MCGEACHIN v R [2020] NZCA 72

MCGEACHIN v R [2020] NZCA 72 [20 March 2020]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA730/2013[2020] NZCA 72BETWEEN LESLIE MCGEACHINApplicantAND THE QUEENRespondentHearing: 13 November 2019, further submissions received 9 December2019Court: Wild, Whata and Katz JJN Levy for ApplicantS K Barr for RespondentJudgment: 20 March 2020 at 2.00 pmJUDGMENT OF THE COURTThe application for recall is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)Introduction[1] This judgment deals with an application "[f]or leave to re-open the appeal" and"[f]or leave to appeal against sentence".[2] The appeal was against a conviction entered against Mr McGeachin inthe District Court on 13 May 2013, following a jury trial presided over byJudge Hobbs.[3] This Court dismissed the appeal in a judgment delivered on19 November 2015. Mr McGeachin had filed his appeal some two months out of time.In its judgment, this Court extended time for the appeal. It declined Mr McGeachinleave to adduce further evidence from four potential witnesses, and also declined leaveto file further submissions post-hearing (those submissions had been proffered byMr McGeachin personally, not his appellate counsel).[4] Because the application seeks to re-open an appeal dismissed in a judgment ofthis Court, it must be treated as an application to recall that judgment. Ifthe application is successful, the Court recalls its judgment and will then hear theappeal anew.[5] The application for leave to appeal against sentence is, properly, an applicationfor an extension of time to appeal against sentence. Ms Levy did not wish to pursuethat application at this stage, so we say nothing more about it.Jurisdiction[6] This Court has an inherent power to recall a final decision in exceptionalcircumstances when interests of justice require.1 Or as Elias CJ put it in R v Smith,when without such a response, confidence in the administration of justice would beundermined.2 As stated by this Court in Lyon, it is available only where the followingpre-conditions are met:3(a) there is a fundamental error in procedure;(b) a substantial miscarriage of justice would result if the error is notcorrected; and(c) there is no alternative effective remedy.1 Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [23] and [26].2 R v Smith [2003] 3 NZLR 617 (CA) at [36].3 Lyon, above n 1, at [26]–[27].Background factsTrial and sentencing[7] A jury found Mr McGeachin guilty on charges of, among other things, violentand sexual offending in relation to two previous partners, CF and JO.More specifically, he was found guilty of burglary, assault, rape and sexual violationin respect of CF. He was also found guilty of rape, sexual violation and assault inrespect of JO. He also pleaded guilty to four charges of male assaults female inrelation to JO.[8] At sentencing Judge Hobbs said that Mr McGeachin's offending "is bestdescribed as a reign of tyranny endured by two victims over a period of some25 years".4 That is an apt description based on the evidence of the complainants.According to CF, Mr McGeachin choked her on several occasions and raped her manytimes, including on one occasion thrusting a hairbrush into her vagina, causingsignificant pain and bleeding. Similarly, JO said Mr McGeachin raped her multipletimes at various locations, that he attempted more than once to penetrate JO's anuswith his penis and sexually assaulted her by placing his finger in her anus and vagina.She said Mr McGeachin would regularly physically abuse her and control her; he oncetwisted her fingers with such force it caused JO to think her fingers were broken. Otherexamples of abuse include Mr McGeachin punching JO in the back of the head, aswell as hitting her around the head with a hairbrush, causing the hairbrush to break.[9] Mr McGeachin also pleaded guilty to two violence charges laid in respect ofhis adult children, C and L. After the incident at JO's house where Mr McGeachinhad hit her with the hairbrush, JO left the house with her children and drove tothe house of C and L, who offered to have JO and the young children stay the night.However, at about midnight Mr McGeachin drove to C's address and began bangingon the door. C answered the door and they got into an argument. He slapped her onthe face and then closed the door on her. C was pregnant at the time. He then went tohis car and returned with a steering wheel lock. His son, L, tried to intervene and get4 R v McGeachin DC Wellington CRI-2012-085-2003, 23 July 2013 at [1].him to leave. Mr McGeachin then swung the steering wheel lock at L, narrowlymissing him and hitting a nearby concrete wall.[10] Judge Hobbs sentenced Mr McGeachin to five years' imprisonment in relationto the offending against CF, and 14 years' imprisonment, with a minimum period ofimprisonment of nine years, in relation to the offending against JO. The sentenceswere cumulative. In total, 19 years' imprisonment.The 2015 appeal[11] In 2015, Mr McGeachin filed an appeal against conviction but not sentence.He claimed trial counsel made numerous errors. This Court outlined them as follows:5 The alleged errors are as follows: that counsel approved the editing ofevidential interviews by the complainants without his consent, and did notgive him an opportunity to see the unedited interviews; that trial counsel failedto cross-examine on a number of topics (such as a violent incident in 1996,the death (or not) of a doberman pinscher dog, the existence or otherwise of apsychiatric disorder on the part of one of the complainants, the existence ofmarks on the wall at the house of one of the complainants, whetherMr McGeachin lived for a period in a lock-up facility, whether injuries to oneof the complainant's fingers were indeed fractures, whether Mr McGeachinhad been black-balled from work sites, possible collusion betweenthe complainants, whether one of the complainants had met Mr McGeachin'sprobation officer, the length of time that complainant had been in arelationship with Mr McGeachin, whether Mr McGeachin had a hearingdeficit, whether that complainant was a regular cannabis user and whether theother complainant had a particular back condition); failure to obtain fulldisclosure of police photographs; and failure to call seven witnesses whomight have given evidence useful to the defence.[12] The Court then summarised:6[4] Drawing these strands together, Mr McGeachin's fundamentalcomplaint is that trial counsel did not have a firm grasp on the theory of hisdefence. He accepts that he is violent. He says that is why he asked counselto let the jury know about his previous assault convictions. But thecomplainants lied about or exaggerated the latest charges and colluded ingiving evidence.[13] Detailed affidavit evidence from Mr McGeachin supported the errors healleged. However, the Court concluded that Mr McGeachin's recollection was5 McGeachin v R [2015] NZCA 558 at [3].6 At [4].unreliable. The Court also found none of the alleged errors were fundamental, in thesense none prevented Mr McGeachin from presenting an effective defence. The Courtrecorded that Mr Dean, appellate counsel, acknowledged that in his oral submissions.The Court therefore concluded the alleged errors, at best, fell into the intermediateclass identified by Gault J in the Supreme Court in Sungsuwan v R, concerning generalpretrial or trial decisions or actions by defence counsel.7 In reaching that view,the Court had regard to an affirmation of trial counsel, the key aspects of whichthe Court summarised in the following terms:8[7] In this case trial counsel provided a sworn affirmation explaining inextensive detail those actions taken before and during trial which now havegenerated complaint. Amongst other points she says that she discussed theneed to edit the evidential video interviews with Mr McGeachin and obtainedhis instructions to that effect. She also says she did provide Mr McGeachinwith unedited transcripts of the evidential video interviews. She points tocontemporaneous documents demonstrating discussion of the edits, andreview of the unedited interviews by Mr McGeachin, had occurred.She addresses each of the instances where Mr McGeachin complains that shefailed to cross-examine on particular issues. In her explanation she sets outcountervailing considerations justifying limiting cross-examination. Other points not pursued are described, cogently, as merely peripheral.Collusion between the complainants was indeed addressed in cross-examination. So was the mental health disorder of one complainant(the diagnosis being admitted, although its accuracy was contested). As tothe seven witnesses not called, counsel denies that she was given instructionsto call five of them. The sixth was in fact called by the Crown and cross-examined. Trial counsel denies that she was instructed to apply for this witness(who had returned to Australia) to be recalled. The last suggested witness wasuncooperative and could not be located. In any event there was a realpossibility his evidence would be unhelpful overall, as the Crown case wasthat he too had been assaulted by Mr McGeachin.[14] The Court added:9[8] As to Mr McGeachin's overall complaint that she lacked a grasp ofthe theory of his defence in not leading evidence of earlier violenceconvictions, she notes that, consistent with the instructed defence,Mr McGeachin pleaded guilty to certain violence charges at the start of thetrial (demonstrating a willingness to accept responsibility for admittedactions). Secondly, however, Mr McGeachin's instructions were to opposethe Crown's application to adduce evidence of prior convictions for violenceagainst one of the complainants as propensity evidence. This was the subjectof a pre-trial ruling by Judge Hobbs, admitting one prior conviction aspropensity evidence, but declining or adjourning others (the adjourned onesbeing dropped by the Crown at trial). Thirdly, that position was adhered to at7 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.8 McGeachin v R, above n 5, at [7].9 At [8].trial. In giving evidence Mr McGeachin accepted responsibility for thenow-admitted charges and the admitted propensity conviction, but did notseek to give evidence of other violent acts. [15] The Court concluded counsel's explanations were cogent, and the technicalchoices made were explicable and available to notional competent counsel. The Courtwas therefore satisfied that the appellant had not demonstrated any miscarriage.The Court also noted:10 Furthermore, trial counsel was not cross-examined on her affirmation.Where the affirmation responded to matters of fact in contest (e.g. theprovision of video interviews to Mr McGeachin or the scope of hisinstructions), it was effectively uncontested.[10] Faced with this difficulty, Mr Dean attempted to argue thatMr McGeachin's allegations "spoke for themselves". We cannot accept thatsubmission. The alleged errors were not fundamental, in the sense referred toat [6]. As we have said, a cogent explanation for each point of complaint hasbeen given by trial counsel. In these circumstances, it would be wrong for thisCourt to reject that explanation without challenge by cross-examination.[16] The appeal was accordingly dismissed.Application for leave to appeal to Supreme Court[17] Leave was then sought to appeal to the Supreme Court. By this stage, an errorin trial counsel's affidavit in relation to deletions to the evidential interview of JO hadbeen identified. The Supreme Court's response is recorded in a minute of 10 August2018 as follows: It is clear from that material that, contrary to the information before theCourt of Appeal, certain deletions to the recording of the evidential videointerview of Complainant J were made, meaning that the deleted material wasnot seen by the jury. The respondent accepts this. However, there is a disputeas to whether the deletion of this material was material and, in particular,whether the effect of the deletion was that the trial miscarried.[11] It is not clear that the Supreme Court is the best venue forthe resolution of that dispute. It may be that to allow it to be dealt withdefinitively, further evidence may need to be adduced and possibly thatcross-examination may be required. It would be unusual for this Court to hearevidence (including cross-examination and re-examination). And, moreimportantly, if we were to do so and determine the issues in dispute, we wouldnot have the benefit of the Court of Appeal's consideration of the evidence10 At [9]–[10].and other material and there would be no possibility of appeal for either partyif they were dissatisfied with the outcome.(footnote omitted.)[18] The present application for recall follows on from that minute.Grounds for recall[19] Mr McGeachin's grounds for recall are not found in a single document.They are referred to in various documents filed by him, in the report of Court-appointed counsel (Ms Hall), and also in the application for rehearing filed byMs Levy.Mr McGeachin's own documents[20] Mr McGeachin filed an application for recall on 31 August 2018. It referredto the error in Ms Brown's affidavit identified by the Supreme Court and invitedthis Court to consider the submissions filed by him in the Supreme Court for thepurpose of his recall application.11 In a memorandum dated 20 September 2018,Mr McGeachin identified, it appears to us, the affidavit error for the recall and invitedthe Court to consider several matters relating to the deletions. In a subsequentmemorandum of 11 October 2018 and submissions of 12 October 2018,Mr McGeachin alleged inadequate disclosure in relation to CF's involvement in theevents referred to in the deleted passages. He also referred to what he calledMs Brown's "perjured" affidavit at paragraphs [54] and [55], Crown/Police"concealment" of the victims' collusion and their failure to disclose material said toshow CF's involvement with JO.11 In his submissions to the Supreme Court Mr McGeachin identified several purported problemswith the Crown case. These included an alleged failure by the Police to disclose that JO'scomplaint was first made by CF; that JO and CF had contaminated a scene prior to examination;and that none of CF's medical records were produced to corroborate her injury claims. He notedthat CF had acted as JO's support person as stated in C's affidavit, and that C's claim that herbusiness had failed because of her injuries was false because her business failed long after theyseparated. He referred to numerous alleged misstatements by Ms Brown and her advice that hewas not allowed to give evidence contradicting CF's account of damage and repair to a window,and that this evidence was self-evidently wrong because she also claimed to be in a coma at thetime. He submitted that there was evidence from C and PA contradicting CF's evidence that hehad shot the dog and that the dog had been re-homed. Mr McGeachin also filed submissions inreply to the Crown's submission to the Supreme Court. Those submissions, in short, sought tocontradict matters raised by the Crown and emphasised the importance of C's evidence.[21] In a supplementary submission, also on 12 October 2018, Mr McGeachininvited the Court to consider that the jury was left with the impression that CF and JOwere not friends and had nothing to do with each other. He also repeated his concernsabout inadequate disclosure on these matters.[22] This was followed by an interlocutory application on 18 October 2018 toproduce evidence from several witnesses who were present in relation to "mattersdetermined by the Supreme Court". Mr McGeachin's concerns are then largelyrepeated in submissions on 19 October 2018 responding to the Crown's submissionsabout recall.Court appointed counsel[23] By a minute dated 7 December 2018, this Court appointed Ms Hall to assist ontwo questions:(a) What grounds for recall or reopening of the Court's original appealdecision may responsibly be advanced.(b) Whether these matters are ones which should be dealt with by the Courtby way of recall (on the papers) or on R v Smith reopening grounds(oral hearing).12[24] Ms Hall's response of 30 January 2019 identifies the key matters in issue asfollows:13 The primary issue is that the Court of Appeal were misled byMs Brown during the appeal hearing and decided the appeal inreliance on incorrect information (and in the absence of relevantinformation).14 The following issues have been raised persistently by Mr McGeachin:a. Trial counsel failed to appropriately put his case, andthe detail supporting it, in cross-examination;b. Trial counsel failed to interview and call appropriate defenceevidence (including witnesses who could contradictthe complainant's allegations);12 R v Smith, above n 2.c. There is fresh evidence of collusion (previously unavailableto Mr McGeachin) that is capable of affecting the safety ofthe convictions (in particular the evidence of [C]);d. Prior to trial, Mr McGeachin was not given accuratetranscripts of the original evidential interviews along withclearly marked edited versions such that Mr McGeachin wasunable to properly prepare for his trial and unable to properlyinstruct his counsel. In addition, Mr McGeachin is hard ofhearing and was not provided with headphones duringpre-trial argument when pre-trial rulings that would impact onthe editing process were discussed.e. The evidential interviews were edited without his consent byremoving probably false allegations and details (ostensibly toremove prejudicial material, but in the process removing hisability to attack the complainants credibility);f. In the case of the complainant [JO], the evidential interviewwas edited to delete the critical reference to [CF] contactingpolice and "organising" the police on [JO]'s behalf.Mr McGeachin argues this evidence would have assisted hiscore defence case (that the two complainants colluded withone another).g. Trial counsel and police did not make satisfactory enquiriesregarding scene, photographs of injuries and footwear.h. Trial counsel and police did not satisfactorily managedisclosure issues (particularly relating to medical records,potential evidence of contact between the police andthe complainants and each other).15 The reasons that Mr McGeachin proffers as to why his trial was unfairand miscarried ought to have been put to trial counsel (and some toDetective Rapira-Davies) so that the Court of Appeal could beproperly assisted in the assessment of the evidence and the safety ofthe convictions.(footnotes omitted.)[25] Ms Hall elaborated in her report to the Court on the significance of thedeletions to Mr McGeachin's case and concluded that the following grounds mightproperly be advanced:(a) Mr McGeachin's defence was collusion and complainantexaggeration/fabrication was the defence.(b) Mr McGeachin complained that a key plank to the collusion defencewas removed from the jury by trial counsel error and without hisinstruction. Trial counsel deposed that the evidence had been left tothe jury.(c) Without the benefit of cross-examination of trial counsel, the Court ofAppeal accepted the evidence of trial counsel over that ofMr McGeachin. Trial counsel was wrong. The Court of Appeal hasbeen misled and this cannot be permitted to endure.(d) The error was a material error concerning a key plank of the defencecase.(e) As the Supreme Court foreshadowed, resolving the issue wouldproperly require evidence to be called. Mr McGeachin ought to havethe benefit of the Court of Appeal being able to test the evidence of trialcounsel now that she has been shown to have misled the Court on anevidential issue critical to the defence case.(f) There are other grounds that Mr McGeachin would seek to relitigate(see paragraph 14 of Ms Hall's memorandum above). It is acceptedthat a fresh approach to arguing original grounds, or pleading groundsnot argued originally, is not a basis upon which a judgment would berevisited. However, it cannot be said that the original appeal wasconducted flawlessly save for one error by trial counsel.Ms Levy's application[26] An application was then filed by Ms Levy, on behalf of Mr McGeachin, forrehearing of the appeal. The following grounds were identified:Error of process(a) The Court hearing the appeal on 10 November 2015 relied uponthe affidavit of trial counsel as to the evidence before the jury andthe affidavit has subsequently been shown to be incorrect on a criticalpoint;(b) there is no alternative remedy available to the appellant; and(c) a substantial miscarriage of justice would result if a judgment reflectingthe correct position is not delivered.Complaint against appellate counsel(d) The appellant raised numerous issues with the affidavit of trial counsel,but no cross-examination occurred;(e) the appellant's efforts to have these matters raised by way of furthersubmissions were unsuccessful; and(f) the issues to be raised in cross-examination were capable of affectingthe outcome of the appeal.Summary[27] As can be seen from the foregoing, while his complaints to the Supreme Courtwere wide ranging, the consistent position adopted by Mr McGeachin for the purposeof recall is that Ms Brown misled the Court about a key matter in issue, namelywhether critical passages in JO's Evidential Video Interview (EVI) were put to thejury. Given the significance of those passages to his defence of collusion,Mr McGeachin claims that Ms Brown's affidavit error has meant the appellate processwent wrong and that his appeal should be reheard. He also says Ms Brown misled theCourt about cross-examining C about collusion and JO about her use of cannabis.Mr Dean's failure to cross-examine Ms Brown is then said to have compounded theseerrors.[28] In order properly to address these grounds, it is necessary to examinethe background to the EVI deletions in more detail, together with the evidence filed inrelation to the appeal and the application for recall. We now turn to this.JO's EVI, C's alleged assault, and the edits[29] As noted, one of the episodes of alleged offending against JO involved allegedassaults of CF's children, C and her brother L. However, Judge Hobbs severed thecharges based on these allegations from the sexual violation charges. This was for thefollowing reasons:13[28] I accept that the evidence in relation to Counts 18 and 19 is furtherevidence of the accused's tendency to act in a violent manner. It is perhapsmost relevant in the context of [CF] because of the familial connections.However, in my view it lacks the necessary specificity to be admissible aspropensity evidence in relation to the remaining counts in the now joinedindictment. I think it has a very low probative value in relation to whether ornot the accused acted violently both physically and sexually towards [CF] and[JO]. In light of the much more serious allegations being made by [CF] and[JO] it may be argued that Counts 18 and 19 would have very little prejudicialeffect on the accused should they be heard with the other counts in the nowjoined indictment. There must still be some prejudice to the accused shouldCounts 18 and 19 remain in the joined indictment.[29] I note that the Crown also wish to pursue an application to admit intoevidence a previous conviction the accused has for assaulting his daughter onthe basis that it is admissible propensity evidence. Taken together and bearingin mind what I regard as the very low probative value the evidence has to theissues in the remaining counts in the now joined indictment I think there is areal risk of unfair prejudice to the accused should Counts 18 and 19 remain inthe joined indictment. There would also be the need for an additional andcomplicated propensity direction in relation to these allegations distinct fromthose concerning [CF] and [JO] that would potentially confuse and distract thejury from the more serious allegations faced by the accused.[30] In summary I do not believe that the evidence in Counts 18 and 19 issufficiently probative in relation to the issues at trial for the remaining countsconcerning [CF] and [JO] to outweigh the risk that admission would beunfairly prejudicial to the accused. Accordingly I order that Counts 18 and 19be severed from the joined indictment.[30] Because of this severance, trial counsel were tasked with the responsibility ofdeleting the relevant passages. One of the deletions included the following passagesfrom JO's EVI (except the underlined portion):[Mr McGeachin] drove off and [C] was calling the police. And um, after that[L] just went back to bed and we waited for the Police to turn up and theycame out, and kind of took our names and what had happened, and asked uswhere he'd go and we told them about the lock up and about my place, andthey said that they'd send someone to arrest him. And um, that was basicallywhat happened on that night. And then on Friday we found out that we had to13 R v McGeachin DC Wellington CRI-2012-085-2003, 27 September 2012 at [28]–[30].make statements before they would be willing to arrest him. So we had tomake ...... my daughters mother [CF], she had come out, she went to the PoliceStation and started trying to organise things for us. And they tried to get usto go down to the Police Station but we explained that we had five childrenthere ranging from the ages of 2 to 9 and that we couldn't leave them alone,or anything like that, and that they weren't feeling safe enough for us to leavetheir company. So they organised for two Police Officers to come out and takeour statements. And we started talking to them about everything, and then theydecided that they had to go back and see their Sergeant in regards to whetherthey took statements that night or how to go about the whole thing. And thatthey would ring us in about half an hour. About an hours time later theyactually turned up, back up, and took statements from [C] and from myself.And um, said that they were.....would go and arrest him, but they didn't. Theyjust couldn't find him. And then on the Saturday um, he'd made the threatsof....to do with our lock up, that he was pushing the vehicles out of the lockup. My son-in-laws, and my step sons. And um, there had been a prioroccasion where he had lost his temper with [L] and he'd smashed everywindow on [L]'s car and smashed in all the panels on the car, so the kids reallythought that he would do something to the vehicles then. And so I arrangedto go to the Women's Refuge, because I was worried that he would come backout to their home and it would cause more grief for them. So they went to thelock up and I went to the Woman's Refuge, and um the ve .... one of thevehicles out of the lock up and their mother rang police while she was downthere, for the police to come and get him, but apparently they had just missedhim.(Emphasis added.)[31] To complete the picture, during Ms Brown's cross-examination of CF, the topicof the assault of C came up, including that she had seen JO at the time thatMr McGeachin assaulted C. The prosecution then applied to refer to this episode, butthe Judge ruled that discussion of the assault on CF could not go further.14[32] Before us, Ms Levy identified the italicised passages as the crucial deletions.Mr McGeachin, referring to those deletions, said in his submissions in support of hisappeal:At page 22 of her DVD video transcript [JO] stated that [CF] contacted thepolice on [JO]'s behalf on Friday 24 June 2011 and again on Saturday 25 June2011. This was before she made her statement to the Police. This was editedout of the evidence given to the jury.14 R v McGeachin DC Wellington CRI-2012-035-2003, 30 May 2013 at [3]–[11].[33] Responding in her affidavit, trial counsel, Ms Brown, stated:To correct a misstatement of the evidential position made by the appellant at[62] of his affidavit, [JO]'s comment in her EVI that [CF] contacted police onher behalf was not removed.[34] That response was incorrect. That evidence had been removed. This isthe error the Supreme Court identified as requiring further assessment.EvidenceMr McGeachin[35] Mr McGeachin filed a detailed affidavit dated 2015 in support of his appeal.Among other things he forensically reviewed the evidence given at trial, highlightingwhat he considered to be flaws in the complainants' evidence. Its key contents weresummarised by the Court of Appeal in the 2015 decision as noted previously at [12].That summary is not challenged and is, in any event, accurate. It provides sufficientcontext for present purposes.[36] Mr McGeachin filed further supporting affidavit evidence by several parties.Of that evidence, only C's evidence is directly relevant to the present application.She had this to say about the relationship between CF and JO:[JO] and my mother met on numerous occasions at my home where I livedwith my mother and also on occasions at drop-offs and pick-ups at my father'shouse. From my various experiences with both my mother and [JO] it wasclear that they never liked each other. However, they acted appropriately forthe sake of me and my younger brother, [L]. During the time my father wassent to prison from around mid-2011, [JO] and my mother became close andacted as each other's support person.[37] She also said that JO smoked marijuana, often to excess.[38] Mr McGeachin also filed an affidavit dated 10 May 2019 in support of hisapplication for rehearing of the appeal. The body of this affidavit refers to appellatecounsel Mr Dean's alleged failure to cross-examine Ms Brown. He says he identifiedto Mr Dean numerous problems with Ms Brown's affidavit and attaches as an exhibitthe notes he sent to Mr Dean about the issues he had with Ms Brown's affidavit.He said it was his expectation that Mr Dean would cross-examine Ms Brown on theissues he had with her evidence.[39] Mr McGeachin also gave evidence before us. He said that he became awareduring the course of the trial that considerable parts of the DVD interviews that hadbeen given by the complainants to the Police had been edited out. He said he recalleda short time prior to the trial being told by Ms Brown that she had agreed to variousparts of the video interviews being deleted so that they would not be seen by the jury.He said that during the trial and after being sentenced, he came to realise that he hadnever been provided with transcripts of, nor seen, the unedited versions of the DVDinterviews. He said he was only ever provided with edited versions of the DVD videotranscript and that he was only given these after 27 May 2013, two weeks before histrial date. He said he received no disclosure before this date. He said he was showndisclosure documents during visits to him in prison by Ms Brown, but he was not atany time given any copies of any disclosure documents. He said he asked Ms Brownat least twice about them but was told that there was not enough time available fordefence counsel to allow him to view them. He said he did not receive uneditedtranscripts of the DVD interviews until after 22 August 2014. Mr McGeachin thenspeculated as to the effect on the jury of the omissions.[40] Under cross-examination, Mr McGeachin confirmed that he had signed a notestating he did not want a copy of the DVD statement of JO. He recalled the Judge hadexcluded evidence relating to the assaults of C and L. He recalled discussing that withMs Brown. He also understood that evidence about those matters would be removedfrom JO's evidential interview. He also confirmed that Ms Brown brought outdisclosure to him, but he said she kept it to herself. He denied, however, thatMs Brown encouraged him to review JO's interview but that he would not. He alsoaccepted that in one part of the cross-examination of CF the topic of the assault of Ccame up, including that she had seen JO at the time Mr McGeachin assaulted C,and that this was discussed in chambers following which the Judge had ruled thatdiscussion of the assault on C could not continue. Mr McGeachin maintained,however, that he thought references to CF would remain in. He said he only everreceived the edited parts of CF's interview and had nothing to do with JO's transcript.He also maintained he never saw JO's interview and certainly not before the edits hadbeen agreed with the Crown.[41] He was taken to a file note dated 3 May 2013 where Ms Brown expressedsurprise that he did not have the EVIs, and said she would bring them in.Mr McGeachin acknowledged this but said she never did. He was then taken to afurther file note of 5 May which recorded: "go through transcripts and explain howset up".[42] He was also taken to various references in documentation which appear to referto what JO said in her EVI and to discussion with Mr McGeachin about her EVI, whichin turn appeared to inform the editing process. For example, there was reference to afile note of a discussion of 9 May between Mr McGeachin and Ms Brown where itwas recorded: "Never saw bruises around neck as referred to 4/7/11" and he was alsotold that reference corresponds to JO's EVI on that date where she referred to bruisesaround her neck. Mr McGeachin accepted this exchange took place but denied that itwas a reference to the EVI transcript. Mr McGeachin ultimately conceded thatMs Brown might have been referring to the transcript but said it did not mean that hehad it.[43] He accepted that it was about this time that he discussed with Ms Brown thathe would enter guilty pleas in relation to the assaults of the children. He said he justwanted to plead guilty to save the kids turning up. He was then taken to a file note ofinstructions he had signed which recorded:I, Leslie McGeachin, have had the opportunity to now hear the evidentialvideo interviews of my ex-partner [JO]. I have had her transcripts for theseevid video interviews many times.I now wish to change my plea to two counts in the indictment. My lawyer hasnot pressured me to plead guilty to these two counts. I have come to thisdecision on my own. I cannot remember the incident well and I accept thatthese actions may have happened now. [44] Mr McGeachin accepted that he signed this particular file note, but hemaintained he only had the edited version of the transcript. He also accepted that heknew the charges relating to assaults on the children would be severed. He maintained,however, that Ms Brown never took him through JO's EVI transcript in 2012 orencouraged him to go through it himself.[45] Mr McGeachin was also given the opportunity to respond to Mr Dean'sevidence that he had discussed with Mr McGeachin whether he would cross-examineMs Brown, and expressed concern that she would not resile from any statement in heraffidavit or add anything likely to assist, and that it would suffice to rely onthe affidavits. In questioning from the Court, Mr McGeachin said he could notremember such a discussion with Mr Dean. Mr McGeachin also emphasised that assoon as the appeal had finished, he raised with Mr Dean his concerns about the failureto cross-examine Ms Brown.Ms Brown[46] As noted, Ms Brown provided an affidavit dated 19 August 2015 for the appeal.It is necessarily detailed given the breadth of Mr McGeachin's affidavit.Most relevantly, she said:(a) the edited portions of JO's interview were left with the jury;(b) she cross-examined C about whether JO and CF knew each other; and(c) she questioned JO about her cannabis use.[47] In her affidavit of 25 June 2019 in relation to the present application, Ms Brownsaid that she provided Mr McGeachin with unedited copies of the transcripts of JO'sEVI prior to the trial and provided him with the final copies of the transcripts oncethey were finalised. She said he agreed with the edits. Ms Brown however concedesthat she did not squarely cross-examine C about whether the complainants knew eachother, but did establish through cross-examination that they were together at a babyshower event. She also concedes that she did not cross-examine JO about hercannabis use.[48] Ms Brown was cross-examined at some length by Ms Levy before us.Ms Brown accepted that Mr McGeachin had always raised a concern about collusionbetween CF and JO. She agreed, however, it was a "tricky route" to navigate becauseMr McGeachin also told her that the two of them did not get along. She accepted thatshe went through the EVI transcripts before she met with Mr McGeachin and sheacknowledged a note where she expressed concern that he did not have the EVI.[49] Turning then to the edits, Ms Brown explained the prosecution sent herthe edits first because they went through the EVIs to take out material relating tothe assaults of C and L. She agreed she started with partially edited transcripts fromthe prosecution and that she made additional edits and sent them back. It was put toher that she did so without Mr McGeachin's instructions, but she maintained thatMr McGeachin knew the edits had to occur. She accepted, however, thatthe discussion would have been in general terms. Reference was made to the meetingwith Mr McGeachin on 5 May 2013 and to a file note about having gone throughthe transcripts and explaining how they are set up.[50] Ms Brown confirmed her belief that they went through the transcripts in thatsession. She accepted she did not go through every paragraph of every transcript withMr McGeachin. She maintained, however, that Mr McGeachin would have got herworking copy. She also maintained that she would have left the transcripts with himto go through. She accepted she could not remember exactly what her conversationswere, given that it was seven years ago. But she said she had a clear memory ofthe need for him to have full disclosure and for him to go through it.[51] As to the edits, she noted that most of the relevant portion was cut bythe prosecution, consequent upon the Judge's severance decision. She also said thatMr McGeachin knew it was important that matter not come in, and she was verycareful not to allow it to get in.[52] She was directed to the deleted passages and invited to accept that this wasevidence of JO and CF being involved together in dealings to do with Mr McGeachin.She did not accept this. She said:15Not necessarily, no because of how I interpret that line from how I understoodthe evidence. My understanding and memory and from also looking is, he15 Notes of Evidence at 30.came to the house – let's say that was the 23rd. There was the incident, [C]called 111, he left, some police officers came and then there was no arrest, sothey realised they had to make a statement, but they couldn't go to the stationbecause they had the kids. So, that line about organising it, now that Iunderstand, is that [CF] was simply trying to get them to come, take astatement from them. So there's no discussion or indication in that line, rightthere, that those two have talked. It just simply is what we already knew,which was [CF] knew about the incident and was wanting to support herdaughter.[53] She also said that because the C incident could not be part of the evidence,she tried to paint a picture of collusion prior to this point. She also did not accept thatthe evidence was capable of demonstrating cooperation between JO and CF at anearlier stage. She also noted that when she tried to explore the relationship issue withCF and the incident came up, the prosecution sought a hearing in chambers and wantedto cross-examine on that collusion, why it was there, and explore the fact that the onlyreason that CF got involved was because she heard a 111 call.16[54] She was also questioned on her affidavit error. She said:17I can only say that I, obviously seen it, then it's been there, how I thought thatit hadn't been, I can only think that it goes to what my memory was at the timeand I know that we covered over the fact that [JO] was involved aroundthe same time, was involved when that first complaints were laid in regards toMs – sorry, [CF] was involved there. So, that portion where I was putting to[CF] the collusion about and how she was there at the different points and thatcame out in her evidence that she was there at the time of the assault, I canonly assume that's what was in mind because in my mind I knew that we hadcovered over this period and that she was part and parcel of that connectionand that's about all I can because, again, it's four years ago. So, I can't speakother than how, in my mind, I remembered as you said what points werethrough.[55] She also explained she did not check the transcripts because there was somuch material.16 This was not allowed by the Judge, refer R v McGeachin, above n 14, at [3]–[11].17 Notes of Evidence at 34.[56] Ms Brown adamantly denied that there was a route into the discussionsbetween JO and CF that involved mentioning the C assault in very general terms,stressing the contact that the two had at the time. She said:18Definitely not. Not with the decision by His Honour Judge Hobbs, not by thecontinued decisions of His Honour Judge Hobbs and not by the fact that theCrown even with me trying to not do that and that coming out the Crowntrying to again bring it all back in.[57] It was just, she said, "a no-go area". She also made the point that it wasthe decision of the Judge, of his own volition, to sever the assaults against the children.[58] She was then questioned further about the relevancy of the passage inthis way:19Q Do you accept that if you considered it relevant to the collusiondefence you could have sought leave to refer to the [C] assault ingeneral terms so that you could question about the two women talkingto each other?A You're asking me to – you're suggesting that I identified thatreference, knew it was a collusion reference and still decided it to goout. I did not do that. I didn't identify it as a collusion reference.Q No, I accept that. Do you accept now that it is potentially a collusionreference?A I still struggle a little bit with it because it doesn't identify the two ofthem in cahoots with each other. It identifies the mother speaking tothe daughter. So that reference at the top of the page there is a relayof what she knows that's been gone through the daughter and that wasconfirmed with [CF] that her whole involvement was because of thatdaughter and that 111 so there's nothing there. If there was "Ispoke to [CF] or" – then I can see that but that's not what's there. [59] When pressed further on this, the following exchange took place:20Q There's a difference between out there looking after my daughter andtrying to organise things with the police for [JO] and [C] isn't there?A But we don't know – but as we know from the evidence the organisingis just to get the statements to be taken. That's not necessarily talkingabout what's gonna be said and that's part of the collusion so I can't– I don't think I can speak beyond what's there because I can'tactually speak to what [CF] left. All I could have put is, what I think18 At 35.19 At 36.20 At 37–38.I did put, which is you were involved with this, you were aware of thisand you were there. You knew about it.[60] In questioning from the Court, Ms Brown said she could not specifically recallleaving the EVI materials with Mr McGeachin.Mr Dean[61] Mr Dean was cross-examined about his advice to Mr McGeachin aboutcross-examination in the first appeal. He denied that he left Mr McGeachin with anyexpectation that he would cross-examine Ms Brown. He said:21A Well I'm not so sure how he could have got to that expectation whenI do recall discussing with him and when Mr Dallas was with me thatwe – or that I wasn't going to cross-examine Louise Brown.Now whether he still had an expectation that that might happen –reflecting on that it may well be that we discussed that Mr Barr maywell have required Ms Brown to appear and then I might have had tocross-examine her. But I wasn't going to call her to be cross-examined and in fact I have a vague recollection of even talking toMr Barr prior to the appeal about whether he was going to cross-examine – or call Ms Brown to support her affidavit.Q You would have gone through with Mr McGeachin the numerousdifferences of recollection between him and Ms Brown – wouldn'tyou?A Well if you look at my submissions that I filed in the Court of AppealI filed some points on appeal in May and I've got them dated here Ithink the um.Q No no I'm only interested in what we have after Ms Brown has filedher affidavit and I accept that your submissions addressed thosedifferences.A Yes, well if I could just turn up my submissions which I have here –Well they're dated October 2015 and they closely cross-indexedthe complaints by heading to the notes of evidence which I had gonethrough with Mr McGeachin to turn up the particular complaints thathe had.21 At 44.[62] Mr Dean also emphasised that most of the mistakes alleged by Mr McGeachinwere discoverable from the record and did not need to be put to Ms Brown.He accepted that Koś J made it very clear to him that he was going to face difficultiesif he was not going to cross-examine Ms Brown and he accepted, with the benefit ofhindsight, that he should have cross-examined Ms Brown. Under questioning fromthe Court, he also said:22A To my mind sir there was nothing that I could put in cross-examinationto Louise Brown on looking again through my submissions –especially in the collusion point where I spent some 15 paragraphsperhaps is it, well that's three major paragraphs and sub-paragraphs –oh sorry its more than that – of going through the evidence which isin the notes of evidence and cross-indexing it to what – first of allwhat [CF] had said and secondly the evidence given by [JO] andthe conflict in that evidence. Now to my mind there was nothing thatI could cross-examine Louise Brown about relating to those points aswe heard the morning which was going to change her position becauseit's in the notes of evidence. [63] He then went on to elaborate on what he meant by the "benefit of hindsight".He said it was after he got the judgment that he realised he should have questionedMs Brown.Submissions[64] Ms Levy, adopting the stance taken by Ms Hall in her report, submits there wasa fundamental error in procedure in that this Court was misled by trial counsel —namely that the reference in JO's EVI about CF going to the police for JO was shownto the jury, when it was not. This is said to go to the critical issue at trial, namelywhether JO and CF colluded. This fundamental error is then said to have beencompounded by the failure of appellate counsel to cross-examine trial counsel.Substantial miscarriage arises because Ms Brown's failure to act on instructionsrelated to a key issue at trial, and much closer scrutiny should have been given tothe issue of collusion, particularly given the affidavit evidence of C that JO and CFhad in fact formed a close relationship by 2011.22 At 48.[65] In this regard, if the judgment is recalled, Ms Levy says this will enablecross-examination and submission on the following (among other things):(a) the background to the EVI edits;(b) the (lack of) instructions to edit the JO EVI transcript so thatthe reference to CF going to the police station to organise things wasdeleted;(c) the fact that an instruction to delete would have been contrary tothe defence theory of collusion (and that the negative aspect ofthe reference to assaults on C and L was outweighed by the positivecontribution of the evidence to the collusion theory);(d) the fact trial counsel made no decision to carry out that edit herself;(e) the decision to edit was prejudicial to the defence theory because itwould have removed that evidence of close conduct betweenthe complainants from the jury; and(f) the Judge was correct in describing collusion defence as an essentialpart of the defence case.[66] Ms Levy further submits that trial counsel also:(a) failed to ensure that the deleted passages were in evidence as part ofthe collusion defence;(b) failed to squarely put to C in cross-examination that the complainantsknew each other; and(c) failed to act in accordance with instructions and put JO andMr McGeachin's use of cannabis in evidence.[67] Ms Levy therefore submits that a substantial miscarriage arises because trialcounsel errors effectively prevented Mr McGeachin from presenting his defence, andthe failure to put these errors to trial counsel meant the first appeal was also unfair toMr McGeachin.[68] Mr Barr submits, in short, that the affidavit errors and Mr Dean's decision notto cross-examine had no material effect on the outcome of the appeal, and do notrequire correction.Assessment[69] We examine first whether the errors in Ms Brown's affidavit and/or Mr Dean'sdecision not to cross-examine Ms Brown amounted to fundamental procedural error.We think the errors in Ms Brown's affidavit do amount to this, and that Mr Dean'sdecision not to cross-examine her has compounded those errors. In short, the affidaviterrors may have misled the Court of Appeal. The error about the edits was alsoimportant, because the edits formed one of the main platforms for Mr McGeachin'sappeal. Mr Dean's decision not to cross-examine Ms Brown then meant the Courtof Appeal was left to discern the error from factually dense affidavits and submissions,and we are not prepared to speculate on whether the Court identified these errors.23[70] We are satisfied, however, that a re-hearing of the appeal in order to correct theerrors in Ms Brown's affidavit and the decision not to cross-examine her is notnecessary to avoid a substantial miscarriage of justice. Indeed, with the benefit of afull review of the evidence given on the appeal and particularly on the presentapplication, we see no merit in Mr McGeachin's substantive claims.Our reasons follow.[71] As will be evident, the key points of conflict between Mr McGeachin andMs Brown are:(a) whether Mr McGeachin received the unedited versions of the EVItranscripts;23 It does appear however that the Court found, in any event, the claimed errors did not amount tofundamental trial counsel error. See McGeachin v R, above n 5, at [6].(b) whether he was advised about and/or gave instructions aboutthe deletions;(c) whether Ms Brown adequately cross-examined C as to whetherthe complainants knew each other and, if so, about the relationshipbetween them;(d) whether Ms Brown should have cross-examined JO about her cannabisuse; and(e) whether Mr McGeachin was advised about appellate counsel's decisionnot to cross-examine Ms Brown.The EVI deletions[72] We deal first with the transcripts and the deletions. We have set out above ourreview of the evidence. We prefer Ms Brown's version of events, namely that shereviewed the EVIs with Mr McGeachin and he agreed with the edits to them.The record strongly supports her account. This includes:(a) The trial Judge's decision to exclude evidence of the assaults.(b) A trial counsel file note of 3 May 2013 of a discussion withMr McGeachin identifying that he did not have the EVI of JO.(c) Timesheets recording travel to Rimutaka prison and attendance withMr McGeachin on 5 May 2013.(d) A trial counsel file note of 5 May 2013 stating: "go through transcriptsand explain how set up".(e) Emails of 7 May 2013 between trial counsel and the Crown prosecutorabout removing the reference to the call by CF to the Police (removalwas not acceptable to the Police).(f) A trial counsel file note of 9 May 2013 recording a discussion betweenMr McGeachin and Ms Brown: "Never saw bruises around neck asreferred to 4/7/11", that quoted date being the date of JO's EVI.(g) A signed statement by Mr McGeachin which records:I, Leslie McGeachin, have had the opportunity to now hearthe evidential video interviews of my ex-partner [JO]. I havehad her transcripts for these evid video interviewsmany times.I now wish to change my plea to two counts in the indictment.My lawyer has not pressured me to plead guilty to these twocounts. I have come to this decision on my own. I cannotremember the incident well and I accept that these actionsmay have happened now. [73] As noted, Mr McGeachin also confirmed that he was aware of the decision toexclude the evidence of the assaults, that the EVIs had been discussed, and he knewthe references to the assaults had to be removed. Given this, and the fact the editedpassages were imbedded within the narrative of the assaults on L and C,Mr McGeachin's evidence that he did not know about the edits prior to the trial is notcredible.[74] Furthermore, we consider that there is no real possibility that omitting thedeleted passages affected the outcome of the trial. Again, the key deleted passageswere:So we had to make my daughters mother [CF], she had come out, she wentto the Police Station and started trying to organise things for us. and their mother rang police while she was down there, for the police tocome and get him [75] These passages do not evidence collusion between JO and CF in relation totheir respective complaints against Mr McGeachin. At most, these statementsdemonstrate some cooperation between JO and CF in relation to the assaults on Land C. Conversely, the opening up of further evidence of gratuitous violent offendingby Mr McGeachin against L and C would have inevitably been prejudicial to him.Thus, there was no real possibility that the jury would have placed any significancefavourable to Mr McGeachin on the deleted passages.Cross-examination of C about collusion[76] We also see nothing in the alleged failure to cross-examine C about collusionor more generally about the relationship between JO and CF. C does not state in heraffidavit that she was aware of collusion between JO and CF about sexual offending.While her affidavit evidence now suggests that JO and CF developed a supportiverelationship by about 2011 (also noting here that Mr McGeachin was arrested on27 June 2011), it was, at the time of trial, speculative to think cross-examination of Cwould have yielded anything helpful to Mr McGeachin on the key issue of collusion.Ms Brown, in fact, made this point well under cross-examination before us.She said:24Q Wasn't your job as defence counsel putting this collusion defence toquestion at every opportunity the extent to which these two kneweach other?A I covered off with [C] the points I need to cover off and to confirmthat she was at places where black eye and the different things and thepeople were there. So I did that part through. We had no idea what[C] was gonna say. I had no idea if she was positive Mr McGeachinor negative Mr McGeachin. There had been no contact. She was aCrown witness. The Crown didn't even know what she was gonnasay that's why we had the voir dire. And there's a very classic trialrule – never ask a question you don't know the answer to. I had neverhad any instructions from Mr McGeachin to suggest that [C] knew ofany collusion. So all that information that's come out now after thetrial would have been very beneficial if I had known that prior tothe trial.Cross-examination of JO about cannabis use[77] As to the cannabis usage, we cannot see the materiality of this. Ms Levysuggested it might have something to do with memory. But in a case concerningallegations of very serious sexual violation and other violence over the span of25 years, the probative value of this evidence, if any, would have been very small.We see no prejudice to Mr McGeachin arising from its omission.24 Notes of Evidence at 39.Advice about decision not to cross-examine at 2015 appeal[78] Mr Dean was adamant that he advised Mr McGeachin that he would notcross-examine Ms Brown. Cross-examination yielded nothing to suggest otherwiseand we have no reason to question the truth of Mr Dean's evidence about this.[79] For completeness, we address Mr Dean's decision not to cross-examineMs Brown in a little more depth. As Mr Dean explained, he had given detailedreferences in his submissions in relation to trial counsel error, and cross-examinationof Ms Brown carried the risk of enhancing her position to Mr McGeachin's detriment.That is, in fact, what has occurred before us. Cross-examination enabled Ms Brownto highlight those matters, including relevant parts of the documentary record, whichjustified the approach she took at trial. In addition, Ms Brown's cross-examinationbefore us on the alleged failure to cross-examine C about collusion and JO aboutcannabis usage served only to reinforce her competence. While it would have beenprudent for Mr Dean to cross-examine Ms Brown at the first Court of Appeal hearing,we are satisfied that would not have materially affected the outcome.Post hearing submissions[80] In the post hearing submissions, Mr McGeachin identified further purportedproblems with the EVI transcripts before this Court, which he says were not addressedby Ms Levy. He also repeated concerns he had previously made in relation toinconsistencies in, and the inadequacies of, the evidence for the Crown, including inrelation to CF's alleged injuries and medical records. In relation to the transcripts,he identified differences between the copy of the transcript of CF's EVI included inthe Court of Appeal Additional Materials Volume II (footnoted as the "master-complete-interview") and the copy included in the Court of Appeal AdditionalMaterials Volume III. It is noted that, among other things, significant parts of the fulltranscript were missing from the "master-complete-interview". He submitted that thisshows the Court of Appeal was previously misled and that the EVIs and edits were"questionable to say the least".[81] We invited Ms Levy to comment on Mr McGeachin's submissions.She accepted she did not explore the details he referred. She explained that, in thetime available, she has focussed on the matters she considered most important.We agree she has done that. Her focus was largely on the primary grounds originallyidentified by Mr McGeachin when seeking recall and those highlighted by counselassisting, Ms Hall, in her report. Mr McGeachin had to demonstrate that there hadbeen a fundamental error in the appellate process with a resulting substantialmiscarriage of justice. Ms Levy thoroughly highlighted those matters that had thepotential to show a fundamental error. We are satisfied Mr McGeachin has had a fullopportunity to test both the outcome of the trial and the appellate process, and there isnothing in the further submissions of Mr McGeachin which suggests to us that therehas been a substantial miscarriage of justice.Result[82] In the result, the errors in Ms Brown's affidavit and Mr Dean's decision not tocross-examine her will not result in a substantial miscarriage of justice if this appealis not re-opened. Therefore, the application to recall this Court's judgment of19 November 2015 is dismissed.Solicitors:Crown Law Office, Wellington for Respondent