KEREMETE v R [2023] NZCA 105

KEREMETE v R [2023] NZCA 105 [13 April 2023]NOTE: PUBLICATION OF THE NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF THE COMPLAINANTS IS PROHIBITEDBY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF THE NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF 18YEARS WHO APPEARED AS A WITNESS IS PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA275/2018[2023] NZCA 105BETWEEN JAMIE DEAN KEREMETEAppellantAND THE KINGRespondentHearing: 20 February 2023Court: Clifford, Wylie and Whata JJCounsel: V C Nisbet and S W Campbell for AppellantM J Lillico for RespondentJudgment: 13 April 2023 at 11 amReissued: 21 November 2023Effective dateof Judgment: 13 April 2023JUDGMENT OF THE COURTA The appeal is dismissed.B Publication of the names, addresses, occupations or identifying particularsof the complainants is prohibited by s 203 of the Criminal Procedure Act2011.C Publication of the names, addresses, occupations or identifying particularsof any persons under the age of 18 years who appeared as a witness isprohibited by s 204 of the Criminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] Following a trial before Palmer J and a jury in the High Court at Rotorua, on23 February 2018, the appellant, Jamie Keremete, was convicted of the followingcharges:(a) in respect of the victim H, injuring with intent to injure and unlawfulsexual connection; and(b) in respect of the victim M, male assaults female (a representativecharge), sexual violation by unlawful sexual connection, threatening tokill, wounding with intent to cause grievous bodily harm andintentional damage.[2] Mr Keremete was acquitted of 13 other charges. The details are as follows:(a) in respect of H, two charges of injuring with intent to injure (onerepresentative), a charge of sexual violation by rape (alsorepresentative) and a charge of sexual violation by unlawful sexualconnection (also representative); and(b) in respect of M, three charges of injuring with intent to injure, twocharges of sexual violation by rape (both representative), a charge ofmale assaults female (also representative) and three charges ofthreatening to kill.[3] Mr Keremete was subsequently sentenced to 13 and a half years' imprisonmentby Palmer J and required to serve a minimum period of imprisonment of six years andnine months.1[4] Mr Keremete appeals his convictions. He says that there has been amiscarriage of justice, arguing that:(a) Katz J, in a pre-trial ruling,2 erred in ordering joinder of the chargesalleging offending against H with the charges alleging offendingagainst M, and in ruling that the evidence of each complainant wasadmissible as cross-propensity evidence in relation to the chargesrelating to the other. Palmer J should have appreciated the error,aborted the trial and directed separate retrials;(b) propensity evidence was unfairly used by the Crown at trial. This errorwas compounded because Palmer J failed to properly direct the jury onthe use that could be made of the propensity evidence; and(c) his counsel failed to put his version of events fully to H, to M and toother Crown witnesses and, as a result, did not expose importantinconsistencies through cross-examination.[5] There is no appeal against the sentence imposed.[6] The notice of appeal (and the written submissions filed) also asserted thatPalmer J erred in not giving a reliability direction to the jury pursuant to s 122 of theEvidence Act 2006. This allegation was abandoned before us.[7] Mr Keremete initially sought leave to adduce further evidence before us.This application was also abandoned.1 R v Keremete [2018] NZHC 730.2 R v Keremete [2016] NZHC 3113.The alleged offending[8] The circumstances which gave rise to the charges Mr Keremete faced at trialcan be summarised as follows.M's allegations[9] In about July 2015, the appellant and M began a relationship. At first, theylived around [REDACTED] and often stayed together. In November 2015, theymoved to [REDACTED] together, moving in with each other. The relationship endedin about late January/early February 2016.[10] In the early morning on 10 February 2016, M was sleeping in her car at the topof a cul-de-sac in [REDACTED]. Mr Keremete had been sending M aggressive textsthat night. M had decided not to stay at her mother's house out of concern thatMr Keremete would be waiting for her there.[11] M awoke in the early hours of the morning to find Mr Keremete standing nextto her car holding a crowbar or something similar. He was wearing a balaclava butlifted it showing her it was him. He then smashed the front window of her car, pulledM from the car by the hair and assaulted her, causing her to fall to the ground. As shegot up Mr Keremete hit her in the knee with the crowbar, knocking her back down.M ran away, yelling and screaming. She was chased by Mr Keremete. M ran into aneighbour's house. She was in hospital for two days for treatment on her knee, whichrequired surgery.[12] On the basis of these allegations, Mr Keremete was charged with woundingwith intent to cause grievous bodily harm and intentional damage.[13] On 21 February 2016, M took part in an electronically recorded interview withthe police. In the course of that interview, she described not only the events of thenight of 10 February but also other incidents of offending she said had occurred duringher relationship with Mr Keremete. M related that, on multiple occasions, whilst theywere living in [REDACTED], Mr Keremete was verbally, physically and sexuallyviolent towards her. In a pre-trial judgment, Katz J summarised these allegations asfollows:3[15] Soon after they got together Mr Keremete became possessive,verbally abusive and physically violent. This involved pushing, punching andkicking. If she would try and leave, Mr Keremete would prevent her. He waspossessive and routinely accused her of sleeping with other men.[16] On one occasion, they were standing by his car, which was parkedoutside his brother's address. He began abusing her, accusing her of "being upto no good" with other men. He pushed her around and then forced her intothe car. He grabbed her by the hair and pulled it back forcefully. He then tookher inside the bungalow on the property and threw her on the bed. He forcedhimself on her. She did not want to have sex but was scared that he was goingto continue to hurt her if she refused.[17] In November 2015, they moved to [REDACTED]. They lived in aflat behind Mr Keremete's sister's house. He was extremely possessive andrepeatedly accused her of seeing other males. The complainant was frequentlybeaten and threatened. This involved punching, slapping and pushing.Mr Keremete would frequently call her a "whore" or a "slut". The incidentsslowly got worse. They mainly occurred in November and December, butthere was some offending in January.[18] On occasions Mr Keremete would keep the complainant confined inthe flat for long periods. If she tried to leave or said that she was leaving, hewould rip her clothing from her and make her sit naked in the middle of theroom on the floor. On some occasions she was able to escape but he wouldpursue her and force her back into the flat.[19] On multiple occasions Mr Keremete forced the complainant to havesex, often immediately after he had assaulted her. Sometimes this occurredthree or four times a day. If she did not do what she was told, he would getviolent. The more she resisted the more frenzied he became. The complainantfelt like a sex slave and would tell him she could not handle his violence andthat she did not want to be with him. He would do things like cover her facewith a pillow to the point where it was difficult for her to breathe.[20] On further occasions the complainant was tied to the bed. Her legswere bound with a pair of her tights and she was not allowed to leave. If shetried leaving he would punch her in the face. He also threatened to tattoo"whore" on her forehead. She had to plead with him not to do it.[14] Based on these allegations, Mr Keremete faced two representative charges ofrape and two representative charges of male assaults female covering, in each case,the periods the couple had lived together at [REDACTED] respectively.3 R v Keremete, above n 2.[15] M also made a number of allegations of particular offending by Mr Keremetewhilst they were living in [REDACTED]. As a result, Mr Keremete also faced eightfurther particular charges of offending said to have occurred at [REDACTED]comprising:(a) Sexual violation by unlawful sexual connection – putting his fist in hergenitalia.(b) Injure with intent to injure – biting her breasts and genitalia.(c) Injure with intent to injure –putting his fist down her throat.(d) Injure with intent to injure – forcing leggings down her throat.(e) Threaten to kill – on the occasion he forced leggings down her throathe threatened to strangle her.(f) Threaten to kill – threatened to pour petrol over her and set her on fire.(g) Threaten to kill – threatened to drive her into the Waikato River.(h) Threaten to kill – threatened to cut her head off with a samurai sword.H's allegations[16] H had started a relationship with Mr Keremete in mid-2007: their relationshipwas on and off until it ended in 2011. [REDACTED]. The relationship was markedby frequent episodes of violence. The police had been involved with the couple onnumerous occasions. Mr Keremete had pleaded guilty to charges of common assaultin March 2012, assault with intent to injure, three charges of threatening to kill and/orcause grievous bodily harm, and one charge of contravention of a protection order.[17] In 2011, H had initiated further and more serious complaints of offendingthroughout their relationship, but she had moved to Australia before these complaintshad been investigated. M's complaint of offending by Mr Keremete prompted thepolice to approach H afresh. H had by then returned to New Zealand, knowing of M'sallegations against Mr Keremete.[18] H took part in an electronically recorded interview on 20 February 2016.Katz J summarised H's allegations during that interview in the following way:[10] Throughout the course of their relationship Mr Keremete allegedlycommitted multiple acts of physical and sexual violence against thecomplainant. He would regularly belittle her and call her names like "slut"and "whore". He was paranoid and controlling. He suspected that thecomplainant was being unfaithful with almost every male that she had contactwith. Mr Keremete even suspected that she was having sexual contact withhis brother and father. He would not permit her to work and would keep herinside the home for extended periods of time. She lost contact with familyand friends and lived in constant fear of his outbursts.[11] Mr Keremete was physically violent towards the complainant on aweekly basis, including slaps, punches, kicks and strangulation to the pointwhere it was hard for her to breath. He usually targeted his attention to herbody to avoid obvious facial bruising. But there were times when she hadblack eyes and bruises. He made her wear makeup to prevent questions fromothers.[12] Mr Keremete also demanded sexual intercourse or oral sex on analmost daily basis. If the complainant refused he would become upset andangry. In order to avoid further beatings she often relented, though she didnot want to. Often sex was accompanied by violence. On at least twooccasions Mr Keremete forcefully grabbed the complainant's vagina with hishands and twisted and punched the skin. This was painful but he persisted.[19] On the basis of these allegations, Mr Keremete faced representative charges ofrape, unlawful sexual connection and injuring with intent, covering the period of therelationship from 1 January 2006 to 31 December 2011. He also faced one charge ofunlawful sexual connection and two charges of injuring with intent, based onallegations relating to a specific incident said to have occurred in June 2008 followinga night at a hotel bar. H alleged Mr Keremete had, over the course of six to eighthours, repeatedly punched and sexually assaulted her in his car. During this, he had,among other things, put his fist into her vagina.The appeal[20] The appeal is brought pursuant to s 229 of the Criminal Procedure Act 2011.Section 232 of that Act relevantly provides that the Court must allow the appeal, interalia, if a miscarriage of justice has occurred for any reason. A miscarriage of justiceis defined as any error, irregularity or occurrence in or in relation to or affecting thetrial that has created a real risk that the outcome of the trial was affected, or has resultedin an unfair trial or a trial that was a nullity.4[21] It is trite law that not every error or irregularity will result in a miscarriage ofjustice. A miscarriage is something more than an inconsequential or immaterialmistake or irregularity.5 There must be a real risk of an unsafe verdict. A real risk willarise "if there is a reasonable possibility that a not guilty (or a more favourable) verdictmight have been delivered if nothing had gone wrong".6 An appellant does not haveto establish a miscarriage in the sense that the verdict actually is unsafe; "[t]hepresence of a real risk that this is so will suffice".7 The focus is on "realistic ratherthan theoretical possibilities".8[22] Against this background, we consider each of the grounds of appeal raised byMr Keremete.Joinder/the cross-admissible propensity evidenceThe pre-trial rulings[23] The Crown sought orders that both sets of charges be joined and heard at thesame trial, and that the evidence of each complainant concerning their relationshipwith Mr Keremete and their allegations of his sexual offending and physical violencebe cross-admissible in relation to the charges pertaining to the other complainant.The Crown also sought to have a number of Mr Keremete's previous convictions anddomestic violence callout records involving H admitted as propensity evidence at thejoint trial.4 Criminal Procedure Act, s 232(4).5 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; Wiley v R [2016] NZCA 28,[2016] 3 NZLR 1; Misa v R [2019] NZSC 134, [2020] 1 NZLR 85.6 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].7 At [110]; and see Tuia v R [1994] 3 NZLR 553 (CA) at 555.8 Misa v R, above n 5 at [46] quoting Wiley v R, above n 5, at [28].[24] In her ruling on joinder, the Judge referred to s 138 of the Criminal ProcedureAct and discussed the relevant principles summarised by this Court in Churchis v R.9She accepted the Crown's submission that, if the evidence underpinning the chargesrelating to H and the evidence underpinning the charges relating to M was likely to becross-admissible on a propensity basis, there would be no reason for the charges to beheard separately.[25] The Judge set out the proposed evidence discussed the nature of propensityevidence and discussed each of the factors in s 43(3) of the Evidence Act (dealing withthe admission of such evidence). She noted that the likely trial issue would be whetheror not the offending occurred; the defence case was that both complainants were lying.She acknowledged that domestic violence is not inherently unusual. She neverthelessconsidered that some of the alleged characteristics of Mr Keremete's domesticrelationships were unusual. In both relationships, Mr Keremete was alleged to beenextremely possessive and paranoid that his partners were being unfaithful. The allegedoffending against both complainants included degrading violence. Both were allegingviolence by Mr Keremete using his hands or fist to attack their genitalia (the fistingcharges) as well as frequent sexual offending. The Judge held that the degradingnature of the alleged violence was well outside the norm.[26] As a result, the Judge accepted the Crown's submission that the extent of thelinkage and coincidence and the probative value of the proposed evidence was high.She acknowledged that the evidence would be prejudicial to Mr Keremete but she didnot consider that it was unfairly prejudicial. She observed that the risk of the evidencebeing used by the jury for an improper purpose or in support of impermissiblereasoning could be mitigated through appropriate jury directions by the trial Judge.On this basis, the Judge concluded that it was in the interests of justice for the chargesto be heard together, with the evidence in relation to each complainant being cross-admissible in relation to the other complainant.9 Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257.The submissions[27] Mr Keremete did not appeal Katz J's pre-trial ruling. He has deposed that hewas not told that he could do so; he says that he did not receive advice in this regardfrom either his lawyer at the time or from the lawyer who was later instructed to actfor him at trial—Mr William Nabney. Mr Keremete's assertions had not been put toeither lawyer but for present purposes, we accept them. Even though he did notchallenge the pre-trial ruling, and even though Mr Nabney did not ask that the trial beaborted and separate trials ordered, before us it was argued for Mr Keremete thatPalmer J erred in allowing the evidence of each complainant to be used in consideringthe charges involving the other complainant and in failing to order separate trials.[28] Mr Campbell on Mr Keremete's behalf, acknowledged that the admissibilityof the cross-propensity evidence is based on the concepts of linkage and coincidence.He submitted, however, that the various factors set out in s 43(3) are not exhaustive.He argued that Katz J should also have taken into account other considerations,including the underlying "plausibility, credibility and reliability" of the allegationsmade. It was said that the evidence of both complainants was inherently implausible(and that this was reflected in the fact that the jury rejected the majority of theirallegations). It was also said that Katz J erred in finding that the alleged sexualviolence was unusual. It was put to us that sexual offending against adult womencannot itself be regarded as unusual and that the Judge over emphasised the allegationsof fisting. It was also asserted that M's allegations were "comparatively bizarre andextreme" and that they were significantly different to the allegations made by H.It was noted that there was a gap of some four years between the allegations made byeach complainant. Further, it was suggested that H may have received informationabout the nature of M's allegations before making her complaint. It was further arguedthat once the cross-propensity evidence had been given at trial, Palmer J should haveappreciated that its probative value had been significantly eroded and taken intoaccount "the plausibility of the postulated coincidence". Given the prejudicial impacton Mr Keremete, it was said that, had the Judge considered this issue, he would haveruled the evidence of each complainant inadmissible in relation to the allegations madeby the other, aborted the trial and directed separate trials.[29] Mr Lillico, for the Crown, argued that the evidence of each complainant hadand continued to have significant probative value in relation to the offending allegedby the other. He noted that both H and M had been in relationships with Mr Keremete.He accepted that there was a gap between the two relationships—H was in arelationship with Mr Keremete between 2006 and 2011 and M was in a relationshipwith him between September 2015 and January 2016. He submitted that four years isnot however a lengthy gap, given the nature of domestic relationships. Both allegedthat during their respective relationships, Mr Keremete was highly possessive and thathe thought they had been unfaithful to him. He demanded frequent sexual intercourseand repeatedly threatened or inflicted violence to get his way. Significantly, bothalleged that he used violence against their genitalia. H alleged that in June 2008,Mr Keremete punched her multiple times in her vagina and tried to stick his handinside her. She said that she was in agony and begged him to stop. He neverthelesscontinued squashing and pulling her vagina. She said that he did so multiple times.M alleged that in late 2015/early 2016, Mr Keremete forced his fist into her vagina.He was wearing large rings at the time. Mr Keremete's actions ripped her vagina,caused injury and made her bleed. Mr Lillico submitted that Katz J was right to orderjoinder and to rule the evidence of each complainant was cross-admissible in relationto the charges involving the other complainant. He said that the complainants'evidence did not change at trial and that there was no basis for Palmer J to abort thetrial and direct separate trials.Relevant law[30] As Katz J noted, joinder and severance are governed by s 138 of the CriminalProcedure Act. Relevantly, s 138(4) provides that if the Court before which theproceeding is being conducted considers it is in the interests of justice to do so, it may,on its own motion or on the application of the prosecutor or a defendant, order thatone or more charges against the defendant be heard separately. Such an order can bemade before or during a trial. If it is made during the course of a jury trial, the jurymust be discharged from giving a verdict on the charges in respect of which the trialis not to proceed.[31] The principles relevant to joinder/severance were summarised by this Court inChurchis v R.10 The Court there noted as follows:11[28] Counsel were agreed that the principles applicable under s 138(4) arematerially the same as those under the former s 340 of the Crimes Act 1961.These are well settled and include the following:(a) Offending that is unrelated in time or circumstance should notbe tried together, unless the evidence of one incident isrelevant to another to an extent that its probative valueoutweighs its prejudicial effect. That relevance may arise in avariety of circumstances, such as where the facts are sosimilar or the allegations interconnected to a point that itwould be artificial to present them separately.(b) Joinder may be granted if evidence relevant to one count isalso relevant to one or more other counts.(c) The practicalities of the criminal process may be taken intoaccount including the degree of connection between thecharges; the impact of successive trials on the accused andwitnesses; and the likely effect of publicity of the first andsubsequent trials.(d) Prejudice to the accused is a factor to be taken into account.The fact that the accused may be obliged to give evidence isa relevant but not a decisive consideration.(e) The discretion is wide. In the end, what is required is abalancing between the legitimate interests of an accused andthe public interest in the fair and efficient despatch of theCourt's business.[32] Whether or not evidence is admissible will often be important to the issue ofjoinder/severance. It is normally appropriate to hear charges together where thealleged offences are interconnected and evidence relating to each offence is admissiblein relation to the other offences. Conversely, charges arising from incidents unrelatedin time or circumstance should not generally be heard together, unless evidence as toone is relevant to another to such an extent that the probative value outweighs itsprejudicial effect.12 Where it is sought to admit the evidence of one complainant inrelation to allegations made by another complainant on a propensity basis, it will notgenerally be in the interests of justice to order separate trials.13 It can also be10 Churchis v R, above n 10.11 Footnotes omitted.12 R v W [1995] 1 NZLR 548 (CA) at 555; R v E (CA369/03) (2004) 20 CRNZ 847 (CA) at [18].13 Banks v R [2011] NZCA 469 at [12]; McGowan v R [2011] NZCA 159 at [12]; M(CA85/13) v R[2013] NZCA 239 at [16]–[17]; R v O (CA433/12) [2012] NZCA 475 at [20].appropriate to try charges together where other evidence is admissible on eachcharge.14 Any risk of illegitimate prejudice can be avoided by careful directions to thejury.15Analysis[33] Mr Keremete was charged with violence related offending against both H andM. He was also charged with sexual offending against each of them. Allegations ofsexual violence—the fisting charges—were common to both complainants. Both alsoalleged multiple acts of physical and/or sexual violence—pushing, shoving, slaps,kicks, strangulation and incessant demands for sexual intercourse or oral sex, oftenaccompanied by violence, actual or threatened.[34] Sadly, the domestic and sexual abuse of adult women is not of itself unusual16but, in Mr Keremete's case, the allegations made by each complainant involved morethan domestic or sexual abuse. The background circumstances were similar—bothcomplainants had been in a sexual relationship with Mr Keremete. In bothrelationships he was extremely possessive and paranoid. In both relationships, hedemanded sex repeatedly and used violence or threats of violence to obtain his way.The infliction of degrading violence, particularly to the genitalia of his partners, wasa very unusual feature.[35] Katz J found that Mr Keremete had demonstrated an extreme level ofpossessiveness; she considered that the degrading nature of the violence he inflictedon his partners was well outside the norm. We agree. While the events were allegedto have happened some four years apart, in our view they were interconnected both incircumstance and in nature to such an extent that it would have been artificial topresent them separately and to deny the jury the advantage of the full picture. Theimpact of separate trials on the witnesses was also relevant. Had separate trials beenordered, the complainants and other Crown witnesses would have had to give theirevidence and be cross-examined twice. What was required was a balancing of thelegitimate interests of Mr Keremete and of the public interest in the fair and efficient14 R v Tamehana CA171/03, 31 July 2003.15 Tsinu'ezjghi v R [2012] NZCA 80 at [32].16 See, Vuletich v R [2010] NZCA 102 at [38(f)].despatch of the Court's business. In our judgment, Katz J did not err in striking thatbalance in ruling that the cross-propensity evidence was admissible and in orderingjoinder.[36] On appeal it is belatedly being asserted for Mr Keremete that matters changedat trial and that therefore, the trial Judge, on his own motion, should have ruled thecross-propensity evidence inadmissible, aborted the trial and ordered severance. Theargument appeared to be that the verdicts showed that there were weaknesses in thepropensity evidence.[37] This was a curious argument. Both H and M had given evidential videointerviews prior to trial. However, each gave viva voce evidence at trial. Each largelyrepeated her various allegations. Each was extensively cross-examined; neitherresiled from her allegations. The key evidence did not change. Neither the prosecutornor counsel for Mr Keremete asked the trial Judge to reconsider the pre-trial ruling orto order separate trials.[38] Palmer J could not have been expected to anticipate what the jury might makeof the propensity evidence. That was the jury's function. In our judgment, the Judgedid not err by not ordering, on his own motion, that one or more of the charges againstMr Keremete be heard separately. There was nothing requiring him to do so.[39] This ground of appeal fails.Conviction history/call-out propensity evidenceConviction history/call-out evidence[40] At trial, the jury were given an admission of facts document prepared pursuantto s 9 of the Evidence Act. Relevantly, it recorded as follows:(a) on 3 July 2008, Mr Keremete pleaded guilty to and was convicted of acharge of speaking threateningly against H;(b) on 30 October 2008, the Rotorua District Court issued a protectionorder against Mr Keremete naming H as the protected party. The orderwas served on Mr Keremete on 2 February 2009 and it remained inforce thereafter;(c) on 4 March 2009, Mr Keremete pleaded guilty to and was convicted ofa charge of assault on H with a blunt instrument;(d) on 23 September 2009, Mr Keremete pleaded guilty to and wasconvicted of charges of wilful damage involving H's property andcontravening the protection order;(e) on 19 August 2010, Mr Keremete pleaded guilty to and was convictedof a charge of contravening the protection order and to being unlawfullyin possession of a firearm;(f) on 21 June 2012, Mr Keremete pleaded guilty to and was convicted ofa charge of assault with intent to injure, three charges of contraveningthe protection order and one charge of threatening to kill;(g) on 21 June 2012, Mr Keremete pleaded guilty and was convicted of acharge of common assault against another female victim in[REDACTED] (jointly the previous convictions); and(h) between 2006 and 2011, the police attended eight separate call-outs fordomestic incidents between Mr Keremete and H.(the call-out evidence).The pre-trial ruling[41] In her pre-trial ruling, Katz J considered amongst other things the admissibilityof this evidence.[42] The Judge accepted the Crown's submission that evidence of the previousconvictions was relevant because they involved controlling, demeaning and violentbehaviour towards women. None of the previous convictions involved sexualoffending but the Judge recorded that the Crown only sought to rely on the previousconvictions as propensity evidence in relation to the allegations of non-sexualviolence. She acknowledged that domestic violence is not inherently unusual, but sheconsidered that the previous convictions tended to demonstrate that Mr Keremete hasa propensity to be controlling, possessive, violent and paranoid in his domesticrelationships. She considered that this combination of traits was relatively unusualand that the previous convictions had significant probative value in relation to the non-sexual violence charges. She expressed the view that any risk of the jury adoptingimpermissible reasoning could be addressed through an appropriate direction by thetrial Judge.[43] The Judge also dealt with the admissibility of the call-out evidence. Sheconsidered that this evidence tended to corroborate H's account of her relationshipwith Mr Keremete—namely that it was characterised by frequent episodes of violence.The evidence had a bearing on the background and nature of the relationship betweenMr Keremete and H; if it was not admissible the absence of this broader evidenceabout the parties' relationship might mean that H's evidence as to the alleged offendingwould be incomplete and perhaps not comprehensible. The call-out evidence wouldassist the jury to understand the overall relationship dynamic between Mr Keremeteand H, including the fact that his behaviour towards her was such that she felt itnecessary to make numerous emergency calls to the police. Whether the call-outevidence could be admitted as propensity evidence in relation to the alleged offendingagainst M was less clear cut. The Judge considered the probative value of the evidencein relation to this alleged offending was "very low".17[44] As a result, and subject to any further directions that might be made by the trialJudge, Katz J ruled that evidence of the previous convictions was admissible aspropensity evidence in relation to both sets of charges alleging violent offending andthat the call-out evidence was admissible but only in relation to the alleged offendingagainst H.17 R v Keremete, above n 2, at [60].The submissions[45] Mr Campbell argued that a record of domestic violence offending does notsuggest a propensity for sexual offending or sexual violence. He submitted that theCrown unduly emphasised Mr Keremete's convictions in the course of the trial and inclosing and failed to address the permissible and impermissible use of the convictionevidence in relation to the sexual violation charges. He further argued that the trialJudge failed to rectify this error and did not direct the jury that it should not use theconviction and the call-out evidence when considering the sexual assault allegations.He submitted that the propensity directions given by the trial Judge were general incharacter and did not address the ruling by Katz J that the evidence of the previousconvictions was admissible only in relation to the non-sexual violence charges andthat the call-out evidence was admissible only in relation to the charges involving H.[46] Mr Lillico submitted that the trial Judge's direction was sufficient in light ofthe evidence as it came out at trial and the Crown case and that, in any event, the trialJudge was not bound by Katz J's pre-trial rulings. He argued that it became clear asthe trial progressed that the evidence of Mr Keremete's prior convictions was properlyadmissible in relation to both the sexual and non-sexual violence charges. Hesuggested that the fisting alleged to have occurred was part and parcel of the verbaland physical violence and the isolating and possessive behaviour that Mr Keremetemeted out to his domestic partners. He submitted that as a result, no distinction wasrequired in the Judge's propensity direction. He also noted that the Crown did not relyon the call-out evidence.Analysis[47] Mr Keremete's previous convictions were raised not infrequently in the courseof the trial. The Crown referred to them in its opening statement. So did the defence.[48] Relevantly:(a) the Crown prosecutor in opening referred to Mr Keremete'srelationship with H, noting that on numerous occasions, the policebecame involved. He observed that Mr Keremete had previously beenconvicted of various violence offences against H and also againstanother woman in [REDACTED]. He indicated that H's evidence wasgoing to be that Mr Keremete was a very possessive and jealous partnerand that in effect he had two personalities; he could be loving and caringone moment but he could also be jealous, possessive and violent inanother. Reference was made to Mr Keremete's previous convictionsand the prosecutor advised the jury that summaries of fact would beread out in relation to those convictions, so that the jury had a properunderstanding of the way Mr Keremete had behaved with H in the past.(b) Mr Nabney, in opening the defence case, also referred toMr Keremete's previous convictions. It was put to the jury that thatviolence had been accepted by Mr Keremete and had already been dealtwith by the Courts.[49] Mr Keremete gave evidence. He denied many of the summaries of fact towhich he had entered guilty pleas. He said that he had entered the guilty pleas forcollateral reasons. As a result, there was detailed cross-examination of Mr Keremeteby the Crown focusing, in large part, on his denials. We do not consider that the Crowncan be criticised for this. It was cross-examination which Mr Keremete brought onhimself.[50] In closing, the Crown prosecutor referred to the propensity evidence inconventional terms. The Crown focused separately on the previous convictions andon the fisting alleged by both complainants. Relevantly, the prosecutor said as follows:I do want to touch now on what we call propensity evidence as lawyers. Nowthis is in two parts really. The first part is or are all of the previous convictionsfor violence that Mr Keremete has against [H] and the other lady in Taupō andin relation to that first part my submissions are these. If you find that there isa link between admitted past offending, the facts which are contained in thatsection 9, if you think there is a link between what he's done to [H] and thatother woman historically and what he is alleged to have done to both of thesewomen in terms of the violence, then you can use that link as circumstantialevidence to bolster their credibility. If you don't think there is any linkbetween what he has done in the past and what he has done alleged to havedone now, then just put those previous convictions to one side. But if you doread that section 9 admission, and again I stress that these are facts which hepleaded guilty to and was sentenced and convicted on, if you do think there'sa link and in my submission there is a clear link that shows threateningbehaviour, it shows violent behaviour, it shows possessive behaviour thenthese are circumstantial evidence to support what the complainants are sayingabout the violence that they suffered at his hands.The second part of it, and I have already touched on it, is in relation to thenature of the evidence that they've separately given before you. In particularthe sexual evidence and the really unusual incidents involving fisting.Because in my submission to you there is no collusion here. That is simplysomething that the defendant's invented and if you agree with that position,then they haven't somehow got together behind his back to stitch him up thenwhat you're left with is [H] saying in 2011 she made a complaint about beingfisted earlier and in 2016 quite separately [M] makes the same complaint aboutbeing fisted. That's highly unusual sexual behaviour and the reason these twowomen can give that evidence and the reason they say that the defendant didthat to them is because he did, and if you think there's a link between whatyou're describing then you can use that as what we call cross-propensityevidence to bolster each of the female's complaints, to bolster their credibility.If you don't think there's a link, like I say, put it to one side and ignore it.The other warning I should give you is don't reason that just because he's beenviolent in the past means he must have been violent now. It doesn't work thatway and His Honour will give you a warning about that. But you can use it tobolster the complainants' credibility if you think there's that link and in mysubmission there is a link.[51] We are not persuaded it is fair to say the Crown resiled from the position it hadtaken before Katz J. On the face of things, the Crown maintained its position that theevidence of the previous convictions was propensity evidence in relation to what theCrown described as the "violence" charges. What in our view can be suggested,however, is that during the course of the trial, and as a result of the evidence beingplaced before the jury, the overall context had become clearer. In particular, and inour judgment, there was in this case no bright line between the charges allegingphysical violence and the charges alleging sexual violence, particularly given theviolence of the acts of "fisting" which constituted the acts of unlawful sexualconnection. Accordingly there was, in our view, at trial an acceptance by prosecutors,defence and the trial Judge that the distinction the Crown had recognised pre-trial, andwhich Katz J had accepted for the purpose of her ruling, was no longer meaningful.[52] The call-out evidence does not seem to have formed any significant part of theCrown case.[53] Mr Campbell did not particularise the assertion made for Mr Keremete that theCrown used the propensity evidence unfairly. There is nothing to persuade us that thepropensity evidence—either the cross-propensity evidence or the evidence of theprevious convictions—was unfairly or improperly used by the Crown at trial. TheCrown's case and its closing was, in our view, balanced and appropriate.[54] Mr Nabney, in closing the case for Mr Keremete, emphasised that, to find hisclient guilty, the jury would have to rely on the evidence of the two complainants. Hethen said as follows:The rest of the evidence you have heard to a certain extent is peripheral butit's important because it enables you to consider whether in fact you've beentold the truth by these two women or not because of course one of the thingsthat you can take into account is well is what I have heard, does it stack upwith other evidence or is there evidence which in fact makes me think wellthat doesn't sound right and I will talk firstly about [H] because that's first intime and it's probably easier if we just stick to the chronological order and youknow for a start that Mr Keremete has been convicted following his own pleasof guilty to various offences involving [H] and you will have with you in thejury room the admissions which signed by me on his behalf admitting thoseconvictions that he had entered guilty pleas to and also the summaries thatrelated to those offences.What those convictions show though is that [H] wasn't shy about contactingthe police. She's perfectly entitled to of course when she's been offendedagainst, of course she contacts the police and makes the complaint to the policeabout what's been done to her. That's not in issue and I'm not being criticalof her for that. It's what she should have done and she did do it. But what itdoes demonstrate is that in the course of her relationship with Mr Keremeteshe was in regular contact with the police and it wasn't just in relation toassaults and the like because you will see in the admissions document there isa reference to other police call-outs. That's where police have gone to theaddress and where there hasn't been any offending, where charges haven'tbeen brought because what that admission says is that in addition to the aboveconvictions, between 2006 and 2012, police have attended eight separate call-outs. These call-outs related to domestic incidents of verbal abuse betweenthe defendant and [H]. As there was no physical violence reported on any ofthese occasions no charges were filed. My point to you is this. [H] didn't justreport the assaults that Mr Keremete pleaded guilty to, she also reported verbalabuse. So what we have now though is a suggestion that well there was all ofthis other offending going on but for whatever reason she didn't or couldn'treport it. Well I suggest to you that when you think about that, and comparethat with her willingness to have the police involved when matters involvingsimple verbal abuse were involved, you may wonder why she now expectsyou to believe that she's telling the truth about all of these other things thatshe now says happened to her. [55] As can be seen, part of the propensity evidence – the call-out evidence – wassomething of a double-edged sword for the Crown. The defence were able to use it toput in issue H's credibility.[56] The trial Judge, in his summing up, said as follows:18Convictions[25] You have heard evidence of Mr Keremete's previous convictions foroffences against [H], and one against an unrelated female victim.Mr Keremete agreed he had pleaded guilty to those charges. But he disputedaspects of the summaries of facts for each offence, which formed the basis forhis guilty plea. I direct you that Mr Keremete's previous convictions areconclusive proof he committed the essential elements of those offences.Mr Keremete's suggestions he did not commit essential elements areinadmissible and must be disregarded. His guilt of those offences has alreadybeen established and should not be re-tested at this trial. You must proceed onthe basis he did actually commit those crimes.Propensity evidence[26] The Crown highlights similarities between the complaints by [M] and[H]. It also points to similarities between those complaints and the section 9admissions of Mr Keremete's previous convictions for offences against [H]and the unrelated female victim. The Crown says the similarities show apattern of behaviour which makes it more likely the defendant has committedthe offences. This is a legitimate argument only if you first accept that thereare similarities or a pattern.[27] The Crown says, in relation to both complainants, Mr Keremete has apropensity or a tendency to engage in violent, threatening and possessivebehaviour towards his partners. [The Crown prosecutor] also points to thesimilarities in [H's] and [M's] accounts of fisting, as highly unusual sexualbehaviour. He says these similarities make it more likely the defendant hascommitted the offences. He says they show he has a tendency to act that way,and that his behaviour follows a pattern.[28] The defence says, although these events occurred, they do not meanMr Keremete committed more violent acts against his partners. Mr Nabneysays all of Mr Keremete's violent offending was reported to police and hasalready been dealt with. He says that the similarities between thecomplainants' evidence may have come about due to [H] hearing about [M's]before giving her formal statement, or due to [H] telling [M] about her 2011statement before [M] made her statement.[29] So you need to ask yourselves: are you satisfied that there weresimilarities and do those incidents disclose an independent pattern ofbehaviour? If the answer is "yes", you accept the incidents disclose a patternof behaviour, then you can take that into account in deciding each of thecharges relating to each complainant. If the answer to that question is "no",18 R v Keremete, above n 1.there is no pattern or you think there was collusion between the complainants,you should put aside the earlier incidents. You should look at the evidencerelating to each complainant separately from the other, considering only thespecific evidence relating to each complainant.[30] Remember, you must in the end look at each charge. Do not think thatjust because the defendant has been involved in one or more offences orinstances of sexual misconduct or violence, if you decide he has been, that hemust therefore be guilty on all charges. You cannot decide the case onprejudice or dislike of the defendant.[57] As can be seen, the Judge did not confine his directions regarding the use ofthe propensity evidence generally to the charges alleging non-sexual violence. Rather,he proceeded on the basis that the cross-propensity evidence and the evidence of theprevious convictions were relevant to both the non-sexual violence and the sexualcharges. There is nothing in the materials before us to suggest that he discussed thiswith counsel before summing up the case. Given Katz J's pre-trial ruling, in our view,it would have been preferable if he had done so and if he had given counsel theopportunity to comment on his proposed departure from the pre-trial ruling. We donot however consider that the Judge's approach has resulted in a miscarriage of justice.We note the following:(a) the Judge was not bound by Katz J's pre-trial rulings and there is forcein the submissions that matters evolved in the course of the trial. It wasopen to the Judge to conclude, on the evidence before him, especiallyin relation to the fisting charges, that the propensity evidence wasadmissible not only in relation to the alleged violent offending but alsoin relation to the alleged sexual offending;(b) with respect to Katz J,19 we do not consider that there was, in this case,any meaningful distinction between the charges alleging non-sexualviolence and the sexual charges. Given the evidence, there was nobright line between them. The violent behaviour formed part of a wider19 There is perhaps some ambiguity in Katz J's judgment. In para [51] of her judgment, she recordsher conclusion that evidence of the previous convictions should be admitted as propensityevidence in relation to the alleged physical violence offending against both complainants. In para[62(b)], she records that evidence of the previous convictions was admissible as propensityevidence in relation to both sets of charges. We have assumed that the Judge's conclusion in para[51] is her concluded view and that the comments in para [62(a)] were simply a short formsummary of the various conclusions she reached in the course of her judgment.pattern of overall denigrating behaviour towards both H and M whichextended to sexual violence. Some of the alleged offending was bothviolent and sexual in nature;(c) the Judge's propensity direction was conventional. He highlighted thesimilarities between the allegations made by H and M and between theirallegations and Mr Keremete's relevant conviction history as recordedin the s 9 admissions. He recorded the Crown's argument—namely thatMr Keremete had a propensity or a tendency to engage in violent,threatening and possessive behaviour, including highly unusual sexualbehaviour evidenced by the fisting. He highlighted the defenceargument—namely that Mr Keremete's violent offending had beenreported to the police and had already been dealt with, and that thesimilarities between the complainants' evidence about fisting may havecome about due to one complainant hearing of the other's allegations.He advised the jury on what it should do if it concluded that there weresimilarities in the incidents that disclosed a pattern of behaviour andwhat to do if they concluded that there were no similarities, no patternof behaviour or there was collusion between the complainants. Heinstructed the jury that it should look at the evidence relating to eachcomplainant separately from the other, considering only the specificevidence relating to each. He also reminded the jury that it needed tolook at each charge individually and that it should not think that justbecause Mr Keremete had been involved in one or more offences orinstances of sexual misconduct or violence, that he must therefore beguilty on all charges. In our judgment, the direction was measured andappropriate. It addressed all relevant issues and gave the jury therequired directions.[58] Further, and in any event, there is no real risk of a miscarriage of justice inrelation to the charges on which Mr Keremete was found guilty. Mr Keremete wasacquitted on many of the other charges, including the charges of rape. This suggeststhat the jury has been conscientious, that it applied Palmer J's directions and that itwas only the cross-propensity evidence which it found substantially helpful.[59] This ground of appeal also fails.Counsel errorRelevant law[60] A defendant is entitled to a fair trial.20 A defendant also has the right to presenta defence at trial.21 A key aspect of the right to a fair trial is the right to be representedby competent counsel who meet the relevant standards and comply with the relevantstatutory, regulatory and common law obligations imposed on trial counsel.22[61] The leading authority on the issue of trial counsel error is the decision of theSupreme Court in Sungsuwan v R.23 The Court there emphasised the need for anappellate court, when considering any appeal based on trial counsel error, to focus onthe question of whether or not a miscarriage of justice has occurred, rather thanfocusing on whether there were shortcomings in counsel's performance and how thoseshortcomings might be characterised.24 Gault J, delivering the majority judgment (forhimself, Keith and Blanchard JJ), noted as follows:[70] In summary, while the ultimate question is whether justice hasmiscarried, consideration of whether there was in fact an error or irregularityon the part of counsel, and whether there is a real risk it affected the outcome,generally will be an appropriate approach. If the matter could not haveaffected the outcome any further scrutiny of counsel's conduct will beunnecessary. But whatever approach is taken, it must remain open for anappellate Court to ensure justice where there is real concern for the safety ofa verdict as a result of the conduct of counsel even though, in thecircumstances at the time, that conduct may have met the objectivelyreasonable standard of competence.Tipping J said as follows:25 when counsel's conduct is said to have given rise to a miscarriage of justice,the Court must ask itself first, whether something can fairly be said to havegone wrong with the process of justice in the way the appellant wasrepresented at the trial. If that is so, the Court must then ask itself whetherwhat has gone wrong has deprived the appellant of the reasonable possibility20 New Zealand Bill of Rights Act 1990, s 25(a).21 Section 25(e).22 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [3].23 Sungsuwan v R, above n 6; and see R v Scurrah CA159/06, 12 September 2006.24 At [63]–[68], per Gault, Keith and Blanchard JJ.25 At [115].of a not guilty or more favourable verdict. If the answer is no, there will beno real risk of an unsafe verdict and thus no miscarriage of justice. If theanswer is yes, there will have been a miscarriage of justice, irrespective ofwhether what has gone wrong amounts to negligence on counsel's part. [62] In R v Condon, it was noted by this Court that trial counsel are obliged topresent the defence a defendant wants to run.26 This Court, in Hall v R, also held thatthere are three fundamental decisions on which trial counsel's failure to follow specificinstructions will generally give rise to a miscarriage of justice.27 The fundamentaldecisions are those relating to plea, electing whether to give evidence and to advancea defence based on the defendant's version of events.28The submissions[63] This aspect of the appeal was dealt with by Mr Nisbet on behalf ofMr Keremete. He acknowledged that Mr Nabney successfully raised doubts inrelation to many of the allegations made against Mr Keremete, but neverthelesssubmitted that Mr Nabney fell into error by not cross-examining the complainants ona number of significant issues and by failing to lead evidence through other witnesses.By way of example, he referred to discrepancies in H's evidence about what happenedin a motor vehicle when she says she was attacked by Mr Keremete and the fistingoccurred. He suggested that Mr Nabney failed to put to M evidence given byMr Keremete's grandmother, to the effect that M told her that "[Mr Keremete's] cockbelonged to [her]" and that she was not sharing it with anyone else. He argued that anassertion by Mr Keremete that M had hit him with a samurai sword was not put to M.He claimed that Mr Nabney had failed to cross-examine Mr Keremete's sister aboutan assertion made that he had asked her if she could obtain Viagra for him, because hewas suffering from erectile dysfunction. He further said that trial counsel did notchallenge H's assertion that Mr Keremete's family feared him and that trial counseldid not lead relevant evidence from family members.[64] Various other assertions were put to us. We do not need to catalogue them all.It was submitted that these various omissions, while seemingly small, could well have26 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [28].27 Hall v R, above n 21, at [65].28 At [65].had significant repercussions, because they may have served to undermine thereliability and credibility of the two complainants, or neutralised some of theassertions made by various Crown witnesses. It was argued that there was a real riskthat these various errors by counsel may have affected the outcome of the trial andtherefore caused a miscarriage of justice.[65] Mr Lillico acknowledged that another lawyer may have put different oradditional questions to the complainants and witnesses, but he argued that that did notmean there had been a miscarriage of justice. He submitted that a high degree oflatitude should be afforded to counsel in conducting cross-examination and that anappeal is not an occasion for a minute dissection of whether or not some aspects of thecase could have been dealt with differently or better.Analysis[66] Section 92 of the Evidence Act provides as follows:92 Cross-examination duties(1) In any proceeding, a party must cross-examine a witness onsignificant matters that are relevant and in issue and that contradictthe evidence of the witness, if the witness could reasonably beexpected to be in a position to give admissible evidence on thosematters.(2) If a party fails to comply with this section, the Judge may—(a) grant permission for the witness to be recalled and questionedabout the contradictory evidence; or(b) admit the contradictory evidence on the basis that the weightto be given to it may be affected by the fact that the witness,who may have been able to explain the contradiction, was notquestioned about the evidence; or(c) exclude the contradictory evidence; or(d) make any other order that the Judge considers just.[67] We accept that there were various issues which could (and perhaps should)have been put by Mr Nabney to the complainants and to other Crown witnesses.We say "perhaps should" because, if Mr Nabney was aware that later witnesses wereto give evidence in a particular way, he should have cross-examined the witnesses butonly on significant matters that were relevant and in issue and that contradicted theevidence of the witness. Here, many of the matters which it is asserted Mr Nabneyshould have put to witnesses went to their veracity. It is not clear whether s 92 imposesa duty to cross-examine in such circumstances. Even where a witness's veracity willbe challenged by evidence presented later in the proceeding, this does not, of itself,contradict the evidence of the witness, which is the test set out in s 92(1).29[68] Mr Keremete filed an affidavit in which he alleged that there were variousinconsistencies between the evidence-in-chief given by the complainants and what heconsiders they had said on previous occasions. He said that he wanted Mr Nabney tocross-examine the complainants on these issues, so that their lack of credibility wouldbe exposed to the jury. He accepted that Mr Nabney had cross-examined on somepoints but claimed that he had not done so on others.[69] Mr Nabney filed an affidavit in response. The affidavit recorded as follows:(a) after Mr Nabney had cross-examined H and the Court had risen for theday, he received a telephone call from Mr Keremete. Mr Keremete saidthat he had thought about matters and that he was not happy.Mr Keremete said that he considered that Mr Nabney had notsufficiently cross-examined H in relation to one particular issue;(b) initially Mr Keremete indicated that he might want to cross-examineother witnesses himself, but Mr Nabney explained to Mr Keremete thedifficulties with that course;(c) Mr Nabney met Mr Keremete the following day. Mr Keremeteconfirmed that he wanted Mr Nabney to continue to act for him but hewanted Mr Nabney to raise some issues which he felt had not beenadequately covered in the cross-examination of H. Mr Keremeteoutlined some eight issues which he wanted Mr Nabney to pursue;29 See Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th edThomson Reuters, Wellington, 2018) at EV92.02(3).(d) Mr Nabney explained to Mr Keremete that some of the issues he wishedhim to raise were irrelevant and that other issues would not assist hisdefence. He nevertheless said that he would raise the matter with theJudge and make an application to have H recalled;(e) Mr Nabney raised the issue in chambers with Palmer J and the Judgerequired that Mr Nabney set out the areas of proposed cross-examination and provide them to the Court;(f) Mr Nabney did so in the course of the day and the Judge indicated thathe would deal with the recall application at the conclusion of otherevidence;(g) after the lunch adjournment, the Judge indicated that he felt that four ofthe proposed lines of questioning were irrelevant or had already beenput, but that he would require submissions in relation to the others.Submissions were advanced and the Judge then adjourned to considerhis ruling;(h) shortly thereafter, Mr Keremete passed Mr Nabney a note saying thathe wished to withdraw his application to recall H. Mr Keremete saidthat he had reflected on the matter and did not want her recalled.(i) Mr Nabney was concerned about Mr Keremete making decisions"on the fly". After a discussion, Mr Keremete indicated to Mr Nabneythat he did not feel it necessary to have H recalled and put her throughfurther questioning;(j) Mr Nabney subsequently met with the Judge in chambers and advisedhim that the application for recall was withdrawn and that no ruling wasrequired.3030 Mr Nabney's version of events is largely born out in a minute issued by Palmer J; R v KeremeteCRI-2016-063-570, 14 February 2018 (Bench Note No 2).[70] Mr Nabney went on to explain that during M's evidence-in-chief, Mr Keremetebecame agitated and indicated that he wished to leave the Courtroom. The issue wasraised with the Judge in chambers. Mr Keremete was firm in his instructions,notwithstanding advice from Mr Nabney. The Judge then spoke to Mr Keremetedirectly, but Mr Keremete remained firm. He did not wish to be present. The Judgegranted him leave to be absent. Mr Nabney said that the following day he met withMr Keremete in the cells and received further instructions from him. Mr Keremetetold Mr Nabney about a previous sexual assault which M had suffered. He wantedMr Nabney to cross-examine on it. Mr Nabney said that he explained to Mr Keremetethat in order to be able to cross-examine on the issue, he would need the leave of theCourt under s 44 of the Evidence Act and that because there was no similarity betweenthe allegations that had been raised by her as to what had happened on the previousoccasion and the allegations she was making against Mr Keremete, there was no basisfor making such an application. Mr Nabney said that he explained to Mr Keremetethat the previous events were not relevant and that there was no evidence suggestingthat M's assertions in regard to the previous assault were false. Mr Nabney referredto other issues which it was alleged should have been put to witnesses. He consideredthat some of them did not assist Mr Keremete.[71] Mr Keremete filed an affidavit in reply, outlining in greater detail the issues hewanted Mr Nabney to raise with the complainants. He did not however disputeMr Nabney's assertions.[72] We accept that failure to cross-examine a complainant on a critical issue canlead to a miscarriage of justice.31 However, in this case, we do not consider that anyof the alleged errors were in relation to crucial issues. Many of the issues raised byMr Keremete in his affidavit were at best peripheral; others were irrelevant and/orinadmissible. Judgment was required as to whether or not to raise them. Some of theareas of cross-examination which it is now suggested should have been advanced mayhave been explored by some counsel; equally, other counsel may have chosen not toaddress them. Broadly, we consider that the cross-examination undertaken byMr Nabney was thorough. It resulted in Mr Keremete being acquitted on 13 of the31 JI v R [2020] NZHC 374 at [63]–[65].charges he faced. An appeal is not an occasion for a minute dissection of whethersome aspects of the trial could have been dealt with differently or even better.32We cannot see that there is any particular reason to criticise Mr Nabney, with thebenefit of hindsight, for the choices he made in the course of the trial.[73] We note that the Judge was alive to the fact that some of the evidence givenby, or for, Mr Keremete had not been put to Crown witnesses. He directed the jury asfollows:33[21] You will have seen that evidence expected to come from one side'switnesses is supposed to be put to the other side's witness, to test it and givethem the opportunity to comment. Sometimes that has not happened here.Mr Keremete said [M] physically attacked him at the marae in [REDACTED]and [M] had picked up a container of petrol and threatened to put them bothon fire. Mr Keremete said that she had seen [M] punching Mr Keremete fromher kitchen window at the marae, he had told her she was a sex maniac andthat [M] had told her on Christmas Day that Mr Keremete's cock was hers andshe would stop him from leaving her.These points were not put to [M] . The evidence given by Mr Keremete andMrs [HM] that [H] and Mr Keremete had been planning to move to[REDACTED] the day after the Grumpy Mole incident and so planned tosleep in the car that night was not put to [H] either.[22] I don't want to make too much of this. It can be difficult to anticipatein advance all the points that will come out from your own witnesses. But, foryou, the point is that, in considering these matters you should take into accountthat you don't know [M's] and [H's] responses to those points.[74] Again, this was a conventional direction. It was appropriate in thecircumstances and, in our view, it goes a long way to ameliorating such errors (if any)Mr Nabney may have made by not putting some issues to Crown witnesses.[75] Even if there was an error on the part of counsel, the issue is whether or notthere was a real risk that it affected the outcome by rendering the verdicts unsafe.34Here, we do not consider that there was any real risk that the outcome of the trial wasaffected and that the verdicts are unsafe. As we have already noted above, there wasample evidence in relation to the principal offending in respect of which Mr Keremete32 Michaels v R [2014] NZCA 258 at [49].33 R v Keremete, above n 1.34 R v Scurrah, above n 23, at [17]–[20]; And see Sungsuwan v R, above n 6.was convicted. We repeat that Mr Keremete was acquitted on the majority of thecharges.[76] Again, this ground of appeal fails.Result[77] For the reasons we have set out, the appeal is dismissed.[78] Given the nature of some of the charges, the complainants are entitled toautomatic suppression of their names and identities under s 203 of the CriminalProcedure Act. Accordingly, we order that publication of the names, addresses,occupations or identifying particulars of the complainants is prohibited by s 203 of theCriminal Procedure Act 2011.[79] Further, some of the persons who gave evidence at trial were under the age of18 years. Pursuant to s 204 of the Criminal Procedure Act, we order that publicationof the names, addresses, occupations or identifying particulars of any persons underthe age of 18 years who appeared as a witness is prohibited by s 204 of the CriminalProcedure Act 2011.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent