MISA v R [2018] NZCA 293

MISA v R [2018] NZCA 293 [6 August 2018]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF CONNECTEDPERSON CD PURSUANT TO S 202 OF THECRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA367/2017[2018] NZCA 293BETWEEN LEMUEL MISAAppellantAND THE QUEENRespondentHearing: 7 June 2018Court: Cooper, Whata and Thomas JJCounsel: B L Sellars for AppellantZ R Johnston for RespondentJudgment: 6 August 2018 at 3 pmJUDGMENT OF THE COURTA The application for leave to adduce further evidence is granted.B The appeal is dismissed.C Order prohibiting publication of name, address, occupation or identifyingparticulars of connected person CD pursuant to s 202 of the CriminalProcedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Misa was convicted on 20 charges of acts of physical and sexual abuseagainst two complainants, AB and BC. Mr Misa now appeals against conviction ontwo key bases:(a) There is strong, credible and cogent evidence, not put before the jury,supporting Mr Misa's claims of fabrication and collusion.(b) Defence counsel was not sufficiently prepared for trial and, as a result,Mr Misa was not able to present an effective defence.[2] Mr Misa claims that, as a result of these two factors, his trial miscarried.Background[3] AB was Mr Misa's partner from 2004 to early 2006. BC was Mr Misa's partnerfrom early 2006 to 2009. Their respective accounts of their time with Mr Misa sharesome common features, including a litany of abuse. They were young when they firstmet Mr Misa. AB was 19 and BC was 16. They were infatuated with him, changedtheir lives to be with him and became pregnant to him. He was possessive andcontrolling. They were isolated from friends and family. He was frequently violent.He bullied them and physically abused them for trivial matters. Sometimes Mr Misaexpressed regret. Sometimes they had to appease him to calm him down. The violenceincluded acts of sexual abuse, including rape. Both AB and BC acknowledged theyshould have left Mr Misa at an earlier stage in their relationships, but felt unable to doso."Mt Wellington"[4] One overlapping feature of their respective complaints stands out for specialmention because the proposed new evidence is said to contradict BC's account ofalleged offending at a Mt Wellington location and, more generally, undermine hercredibility. AB resided with Mr Misa at a third-floor apartment in Glen Innes in early2006. It is common ground she leapt from this apartment to the roof of an adjacentbuilding on 3 January 2006. Mr Misa was subsequently charged with and convictedof an assault which immediately preceded this leap. BC claims that later the sameyear, she leapt from a third-floor apartment located in Mt Wellington to escape fromMr Misa. She said she jumped to the ground below. Mr Misa disputed, among otherthings, the existence of a Mt Wellington apartment. The jury was plainly troubled bythis. Mid-trial it queried whether the Mt Wellington apartment in fact existed.The Judge responded by telling the jury that the exact location is not an essentialelement of the charges, and the Crown amended the relevant charges by addingquotation marks around "Mt Wellington". The Crown then claimed in closing that theoffending may have, in fact, occurred at the Glen Innes apartment. Part of the newevidence is said to show that BC never lived with Mr Misa at the Glen Innes apartmentbuilding.The charges[5] The charges were based on detailed accounts given by AB and BC in evidentialinterviews. The following summary broadly reflects the evidence given by thecomplainants at trial on those charges.[6] Mr Misa faced 10 charges in relation to AB. The first two charges relate toalleged assaults. Mr Misa is said to have literally picked AB up and threatened to dropher on a TV. He is also said to have punched her on an almost daily basis, for suchthings as poor cooking or if he had a difficult day busking. The next four chargesallege various assaults, one with a weapon, and a rape at a different address. Theseincluded more punching, a knife to the throat, and booting AB across the room. Therape allegedly occurred when she did not want sexual intercourse, he put his hand overher mouth and nose, and forced his penis into her vagina. These incidents werefollowed by similar offending at another address. AB was assaulted less frequentlyhere because the address was closer to her family. Nevertheless, AB claimed he hither there and separately raped her again. She tried to push him off but he just carriedon.[7] The final two charges of offending against AB are said to have occurred whilethey were living at the Glen Innes apartments. It is claimed they moved into thethird-floor apartment where there were "heaps of incidents of physical abuse". Theassaults arose from various circumstances, for example, because AB had burnt hissteak and eggs. AB also claimed Mr Misa put his fingers into her genitalia withoutconsent while they were out driving. Mr Misa was, however, acquitted on this charge.[8] Mr Misa also faced 15 charges at trial in relation to BC, though one of themwas discharged prior to verdicts. The first two charges involve claims of assault. BCsays that early in their relationship, BC and Mr Misa were arguing and he punched herstraight in the face. She started crying and Mr Misa dared her to go to the police.On the second occasion, Mr Misa became angry on discovering BC had been smoking.He threw her to the ground and whipped her with a PlayStation cord.[9] The next two charges involve claims of digital penetration, the latter arepresentative charge. It is claimed that sometime in 2006 or 2007, Mr Misa put hisfingers inside BC's vagina without her consent. BC was pregnant at the time andMr Misa arrived home drunk. Mr Misa had told her, among other things, that he hadcum all over his fingers and said it smelt like someone had been in there. It is alsoclaimed this incident was immediately followed by a rape at a "Mt Wellington"location. It is said Mr Misa pulled down her pants and forced his penis inside hervagina. She asked him to stop. He did not. The last of the "Mt Wellington" chargesinvolved a claim of assault. BC says Mr Misa put his hand over her face and mouthto stop her from screaming. Mr Misa was pushing her by the window in the bedroomof their "Mt Wellington" apartment. She thought Mr Misa was going to kill her. Sheran for the window and, despite being pregnant at the time, jumped out the window,landing on the ground.[10] The "Mt Wellington" charges are followed by eight charges involving claimsof sexual violation by rape on two occasions, two of sexual violation by unlawfulconnection and four charges of assault. The first alleged sexual violation occurred onBC's birthday. BC did not want to have sexual intercourse as she had given birth justfour days previously, and Mr Misa forced her to perform oral sex. Mr Misa wasacquitted on this charge. This is followed by the four assaults, involving shoving,punches to the head while out driving, covering BC's mouth and nose making itdifficult to breathe, and shoving to the ground because Mr Misa thought BC washaving a relationship with a work colleague.[11] The last of the charges allege sexual violation. BC claims Mr Misa forced herto have sexual intercourse. Mr Misa was acquitted on this charge. There is also anallegation of anal sex. BC asked him to stop. He kept going despite the fact that shewas crying. Mr Misa claimed that it was consensual. Finally, BC claimed she wassexually violated by Mr Misa while they were watching pornography. Mr Misa wasalso acquitted on this charge.The trial[12] The Crown case included a statement of agreed facts, including:(a) Mr Misa pleaded guilty to the following summary of facts:At about 8.30 am on Tuesday the 3rd of January, 2006, the Defendant Misawas at an address Also present was [AB], the Victim in this matter.The Defendant and Victim have been in a relationship for two years and livetogether[.] At the time of the incident she was eleven weeks pregnant with hischild.The Defendant became verbally abusive and aggressive towards the Victim inthe bedroom of the address, accusing her of having an affair.He has then punched the Victim twice in the left side of her face with fullforce.She has feared for her life and struggled to break free from him.The door bell of the Defendant's address has rung, and the Defendant has thenleft the bedroom to answer the door. At this time the Victim was able toescape.The Victim has jumped from a three storey window onto the neighbouringbuilding, fearing for her life.She has suffered bite marks to her face and thighs, severe bruising to her face,and small lacerations. Due to suspected facial fractures the Victim wasrequired to stay in hospital.(b) Mr Misa has a previous conviction for male assaults female:The defendant has a previous conviction for Male Assaults Female in relationto the complainant [BC] after a guilty plea. The summary of facts to whichhe pleaded is no longer available.The assault charge relates to an incident on 15 May 2008 that occurred outsidethe defendant's parents address [13] Both complainants gave detailed accounts of the alleged offending at trial.Those accounts largely mirror the statements made in their evidential interviews.Unsurprisingly, their credibility was in focus at trial. They were cross-examined on arange of issues, including their failure to complain at the time, lack of detail, theimplausibility of their accounts, poor recall, their jealousy, their instability and theircollusion. In addition, BC was cross-examined specifically about the existence of anapartment at a Mt Wellington location. She maintained there was such an apartment.[14] Mr Misa also gave evidence. He strongly denied all the allegations as madeup. He was adamant that the Mt Wellington address never existed. He was specificallycross-examined on whether it might in fact be the Glen Innes apartment. He rejectedthis, noting that BC's claim mirrored AB's claim.[15] The Crown closed to the jury summarising the complainants' evidence on eachcharge as detailed above. The location of the "Mt Wellington" offending wasspecifically mentioned. The prosecutor noted: [BC's] description of the apartment complex that she lived withthe defendant namely it had been a three storey complex, but being two storeysinside the individual apartment with a ladder that led to the bedroom upstairsis entirely consistent in my submission with the description given by [AB] andthe defendant of the apartment complex at [Glen Innes]. She said she waspregnant when she was living with the defendant in the apartment and weknow that she was pregnant in the second half of 2006. I submit this fits withthe evidence that after a separation with [AB] which was around January 2006,there was a period of time when [AB] later was living at [Glen Innes] in aseparate apartment to the one that the defendant was living in, and again when[AB] was living in the separate apartment that fits in with the 2006 timing.[16] In closing for the defence, Mr Le'au'anae emphasised several points,including:(a) The complainants were not vulnerable, stupid young women.(b) They were infatuated by Mr Misa because he was a well-knownmusician.(c) They were obsessive about Mr Misa, noting incidents of suchobsession.[17] Mr Le'au'anae then identified seven reasons why the complainants should bedisbelieved, namely:(a) The complainants colluded, referring to, among other things, theremarkable similarity of some of the claims, especially the claim by BCthat she leapt from a third-storey apartment in "Mt Wellington".Mr Le'au'anae put it this way:I was thinking to myself, "Where have I seen that before?" in the agreed summary of facts, Ladies and Gentlemen ofthe jury, you will see that on the very first page, and you'll getit, that about 8.30 on Tuesday the 3rd of January 2006 Mr Misawas at an address and then it goes through the rest of thesummary, and then the second to last paragraph you read,"The victim has jumped from a three storied window onto theneighbouring building fearing for her life". That's reallysimilar to what the Crown, [BC], has said that happened toher.Now it's also, won't be lost on you that [BC] when she waspushed, "Tell me the address of this Mt Wellington property?She couldn't. You know why she can't tell you She wasnever there. So how did she find out about this, and why wasshe able to say about being pushed out of a three storiedbuilding? she said three storey then she said two storey.The reason being that they had talked to each other andisn't interesting that you might recall that [AB] said she livedat the property, and then in January 2006 when this incidentof assault took place, do you remember what she said, thatwas the end of the relationship. No longer lived there. Whatdid she do? She actually came back and lived in a flat acrossfrom where Mr Misa was. Why would you do that in the firstplace? And secondly, she said, "Well I just came back tocheck on him." Well, check on him, and [BC] lived at thataddress, never heard any evidence about from [AB] say that[BC] lived at that address (b) The eight-year delay in making a complaint (in 2014) was notadequately explained and further supports a finding of collusion.(c) The allegations from AB lacked detail, in particular, counts 4 and 8. Heemphasises there is no information about what happened beforehand,or what AB was wearing; just her allegation that Mr Misa: "Put [his]penis in my vagina, he raped me".(d) There was no corroborating or independent information supporting theallegations. For example, there is no evidence from her parents or fromMr Misa's parents, or from AB's brother who lived upstairs at onestage, that the rapes were mentioned previously. Similarly, the onlyevidence of this kind in respect of BC's allegations came from a cousinwho mentioned seeing bruising, emotional and physical abuse, but nomention of sexual abuse.(e) The complainants had clear opportunities to tell authorities about whatwas happening and they never did, noting for example that the Policehad got involved in relation to assaults against AB in 2006. Yet therewas no mention of the sexual offending at that time.(f) The claims lacked credibility and defied commonsense. He noted theexample of indecent touching while driving.(g) BC got a Samoan "malu" — an excruciating ordeal, after theirrelationship ended, even though she is Maori not Samoan. This wassaid to show she still had a deep connection to Mr Misa which was notconsistent with the abusive relationship now claimed.[18] The Judge also provided a fulsome summary of the defence case, repeatingalmost verbatim the seven reasons stated by Mr Le'au'anae as to why the Crown failedto prove the charges. On the issue of collusion, similarities between the nature ofthe charges and some of the facts alleged by the complainants are highlighted,including the "Mt Wellington" leap.Grounds of appeal[19] Ms Sellars submits that:(a) strong, cogent and credible evidence is now available that is directlyrelevant to Mr Misa's defence that the allegations of both complainantsresulted from collusion and were fabricated; and(b) the case was not sufficiently prepared for trial and, as a result, Mr Misawas not able to present an effective defence.[20] We will address each ground separately before addressing whether Mr Misa'strial miscarried overall.New evidence[21] The new evidence is:(a) evidence obtained from the Ministry of Social Development (MSD)about Mr Misa's residential addresses during the periods of allegedoffending;(b) the evidence of John Albert, manager of the Glenn Innes apartments;(c) a transcript of a conversation between Mr Misa's mother and his formerwife where the charges were discussed; and(d) a social media message posted after trial from Mr Misa's former wifeto BC.[22] We briefly describe the new evidence before assessing its significance.MSD[23] The MSD records show:(a) In December 2005, Mr Albert confirmed that Mr Misa was a permanenttenant at the Glen Innes apartments.(b) On 5 January 2006, a person at Work and Income New Zealand (WINZ)spoke to Mr Albert. Mr Albert had been informed of a change inMr Misa's circumstances.(c) On 6 January 2006, Mr Misa's supplementary benefit was declined as"client now out of the area".(d) In the period from January to 3 July 2006, WINZ continued to sendcorrespondence to Mr Misa at the Glen Innes address.(e) The Work and Income database records the Glen Innes address as oneof Mr Misa's residential addresses from 7 July 2005 to 26 July 2006.[24] The Crown called Peter James Kruger of MSD to produce and speak tothe MSD/WINZ records. He confirmed the accommodation supplement wassuspended on 5 January 2006 but, on 3 February 2006, the supplement was resumedand back dated to 4 January 2006 with a slight increase. He accepted undercross-examination that there was no information on the system to show what addressthe payment was being sent to. He also confirmed that the recorded postal address issimply the address recorded at the time of the application for a grant. He also acceptedthat beneficiaries will usually be referred to a WINZ office nearest to their residenceand that, on 23 June 2006, Mr Misa was referred to an Otara office. He confirmed theWINZ records refer to "returned mail" which shortly follows from letters having beensent to the Glen Innes address.[25] Mr Kruger was questioned at length about the assumption Mr Misa continuedto live at the Glen Innes address through to July 2006. He maintained that, in theabsence of any request to change the address for the supplement, it is assumed thesupplement is being received for that same address. He appeared to concede, however,that an alternative address was noted on the WINZ records for the relevant period.John Albert[26] Mr Albert was the manager of the Glen Innes apartments in 2005 to 2006.He continues to perform that role. He has a firm memory of Mr Misa's time at theapartments. He was known to him from his singing background. He also recalledAB's time at the apartments both as a tenant on her own and as an occupant withMr Misa. He could not recall whether she was in her own apartment first, but he saidshe was in her own apartment most of the time. He remembered AB because shecaused problems when she went to Mr Misa's apartment. He referred to Mr Misaasking her to leave and AB refusing to do so. He recalled hearing a "lot of yelling andbanging" but did not see any physical violence.[27] Mr Albert confirmed AB jumped from Mr Misa's apartment to a neighbouringbuilding. He vividly recalls seeing her running naked across the roof of theneighbouring building and was terrified she would go straight over the side ofthe building. He also said he was not 100 per cent sure Mr Misa moved out after thisincident and does not have any records to confirm the position. He accepted it waspossible he returned to live there. But he was adamant no one else was there with himfor more than a week, because he and his staff were "keeping an eye" on things afterwhat had happened.[28] Mr Albert described the apartments and their surrounds. He noted they weretwo storey, but with three levels. At the time, the ground level outside Mr Misa'sapartment was covered in old concrete with twisted steel and old pipe. He recalled ittook six months to remove it. He was of the strong opinion that had BC jumped fromthe third-floor window to this surface she would have died or been seriously injured.The transcript and Facebook entry[29] Mr Misa's mother recorded a conversation with Mr Misa's former partner, CD,on 21 January 2016, just under five months prior to trial. This transcript includesreferences to Mr Misa's upcoming trial. It shows CD's awareness of the allegationsagainst Mr Misa. CD refers to the seriousness of the allegations and the consequencesof being found guilty. She notes she is "friends with [BC] and she's been goingthrough a lot because she's sent to go to court". She also refers to allegations ofsexual abuse by Mr Misa of their daughter and why they stay away from him. Shesays she has had nothing to do with the investigation into Mr Misa's alleged offending.She also says, "I am doing the law because of him".1[30] A subsequent Facebook entry also states the following:Can you please email with the offences he was convicted of so I cancommence my research – this is a fun task for me and am so looking forwardto seeing the ex cry when sentenced Argument[31] Ms Sellars contends the new evidence, while not fresh, goes directly to thecredibility of both complainants and the issue of collusion. First, she says it showsthat BC fabricated her account of the alleged "Mt Wellington" offending.The MSD records and Mr Albert's evidence show, she claims, BC never lived withMr Misa at the Glenn Innes apartments, removing the apartments as a possibleexplanation for the location of the "Mt Wellington" offending. In addition, any leapfrom the third floor to the ground would have caused serious physical injury, if notdeath. Second, the transcript of the conversation, together with the social media post,supports an inference that the complainants colluded, in collaboration with Mr Misa'sformer partner, who plainly had ill feelings toward Mr Misa.Threshold[32] The new evidence is not fresh. As stated by the Privy Council in Lundy v R:2If the evidence is credible but not fresh, the court should assess its strength and itspotential impact on the safety of the conviction. If it considers that there is a risk ofa miscarriage of justice if the evidence is excluded, it should be admitted,notwithstanding that the evidence is not fresh.[33] In the present context, the risk of a miscarriage depends on whether, in light ofthe new evidence, there is scope for the jury to have been left in doubt about a keyissue at trial.3 We consider it desirable to admit this evidence for the purposes ofaddressing that issue.1 CD had commenced a law degree following her relationship with Mr Misa.2 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].3 Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [37].Assessment[34] We address the significance of the MSD records and Mr Albert's evidence first.Mr Albert's evidence is credible evidence about whether and, if so, how long Mr Misaand/or BC resided at the Glen Innes apartments in 2006. His evidence, together withthe MSD records, places Mr Misa out of the Glen Innes apartments as early asJanuary 2006 or, at the latest, by the end of July 2006. His evidence also suggests BCcould not have been residing at the Glen Innes apartments in the alleged periods of the"Mt Wellington" offending. The new evidence also bears on the plausibility of theMt Wellington leap, if it was in fact from the third level Glen Innes apartment.It would have been a very significant fall onto a hard and uneven surface, most likelyresulting in significant injury. Finally, in combination, the implausibility of BCresiding at the Glen Innes apartments, together with the implausibility of"Mt Wellington", adds force to the claim it was simply contrived to mirror AB'sproven, similar (though not identical) claim.[35] Nevertheless, we are satisfied that the potential impact of this evidence on theverdicts is small. First, the new evidence is directly relevant to a contextual issue only;that is, whether the offending occurred at the Glen Innes apartments and whether BCleapt from them. Second, the evidence at trial that the offending occurred atthe Glen Innes apartments was and remains cogent. BC stated the offending occurredat an apartment in a Mt Wellington location based on her general understanding of thearea. Most relevantly, she had distinct memories of it being located nearMoyes Panmure, having driven past that well-known car dealer while living at theapartments. It is located on one of the main arterials linking Glen Innes toSouth Auckland, where her grandparents resided. She also provided a detaileddescription of the apartment and the apartment complex that was very similar toMr Misa's apartment and the Glen Innes apartment complex. While parts of BC'sevidence-in-chief would have placed her out of the "Mt Wellington" apartments, undercross-examination she confirmed that the "Mt Wellington" offending predated anAugust visit to a doctor.4 This fits with the MSD records which suggest Mr Misa was4 She initially said the offending occurred while she was three, four or five months' pregnant andshe gave birth to their daughter in March 2007. This would have placed the offending well intothe third quarter of 2006. There is no evidence to suggest Mr Misa resided at the Glen Innesapartments in that period.receiving an accommodation supplement for the Glen Innes address up to the end ofJuly.[36] Third, Mr Albert's evidence is not of such strength or cogency as to raise a realdoubt about a jury finding that the "Mt Wellington" offending occurred atthe Glen Innes apartments. Mr Albert could not be categorical about whether Mr Misareturned to the Glen Innes apartments after January 2006 and his evidence that he didnot observe BC living at the apartments is highly contestable. It relies on the absenceof observation after an elapse of 10 years and he has no records as to who was residentin the apartments at the time.[37] We accept the similarity of BC's description of the Mt Wellington apartmentto the layout of the Glen Innes apartment, and the similarity of the two leapingepisodes, supports an inference that BC's allegations are copy-cat. We alsoacknowledge a leap from the third floor is likely to result in injury. However, thesimilarity of their accounts would have been obvious to the jury. Indeed, whileMr Albert's evidence would have further highlighted that issue, all of the material factswere already before them.[38] Notably also, the location and the leap were background matters in the contextof 25 claims of abuse by two complainants in long-term relationships with Mr Misa.While Mr Misa has sought to make much of certain aspects of the "Mt Wellington"offending, they formed only discrete parts of finely-grained, plausible, mutuallysupportive narratives of domestic abuse spanning five years, including proven acts ofassault on each of the complainants.5 We very much doubt that Mr Albert's evidencewould have materially affected the outcome, given the combined weight of thesenarratives.[39] Finally, issues of implausibility and potential collusion were thoroughlyexplored before the jury, Mr Le'au'anae making much of the copy-cat nature ofthe "Mt Wellington" offending. Mr Misa also gave evidence at trial that BC wouldnot have survived a leap from the third-floor window and the jury would have taken5 See [12] for the charges which formed part of the agreed facts.that into consideration. In reality, Mr Albert's evidence would have done little toenhance the case for implausibility and/or collusion.[40] Accordingly, Mr Albert's evidence and the MSD evidence is not sufficientlystrong or cogent to lead to a different verdict or raise real scope for the jury to be indoubt about a key issue or issues at trial.[41] We also see nothing in the transcript and Facebook evidence. The transcript isnot direct evidence of collusion between the complainants and only marginal evidenceof collaboration between BC and CD. At best, it may have provided a hook uponwhich to cross-examine the complainants further about collusion, but the nature andquality of any potential evidential catch is speculative. In this regard, production ofthe transcript and, presumably, calling CD would present its own risks to Mr Misa,including evidence from CD as to her relationship with him. While we assume herallegations of child sexual abuse may have been excluded as unduly prejudicial, otherallegations of abusive behaviour may, nevertheless, have been raised in evidence.Given these additional complications, the case for a new trial based on the transcriptand/or the Facebook entry is inherently weak.Pre-trial preparation[42] Mr Misa and Mr Le'au'anae gave evidence before us about pre-trialpreparation. It is common ground Mr Le'au'anae was sparsely briefed by Mr Misabefore trial. On the evidence available to us, Mr Le'au'anae and his juniors spent littlemore than an hour with Mr Misa in pre-trial briefings. In a case involving 25 charges,including ten charges of sexual violation, that was inadequate. Unsurprisingly,Mr Le'au'anae acknowledges that his instructions were insufficient. In fairness toMr Le'au'anae, it was not for want of trying. The record shows multiple attempts byMr Le'au'anae to meet with Mr Misa about his case, including travel by him toMr Misa's parents' home. The lack of contact is partially explained by the factMr Misa was also living an itinerant lifestyle through this period due to financialconstraints and was under considerable personal strain, his father having passed awayin October 2015.[43] In any event, Ms Sellars made the following key points:(a) Mr Le'au'anae should have sought an adjournment;(b) had Mr Le'au'anae been better briefed, he could have more effectivelyexposed evidential inconsistencies, the collusion, the fabrication andthe implausibility of the complainants' evidence; and(c) Mr Misa was not advised about any aspect of jury selection.[44] The claimed evidential inconsistencies are:(a) AB's evidence in relation to charge 1 is contradictory as to whether shewas on the bed or had moved out of bed when she was picked up.Furthermore, the description of how she was picked up lacks credibility.(b) AB's narrative about charge 4 lacks credibility and is inconsistent. Shesays she was wearing clothes, but does not describe them beingremoved when raped. She also said in evidence that she tried to pushhim off. But she did not say that in her evidential interview.(c) AB's evidence about charge 8 is inconsistent with her interviewstatement. In evidence, she said she swore at Mr Misa stating: "Fuck,get the fuck off me". However, in her evidential interview she said" I was trying to tell him no like, actually no I don't think I was tryingto say no, I was trying to say get the fuck off me. But if I ever sworehe'd just beat the crap out of me 'cause that's disrespecting him."(d) In evidence AB said, referring to a knife: "He knew it was under thereand I had a reason". But in the evidential interview she said: "I don'tthink he knew it was there".(e) BC gave a detailed account of events leading to the alleged first assaultin the car in her evidential interview but she could not remember theseevents when giving evidence.Assessment[45] An adjournment should have been sought. Mr Le'au'anae knew hisinstructions were inadequate, but carried on regardless. In so doing, he took the riskthat Mr Misa might not be able to present an effective defence. While an applicationfor adjournment may have been declined, Mr Misa should have been afforded theopportunity to seek an adjournment and any decision to adjourn should have been leftwith the trial Judge.[46] Even so, we are not satisfied the inadequacy of the pre-trial briefing had amaterial effect on the verdicts. First, Mr Le'au'anae was, overall, sufficiently preparedfor trial. The best illustration of this is his conduct at trial. He competently testedthe complainants' reliability and credibility in cross-examination by reference to arange of matters, identified several weaknesses in the complainants' evidence andclosed to the jury by identifying all key defence grounds, including implausibility,fabrication and collusion.[47] Second, more elaborate pre-trial briefings would not have added materially toMr Misa's case on the matters now highlighted by him for the purpose of his appeal.More specifically:(a) The alleged inconsistencies in the evidence noted above at [44], werealready identifiable from the written record available to counsel priorto trial and were not matters on which Mr Misa could provide anyspecial insight.(b) Two of the alleged inconsistencies (the picking up of AB in charge 1and the removal of clothing in charge 4) were specifically addressed byMr Le'au'anae.(c) None of the inconsistencies individually or collectively stand out asmaterial to the verdicts.(d) Mr Misa's strongest point is that the "Mt Wellington" offending wasfabricated. But this issue was signalled in the pre-trial briefing notesand was dealt with robustly at trial; so much so the Crown had to amendthe charges.[48] Third, in our view, Mr Misa's suggested weaknesses in trial performancereflect post-trial remorse rather than inadequate pre-trial preparation. In reality, thepotential for additional "Mt Wellington" evidence only assumed any significanceduring the trial when the Crown linked BC's allegations to the Glen Innes address. Wevery much doubt additional briefing time with Mr Misa would have better enabledMr Le'au'anae to anticipate and respond to this change of direction in the Crown casewith the evidence now proposed. In addition, for the reasons already stated, we do notconsider that there is a real risk this evidence would have had a material effect on theoutcome.[49] Finally, we see nothing in the jury selection point. Mr Le'au'anae gaveevidence about this. He confirmed that his usual practice was to give clients standardinstructions about jury selection. We prefer his evidence on this. Mr Misa seemed tosuffer loss of memory on key pre-trial matters when convenient to do so. By contrast,Mr Le'au'anae's evidence was balanced.Miscarriage?[50] We have also considered whether the new evidence, in combination with theinadequacy of pre-trial briefings, raises miscarriage concerns on unfairness grounds.This arises as a separate issue because it might be said that the inadequacy of pre-trialbriefings meant that Mr Misa never had the opportunity to present a fully effectivedefence, supported by the best evidence available to him. In this regard, it might alsobe said matters were compounded by the Crown amending the charge, afterevidence-in-chief, to specify "Mt Wellington" and then cross-examining Mr Misa toplace BC at the Glen Innes apartments. Putting the case as highly as we can, giventhe inadequacy of preparation, Mr Misa was arguably disenabled from properlyaddressing the Crown's case on the "Mt Wellington" offending, whether in terms ofcross-examining BC, presenting evidence-in-chief or responding to cross-examinationon the "Mt Wellington" issue.[51] But this contention belies what in fact transpired at trial and, even adopting agenerous approach to the new evidence, we have no concern about unfairness. At trial,Mr Misa was confronted by two complainants with similar evidence about physicaland sexual abuse spanning several years, both as to context and the nature and type ofoffending. His defence was simply it did not happen; that they were lying andcolluding because they were out for revenge. Assuming for present purposes that therewere weaknesses in BC's evidence about the Mt Wellington location and a potentialfor collusion, Mr Misa was aware of the overlapping complainant narratives aboutleaping from apartments well before trial. He said this in his interview statements:It's the same comment that ah [AB] said to me ah accused me of. These storieslink up with identical with each other. I never did that. Why didn't she specifywhich address? If she can clearly state what actually happened or where Idon't know whether why she can't state the address or the location of this sothis address that we so-called stayed at.[52] BC also stated clearly in her interview statements that she thought it was thesame apartment previously occupied by AB. Mr Le'au'anae had these interviewstatements pre-trial, and his file notes shows he was briefed about the "Mt Wellington"location issue.[53] We are therefore satisfied that nothing in the pre-trial preparation, the conductof trial counsel and the new evidence (individually or in combination) raises real scopefor concern about the safety of the verdicts.Result[54] The application for leave to adduce further evidence is granted.[55] The appeal is dismissed.[56] To avoid the risk of identifying the complainants, we make an order prohibitingpublication of the name, address, occupation or identifying particulars of connectedperson CD pursuant to s 202 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent