H (CA42/2018) v R (Reasons) [2019] NZCA 47

H (CA42/2018) v R (Reasons) [2019] NZCA 47 [12 March 2019]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA42/2018[2019] NZCA 47BETWEEN H (CA42/2018)AppellantAND THE QUEENRespondentHearing: 12 February 2019Court: Miller, Simon France and Peters JJCounsel: AJD Bamford and E J Riddell for AppellantK S Grau for RespondentJudgment: 14 February 2019 at 11.30 amReasons: 12 March 2019JUDGMENT OF THE COURTA The application for extension of time is granted.B The application to adduce fresh evidence on appeal is granted.C The appeal is allowed. We quash the appellant's convictions and order aretrial.D The record of the first warning given to the appellant by the District Courtat Nelson on 23 May 2017 is cancelled in respect of the convictionsquashed.E H's name is to be removed from the Child Sex Offender Register.F Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of retrial.Publication in law report or law digest permitted.G Questions of bail are to be addressed in the District Court.H The appellant is remanded to appear in the District Court at Nelson onFriday, 22 March 2019 at 10.00 am.____________________________________________________________________REASONS(Given by Miller J)[1] This is an appeal against conviction for sexual violation by unlawful sexualconnection and indecent assault of a child under 12.1 The appellant says that histrial counsel failed him in various ways and the trial Judge responded inadequately tothe prosecutor's improper commentary upon his election to remain silent. We allowedthe appeal after the hearing and ordered a retrial. These are our reasons. We confinewhat we have to say to the grounds on which the appeal was allowed.[2] In accordance with usual practice in a counsel error case, we have heardevidence about the trial and dealings between the appellant and his counsel,Mr Stevenson. Both men were cross-examined before us.The alleged offending[3] The appellant was a boarder at the home of the then 11-year old complainantand her mother. The three charges all concern a single incident. The Crown alleges1 Crimes Act 1961, ss 128(1)(b) and 132(3).that she was sitting on the lounge floor folding pamphlets one evening, when hermother was out of the room. The appellant massaged her shoulders then put his handsdown her top and touched her breasts. He next rubbed her genitalia over herunderwear before pushing his finger inside the labia through her underpants.[4] The appellant denies that the offending happened. He says that thecomplainant resented him, especially because he was called upon to supervise her inher mother's absences from the home. He says that she threatened to set him up byfalsely accusing him of paedophilia.[5] On advice from Mr Stevenson, the appellant declined a police interview.That decision is not challenged. It meant, however, that the appellant could not relyon an interview to put his account before the jury in this she-said, he-said case, and sofaced an incentive to give evidence.Previous convictions[6] The appellant has two prior convictions for indecent assault. They occurred in1999 and 2000 and involved adult women. It appears that the Crown signalled itsintention to have the convictions admitted as propensity evidence but did not pursuean application. It was not suggested before us that the convictions were admissible onthat basis.Election not to give evidence[7] There was a good deal of evidence before us about the extent ofMr Stevenson's trial preparation, but we need not review that. What matters is thatthe appellant elected not to give evidence on advice from Mr Stevenson that he waslikely to put his character in issue and so allow the prosecutor to adduce his previousconvictions. After the Crown case closed he signed instructions accordingly.They stated:(1) On talking through many issues since September 2015 I acceptbecause of various issues in my past including my character, I run areal risk of damaging my case if I were to give evidence.(2) On discussion with Mr Stevenson about his closing I continue to agreethat I will not give evidence nor call evidence.[8] The reference in (1) to issues in the appellant's past, including his character,concerns his previous convictions. The reference in (2) to discussions withMr Stevenson about his closing reflects counsel's advice that headway had been madein advancing the defence case.[9] Mr Stevenson explained before us that he was concerned the appellant wasprone to offer information that he thought useful and might well "blurt out" claimsthat would allow the prosecutor to adduce his convictions. We accept that he toldthe appellant that. Mr Stevenson did not say, however, that he explained to theappellant how this might happen. Nor did he suggest before us that he thought theappellant would make such claims in his evidence-in-chief, if aware of the importanceof not doing so. His concern was that the appellant would be easily provoked in cross-examination.[10] We accept that if asked, the appellant would have denied adamantly that he hasa sexual interest in young girls. Having observed him ourselves, we agree withMr Stevenson that he might well have tried to bolster his defence by volunteering thathe worked with young people and had been trained to keep himself safe around them.He might have said that for that reason he resented the complainant's mother's practiceof leaving the girl in his care. This would have opened up an interesting line ofcross-examination.[11] The appellant would have needed to go further, though, to expose himself tocross-examination on his prior convictions. That would have to be justified under theveracity provisions of the Evidence Act 2006.2 An application to lead veracityevidence in response to an answer that the prosecutor has elicited in cross-examinationwould require the trial Judge's permission under s 38(2)(b). Mr Stevenson wasconcerned that the appellant would naively fall into a trap set by the prosecutor andclaim that he had never behaved inappropriately toward any female. However, it ismost unlikely that convictions would be permitted into evidence in response to that2 Evidence Act 2006, ss 37–39.claim.3 This Court has recognised that it would be contrary to the objective of s 38 topermit a prosecutor to offer veracity evidence in such circumstances.4[12] Nor have we been pointed to any reason to suppose that the appellant's priorconvictions would have been "substantially helpful" for the purposes of s 37. We haveaccepted that he would have denied a sexual interest in young girls. The convictionsare not evidence to the contrary. They could not be admitted as propensity evidence,but there is a risk that the jury might use them in that way.[13] It does not appear that Mr Stevenson considered these issues, and he certainlydid not advise the appellant about them. The advice that counsel did give conveyedthat the risk of the prior convictions entering the evidence was real. On the view wetake, the risk was remote.[14] That is sufficient to establish that a miscarriage has occurred.5 The decisionwhether to give evidence is one of the most important made at trial.6 It wascompromised here because the appellant has shown that he elected not to giveevidence in reliance on materially erroneous advice about what would happen if hedid.Comment on failure to explain[15] Part of the defence case was that the complainant had previously threatened toset the appellant up by falsely accusing him of paedophilia. This was properly put toher, consistent with counsel's instructions, but she denied it. In closing, the prosecutor,Mr O'Donoghue, made the following statement:And you might think and you're perfectly entitled to exercise your right tosilence but you might think that if someone had genuinely threatened to set3 If elicited by the cross-examiner, this claim to veracity would be offered in evidence by the Crown,not the defence: Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act andAnalysis (4th ed, Thomson Reuters, Wellington, 2018) at [EV 4.29.01].4 R v Lahina [2008] NZCA 251.5 Criminal Procedure Act 2011, s 232(2); R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730at [70].6 In Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65] it was characterised as one of threefundamental decisions made at trial (the others being plea and whether to advance a defence basedon the defendant's view of events). That case established that a failure to follow instructions aboutsuch a decision will generally cause a miscarriage of justice. Also see Loffley v R [2013] NZCA579; and Tarring v R [2016] NZCA 452.you up, that when the police want to speak to you, you might say, "Hang on aminute, you need to know that girl has threatened to set me up." Unless, ofcourse, that is something that you have just dreamed up or fabricated sincethen.[16] This was an improper comment on the appellant's failure to tell the policeabout the alleged setup when he had the opportunity to do so.7 The furthest thatMr O'Donoghue could properly go was to note that there was no evidence to supportthe proposition.[17] The question is whether the Judge's directions dealt adequately withthe prosecutor's error. Ms Grau submitted that they did. The Judge referred severaltimes to the right to silence:8[16] Now among the material that you will have will not be anything from[H]. Now, I want to say right now, and say it out loud, there is no obligationon him to say anything in this Court. There was no obligation on him to sayanything to Detective Collins, and in fact you will recall that she was verycareful to tell him that he had the right to remain silent. Now it would benonsense to say that on the one hand you have a right to silence, but on theother you should have said something. The two just do not sit, and it is a rightnot a privilege. He has the right to say nothing, and each of us has that sameright, and you must not, you must not draw any inference against this manbecause he did not speak to the police, and because he did not give evidencehere today. He is simply exercising a right, and that is the way you shouldview that and no other way.[42] In this case, as you know, [H] gave no evidence, and I have alreadytold you, I hope in very stern terms because it needs to be, that nothing turnson that. You must not assume he is guilty because he did not give evidence.He was not obliged to and, as I said before, there is no point having a right tosilence if someone can then criticise you for simply exercising that right. Bearin mind at all times it is for the Crown to prove, not for the defence to disprove.[18] But when dealing specifically with the prosecutor's statement the Judge wasless emphatic than he ought to have been:[58] Mr O'Donoghue made a comment about this question of being set up,and raised a perhaps rhetorical question as to why a person in [H's] positionwould not offer that up to the police if he was aware of someone saying theywould set him up. As I have said to you before, the right to silence is absolute,7 Evidence Act, s 32; McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467; and Smith v R[2013] NZCA 362, [2014] 2 NZLR 421.8 R v [H] HC Nelson CRI-2015-042-1733, 23 May 2017.and I ask you to be cautious about anything that tends to fudge those lines thatis probably not helpful.[19] The last sentence arguably gave the jury permission to place some weight onMr O'Donoghue's remark. The Judge ought to have told them that the prosecutor hadno right to make it and they must disregard it.[20] It may be that this would not occasion a miscarriage if it were the only issueon appeal. The Judge did emphasise the right to silence in interview and at trial. Butthe issue does highlight that in the circumstances of this case there may have beengood reason for the appellant to give or call evidence. He wanted to explain why thecomplainant made her story up, and she was unlikely to admit that she had done so. Itreinforces our view that counsel's advice to remain silent at trial was material.Result[21] The following is the results judgment issued after the hearing.A The application for extension of time is granted.B The application to adduce fresh evidence on appeal is granted.C The appeal is allowed. We quash the appellant's convictions and order a retrial.D The record of the first warning given to the appellant by the District Court atNelson on 23 May 2017 is cancelled in respect of the convictions quashed.E H's name is to be removed from the Child Sex Offender Register.F Order prohibiting publication of the judgment and any part of the proceedings(including the result) in news media or on the internet or other publiclyavailable database until final disposition of retrial. Publication in law report orlaw digest permitted.G Questions of bail are to be addressed in the District Court.H The appellant is remanded to appear in the District Court at Nelson on Friday,22 March 2019 at 10.00 am.Solicitors:Crown Law Office, Wellington for Respondent