M v R [2022] NZCA 506

M v R [2022] NZCA 506 [25 October 2022]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSESPURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFAPPELLANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT2011 REMAINS IN FORCE.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY WITNESSES UNDER 18 YEARS OFAGE PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA138/2020[2022] NZCA 506BETWEEN M (CA138/2020)AppellantAND THE KINGRespondentHearing: 8 June 2022Court: Katz, Thomas and Woolford JJCounsel: S Brickell and OWL Troon for AppellantD G Johnstone and MRL Davie for RespondentJudgment: 27 October 2022 at 10:30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of names, addresses, occupations oridentifying particulars of witnesses pursuant to s 202 of theCriminal Procedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] Following a jury trial in the District Court, Mr M was found guilty of sexualand violent offending against five young family members. Judge PJ Sinclair sentencedMr M to 17 years' imprisonment, with a minimum period of imprisonment of eightyears and six months.1[2] Mr M appeals his convictions on the ground that his trial counsel,Mr Nalesoni Tupou, failed to follow his instructions or, alternatively, failed torepresent him competently.2 Mr M says that these failures have resulted in amiscarriage of justice. Mr M's notice of appeal also included a sentence appeal, butcounsel advised at the hearing that the sentence appeal was being abandoned. A formalnotice of abandonment was subsequently filed.[3] Mr M's appeal is over two years out of time. The Crown does not oppose anextension of time. The delay has been adequately explained and we are satisfied thatit is in the interests of justice to grant the extension sought.Counsel competence appeals — legal principles[4] Under s 232 of the Criminal Procedure Act 2011 (CPA), the Court must allowthe conviction appeal if satisfied that a miscarriage of justice has occurred.3 The CPAdefines a miscarriage of justice as an error, irregularity or occurrence in relation to a1 R v [M] [2017] NZDC 25552 [Sentencing notes].2 Criminal Procedure Act 2011, s 229.3 Section 232(2)(c).trial that has created a real risk that the outcome of the trial was affected,4 or that hasresulted in an unfair trial.5[5] Specific principles apply to trial counsel competence appeals.The Supreme Court provided guidance on the correct approach to such appeals inSungsuwan v R.6 This Court subsequently provided further guidance in Scurrah v R7and Hall v R.8 In summary:(a) The overall issue is whether a miscarriage of justice has occurred.(b) The Court must first assess whether there was an error on the part oftrial counsel and, if so, whether there is a real risk that error affectedthe outcome of the trial by rendering the verdict unsafe.9(c) There will generally be a miscarriage where there is a failure to followspecific instructions on "fundamental decisions", irrespective of anypotential impact on the verdict. This Court, in Hall v R, identified threesuch fundamental decisions: "those relating to plea, electing whether togive evidence and to advance a defence based on the accused person'sversion of events".10(d) Where trial counsel has made a tactical decision that was reasonable inthe context of the trial, the appeal will not ordinarily be allowed on thebasis of trial counsel error despite there being a possibility that thedecision affected the outcome of the trial.11 This reflects the reality thattrial counsel must use their best judgement to make decisions in the4 Section 232(4)(a).5 Section 232(4)(b).6 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.7 Scurrah v R CA159/06, 12 September 2006.8 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.9 Scurrah v R, above n 7, at [17].10 Hall v R, above n 8, at [65], and see also [68]–[69]. See also Wiley v R [2016] NZCA 28, [2016]3 NZLR 1 at [40], citing R v Condon [2006] NZSC 62, [2007] 1 NZLR 300, Hall v R, above n 8,and Kaka v R [2015] NZCA 532.11 Scurrah v R, above n 7, at [18]; and see R v Sungsuwan, above n 6, at [66] per Gault, Keith andBlanchard JJ.circumstances as they exist at the time.12 In Sungsuwan v R, theSupreme Court said of these cases:13Where the conduct was reasonable in the circumstances theclient will not generally succeed in asserting miscarriage ofjustice so as to gain the chance of defending on a differentbasis on a new trial. Normally an appeal would not beallowed simply because of a judgment made by trial counselwhich could well be made by another competent counsel inthe course of a new trial.(e) Nor will there be a miscarriage of justice simply because, in hindsight,some other decision is thought to have offered a better prospect ofsuccess than the course of action taken.14The offending[6] Mr M was charged with 26 offences. His defence at trial was that the eventsdescribed by the complainants never happened. He gave evidence and calledwitnesses on his behalf. Following trial, he was convicted of 20 charges and acquittedof five charges.15 One charge was dismissed during the trial. The offending of whichMr M was found guilty spanned two different time periods and occurred in twodifferent households, as set out below.Offending against the V children at the first address[7] The first set of offending occurred between 2012 and 2013, when Mr M andhis former wife were living with relatives, Mr V and Mrs V, at an address in Auckland.Mr and Mrs V have two daughters (LV and RV) and two sons (TV and FV) (together,the V children). The V children were all under 12 years old at the time.[8] On one occasion, LV was lying on her bed asleep. Mr M entered her room,locked the door, and laid down on the bed beside her. He touched her genitalia and12 Scurrah v R, above n 7, at [18].13 R v Sungsuwan, above n 6, at [66] per Gault, Keith and Blanchard JJ.14 Scurrah v R, above n 7, at [18].15 We set out the charges on which Mr M was convicted below. Mr M was acquitted of the followingcharges: charge 6 (a representative charge of sexual conduct with a child under 12 as to LV),charge 7 (a representative charge of assault on a child as to LV), charge 8 (a charge of sexualconduct with a child under 12 as to RV), charge 11 (a charge of assault with a weapon as to RV),and charge 16 (a representative charge of assault on a child as to RV).bottom (this event was the subject of charge 1). LV tried to run away and yelled forher brothers and sisters. Mr M said to her "If you tell I'll kill you" (charge 2). LV ranfrom the room.[9] The other V children tried to help her. Mr M slapped RV across her face(charge 9). He punched LV in the nose with a closed fist causing it to bleed (charge 3).Mr M then threw a knife at TV, narrowly missing his foot (charge 17) and hit FV acrossthe back with a metal vacuum pipe (charge 18).[10] On a different occasion, Mr M punched RV to her body (charge 10).LV attempted to intervene by pushing Mr M. When LV and RV were running away,Mr M grabbed LV by the hair and dragged her (charge 5).[11] On multiple occasions, Mr M laid down or sat on RV and moved his body upand down on top of her (charge 12). On one of those occasions, Mr M held his handsaround RV's neck and squeezed, preventing her from breathing for about 10–15seconds (charge 13).[12] Mr M also squeezed and touched RV's genitalia on a number of occasions,causing her pain (charge 14).[13] In February 2013, Mr M left the first address, following an assault on hisformer wife. He went to live with a relative.Offending against MP at the second address[14] In mid-2014, Mr M reunited with his former wife who was now living atanother Auckland address with two of his former wife's nieces (Mrs P and Mrs L),16their husbands, and Mr and Mrs P's three children, including their eight-year-olddaughter MP.[15] MP was between eight and 10 years old when Mr M lived with her family from2014 to 2016.16 Mrs L is variously referred to as the sister, niece and cousin of Mr M's former wife in thedocuments. For consistency, we will refer to her as Mr M's former wife's niece.[16] On one occasion, not long after Mr M moved in, MP was asleep in a bed withher sister, Mr M's daughter (MM) and Mr M's former wife. Mr M, on hands and kneesat the foot of the bed, pulled MP to the bottom of the bed. He removed MP's clothingand licked her genitalia (charge 19).17 Based on its guilty verdict, the jury alsoaccepted that M then penetrated MP's genitalia (charge 20).18 (Mr M challenges thisfinding, as discussed below.)[17] On a different occasion, when MP was asleep in an armchair in the lounge,Mr M pulled her onto the floor. He removed her underwear and made connectionbetween his mouth or tongue and her genitalia (charge 21).19 Again, based on itsguilty verdict, the jury must have accepted that Mr M again penetrated MP'sgenitalia (charge 22).20 The Crown case at trial was that he did this while thrusting hiships up and down as he lay on top of MP, while she was lying facing the floor.(Mr M challenges the finding of penetration, as discussed below.)[18] Mr M was also found guilty of four representative charges of sexual offendingagainst MP — kissing her mouth and touching her bottom (charge 23);21 raping her(charge 24);22 penetrating her anus with his penis (charge 25);23 and licking hergenitalia (charge 26).24Did Mr Tupou fail to follow Mr M's instructions on a fundamental issue?[19] Mr M's primary ground of appeal is that Mr Tupou failed to follow hisinstructions on a fundamental issue. In Mr M's written submissions the argumentadvanced is that Mr Tupou failed to follow Mr M's specific instructions to advance"the agreed defence strategy that the allegations were fabrications and there was amotive for the complainants and their family members to lie". Specifically, it issaid that Mr Tupou was instructed to advance a defence along the lines that all ofthe complainants (the four V children and MP) were persuaded by "the nieces"17 Crimes Act, ss 128(1)(b) and 128B (maximum penalty: 20 years' imprisonment).18 Sections 128(1)(a) and 128B (maximum penalty: 20 years' imprisonment).19 Sections 128(1)(b) and 128B (maximum penalty: 20 years' imprisonment).20 Sections 128(1)(a) and 128B (maximum penalty: 20 years' imprisonment).21 Section 132(3) (maximum penalty: 10 years' imprisonment).22 Sections 128(1)(a) and 128B (maximum penalty: 20 years' imprisonment).23 Sections 128(1)(b) and 128B (maximum penalty: 20 years' imprisonment).24 Sections 128(1)(b) and 128B (maximum penalty: 20 years' imprisonment).(Mrs P, Mrs L and possibly even Mr M's former wife) to fabricate allegations of sexualand physical abuse by Mr M. The motive for this was said to be that Mrs P and Mrs Lwanted Mr M out of the way to prevent him from reclaiming custody of his daughterMM from Mrs L, who had raised MM since infancy. For ease of reference we willrefer to this theory, in its various forms, as "the conspiracy theory".[20] The Crown's written submissions, filed in advance of the appeal, suggestedthat such a wide-ranging conspiracy was completely untenable, for various reasons.These included the number of people (including neighbours) who would have had tohave been involved in the conspiracy, and that the V children appear to have madepartial disclosures of the offending (including to third parties) separately to, and likelybefore, MP disclosed the offending against her. This undermined the proposition thatMrs P was the key conspirator, and that the V children had been persuaded to lie onlyafter Mr M had moved to the second address.[21] In response, Mr Brickell, who represented Mr M on appeal, appeared to acceptthat the original version of the conspiracy theory was untenable. He instead advanceda revised (and much narrower) version of the conspiracy theory in oral submissions atthe appeal hearing. On the revised version, Mr M's alleged instruction to Mr Tupouwas to advance the defence on the basis that Mrs P had a motive to lie (preventingMr M reclaiming his daughter from Ms L) and consequently persuaded her daughterMP to make false allegations against Mr M, as well as giving false evidence herself attrial. Mrs V and the four V children are not said to be part of this narrower conspiracy.On this scenario, the motive to lie does not extend to the allegations made by theV children but is limited to the allegations made by MP.[22] As Mr Johnstone, counsel for the Crown, submitted, if experienced appellatecounsel has struggled to articulate a consistent and comprehensive conspiracy theorydefence, despite this being the primary ground of appeal, it is perhaps not surprisingthat Mr Tupou faced similar difficulties at trial.What did Mr M tell Mr Tupou about the allegations against him?[23] It is not in dispute that Mr M told Mr Tupou from the outset that the allegationsagainst him were all lies. Mr Tupou's file note of an early meeting with Mr M(dated 15 March 2017) records that Mr Tupou went through the police summary offacts with Mr M, who denied all of the allegations against him and said "[it's] lies".The file note further records that Mr M told Mr Tupou that he believed that theallegations were "fabricated by the [nieces] as they have got a crush against him".25Mr M did not explain to Mr Tupou at this stage, however, why his wife's nieces didnot like him. No mention was made of them wanting to get rid of him so that Mrs Lcould raise Mr M's daughter.[24] A file note dated 22 March 2017 also records Mr M's instructions as being thatall of the allegations are "lies". In relation to two of the charges relating to MP the filenote records that MP had made up the rape allegations, supported by her family.Again, however, no motive to lie on the part of MP or her family is disclosed.[25] On 11 August 2017 Mr Tupou arranged for a private investigator to interviewMr M regarding the allegations against him. A file note of that meeting records Mr M'srepeated denials and states further that:Although I talked to [Mr M] about why the girls would be making up theseallegations if they were untrue and he said maybe someone else did thisto them. I did explain that if that was the case for [LV and RV], we still hadthe more serious allegations that [MP] was making. He did not have anythingfurther to add.[26] Accordingly, at this stage the only motive to lie offered by Mr M was that"maybe someone else did this to them". This suggestion appears to have related to LVand RV only. There was still no mention of any version of the conspiracy theory.[27] In Mr M's affidavit of 19 April 2021 (sworn in support of his appeal)he deposed that his instructions to Mr Tupou were simply that he was "not guilty ofall the charges and that they were all lies". He further stated:I do not remember discussing with Mr Tupou trial tactics and strategy. I donot remember discussing with Mr Tupou how he would question thecomplainants and the witnesses or what he would say in his speeches to thejury. This was the first time that I had been to trial and I just left it up toMr Tupou to do the best job for me because he was my lawyer and I trustedhim to do a good job for me. Mr Tupou gave me some general advice on how25 Mr Tupou clarified in his evidence that the word "crush" in this context (which was translatedfrom the Tongan word used by Mr M) was a "hatred crush" rather than a "romantic crush".I should answer questions by addressing the Judge or the lawyers but otherthan that he just told me to answer the questions that were asked of me.[28] It was not until Mr M's reply affidavit of 15 March 2022 that he asserted, forthe first time, that Mr Tupou had failed to follow his instructions regarding the defencehe wished to advance at trial. Mr M deposed that:I told Mr Tupou that the complainants were lying about me sexually abusingthem. I told the jury that too when I gave evidence because that was animportant part of my defence. I told Mr Tupou that [MP's] mother, [Mrs P],wanted my daughter to be raised by her sister [Mrs L] and that I was gettingin the way of this happening.[29] Mr M explained that he wanted the jury to know this background: so that they understood the likely reason for why the complainants werelying about the sexual abuse and how [Mrs P] and other family members([Mrs L] and possibly [Mr M's former wife] as well) were behind the lies totry and get rid of me. I believe that [Mrs P, Mrs L] and possibly my ex-wife were behind this.[30] Mr M further deposed that on the second day of trial he was worried thatMr Tupou had not explained this defence to the jury. He said that he raised hisconcerns with Mr Tupou during a car trip home from Court, but that Mr Tupou toldhim "not to worry about it and that he knew everything about the case". Mr M sayshe told Mr Tupou that "he needed to tell the jury that the complainants were lying andto explain to them why they were lying". We note that this evidence is consistent withthe wider version of the conspiracy theory initially advanced in Mr Brickell's writtensubmissions, not the narrower version subsequently advanced at the appeal hearing.[31] Mr M's evidence before us as to the scope of the alleged conspiracy, and hisdiscussion with Mr Tupou in the car, was broadly consistent with his affidavit of15 March 2022. Of particular significance, however, is the following exchange whichtook place during his cross-examination in this Court:Q. So is it fair to say that in the course of the trial, you spoke withMr Tupou about the sorts of things that you might raise in front of thejury and the Judge?A. Can you please repeat yourself?Q. You've just described the things that you wanted the jury to knowabout, haven't you?A. Yes.Q. But overall, you actually left it up to Mr Tupou didn't you, about whathe would say during his speeches or when he questioned thewitnesses?A. Yes because I didn't know anything about this first. This is the firsttime ever for me to stand in front of the judge or courtroom since – orthere would be a time or there's a time that I can ask or tell [Mr Tupou]can you do this, can you say this on behalf of, you know, what I reallywant for you to say. That is why I didn't ask any questions to[Mr Tupou] during – when the case – when the court case was on.Q. So you really left it up to him whether he would raise your concernsabout perhaps the adults keeping you out of the house?A. Yes.[32] Mr Brickell re-examined Mr M on this key evidence, as follows:Q. My learned friend's final question to you was that you left it up to him– referring to Mr Tupou, whether he would raise your concerns aboutthe adults kicking you out of the house and your response is – yes Ileft it up to him.A. Yes.Q. I just wanted to be clear. When you told Mr Tupou your concern inthe car, did you expect that he would raise that in the trial?A. Yes, he told me – don't care and don't worry about anything.I'm ready to do everything on my behalf.[33] Mr Tupou's response to Mr M's allegation that he had instructed Mr Tupou toadvance the conspiracy theory at trial was set out in his affidavit of 10 May 2022.Under cross-examination, Mr Tupou acknowledged that Mr M had told him at somestage that part of the reason the family was not receptive to him was around the careof his daughter MM. Mr Tupou said that this was not the only factor, however.Mr Tupou understood that another significant reason Mr M was not liked by the familywas due to his excessive alcohol consumption.[34] Mr Tupou denied that Mr M had instructed him to advance the conspiracytheory at trial. In Mr Tupou's view, the conspiracy theory lacked any evidentialfoundation and was totally implausible. Further, he was concerned that questioningMrs P about her reasons for preferring that Mr M's daughter live with Mrs L ratherthan Mr M would have been a dangerous path to go down, as it could well have elicitedhighly damaging evidence.Discussion[35] An "instruction" is a "clear direction as to how the trial or an aspect of it is tobe run".26 As this Court recognised in R v S, instructions are "intended to be directionsto be observed and implemented by counsel".27 Instructions are to be distinguishedfrom "an expression of the client's views on a particular matter",28 which counsel isnot necessarily obliged to follow.[36] In support of his submission that there must have been a firm instruction fromMr M to Mr Tupou to advance the conspiracy theory, Mr Brickell noted that Mr Tupouhad asked questions of some of the Crown witnesses regarding Mr M's daughter MM,including where she was living, who cared for her and whether Mr M had any role inher upbringing. Mr Brickell submitted that there was "absolutely no way competentcounsel would introduce [MM] into the equation" unless that was on instructions.The risk, he submitted, was that in the context of three other young girls makingallegations of sexual abuse, the jury might think that MM was a potential fourth victim.[37] In our view, the fact that Mr Tupou asked the Crown witnesses some questionsabout MM does not mean that there must have been a firm instruction by Mr M toadvance the conspiracy theory as part of his defence. Rather, given that Mr M hadraised issues around the care of his daughter as giving rise to a possible motive tofabricate the allegations against Mr M, it was not unreasonable for Mr Tupou to(somewhat tentatively) explore the issue with some of the Crown witnesses to see if itelicited any helpful evidence. It did not.[38] Mr Tupou squarely put it to Mrs P (the alleged key conspirator) that she wantedMr M out of the house. He did not, however, put it to her that the reason for that wasto prevent Mr M from regaining custody of his daughter. Mr Tupou explained in hisaffidavit of 10 May 2022 that the reason for this was that Mrs P was a hostile witness26 Hall v R, above n 8, at [69].27 R v S [1998] 3 NZLR 392 (CA) at 394, cited with approval in Hall v R, above n 8, at [69].28 At 394.and that he did not trust her to answer fairly and truthfully questions about the careof MM. He considered that if this line of questioning were followed, evidence harmfulto the defence could be adduced. In our view this was a reasonable judgement call tomake in the circumstances. There was a clear risk that any questioning of Mrs P onthis topic could elicit evidence that would be highly damaging to the defence.[39] Mr M clearly articulated the broader version of the conspiracy theory toMr Tupou at some stage, although quite possibly only after the trial had commenced.As we have noted above, however, Mr Brickell appeared to acknowledge that thisversion of the theory was untenable. There is no evidence that Mr M ever articulatedthe narrower version of the conspiracy theory to Mr Tupou, let alone instructedMr Tupou to advance it as part of his defence at trial.[40] Overall, the evidence falls far short of establishing that Mr M instructedMr Tupou to advance any form of the conspiracy defence at trial. We accept theCrown's submission that, as in Hall v R, the only "true instruction" issued by Mr Mwas that the complainants' allegations were untrue.29 Mr M ultimately left it toMr Tupou's judgement as to how to best run his defence, constrained only by thegeneral instruction that the complainants' allegations were lies. This is apparent fromthe evidence we have set out at [27] and [31]–[34] above. In particular, Mr M'sstatement in his first affidavit that he had "just left it up to Mr Tupou to do the best jobfor me because he was my lawyer and I trusted him to do a good job for me" isconsistent with his evidence at the appeal hearing and, in our view, reflects the truth.[41] At best, Mr M's statements to Mr Tupou as to the possible motive familymembers may have had to lie were "an expression of the client's views on a particularmatter".30 As such, these statements were not binding on Mr Tupou. We accept theCrown's submission that, as in Hall v R, Mr M left it up to Mr Tupou "to decide ontactical issues at trial such as the line of cross-examination to be pursued and theevidence to be called".31 Mr Tupou was not obliged to advance the conspiracy theory29 Hall v R, above n 8, at [190].30 R v S, above n 27, at 394.31 Hall v R, above n 8, at [190] (footnote omitted).(in either of its forms) and no real risk of a miscarriage of justice arose from hisdecision not to do so.Other errors allegedly made by trial counsel[42] Mr Brickell submitted, in the alternative, that trial counsel made a number oferrors in the conduct of the defence that created a real risk that a miscarriage of justicehas occurred, either because the outcome of the trial was affected32 or alternativelybecause these errors deprived Mr M of a fair trial.33 The written submissions for Mr Midentified four errors: errors in the cross-examination of MP which elicited evidencestrengthening the Crown case; errors in the cross-examination of other witnesses;failure to prepare a brief of evidence and to prepare Mr M to give evidence; and aninadequate closing address. We address each alleged error in turn.Mr Tupou's cross-examination of MP[43] Mr M was found guilty of all eight charges relating to MP. These included twospecific charges of rape and one representative charge of rape. Mr M also faced onerepresentative charge of sexual violation by anal penetration.[44] In relation to the rape charges, the Crown opened to the jury as follows:I'm reluctant to use the words "have sex" because it's not complete penetrationthat the Crown must prove, but the Crown says that there was penetration ofthe genitalia area.[45] This reflects that, as a matter of law, the slightest degree of introduction of thepenis into the genitalia is sufficient for penetration to have occurred.34Female genitalia means a person's vagina and includes the labia (the inner and outerlips at the entrance of the vagina).35[46] Mr Brickell submitted that, based on MP's evidential video interview (EVI), astrong argument can be advanced that she is describing anal penetration only, but not32 Criminal Procedure Act, s 232(4)(a).33 Section 232(4)(b).34 Crimes Act, ss 128(2), 2(1) definition of "sexual connection" and 2(1A).35 See R v N (T90/92) (1992) 9 CRNZ 471 (HC); R v Kahui HC Auckland CRI-2006-057-1135,29 June 2007 at [9]–[15]; and Goodwin v R [2012] NZCA 87 at [49]–[51].penetration of her genitalia. Accordingly, he submitted, prior to trial counsel'scross-examination there was a strong basis to make an application to dismiss the rapecharges pursuant to s 147 of the CPA. Mr Brickell did not dispute, however, that therewas sufficient evidence for the jury to find Mr M guilty of the representative chargeof sexual violation by anal penetration, even without Mr Tupou's cross-examination.[47] Even if a s 147 application had been made and dismissed, Mr Brickellsubmitted, there would still have been a strong basis to submit to the jury in closingthat the jury could not be satisfied that MP was describing penetration of her genitaliaas opposed to solely penetration of her anus. Mr Tupou is said to have given awaythis opportunity, however, by expressly putting it to MP that Mr M denied having "puthis penis in your vagina". MP responded that "[h]e did" and "[i]t happened".[48] As this Court said in Hall v R, trial counsel must exercise some judgement asto their approach to cross-examination.36 In S (CA361/2010) v R, this Court observedthat it will ordinarily be "slow to second guess" defence counsel's cross-examinationof complainants in sexual abuse cases, particularly young complainants.37 Similarly,in Z (CA589/2011) v R, this Court observed that cross-examination "is an area for theprofessional judgment of counsel, subject to any particular instructions of the client".38Mr M acknowledges he did not issue any cross-examination instructions to Mr Tupou.[49] Nevertheless, there will be some (relatively rare) cases where trial counsel'scross-examination falls so far short of the expected norms that it gives rise to a risk ofa miscarriage of justice.39 One example of this could be asking unnecessary questionsof a Crown witness that elicit answers which cure a fatal defect in the Crown case(particularly if competent counsel would have reasonably foreseen the risk of such anoutcome).36 Hall v R, above n 8, at [75], citing Z (CA589/2011) v R [2013] NZCA 118 at [55]; S (CA361/2010)v R [2013] NZCA 179 at [60]–[61]; and Loffley v R [2013] NZCA 579 at [53].37 S (CA361/2010) v R, above n 36, at [60].38 Z (CA589/2011) v R, above n 36, at [55].39 See for example Langley v R [2016] NZCA 71 at [32] and [35]–[41].[50] Here, the Crown case on the rape charges relied on MP's EVI and two diagrams(one of a man and one of a woman/girl) that MP labelled during the course ofher interview. MP was 10 years old when the EVI was undertaken.[51] The alleged penetration occurred during what MP described as the"bunny hop". She said the bunny hop had happened 10 to 15 times, including on twospecific occasions, which she described. The bunny hop involved Mr M "going upand down". Asked what part was going up and down, she said "his erm thing frontprivate bit".[52] MP further described the bunny hop as being "like when he put his front privatepart behind my erm bum [f]ront private part in my erm bum." She described theconduct occurring when she was face down to the floor and Mr M was lying on top ofher, on her back. She said Mr M was heavy and she felt like she couldn't breathe.[53] MP went on to refer to Mr M putting "his thing on my hips". She laterexplained that another word for hips is "bum". She said "when he put it on my hip itwas yuck [i]t was like watery or something I heard him putting his erm handson his mouth and putting them on his thing it's all slimy". When asked where onher body she could feel the slimy thing, she said "[i]n my hip".[54] When asked where exactly on her hip and bum MP felt "the thing", MP saidthat she felt it "[i]nside"; that "he put his thing inside" her hip; and that it felt "fat" andit made her feel "[s]limy and yuck".[55] MP was later asked if there had been any time "where his thing went anywhereelse but on your hip and bum". She answered "yeah inside". When asked to explainshe said that it had gone inside "the holes", which she elaborated on as follows:Q. Tell me what you mean by the holesA. Mm like the woman'sQ. MhmmA. YeahQ. What about the woman'sA. Mm it has holes[56] MP was later asked to mark an X on a drawing of a girl to show where the hipor bum was. The drawing was of a basic outline of a girl with the first page viewedfrom the front and the second page viewed from the back. MP drew an X on the backview of the girl, at the top of where her legs joined. The following exchange thenoccurred:Q. [S]o I'm gonna write both of those words, hip bum. Alright nowerm you also talked about holes. So I want you to put an X on thepaper for where the holes areA. Same oneQ. Same one okay. So you said holes, is that one hole or more than oneholeA. One[57] As is common with child witnesses, the language used by MP was notanatomically correct. In our view, however, there was clear evidence to support afinding that there had been penetration of MP's genitalia, prior to Mr Tupou embarkingon his cross-examination. Although MP may have used the same X on the drawing ofa girl to represent hip, bum and holes, that is not surprising. The drawing did notinclude any anatomical detail. Given that MP had already placed an X at the junctureof the girl's legs to represent "hip/bum" there was no obvious other place to put an Xto represent a woman's "holes" (or hole). In her interview, however, MP clearlydescribed a woman's holes (or hole) as being distinct from her hip or bum.Specifically, the reference to "the woman's holes" was in response to being questionedas to whether there was any time "where his thing went anywhere else but on your hipand bum".[58] Nor, in our view, is it significant that the X for a woman's holes (or hole) wasplaced on the drawing of the back of the girl, rather than the front. MP's evidence wasthat the "bunny hop" took place from behind, with her facing the ground and Mr Mlying on top of her, on her back. The X she drew on the back of the drawing of thegirl is consistent with this scenario.[59] As the Crown acknowledged, Mr Tupou's cross-examination of MP could havebeen more skilful. We are satisfied, however, that no real risk of a miscarriage ofjustice has arisen, given that there was a sufficient evidential basis for the jury to findMr M guilty of rape prior to Mr Tupou's cross-examination.Mr Tupou's cross-examination of other witnesses[60] Although Mr Brickell's primary complaint related to Mr Tupou'scross-examination of MP on penetration of her genitalia, he also gave a number ofother examples (described as "not as serious") of Mr Tupou asking questions of MPand other witnesses that allegedly strengthened the Crown case. More generally,Mr Brickell submitted that there had been excessive repetition of the complainants'evidence-in-chief during cross-examination which had served to reinforce thecomplainants' evidence and strengthen the Crown case, and "irritated and confused"the jury.[61] It is clear from the notes of evidence that another counsel might havecross-examined the Crown witnesses with a greater degree of skill and in a morefocussed manner. We are not persuaded, however, that this is one of those rare caseswhere the interests of justice require appellate intervention. As we have noted at [48]above, appellate courts will be slow to second guess the way trial counselcross-examine witnesses.[62] Mr Tupou was faced with an extremely strong Crown case, involving multiplecomplainants. The only possible motive to lie provided by Mr M was theconspiracy theory. Mr Brickell appeared to accept that the original (broader) versionof that theory, as set out in the written submissions filed in support of the appeal,was untenable. That was an appropriate concession on the evidence. However, thebroader version of the conspiracy theory is the only version that Mr M had suggestedto Mr Tupou at the time of trial. As explained above, the narrower version of theconspiracy theory was only developed in oral submissions at the appeal hearing, afterthe Crown had pointed out the various reasons why the original version of theconspiracy theory was untenable. The narrower version, however, was not supportedby Mr M's evidence or the contemporaneous documents and there is no evidence thatMr M ever suggested to Mr Tupou that the narrow version of the conspiracy theory beadvanced at trial.[63] This left Mr Tupou in the unenviable position of simply putting the Crown toproof and advancing the only defence available to Mr M (and the defence that we havefound Mr M instructed him to advance) which was that the offending did not occur.Consistent with this defence, Mr Tupou challenged and tested the evidence of eachCrown witness. Admittedly this was done at greater length and in greater detail thanwas strictly necessary. We are not persuaded, however, that Mr Tupou'scross-examination style generally, or any of the specific matters identified byMr Brickell (some of which are fairly minor) have given rise to a real risk that one ormore of the verdicts is unsafe.Alleged failure to prepare a brief of evidence and prepare Mr M to give evidence[64] Mr M gave evidence at trial. He says that Mr Tupou did not prepare a brief ofevidence for him and that, if Mr Tupou had done so, it is likely that some errors thatMr M made in his evidence at trial (which the prosecutor sought to use to hisadvantage) would not have been made.[65] No comprehensive brief of evidence was prepared. Instead, Mr Tupou reliedon several documents as together comprising a brief of evidence, including:(a) A file note dated 15 March 2017, relating to a meeting betweenMr Tupou and Mr M, over a period of approximately two and a quarterhours. During the meeting Mr Tupou went through the summary offacts with Mr M and sought his response to each allegation. These wererecorded in the file note.(b) A file note dated 22 March 2017, recording a further discussionbetween Mr M and Mr Tupou about the various charges and Mr M'sresponse to them.(c) A file note dated 11 August 2017 of a meeting between Mr M and aprivate investigator engaged by Mr Tupou, recording Mr M's responsesto detailed questioning by the private investigator regarding thecharges.[66] Although each document includes some additional background detail, thegeneral tenor of Mr M's responses was simply that he denied all the offending.[67] Mr Brickell submitted that although these documents contain information thatcould have been included in a brief of evidence, they are no substitute for aformal brief. He submitted that, due to the lack of a comprehensive brief, Mr M hadmade some errors while giving evidence that were used to good effect by theprosecution.[68] The first error was that Mr M said that he had left the first Auckland address in2012 rather than 2013. The 2013 date was subsequently confirmed by reference to adomestic violence incident between Mr M and his former wife which resulted in thepolice being called and Mr M being removed by the police from the first Aucklandaddress. The prosecutor subsequently submitted in closing that Mr M lied about whenhe lived at the first Auckland address.[69] In our view this is the type of recall mistake that witnesses commonly makeabout events which took place many years earlier (in this case four years), even whena signed brief has been prepared. As Mr Johnstone observed, the prosecutor'ssubmission that Mr M lied about the relevant date was strained and without force.The more likely explanation, which we agree would have been obvious to the jury, isthat Mr M was mistaken over a matter of detail. This is particularly so given that anumber of other witnesses (including witnesses called by Mr M) were obviously in aposition to give the correct date, and Mr M would have known that.[70] The second mistake Mr M is said to have made when giving evidence is sayingthat he had never been to Court before. He had to explain later in his evidence that hehad made a mistake and that he had previously appeared in court for driving withexcess breath alcohol. Mr Brickell submitted this was highly prejudicial as MP allegedthat the offending against her took place when Mr M was drunk. Further, theprosecutor again used this mistake to suggest that Mr M was lying.[71] We find it somewhat difficult to see how having a written brief of evidencewould have avoided this slip-up, given that a written brief would presumably nothave included reference to Mr M's drink driving conviction. In any event, anyadditional prejudice arising from the disclosure of Mr M's conviction would have beenminimal, given that there had already been extensive evidence at trial of Mr M'sdrunken behaviour. Such evidence included that the church caretaker was sick ofMr M coming drunk to social activities; complaints about Mr M "coming everyweekend drunk and swearing"; that Mr M had promised not to drink when he movedinto the second Auckland address; that Mr M would "shop in the shopping centre andaround houses drunk"; that Mr M had come to the local hall drunk and been sent home;and that Mr M had embarrassed his family by going to church drunk. Indeed, Mr Mhimself acknowledged coming home drunk, although he denied offending whiledrunk. Instead, he claimed that:What I know is when I come home drunk I go straight into the kitchen, lookfor something to eat and then I go to the room and sleep.[72] Mr Brickell further submitted that Mr Tupou had on some occasions failed tolead evidence from Mr M consistent with the propositions that he had earlier put toCrown witnesses, and that this was due to the lack of a written brief. For example,Mr Tupou suggested to Mrs P that Mr M was responsible for looking after Mrs P'schildren and did the washing for all the family, which Mrs P denied. No evidence wasled from Mr M on this, however.[73] In Hall v R the Court noted that legal aid providers are required by the relevantpractice standards to record the client's factual instructions in a signed brief ofevidence unless there is a good reason not to do so.40 Clearly, in this case, it wouldhave been best practice for Mr Tupou to have prepared a signed written brief ofevidence for Mr M. Mr Tupou has not advanced any good reason why this wasnot done. Nevertheless, while it would have been preferable for Mr Tupou to preparea brief of evidence, as this Court stated in Weston v R, "failure to prepare a brief is not,of itself, an error that is necessarily fatal to a defendant receiving a fair trial".4140 Hall v R, above n 8, at [95], citing Ministry of Justice Practice Standards for Legal Aid Providers(October 2011) at [5.1]. This remains a requirement under the current practice standards: seeMinistry of Justice Practice Standards for Legal Aid Providers (February 2017) at [5.4].41 Weston v R [2019] NZCA 541 at [35].[74] Mr M's defence was straightforward — a blanket denial of all of the offending.It is not clear that any of the "mistakes" referred to by Mr Brickell would have beenavoided if there had been a written brief. Further, given the context of a trial involvingvery serious allegations of sexual offending by multiple child complainants, these"mistakes" are unlikely to have had any effect on the outcome of the trial.Similarly, none of the other criticisms advanced by Mr Brickell under this head raisematters that could realistically have impacted the outcome of the trial.[75] In conclusion, Mr Tupou should have prepared a written brief of evidence forMr M and had him sign it. There is nothing to suggest, however, that the failure to doso has given rise to a real risk of a miscarriage of justice in this case.Criticisms of Mr Tupou's closing address[76] The final trial counsel competence issue raised by Mr M is the adequacy ofMr Tupou's closing address.[77] Mr Brickell noted that Mr Tupou had commenced his closing address byapologising to the jury. Specifically, he asked for forgiveness if he had asked questionsin the course of trial that were not the ones the jury wanted him to ask, or if he hadfailed to ask the right questions. He also asked for forgiveness if, in his closingaddress, he omitted to mention certain matters. He asked that any mistakes he mayhave made not be held against Mr M.[78] Mr Brickell submitted that this apology would have undermined the jury'sconfidence in the defence and is strong evidence that Mr Tupou was aware that hisconduct of the trial had elicited an adverse reaction from the jury and that it hadprejudiced Mr M.[79] We do not accept that submission, but rather accept Mr Tupou's explanationthat he had been told by a senior barrister many years ago that it is best to be honestand frank with a jury and explain that we are all human. If counsel makes an error ormistake, that should not be visited on the defendant. Mr Tupou said that he usuallycommences his closing addresses in this way. In our view, this is simply a matter ofindividual style and did not unfairly prejudice Mr M.[80] In a closing address trial counsel has a duty to identify and emphasise theweaknesses in the Crown case and the key aspects of the defence case which shouldhave precluded the jury from being satisfied that the charges were proven to therequisite standard.42 The Court will not usually question the advocacy style of trialcounsel provided the defence case has been adequately explained to the jury.43However, in certain situations, a closing address may be so deficient as to warrantjudicial intervention. These include situations where, for example, trial counsel hasfailed to put the defence case, contravened the defendant's instructions, or underminedthe credibility of the defendant.44[81] Mr Brickell submitted that Mr Tupou's closing address inappropriatelyfocussed on the complainants' "don't remember" answers, relating that to the fragilityof memory and emphasising the complainants' demeanour as inconsistent with theallegations being true. Mr Brickell also gave a number of examples of evidence(or lack of evidence) Mr Tupou did not mention which, he submitted, could have beenreferred to in support of the defence to specific charges.[82] The Crown submitted that, despite any shortcomings in trial counsel's closing,no miscarriage of justice had occurred. The Crown submitted this is not a case wherethe closing address "fail[ed] to emphasise an accused's denial of allegations",45"undermined the defence case",46 prevented the jury from "fairly judg[ing] the case",47"undermine[d] the defendant's right to have his or her defence properly put",48 "failedto put the defendant's case",49 "acted contrary to the defendant's instructions",50 or"undermined the credibility of the defendant".51[83] Mr Tupou's closing address was fairly lengthy. As is common when thedefence is one of bare denial, he stressed the standard and burden of proof, the need42 E (CA113/2009) (No 2) v R [2010] NZCA 280 at [27].43 At [28], citing Blake v R [2010] NZCA 61 at [61].44 Kaka v R, above n 10, at [31].45 E (CA13/2009) (No 2) v R, above n 42, at [28].46 At [28].47 At [29].48 Kaka v R, above n 10, at [31].49 At [31].50 At [31].51 At [31].for the jury to consider each charge individually, and the need for the jury tobe unanimous. He gave an example of evidence given by one of the complainants thatwas contradicted by another witness. He suggested that the complainants' accounts ofsexual offending were implausible because the houses in which the alleged offendingoccurred were filled with people, yet no one had heard or knew about what was goingon. He noted that the complainants were unable to answer questions on matters ofdetail and submitted that this demonstrated their unreliability. Specifically, withreference to his cross-examination of one of the complainants, Mr Tupou addressedthe jury as follows:"Where was your brother, [TV]?" "Can't remember." "Where was yourbrother [FV]?" "Can't remember." "Where was [MM]?" "Can't remember."Then I asked her on the same page, 82, 10 lines from the bottom, I've said,"And this event, was it daytime or night-time?" She says, "Afternoon." "Tellme about what he did to your shorts." "I can't remember." "Tell me aboutwhat he did to you." "I can't remember." "Did he touch you?" "Can'tremember." "Was your sister there?" "Can't remember or I don't know."[84] Mr Tupou submitted that there were "just too many" such examples, andthat this gave rise to doubt.[85] We have noted above that the framing of a closing address is a matter ofjudgement for counsel.52 As the Crown accepted, aspects of Mr Tupou's closing leftsomething to be desired. The closing address was rambling in places and the relevanceof some of the submissions Mr Tupou made (for example, comments about Mr Mbeing in love, and love being an honest emotion) is unclear, even after Mr Tupou'sexplanations at the appeal hearing. Many of these issues may simply be a matterof style. In E (CA113/2009) (No 2) v R, this Court confirmed that:53This Court will rarely question the advocacy style of trial counsel when trialcounsel error in closing is alleged this Court will not delve into issues ofstyle and preference when the defence case has been adequately explained tothe jury.[86] Mr Brickell identified a number of evidential discrepancies that he submittedcould have been used to bolster the defence closing address. It is not surprising,however, that with the benefit of hindsight, no time pressure, and an opportunity to52 Ikinepule v R [2017] NZCA 125 at [25] and [27], citing Scurrah v R, above n 7, at [18].53 E (CA113/2009) (No 2) v R, above n 42, at [28] (footnotes omitted).undertake a thorough review of the evidence, it is possible to identify furthersubmissions that may have bolstered the defence. We are not persuaded, however, thatMr Tupou's failure to refer to those matters has given rise to a real risk of a miscarriageof justice.[87] Mr Tupou's closing address was in accordance with Mr M's instructions(a complete denial of the offending). Mr Tupou reminded the jury of the high standardof proof the Crown carried and repeatedly emphasised Mr M's denial of all ofthe allegations. The key issue is whether the defence case was adequately explained.In our view it was. Mr Brickell submitted that in this case a defence "could simplynever be built around the possibility of mistake and false memories". However, theonly alternative was to build a defence case around the proposition that virtually all ofthe Crown witnesses (including the four child complainants) were lying, in the absenceof any plausible motive to lie. Neither alternative was an attractive one, in the face ofa very strong Crown case. Suggesting that most or all of the witnesses (including thechild witnesses) were lying, however, likely carried a greater risk of alienating the jury.[88] Although Mr Tupou's closing address may have lacked skill and finesse, hisgeneral approach of inviting the jury to reflect on the need to be sure of the overallreliability of the complainants' accounts was one that was reasonably available tocompetent counsel. The fact that the jury acquitted Mr M of five charges (a mix ofsexual and violence charges relating to RV and LV) suggests that they understoodMr M's defence and carefully assessed the relevant evidence in reaching their verdicts.Accordingly, this ground of appeal also fails.Result[89] The application for an extension of time to appeal is granted.[90] The appeal is dismissed.[91] Mr M's name is suppressed pursuant to a District Court order which remainsin force. The complainants' names are suppressed pursuant to ss 203 and 204 of theCPA, and the names of child witnesses are also suppressed pursuant to s 204 of theCPA. To protect the identity of the complainants, we make an order suppressing theidentities of persons who were called as witnesses pursuant to s 202(2)(d) of the CPA.Solicitors:Crown Law Office, Wellington for Respondent