H (CA271/2019) v R [2020] NZCA 368

H (CA271/2019) v R [2020] NZCA 368 [27 August 2020]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF R, A CONNECTEDPERSON, PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT2011.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 AOTEAROACA271/2019[2020] NZCA 368BETWEEN H (CA271/2019)AppellantAND THE QUEENRespondentHearing: 28 July 2020Court: French, Woolford and Dunningham JJCounsel: C J Tennet for AppellantP D Marshall for RespondentJudgment: 27 August 2020 at 9 amJUDGMENT OF THE COURTA The application for an extension of time for filing the appeal is granted.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.D Order prohibiting publication of name, address, occupation or identifyingparticulars of R, a connected person, pursuant to s 202 of the CriminalProcedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] Following a short jury trial held in January 2019, Mr H was convicted ontwo representative charges of sexual violation (by rape and unlawful sexualconnection). He was sentenced to 13 years' imprisonment.1 He now appeals both hisconviction and sentence.[2] The appeal was filed approximately two months out of time. Mr H explainsthat delay as stemming from delays in being able to instruct a new lawyer (because hisappeal, in part, alleged counsel error) and because of being moved between prisons.[3] In those circumstances, the Crown does not oppose an extension of time.We accept the delay is reasonably explained and an extension is granted.2Factual background[4] In June 2013, when the complainant was aged seven, her mother moved toAustralia and she was left in the care of her father who lived in Wairoa.[5] Over the next 18 months, the complainant's father would regularly take herwith him to Mr H's house where he and Mr H would drink alcohol in a shed onthe property. She would play with Mr H's daughter, R, who was approximatelythe same age as her.[6] The complainant's evidence was that, during these visits, Mr H would driveher in a "little red car" to a shed at the top of a nearby hill. She said he would removeher clothing, place her on the bonnet of his car and digitally penetrate and rape her.She said this happened a lot of times and Mr H would tell her not to tell anyone.She did not think her father knew about Mr H taking her to the shed on the hill becausehe "was always getting drunk everyday" and, when she did disclose Mr H's abuse tohim, he did not believe her.1 R v [H] [2019] NZDC 4848 (Sentencing Notes).2 Under Criminal Procedure Act 2011, s 231(3).[7] In December 2015, the complainant went to live with her mother in Australiaand in early 2016 she disclosed Mr H's abuse to her. The complainant's mother thenraised this with her paediatrician and, as a consequence, the police became involved.[8] The complainant gave an evidential video interview (EVI) on 6 April 2017.In addition to describing Mr H's sexual abuse of her, she also alleged that her fatherstarted having sex with her within a couple of weeks of her mother leavingNew Zealand and, when she had sleep-overs with R, she had seen Mr H sexuallyviolating R while she was asleep.[9] In April 2018, Mr H agreed to participate in an evidential interview in whichhe firmly denied the allegations. When asked about owning a little red car he saidthe red Toyota Corona his partner owned was traded in when she bought a blackHolden.3 This happened before the offending was alleged to have occurred.[10] Following the interview, Mr H was charged with a representative charge ofsexual violation of the complainant by rape and a representative charge of sexualviolation by unlawful sexual connection.The trial[11] The charges went to trial in late January 2019. Mr Maynard, a Gisborne-basedlawyer acted for Mr H. Mr Maynard spoke with Mr H several times by telephone priorto the trial and provided him with a full copy of police disclosure. However, Mr Hmissed scheduled meetings with Mr Maynard and, in the end, Mr Maynard travelledto Mr H's home in Wairoa on 11 January 2019 to discuss the case. On that occasion,they visited the site where the abuse was said to have occurred. Mr Maynard alsospoke to Ms P, Mr H's partner, and asked her to get proof that she had traded in herred Toyota Corona vehicle prior to the complainant's mother going to Australia, as theuse of a small red car was a distinctive aspect of the complainant's evidence. There3 The vehicle model has been referred to as both a Corolla and a Corona. The Crown uses the termCorolla, and Mr H referred to it as a Corolla in his video interview. Mr Maynard uses the termCorona. At trial, Detective Jones confirmed that the purchase agreement for the Holden showeda Toyota Corona was traded as part of that transaction. We adopt the term Corona.was a further meeting between Mr Maynard and Mr H at Mr H's home in late January,shortly before trial.[12] The trial commenced on Wednesday 23 January 2019. The Crown calledthe complainant, whose evidence-in-chief was given primarily through playing herEVI. The complainant's EVI had been edited to remove allegations that she had beensexually abused by her father, and that her father and Mr H had used drugs, butthe defence did not seek to exclude the complainant's claims of having seen Mr Hsexually violate his own daughter.[13] The Crown also called the complainant's mother and Detective Joshua Jones,who produced the complainant's EVI and the DVD recorded interview of Mr H.Detective Jones also gave evidence that he made a check on the police system,the National Intelligence Application (NIA), looking for vehicles that were linked tothe defendant. He said he found that in 2003 Mr H was stopped in Wairoa drivinga red Ford Laser and given a ticket for not wearing a seatbelt. The vehicle wasregistered to Ms P, Mr H's partner.[14] The defence case was that the allegations were fabricated. Mr Maynard reliedon the complainant's evidence of Mr H violating his own daughter while she wassleeping alongside the complainant, as undermining the complainant's credibility.He cross-examined her on the improbability of it happening in circumstances where itwas so readily discoverable. In closing submissions he also emphasised that R did notdisclose the offending to a social worker who interviewed her, nor did the policeconsider there was sufficient evidence to pursue those allegations and charge Mr H.In addition, through cross-examination and by calling Mr H's partner to give evidence,he sought to establish Mr H did not have a red car at the time of the alleged offending.[15] At the end of the trial Mr H was found guilty and convicted on both charges.Sentencing[16] On 15 March 2019 Mr H was sentenced to 13 years' imprisonment.[17] In imposing this sentence, the Judge placed the offending in band three of R vAM,4 and adopted the starting point advocated for by defence counsel of 13 years'imprisonment.5 He noted that Mr H continued to deny the offending and thatprecluded him taking account of remorse.6 In terms of his background, he said Mr Hwas "a good father and well regarded" but had previous convictions.7 He said hewould have been minded to give a discount for otherwise good character, despitethe criminal history, but because of his absence of remorse "any deduction forgood character is effectively neutralised".8 Thus, the starting point of 13 years'imprisonment was the end sentence imposed.Grounds of appeal against conviction[18] The grounds of appeal against conviction are wide ranging and focus largelyon counsel error. They are:(a) the failure to seek the discharge of a juror who was said to be connectedto the case;(b) the failure to seek appropriate editing of Mr H's DVD interview toremove unfair and prejudicial questions;(c) the failure to edit the complainant's EVI to remove the allegation ofMr H's offending against his daughter;(d) the failure by the Crown to disclose relevant documents, namelythe "registration papers" for the red Ford Laser;(e) a miscarriage of justice, in terms of R v Sungsuwan, for any or all ofthe reasons raised in the above grounds of appeal as well as from:94 Sentencing Notes, above n 1, at [12]; and R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR750.5 At [15].6 At [16].7 At [17].8 At [17].9 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.(i) a lack of preparation by trial counsel;(ii) excessive cross-examination of the complainant as to herallegations of witnessing Mr H abuse his own daughter;(iii) the failure to put the social worker's report (which supportedthe fact there was no basis to the allegations about sexual abuseof Mr H's daughter) in front of the jury with the same weightand impact as he had done in bringing up the complainant'sallegations regarding R; and(iv) the failure to seek an adjournment of the trial to allow time forfurther preparation and to deal with the late disclosure by police.[19] There were two further grounds of appeal which were expressly abandonedduring the hearing. These were:(a) the failure to advise Mr H on his election to give evidence; and(b) the failure to apply under s 44 Evidence Act 2006 to admitthe complainant's account of offending by the complainant's father.Should counsel have sought the discharge of a juror?[20] Mr Maynard explained that after the jury was empanelled, a juror raisedthe fact that she had previously worked as a school counsellor in Wairoa and mayknow the complainant. With counsel's consent, the Judge spoke to the juror inchambers and it was resolved that if the juror recognised the complainant or realisedshe knew anything about the case, she would raise that fact with the Judge. The trialproceeded, and the matter was not raised again.[21] Mr Maynard said that as the juror raised this with the Judge without anyprompting and it appeared to him that she was being responsible; it was reasonable toassume that if she did recognise the complainant when she was called she would letthe Judge know. As she did not, Mr Maynard considered there was no legitimate basisfor him to seek a discharge of the juror.10[22] Mr Tennet submitted that the relationship of the juror to the local school, andher job as a school counsellor (which entails accepting what a child says) woulddisqualify her even if she did not know the complainant. In his view, "the investigationwas too light" and did not take into account the test for apparent bias, being whethera fair-minded and informed member of the public would have a reasonableapprehension or suspicion that the juror would not have discharged her dutyimpartially.11[23] However, we agree with the Crown's submission that nothing inthe circumstances described would provide a basis for discharging the juror. The factthat the juror brought to the Court's attention the possibility that she may have hadsome prior contact with the complainant demonstrated that she understoodthe importance of deciding the case impartially and in accordance with her jury oath.As she was told to advise the Court if she did recognise a connection with thecomplainant, it is reasonable to assume that she would have done so if there was one.[24] The fact the juror and the complainant may have shared a connection toa Wairoa school could not give rise to any concern over actual or apparent bias.Particularly in smaller centres, such connections will often arise and do not precludea juror from serving.12 Similarly, a fair-minded observer would place no weight onspeculation about views which may be held by school counsellors as a profession.In Cavanagh v R, the appellant argued that the fact one of the jurors wasa child psychologist and that her work brought her into close contact with the schoolwhere the offending occurred gave rise to an apprehension of bias.13 However, thisCourt rejected that argument saying that her employment would not:14 raise in the mind of a fair-minded and informed member of the publica reasonable apprehension or suspicion that she would be robbed of her10 Although he candidly acknowledged in cross-examination that, had he been aware she had beena school counsellor, he would have challenged her in the empanelling process.11 R v C (CA395/2008) [2009] NZCA 272, [2010] 2 NZLR 289 at [35]–[36].12 R v Pearson [1996] 3 NZLR 275 (CA) at 278.13 Cavanagh v R [2010] NZCA 36.14 At [51].impartiality in performing her duties as a juror in accordance with the oath oraffirmation she took at the commencement of the trial.[25] This ground of appeal is rejected.Should counsel have sought further editing of Mr H's DVD interview?[26] Mr H's DVD interview, in which he denied the allegations, was adduced inevidence. It had been edited prior to trial to remove parts where the interviewingofficer commented on the serious nature and clarity of the complainant's allegations.Mr Maynard said he was not concerned about the balance of the DVD interview,because Mr H was steadfast in his denials of the offending and he raised importantmatters in his defence. These included that:(a) he never drove the red car;(b) the red car had been disposed of prior to the time of the allegedoffending;(c) he had never spent time with the complainant alone;(d) he had never been up to the alleged offending site with the complainant;and(e) he had only seen her once near that yard (which was close to his familyurupā) when he attended his brother's tangi and she was there with herfather.[27] Furthermore, the content of the DVD interview affected Mr Maynard's adviceon Mr H's election to give evidence. As Mr H's police interview contained his denialsof the allegations and raised important matters for the defence, Mr Maynard did notthink Mr H needed to give evidence and he was concerned not to expose Mr H tocross-examination unnecessarily. We accept that was sound and conventional advice.[28] Mr Tennet's criticisms of the DVD interview were extensive. First, hesuggested it contravened the "rule" in R v Halligan.15 However, we do not considerHalligan is relevant. The issue in that case was that the police officer gaveinadmissible evidence for the Crown by recounting an interview with the defendantwhere the officer put to him statements made by the complainant which she did notgive in the witness box. The Court held that what was put to the defendant inthe interview was not independent evidence against him unless he made damagingadmissions. The interview evidence was therefore inadmissible. That is not the casehere, as the same evidence was played to the jury in the form of the complainant's EVIas was put to Mr H in his interview.[29] Mr Tennet's second criticism is that there was excessive cross-examinationwhich infringed the Chief Justice's Practice Note on Police Questioning.16 Inparticular, he submitted that:(a) the tenor of the interview was that the complainant was reliable, truthfuland accurate, and that Mr H was untruthful;(b) it reversed the burden of proof by asking Mr H to "explain that"; and(c) it contained exchanges which amounted to cross-examination whichwas prohibited by the Practice Note.Mr Tennet considered that substantial portions of the interview were therefore highlyprejudicial to Mr H and to a fair trial.[30] We have reviewed the transcript of the DVD interview in light of thesesubmissions. We accept there is some repetitive questioning. For example, he wasasked the following sequence of questions about whether he drove his partner's redToyota Corona vehicle:Q: Um you didn't ever drive that vehicleA: No15 R v Halligan [1973] 2 NZLR 158 (CA).16 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.Q: Ever – you've never driven itA: No. NoQ: And um you've never takenA: Aw I, I drove it around the house and that – once, twice when wemowed the lawns and then hooked the trailer onto itQ: YesA: But I've never driven itQ: Never driven that vehicle on the roadA: Not on the road. NoQ: Um you've never driven. You've never been alone with [thecomplainant]A: NoQ: You've never driven her anywhere in that vehicle thoughA: No[31] We do not accept that such questioning was prejudicial to Mr H. Rather, it wasin Mr H's interests to have in evidence his clear and unequivocal denials to the robustquestioning of the detective. This is demonstrated by the use Mr Maynard made ofthis in closing: Mr [H] did all that could reasonably have been expected of him to do.He was co-operative, he went to the station. He didn't have to makea statement. He was allowed to speak to a lawyer but he didn't do any of thosethings. And you might think he didn't do those things because he didn't haveanything to hide. You saw his interview and even if you think he's notthe most sophisticated man he was clear when these allegations were put tohim, "I did not do these things."[32] In the present case, we are satisfied that the limited use of repetitive orpersistent questioning was not unfair in nature, having regard to the effect.17The detective's persistence did not affect the answers Mr H gave. Thus, to the extentthere were arguably breaches of the Practice Note by questions in the form ofcross-examination, they would not have justified exclusion and there was no reasonfor the Judge to give directions on this issue.17 R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [27].[33] Mr Tennet was then critical of the detail in which the complainant's statementis put to Mr H, suggesting it gave credence to those allegations. However, we see thisas simply fulfilling the requirement in the Practice Note to put the substance ofthe allegations fairly to the person being questioned.[34] Mr Tennet was also critical of the interviewing detective asking Mr H "Canyou explain that?", saying that was unacceptable following Lynn v R.18 However, asthe decision in Lynn says, "[t]he use of the words "explain that" cannot, by themselves,constitute cross-examination in breach of r 3 of the Practice Note".19 It was the factthat the use of the "explain that" technique was "repetitive, consistent and persistent",in the circumstances of the interview in Lynn which meant it amounted to cross-examination.20 This was not the case here. In particular, the police officer used thephrase twice as opposed to the 19 times the phrase was used by the police officer inLynn.[35] In summary, contrary to Mr Tennet's submissions, we think it would have beendisadvantageous to Mr H if Mr Maynard had sought to edit or exclude his DVDinterview to remove the robust questioning. Its admission allowed his firm denials tobe put before the jury, supported by the evidence of his partner, without exposing himto the risks of cross-examination if he had had to give evidence.[36] This ground of appeal is rejected.Should counsel have sought further editing of the complainant's DVD interview?[37] The next ground of appeal was that the complainant's EVI was not edited toremove her allegations that she saw Mr H sexually offending against his own daughter.The gist of these allegations was that when she stayed at Mr H's place for a sleep-over,she saw him "put his private bit up [R's] mouth, in her mouth", while she was sleepingnext to R. She said she would wake up and see it but her friend was asleep. When sheconfronted R about what her father had done, she said "that's a lie". She also said hewould lick R on her "private bit" and put it into R's "private bit". She said he would18 Lynn v R [2019] NZCA 656.19 At [34].20 At [35]–[36].usually wake up early to do it and would "just stop and act like he's asleep" if he heardthe door open.[38] Mr Maynard explained he made a strategic decision not to excludethe complainant's claim that she saw Mr H commit sexual offences against his owndaughter because it provided him with material to use to challenge her reliability andcredibility. He had considered calling Mr H's daughter to say in evidence thatthe offending did not happen but, on receiving a report from Oranga Tamariki whichsaid R had been interviewed but had not disclosed any offending and had said herfather was "a safe person" for her, he advised Mr H to have the relevant parts ofthe report admitted by consent.21[39] Mr Maynard considered that with this he had the necessary evidence to supporta closing submission that the complainant's claim about R was a bizarre, unbelievabletale that was wholly inconsistent with R's comments to the social worker, and thisshould cause the jury to be sceptical about the claims which led to the charges.[40] Mr Tennet's criticism of this decision was that the allegation itself wasprejudicial to Mr H and could never be cured. Furthermore, the complainant wascross-examined over three pages regarding those allegations and thatcross-examination allowed her to go over her story at length and reinforce thatallegation to the jury. In Mr Tennet's submission, the damage caused by the EVI, andcompounded by the cross-examination, could not have been undone even if R hadbeen called to give evidence.[41] Furthermore, while the Crown, appropriately, did not close on the allegationsinvolving R, except to warn the jury that Mr H was not on trial for those allegationsand to treat them with care, those cautions needed to be endorsed by the Judge in hissumming up and they were not. Mr Tennet submits that these matters in their ownright, or in addition to other grounds proven on appeal, created a miscarriage of justice.[42] The Crown's position is that Mr Maynard's strategy was justified. If he couldshow the complainant had made false claims of sexual abuse in the same interview21 Under Evidence Act 2006, s 9.that formed the basis of the Crown's case against Mr H, that would have raiseda reasonable doubt as to the truth of her allegations. In any event, any risk of unfairprejudice associated with this evidence was limited. Because the allegations weremade at the same time as those relied on for the Crown case, and because they werenot supported by any other evidence, there was very little risk of 'bad character'reasoning, particularly when the Crown disclaimed any reliance on the evidence.[43] In the Crown's submission, this was a case such as Grooby v R, when anypossible illegitimate prejudice arising from the evidence "was counterbalanced bythe fact it could be considered helpful to the defence".22 In Grooby, the complainantgave evidence that just before Mr Grooby sexually assaulted her, he endeavoured tosexually assault her father who slept through it and later denied being sexuallyassaulted. The Court rejected Mr Grooby's appeal that the evidence of the assault onthe father was unfairly prejudicial, saying that "the assaults on [the complainant] andher father were so intertwined there was little risk of "bad character" reasoning",23 andin any event, it could be considered helpful to the defence with defence counselreferring to the claim of assault against her father as "preposterous".24[44] In the present case, the Crown made full and clear closing submissions onthe relevance of the allegation involving R saying:[The complainant] says she witnessed the defendant sexually offendingagainst [R]. You can take that allegation into account when you're decidingwhether or not [the complainant] is a witness that you can rely on But I want to be very clear. Your job today is not to decide whether or not thedefendant is guilty of offending against his daughter. He is not on trial for thatand that's not what the Crown is trying to prove in this case So it might bethat you don't believe that the defendant molested [R]. It might be that you'renot sure whether he did or not and it might be that you think he did. But yourconclusions on that issue can only help you with your assessment of[the complainant's] credibility. They don't relate directly to the issue ofwhether or not the defendant is guilty of these charges. For example it'sentirely possible that you could think that the allegations about [R] are truebut still find the defendant not guilty because you don't believe[the complainant] about the allegations she's made about herself.22 Grooby v R [2018] NZCA 344 at [32].23 At [31].24 At [32].It's equally possible that you could think that the allegations about [R] areuntrue but still believe [the complainant] in relation to the allegations that shesaid happened about the offending that occurred against her.So the two issues are related because they speak to [the complainant's]credibility but they're not determinative. So in other words, you can't findyour answer to one by looking at the other.What I'd invite you to do is to take the evidence about offending against [R]into account but don't let it side-track you from the real issues in this case.Did the defendant touch [the complainant] in the ways that are alleged.[45] Mr Maynard's closing submissions focussed on the complaint of sexualoffending against Mr H's daughter as being relevant to the complainant's credibility,saying it "raised some questions about whether or not you can rely on the things thatshe's said".[46] When the Judge summed up, he gave a standard direction about sympathy andprejudice, noting it was normal to be "emotionally charged" on hearing allegations ofsexual abuse against children, but reminding the jury that they had to apply themselvesto the task in a "dispassionate and clinical way".[47] In relation to the complainant's evidence about what occurred between Mr Hand his daughter, the Judge noted the Crown position saying:Ms Mitchell says, "Remember Mr [H] is not on trial for that" and you need tobe careful that you do not treat that assessment of the evidence asdeterminative of the outcome here. Yes, it is all relevant to issues ofcredibility. But you need to be careful about how you use that evidence.He also briefly summarised the defence case in relation to the allegation, which wasif it occurred, it had to be "only metres from bedrooms, metres from his wife andfamily", and that "the account is bizarre and raises serious issues aboutthe complainant's honesty and reliability".[48] In our view, the Judge should not just have noted, but fully endorsedthe Crown's submission on the relevance of this evidence in his summing up, as itappropriately and carefully set out the relevance of that allegation.[49] However, the issue on appeal is whether the failure to do that could have givenrise to a miscarriage of justice. In our view, it did not. Because the evidence did notcome from an independent source, but from the complainant herself, we do notconsider it could have unfairly prejudiced the jury against Mr H, nor given enhancedcredence to the complainant's allegations. It did not provide independent support ofthe allegation that Mr H offended against the complainant. It stood or fell on whetherthe complainant was a credible witness.[50] The position was really no different from a complainant making a range ofallegations about offending against him or her, some of which are less plausible thanothers. The less plausible complaints might lead a jury to view the more plausiblecomplaints with some scepticism, or they might separate them out. However,ultimately their findings will turn on the credibility of the complainant. In this case,there is no practical way in which the allegation of offending against R could haveenhanced the jury's willingness to believe the complainant on the charges involvingher, because they were not independently corroborative of that sexual offending.However, they could potentially damage the Crown case, for the reasons given byMr Maynard.[51] In those circumstances, where the allegations were used to enhance the defencecase and were disclaimed as relevant by the Crown, there was no risk of a miscarriageof justice.[52] Accordingly, this ground of appeal fails.Was there non-disclosure by Crown and did it lead to a miscarriage of justice?[53] The fourth ground of appeal alleges that the Crown had possession ofa document which was not disclosed by the police, namely the registration papers forthe red Ford Laser. This relates to evidence given by Detective Jones to the effect thathe checked on the police NIA system regarding any vehicle incidents Mr H wasinvolved in and found that he was stopped driving a red Ford Laser in 2003 and thatthe vehicle was registered to his partner, Ms P.[54] We accept, as highlighted by the Crown, that Mr Tennet was in error to thinkthat the police had "registration papers" which had not been disclosed. There was nosuch documentation. Nevertheless, the outcome of the police enquiry on the NIA wasnew material which was obtained as a consequence of the investigation and shouldhave been disclosed as soon as it had been obtained (which, presumably, was just priorto the hearing).[55] However, on appeal, the issue is whether the failure to disclose led toa miscarriage of justice. Mr Maynard was able to obtain instructions overnight and tocross-examine the detective the following day regarding the enquiries he made ofthe NIA. The detective confirmed that the vehicle's registration was shown as lapsedand it had not been re-registered for some time, and that the only reported activity inrelation to it was the stop in 2003. Ms P, was also able to be briefed and to giveevidence, providing a clear account of disposing of the red Ford Laser for parts inaround 2007 and it being undriveable after that. This was consistent withthe detective's acknowledgement that it had not been registered for some time.[56] In our view, no miscarriage of justice arose. Whether or not this informationshould have been disclosed sooner, Mr Maynard had the opportunity to test thisinformation and to call evidence rebutting the suggestion that this car was stillavailable to Mr H at the time of the offending.[57] This ground of appeal also fails.Was there a miscarriage of justice on the Sungsuwan grounds?[58] Mr Tennet submits that the above grounds, along with additional points heraises, show an accumulation of errors or irregularities on the part of counsel whichhave led to a miscarriage of justice and it did not matter whether counsel did thesethings in good faith or for valid reasons. As was said in Sungsuwan:25 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 bean appropriate approach. If the matter could not have affected the outcomeany further 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 real concern for the safety of a verdict as a result of the conductof counsel even though, in the circumstances at the time, that conduct mayhave met the objectively reasonable standard of competence.25 R v Sungsuwan, above n 9, at [70].[59] The first additional ground is that there was a lack of preparation bytrial counsel. Mr Maynard acknowledged that much of the preparation was close totrial and he explained the reasons for this. Mr Tennet acknowledges that, on its own,the late preparation of the case would not necessarily be significant but suggests thatthe non-disclosure issue "may have been something that could have been avoided"and that more time could have been spent briefing Ms P to deal with the issue of thesecond red car. However, in our view, the effect of those issues on the trial havealready been addressed and the question of late preparation adds nothing to them.[60] The next point raised is that there was excessive cross-examination ofthe complainant as to her allegations of witnessing Mr H abuse his own daughter.Mr Tennet says that cross-examining the complainant at length (the transcript showsthree pages of these questions), allowed her to give "telling detail" which reinforcedthat allegation to the jury. Mr Tennet was also critical of a question being put to thecomplainant that R "didn't have any memory" of her father abusing her, saying thatsuch questions suggested R was an unreliable witness and, by implication, would notbe reliable in her denials to Oranga Tamariki or police.[61] We have already addressed the issue of leaving these allegations in toundermine the complainant's credibility. It was a viable strategy, but one which riskedthe complainant giving further details about that memory which might make it morecredible. However, we consider it was necessary to question her on these allegationsto elicit the matters which Mr Maynard would rely on in closing, including: that otherfamily members were in the house at the same time, that when they had a sleep-overin the lounge the door to R's mother's room was in direct line of sight, and that it wasa strange allegation that her friend was sucking her father's penis in her sleep.[62] The third point raised is that the social worker's report was not put in front ofthe jury in a way that closed down the allegation of offending against Mr H's daughter.However, we see nothing to criticise in the social worker's report being put to the jurythrough an agreed statement of facts. It is difficult to see that calling the social workerwould have changed the dynamics of the trial, particularly when no disclosures weremade to the social worker, and when she did not ask R any direct questions aboutsexual offending.[63] Finally, Mr Tennet criticises the failure to seek an adjournment of the trial toallow time for further preparation and to deal with the late disclosure by police.We have already addressed these issues in [54]–[57] and [60] above.Conclusion[64] This was a case which turned on the credibility of the complainant.Mr Maynard made strategic decisions in recognition of this fact. As was said inSungsuwan:26There will be cases in which particular acts or omissions of counsel may inretrospect be seen to have possibly affected the outcome but they weredeliberately judged at the time to be in the interests of the accused. In somecases the accused will have agreed or acquiesced – only to complain afterconviction. Where the conduct was reasonable in the circumstances the clientwill not generally succeed in asserting miscarriage of justice [65] We accept that the ultimate question is whether justice has miscarried.However, in this case we do not consider, either individually or in combination,the matters raised by Mr Tennet raise a real risk of a miscarriage of justice.[66] The appeal against conviction is dismissed.The sentence appeal[67] Mr H also appeals his sentence of 13 years' imprisonment saying:(a) there was no basis for adopting a starting point which was abovethe starting point for band three in R v AM of 12 years; and(b) a discount should have been given for good character as indicated bythe Judge or, alternatively, a lack of remorse should not have beentreated as effectively an aggravating feature which otherwiseneutralised that discount.[68] In our view, there was no error in selecting the starting point of 13 years.It placed the offending at the lower end of band three in R v AM, (being 12 to 18 years).26 At [66].Here, the offending involved subjecting a girl aged between seven and nine years torape and digital penetration on several occasions over a period of 18 months. Givenher age and vulnerability, and the degree of planning and premeditation, the startingpoint of 13 years was clearly available.[69] We accept that, in principle, it would be wrong to deny a defendant credit forgood character on the grounds that he showed a lack of remorse. However, in thiscase, we do not accept that a discount for good character was warranted. While Mr Hhas no previous convictions for sexual offending, he does have a reasonably lengthycriminal history for driving, violence, drug and dishonesty offences. In our view, Mr Hwas not entitled to a good character discount and, given his absence of remorse(because he continued to deny the offending), there was no basis for adjustingthe starting point downwards. The end sentence is therefore appropriate, and we seeno reason to alter it on appeal.[70] The appeal against sentence is dismissed.Result[71] The application for an extension of time to file the appeal is granted.[72] The appeal against conviction is dismissed.[73] The appeal against sentence is dismissed.[74] To protect the identity of the complainant, we make an order publication ofname, address, occupation or identifying particulars of R, a connected person,pursuant to s 202 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent