McNABB v NEW ZEALAND POLICE [2019] NZHC 1448

McNABB v NEW ZEALAND POLICE [2019] NZHC 1448 [25 June 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2019-419-0002[2019] NZHC 1448BETWEEN MARIE McNABBAppellantAND NEW ZEALAND POLICERespondentHearing: 24 June 2019Appearances: RAB Barnsdale for the appellantASC Alcock for the respondentJudgment: 25 June 2019ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:Richard Barnsdale, Barrister, HamiltonAlmao Douch, Hamilton[1] On 5 December 2018, after a judge-alone trial, Judge D C Clark in the DistrictCourt at Hamilton convicted Marie McNabb on one charge of breaching a protectionorder.1 Ms McNabb was ordered to pay witness expenses of $916.2[2] Ms McNabb appeals on grounds:(a) there was a miscarriage of justice because of trial counsel's conduct,which may have prevented a successful defence being raised; and(b) the Judge erred in her assessment of the evidence.Although Ms McNabb formally also appeals her sentence, no submissions areaddressed to that and, given the absence of any penalty, I disregard it.Background—the incident[3] Ms McNabb was in a relationship with the complainant for 12 years. Theyseparated in December 2015. Initially, the complainant had a protection order issuedagainst him, in favour of Ms McNabb. This was discharged on 15 April 2016. Atemporary protection order then was issued in favour of the complainant against MsMcNabb, on 28 April 2016.[4] The complainant's evidence was Ms McNabb had campaigned against him forsome time. The incident giving rise to the breach occurred on 16 September 2016,when the company's return of a call to its 0800 number was responded to withallegations of his methamphetamine use. As a result, the complainant was drug-tested,to negative results. Police identified the called number as Ms McNabb's.—procedural history[5] Ms McNabb initially faced two charges, one of breaching the protection orderand one charge of theft. The Judge heard them on 11 December 2017, dismissing thetheft charge and adjourning the other for defence evidence to be led. After a variety of1 Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3).2 Police v McNabb [2018] NZDC 25680 at [28].adjournments, including Ms McNabb's replacement of her trial counsel, trialconcluded on 4 October 2018, the Judge reserving her subsequent conviction of MsMcNabb.[6] Ms McNabb's appeal was brought on grounds the Judge erred in fact andmisapplied the law. On 13 April 2019, Duffy J adjourned its hearing to enableargument also of counsel error.[7] Ms McNabb's counsel, Richard Barnsdale, takes no issue with the Judge'slegal reasoning. But he says evidence relating to the complainant's alleged drug useshould have been put to relevant witnesses, and he disputes the Judge had sufficientevidence to attribute the original call to Ms McNabb.Approach[8] If I am satisfied these errors are made out, and there is a "real risk" the outcomeof the trial was affected – "a reasonable possibility that a not guilty (or morefavourable) verdict might have been delivered if nothing had gone wrong" – or trialwas unfair or a nullity, I must allow the appeal on grounds of miscarriage of justice.3Otherwise I must dismiss it.4[9] If my own view on that question differs from the Judge, the Judge will haveerred and the appeal must be allowed. But it is for Ms McNabb to show such an errorhad been made; I must take into account any advantages the trial judge may have had.5Discussion[10] So far as counsel error is relied on:6 while the ultimate question is whether justice has miscarried, considerationof whether there was in fact an error or irregularity on the part of counsel, andwhether there is a real risk it affected the outcome, generally will be anappropriate approach. If the matter could not have affected the outcome any3 Criminal Procedure Act 2011, s 232(2); Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [27],adopting Tipping J's formulation in R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110],and [37].4 Section 232(3).5 Sena v Police [2019] NZSC 55 at [38].6 R v Sungsuwan, above n 3, at [70].further scrutiny of counsel's conduct will be unnecessary. But whateverapproach is taken, it must remain open for an appellate Court to ensure justicewhere there is a real concern for the safety of a verdict as a result of theconduct of counsel even though, in the circumstances at the time, that conductmay have met the objectively reasonable standard of competence.[11] If counsel's error "effectively prevented the accused from presenting adefence", qualifying prejudice will readily be found.7 Failure to follow instructions ona fundamental decision (such as advancing a defence) generally will give rise to amiscarriage of justice.8 But there is a distinction to be drawn between a failure tofollow instructions on fundamental decisions, and a failure to follow instructions inmaking less fundamental decisions.9 On the latter, "a miscarriage of justice willgenerally only arise if the decision was not one a competent lawyer would have madeand if what occurred may have affected the outcome".10 It is not merely a question ofwhether counsel could have conducted the trial differently or reached a differentdecision.11[12] Under s 49(2) of the Domestic Violence Act 1995, reasonable excuse forbreaching the protection order affords a defence to its breach. Evidence about thecomplainant's drug use may have provided such a defence.[13] A third person's affidavit, sworn on 5 December 2016, but said by MrBarnsdale to be circulating in draft prior to that date, deposed to having known thecomplainant for about a year, as a well-known drug dealer and cook from whom thedeponent purchased methamphetamine. The deponent was a family friend of MsMcNabb's. Ms McNabb suggests she did not see the affidavit until after the hearing,although there is an email dated 20 October 2017 where she refers to "a sworn affidavitof a witness that was involved with [the complainant] and others selling meth ".Ms McNabb then said, "unfortunately the police have decided that my witness isnot reliable."7 R v Scurrah CA159/06, 12 September 2006 at [14].8 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [68].9 At [69]–[77].10 At [77].11 R v Sungsuwan, above n 3, at [66]; see also S (CA88/2014) v R [2014] NZCA 583 at [16].[14] Ms McNabb's original trial counsel, Sheila Cameron, says she met with MsMcNabb on 8 December 2017 to prepare for trial. Ms Cameron does not recalldiscussing the specific strategy for breach of the protection order charge. The affidavitwas discussed, but she did not think it provided a 'reasonable excuse defence' as itarose after Ms McNabb's breach, when she did not know of the affidavit. Moreover,the self-incriminatory nature of the evidence meant he could not be required to give it.And, last, the deponent was Ms Cameron's former client; if Ms McNabb wanted tocall the evidence, Ms Cameron perceived she would need to withdraw. During thetrial, while Ms Cameron "forgot" to put propositions relating to his drug use to thecomplainant, she "felt the allegations were a little absurd given the complainant couldpoint to two clean drug tests for methamphetamine."[15] Failure to follow instructions where an accused person is deprived of theopportunity to advance a defence is a "fundamental matter" which almost inevitablyresults in an unfair trial.12 The focus on appeal is on whether, as a matter of fact therewas a failure to do so. An 'instruction' is "a clear direction as to how the trial or anaspect of it is to be run".13 Ms Cameron specifically says Ms McNabb did not instructher to call the deponent as a witness.[16] Ms McNabb may have had a particular view on the matter, but that has to bedistinguished from clear directions, which need to be observed and implemented bycounsel.14 As a matter of fact, I am not persuaded there was any instruction on point.That still leaves if Ms Cameron erred in failing to put forward the evidence, and ifsuch an error could have affected the outcome.[17] I accept the deponent's evidence may have supported Ms McNabb'sallegations of the complainant's drug use. But Ms McNabb herself said police thoughtthe deponent was an unreliable witness. His affidavit only details the complainant'salleged drug use until the end of 2015. When she made the 16 September 2016 call,eight months after their separation, Ms McNabb was relying only on her suspicions12 Hall v R, above n 8, at [61].13 R v S [1998] 3 NZLR 392 (CA) at 394.14 At 394.about him garnered from their relationship. Mr Barnsdale himself acknowledges "itmay have been the case" her belief was speculative and of little weight.[18] Ms McNabb's allegations also were unsolicited. The company's customerservice representative was provided with Ms McNabb's cell phone number assomeone wanting to talk about "public liability". Presumably the object was to get tosomeone in the company who was concerned for its reputation. On her response to thecompany's return of the call, Ms McNabb was insistent the complainant needed to betested for methamphetamine use and specified the particular type of test to be used.The company had no reason to elicit the information: a few months earlier, in February2016, the complainant had voluntarily provided a hair follicle sample for drug testing,which came back negative. The Judge had every reason to conclude the sequence ofcalls was initiated by Ms McNabb.[19] The ultimate issue in assessing a 'reasonable excuse' defence to breach of aprotection order is:15whether an ordinary New Zealander would regard the communication asunreasonable in the circumstances; those circumstances include the existenceof the order and the inherent vulnerability of the protected person topsychological abuse.Ms McNabb and the complainant have a turbulent history, and were in a dispute aboutmatrimonial property, and other matters, at the time. Ms McNabb had no reliableevidence of the complainant's drug use, and there were his two voluntary drug tests tothe contrary. In those circumstances, and the duplicitous instigation of the telephonecall, a defence of reasonable excuse would have faced hurdles: if anything, it riskedthe opposite outcome; that Ms McNabb's vindictive conduct was to aggravate thebreach.[20] An appeal on grounds of counsel error arising out of a reasonable tacticaldecision in the context of the trial ordinarily will not be successful, even if the decisionmay have affected the outcome of the trial.16 In my view, Ms Cameron made areasonable tactical decision in the circumstances not to pursue the drug issues with15 P v Police HC Tauranga CRI-2005-463-000061, 7 December 2005 at [41].16 R v Scurrah, above n 7, at [19].[the complainant] and therefore not to call the deponent. In any event, while potentiallyendorsing Ms McNabb's suspicions, the evidence did not address the crucial point,that Ms McNabb lacked foundation for her allegations. Thus there was no real risk theoutcome of the trial was affected.Result[21] Ms McNabb's appeals against conviction and sentence are dismissed.—Jagose J