K v NEW ZEALAND POLICE [2019] NZHC 1258

K v NEW ZEALAND POLICE [2019] NZHC 1258 [5 June 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-80[2019] NZHC 1258BETWEEN KAppellantAND NEW ZEALAND POLICERespondentHearing: 22 May 2019Appearances: S A Thistoll for AppellantA R T Garrick for RespondentJudgment: 5 June 2019JUDGMENT OF GRICE JIntroduction[1] Mr K has been charged with three counts of breaching a protection order byengaging in behaviour which amounts to psychological abuse of the protected person,his ex-partner.1 At his trial in the District Court Mr K did not dispute that he waspresent on the three occasions giving rise to the charges, but contended that his merepresence in the vicinity of the ex-partner could not amount to psychological abuse inthe circumstances.[2] At the trial on 24 May 2018 in the Porirua District Court counsel appeared forMr K. The Judge delivered a reserved judgment finding Mr K the guilty on 13 August2018.2 Mr K was convicted on 5 November 2018 and sentenced to community work,supervision and to come up for sentencing if called upon.1 Domestic Violence Act 1995, ss 19(1)(a) and 49(1)(a).2 Police v [K] [2018] NZDC 16092.[3] Mr K appeals against his convictions on the ground he was denied an effectivedefence due to trial counsel error on the basis:(a) his election not to give evidence was not a fully informed decision; and(b) trial counsel failed to cross-examine a witness (the complainant) on allmatters relevant to the available positive defence of "reasonableexcuse".[4] Both Mr K and counsel at trial filed affidavits for the purposes of the appeal.Summary of offending[5] Mr K and his ex-partner met when they worked for the same employer inParaparaumu. They commenced a relationship in 2014. This continued on-and-offfor approximately three years. Incidents during their relationship led to the ex-partnerbeing granted a protection order against Mr K on 7 September 2015. That orderbecame final on 5 December 2015.3 Their relationship then resumed for about a yearduring 2016, but they separated again in February 2017.[6] The first charge arose in circumstances where Mr K's ex-partner was on herbike working on the morning of 3 February 2017. She turned into a street and saw MrK driving past in his car. They saw each other, made eye contact and continued ontheir separate ways. However, a couple of minutes later, Mr K's car drove past heragain. She recognised the car the second time by its number plate. She did not lookup or make eye contact with the driver.[7] The second charge arose in the following week, on 9 February 2017. His ex-partner had just been to the airport to pick up her friend and on the way back theydecided to stop for a glass of wine at a bar at the beach. They were sitting on anupstairs deck when his ex-partner noticed Mr K's car drive past into the bar's frontcarpark area and leave. A brief time later she and her friend saw it return. The car did3 His ex-partner gave evidence that the incidents leading to her seeking the order included Mr Kbreaking into her residence, stealing things, being physically and verbally abusive and stalkingher. On one occasion, Mr K had been arrested for being seen on a security camera sneaking uphis ex-partner's driveway.a slow u-turn and drove up behind the complainant's distinctive car. The car thendrove slowly and parked about 10 to 15 metres away. His ex-partner was shocked,went inside, called the police and informed the bar manager of her fear that Mr Kmight come inside. She and her friend took photos and a video of the incident. Herfriend said that she saw Mr K get out of the car, walk in the general direction of thestairs leading up to the bar. Mr K saw the friend taking photographs and then hechanged direction to head to a nearby public toilet instead. He then returned to his cara short time later and left.[8] The third incident occurred the following day on 10 February 2017. The ex-partner was working on her bike and as she turned into a street, she saw Mr K walkingin the same direction down the street following her work route. She was so affectedby this that she began to shake and decided she could not continue her work. She rangthe police and was advised to follow Mr K at a safe distance and wait for police tocome. Mr K was arrested and exercised his right to not make any statements to thePolice about the charge.[9] The ex-partner says that she returned later in the day to the vicinity that shehad come across Mr K on that third occasion. She identified his car parked in a nearbystreet. She alleged that he had deliberately driven there knowing that it would be onher job path and had then walked to the road to manufacture the contact with her.District Court proceedings[10] At trial, in relation to the first charge, the ex-partner accepted that Mr K couldnot have known that she was on that particular work bike route that day. She acceptedthat she had been covering for another worker who was unable to attend work that day.She accepted that Mr K might well have had good reason for being on that road at thetime as his parents lived in that area. However, she said that she believed Mr K hadgone out of his way to drive past her again.[11] In relation to the third incident, the ex-partner accepted that Mr K did not knowwhether she would have been rostered on to that route that day. However, she allegedthat he knew it was one of her common routes and that it was a road on which her bestfriend lived. The complainant alleged that Mr K had parked close by and loiteredaround there in order to be in the same vicinity as her.[12] The Judge began his consideration of the case by setting out some of therelevant law governing charges for breaching protection orders. His Honour observedthat all that the prosecution needed to prove was a contravention of the order, that thecontravention amounted to psychological abuse and Mr K knew of the order.4 Therewas no requirement to show Mr K intended to psychologically abuse his ex-partnerthrough his contraventions. Once the prosecution put its case before the court, thedefendant had had the onus of showing, on the balance of probabilities, a reasonableexcuse for contravening the order in the circumstances. The Judge acknowledged thatwhile the defendant may be able to discharge this onus solely through concessionsgained in cross-examination of prosecution witnesses, this would be unusual inpractice.5[13] In this case, the Judge considered that there had been insufficient concessionsmade by the prosecution witnesses to give rise to an evidential basis for a submissionthat Mr K had a reasonable excuse to contravene the order on each charge. Mr K hadelected not to give evidence nor call any other evidence. Therefore, the Judge rejectedthe possibility that Mr K had any reasonable excuse for contravening the protectionorders. This meant that if, on the evidence, Mr K's behaviour on each occasion couldamount to psychological abuse of the ex-partner in the circumstances of case then thecharges will have been proved.6[14] The Judge then set out the law governing what behaviour would constitutepsychological abuse.7 He quoted extensively from Gendall J's judgment in M vPolice.8 The crux of that dicta is that the question of whether a certain behaviour ispsychologically abusive is an objective question to be ascertained in the context of allthe surrounding circumstances as they relate to the defendant and the protected person,including the history of their relationship. The contravening behaviour did not4 Police v [K], above n 1, at [14].5 At [15].6 At [16].7 At [18]–[22].8 M v Police [2007] NZFLR 160.necessarily need to fit into one of the categories in s 3(2)(c) of the Domestic ViolenceAct definitions of psychological abuse.9 He referred to Court of Appeal authority thatthere is no requirement for psychological distress to actually result from thebehaviour.10[15] Turning to the facts of the case, the Judge considered the "specifically-informed context" of the relationship between Mr K and his ex-partner was one"exemplifiedto a large extent of insidious and intrusive invasion into [his ex-partner's] life and what might be called her 'peace of mind comfort zone'".11 Thatmeant it was easier to draw an adverse inference that psychological abuse had occurredeven though if viewed completely objectively Mr K's behaviour might be innocuous.The prosecution alleged that Mr K's contravening behaviour was the deliberatecoming into contact with his ex-partner, as opposed to merely accidental, opportunisticor inadvertent contact.12 The Judge considered that this, without any thing further,might well amount to psychological abuse in certain circumstances because itcommunicates to the protected person that she cannot avoid him and the protectionorder will not fully protect her.13[16] Applying these principles to the evidence, the Judge was satisfied beyondreasonable doubt that each of the three occasions in isolation amounted to anengineering of deliberate contact with the ex-partner by Mr K.14 On the first charge,it was inferred from Mr K driving past her for a second time almost immediately afterpassing her on the street.15 On the second charge, it was Mr K deliberately returningto the car park to make her aware that he was present in her vicinity.16 On the thirdcharge, it was on the basis of all the evidence, particularly the location of his carascertained after his arrest, which indicated he had engineered the opportunity to comeacross her.179 Police v [K], above n 1, at [23]–[25].10 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [39]-[41] and Cooper v R [2018] NZCA 159.11 Police v [K], above n 1, at [26]–[27].12 At [28].13 At [28].14 At [30].15 At [31].16 At [32].17 At [33].[17] The Judge considered the conclusions mutually reinforced each other,particularly in light of the fact they all happened within the same week and also in thecontext of the background of the relationship which had led to the protection order inthe first place.18 The Judge found there was a deliberate pattern of behaviour which,in isolation and together, amounted to psychological abuse. While not an element ofthe charge, the Judge considered the behaviour had the very effect which the protectionorder had been designed to protect against.19Standard of appeal[18] Section 232(2)(c) of the Criminal Procedure Act 2011 (CPA) provides that theHigh Court must allow an appeal if the Court is satisfied that a "miscarriage of justicehas occurred for any reason". A "miscarriage of justice" is defined in s 232(4) as "anyerror, irregularity, or occurrence in or in relation to or affecting the trial that [either]has created a real risk that the outcome of the trial was affected; or has resulted in anunfair trial or a trial that was a nullity". As demonstrated by the legislation, andreiterated by the Supreme Court, not every error or irregularity causes a miscarriageof justice. Importantly, "a miscarriage is more than an inconsequential or immaterialmistake or irregularity".20[19] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".21 This standard means that "an appellant does not have toestablish a miscarriage in the sense that the verdict is actually unsafe" but that there isa real possibility the verdict would be unsafe.22[20] The leading case on appeals against convictions premised on trial counsel erroris the Supreme Court decision in Sungsuwan v R.23 The key passage oft-quoted fromthe case says:18 At [34].19 At [35].20 Matenga v R [2009] NZSC 18 at [30].21 R v Sungsuwan [2006] NZSC 57, [2006] 1 NZLR 730 at [110].22 At [110].23 R v Sungsuwan, above n 21.[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 have affectedthe outcome 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 at the time, thatconduct may have met the objectively reasonable standard of competence.[21] In assessing whether there was an error, appeal courts remain alert to thepractical realities facing defence counsel before and during a criminal trial and becognisant of the natural tendency of some convicted persons to point the finger ifthings do not go their way.24 The Court of Appeal has cautioned that simply becausehindsight reflection points to a better course of action this does not necessarily meanthat the original decision was an error, nor that there had been a miscarriage ofjustice.25[22] In Hall v R the Court of Appeal drew a distinction between trial counsel erroron fundamental matters that would almost inevitably result in an unfair trial and so amiscarriage, and trial counsel errors on matters less fundamental that would not alwaysresult in a miscarriage.26 The Court noted:27 it is helpful to identify the three fundamental decisions on which trialcounsel's failure to follow specific instructions will generally give rise to amiscarriage. The fundamental decisions are those relating to plea, electingwhether to give evidence and to advance a defence based on the accusedperson's version of events.[23] Where errors in making "less fundamental trial decisions" are alleged, amiscarriage of justice will only occur if the decision was not one a competent lawyerwould have made and if what actually happened may have affected the outcome.28 Itis not a matter of "whether counsel could have reached a different decision orconducted the trial in a different way".2924 See, for example: R v Scurrah CA159/06, 12 September 2006 at [17]–[20]; R v Pointon [1985] 1NZLR 109 (CA) at 114; and Simon France (ed) Adams on Criminal Law – Criminal Procedure(online looseleaf ed, Thompson Reuters) at [CPA232.11(1)].25 McGeachin v R [2015] NZCA 558 at [6].26 Hall v R [2015] NZCA 403 at [61]–[65].27 At [65] (emphasis added).28 Hall v R, above n 26, at [77].29 S (CA88/2014) v R [2014] NZSC 583 at [16] citing R v Sungsuwan, above n 21, at [66].[24] Here, the errors in relation to the election to give evidence are about whetherMr K was fully informed, rather than a failure to follow instructions. In Tarring v R,the Court of Appeal noted:30The election whether to give evidence is a decision for the client but it mustbe an informed decision and it is for counsel to ensure the client has thenecessary information, conveyed in an appropriate and timely way, to makethe decision.[25] Although there is no appellate guidance on what exactly is required by trialcounsel to satisfy the responsibility of fully informing their client, the High Courtrecently observed:31[63] The fact that a defendant's informed choice not to give evidence isrevealed by hindsight to have been the wrong choice will not of itself amountto a miscarriage of justice. Similarly, a defendant who knows of the right togive evidence and freely adopts firmly expressed advice from counsel not totestify is unlikely to be able to argue successfully that a miscarriage hasoccurred. The threshold is even higher where counsel refrains from givingaffirmative advice.Grounds of appeal[26] First, Mr K alleges that trial counsel erred by failing to advise him of thebenefits or otherwise of electing to give evidence to raise the positive defence of'reasonable excuse'. Relatedly, counsel failed to specifically inform Mr K of the'reasonable excuse' defence. It is submitted that this prevented Mr K from making aproperly informed decision on whether to give evidence and it deprived him of theopportunity to advance a positive defence based on his account of what happened.[27] Secondly, Mr K says trial counsel erred by failing to cross-examine theprosecution witnesses on all matters that were a part of Mr K's version of events andwhich might have been relevant to a reasonable excuse argument. Specifically, thefailures to cross examine were:(a) In relation to the first charge. The ex-partner's evidence about makingeye contact with Mr K. There was inconsistency in her statements as30 Tarring v R [2016] NZCA 425 at [26].31 Kumar v Police [2018] NZHC 3202 (footnotes omitted).to whether she made eye contact with Mr K on the first or second timeshe saw his vehicle.(b) In relation to the second charge. The ex-partner's evidence on whenshe and her friend noticed Mr K's car, if they saw the number plate, andwho exactly saw the car. Further there was no cross-examination aboutthe complainant having changed cars after the relationship was over.(c) In relation to the third charge. Mr K did not know the ex-partner's jobroute. This point was in addition to the complainant's concession thatMr K could not have known it was her route that day. It was also notput to the ex-partner that there were limited options for Mr K to removehimself from the encounter due to the layout of the streets and that hehad a severe back injury which meant he could not promptly leave.DiscussionTrial counsel error in Mr K electing not to give evidence[28] As the respondent set out in her submissions, the elements to be established forthe charge facing Mr K were: knowledge of the protection order; an intention to engagein conduct; and the conduct objectively amounting to psychological abuse. The firstelement was not in dispute at trial. The third one was the subject of extensive legaland factual submission. The Judge resolved it in the following way:32[28] Each of the charges faced by Mr K does not specify a form ofpsychological abuse which directly falls within the categories specified in thestatutory definition but essentially the prosecution alleges that there wasdeliberate coming into contact as opposed to merely accidental, opportunisticand inadvertent contact. I accept that in certain circumstances (mere)deliberate contact, without more, may amount to psychological abuse; itconveys the unspoken, but no less effective, message from a male defendantto a female protected person that if he chooses to engineer contact she cannotavoid him and that if he wants to put himself in public places where she is, theorder will not protect her from that.[29] The Judge's approach is not contested on appeal.32 Police v [K], above n 1.[30] The alleged contraventions of the protection order were that contact, withoutmore, amounted to psychological abuse, therefore the second element of the chargewas crucial. In order to prove it, the prosecution had to show the defendant's conductwas intentional, in the sense it was deliberate rather than accidental and that he hadknowledge of the essential matters at the time of that conduct. That included hisknowledge of the complainant's presence or her likely presence at each of the locationswhere the contravening encounters occurred.[31] On appeal both Mr K and the police noted that the primary defence strategywas to show Mr K was innocently present in each of the three places on the occasionsthat he came across his ex-partner.[32] There is obvious overlap between the "reasonable excuse" defence and adefence strategy based on requiring the prosecution to prove that the defendant haddeliberately engineered contact, rather than his being innocently in the vicinity.[33] It is clear that trial counsel did advise Mr K on a defence based on Mr K beinginnocently in the vicinity and so put the prosecution to proof. As part of that strategy,in relation to the first incident trial counsel put to the complainant that Mr K's parentswere in the vicinity and so he could have been visiting them there. The complainantagreed that might be the case but she pointed out that Mr K's return was the point thatcaused her real concern. A number of other matters that supported a "reasonableexcuse" defence but also went to the question of intent were put to the complainantand I refer to those in more detail below.[34] I do not consider that it is material in this case that trial counsel may not havespelled out the fact that an affirmative defence of reasonable excuse put a burden onMr K to establish. The general defence strategy was based on Mr K's presence beingcoincidental and therefore he had no requisite intent. This strategy was fully discussedwith Mr K. Trial counsel carried out Mr K's instructions by following that strategyand undertook robust cross-examination of the complainant on that basis. This wasdesigned to illustrate the coincidence of Mr K being in the vicinity for each incident.[35] I do not consider that counsel needed to explain the technical details, includingthe burden of proof to establish reasonable excuse, in the circumstances.[36] This is not a case where trial counsel failed to follow the defendant'sinstruction on a fundamental trial decision. Trial counsel followed Mr K's instructionsand put forward the defence based on Mr K's version of events. He also gave Mr Ksufficient information to enable Mr K to elect not to give evidence and Mr K wasaware of the risks of not giving evidence.[37] Both Mr K and trial counsel provided affidavits for use on appeal. There is nogreat difference between the evidence of trial counsel and Mr K as to what happened.Trial counsel said:(a) He and his staff solicitor spent considerable time taking instructionsfrom Mr K before the hearing.(b) Mr K impressed him as articulate, able and confident, and a person not"easily swayed or persuaded to take an approach contrary to his view".(c) Mr K was confident in his defence and, until the discussion after theevidence of the prosecution, had intended to give evidence, although hewas always aware there was a real risk that he could be unsuccessful atdefending the charges and might be convicted.(d) Trial counsel went to lengths to obtain information to use for thedefence including obtaining an order for disclosure of Vodafone recordswhich provided evidence as incoming text messages and phone callsfrom the complainant's phone.(e) Mr K had a support person with him throughout the Court hearing and,importantly, during the discussions between trial counsel and Mr K thatat the end of the prosecution evidence. These discussions took place ina foyer outside the courtroom.(f) The discussion at that stage was robust but it was made clear thedecision was always up to Mr K as to whether he gave evidence.(g) Trial counsel's concern and the issue discussed with Mr K in the foyerwas whether or not Mr K could withstand cross-examination and notget rattled with giving his evidence. Trial counsel did not attempt to"force" Mr K not to give evidence. Trial counsel said he was alwaysalive to the fact that it is ultimately the defendant's call as to whetheror not he gave evidence and trial counsel could only advise on theprospects and possible result of the giving of evidence.(h) Trial counsel having spent some time with Mr K, had observed thatMr K would often get easily frustrated or angry. Trial counsel wastherefore concerned Mr K would not be able to withstand cross-examination by the prosecution and might jeopardise the defence case.(i) Mr K agreed that he was not confident in himself as a witness.(j) Trial counsel relayed his concern to Mr K about how the evidence couldnegatively affect the Judge's measure of Mr K's credibility and mightjeopardise the defence case.(k) Trial counsel was of the view that the police case was circumstantialand cross-examination of prosecution witnesses would be enough toestablish a defence of "innocent coincidence" and "reasonable excuse"explaining why Mr K was in the vicinity.(l) Trial counsel's strategy was that the prosecution was being put to proofto prove beyond reasonable doubt the elements of the charge. He wasaware that the onus was on the defence to prove a "reasonable excuse"for breaching protection order. He did not think he discussed that inthose terms with Mr K.(m) Trial counsel says that perhaps if more emphasis had been made toMr K that he could benefit his case by giving evidence (as to the reasonshe was found in a particular place) and an explanation of the"reasonable excuse" provision Mr K may well have elected to giveevidence.(n) Trial counsel does not recall specifically discussing the "reasonableexcuse" issue during the court foyer discussion. It was a discussionfocussed on whether Mr K should give evidence. Trial counsel advisedMr K of the possible consequences if he did so or if he did not. Counselsuggested Mr K could undermine the favourable evidence elicitedunder cross-examination of the prosecution. It was however Mr K'sdecision not to give evidence.[38] Mr K's affidavit evidence is not materially different in relevant respects to thatof trial counsel, although the emphasis is slightly different. Mr K says:(a) Trial counsel was very forceful, using the phrase that Mr K could "fuckup" his own case in the course of the discussion in the foyer.(b) Mr K was fatigued due to chronic back pain and trying to function onreduced pain medication in order to concentrate.(c) Mr K sat beside trial counsel during the trial and was able to pass notesto him, but he can best express himself by speaking as he is dyslexic.Mr K said he was asked to be quiet on some occasions so trial counselcould hear the witness.(d) Trial counsel was very forceful in his view and Mr K felt he had toaccept his advice and so said he would not give evidence.[39] Mr K now says:(a) He should have been told of the affirmative defence of "reasonableexcuse" and the fact that it placed an onus on him.(b) He was tired and in pain and therefore susceptible to trial counsel'sforceful advice not to give evidence.[40] As outlined above, I do not consider the fact that trial counsel may not havegone into exact technical detail concerning the burden of proof to establish the defenceof reasonable excuse, amounts to an error in the circumstances. The defence strategyhad been extensively discussed with Mr K. Trial counsel pursued that strategy andfollowed his client's instructions. At court he gave tactical advice to Mr K that bygiving evidence he may jeopardise the concessions that trial counsel felt he had alreadyobtained in his cross-examination of the police witnesses. Mr K was in a position tomake an informed decision about giving evidence.[41] I do not attach much weight to Mr K's submissions that he was particularlysusceptible to being persuaded by trial counsel. Mr K had sat through the hearing andheard the concessions in cross-examination himself. In addition, he had become wellacquainted with trial counsel during the time they had spent discussing the defence,both before and during the trial. In addition he had a support person with him duringthe trial and the relevant conversation with trial counsel. That support person did notprovide an affidavit in this appeal. There is no evidence to suggest that trial counselwas more than forthright. He gave Mr K robust advice, based on counsel's experienceand observation of how the trial was going. This was an appropriate approach,particularly given trial counsel's observations on Mr K's possible reactions in thecross-examination.[42] Finally, there is no evidence to suggest that Mr K suffered from any disabilitythat might have rendered him particularly vulnerable in the sense that he was not ableto give proper instructions or understand the advice he was given by counsel. It wasup to Mr K whether or not he accepted the advice. He accepted it and made thedecision not to give evidence in light of that advice.[43] Mr K does not suggest that trial counsel made any errors in giving advice, otherthan his complaint that he had not received an explanation about the burden of prooffor the reasonable excuse defence.[44] I do not consider there was any counsel error in trial counsel's advice not togive evidence. A review of the notes of evidence shows that trial counsel obtainedsome reasonably significant concessions in cross-examination from the complainant.Unfortunately for Mr K, the Judge did not consider the ground made in cross-examination was sufficient to prevent the offences being proved.[45] It is with the benefit of hindsight that Mr K, having been convicted and in lightof the Judge's comment on his failure to give evidence, now makes the allegation thathe was denied an effective defence due to trial counsel error or incompetence.[46] The tactical decisions made by trial counsel at the time were open to him. Theywere those that a competent lawyer could have made in the circumstances. Counselwas exercising his best judgment in the circumstances at the time. Simply because inhindsight the decision did not produce a favourable outcome does not mean there hasbeen a miscarriage of justice.33Cross-examination[47] I now turn to the issue of whether there was counsel error in the cross-examination. At the outset I note counsel must be entitled to exercise some judgmenton matters such as their approach to cross-examination.34 This is necessary given theneed to make instant decisions about what questions to ask and, importantly, what notto ask based on the answers already obtained.[48] Mr K points to cross-examination errors in relation to all three incidents. I dealwith them in turn.First incident[49] Mr K says that the complainant should have been cross-examined on the factthat his parents lived in the area and he had been visiting them and forgotten hiscellphone which was the reason he turned around and went back. Trial counsel's33 Hall v R, above n 26 at [11].34 At [75].notes, which were handed up by consent in the course of the argument on appeal,indicate that Mr K may have mentioned this in his instructions to trial counsel.[50] However, the notes of evidence indicate that trial counsel put to thecomplainant that Mr K did not wave or try to get her attention or even look at her onhis return to the vicinity. The complainant responded that she did not pay attention towhat he was doing.[51] Having gained those concessions and made those points it was well within trialcounsel's tactical discretion to decide not to push the point and risk further elaborationand denials so destroying the concessions already made.[52] I do not consider there was any counsel error displayed in cross-examinationon that point.Second incident – waterfront bar incident[53] Mr K complains that there were some discrepancies between the originalstatement made by the complainant and what she said at trial.[54] A review of the statement and her evidence at trial indicates that in the originalstatement she said her friend noticed the car, but at trial she said both she and her friendnoticed Mr K's car. That is not inconsistent. The complainant in evidence alsoconceded that in her statement she at least implied that she had seen the whole incident,whereas she agreed she had gone inside to alert the bar manager and call the policewhile her friend continued to take pictures of Mr K's car driving into the carpark. Trialcounsel obtained concessions that her evidence and statement were inconsistent.[55] Mr K further says that the complainant had changed her car from a white carto a black car after the relationship ended. Therefore, Mr K was not familiar with hernew vehicle. This was not put directly to the complainant by trial counsel. However,in relation to the first incident, the complainant had earlier in her evidence said thatshe had left her car on the side of the road when she did her mail run. She commentedthat, because of things that "had happened" to her car, it made her "very scared" toleave her car alone. The complainant says when she had parked her car on oneoccasion Mr K had parked on the other side of the road and tried to approach her. Shesaid therefore he knew where her car was usually parked.[56] These comments by the complainant indicate that she was of the view thatMr K did know what car she drove after the end of the relationship. Her commentsalso raise the possibility that if she had been cross-examined about her car, thecomplainant might provide further details about her suspicions concerning theincidents involving her car and Mr K's possible involvement. He may well haveconsidered it unwise to cross-examine the complainant on the change of car. Thedecision whether to cross-examine directly on the point was well within trial counsel'sdiscretion.[57] In my view, trial counsel made no material errors in that cross-examination.Third incident[58] In relation to the third incident on 10 February, Mr K says that trial counselshould have asked the complainant whether she was aware that Mr K was doing a realestate course. This would have provided an explanation as to why Mr K was on footin the vicinity. He says he was looking at what houses were on the market in the areawhich was on a floodplain.[59] In addition, Mr K says counsel should have put to the complainant that Mr Kdid not know the complainant's work route in that particular area.[60] A further issue raised by Mr K about the cross-examination was it was not putto the complainant that as Mr K was on foot he could not run from the vicinity due tohis bad back.[61] However, in cross-examination the complainant was challenged on a numberof matters premised on Mr K being innocently in the vicinity and his trying to moveout of her way including:(a) the appellant was entitled to walk in the area in question on that day;(b) the complainant in fact was following Mr K (not vice versa);(c) the complainant continued walking as normal when she saw Mr K andthere was only one way back to his car.[62] The Court also had questioned the complainant on Mr K's knowledge of herlikely presence in the vicinity. The complainant accepted that Mr K did not know herroster and could not know what route she was working that day.[63] In my view, the cross-examination was competent and little would have beengained by a question concerning Mr K's bad back or his real estate course. They werethe types of matters that counsel would have to make instant calls about whether ornot to put based on an assessment of whether any gains could be made or whether theanswers might damage the defence.[64] In summary, the cross-examination was competent, it was designed to elicitresponses in support of Mr K's version of events and there was nothing that wasomitted that would amount to a material error. In my view, the careful cross-examination obtained a number of concessions, which may have been jeopardised ifthe topics that Mr K says should have been pursued were in fact put to the complainant.[65] I do not consider that the alleged errors in trial counsel's cross-examination arein fact errors and in any event even if they were are not sufficient to raise a real riskthat a miscarriage of justice occurred. This finding takes account of the heightenedsignificance of the cross-examination in the context of the defence strategy and theadvice accepted by Mr K that he should not give evidence.Conclusion[66] The trial counsel errors alleged did not give rise to a real risk of a miscarriageof justice.[67] The appeal is dismissed._________________Grice JSolicitors: