr Waugh to refrainfrom advising G that there could be a delay. That delay was of concern to G, since hewas remanded in custody, and was a relevant consideration in his decision-making.Second, it would have been improper for Mr Waugh to refrain from mentioning theremaining benefits of a Judge-alone trial. G could never be in a position to make aninformed choice to elect a Judge-alone trial had he not been advised of the potentialbenefits of that mode of trial. Third, there is no need for Mr Waugh to also explain toG the benefits of a jury trial. What is required is advice as to "why one mode of trialmay be preferred over another".35[46] We further agree with Grice J that Mr Waugh did not err by failing to mentionthe possibility of re-applying for bail on the basis of a change in circumstances.While the length of time until trial is a relevant factor in considering an application forbail,36 it is only one of many factors. In G's case, the length of time until trial also hadlimited bearing upon the focal risks set out in s 8(1) of the Bail Act 2000. Further,Mr Waugh exercised his professional judgment in comparing G's case to that ofanother client, and concluding that G's application was highly likely to fail. It followsthat Mr Waugh's advice contained no error.[47] For the above reasons, we consider that there is no reasonably availableargument that a miscarriage of justice has occurred because G received erroneous legaladvice, and therefore did not make an informed decision when changing his originalelection from a jury trial to a Judge-alone trial.34 S v R, above n 23, at [54].35 At [56].36 Bail Act 2000, s 8(2)(f).Result[48] An extension of time to apply for leave to bring a second appeal againstconviction is granted.[49] The application for leave to bring a second appeal against conviction isdeclined.Solicitors:Crown Law Office, Wellington for Respondent