PRITCHARD v NEW ZEALAND POLICE [2020] NZHC 3363

PRITCHARD v NEW ZEALAND POLICE [2020] NZHC 3363 [16 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000033[2020] NZHC 3363BETWEEN JADE PRITCHARDAppellantAND NEW ZEALAND POLICERespondentHearing: 7 December 2020Appearances: Caitlin Oxnam and Genevive Vear for the AppellantLydia Wilson for the RespondentJudgment: 16 December 2020JUDGMENT OF MOORE J[Appeal against conviction]This judgment was delivered by me on 16 December 2020 at 4:00 pm.Registrar/ Deputy RegistrarDate:Introduction[1] On 17 September 2019, Jade Pritchard was convicted on one charge of burglaryby Judge L Tremewan, following a Judge-alone trial in the Wāitakere District Court.[2] Mr Pritchard appeals his conviction on the grounds:(a) he was unable to make an informed decision whether to give evidence;and(b) he was not able to make an informed decision whether to call anywitnesses in support of his defence.[3] The Police say the appeal should be dismissed because:(a) Mr Pritchard was properly advised on the questions of giving evidenceand calling witnesses; and(b) in any event, a different election on those decisions would not haveaffected the outcome of the trial.[4] We must allow Mr Pritchard's appeal if we are satisfied that, for any reason, amiscarriage of justice has occurred.1Extension of time for leave to appeal[5] A notice of appeal must be filed within 20 working days after the date ofsentence for the conviction appealed against or with leave of the Court.2 The timeallowed for filing any such notice may be extended at any time by the first appealCourt.3[6] Sentencing took place on 25 November 2019. The notice of appeal wasrequired to be filed no later than 23 December 2019. Mr Pritchard's appeal was not1 Criminal Procedure Act 2011, s 232(2).2 Section 231(2).3 Section 232(3).filed until 30 January 2020. He thus requires leave of the Court to extend the time forfiling.[7] The "touchstone" for granting an extension is whether it is in the interests ofjustice.4 The Court of Appeal recently condensed the principles of extension to twoquestions; first, why the proposed appeal was filed late and, secondly, whether it hasmerit.5 Kós P stated that in reality, the second question will be determinative of theinterests of justice.[8] Mr Pritchard has filed evidence explaining the reason for the delay. He sayshe incorrectly believed his trial counsel had filed an appeal.[9] The application of the relevant principles dictates a grant of leave. The delaywas not significant and Mr Pritchard has given a legitimate and uncontradictedexplanation. The appeal has merits. Furthermore, there is no prejudice to the Crownin granting leave and it is not opposed. Leave is granted.The facts of the offending[10] Mr Pritchard worked for a distribution warehouse company which suppliesproducts to industrial customers. Outside business hours the warehouse is locked andaccess is by key and a keypad code. CCTV security cameras capture movementoutside and inside the premises.[11] The prosecution case, as accepted by the trial Judge, was that about 6:15 amon Saturday, 19 May 2018, Mr Pritchard went to his employer's premises. As is usualover the weekend, the warehouse was closed and secured. Mr Pritchard used a staffcode to enter the building. He took the keys to a forklift which he used to uplift awooden crate containing a brick saw. He loaded it onto the back of his ute and left.[12] A little under an hour later, at 7:05 am, he returned. Again, using the forklift,he removed a second wooden crate containing another brick saw which he loaded ontohis ute and left.4 R v Knight [1998] 1 NZLR 583 (CA) at 587.5 Smith v R [2020] NZCA 221 at [3]-[4].[13] Neither brick saw has been recovered. They have a combined total value of$3,600.District Court decision[14] The sole issue at trial was whether Mr Pritchard was the burglar. The Judgesummarised the evidence. She noted, more than once, that Mr Pritchard had not givenor called evidence in his own defence and that in certain respects the evidence againsthim was thus uncontradicted.[15] The Judge noted that it was "perfectly apparent that whoever it was who stolethe brick saws, had the means to access the warehouse and knew what they were doing.It was the offending the Judge described as an "inside job", a conclusion she reachedhaving regard to:(a) the uncontradicted evidence of Mr Dennis, who was Mr Pritchard'simmediate boss at the company regarding the keys and access codes;(b) the CCTV footage showing the offender using a fork hoist "evidentlyably" and selecting the two brick saws in boxes (whose contents mighthave been obscured with shrink wrap); and(c) the fact the offender would need to know how to access the building,use the equipment and know where the goods in question were stored.[16] The Judge noted that the independent observer could not identify the offenderfrom the CCTV or still photographs. This was because the person's face is unclear.However, Mr Dennis maintained that it was evident the burglar was Mr Pritchard. Hesaid that he had worked with Mr Pritchard for over six years and recognised the wayhe carried himself and his physique. Comparing the person in the footage withMr Pritchard, Mr Dennis described Mr Pritchard's way of moving as follows;" sluggish in the way that he carries himself with a bit of a kink in his rightleg or a kick out of his right leg and a hunching over when he sits in the forkhoist."[17] Mr Dennis gave evidence that Mr Pritchard was one of the few people who hadkeys to access the premises because he had been given a set the summer before inorder to use the workshop to undertake repairs on his motorcycle. The CCTV footageshowed that keys were used to open the door. Mr Dennis said that a day or so afterthe burglary, Mr Dennis asked Mr Pritchard to return the keys which he did. He thenimmediately resigned. In cross-examination it was suggested to Mr Dennis that thekeys held by Mr Pritchard had been returned earlier. Mr Pritchard was adamant thatthe keys were handed back shortly before Mr Pritchard resigned.[18] It was also suggested in Mr Dennis' cross-examination that the reasonMr Pritchard resigned was because he had been effectively demoted. Mr Dennis didnot accept this. Instead, he said that Mr Pritchard was given new duties due to hisunreliable attendance. Mr Dennis said those issues had been resolved before theburglary.[19] The evidence was that the codes used to access the building wereindividualised. The code used by the burglar was one reserved for a Mr Mita.Mr Dennis maintained that he had given Mr Pritchard Mr Mita's code becauseMr Mita had left and was believed to be living in Rotorua. Mr Dennis was emphaticthat only Mr Pritchard had that code. There was no evidence that Mr Mita had anykeys.[20] The prosecution also called a Mr Beeby, a police officer whose daughter hadpreviously been in a relationship with Mr Pritchard. Mr Pritchard stayed at the Beebyhome following the break up. On 27 May 2018, about a week after the burglary,Mr Beeby, was out of Auckland when he received a text message from Mr Pritchard.The message read:"Morning Marty, I was in a rush for time on Friday and had to leave a mate'sbrick cutter at your place outside just until Monday. I've just used your tarpto shelter box from the rain."[21] Mr Beeby said that he saw the item when he returned home. It was sitting ona pallet under a tarpaulin. It was less than a metre square but, because of the covering,he was unable to see much more. He said the item was later moved from the propertyand that Mr Beeby's wife and another helped Mr Pritchard load it onto the back of hisute.[22] The Judge found that although Mr Pritchard was not the only person whowould have had the necessary knowledge and ability to access the premises, he wouldhave been one of just a few. He was one of only two who used the code that the burglarused. That evidence, combined with the evidence that shortly after the burglaryMr Pritchard was in possession of a brick cutter, led the Judge to observe that theevidence pointed clearly to Mr Pritchard.[23] The Judge determined it was unsafe to place any weight on Mr Dennis'purported identification of Mr Pritchard from the footage.[24] She found Mr Pritchard guilty and remanded him on bail for sentence.The evidence filed on appealMr Pritchard[25] Mr Pritchard has made two affidavits. He has waived privilege in respect ofthe advice his trial counsel, Mr English, gave him.[26] The first affidavit describes his pre-trial dealings with Mr English and whathappened on the day of the trial. His second affidavit responds to matters raised inMr English's affidavit, which is discussed below.[27] The essence of Mr Pritchard's evidence is that before the trial he met withMr English on about five occasions most, if not all, coinciding with scheduled casemanagement hearings. He claims he sent Mr English multiple emails setting out hiscase and claimed he kept notes of the discussions. He accepts that he had some fiveto 10 phone calls with Mr English but maintains these were brief and covered singlequestions. They were primarily instigated by Mr Pritchard.[28] He claims he told Mr English about the employment issues he had withMr Dennis and sent him documents he had received from his union relating tocomplaints he had made against Mr Dennis who had earlier accused him of stealing atrolley jack. He said that everyone at the company knew he had a poor relationshipwith Mr Dennis to such an extent that a week before the burglary, he raised with hisunion whether he should resign.[29] Mr Pritchard places considerable weight on the difference between a brickcutter and a brick saw. He says that the item which was left at Mr Beeby's addresswas a brick cutter which he used for a cash job. It was not a brick saw of the typestolen in the burglary. He told Mr English about the difference and why the brickcutter had been left at the Beebys'. He showed Mr English pictures of the differenttools.[30] He said that before the trial he had a discussion with Mr English about potentialwitnesses from his workplace who could, if called, confirm that his relationship withMr Dennis was poor. He gave Mr English copies of the email correspondence he hadwith the union revealing the workplace difficulties. He said that Mr English seemedto think this evidence would not be helpful despite Mr Pritchard's belief it would showthat he had previously been falsely accused of theft by Mr Dennis.[31] According to Mr Pritchard, at no stage before the trial did he sit down withMr English and discuss the events or give his side of the story. No brief of evidencewas prepared. He says that approximately two weeks before the trial Mr English toldhim that he thought that "we had enough" and that Mr Pritchard would not be requiredto give evidence.[32] However, on the morning of the hearing, Mr Pritchard claims he had everyintention of giving evidence and spoke to Mr English about this. He said this was atabout 10:30 am but they ended up only discussing procedural matters.[33] Mr Pritchard says that he cannot recall if Mr English specifically asked himwhether he had any witnesses. He certainly did not discuss the possibility of anadjournment so witnesses could be called. Mr Pritchard says he was not aware that anadjournment for this purpose was even an option.[34] The trial commenced at approximately midday and when the luncheonadjournment was taken, Mr Dennis was still giving his evidence-in-chief.Mr Pritchard says that during lunch they talked for about 10 or 15 minutes about howthe case was going. He said that Mr English gave the impression that in his view thetrial was going well. Mr Pritchard cannot recall discussing whether he should giveevidence.[35] After lunch the Police case continued and when it finished, Mr Pritchard saida break was taken for him to talk to Mr English. He said that at this time Mr Englishasked him some "practice questions" before saying it was not necessary for him togive evidence. He said that Mr English told him that the evidence had gone well andthat he believed there was a reasonable doubt. He said Mr English mentioned somerisks about giving evidence although he cannot recall exactly what was said. However,he was left with the firm impression that in Mr English's opinion, he had establishedsufficient doubt not to require Mr Pritchard to give evidence. He said the entirediscussion during this break occupied around 10 minutes during which Mr Pritchardsigned a document recording that he did not wish to give evidence. He says he thenwent out to have a cigarette before the hearing resumed.Mr English[36] Mr English was admitted to the bar in 2014. Since that time he has practicedentirely on his own account, specialising in criminal defence. Before that he was aPolice prosecutor for seven years.[37] He says he was first assigned to the case by Legal Services in April 2019. Heappeared at various procedural hearings thereafter.[38] He says he had "a large amount of phone correspondence" with Mr Pritchardprior to the trial. He met with him for approximately one-and-a-half hours to discussthe case and evidence on 5 August 2020 at the Wāitakere District Court. He says thatMr Pritchard's defence involved a denial he was the burglar; it must have been anotheremployee or ex-employee. He said that the brick cutter stored at Mr Beeby's homewas different from a brick saw of the type stolen. He said that he got the brick cutterfrom a friend who worked in trade but could not provide that person's details.[39] Mr English says he did not complete a brief of evidence at that point. This wasbecause Mr Pritchard's defence was that someone else had committed the crime andbecause Mr Pritchard had outlined his version of the events on many occasions.Mr Pritchard claimed he was at home at the time of the burglary but had no alibi andno witnesses to support his version of events. Because the burglary was captured onCCTV footage, the defence would necessarily focus on establishing whether anotherperson with the skills to use the forklift, could have had access to the building at thattime.[40] Mr English says that Mr Pritchard told him he had some material witnesseswho would say that other workers had keys to the business. Mr English says that herepeatedly told Mr Pritchard that these people would need to come to Court and, ifnecessary, they could be summonsed. Mr English says that Mr Pritchard was unableto provide him with their names or contact details.[41] Mr English claims that on the day of the trial he met Mr Pritchard at 9:00 amto prepare for the hearing. Mr Pritchard told him that none of his co-workers wereavailable to come to Court that day and were unlikely to be available in the future.Mr English explained that they would need to come to Court if their evidence was tobe adduced. He says that Mr Pritchard indicted that he wished to proceed withoutthem.[42] Mr English says that he had previously explained to Mr Pritchard that he wouldnot be required to make a final decision on his election until after the Police case hadbeen completed. As it happened, most of the prosecution case was concluded by thelunch adjournment. The Police's principal witness was Mr Dennis. He gave evidencethat Mr Mita had previously worked at the premises and in cross-examination acceptedit was conceivable Mr Mita might still have the keys to the building. He knew how toaccess and drive the forklift in the manner seen in the CCTV footage. In Mr English'sview, Mr Dennis accepted it was possible that Mr Mita could have come to Aucklandand committed the crime. Mr English's view of the case was that reasonable doubt asto the identity of the burglar had been established through the concessions made byMr Dennis under cross-examination.[43] Mr English says he spent the whole lunch adjournment with Mr Pritcharddiscussing the case and whether he should give evidence. They undertook some"practice cross-examination" to demonstrate the sort of questions Mr Pritchard wouldlikely face if he gave evidence. Mr English says there were a number of aspects ofMr Pritchard's narrative for which he did not have an answer. These included wherethe item he had stored at Mr Beeby's home had come from, and an absence of anycontemporary documentary record tending to support his claim that it was a brickcutter and not a brick saw, that it belonged to someone else and that it was being usedby Mr Pritchard on a cash job. Irrespective of Mr Pritchard's insistence it was a brickcutter, Mr Beeby never examined it carefully. Although covered with a tarpaulin, theitem was contained in a wooden crate of comparable size and weight to the brick sawsstolen.[44] Mr English came to the view that Mr Pritchard's evidence would havestrengthened aspects of the case against him. Furthermore, while he could have givenevidence about his ongoing conflict with Mr Dennis, that would have opened him upto cross-examination over the earlier accusations regarding the theft of the trolley jack.Mr English considered this would not be helpful and, in any event, Mr Dennis hadmade concessions regarding his "history" with Mr Pritchard.[45] Notwithstanding these issues, Mr English maintains he did not have a strongview on whether Mr Pritchard should give evidence. He said he discussed the questionof the election with Mr Pritchard for over an hour, outlining its pros and cons. He saysthat although he left the question for Mr Pritchard to decide Mr Pritchard was firm andclear that he did not wish to give evidence and would rely on the reasonable doubtarising from Mr Dennis' evidence. Mr English then took written instructionsconfirming that decision.SubmissionsAppellant[46] Ms Oxnam, for Mr Pritchard, submits that Mr Pritchard was not provided withadequate advice on his right to give evidence and, as a consequence, justice hasmiscarried.[47] She says that while Mr English took instructions on whether Mr Pritchardwished to give evidence, he did not adequately advise Mr Pritchard on theconsequences of not giving evidence including:(a) he would be unable to provide background information about hisrelationship with Mr Dennis;(b) he would be unable to explain the differences between a brick cutterand brick saw and his explanation for possessing the brick cutter; and(c) he would be unable to explain to the Court the alarm code he used andwhether he had keys at the time of the burglary.[48] The importance of this evidence to the Judge's reasoning is evident by herrepeated comments regarding Mr Pritchard's election not to give evidence.[49] Ms Oxnam says that while Mr Pritchard's preference was to give evidence, hewas persuaded by Mr English's confidence that it was unnecessary to do so.[50] Furthermore, Ms Oxnam submits that Mr Pritchard was never properly advisedof the consequences of not giving evidence, namely that Mr Dennis' evidence wouldnot be contradicted and, as a result, Mr Pritchard was unable to make an informeddecision on whether to give evidence. This error was compounded by Mr English'sfailure to prepare a brief of evidence.[51] Additionally, Ms Oxnam submits that Mr Pritchard was not fully informed inrelation to the calling of witnesses in support of his defence. Despite advisingMr English of a number of potential defence witnesses and Mr English's advice thathe would let him know if they were needed, the subject was not raised again. At notime was Mr Pritchard given meaningful advice on the process of arranging possibledefence witnesses or the merits of calling such witnesses on his case. Ms Oxnamsubmits that a witness from Mr Pritchard's union could have confirmed thatMr Pritchard had complained about his relationship with Mr Dennis before theburglary. Furthermore, a witness from Mr Pritchard's employer could have confirmedthe evidence of animosity as well as explaining the difference between a brick cutterand brick saw.[52] As a consequence of these serial errors by Mr English, Mr Pritchard was deniedthe ability to make an informed decision on how best to respond to the Police case.His right to a fair trial was thus significantly impaired leading to a miscarriage ofjustice.Respondent[53] Ms Wilson, for the Police, submits that Mr Pritchard plainly knew at the endof the prosecution's case he would be required to make a final decision as to whetherto give evidence. He was competently advised of the advantages and disadvantagesof doing so. He had spoken with Mr English multiple times and they had met inperson. His instructions to Mr English were consistent throughout. Mr Pritchard wasfully engaged in the preparation of his defence and, Ms Wilson submits, his decisionnot to give evidence was thus an informed one.[54] As for not preparing a brief of evidence, Ms Wilson submits Mr English knewMr Pritchard's position on all the relevant issues against a background of fullengagement in the form of telephone conversations and face-to-face meetings.[55] Mr English fully explained the advantages and disadvantages of Mr Pritchardgiving evidence. The case was not complex and Mr English had tested Mr Pritchard'sability to respond to potential questions under cross-examination. He did not, himself,have a strong opinion on whether Mr Pritchard should give evidence and properly leftthe decision to Mr Pritchard.[56] Ms Wilson submits in those circumstances Mr Pritchard was well positionedto make an informed decision on his election. His decision not to give evidencereflected an informed choice made on the basis of what he had observed in the courseof the trial, his cross-examination practice and the advice given by Mr Englishoutlining the benefits and risks of giving evidence.[57] More particularly, in response to Ms Oxnam's submissions on those aspects ofevidence which Mr Pritchard could have addressed had he given evidence, she pointsout that the difference between a brick saw and a brick cutter would not have assisted.Both his affidavit evidence and oral testimony at the hearing before me would not havehelped. His explanation was that he had been doing a cash job for the owner of thebrick cutter who did not want to be identified. Mr Pritchard also claimed he wasconcerned about exposing himself to liability for tax evasion.[58] Secondly, the fact there had been difficulties between Mr Pritchard andMr Dennis was acknowledged during Mr Dennis' cross-examination. Ms Wilsonsubmits it is not clear how giving further evidence on this issue would havestrengthened the defence. She points to Mr English's observation that it might wellexpose Mr Pritchard to the earlier allegations that he had stolen a trolley jack.[59] As for the alarm code and keys, Ms Wilson refers to Mr English's evidencethat in his opinion Mr Dennis had created a reasonable doubt as to whether anotherperson, with the requisite knowledge of the alarm code and set of keys could, in fact,have been the burglar. Additionally, Mr Pritchard's employer had 10 employees at thetime of the burglary and Mr Dennis' evidence was that multiple people would use thesame code as that used by the burglar. Furthermore, Mr Dennis' evidence was that therecord of those who used what code and how many keys were in circulation was notregularly maintained.[60] Finally, the question of when the keys were returned to Mr Dennis was notmaterial. Mr Pritchard told Mr English he had returned the keys to Mr Dennis beforethe burglary, but he also told him he had been able to access the factory on weekendsto work on personal projects. He could borrow a set of keys and return them later.[61] Ms Wilson thus submits that Mr Pritchard's evidence could not have had apositive impact on his case in the way he claims. Furthermore, even if there was anerror on Mr English's part in advising him as to his election, any such error did notcreate a risk of a miscarriage of justice.[62] On the question of not calling witnesses, Ms Wilson submits that neither of theproposed classes of witness could have assisted Mr Pritchard. According toMr English, Mr Pritchard was unable to provide him with the contact details of hisformer co-workers or the person who he was undertaking the cash job with.[63] Thus, Ms Wilson submits that Mr Pritchard made an informed choice not togive evidence or to call witnesses and even if an error had been made, it did not leadto a miscarriage of justice.DiscussionThe principles[64] The right to a fair trial is a guaranteed right.6 Implicit in that right is the rightto be represented at trial by competent counsel who meet the relevant standards andcomply with the relevant statutory, regulatory and common law obligations imposedon trial counsel.7[65] Counsel error is grounds for appeal under either:(a) s 232(4)(a), where it can be shown that counsel's conduct created a realrisk the outcome of the trial was affected; or(b) s 232(4)(b), where trial counsel erred on fundamental matters, such asfailure to follow specific instructions relating to plea, the giving ofevidence or advancing a defence based on the accused person's versionof events.8 The error must be of sufficient seriousness to warrant theverdict being set aside without further enquiry.9 If the Court finds therehas been an unfair trial in terms of this section, the conviction must be6 New Zealand Bill of Rights Act 1990, ss 25(a) and (f).7 Hall v R [2015] NZCA 403 at [1].8 Hall v R [2015] NZCA 403 at [65]; Tarring v R [2016] NZCA 452 at [36]; Saumanaia v R [2020]NZCA 459.9 Wiley v R [2016] NZCA 28 at [41].set aside. It is not necessary to consider whether this may have affectedthe outcome of the trial.10[66] The Supreme Court in Sungsuwan v R emphasised the need for an appeal Courtwhen considering any appeal on the grounds of conduct of defence counsel, to retainits focus on the question of whether a miscarriage of justice has occurred, rather thanfocusing on whether there were shortcomings in counsel's performance and how thoseshortcomings might be characterised:11" 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. Butwhatever approach is taken, it must remain open for an appellate court toensure justice where there is real concern for the safety of a verdict as a resultof the conduct of counsel even though, in the circumstances of the time, thatconduct may have met the objectively reasonable standard of competence."[67] In my view, the determinative question on this appeal is whether Mr Pritchard'selection not to give evidence was fully and properly informed and if it was not whetherjustice miscarried.[68] Rule 13.13.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct andClient Care) Rules 2008 ("the Rules") states:"When taking instructions from a client, including instructions on a plea andwhether or not to give evidence, a defence lawyer must ensure that his or herclient is fully informed on all relevant implications of his or her decision andthe defence lawyer must then act in accordance with the client's instructions."[69] The footnote to r 13.10.8 of the Rules also states:"A lawyer may assist a witness in preparing to give evidence by assisting inthe preparation of a brief of evidence, and by pointing out gaps,inconsistencies in the evidence (with that witness's evidence or the evidenceof other witnesses), the inadmissible nature of proposed evidence, orirrelevancies in evidence that the witness is proposing to give."10 At [37].11 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730, (2005) 21 CRNZ 977 at [70].[70] Advising a defendant as to whether he/she should give evidence has beencommented on numerous times both in this Court and the Court of Appeal. Anydecision must be an informed one.[71] For example, in Chambers v R the Court of Appeal observed:12"It is the client's decision as to whether he or she will give evidence. It iscounsel's responsibility to ensure it is an informed decision, and to giveadvice, in firm terms if they wish, about what would be best. But it remainsthe client's decision."[72] In Tarring v R the Court of Appeal reaffirmed the principle in the followingway:13"The election whether to give evidence is a decision for the client but it mustbe an informed decision and it is for counsel to ensure that the client has thenecessary information, conveyed in an appropriate and timely way, to makethe decision."Was Mr Pritchard's decision not to give evidence informed?[73] This was a case which required the Judge to be satisfied to the criminalstandard that Mr Pritchard was the burglar. There was no direct evidence on the issue.Proof was necessarily by way of inference.[74] The prosecution claimed the Judge should draw the inference Mr Pritchard wasthe burglar because:(a) he had possession of or access to the keys;(b) he had knowledge of the key pad access code;(c) he knew where the keys to the forklift were and was a competentforklift operator; and(d) an item of consistent shape and size to one of the brick saws stolen wasin Mr Pritchard's possession within a short time after the burglary.12 Chambers v R [2011] NZCA 218 at [5].13 Tarring v R, above n 8 at [26].[75] To displace the inference, it was necessary for the defence, either in cross-examination of the prosecution witnesses or by Mr Pritchard giving and/or callingevidence or both to place before the Court a credible counterfactual.[76] I accept Mr English's evidence that no properly informed decision, irrespectiveof Mr Pritchard's claimed preference to give evidence, could be made until after theprosecution's case had concluded. Until then, a mature and considered assessment ofthe strength of the evidence simply could not be made.[77] In his first affidavit, Mr Pritchard says that while he did have possession of akey, he returned that to Mr Dennis a month or so before the burglary. At the time ofthe burglary he did not have a key. As for the access code, he said he had never usedthe one used by the burglar. He used a different code which was shared by at leastthree other employees.[78] Mr Dennis' evidence was that Mr Pritchard was one of the few who had keys.He said that Mr Pritchard retained these keys until the week following the burglarywhen Mr Dennis, believing Mr Pritchard to be implicated in the burglary, asked himto return the keys, which he did. He then immediately resigned. Mr English cross-examined Mr Dennis suggesting to him that the keys had been returned earlier.Mr Dennis remained steadfast that the keys were handed over after the burglary, veryshortly before Mr Pritchard resigned. In the absence of evidence contradicting thispart of Mr Dennis' account, it was all but inevitable that the Judge would find as a factthat Mr Pritchard returned the keys in the circumstances described by Mr Dennis.[79] On the question of the access codes Mr Dennis said that Mr Pritchard was oneof only a few who had the individualised access code used by the burglar. He said thathe gave Mr Pritchard Mr Mita's code because Mr Mita had left and relocated.Mr English cross-examined him on the point. He put to him that others had this accesscode. Mr Dennis was not shaken. He was firm that the only people who had thisaccess code at the relevant time were either Mr Pritchard or Mr Mita and, implicitly,Mr Pritchard was the only one who had possession of both the key and knowledge ofthe access code.[80] In his affidavit, Mr English says that before the trial Mr Pritchard told him thatthere were witnesses who could say that other workers had keys to the business.Mr English says he repeatedly told Mr Pritchard that they needed to come to Court forthe hearing but Mr Pritchard was unable to provide their names or contact details.[81] Mr English says that in his opinion Mr Dennis accepted it was possible thatMr Mita could have come to Auckland and committed the crime and, for that reason,he was of the view that reasonable doubt had been established. In his evidence beforeme, Mr English said that in cross-examination Mr Dennis conceded that Mr Mita mayhave had a set of keys, could have had the access code and that he had no idea whereMr Mita was at the time of the burglary. Mr English said that the evidence "fell awayso quickly [because Mr Dennis] had really accepted all those points and then we hadto make a decision from there". However, when the passage in question was put toMr English he accepted that there was no clear concession of that sort.[82] Another, potentially significant aspect of Mr Dennis' evidence was that he didnot accept there was a longstanding animus between him and Mr Pritchard. Thisevidence was relevant to the timing of Mr Pritchard's resignation which, onMr Dennis' evidence was closely linked to the return of the keys shortly after theburglary. In other words, as I understood Ms Oxnam's submission might, if not morefully explained, be evidence that Mr Pritchard resigned because he knew he was a keysuspect for the burglary. Mr Pritchard's evidence, perhaps bolstered by a unionwitness, would have assisted in proving that Mr Pritchard had been contemplatingresigning for some time.[83] I regard both these aspects of Mr Dennis' uncontradicted evidence, assignificant features of the circumstantial case against Mr Pritchard.[84] The other material component of the prosecution case was the presence of theitem Mr Pritchard left at Mr Beeby's home. Mr Pritchard placed considerableemphasis on the importance of the distinction between a brick saw and a brick cutter.I regard that distinction as having no bearing on the issue. Mr Beeby's evidence wasthat when he arrived home he saw a wooden crate sitting on a pallet covered by a bluetarpaulin. He estimated the dimensions to be about 700 cms square. He could not tellwhat was in the crate. Mr English did not cross-examine him.[85] Plainly this was powerful evidence for the prosecution. It placed an item ofgenerally comparable dimensions to the item stolen in Mr Pritchard's possessionwithin days of the burglary. Mr Pritchard insists that he has a cogent explanationconsistent with innocence, that is that the item was a brick cutter borrowed from afriend and that he was using it for a cash job. Even in his evidence before me,Mr Pritchard seemed unnecessarily coy about disclosing the identity of the owner ofthe brick cutter or for whom the cash job was being done. If he had given evidence itis inevitable he would have been cross-examined on this point and his failure or refusalto explain the provenance of the item is likely to have counted against him.[86] However, the question for me is whether his decision not to give evidence wasan informed one within the meaning that term has been given in the case law. I amsatisfied that it was not for the reasons which follow:(a) First, Mr Dennis' evidence strongly implicated Mr Pritchard as theburglar. It also tended to eliminate any others, including Mr Mita. Theonly mechanism to place before the Court Mr Pritchard's exculpatoryaccount was for Mr Pritchard to give evidence.(b) Second, no brief of evidence was prepared. Mr English says that wasbecause he knew Mr Pritchard's version of events and was"comfortable with his position". I accept, consistent with theobservations of the Court of Appeal in Western v R that the failure toprepare a brief is not, of itself, an error that is necessarily fatal to adefendant receiving a fair trial, the assessment of the significance ofdoing so is contextual.14While I agree that Mr Pritchard's defence was reasonablystraightforward, the preparation of a brief would have provided a14 Western v R [2019] NZCA 541 at [35].reference and context which would focus any discussions on whetherMr Pritchard should give evidence or not.(c) Third, Mr English's assessment of whether a reasonable doubt had beencreated, while necessarily intuitive, was unduly optimistic. Theevidence, particularly that of Mr Dennis, had not gone as well forMr Pritchard as Mr English believed. Without defence evidence tocontradict it, it was all but inevitable that the Judge would acceptMr Dennis' evidence which, on its own, was likely to be sufficient tosupport a conviction.(d) Fourth, while there were obvious dangers around Mr Pritchard'sexplanation for the item left at Mr Beeby's, this evidence leftuncontradicted added materially to the case against Mr Pritchard.Furthermore, without his evidence that he knew Mr Beeby was a Policeofficer, the Judge was unable to consider the likelihood of Mr Pritchardleaving a stolen item at a serving Police officer's home.(e) Fifth, Mr Pritchard's written confirmation "I don't wish to give verbalevidence today" is the only independent, documentary evidenceavailable of the fact that the issue of an election was raised. I acceptMr English's comment that in his opinion, the question of whether ornot to give evidence was "a close call". There were obvious risks andbenefits. However, without a contemporaneous record of the principalcompeting factors, it is difficult not to be left with the clear impressionthese issues were not adequately ventilated. In particular, Mr English'sevidence that he advised Mr Pritchard that in his opinion Mr Dennis'evidence alone could establish a reasonable doubt. For reasons I havealready given, I cannot agree. If Mr Pritchard was to present aneffective defence his only option in the circumstances was to giveevidence. Absent evidence tending to contradict Mr Dennis, the Judgehad little option but to find as she did. Her oral judgment reflects thisin the following passages taken from the judgment:15"The defendant elected not to give or call evidence. Ofcourse, there is no obligation on him to do either. It does notchange the onus or burden of proof, but it is relevant in thesense that when the Court is considering all the evidence thatis before it, there is no sworn testimony from Mr Pritchard oranyone called by him."And when discussing Mr Dennis' account of Mr Pritchard surrenderingthe keys and immediately resigning, the Judge said:16"As will be obvious from what I have said earlier,Mr Pritchard has elected not to give evidence so there is noevidence on oath that would conflict with what Mr Dennis hassaid about Mr Pritchard's possession of the keys at therelevant time."And in relation to Mr Beeby's evidence:17"And so there is, again, uncontroverted evidence, as it turnsout, that Mr Beeby has been informed by Mr Pritchard that hewas storing or leaving a brick cutter at Mr Beeby's address fora short period and this was approximately a week after theburglary. "And:18" There is, as well, of course, some evidence that thedefendant had an item in his possession approximately a weeklater which he himself described it as a brick cutter and, asI've noted, no explanation has been proffered as to thecircumstances of that. That is not to say that it is for adefendant to assume the responsibility of proving his or herinnocence, but this is, ultimately a case in my assessmentwhere all the evidence, when it is lined up, clearly points tothe defendant."[87] It follows that I am satisfied that Mr Pritchard was denied the opportunity tomake an informed choice on whether or not to give evidence and, as a consequence, Iam satisfied that there has been a miscarriage of justice.15 Judgment at [5].16 At [12].17 At [16].18 At [20].Was Mr Pritchard able to make an informed decision on whether to call witnesses inhis defence?[88] My finding on the previous question means that I am not required to considerthe second complaint Ms Oxnam advances, namely that Mr Pritchard was denied theability to make an informed decision as to whether to call witnesses in his defence.[89] However, for the sake of completeness, I accept Mr English's account of hisdealings with Mr Pritchard on the question of calling witnesses and witnessavailability and I do not find this ground of appeal made out.[90] Mr English's evidence was that he asked Mr Pritchard about potentialwitnesses from an early point in their dealings. In particular, apparently in response toa question from Mr English, Mr Pritchard claimed there were witnesses who could sayother workers had keys to the warehouse. Mr Pritchard accepts there were earlydiscussions about witnesses.[91] However, in his first affidavit Mr Pritchard claims that he discussed withMr English that former co-workers could give evidence of the animus between himand Mr Dennis, including the allegations he had stolen a trolley jack. Curiously,nowhere in his first affidavit does he mention discussing with Mr English anywitnesses who might have supported his account regarding the keys and codes despitethe fundamental importance of this aspect to his defence.[92] As for the brick cutter left at Mr Beeby's, it is only in his second affidavit, afterMr English had deposed that Mr Pritchard could not give him the owner's contactdetails, does Mr Pritchard mention that the owner was reluctant to assist. In hisevidence before me Mr Pritchard was entirely unconvincing on his claimed reluctanceto identify the owner of the brick cutter. He was evasive and his claim that the ownerhad told him he would deny he was doing cash jobs if called as a witness was stretched.If Mr Pritchard could have thrown reasonable doubt on the provenance of the brickcutter it would have neutralised a major plank of the prosecution's case. His claimabout protecting his associate or the identity of the person for whom the work wasbeing undertaken did not ring true given the centrality of this aspect of evidence.Indeed, the Judge's comments on that very question, as set out earlier in this judgment,underscore the importance of the issue in the eyes of the fact finder.Conclusion[93] In coming to the conclusion that the appeal should be allowed, I do notoverlook the recent warning of the Court of Appeal in Saumanaia v R againstdefendants resorting to appellate remedies when attempting to reverse an adverseresult on the grounds of counsel's conduct:19"A defendant who is acquiesced in his or her counsel's advice not to go intothe witness box him or herself will usually have great difficulty in showingany miscarriage of justice on that account."[94] I agree that great caution must be exercised in these circumstances, particularlyin cases such as the present where the evidence supporting the prosecution case wouldappear to be strong. Appellate Courts should not provide a vehicle for "another bite ofthe cherry" where tactical trial decisions, often finely balanced and nuanced, mightlater be regretted. The question will always be a decision for the defendant to make.But it must be a properly informed decision made following legal advice whichbalances the risks against the benefits.[95] Here counsel's advice regarding his assessment of the strength of the defencecase was misplaced. I am satisfied that assessment, at the very least, stronglyinfluenced Mr Pritchard's decision not to give evidence. It follows I am satisfied amiscarriage of justice has occurred and the appeal should be allowed.Result[96] Appeal allowed.19 Saumanaia v R, above n 8 at [27].[97] A re-trial is ordered and the matter is remitted back to the District Court forrehearing.Moore JSolicitors:Public Defence Service, AucklandCrown Solicitor, Auckland