TE HIKO v R [2023] NZCA 347

TE HIKO v R [2023] NZCA 347 [7 August 2023]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT(S)/ PERSON(S)UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [ORNAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA634/2020[2023] NZCA 347BETWEEN PAULY GILBERT TE HIKOAppellantAND THE KINGRespondentHearing: 9 May 2023Court: French, Hinton and Gendall JJCounsel: D J Allan for the AppellantI S Auld and Z Zhang for the RespondentJudgment: 7 August 2023 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gendall J)[1] On 7 October 2020, Mr Te Hiko was found guilty of the sexual violation, byrape, of V1 following a jury trial in the District Court before Judge Cooper.Mr Te Hiko also pleaded guilty during his trial to four other charges involving thesexual assault of other young women who are members of his extended family.[2] On 16 December 2020 Judge Cooper sentenced Mr Te Hiko to 11 years andsix months' imprisonment for the five charges.1 The portion of the sentence relatingto the charge of sexual violation by rape was eight years' imprisonment.2[3] Mr Te Hiko now appeals against his conviction on the charge of sexualviolation by rape. This appeal concerns trial counsel conduct. On 19 August 2020,Mr Te Hiko wrote to the Legal Services Agency expressing concern about whether hisassigned lawyer, Mr Te Kani, was acting in his best interests. Less than two monthslater, Mr Te Hiko's jury trial proceeded with Mr Te Kani as trial counsel, and withanother lawyer, Mr Hall, assisting in some ways, in a form similar to junior counsel.[4] Mr Te Hiko's grounds of appeal are that a miscarriage of justice occurredbecause errors were made on fundamental matters at trial by Mr Te Kani, and also byMr Hall. Mr Te Kani died on or about 23 October 2021 and the whereabouts of histrial file is unknown despite efforts made by both counsel in this appeal to find it.Mr Te Hiko says that his trial papers were destroyed in the Waikeria Prison fire.[5] The alleged counsel errors that are the subject of this appeal are first, counsel'sfailure to competently cross-examine V1 by not more extensively putting to herMr Te Hiko's version of events (involving his narrative of consensual sex), andsecondly, a lack of proper advice on Mr Te Hiko's election not to give evidence at trial.Linked to these is a further complaint from Mr Te Hiko that his trial counsel failed toprepare a brief of evidence for him. Mr Te Hiko seeks that his conviction relating toV1 be quashed and a retrial ordered.1 R v Te Hiko [2020] NZDC 26349.2 At [25].Background[6] All the complainants were members of Mr Te Hiko's extended family. V1, thecomplainant in relation to the sexual violation charge under appeal, was aged 19 at thetime of the events in question. Mr Te Hiko was then aged 34.[7] Mr Te Hiko and V1 were not well acquainted, having grown up in differenttowns. It was the Crown position at trial that Mr Te Hiko sexually violated V1 after agarage party in November 2013. Alcohol was involved. At the end of the night inquestion, V1 was left largely alone in the garage sleeping on a couch. Mr Te Hiko saton the couch and covered himself in part of the blanket V1 was under; the movementwoke her up. He started to rub her genitalia, first outside her clothing, then inside.The Crown's case was that V1 did not want this to happen and tried to move away.Mr Te Hiko then grabbed V1 by her knees and pulled them apart. It was alleged thatMr Te Hiko leaned over V1, kissed her on the lips and said: "it's alright". He thenheld V1's arms above her head, removed her pants past her knees and pulled his penisout. V1 again tried to close her legs, but Mr Te Hiko prised them apart. He thenforcibly penetrated her vagina with his penis. After ejaculating, Mr Te Hiko sat downnear her. V1 then left the garage and slept inside the nearby house until arrangementswere made for her to leave.[8] Mr Te Hiko did not make a formal statement to the police, but indicated thathe did not accept V1's allegations. He spoke to his mother about the matter, describingthe encounter as "consensual", saying that he did not realise V1 was his relative, andclaiming she was "all over" him at the party.Appeal[9] Mr Te Hiko's original notice of appeal was filed on 4 November 2020. Thesingle ground of appeal was that the jury had become unduly prejudiced against himafter his guilty pleas to the four other sexual assault charges, charges 2, 3, 4, and 6.[10] Trial counsel conduct issues were not mentioned. They were only raised overa year later in December 2021which was after Mr Te Kani had died.3[11] Further, Mr Te Hiko's affidavit under r 12A of the Court of Appeal (Criminal)Rules 2001 specifying the allegations against his trial counsel was not filed until 10March 2023.[12] Accordingly, with Mr Te Kani deceased and his file unable to be located, theCrown has found itself in a somewhat difficult position, being unable to obtainevidence from Mr Te Kani to explain or refute Mr Te Hiko's allegations against him.As mentioned, Mr Te Hiko's evidence too is that his own notes and trial papers relatingto his District Court trial were destroyed in the Waikeria Prison fire.Alleged trial counsel errors[13] Mr Te Hiko says three principal errors were made by trial counsel onfundamental matters such that a miscarriage of justice has occurred. The first error isan alleged failure by trial counsel to put Mr Te Hiko's version of events to V1 incross-examination. Mr Te Hiko maintains that V1 consented to sexual intercourse.He claims she was persistently flirting with him throughout the party and consentedto sex. However, he says, trial counsel only presented the argument as a peripheralmatter, which was readily defeated at trial. The focus at trial, Mr Te Hiko maintains,was on the flirtation earlier in the evening and on the delay of V1 in making anycomplaint. But this was not relevant to the pertinent issue of whether V1 consented atthe time of the sexual intercourse. Rather, Mr Te Hiko says, trial counsel should havesquarely put to V1 that she consented to the sexual intercourse when it took place andMr Te Kani did not.[14] The second error is an alleged failure by trial counsel to give advice onMr Te Hiko's choice to give evidence or not. Mr Te Hiko says there was insufficientpreparation on the charge under appeal. A brief of evidence was not prepared and trialcounsel did not have a sufficiently robust discussion with Mr Te Hiko about theadvantages or disadvantages of not giving evidence as a trial strategy. The election3 Following a minute of French J: Te Hiko v R CA634/2020, 8 December 2021.not to give evidence, he claims, was made quickly and under pressure. It was not afree and informed choice, and Mr Te Hiko did not have the trial process sufficientlyexplained to him, so as to be in a position to understand the significance of his choice.[15] The third error, which we have alluded to in the preceding paragraph, is broadlylinked to the other alleged errors. It is Mr Te Hiko's further complaint that his trialcounsel failed to prepare a proper brief of evidence for him.[16] Mr Te Hiko's position is that all these errors were unreasonable, and they werecertainly not appropriate tactically in the context of the trial. He contends, too, theyare of sufficient seriousness to warrant setting aside his conviction and ordering aretrial on the sexual violation charge.Pre-trial issues concerning cross-propensity and severance[17] Before Mr Te Hiko's trial in October 2020, he had consented to a Crownapplication, brought in mid-2019, to admit each of the other complainants' evidenceas cross-propensity evidence in respect of the sexual assault charges 2, 3, 4 and 6,referred to above. However, he had opposed the Crown application in respect of theevidence of those complainants being admitted as cross-propensity evidence oncharge 1, the rape charge relating to V1. This was on the basis that this allegation wasdifferent from the other charges, given V1's age and the nature of the offending.Despite this, initially, Mr Te Hiko did not seek to have that rape charge tried separatelyfrom the other charges.[18] On 18 December 2019, however, Mr Te Kani did apply on Mr Te Hiko's behalfto sever the rape charge from the remaining charges. This was opposed by the Crownand on 5 March 2020 Judge Cooper declined the severance application.[19] Finally, as to the opposed propensity application relating to the rape charge,the Crown conceded there was insufficient probative value between that charge(charge 1) and the other sexual assault charges for propensity reasoning to be appliedin respect of the rape charge. Mr Te Hiko's trial on the rape charge proceeded on thatbasis.The trial[20] In his opening address at trial, the Crown prosecutor noted that Mr Te Hikohad admitted to his mother that he had had sex with V1 and said that she was "all overhim" at the party. The prosecutor acknowledged the main issue for the jury on charge 1would be whether the complainant consented to sexual intercourse. It must follow, aswe see it, that the issue of consent would have been plain to the jury from the outset.[21] The focus of Mr Te Kani's cross-examination of V1 at trial confirmed thisapproach.(a) Mr Te Kani put it to V1 that she had a fair bit to drink that night, andshe agreed. Clearly this was designed to suggest to the jury that anyinhibitions V1 may have had might have been lowered by alcohol.(b) Mr Te Kani then suggested to V1 that she had been "all over"Mr Te Hiko, "dancing around" and "grabbing him" at the party. Shedenied these suggestions.(c) Mr Te Kani asked V1 whether she could "remember Rani coming up to[her] and growling [at her]", presumably suggesting Rani Te Hiko (whowe understand is Mr Te Hiko's brother) considered V1's interactionswith Mr Te Hiko to be inappropriate. She denied this too.(d) In cross-examining Rani Te Hiko, Mr Te Kani elicited details of V1'sinappropriate flirtatious behaviour, her hugging Mr Te Hiko and the factshe showed no signs of distress the next morning. In cross-examininganother male relative of Mr Te Hiko, Mr Te Kani also elicited from himthat V1 had hugged Mr Te Hiko and that she did not seem distressedthe next morning.(e) Mr Te Kani then questioned V1 about the sexual violation allegationsand directly put it to her that the sex was consensual. The complainantresponded with a question: "How so? How is it consensual when youknow it's my [relative]?" When Mr Te Kani proposed that the sex wasconsensual because V1 was "all over [Mr Te Hiko]" that night, V1responded: "I would say that's quite a lie. He should – ah, he shouldknow better than that." Alluding to evidence that was to come,Mr Te Kani put it to V1 that there were others at the party that wouldsay she was "acting that way with [Mr Te Hiko]". She respondedsaying if that were true and if Rani had "growled" at her for that, thenshe would have left.(f) Finally, Mr Te Kani suggested to V1 that the reason she did not tellanyone about the offending was because the sex was consensual. Hewent on to ask why she neither disclosed the offending to others at thetime, nor filed a formal complaint with the police. V1 responded thatshe "was in shock and trauma and [she] felt that no one would believe[her]. They would say things [that] [Mr Te Kani] would say."(g) In concluding his cross-examination, Mr Te Kani put it to V1, again,that the sex was consensual and that the flirting that occurred beforebolstered Mr Te Hiko's consent narrative by showing that she "agreedto it" and "wanted it". V1 responded, again, with an unequivocaldenial.[22] Returning to the progress of the trial itself, on the morning of the third dayMr Te Hiko agreed to plead guilty to the sexual assault charges 2, 3, 4, and 6. TheCrown agreed not to offer any evidence in respect of charge 5, and that charge wasdismissed.[23] Later, Mr Te Hiko elected not to give evidence at trial. In his closing address,Mr Te Kani cautioned the jury that they were not to make negative inferences aboutMr Te Hiko not giving evidence, and Judge Cooper, too, confirmed this in his summingup.[24] The Crown closing focussed on the key aspects of Mr Te Hiko's defence —consent and the delayed complaint.[25] The Crown made no reference to the charges to which Mr Te Hiko had pleadedguilty. Nor was any reliance placed on cross-propensity evidence, consistent with theagreed arrangement relating to the other charges Mr Te Hiko had faced.[26] For the defence, in his closing Mr Te Kani again put it plainly to the jury that"[t]his is a case of consent". He focussed on the narrative that V1 was actingflirtatiously with Mr Te Hiko throughout and that she was "into [Mr Te Hiko] in a bigway", and noted she had not given evidence of saying "no" to Mr Te Hiko at any point.[27] Mr Te Kani then implored the jury to use their common sense and to assess thecase in its entirety, and to return a not guilty verdict because the evidence suggestedV1 had consented.[28] In his summing up to the jury, the Judge also confirmed that the defence casewas that V1 had consented. The Judge emphasised the defence's highlighting of theevidence that V1 was flirting with Mr Te Hiko during the party and the submissionthat the jury could take this into account when considering what happened later on thecouch, including the lack of protest from V1.[29] In response to the defence submission that the delayed complaint was relevantto V1's credibility, the Judge addressed the myth that victims of rape are lessbelievable if they do not disclose the offending immediately afterwards.[30] The Judge then gave firm directions on the need for the jury to consider therape charge "utterly separately" from the charges to which Mr Te Hiko had pleadedguilty, and again stated "[t]he issue in this case is the issue of consent, so please,members of the jury, do not think that because the defendant is guilty of those othercharges, that is to be taken any way adversely to him on this charge."Relevant principles[31] This appeal relies on s 232 of the Criminal Procedure Act 2011, and will onlysucceed if Mr Te Hiko can demonstrate that a miscarriage of justice has occurred. Thenotion of a miscarriage of justice in this context requires the Court to undertake a two-step inquiry.4 First, the appellant must establish an error, and secondly, he mustestablish the error has created a real risk the outcome of the trial was affected, or thatthe error has rendered the trial unfair or a nullity.5[32] In Hall v R this Court held that generally an appeal based on trial counsel errorfocuses on the trial process and its outcome, rather than on the characterisation ofcounsel's conduct.6 An appeal will therefore generally not succeed unless it can beshown that an error by trial counsel may have affected the outcome of the trial.[33] In Hall, this Court also confirmed that there are three fundamental trialdecisions on which counsel's failure to follow specific instructions will usually giverise to a miscarriage of justice, the three fundamental trial decisions being decisionsrelated to pleas, the election whether to give evidence, and the advancing of a defencebased on the defendant's version of events.7 The Court acknowledged there may becases where a failure to follow instructions on a fundamental decision will not resultin appellate intervention but said such cases will be rare.8[34] The appellant bears the onus of establishing that any counsel errors were suchthat a miscarriage of justice occurred. As the Supreme Court put it in Sungsuwan v R:9[65] Where error or irregularity is alleged and attributed to counsel, butthat would not have affected the outcome – was not material – there will beno need to analyse and judge the conduct of counsel. On the other hand, wherethe complaint is that counsel's conduct was such as effectively to deny theaccused representation to fairly present the defence, prejudice to the outcomewill be readily found – and in extreme cases may need no inquiry.[66] There will be cases in which particular acts or omissions of counselmay in retrospect be seen to have possibly affected the outcome but they weredeliberately judged at the time to be in the interests of the accused. In somecases the accused will have agreed or acquiesced – only to complain afterconviction. Where the conduct was reasonable in the circumstances the clientwill not generally succeed in asserting miscarriage of justice so as to gain thechance of defending on a different basis on a new trial. Normally an appealwould not be allowed simply because of the judgment made by trial counsel4 Criminal Procedure Act 2011, s 232(4).5 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24].6 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [9], citing Scurrah v R CA159/06, 12 September2006 at [13]–[14], in which Arnold J summarised the effect of the judgments in R v Sungsuwan[2005] NZSC 57, [2006] 1 NZLR 730.7 Hall v R, above n 6, at [65].8 At [68].9 R v Sungsuwan, above n 6, per Gault, Keith and Blanchard JJ.which could well be made by another competent counsel in the course of anew trial.Evidence on appeal[35] Evidence on this appeal was given in affidavits by Mr Te Hiko, Mr Hall, andMr Macklin, the Crown prosecutor who conducted Mr Te Hiko's trial in theDistrict Court. Each of them also appeared before us to give further evidence and theywere cross-examined.[36] In his affidavit, dated 10 March 2023, Mr Te Hiko complains of a lack ofcontact from his lawyers while he was on remand. During his time on remand,however, we observe that Mr Te Hiko made four bail applications. A pre-trialapplication for severance was also made on his behalf by Mr Te Kani. Related issuesof cross-propensity evidence were also dealt with through pre-trial applications onwhich Mr Te Hiko was represented.[37] Although initially Mr Te Hiko did not refer to contact he had with his lawyersconcerning any of these applications, it seems to us unlikely that these various matterswould have been advanced on Mr Te Hiko's behalf without instructions being takenfirst and advice provided by his counsel.[38] In his affidavit, Mr Te Hiko also initially alleges that he did not read theevidential video interview transcript (EVI) of the complainant V1. This is at odds withnotes taken by Mr Hall after an arranged visit at Waikeria Prison with Mr Te Hiko inMay 2020. From Mr Hall's evidence, it appears he provided all police disclosure toMr Te Hiko during the May 2020 visit and obtained his responses, from which Mr Hallprepared the summary notes in a document headed "Pauly Te Hiko Brief of Evidence".Mr Te Hiko himself exhibits a copy of this document to his affidavit. Those summarynotes prepared by Mr Hall reflect his discussions with Mr Te Hiko at theWaikeria Prison meeting regarding all the charges he was facing. They comprise alittle over four typed pages. Mr Hall in his affidavit deposes that he provided thesenotes to Mr Te Kani but not, it seems, until probably about 1 October 2020, and on theunderstanding that Mr Te Kani would discuss the notes with Mr Te Hiko, as if theywere an executive summary, and obtain expanded details. As best we can tell from hiscross-examination before us, Mr Te Hiko does now acknowledge that the summarynotes were provided and that he had read V1's EVI transcript in May 2020.[39] Mr Te Hiko in his affidavit provides a more detailed account of his version ofevents relating to V1, in response to her EVI. The EVI from V1 contained acomprehensive account of her version of events. Mr Te Hiko clearly therefore had theopportunity to provide more extensive instructions in May 2020 had he wished to doso.[40] Lastly, in his affidavit Mr Te Hiko claims that witness summonses were servedfor his sister and niece who were to be called as defence witnesses at trial. He says,however, that Mr Te Kani did not explain to him why they did not give evidence at histrial. However, Mr Te Hiko did not provide evidence from his sister and niece, for thepurposes of this appeal, to confirm that they were summonsed, or as to the evidencethey would have given had they been called.[41] Next, Mr Te Hiko in his affidavit deposes that in a cell meeting early on thethird day of trial, Mr Hall told him not to give evidence at trial. He maintains hespecifically recalls Mr Hall saying: "'I don't think [Mr] Te Kani wants you to take thestand and give evidence'". In his affidavit and in cross-examination, Mr Hall howeversays that this "certainly never happened". Further, Mr Hall is adamant that at no timedid he have any interview with Mr Te Hiko in the cells at the District Court prior tohis decision to plead guilty to the sexual assault charges on the third day of trial. Asto Mr Hall's evidence generally, it is clear, as we see it, that he has misrememberedsome aspects of his daily involvement in the trial. But, where there is a conflict ofevidence on key points between him and Mr Te Hiko, we prefer Mr Hall's evidencebecause it is supported by documentation and is inherently plausible, unlike criticalaspects of Mr Te Hiko's evidence.[42] Further questions arise, in our view, relating to other credibility and reliabilityissues concerning Mr Te Hiko's evidence before us. These include Mr Te Hiko'sconfusion over propensity directions, highlighted in the evidence of Mr Macklinbefore us, and also over details concerning his decision to plead guilty to the charges2, 3, 4 and 6.Ground one — brief of evidence[43] We need to deal with this ground of appeal only briefly. Mr Hall's synopsis ofMr Te Hiko's response to the Crown evidence, recorded at the May 2020Waikeria Prison meeting, significantly was headed "Pauly Te Hiko Brief of Evidence"and, as we have noted, was sent to Mr Te Kani. Mr Hall, from his evidence,understood it was likely to form the basis of an expanded brief of evidence preparedby Mr Te Kani. It is possible that Mr Te Kani prepared an expanded brief of evidencebased on this synopsis, which was lost along with the rest of his file when Mr Te Kanidied.[44] In any event, Mr Te Kani had the "skeleton brief" of evidence Mr Hall hadprepared earlier and forwarded to him. Even if Mr Te Kani had not prepared anexpanded brief in relation to V1's rape charge, the issue arises as to whetherMr Te Hiko's defence was prejudiced by the failure to do so.10 From hiscross-examination of V1 we are satisfied Mr Te Kani was clearly aware of the essentialaspects of Mr Te Hiko's defence — that V1 had been flirtatious with Mr Te Hiko atthe party and then consented to sex with him.[45] Any allegation that Mr Te Kani's cross-examination of V1 and his closinglacked important detail, might well be explained on the basis that Mr Te Hiko chosenot to provide more detailed instructions to his counsel. In any event, we are notpersuaded that the lack of a more detailed brief of evidence significantly prejudicedMr Te Hiko's defence, a defence which, it appears, was run on the basis of instructionsgiven, as we note below.[46] There is no basis upon which appellate intervention is warranted on groundone.10 Andrews v R [2021] NZCA 412 at [36], citing O'Donnell v R [2010] NZCA 352 at [16].Ground two — alleged failure to put defence narrative to the complainant[47] Mr Te Hiko maintains that his detailed consent narrative, as set out in hisaffidavit before this Court, was not properly put in cross-examination to V1, and heargues this resulted in the charge of rape against him being effectively unanswered.[48] As we note at [34], this Court in Hall confirmed that the failure to advance adefence based on the defendant's version of events may give rise to a miscarriage ofjustice. It also noted that the focus in an appeal based on a failure to follow instructionsis "whether, as a matter of fact, there was a failure to do so".11[49] As this Court has also recognised, the practicalities of running a trial and thenature of the obligations held by trial counsel mean that conviction appeals cannot be"a minute dissection of whether some aspects could have been dealt with differentlyor better"12 and that "[c]ounsel must enjoy substantial latitude in cross-examination".13[50] Further, in this case, because of the death of trial counsel, Mr Te Kani, inOctober 2021 and the fact that the trial files and Mr Te Hiko's own papers from thetrial have been lost or destroyed, there is no way of verifying or even testing any ofthe issues Mr Te Hiko now raises. Given these circumstances, we accept the need tobe especially cautious about drawing adverse inferences against trial counsel.[51] Further, we accept that this Court should be cautious about acceptingMr Te Hiko's evidence as to Mr Te Kani's alleged errors, without a sound basis fordoing so, where the allegations may amount to a significant departure from goodprofessional practice. We observe that making such a finding after Mr Te Kani'sdeath, without affording him the chance to refute the allegations, may well amount toa breach of natural justice for Mr Te Kani.14[52] In May 2020, Mr Hall clearly took instructions at Waikeria Prison fromMr Te Hiko on his response to the Crown's evidence on all the charges he was facing.11 Hall v R, above n 6, at [69].12 Michaels v R [2014] NZCA 258 at [49].13 Loffley v R [2013] NZCA 579 at [53].14 Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239 at [130] and [145].That response, recorded in Mr Hall's four-page-plus document summarisingMr Te Hiko's answers, did not include some of the detail in the narrative now set outin Mr Te Hiko's affidavit before this Court.[53] It is not clear whether Mr Te Hiko had ever given instructions to Mr Te Kanior Mr Hall consistent with this more detailed narrative. Mr Hall in his evidence beforeus strongly denies that any level of detail greater than that recorded in his"Pauly Te Hiko Brief of Evidence" summary was ever provided to him. And, giventhe unfortunate unavailability of Mr Te Kani, this Court's task in assessing whetherMr Te Kani may have had that more detailed narrative becomes an extremely difficultone.[54] While it might have been possible that Mr Hall could have elicited furtherdetails of the narrative from Mr Te Hiko, the present ground of appeal relates to afailure to follow instructions and not a failure to conduct a client interview in such away as to elicit more information than a client may have initially provided.[55] We are satisfied from all the material before us that the cross-examination byMr Te Kani of V1 was broadly consistent with the information that Mr Te Hiko hadprovided to Mr Hall, information which was passed on to Mr Te Kani in the summaryprovided on or about 1 October 2020. Accordingly, we find the cross-examinationwas at least consistent with the instructions at the time, and trial counsel cannot becriticised for failing to put additional detail to V1 that may not have been provided tothem in instructions.[56] On this second ground of appeal, we accept too that the issue of consent by V1was squarely before the jury. It was well understood that Mr Te Hiko's position wasthat V1 had consented to sex. This is clear, as we see it, from Mr Te Kani'scross-examination of V1, his closing to the jury, and the Judge's summing up. Thejury's verdict, however, meant that Mr Te Hiko's version of events was not acceptedand the jury did not believe the encounter was consensual.[57] In all the circumstances, nothing that has been advanced by Mr Te Hiko underground two has given rise to the risk of a miscarriage of justice. This ground of appealalso is not made out.Ground three — alleged failure to properly inform Mr Te Hiko of his right to notgive evidence[58] At trial, Mr Te Hiko did not give evidence. He claims that his trial counselnever discussed the pros and cons of giving evidence in relation to the rape charge.He contends that during the trial Mr Hall had told him not to give evidence, saying:"'I don't think [Mr] Te Kani wants you to take the stand and give evidence'".[59] We are not persuaded that this ground of appeal has merit and will deal with itbriefly.[60] Recently, this Court in van der Krogt v R provided guidance on trial counselerrors in relation to the election whether to give evidence:15[29] The election whether to give evidence is a fundamental decisionreserved to the defendant alone. Trial counsel have an obligation to ensurethat the decision is an informed one. To fulfil this obligation, counsel mustthemselves be informed of the relevant matters and must convey the requisiteinformation to the defendant in an appropriate and timely way. [61] When a defendant is considering whether or not to give evidence, counsel'sduty is to explain the "pros and cons" of giving evidence,16 including whether thedefence could be advanced without their evidence.17 And, where reasonable groundsexist for a defendant's election not to give evidence (and counsel has advised thedefendant), then ordinarily there will be no miscarriage.18[62] Here, Mr Hall in his affidavit and orally in response to cross-examinationdenies that he made the statement Mr Te Hiko alleges. He adds that in any event hewould not have spoken to Mr Te Hiko using the words "take the stand" because it isan American legal term that is inapplicable in New Zealand.15 van der Krogt v R [2020] NZCA 512 (footnote omitted).16 K (CA421/2008) v R [2009] NZCA 176 at [41].17 Chambers v R [2011] NZCA 218 at [15].18 Gosnell v R [2014] NZCA 217, [2014] 3 NZLR 168 at [16].[63] We accept Mr Hall's evidence on this aspect. It must follow in our opinionthat, on the balance of probabilities, Mr Te Hiko is mistaken in his recall and evidenceas to what happened and what was said on that occasion.[64] We accept too that in the absence of evidence from Mr Te Kani, this Courtlacks a specific evidential foundation to rebut claims from Mr Te Hiko that adequatediscussions with Mr Te Kani of the pros and cons of his giving evidence neveroccurred. We do observe, however, as noted earlier, that Mr Te Hiko claimed his sisterand niece were each served with a witness summons for the trial. This must suggestthat Mr Te Hiko had discussions with trial counsel about the general possibility ofdefence evidence and the need to consider calling his sister and niece. It follows inour view it is inconceivable that at that same time Mr Te Kani, as an experienceddefence counsel, would not have discussed with Mr Te Hiko the pros and cons of himalso giving evidence in his trial. We note too the fact that Mr Te Hiko and his defenceteam knew throughout that the Crown was going to call his mother and that she wouldgive evidence saying he had told her the sex with V1 was consensual. That wouldundoubtedly have been factored into the decision not to give evidence and made theabsence of a statement from Mr Te Hiko to police not as critical as it might otherwisehave been.[65] In all the circumstances, we consider it is not credible to suggest that given thediscussions that must have taken place over the Crown calling Mr Te Hiko's mother,and his sister and niece being called as defence witnesses, that no discussions evertook place with Mr Te Hiko as to whether or not he personally should exercise hisright to give evidence. This ground of appeal must also fail.Conclusion[66] For all these reasons, we are not persuaded that Mr Te Hiko has been able toestablish that a miscarriage of justice has occurred.[67] This appeal is accordingly dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent