I (CA128/2018) v R [2019] NZCA 625

I (CA128/2018) v R [2019] NZCA 625 [9 December 2019]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF THE APPELLANT'SWIFE, MOTHER AND BROTHER PURSUANT TO S 202 CRIMINALPROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT V PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS K, H AND LPROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA128/2018[2019] NZCA 625BETWEEN I (CA128/2018)AppellantAND THE QUEENRespondentHearing: 30 October 2019Court: Kόs P, Venning and Thomas JJCounsel: P H Tomlinson for AppellantJ E L Carruthers for RespondentJudgment: 9 December 2019 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal out of time is granted.B The appeal is dismissed.C The appellant's identity, and the identities of his wife, mother and brother,are suppressed.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)Table of ContentsPara NoIntroductionBackgroundThe charges and verdictsThe Crown caseThe defence caseAlleged trial counsel errorThe principlesAlleged errorsFurther evidence(a) Failure to cross-examine the complainants on requiredmattersComplainant LComplainant HComplainant KComplainant V(b) Failure to provide disclosure to the appellant, takeinstructions and properly prepare for trial(c) Failure to advise the appellant on his election, preparehim to give evidence, and engage a communicationsassistantThe appellant's evidence at trial(d) Failure to call defence witnessesConclusionProsecutor's closing addressResult[1][3][3][11][22][29][29][33][35][45][45][58][67][69][70][94][107][128][131][132][139]Introduction[1] The appellant appeals his 13 convictions for sexual offending against four girls,all of whom were related to him and aged at the time of the offending between five and11 years. His appeal is on the grounds of trial counsel incompetence, while alsoalleging that the prosecutor's closing address to the jury contained an unfairsubmission that was not adequately corrected by the trial Judge.[2] The appeal was filed 37 days out of time. The appellant has filed an affidavitexplaining the short delay, which was as a result of counsel unavailability. In thecircumstances, and unopposed by the Crown, leave to appeal out of time is granted.BackgroundThe charges and verdicts[3] The appellant faced 19 charges involving the four complainants over the periodfrom 2003 to 2015. V was his step-daughter, H and her younger sister L, his niecesby marriage, and K, his biological daughter.[4] The appellant faced six charges involving V covering the period from2003 to 2007. There were two charges of indecent assault on a girl under 12, one ofdoing an indecent act with a young person under 16 and three of sexual violation byunlawful sexual connection.[5] The appellant faced two charges involving H covering the period from2006 to 2009. They were both representative charges of doing an indecent act ona child under 12.[6] The appellant faced six charges involving K covering the period from2009 to 2013. There were three charges of doing an indecent act on a child under 12(one of them representative) and three charges of sexual violation by unlawful sexualconnection (one of them representative).[7] The appellant faced five charges involving L covering the period from2008 to 2015. There were three charges (two of them representative) of doingan indecent act on a child under 12 and two of sexual violation by unlawful sexualconnection (one of them representative).[8] At the conclusion of the Crown case, two of the charges involving V weredismissed because, on the evidence, it could not be proved that she was under12 years old when the alleged offending took place. On the remainder of the chargesinvolving V, the jury was hung on the three charges of sexual violation and found himguilty on the charge of doing an indecent act on a young person under 16.[9] The appellant was acquitted on one charge involving H (alleging he rubbed hergenitalia) but convicted on the other (alleging he rubbed her breasts).[10] The appellant was convicted on all charges involving both K and L.The Crown case[11] The Crown case was that the appellant started sexually offending againstthe four complainants when they were between five and 11 years old.[12] By way of background, K, the appellant's biological daughter, and his niecesL and H, lived with the appellant and his wife. The appellant's wife's daughter, V,stayed with them on weekends. The Crown alleged that, during these times,the appellant would find opportunities to be alone with the girls at his work, in theirhome and in his "man cave", which was a shed at the back of the house. When alonewith them, he would sexually offend against them in a variety of ways.[13] The offending against V was alleged to have begun in 2003, when she was10 years old. It was alleged V accompanied the appellant at night when he worked asa tow-truck driver. V said he offended against her at the company's offices and whenthey were together in his tow-truck. When she was about 13, V told both her motherand her biological father that the appellant touched her. No action was taken.[14] The offending against H allegedly began in 2006, when she was about six yearsold and moved to live with the appellant and his wife. She said the appellant sexuallyoffended against her when she was in bed at night.[15] The offending against K began in 2009, when she was around eight years old.She said the appellant sexually offended against her in the shed where he would showher pornographic magazines.1 She said he also showed her pornography on hiscomputer and then sexually offended against her and he behaved similarly when shewas in the bath and in bed. She said the appellant repeatedly told her not to tell hermother and, if she did so, it would ruin the marriage.[16] The offending against L began in 2008 when she was five years old. It occurredwhen she was having a bath and in the "man cave" where on at least one occasionthe appellant showed her a pornographic magazine which he had got from the shed.He told her not to tell anyone, that it was just between them, and to wait until she was16 when they could have intercourse.[17] In mid-2015, K told her mother of the offending. The appellant's wifecontacted Child, Youth and Family and an investigation ensued. V then formalisedher earlier complaint. L's disclosures followed and H's were made followingthe appellant's arrest.[18] The Crown rejected the defence contention that the allegations were a result ofthe complainants colluding. At trial, the Crown prosecutor reminded the jury inclosing that V first complained when she was around 13 years old, at which timethe other complainants were very young, suggesting there could not have beencollusion at that time. He pointed out that V moved at some point to the South Islandand, when in her teens, to Australia. He submitted it was a "fairly major coincidence"that a number of years later, K, the appellant's own daughter, independently accusedhim of sexual abuse.[19] The prosecutor stressed the similarities in the allegations — the use ofpornography, both on the computer and in pornographic magazines kept in the shed,the appellant's particular style of offending (digitally penetrating the complainants andthen putting his fingers in his mouth and that of the complainants, and whatthe appellant said to the complainants as he did so), that he told K and L repeatedlynot to tell anybody, the evidence from the complainants of the sexually suggestive way1 As became apparent at trial, this was a different shed from the "man cave". The two sheds wereapparently located next to each other, with this shed housing the appellant's tools andthe pornography.in which he spoke to them, and that the offending took place in similar locations —the bath, the shed and the "man cave".[20] The prosecutor addressed the delayed complaints by noting the appellant'sinstruction to the complainants not to say anything, telling K it would ruin her parents'marriage, and evidence from L and V that they were too scared to say anything. H saidshe knew she should have told someone but was ashamed.[21] L, K and H's evidence-in-chief at trial was given by their pre-recordedevidential interviews. By the time of trial, V was 24 years old, L 14, K 16, and H 17.The defence case[22] The appellant denied all the allegations, saying they were fabrications.[23] Mr Johnston, the appellant's trial counsel, emphasised to the jury how difficultit was to defend historic allegations, particularly when they were not date specific.Mr Johnston described the evidence as disclosing that the appellant was a hardworkingman, creating a stable life for him, his wife and their family. He noted some ofthe appellant's wife's relatives' lives were not so stable, involving drug and otherissues, with the result that many children, including some of the complainants, cameto stay with the appellant and his wife, who cared for them. He told the jury the girlswere "quite tight" and set out the history of the complaints: K made the first complaintand told L about it; L's complaint, which he described as a "almost a poor copy" ofthat of K, followed; V, who had complained earlier but for good reason had not beenbelieved; and then a year later, H complained.[24] In respect of V's allegations that the appellant offended against her at hisworkplace, the defence stressed the lack of opportunity to do so. Mr Johnstonchallenged her inconsistency about timing.[25] Mr Johnston challenged H about whether the offending occurred when she hadbroken her leg as she alleged (something both the appellant and his wife said inevidence they did not recall), and about a statement she had written about herallegations, which differed from what she said in her police interview.[26] L was closely cross-examined on her allegations that the appellant abused herin the "man cave" on the basis that what she described could not have occurred.For example, she said the appellant sexually violated her and, when her brotherappeared, the appellant pushed her underneath a table so she could not be seen. It wasput to her that there were other items under the table meaning there was no room forher to hide there.[27] K was cross-examined on the implausibility that she was abused in the shed asshe alleged because of its small size; the fact K often bathed with L so there would nothave been an opportunity for the appellant to abuse her while she was in the bath;the large amount of time the appellant spent at work or outside working on his cars;and the fact the appellant's brother had a box of pornographic magazines. Mr Johnstonchallenged K on the specifics of her allegation that the appellant showed herpornography on a computer, for instance, by asking whether the videos were on a disc.Mr Johnston also questioned K extensively on whether she was motivated in makingher complaint by a desire to obtain money from ACC, including whether a cousin hadtold her about how she had received money from ACC after making a complaint ofa sexual nature.[28] The appellant gave evidence, addressing the matters put to the complainants incross-examination.Alleged trial counsel errorThe principles[29] To succeed on this aspect of the appeal, the appellant must show thata miscarriage of justice has occurred.2 The leading authority on appeals based ontrial counsel incompetence is R v Sungsuwan, where the Supreme Court stated:3[70] while the ultimate question is whether justice has miscarried,consideration of whether there was in fact an error or irregularity on the partof counsel, and whether there is a real risk it affected the outcome, generallywill be an appropriate approach. If the matter could not have affected theoutcome any further scrutiny of counsel's conduct will be unnecessary.But whatever approach is taken, it must remain open for an appellate Court to2 Criminal Procedure Act 2011, s 232(2).3 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].ensure justice where there is real concern for the safety of a verdict as a resultof the conduct of counsel even though, in the circumstances at the time, thatconduct may have met the objectively reasonable standard of competence.[30] Accordingly, the correct approach is to determine whether there was any erroror irregularity in trial counsel's representation of the appellant and, if so, whether therewas a real risk that any such error or irregularity affected the outcome of his trial.4In order for the appeal to succeed, the alleged error or errors must have been such that,had they not occurred, there was a real possibility that a not guilty verdict might havebeen delivered.5[31] In Hall v R, this Court drew a distinction between trial counsel error onfundamental matters, which would almost inevitably result in an unfair trial and so amiscarriage, and trial counsel errors on matters less fundamental, which would notalways result in a miscarriage.6 The Court noted:7 it is helpful to identify the three fundamental decisions on which trialcounsel's failure to follow specific instructions will generally give rise to amiscarriage. The fundamental decisions are those relating to plea, electingwhether to give evidence and to advance a defence based on the accusedperson's version of events.[32] Where errors in making less fundamental trial decisions are alleged,a miscarriage of justice will generally only occur if the decision was not one acompetent lawyer would have made and if what actually happened may have affectedthe outcome.8 It is not a matter of whether counsel could have reached a differentdecision or conducted the trial in a different way.9Alleged errors[33] Counsel error in this case is said to comprise:(a) failure to cross-examine the complainants on required matters;4 Wang v R [2016] NZCA 632 at [12].5 R v Sungsuwan, above n 3, at [110].6 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [61]–[62] and [65].7 At [65] (emphasis added).8 At [77].9 S (CA88/2014) v R [2014] NZCA 583 at [16], citing R v Sungsuwan, above n 3, at [66].(b) failure to provide disclosure to the appellant, take instructions, andproperly prepare for trial;(c) failure to advise the appellant on his election, prepare him to giveevidence, and engage a communications assistant; and(d) failure to call witnesses.[34] The evidence at the appeal hearing comprised affidavits from the appellant,Mrs S (his mother), Julia Wright (a speech-language therapist), and Mr Johnston. Theappellant and Mr Johnston also gave oral evidence and were subject to cross-examination.Further evidence[35] It is convenient at this point to address the further evidence filed for thepurposes of the appeal.[36] The first aspect of the further evidence comprised documents obtained byMr Johnston as a result of a non-party disclosure application but which were notreferred to by him when he cross-examined L and H.10 This is relevant to the firstallegation of trial counsel error and is addressed in more detail in our consideration ofthat ground of appeal.[37] The second aspect of the further evidence comprised the affidavit fromMs Wright. Ms Wright provided a communication assessment report on the appellantfor the purposes of determining the presence and extent of any communicationimpairment from which he might suffer. As it is relevant to both the second and thirdallegations of counsel error, we address it now.[38] Ms Wright summarised the appellant's communication profile as follows:[The appellant] presents with significant difficulties in both his understandingand use of language. He has poor auditory memory, slow processing and hisvocabulary is limited to concrete and simple vocabulary. He is easily confused10 R v [I] [2017] NZDC 20822; and R v [I] [2017] NZDC 22119.once language goes beyond the short simple sentences and struggles to fullycomprehend language that contains multiple concepts, unfamiliar vocabularyor requires him to make inferences. Although in conversation about familiartopics he is able to express his ideas using short simple sentences, he takestime to formulate and organise his ideas and his sentences are punctuated bypauses, fillers and false starts. His performance on the standardised subtestsof the CELF-5, for which detailed information is provided in section 5.1below, indicates that his difficulties are likely to be in the severe range.[39] Ms Wright qualified her comments by noting that a person's performance onlanguage and communication assessments may vary on different days for a variety ofreasons. The report therefore provided a "snap-shot" only of the appellant's skills onone day. The appellant's scores on certain tests suggested to her that he has majordifficulties understanding and using language. In prison, he has been working with aHoward League tutor to develop his literacy skills.[40] The appellant's test scores indicated he has significant expressive languagedifficulties, although he was able to engage in conversation about familiar topics.His difficulties became more apparent in tasks involving expressing detaileddescriptions, explanations or reasoning. He was assessed as having significantdifficulties with comprehension. He could follow and comprehend shortconversational questions containing simple vocabulary and grammar related tofamiliar topics, but had difficulties comprehending abstract vocabulary and concepts.Long sentences and complex grammar were described as confusing for him.Ms Wright described gaps in the appellant's vocabulary knowledge and usage, sayinghe typically uses concrete and simple vocabulary to express himself.[41] On the question of further evidence on appeal, the Privy Council has said:11If the evidence is credible but not fresh, the court should assess its strengthand its potential impact on the safety of the conviction. If it considers thatthere is a risk of a miscarriage of justice if the evidence is excluded, it shouldbe admitted, notwithstanding that the evidence is not fresh.[42] In S (CA88/2014) v R, this Court observed that, in appeals in cases involvingallegations of trial counsel error, it will usually treat the evidence as fresh if persuaded11 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].that counsel error explains its absence from the record and if satisfied that it wouldhave been led at trial but for counsel error.12[43] The new evidence was admitted on appeal without opposition. While not fresh,the new evidence is certainly relevant and credible. Whether it is cogent, that is,whether it might reasonably have led a jury to return a different verdict whenconsidered alongside the other evidence given at trial,13 is addressed in our assessmentof the alleged errors.[44] We now turn to explore each of the alleged trial counsel errors in turn.(a) Failure to cross-examine the complainants on required mattersComplainant L[45] The main focus of Mr Tomlinson's submissions for the appellant regarding Lwas on trial counsel's failure to cross-examine L on comments she made wheninterviewed by two social workers for Child, Youth and Family, her school principaland a school social worker on 3 December 2013 when she was 10 years old. At thistime, L was living with the appellant and his wife. The following exchange took place:Q. What do you enjoy most about living with your Uncle and yourAunty?A. They don't smoke and they don't drink and they keep me safe.Q. If you had the power to change anything at all would there be anythingyou would want to change at [the appellant and his wife's house]?A. NothingQ. So things there are exactly how you would like them to be?A. Yes12 S (CA88/2014) v R [2014] NZCA 583 at [15], citing Loffley v R [2013] NZCA 579 at [58]. See alsoScott v R [2019] NZCA 261 at [12]–[15].13 Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [35]. See also Wallace v R [2010] NZCA46 at [52] and [76]; Redeemed v R [2013] NZCA 61 at [20]; and Chetty v R [2017] NZCA 586 at[28].Q. Are you happy with Aunty and Uncle?A. YesQ. And you feel safe?A. YesQ. And you have no worries about living there?A. No[46] In Mr Tomlinson's submission, this was potentially a very powerful tool incross-examination, revealing that L had no concerns for her safety in living withthe appellant. It would have supported, in his submission, the challenge to L'scredibility and the defence case that she was making up her allegations to support theother complainants.[47] Mr Johnston was of the opinion L's comments would likely have beendismissed as made by a child who had been molested but had divided loyalties.Mr Johnston did not see anything "major" in the disclosure, although accepted inhindsight it would have been useful to put the statement to L.[48] Mr Carruthers, for the Crown, accepted that the notes were relevant andpotentially probative of the defence case. He referred, however, to L's generalreluctance to discuss the offending and submitted that, if cross-examined on what shehad said, L would likely have referred to her reluctance to disclose her allegations.Mr Carruthers suggested the Crown would almost certainly have sought to adducecounter-intuitive evidence to the effect that it is not uncommon for victims of sexualabuse to refrain from disclosing that abuse, and even to be affectionate towards theirabusers.14[49] We agree this evidence was relevant. In saying that, some context is required.L said in her evidential interview, "once I knew that it was wrong for him to do that,I started becoming naughty. that's when I was about 11."14 See, for example, DH (SC9/2014) v R [2015] NZSC 35, [2015] 1 NZLR 625.[50] L said she got a "man bun" and shaved the sides of her head. It was at thatpoint, she said, that the appellant stopped touching her.[51] That quote from L suggests she did not fully understand that what the appellantwas doing was wrong until she was about 11 years old, which would have been in2014. L's comments to Child, Youth and Family were made in December 2013 whenL was 10 years old. The offending against her continued into 2015.[52] L was interviewed twice, in 2015 when she was 12 and then in 2017 when shewas 13. Both interviews were replete with references to the appellant telling her itwas their secret and she was not to tell anybody. She said she was too scared to sayanything and she never "narked" on the appellant. She clearly found it very difficultto discuss what had happened to her. The first interview was terminated when sherefused to answer any further questions. In the second interview, she referred to thefact she had to tell those details to a stranger.[53] As Mr Carruthers observed, challenging L on what she had told Child, Youthand Family could have backfired in that it would have provided a further opportunityfor her to explain why she did not disclose the offending earlier.[54] On balance, we consider that L's statement should at least have been put to her(although there were risks in doing so) and the extent to which the matter should havebeen pursued would have depended upon L's response. However, in the circumstancesas discussed above, we do not consider the omission to have been as serious asMr Tomlinson contended.[55] The issue is whether there is a real risk this error may have affected theoutcome of the trial and thus caused a miscarriage of justice. L was consistent in bothher evidential interviews and her evidence at trial, and she responded well to thechallenges to her version of events. It would likely have been inferred that she madethe comment at a time she did not really understand that what the appellant was doingwas wrong. Had the matter been pursued, the Crown would no doubt have calledcounter-intuitive evidence, which, in combination with L's repeated references tothe appellant telling her not to say anything about the offending, would likely have ledto the conclusion that she said she felt safe not only out of ignorance but also becauseof his instructions (and potentially even affection for him).[56] The Crown case was compelling. There was a high degree of similaritybetween all the complainants' allegations. As to collusion, as the prosecutor noted,it was a "fairly major coincidence" that a number of years after V first complained,the appellant's own daughter independently accused him of similar offending.[57] In those circumstances, we are not satisfied there is a real possibility that, ifthe evidence had been put to L, a jury acting reasonably would have reached differentverdicts on the charges involving her allegations (or indeed those of the othercomplainants).Complainant H[58] Mr Tomlinson referred to a complaint made by H's grandfather to a socialworker on 2 July 2013: [H's grandfather] expressed his concerns on [H's mother]'s parentingability as accordingly, the latter was allowing H's 16 year old boyfriend to livein her property and permitting her daughter to have [a] sexual relationshipwith her boyfriend. [H's grandfather] is concerned that [H's mother] is notsetting rules and boundaries at her home and because of this, H might getpregnant [at] a very young age.[59] It appears that H should have been living with her grandfather and his wifepursuant to custody orders but was in fact living with her mother and H's boyfriend,who was at least 16 years old. H was 13 at the time and in a sexual relationship withher boyfriend.[60] In Mr Tomlinson's submission, the document laid a foundation for asubmission H had made a false complaint. By accusing the appellant of sexuallyabusing her, it deflected any issues concerning her being in a sexual relationship at13 years old.[61] Mr Johnston's view was that, as the defence was not one of transference butthat the allegations were a lie, the evidence would not have assisted.[62] We agree with Mr Carruthers that it is entirely speculative to suggestthe grandfather's concerns had anything to do with H's allegations and there has beenno further evidence put before this Court to support that position. Furthermore,we agree that any such questioning would likely have been precluded by s 44 ofthe Evidence Act 2006.[63] Part way through the trial, the Judge was required to give a ruling as tothe admissibility of the appellant's response when approached by the police to discussthe allegations from K, V and L in February 2016.15 The appellant said:[A]ll these girls have got boyfriends and I'm the one in trouble. [V] has hada boyfriend since she was 12 and I'm the bad one. I work 6 days a week andI'm a mechanic.[64] The Crown submitted that the evidence would infringe s 44. The defencesought the admission of the evidence on the basis it was the appellant's way of denyingthe charges. The Judge accepted that, saying not all young children who haveboyfriends engage in sexual activity and noting that, if the evidence were not included,it would appear the appellant had nothing to say to the police about the allegations.16[65] It is highly likely the Crown would have objected to the admissibility ofthe grandfather's statement in the same way as it did in respect of the appellant'sstatement to the police when first approached to discuss the allegations. Although theJudge ruled that statement admissible, it can be fairly surmised from the tenor of hisruling that he would likely have ruled the evidence of the grandfather's concernsinadmissible. That would certainly be our view.[66] Mr Tomlinson also submitted that there was inadequate cross-examination onother aspects of H's evidence, including whether or not she had a broken leg. We havereviewed the transcript and are satisfied there can be no complaint in this regard andindeed Mr Johnston was able to make quite something of the fact neither the appellantnor his wife could remember that H had a broken leg. Furthermore, as pointed out byMr Carruthers, Mr Johnston seized on a discrepancy between H's police interview andnotes she had made leading up to the interview. In the former, she alleged the appellant15 R v [I] [2017] NZDC 24547.16 At [10]–[12].had touched both her breasts and genitalia whereas in the latter she mentioned onlythe touching of her breasts. Notably, the jury acquitted the appellant on the charge oftouching H's genitalia.Complainant K[67] Mr Tomlinson criticised counsel's cross-examination of K as being verylimited and that the lack of extensive cross-examination reflected his poor trialpreparation.[68] Again, we agree with Mr Carruthers' observations. Much ofthe cross-examination focused on the evidence the appellant would later give, seekingto undermine the Crown case and support the appellant's version of events.This included the matters Mr Tomlinson claimed were "little developed", such as theliving arrangements; the appellant's hours of work; his involvement in parenting;use of household computers and whether the pornography belonged to the appellant'sbrother. It is unclear how a more thorough cross-examination on these matters wouldhave assisted.Complainant V[69] There was no criticism of the cross-examination of V, nor indeed could therehave been, given the appellant was convicted of only one out of six chargesinvolving V.(b) Failure to provide disclosure to the appellant, take instructions and properlyprepare for trial[70] The appellant provided the following chronology:(a) First appearance on 19 February 2016 — saw Mr Johnston as dutylawyer while in the cells.(b) Appearances on 10 March, 13 May and 2 June 2016.(c) Meeting with Mr Johnston (described as brief) on 15 June 2016.(d) Initial trial date 1 May 2017. Later fixed as 24 October 2017.17[71] The appellant said:I did not get a full copy of disclosure until mid-September 2017 just a fewweeks before the trial date of 24 October 2017. I had received some disclosurevery early in the proceedings. I also had with the assistance of my mother provided a lot of written information about my defence, the complainants andvarious witnesses I wanted to have called. I never got to discuss those aspectsof the case fully with [Mr Johnston].[72] According to the appellant, on 2 June 2016, the appellant and his mother wentto the Legal Aid office in Manukau seeking a change of lawyer. The appellant (aidedby his mother) put the request in writing, citing the appellant's difficulty in getting intouch with Mr Johnston and arranging a meeting with him to discuss the case. LegalAid was not satisfied a transfer of the grant of legal aid was justified. A grants officersaid he would write to Mr Johnston advising him of the appellant's concerns andasking him to contact the appellant.[73] The appellant said he continually tried to obtain an appointment withMr Johnston to discuss his case. Although there was a meeting on 15 June 2016, itwas very brief. He complained that both he and his mother would telephone or textMr Johnston to try and arrange appointments but the calls were either unanswered orMr Johnston would text saying he was unavailable.[74] He described a 10 minute meeting with Mr Johnston on 28 July 2017 and onemeeting of less than an hour on 30 September 2017 when he went to Mr Johnston'soffice to watch the complainants' evidential interviews.[75] The appellant agreed that he and his mother discussed the case and his mothergave their responses in writing to Mr Johnston. He said, however, he never reallydiscussed the case with Mr Johnston. He accepted that he gave Mr Johnston hisversion of events and responded to specifics of the allegations with reasons why theycould not be true. For example, that he never washed his hands inside the house butused the washhouse,18 and information concerning the drain running under the table17 The first trial date was adjourned when H was added as a complainant.18 Relevant as to whether he would have used the bathroom when the complainants were in the bath.in the "man cave" over which he had put a beanbag, meaning there was no room forL to hide under the table as she alleged.[76] In her affidavit, Mrs S, the appellant's mother, deposed that the appellant hadbeen bailed to live with her in Rotorua. She assisted him whenever she could, becameinvolved in the case, tried to track down evidence to support him, travelled with himto court appearances and went to see his lawyer. She undertook the task of goingthrough the disclosure with the appellant. She felt it was Mr Johnston's responsibilityto do so, not hers.[77] Mrs S confirmed the difficulty in obtaining disclosure from Mr Johnston,saying it was not until one or two months prior to the trial that they received transcriptsof the complainants' interviews, witness statements and other disclosure. This wasdespite several requests to Mr Johnston for these documents.[78] Mrs S exhibited various text message exchanges between her and Mr Johnston,many of which are unfortunately undated. The affidavit and annexed disclosure indexconfirmed initial disclosure, comprising mainly the charging documents and summaryof facts, was provided by Mr Johnston on 9 March 2016. In one message, Mrs S notedthat the appellant had not been taken through the charges and she was concerned hewas unaware of their seriousness. She referred to a list of witnesses she/the appellantsuggested should be called for the defence.[79] On 14 July, Mrs S texted Mr Johnston about meeting, and again on 17 July,noting the appellant would be attending the callover on 27 July "so it's urgent".19Mr Johnston responded that the matter had been put off to 23 August for pre-trials.On a date between 27 July and 6 September, Mrs S texted Mr Johnston saying:Hi ted, we are hoping that you have enough material to counter all the lies inthe many contradictory statements affecting this trial. There followed information discrediting the complainants.19 We assume these messages were generated in 2017, although it is unclear.[80] On 6 September, Mrs S requested photocopies of the charges and anappointment, saying: we are feeling not happy, not knowing what he is facing and [he] has nothad the information to answer to, please call to make this appointment for usAnd on 11 September:Hi ted have not received the disclosures yet. [81] Mr Johnston texted in reply to the effect he was in Court and would be incontact as soon as possible. On what appears to be 12 September, he said the file wason the way. Some time in the next few weeks he texted saying:How is it going, looking through the disclosure. Make extra notes, then wecan arrange a date to view the videos at the police station here.[82] Mr Johnston explained that disclosure in cases like this is usually piecemealand takes a long time. He acknowledged the concerns of the appellant and his motherand said he tried to ask them to be patient, noting that the trial did not commence untilOctober 2017. Mr Johnston pointed out that, early on in the proceedings, the appellantmoved to Rotorua, so communication was by phone, email and text. He notedthe appellant was limited in when he was able to come to Auckland except for courtappearances. He said Mrs S was frequently in contact, understandably worried aboutthe case, but many of the comments made by the appellant and Mrs S, particularlyconcerning their criticisms of the complainants, were of limited value.[83] Mr Johnston knew the appellant was dyslexic but pointed out he had providedwritten instructions at times, exhibiting examples of two such documents.20Mr Johnston understood the appellant was happy to have his mother assist him.He said he received written responses from the appellant and his mother in respect ofall statements from the complainants and other witnesses. Mr Johnston observed thathe received a copy of the transcripts with the appellant's instructions written on them,so that was the reason the appellant and Mrs S might have been without some ofthe evidence for a time.20 The appellant confirmed those documents were written on his behalf and reflected his instructions,although maintained he did not write them himself.[84] Mr Johnston's diary recorded meetings at his office on 15 June 2016, 30 July2016, 5 May 2017, 19 July 2017, 17 October 2017 and 19 October 2017. He alsoreferred to another meeting (location unclear) on 23 August 2017. He explained thatthe meeting to view the complainants' evidential interviews was mainly for thepurpose of assessing how the complainants would give evidence, as transcripts of theinterviews had already been provided and commented on by the appellant.[85] Mr Johnston said he made sure the appellant fully understood the allegations,saying he went through them carefully at their "many face to face meetings" and phonediscussions. He said he was fully instructed on how to question the complainants inan effort to undermine their evidence. He pointed out that he was able to challengeV's account based on the information provided by the appellant and that resulted inacquittals on most of the charges involving her. Mr Johnston did not considerthe appellant needed further communication assistance. He noted that the instructionshe received were of good quality and sensible.[86] In his submissions, Mr Tomlinson referred to the appellant's attempt inJune 2016 to have a new lawyer appointed. This, in his submission, was evidence ofhow dissatisfied the appellant was with his legal representation and reflected thematters of which he complains, that is, a lack of disclosure and a failure to take properinstructions.[87] We consider that Mr Johnston's response to the appeal was less thansatisfactory in many respects. He did not have a good memory of the file and it didnot appear that he had refreshed his memory prior to giving evidence. He did not bringhis full file to Court. He did not have file notes. He did not bring his Legal Aidprovider time records to Court, these being "back at my premises". The detail he wasable to provide to substantiate meetings with the appellant consisted only of entries inhis diary and did not accord with the appellant's recollections. He was unable tosubstantiate, by reference to his own record keeping, his evidence that disclosure wasprovided to the appellant piecemeal throughout the process, as and when he receivedit.[88] We accept that the appellant and his mother were concerned about the delay inreceiving disclosure and may well have been frustrated at what they considered to beMr Johnston's lack of responsiveness. These are matters of client service. The contextdoes, however, require consideration. Disclosure is often made piecemeal.Defence counsel are usually extremely busy juggling a number of demanding clients.Mr Johnston was clearly working on the file without the appellant and his mothernecessarily being aware of it. For example, the application for non-party disclosure.21[89] We agree with Mr Johnston's assessment that a great deal of the materialprovided by (or on behalf of) the appellant, while useful background perhaps,could not be used at the trial, given it was hearsay, irrelevant and/or raised issues aboutthe sexual experience of the complainants.[90] The fact remains that, by the time of trial, Mr Johnston had clearly receivedmeaningful instructions. His cross-examination of the complainants was relativelywell-structured and thorough. Mr Johnston worked through the allegations, raisingthe inconsistencies identified by the appellant. There was a good level of coordinationand specific lines of cross-examination with each complainant relying on informationonly the appellant could have provided. Such coordination could not have beenachieved without Mr Johnston and the appellant reaching an understanding aboutthe defence theory of the case and how it would be advanced. When the appellantgave evidence, he was led in an appropriate manner and given the opportunity toreinforce the issues raised in cross-examination of the complainants.[91] Mr Johnston had a strategy and an explanation for the allegations, which headvanced to the jury right from the outset. In his closing address to the jury,Mr Johnston drew the threads together and focused on the inconsistencies inthe complainants' evidence — for example, where at the appellant's workthe offending against V had taken place, whether or not H had a broken leg, as she hadalleged, the historic nature of the charges, discussion of ACC pay-outs, whether21 In saying that, the application was made on 15 September 2017, very close to the trial date.We do not overlook Mr Tomlinson's criticism that there were procedural deficiencies inthe application.the pornography belonged to the appellant's brother or not, and the context ofthe family dynamics.[92] Therefore, while we agree there might have been legitimate complaints aboutaspects of Mr Johnston's responsiveness and availability to the appellant prior tothe trial, the appellant has not established any specific prejudice as a result ofthe alleged inadequacy of Mr Johnston's preparation. Indeed, we consider the factthe jury acquitted or were hung on a number of charges points in the opposite direction.In short, in our assessment, Mr Johnston did a good job in the face of a compellingCrown case.[93] We conclude that any deficiencies in client service did not result in amiscarriage of justice.(c) Failure to advise the appellant on his election, prepare him to give evidence,and engage a communications assistantFailure to advise and prepare appellant[94] The appellant said:I never had a meeting with my lawyer to discuss the evidence I would give.My lawyer never provided me with a brief of my potential evidence or satdown with me and prepared one. In fact, right up to the point after the Crownfinished their case I was advised by my lawyer that I would not be givingevidence. I was completely taken by surprise when he then told me I wouldbe giving evidence. It was never put to me that I had a choice about this butmore that I needed to give evidence. I was not prepared at all.[95] The appellant did not accept that he always wanted to give evidence.The appellant said he was told by Mr Johnston he would not be giving evidence andhe understood that to be the position until told by Mr Johnston at the conclusion ofthe Crown case that it would be in his best interests to give evidence. He maintainedhe did not know what he would be asked.[96] The appellant believed his dyslexia and lack of preparation seriously affectedhis evidence and what he described as his "obvious confusion" at some of thequestions he was asked. He said no-one suggested he could have had the benefit of acommunications assistant.[97] Although acknowledging he signed the Case Instruction Checklist (a formprovided by Mr Johnston that recorded his election to give evidence), the appellantsaid he did not know what he was signing, Mr Johnston did not take him throughthe checklist, he could not read it and he simply trusted Mr Johnston.[98] Mr Johnston said he went through the checklist point by point explaining it tothe appellant and the appellant initialled each point.[99] The checklist is undated. It deals with eight numbered issues andthe appellant's initials are shown alongside seven of the eight. Not all sections ofthe checklist have been fully completed. For example, item three records the electionof "jury/judge alone trial". Neither option is shown as selected. It records receipt ofdisclosure but the date is not specified.[100] Item eight records the decision to "testify at trial". When giving evidence,the appellant was unable to read the word "testify" as it appeared in item eight ofthe checklist. He thought "to testify" meant "to speak" but was not sure about that.[101] Mr Johnston said the appellant had been advised throughout that he may needto give evidence. He described the appellant as happy and willing to do so.Mr Johnston was of the opinion that the appellant had a concise, clear and very goodmemory of the case and events. He did not consider the appellant was caught out byCrown questioning, saying that the appellant did a good job giving evidence.[102] Mr Johnston was not of the opinion that the appellant neededa communications assistant, given the issue was with his dyslexia, which also meanta written brief of evidence would have been of little value. He described the appellantas fully knowledgeable and prepared on the basis of his responses to each separatewitness.[103] Mr Johnston said the final decision was made at the conclusion of the Crowncase. Mr Johnston said two of the complainants in particular gave compellingevidence and he advised the appellant to give evidence. He said the appellant wantedto deny the offending before the jury.[104] In our view, it would have been obvious from the outset that the appellantwould likely have to give evidence. There was no police interview to draw on for hisversion of events. The appellant had declined to participate in an interview on legaladvice from a lawyer (not Mr Johnston) contacted by the police on his behalf.[105] In cross-examination, Mr Johnston often referred the complainants tothe evidence the appellant would give. Indeed, the appellant had to give evidence inorder for a number of matters canvassed in the complainants' cross-examination tocarry any weight. That is, without his evidence, there would have been no evidentialfoundation for many of the propositions put to the complainants.[106] These circumstances support Mr Johnston's evidence that the appellant hadalways known he would likely have to give evidence. We accept that Mr Johnstonadvised the appellant that he had the right not to give evidence but that it was hisopinion he should do so, particularly given the strong evidence from the complainantsat the trial. We also agree with that assessment.The appellant's evidence at trial[107] Mr Johnston took the appellant through the allegations in chronological order.He began by asking him about V and the allegations that she had made, involvingoffending at his workplace. The appellant was able to give evidence in some detailabout what had occurred when V accompanied him to work.[108] Mr Johnston asked the appellant about the environment at his home, elicitingevidence of the number of people staying and visiting, and that it was a busy house.This painted a picture for the jury about the lack of opportunity for, and unlikelihoodof, offending. He asked the appellant who was in charge of looking after the childrenand generally laid the foundation for the defence — that the appellant's wife primarilyhad the childcare responsibilities, that the appellant was a hard worker both at workand at home, where he worked on cars outside, that there was a box of pornographybelonging to his brother in the shed and that he did not have time to use the computer.[109] The appellant was asked about and explained the arrangement in the"man cave". He said it was not a "man cave" but said it was really for his dogs becausehe had about eight at the time.[110] When asked about whether he had committed any offending in the bathroom,the appellant explained that, when he needed to wash his hands, he would use thewashhouse because he would have oil on his hands from working on his cars andneeded to use washing powder to clean them.[111] The appellant proved well able to stand up to challenges in cross-examination.For example, when it was put to him that he used the "man cave" for social purposes,not only did he say that was wrong but he gave a reason for his answer, which was that"it was yucky in there and it smelt". The issue of the drain running under the"man cave" had already been discussed with some of the witnesses, for example L,who conceded there was a drain and it smelled. This was important both to establishthe appellant's credibility but also because it reinforced his version of events that the"man cave" was not used for social purposes and that, because of the need to cover upthe drain with a bean bag, L's description of hiding under the table in the "man cave"when others approached could not have been correct because there was insufficientroom.[112] Mr Tomlinson referred to two specific examples to demonstrate the appellant'slimited oral communication skills. The first was:Q. So when she has specific memories about sitting out there fordrinking, smoking, watching television on one occasion she iscompletely wrong?A. Yeah we don't drink. Coffee but no alcohol.Q. Okay, I think that probably wasn't the point of the question, point ofthe question is this was an area for sitting out there and socialisingmight be a better way to put it.[113] We cannot see any difficulty with this exchange and the appellant'sinterpretation of the question was entirely understandable. In fact, he then took theopportunity to undermine L's evidence by raising the issue of the drain.[114] The other example was:A. We've only had one going TV and that's in the lounge.Q. It's portable isn't it?A. No, the TV is not portable.Q. You can't pick it up and move it?A. Yes you can but —Q. That's what portable means.A. — not — yeah it was quite heavy.[115] Again, we do not consider this exchange particularly disadvantagedthe appellant.[116] The appellant was quite capable of requesting clarification if he did not fullyunderstand propositions put to him. For example, asking the prosecutor to "rephrase"a question, telling the prosecutor he was "jumping a bit", saying he did not understand,or that he was getting a little lost. At one point he explained that he was dyslexic andthe questions had become somewhat overwhelming.[117] We do not consider the appellant was shown in a disadvantageous light by theseexchanges. Indeed, in some of them, his observations and implied criticisms of thequestions were justified.[118] The appellant was challenged (repeatedly) on his claim that he never hadanything to do with childcare and was never alone with the complainants.His evidence was that his wife always had control of the children and he had no sayin their activities. He had to concede that there were occasions when he looked afterthe complainants. This enabled the Crown to put it to the appellant that he waschanging his evidence and doing so because he wanted to hide the truth from the jury.[119] The appellant's defence included his contention that he did not have theopportunity to offend against the complainants as they alleged. His position that hewas never alone with the children might have been inadvisable but that was theposition he was entitled to take and on which he was legitimately challenged. He isnot the first witness who has had to qualify earlier answers when cross-examined.[120] In other instances, the appellant responded robustly to challenge, saying he wasnot changing his evidence. When his evidence was at odds with that of his wife,resulting in it being put to him that he was suggesting she had "falsely remembered",he adroitly responded, "[w]ell it was a long time ago so she could've got it wrong".[121] The appellant's evidence about V's allegations was clearly consideredcompelling by the jury, given he was convicted on one only of the charges relating toher allegations. This is despite being challenged about his description of the layout ofhis workplace, the feasibility of his version of events, the fact he had not told his wifethat V had allegedly tried to initiate sexual contact and it had been put to him that hisevidence was a fantasy.[122] The appellant made concessions when appropriate to do so, for exampleaccepting a towel worn by him could have fallen off in front of V.[123] We therefore cannot agree with Mr Tomlinson's observation that the answersgiven by the appellant in cross-examination demonstrate that he was ill-prepared togive evidence.[124] We have considered the report from Ms Wright, the communication expert.It would appear to be the case that, when he gave evidence, the appellant operated ata higher level than on the day of his testing by Ms Wright. Despite the appellant'sdyslexia, he certainly presented to us as being relatively articulate when givingevidence at the hearing of his appeal and it appears he was so during his evidence attrial as well. The issue identified by Ms Wright as to the appellant's expressivelanguage difficulties was not apparent when he gave evidence, perhaps because thequestions and answers were confined to factual matters.[125] Prior to trial, Mrs S (the appellant's mother) effectively played the role ofa communications assistant and obviously did a very good job, considering the graspof the various issues the appellant demonstrated when giving evidence.[126] We do not therefore accept Mr Tomlinson's submissions that the appellant'sdisabilities had a real impact on his evidence and was detrimental to his case. We donot agree that he was seriously disadvantaged by the lack of a communication reportand adoption of procedures to assist. We are not satisfied that the use of suchprocedures might reasonably have led a jury to return different verdicts.[127] For these reasons, we are not persuaded by this ground of appeal.(d) Failure to call defence witnesses[128] The appellant says there were a number of witnesses he wanted called.Although R and the appellant's brother, D, and an old friend of the appellant werecalled, the appellant wanted others called, including his son, and several neighboursand regular visitors to his property. He said the witnesses could have given evidenceon the nature of the household, the regularity of people staying and visiting and whatthe appellant normally did. He said it was never explained to him why they were notcalled.[129] Mr Johnston said he contacted those identified by the appellant as potentialwitnesses but many did not wish to give evidence or had little practical, usefulevidence to provide. Although the appellant's son and niece had been prepared to giveevidence, their proposed evidence was inconsistent with that given by the appellant.Mr Johnston said he advised the appellant of his opinion that they should not giveevidence in the circumstances and the appellant agreed.[130] We do not accept the criticism concerning the failure to deal with potentialdefence witnesses properly. Mr Johnston's evidence that he did not call two intendedwitnesses because their evidence would undermine that given by the appellant oncertain matters was not challenged. Furthermore, there is no affidavit evidence fromother prospective witnesses who the appellant says should have been called but werenot. Without that, the relevance and probative value of any evidence they could havegiven cannot be assessed.Conclusion[131] For the reasons given, we are satisfied the issues complained of as to trialcounsel's incompetence, taken separately or cumulatively, did not result in amiscarriage of justice.Prosecutor's closing address[132] In Mr Tomlinson's submission, there was no basis for the prosecutor'scomment to the jury in his closing address:The Crown says in terms of what you heard, in terms of behavioural issuesand so forth, why were they troubled and acting up? Because they had beensexually abused by the defendant for a number of years.[133] The Judge in his summing up said:There was vague reference to troubled girls. I suggest you disregard that,ladies and gentlemen. You decide this case on the evidence you have heard inthis Court, [134] In Mr Tomlinson's submission, the jury should have been told in strong termsthat there was no evidence to support the prosecutor's statement. The jury should havebeen instructed that they were not to link any misbehaviour with sexual abuse and thatthere could be many reasons why misbehaviour could occur.[135] There was evidence of behavioural issues. As we have mentioned, L saidthe offending against her stopped only once she started being naughty, got a "manbun" and shaved the sides of her head. She started smoking more, going out, swearingand associating with "all the naughty people". There was, therefore a link drawn byL between her behaviour and the offending, albeit it was her explanation for whythe offending against her stopped. There was also evidence V had been a difficultchild, began smoking at an early age and lied to her caregivers about it. The Judgethen ruled that the defence was not permitted to ask V further questions about theseaspects of her behaviour when she was young.2222 R v [I] CRI-055-371, 2 November 2017.[136] More to the point, perhaps, it was the appellant who put this in issue.Indeed, that was the context of this aspect of the prosecutor's closing.Immediately before the passage to which Mr Tomlinson objected, the prosecutor said:Indeed, when Detective Norton did come to speak to the defendant, what hesaid about the allegations was, "They've got boyfriends and I'm the bad one."Something to that effect.It's a matter for you, but you might think this is pretty telling and [a] deliberateway for the defendant to blacken character, really divert attention away fromhimself, and there was a similar kind of reference, this is not intended to be acriticism but in the defence opening address that the fact that these are troubledgirls, you know, behavioural issues, and that has come up to some extent onthe evidence. Suggestion perhaps therefore that these girls are less likely totell the truth or something. There is very limited evidence of that what thebehavioural issues were and so forth, you can't put much weight on it.[137] The prosecutor himself informed the jury they could not put much weight onthis issue and the Judge informed the jury to disregard any suggestion they weretroubled girls. The prosecutor did not suggest that the complainants' behaviouralissues were evidence the allegations were true.23[138] In the context of the closing address as a whole, and in light of the two factorswe have identified, we do not regard this as an issue of concern.Result[139] The application for leave to appeal out of time is granted.[140] The appeal is dismissed.23 Compare R v Henderson [2007] NZCA 524 at [56]–[58]; and R v A (CA664/2008) [2009] NZCA250 at [32]–[33].[141] The complainants' names and identifying details are automatically suppressedpursuant to ss 203 and 204 of the Criminal Procedure Act 2011. We orderthe suppression of the appellant's identity, and the identities of his wife, mother andbrother, in order to protect the identities of the complainants.24Solicitors:Crown Law Office, Wellington for Respondent24 Criminal Procedure Act, ss 200(2)(f) and 202(2)(d).