GODKIN v R [2017] NZCA 221

GODKIN v R [2017] NZCA 221 [30 May 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANT M PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMEOF COMPLAINANT L REMAINS IN FORCE.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF18 YEARS WHO APPEARED AS WITNESSES PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA40/2016[2017] NZCA 221BETWEEN SARAH JANINE GODKINAppellantAND THE QUEENRespondentHearing: 2 May 2017Court: French, Mallon and Wylie JJCounsel: C J Tennet for AppellantH W Ebersohn for RespondentJudgment: 30 May 2017 at 12.30 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Following a jury trial before Judge Callaghan in the District Court, Ms Godkin and her two sons were convicted of offences arising out of a home invasion. In the course of the home invasion, a male occupant (L) was seriously assaulted and required plastic surgery to reconstruct his left cheek and ear. The Crown also alleged that a female occupant, whom we shall call M, was sexually violated by one of the invaders forcibly inserting a finger(s) or hand into her vagina. M sustained two lacerations inside her vagina requiring surgery.[2] The Crown case was that the home invasion was in revenge for an altercation that had occurred the previous day between L and Ms Godkin. The Crown further alleged that it was the sons who had attacked L with weapons and that it was Ms Godkin who in a blind rage had sexually violated M.1[3] Ms Godkin was convicted of three offences:(a) sexual violation of M;(b) being a party to aggravated burglary; and(c) being a party to wounding L with intent to cause grievous bodily harm.[4] Ms Godkin now appeals her convictions on grounds of trial counsel error and unreasonable jury verdicts. The sons, who were both convicted of aggravated burglary and wounding with intent, have not appealed their convictions.Alleged trial counsel errorFailure to testify[5] Ms Godkin did not give evidence at trial. It was common ground that up until the close of the Crown case, she had consistently said she wanted to testify but1 There were other people in the raiding party, as the Crown termed it, but only Ms Godkin and her two sons were charged.then changed her mind. Ms Godkin says she changed her mind on the basis of advice given by her trial counsel that was wrong and/or that she did not understand. She further says that, regardless of any shortcomings on the part of trial counsel, there has been a miscarriage of justice because the jury never got to hear her account of what happened.2[6] Both Ms Godkin and her trial counsel Ms Bailey gave evidence before us. Where there was a conflict of evidence, we prefer the evidence of Ms Bailey, supported as it was by contemporaneous documentation. Aspects of Ms Godkin'sevidence were inherently implausible and also inconsistent with what she had stated in affidavits sworn for the purposes of the appeal.[7] The evidence established that Ms Bailey was well prepared for the trial, including for the eventuality of Ms Godkin giving evidence. Ms Bailey had prepared a working brief of evidence, which she would have been in a position to finalise within a relatively brief period of time.[8] On Friday 5 June 2015 as the Crown case was nearing an end, Ms Bailey met with Ms Godkin to discuss whether Ms Godkin should elect to give evidence. Ms Bailey had previously explained to Ms Godkin that the final decision on whether to testify was best made after the Crown has presented its case when an assessmentof the Crown's evidence could be undertaken.[9] On the Friday, Ms Bailey advised on balance against giving evidence, for reasons which she documented. Ms Bailey told Ms Godkin the decision was Ms Godkin's to make. She suggested to Ms Godkin that she think about it over theweekend and make a final decision on Monday when the Crown case would likely close.3 Ms Bailey also told Ms Godkin she should feel free to contact her over the weekend if she wanted to discuss anything. On the Monday, Ms Godkin confirmed she had decided not to give evidence and signed written instructions to that effect.2 Relying on Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.3 Even then the trial Judge had indicated to defence counsel that if they required more time he would not press them to make an election on Monday.Either on the Friday or the Monday, Ms Godkin also signed Ms Bailey's file note documenting the reasons for Ms Bailey's advice.4[10] We are satisfied Ms Godkin was not put under any pressure by Ms Bailey and that Ms Godkin made a fully informed decision. She did not contact Ms Bailey over the weekend which we consider she would have done had she truly not understood the advice. The fact she signed the written instructions also belies a lack of understanding.[11] We turn now to consider the quality of Ms Bailey's advice.[12] Ms Bailey advised Ms Godkin that in her opinion testifying was unlikely toimprove Ms Godkin's position, and could well worsen it, because it would exposeher to potentially very damaging cross-examination about previous inconsistent statements and inconsistencies with the evidence of witnesses who were her friends. Ms Bailey was also concerned Ms Godkin would not make a good impression on the jury because of a tendency to become volatile and also because by her own admission she would become obstructive if, as was inevitable, any questions were put to her about her sons. Ms Godkin had told Ms Bailey she was not prepared to implicate her sons in any way. Yet, there was clear evidence from other witnesses that her sons were present at the scene.[13] Ms Bailey pointed out to Ms Godkin that her police interview, in which she adamantly denied the sexual assault, was already before the jury. She further pointed out that prosecution witnesses had given evidence that was favourable to Ms Godkin on the question of common intention — an issue the Crown had to prove before Ms Godkin could be found guilty of the aggravated burglary and wounding charges. Favourable evidence had also been given that both complainants had blood in their groin areas before Ms Godkin entered the room and that a doctor's notes recorded Mas having said it was a man who had caused her injuries. The doctor could not be sure from the injuries whether it was a male or female hand.4 Contrary to a submission made on behalf of Ms Godkin, we consider it makes no difference when the file note was signed.[14] All of the above matters were put before Ms Godkin for her consideration. We are satisfied the advice given was reasonable and appropriate. We are also satisfied there has been no miscarriage of justice arising out of the failure to giveevidence. Ms Godkin's various versions of events were before the jury. Her defence was put. We note too that no new credible evidence of any significance emerged from the evidence she gave before us.[15] We reject this ground of appeal. It lacks substance.Closing address to jury[16] Two prosecution witnesses testified they saw blood in the bedroom before Ms Godkin could have had any opportunity to touch M. One of those witnesses said both complainants were bloodied in the groin area and the other said L had blood on his penis. In her statement to police Ms Godkin said that when she entered the room,L's groin area was covered in blood; the suggestion being the couple had beenengaging in sexual intercourse while M had her period or that M had somehow been injured prior to the home invasion.[17] The complaint on appeal is first that Ms Bailey did not cross-examine or cross-examine sufficiently on the blood evidence. However, the transcript shows that criticism is demonstrably unfounded. The point was clearly put before the jury.[18] The second complaint is that although Ms Bailey mentioned the blood evidence in her closing, she failed to give it sufficient emphasis. However, there was a good reason for not highlighting the point too much. The uncontested medical evidence was that the vaginal tears were so severe and of such a nature they could only have been inflicted by the application of significant force.5 It would be very unlikely they could have occurred from penile sexual intercourse. In Ms Bailey'sassessment, the jury was also unlikely to accept the suggestion M could have just been lying there asleep if she had sustained such a serious injury. Ms Bailey considered that rather than deny any assault had taken place, or suggest L had somehow been responsible, it was far better for Ms Godkin — and less likely to5 Ms Bailey had previewed the medical evidence and spoken to another professional.alienate the jury — for her to focus more on the accuracy of M's identification of herassailant in the mayhem of the invasion. The fact the doctor had recorded being told by M that she had been held by one assailant while a man put his hand in her vagina provided further support for taking that approach.[19] In all those circumstances, the decision to focus on the identity of the attacker was clearly a reasonable trial strategy that was consistent with Ms Godkin'sinstructions. It does not constitute error and it has not created the risk of a miscarriage of justice.[20] This ground of appeal is also without merit.Unreasonable verdictsTest to be applied[21] It is well established that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the requisite standard that the defendant was guilty.6 It is also well established that in applying this test, an appellate court is performing a review function and not retrying the case.7 It should be slow to interfere.[22] In relation to the charge of sexual violation, Mr Tennet, submitted that the combined effect of the evidence about the blood (detailed above at [16]), the doctor'snotes of what M had said to her about the attack and Ms Godkin's denial of theassault to police meant the verdict was unreasonable.[23] We do not accept that submission. Both complainants gave evidence it was Ms Godkin who assaulted M and the jury were entitled to accept that evidence. For the reasons already discussed, the evidence regarding blood was of little probative value. M denied ever telling the doctor or anyone else that her assailant was male. For her part, the doctor had no recollection of the conversation and was relying on her notes. It was plainly open to the jury to find the notes were inaccurate.6 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [12] and [17].7 R v Owen, above n 6, at [13], endorsing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.[24] We are satisfied a properly instructed jury could reasonably convict Ms Godkin of sexual violation.Aggravated burglary and wounding with intent[25] The prosecution evidence was that on arrival at the house, Ms Godkin's sonsstormed in, picked up a bike rack and a glass blender that were lying in the hallway, broke down the bedroom door and assaulted L using the bike rack and blender. The sons were jointly charged as principals with the offence of wounding with intent to cause grievous bodily harm, and with aggravated burglary under s 232(1)(b) of the Crimes Act 1961. The latter offence applies when a person having committed burglary has a weapon with them, or uses anything as a weapon, while still in the building.[26] There was no suggestion Ms Godkin herself ever wielded a weapon, but she was charged with being a party to both offences on the basis that in the hallway she had formed a common intention or understanding with her sons to assault L using weapons. Unlike the offence of aggravated burglary, the presence or use of a weapon is not a necessary component of the offence of wounding with intent to cause grievous bodily harm. However, as Mr Ebersohn acknowledged in his submissions, knowledge of weapons supports an inference of a common intention to cause grievous bodily harm. That was certainly the way it was put to the jury in the Crown closing.[27] On appeal, Mr Tennet submitted there was no or insufficient evidence Ms Godkin knew or could reasonably have foreseen weapons were to be used. And in the absence of any such evidence, there was no reasonable basis on which the jury could find the necessary common intention to found liability as a party. Mr Tennetpointed out that Ms Godkin and her two sons had travelled to M and L's address inseparate vehicles. And that in her police statement Ms Godkin had said she did not see the assault on L but had looked exclusively at M and no one else.[28] We disagree. The jury were entitled to reject Ms Godkin's claims as lacking credibility given the size of the bedroom, other witnesses' description of the atmosphere in the house and Ms Godkin's own enraged and aggressive behaviour.In our view, there was ample evidence from which the jury could infer the required common intention.[29] That evidence included: evidence that the whole purpose of going to the address was to exactrevenge for L's treatment of Ms Godkin the day before; evidence about the hallway, which made it unlikely the sons could have picked up the weapons without her seeing it; evidence of screaming and swearing prior to the door being smashed down; evidence she was there as the door was being kicked down; evidence she followed immediately behind the son who was holding the bike rack into the bedroom; evidence of her own enraged and violent behaviour in the bedroom; and the fact she did not at any time express disapproval or surprise at what was happening and fled the scene without rendering any assistance to either L or M.[30] We are satisfied this ground of appeal also lacks merit.Result[31] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent