MUTSAMWIRA v R [2021] NZCA 177

MUTSAMWIRA v R [2021] NZCA 177 [13 May 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA283/2019[2021] NZCA 177BETWEEN SAYMORE MUTSAMWIRAAppellantAND THE QUEENRespondentHearing: 17 March 2021Court: French, Ellis and Muir JJCounsel: A M S Williams and K J Basire for AppellantB F Fenton for RespondentJudgment: 13 May 2021 at 9 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Mutsamwira was convicted of sexual violation by rape following aDistrict Court jury trial.[2] The presiding judge, Judge Garland, sentenced him to a term of imprisonmentof six years and one month.1[3] Mr Mutsamwira now appeals his conviction on grounds of trial counsel errorand the Judge's direction on intoxication.The Crown case at trial[4] The rape was alleged to have occurred in the morning of 28 December 2015following a family gathering held the evening before at the house of the complainant'ssister. The complainant was staying with her sister for Christmas. Also at the familygathering was the complainant's brother and his wife who were over from Australia.[5] Mr Mutsamwira had been going out with the sister for a few weeks and sheinvited him to come for drinks to meet her siblings.[6] He arrived at the house at approximately 9 pm on 27 December, having driventhere. The group initially socialised in the kitchen and the mood was jovial.[7] Everyone was drinking alcohol to a greater or lesser extent, with witnessesgenerally agreeing that Mr Mutsamwira probably drank the most. He consumedsignificant quantities of rum, and cognac as well as wine. At one point when some ofthe group were in a spa pool outside, he had to be helped out of the pool and vomited.He was guided inside by the complainant's sister to clean up. According to herevidence, they had sex in the shower.[8] After being away for about 30 to 45 minutes, Mr Mutsamwira returned to thespa and, somewhat to the surprise of the others, resumed drinking alcohol.The complainant and her sister-in-law were in the spa with him and testified that he1 R v Mutsamwira [2019] NZDC 9977 [Sentencing notes] at [23].was touchy-feely to them both. The two women decided on a code name "banana" touse with each other if it got too much so they could move away from Mr Mutsamwira.[9] There was some inconsistency between the family witnesses and thecomplainant as to exactly what happened next and exactly when everyone retired forthe night.[10] The sister-in-law said that after she and the complainant got out of the spa, theywent into the kitchen and chatted. The complainant who had been pacing herselfduring the evening was still drinking alcohol (wine). After a while, Mr Mutsamwirajoined them in the kitchen.[11] According to the sister-in-law, Mr Mutsamwira kept following the complainantaround the kitchen and she had to keep pushing him off. Both women were annoyedby his behaviour. Eventually he left the kitchen after the complainant's sister came into see what was going on. She had heard repeated use of the word "banana" in thekitchen. The sister recalled that the complainant accompanied Mr Mutsamwira fromthe kitchen to the sister's bedroom and said to him that he better be good to her sister.After he had left the kitchen, the sister-in-law said the complainant became noticeablymore relaxed.[12] The complainant and her sister-in-law subsequently went into the bedroomwhere the complainant's brother was sleeping. The sister-in-law said they were beingsilly. They woke her husband to ask for his car keys. He refused. In cross-examinationat trial he agreed the complainant was drunk. The complainant left the room and thesister-in-law got into the bed with her husband and fell asleep. The brother andsister-in-law said the next thing they knew they were woken by the sound of thecomplainant swearing and shouting at Mr Mutsamwira to leave.[13] The sister said that after Mr Mutsamwira left the kitchen he came to bed in herroom and they had sexual intercourse. She could still hear the complainant and hersister-in-law talking. She fell asleep but woke up again to hear Mr Mutsamwira onthe phone talking to someone in a foreign language. He also asked her for a charger.She went into the kitchen to get a charger and saw the complainant fast asleep in thelounge. She gave Mr Mutsamwira the charger and he plugged it in. The sister thenfell asleep again.[14] The next thing the sister recalled was hearing the complainant saying loudly"stop, don't — get off me." The sister got up to see Mr Mutsamwira standing dressedin the kitchen doing something with his hands which she thought was odd but returnedto bed. He followed her and they had a cuddle. Within a few minutes however, thecomplainant came into their room shouting and swearing at Mr Mutsamwira andtelling him to leave.[15] For her part, the complainant did not recall the post-spa kitchen interactionswith Mr Mutsamwira nor did she recall going into her brother's room. She said thatafter getting out of the spa, she retired for the evening to sleep on the couch in thelounge after playing some music. She said she went to sleep feeling tipsy but notdrunk. At some stage in the early hours of the morning, she heard a creak and sawMr Mutsamwira in the kitchen. She went back to sleep and then woke to someone"humping" her. It was Mr Mutsamwira. Her bra had been pushed up over her breastsand her underpants down past her knees. She felt his penis briefly inside her. He didnot say anything. She also said she felt his finger or fingers around or in her vagina.[16] After the initial shock, the complainant pushed Mr Mutsamwira off her andtold him to go away. A few minutes later she followed him into her sister's bedroomand shouted and yelled and swore at him to leave the house. According to the otherfamily members, the complainant was distraught.[17] Mr Mutsamwira did not say anything, but slowly got up, dressed and left thehouse. He drove off in his car. Later at around 9.20 am he sent three texts to thesister's cell phone saying he was home and that he missed her.[18] Meantime, the complainant had called the police. The 111 call was made at8.37 am. While waiting for the police, the sister-in-law noticed two condoms in thekitchen waste bin.[19] The condoms were removed by the police and analysed. One of the condomswas found to have significant quantities of the complainant's DNA on the outside andthe DNA of Mr Mutsamwira on the inside. A vaginal swab taken from the complainantshowed traces of a lubricant commonly used in condoms.[20] When interviewed by police on 30 December 2015, Mr Mutsamwira said hehad been very drunk and remembered little of the evening. He blamed his level ofintoxication on drinking spirits which he said hit him real hard. He said he didn'tusually drink spirits because he knows the effect they have on him.[21] Although he had condoms with him in his jacket, he was unsure if he had usedany and did not recall any sexual activity with the complainant. He did not recall whenand how he got out of the spa and when he went to bed. He did recall hearing theword "banana" being mentioned but did not recall its context. He also recalled wakingup in the sister's bed and needing a cigarette and going outside to smoke beforereturning inside. The next thing he remembered was waking up on the couch andrealising the woman next to him had "a different body structure" to his girlfriend.They were lying sideways. He did not hear the complainant say to get off her.He returned to the correct bedroom because the sister came through and was standingthere. He conceded it was possible he may have touched the complainant on the couchbut could not recall the exact specifics.[22] His explanation for not protesting or saying he had made a mistake whenordered out of the house was because he felt bad being in the wrong place.[23] He also stated that once he left the house, he drove to a side street and parkedthere to sleep.[24] A few hours after the interview, Mr Mutsamwira was arrested and charged.The following day, 31 December 2015, police searched his house and found a box ofcondoms of the same variety as those found in the kitchen rubbish bin.[25] At trial, which did not take place until November 2018, Mr Mutsamwira wasrepresented by Mr Hall QC. He faced two charges, namely sexual violation by rape2and sexual violation by unlawful sexual connection occasioned by penetrating thecomplainant's genitalia with his finger(s).3 He pleaded not guilty to both.[26] The defence was that if there was any sexual contact with the complainant, itwas not possible on the evidence for the jury to be sure it was intentional and/or non-consensual or without a reasonable belief in consent. Mr Mutsamwira did not himselfgive evidence nor did he call evidence.[27] The jury acquitted him of the unlawful sexual connection charge but found himguilty of sexual violation by rape.[28] We turn now to address the grounds of appeal.4The affidavit evidence[29] As mentioned, the grounds of appeal include trial counsel error.Both Mr Mutsamwira and Mr Hall provided affidavit evidence and werecross-examined.[30] In so far as there are conflicts in their evidence, we prefer the evidence ofMr Hall which was generally more consistent with contemporaneous documentation.Some aspects of Mr Mutsamwira's evidence showed a tendency to embellish andlacked credibility. For example, he gave different explanations for what was ademonstrably false statement he made to a nurse and added completely new detailsabout crucial conversations with Mr Hall that were not in either of his two affidavits.2 Crimes Act 1961, ss 128(1)(a) and 128B.3 Sections 128(1)(b) and 128B.4 We note that two previously notified grounds of appeal — namely the failure to call expertevidence on memory and the length of the trial as a result of industrial action — were not pursued.A third ground of appeal that Mr Hall should have sought exclusion of the police interview wasreframed not as an admissibility of evidence issue but as an erroneous assumption on the part oftrial counsel that the police interview would be sufficient.Trial counsel errorAdvancing unauthorised and inconsistent defences[31] In his affidavit, Mr Mutsamwira states he instructed Mr Hall his defence wasthat he was so intoxicated he was unable to form an intent to commit sexual violation.He also wanted the complainant's version of events tested in relation to her memoryof events which appeared to get better over time. He also says he instructed Mr Hallto challenge whether the forensic evidence did support her allegation of penetration.[32] The trial record shows that Mr Hall undertook all of those matters and did socompetently.[33] What is complained about is that Mr Hall also advanced other additionaldefences which had not been authorised. In particular, Mr Mutsamwira complains thatin his closing Mr Hall developed a theme of the complainant consenting to sexualactivity and either not remembering this or regretting such consent.[34] That was done, it is alleged, without instructions and resulted in the jury beingpresented with a scatter gun defence, lack of intent being presented simply as a back-up argument. The effect was to undermine the statements made by Mr Mutsamwirain his police interview and create the risk the jury would consider Mr Mutsamwira wasgrasping at straws.[35] We do not accept these contentions.[36] The theme of the closing address was that on the evidence there had to be hugedoubts about all the elements of the offence including penetration, capacity to formthe requisite intent and consent which Mr Hall traversed. He did so with considerableskill, impressing the Judge who expressly noted at sentencing that Mr Mutsamwira'scase was advanced "most cleverly and skilfully by senior counsel upon a variety ofbases".55 Sentencing notes, above n 1, at [8].[37] As Mr Hall put it to the jury, the case was "bedevil[ed] by the fact that the twocentral witnesses are quite unable to remember what actually occurred". In the caseof the complainant, Mr Hall was able to justify that comment by reference to her"troubling" inability to recall significant portions of what happened after the spa aswell as her inability to be sure of any of the detail in the immediate aftermath of thealleged attack. Mr Hall further submitted that given their respective states ofintoxication it was not possible for the jury to exclude the reasonable possibility thatthe complainant had consented to sexual activity which she had now forgotten or waschoosing not to remember. Mr Hall reminded the jury of evidence that one of the firstthings the complainant said to her siblings after Mr Mutsamwira had left was toexpress concern about what her partner would say.[38] Advanced in that way, the defences were not inconsistent. As Mr Hallexplained in evidence before us, he was always conscious that the intoxication defenceis problematic and that alternatives should be proffered for the jury. Further, giventhat Mr Mutsamwira told police he had no memory of the incident, we do not acceptthat Mr Hall's closing could logically have undermined his police interview.[39] As to whether the defences were advanced without instructions, on that pointthere was a conflict of evidence as between Mr Hall and Mr Mutsamwira.[40] Mr Mutsamwira suggested in evidence to us that he was taken by surprise byMr Hall's closing address on 12 December 2018 and that it touched on issues such asforgotten or regretted consent that were not in a draft of the closing that he had read.He also said he complained to Mr Hall about the closing because there were mattersthat he thought were "mis[h]mashing" his defence.[41] We reject those claims as lacking credibility. Mr Mutsamwira could not havebeen taken by surprise by the closing because as the trial record shows Mr Hall hadmade similar submissions about regretted consent in his opening address sometwo weeks earlier. It is also clear that throughout the period of Mr Hall's retainer,Mr Mutsamwira was actively involved in the preparation for the trial and in regularcommunication with Mr Hall both before and during the trial. He critiqued theCrown's expert evidence, passed notes to Mr Hall throughout the trial and each day asthe trial progressed was given a copy of the notes of evidence. Further, the trial couldnot have been the first time that defences other than intent to commit the sexual actwere identified. Mr Mutsamwira had for example seen a brief of evidence providedto Mr Hall by an expert in which the latter outlined that his brief was inter alia toconsider issues relating to honest belief in consent.[42] This ground of appeal is without merit.Failure to call the evidence of Dr Schep and errors relating to Mr Mutsamwira'selection not to give evidence[43] These two complaints are inter-related and in order to understand both it isnecessary first to provide more detail about the lead up to the trial and the course ofthe trial itself.Background[44] Mr Mutsamwira retained Mr Hall as trial counsel in January 2016.[45] His instructions to Mr Hall were that he had no memory of the events in issue.He also instructed that on his way to the drinks party on 27 December 2015 he hadtaken double the prescribed dose of two drugs he had been prescribed for bipolardepression.[46] The two drugs in question were quetiapine and citalopram.[47] Mr Mutsamwira said his prescription for quetiapine at the time of the allegedrape was 2 x 100 mg tablets to be taken at night and for citalopram 1 x 20 mg tabletper day. Mr Mutsamwira further instructed Mr Hall that in November 2015 he wasattempting to wean himself off the medication by reducing his dosage of quetiapine tohalf normal and then stopping completely in December. However, he reacted badly tonot taking the medications. Hence, after about two or three weeks in December, hestarted taking them again but back to the original dosage of 200 mg. Occasionally hewould take double the dosages. That is to say, he would take 400 mg quetiapine(4 x 100 mg tablets) and 40 mg citalopram (2 x 20 mg tablets). And that, he instructed,is what he did on the evening of 27 December 2015.[48] The potential significance of this instruction was that if drugs were involved incombination with alcohol, it might bolster the defence regarding lack of specific intent.[49] In order to support this claim, Mr Mutsamwira phoned and emailed the medicalcentre where he had been a patient prior to 27 December 2015. He asked his doctorto send a letter documenting his medication history to Mr Hall. Mr Mutsamwiraspecifically asked the doctor to include in the letter that in December 2015 he hadreverted to the original dosage because of reacting badly to not taking the medications.[50] However, the doctor's letter that was sent in April 2016 did not fully supportMr Mutsamwira's instructions to Mr Hall. It confirmed the original dosage of 200 mgquetiapine. It also confirmed a proposal to reduce the dosage but significantly did notconfirm there had been difficulties, nor that Mr Mutsamwira had reverted back to theoriginal dosage in December 2015.[51] What the letter said was that following a discussion in July 2015, as atOctober 2015, the daily dose had been reduced to 50 mg quetiapine consisting oftwo 25 mg tablets. It made no mention of a return to the original dosage of 200 mg orany further prescriptions in 2015 after October.[52] The letter further stated that on 12 January 2016 Mr Mutsamwira had phonedto request more prescriptions and had not mentioned any deterioration. To thecontrary, the doctor's note of the phone conversation expressly recorded that he wascompliant with the regime of 50 mg (2 x 25 mg tablets, at night for sleep) and that shehad gave him a prescription for that same low dosage.[53] Also recorded in the note of the phone conversation was advice that he neededto get a new GP in the city to where he had re-located. The following day, the doctorwrote a letter dated 13 January 2016 for him to take to a new attending doctor.Under the heading "regular medications", the doctor advised that quetiapine was50 mg nightly for sleep.[54] We pause here to interpolate that later during the trial, Mr Mutsamwiraattempted to get the doctor to change her April 2016 letter but she refused saying herletter was correct.[55] Returning to the narrative, in August 2016 Mr Hall sought an opinion from atoxicologist, Dr Schep, about the effects of quetiapine and citalopram.[56] The subsequent report advised that when either drug was taken in overdose,alcohol can exacerbate the underlying clinical effects leading to symptoms ofdrowsiness. There was however insufficient evidence to suggest alcohol mayexacerbate the effects of therapeutic doses of citalopram. The quantityMr Mutsamwira claimed to have taken on the evening of 27 December 2015 was atherapeutic dose.6[57] As regards quetiapine, Dr Schep's report stated there was limited informationavailable regarding the cumulative effects of alcohol taken with therapeutic doses ofquetiapine. The report noted that the manufacturers of quetiapine caution againstconcurrent ingestion of alcohol as it may potentiate the sedative effect of the drug.It also noted a recent case where an unknown dose of quetiapine was spiked in thealcoholic drink of a female victim leaving her sufficiently incapacitated for a sexualassault to take place. It concluded there was limited information to suggest quetiapineand alcohol could possibly cause additive central nervous system depression althoughdoses necessary to achieve this were uncertain and evidence to substantiate it limited.[58] In 2018 Mr Hall obtained a brief of evidence from Dr Schep which he servedon the Crown on 6 November 2018.[59] The brief set out the questions which Dr Schep had been asked to consider:Would the amount of alcohol, in combination with [Mr Mutsamwira's]medication, cause extreme intoxication to such a degree that he would havedifficulty knowing whether, or not, the complainant consented to intercourseor he believed on reasonable grounds that she was consenting?6 In his subsequent brief of evidence, Dr Schep stated that overdose signs and symptoms typicallyoccur at doses of citalopram exceeding 600 mg.Would the level of impairment have been increased by the double dose ofmedication that he ingested?[60] For the reasons detailed in Dr Schep's 2017 report, the brief concluded that itwas unlikely the double dose of citalopram on its own or in combination with alcoholwould have increased Mr Mutsamwira's impaired judgment.[61] In assessing the effects of quetiapine, the brief stated that in overdose, signsand symptoms may include drowsiness and confusion, reduced blood pressure andincreased heart rate. It concluded however that it was unlikely the dose of 400 mgtaken by Mr Mutsamwira would have contributed to his impaired judgment. As forthe cumulative effects of alcohol taken with therapeutic doses of quetiapine, the briefagain cited the same limited information mentioned in Dr Schep's initial report. Thebrief concluded it was possible that the combination of excess alcohol with quetiapinemay have contributed to impairing Mr Mutsamwira's judgment to form an intent tohave sexual intercourse.[62] Dr Schep subsequently provided an addendum to his brief of evidence whichMr Hall served on the Crown on 21 November 2018. The addendum referred to"[m]edical notes from 2015 to 2018, recently provided by Mr Mutsamwira" whichwere said to show evidence of liver damage. In light of that evidence, Dr Schep statedthat the effects of quetiapine interacting with alcohol could have been further enhanceddue to Mr Mutsamwira's liver impairment, thereby "further enhancing the sedativeeffects of quetiapine and possibly contributing to the impairment of his judgment toform an intent to have sexual intercourse".[63] Dr Schep's opinion was based on the assumption that Mr Mutsamwira had infact consumed 4 x 100 mg tablets of quetiapine on the night as he claimed. It was nota claim Mr Mutsamwira had made to the police during his interview and thereforeunless he testified — which he had made very clear from the outset he did not want todo — there was no evidential basis for Dr Schep's opinion.[64] Mr Hall was aware that in the absence of a factual foundation forMr Mutsamwira's claimed consumption, Dr Schep's evidence was technicallyinadmissible. However, in his experience (and indeed Dr Schep's experience as anexpert witness), there is often no objection and the opinion evidence is admitted byconsent.[65] The trial started on 28 November 2018. Dr Schep was scheduled to give hisevidence on 7 December 2018. However, on 3 and 4 December 2018 the Judge raisedconcerns about Dr Schep's brief of evidence, including the need for an evidentialfoundation.7[66] Mr Hall and Mr Mutsamwira then urgently obtained further medical recordsincluding some dispensing records. These were provided to the Crown.[67] On 6 December 2018, the prosecutor advised during an in chambers discussionthat she was in the process of reviewing the medical notes and would not be in aposition to cross-examine Dr Schep the following day as planned.[68] She also advised of the existence of a document that showed when first takeninto custody on 30 December 2015, the police watch-house asked Mr Mutsamwirawhether he was on any prescription drugs and the answer was no. However, becausehe was showing signs of depression and because of the seriousness of the charge, thepolice arranged for him to be seen by a nurse who undertook an evaluation.[69] The nurse's report recorded Mr Mutsamwira as saying he had nil recollectionof the alleged offending as he had consumed a large amount of whiskey and hadblacked out. He did not mention taking quetiapine. The nurse's report also recordedhim as advising that he had never suffered from depression and had never receivedany treatment for depression.[70] In all the circumstances, and to give the parties time to consider their respectivepositions, the Judge on 6 December 2018 adjourned the trial until 11 December 2018.7 The other concerns related to the scope of his expertise and the fact that his brief purported toanswer the ultimate issue which in this case the Judge considered should properly be the solepreserve of the jury.[71] Also on 6 December 2018, Mr Mutsamwira signed a written instruction toMr Hall saying he had been advised of his right to give evidence but did not want toand wanted to call Dr Schep.[72] On 10 December 2018, the day before the trial was to resume, Mr Hall emailedthe prosecutor further medical information concerning Mr Mutsamwira's prescriptiondetails. The prosecutor did not however consider that these supported the defence casebecause there were no records of any prescriptions between October 2015 and12 January 2016. In those circumstances and given Mr Mutsamwira's failure to raisethe issue at the police interview, she advised that unless Mr Mutsamwira provided anevidential foundation for his prescription and medication use, the prosecution wouldobject to Dr Schep's evidence being admitted.[73] Mr Hall considered the prosecutor's position was tactical and designed to forceMr Mutsamwira into giving evidence and thus expose him to cross-examination on allissues. That, in Mr Hall's assessment, would have been extremely damaging to thedefence case and it was not what Mr Mutsamwira wanted. Mr Hall consideredMr Mutsamwira would not be a convincing witness.[74] It appears from the transcripts of the in chambers discussions that Mr Hallendeavoured to come up with alternative solutions including Mr Mutsamwira givingevidence solely on drug consumption at a voir dire and then that evidence being usedat trial.[75] The following day 11 December, the prosecutor forwarded Mr Hall a copy ofa brief of evidence obtained from a forensic psychiatrist Dr Panckhurst about theeffects of quetiapine when combined with substantial quantities of alcohol in a personwith liver damage. Mr Hall immediately provided Dr Schep with a copy.[76] The Panckhurst brief of evidence included the following key points:(a) The leading studies in the use of quetiapine for bipolar depressionsuggest that optimal dosing is in the range of 300–600 mg per day, sothat whatever Mr Mutsamwira's prescribed dose was at the time of thealleged offending, there was no indication he had ever beenover-prescribed.(b) Clinical experience indicates that quetiapine is a well tolerated andrelatively safe medication. The primary adverse side effects associatedwith quetiapine are weight gain, increased blood sugars and its sedatingproperties. In terms of the effects of quetiapine being exacerbated byalcohol there would invariably be a degree of additive sedation(drowsiness).(c) Mr Mutsamwira's medical records indicated that any liver damage wastransient-mild in nature and unlikely to have significantly affected hisability to metabolise quetiapine.(d) It was important to bear in mind that Mr Mutsamwira had had six yearsexperience of quetiapine.(e) The plasma levels of the sedating agents would have been at their peaklevel 90 minutes after ingestion and therefore likely to have beensignificantly reduced by 7 am the next morning.(f) Evidence of purposeful conduct such as being able to successfullyapply a condom was significant.[77] Following receipt of the Panckhurst brief of evidence, there were furtherdiscussions in chambers with the Judge at the beginning of the Court day on11 December. The Crown maintained its position that an evidential foundation ofconsumption was required before Dr Schep's evidence was admissible and the Judgeindicated provisional opposition to the voir dire option. Another suggestion mootedwas that Dr Schep could give evidence derived from the medical records thatMr Mutsamwira had been prescribed quetiapine over a period of time and thencomment on the effect of quetiapine when combined with alcohol on a hypotheticalbasis, along the lines "if Mr Mutsamwira had consumed 400 mg of quetiapine thatnight, then". It appears the Crown were amenable to that suggestion.[78] Mr Hall confirmed in response to a question from the Judge that he wanted totalk to Dr Schep and Mr Mutsamwira before deciding about having a voir dire and alegal argument. It was agreed that after completing the Crown evidence which wasnot expected to take long, the trial would be adjourned until 3 pm with counsel andthe Judge reconvening at 12.30 pm. The Judge asked Mr Hall if he thought that wouldgive him enough time to be in a position to indicate what if any issues needed to beresolved by legal argument and/or voir dire. Mr Hall said he hoped it would.[79] The trial then briefly resumed at 10.42 am to complete the Crown's evidence.That was concluded at 11.15 am. The Judge then adjourned until 3 pm.[80] Between 11.15 am and 12.43 am, Mr Hall conferred separately with bothDr Schep and Mr Mutsamwira. Having read Dr Panckhurst's evidence, Dr Schepconceded that he had over-stated Mr Mutsamwira's liver damage. He also did notdispute what Dr Panckhurst had to say about the plasma level post-ingestion and theprescription levels for quetiapine.[81] In Mr Hall's assessment, those acknowledgments would have underminedDr Schep's evidence. Mr Hall was also concerned about the significant risks of callingMr Mutsamwira to give evidence. His account of his drug consumption was easilyable to be impeached. He would be asked about the attempt to persuade the doctor tochange her letter, the absence of any reference in the medical records to him resumingthe original dose in December 2015, the contrary indication in the January 2016 phoneconsultation, the lies he told to the watch-house nurse and the failure to mentionconsuming the drugs to the police.[82] In short, Mr Hall considered that the risks of calling both Dr Schep andMr Mutsamwira far outweighed the benefit. He was of the view that if they both gaveevidence, they could do irreparable damage to the defence. On the other hand withoutthem, the issue of intoxication would still be before the jury and there wasoverwhelming evidence about that. Also, there was no need for Mr Mutsamwira togive the jury his account of the events of 27 and 28 December 2015 because that wasalso already before the jury via the transcript of the police interview.[83] Mr Hall advised Mr Mutsamwira accordingly.[84] Mr Mutsamwira signed a written instruction that he did not want to callDr Schep. Although the written instruction did not refer to Mr Mutsamwira himselfgiving evidence, it is common ground that his decision on that issue remained asbefore.[85] Mr Hall conveyed those instructions to the Judge. The jury were then releasedfor the day. Closing addresses and the Judge's summing up then proceeded on12 December 2018.Arguments on appeal[86] Mr Mutsamwira's appellate counsel Mr Williams contended that the abovesequence of events involved a series of errors on the part of Mr Hall.[87] In Mr Williams' submission, the main error was failing to appreciate the needfor an evidential foundation for Dr Schep's evidence and taking appropriate actionwell before trial such as obtaining a full set of medical and prescription records andpreparing Mr Mutsamwira to give evidence. That would have included preparing himhow to respond to cross-examination.[88] The direct result of failing to do those things was that crucial decisions had tobe made at the last minute and were rushed.[89] The third related error was that there was insufficient time for the implicationsof the Panckhurst brief to be considered in a meaningful way. That in turn along withthe content of the incomplete records bore on Mr Hall's assessment of the value ofDr Schep's evidence and hence the quality of the advice that was given toMr Mutsamwira about calling Dr Schep. A more careful consideration would havecome to the conclusion that Dr Schep could still have advanced the defence case.There were also aspects of the Panckhurst brief of evidence that could have beenchallenged as inadmissible.[90] All of that meant that while Mr Mutsamwira gave his instructions not to giveor call evidence, it was a hurried decision based on poor advice. He was put underunfair pressure due to Mr Hall's fundamental error. Mr Hall did not have a plan B andhe should have had.AnalysisThe quality of the advice given by Mr Hall[91] We agree it would have been preferable for Mr Hall to have had a plan B.However we also consider that, regardless of whether Mr Hall should have had aplan B, he was justified in having the concerns he did about calling Dr Schep andMr Mutsamwira. No amount of "preparation" for cross-examination could haveovercome the significant difficulties Mr Mutsamwira would have faced in providingcredible explanations for the following:(a) His selective memory of events — he was able to remember eventsimmediately prior to his going into the lounge and after waking up lyingalongside the complainant but not what happened in-between times.(b) The fact the complainant weighed 110 kgs and that for them to haveboth been lying on the couch sideways as he claimed — as opposed tohim being on top of her as she claimed — would have been close tophysically impossible.(c) Failing to attempt to offer any explanation when asked to leavethe house.(d) The evidence that he had engaged in purposeful conduct at timesproximate to the alleged rape as well as at times when his level ofquetiapine and alcohol would have been higher than at 7 am:(i) having consensual sex with the complainant's sister;(ii) conducting a phone conversation, seeking a charger andplugging it in;(iii) finding his own way outside and smoking a cigarette;(iv) successful application of a condom;(v) placing the condoms in the kitchen bin;(vi) undressing and dressing;(vii) responding to the request to leave by leaving unaided;(viii) driving a motor vehicle; and(ix) texting.(e) Inconsistencies between the medical records and his claims aboutreverting back to the 200 mg dosage of quetiapine or more in December2015.(f) The likelihood of a doctor failing to record on three separate occasionsfirst in December 2015, secondly the phone consultation on 12 January2016 and thirdly the advisory letter of 13 January 2016 what wouldhave been a significant clinical matter, namely that Mr Mutsamwira hadtold her he had deteriorated and was reverting to his original dosage.(g) His failure to mention his consumption of drugs to the police. In hispolice interview, he blamed his intoxicated condition entirely ondrinking spirits and the effect they "always" have on him.(h) The explanation Mr Mutsamwira seeks to give for this omission — andwhich he presumably would have given to the jury — is that theinterviewing officer was very aggressive and had already made hismind up. Mr Mutsamwira panicked and was worried about beingcriticised for mixing alcohol and drugs. However, while it is true theofficer expressed disbelief at some of Mr Mutsamwira's statements,that was much later in the interview. At the stage where they werediscussing what Mr Mutsamwira had consumed that night, thequestioning was bland and open. There was every opportunity forMr Mutsamwira to tell the officer about the quetiapine. We note toothat Mr Mutsamwira told the officer he did not need a lawyer andwanted just to talk because he "[knew] what [he was] gonna say."(i) His failure to mention the medication to the police watch-house inresponse to a specific question about prescription drugs and then thenurse. Again, he only mentioned that drinking spirits had caused himto black out and have no memory. As previously stated, we have beengiven different explanations for this omission. In his affidavit,Mr Mutsamwira says by the time he saw the nurse, he was "exhaustedand mentally drained." In oral evidence however he said that he hadreasons for not disclosing this, intimating it was a deliberate choice.[92] It is in our view no answer for Mr Williams to submit that records that havenow been obtained and which should have been obtained earlier would or should havemade a difference to Mr Hall's assessment.[93] In fact, the additional records obtained for the appeal hearing almost threeyears after the trial still do not show any prescription for quetiapine between8 October 2015 and 16 January 2016. Further, the records show that the lastprescription for 100 mg quetiapine tablets was for a month's supply back in July 2015.The 8 October 2015 prescription was for three month's supply but of 25 mg tablets.That would have involved Mr Mutsamwira in an unlikely scenario of swallowing16 tablets of quetiapine as well as the two tablets of citalopram while on his way tothe drinks party.[94] The additional records obtained for the appeal do contain confirmation oftwo instances of drugs being dispensed in 2015 that were not in the records availableat trial. The dispensing records of 100 mg tablets now show that between13 January 2015 and 15 July 2015 Mr Mutsamwira had obtained in total nine months'supply of 100 mg tablets.[95] At the rate of two tablets daily, that supply would have been nearing its end bylate September 2015. That would be consistent with a new prescription being writtenin 8 October 2015 for the 25 mg tablets although there is still no dispensing record forthat prescription.8[96] However, in his affidavit evidence filed in this Court, Mr Mutsamwira says hewas stockpiling the medication and so as at mid to late December 2015 when hereverted to the original dose and occasionally a double dose, he did still have 100 mgtablets available to him. He describes the supply he had in December as "plentiful."By plentiful, he told us he meant at the very least 50 x 100 mg tablets.[97] There is reason to be sceptical about the stockpiling explanation. Stockpilingof the 100 mg tablets was never mentioned to Mr Hall including in a statementMr Mutsamwira wrote during the trial about his drug consumption which he asked tobe put in affidavit format and which he said he would come in and sign.Mr Mutsamwira intended the statement to be sworn evidence for the proposedvoir dire. Mr Mutsamwira wrote that statement at a time when he knew theprosecution was relying on the records not showing any prescription between8 October 2015 and 12 January 2016.[98] Mr Mutsamwira did not need further records to say he had been stockpiling.If that were true, he would obviously have known that from the outset.[99] We note too that stockpiling was never mentioned in Mr Mutsamwira's firstaffidavit filed for the appeal.[100] The stockpiling explanation also sits uneasily with Mr Mutsamwira telling thedoctor he needed a repeat prescription on 12 January 2016 which again would be8 Mr Mutsamwira says he used different chemists for that prescription and he cannot now rememberwhich ones.consistent with him exhausting or coming near the end of the three-month prescriptionof the 25 mg tablets that was issued on 8 October 2015.[101] In our assessment, even with the additional material now available,Mr Mutsamwira's account of drug consumption still lacks cogency and therefore doesnot significantly detract from the concerns expressed by Mr Hall during the trial.Those concerns and therefore his advice remain valid. To have advanced drugconsumption at trial would in our view have almost certainly damagedMr Mutsamwira's credibility in the eyes of the jury as well as exposing him to highlydamaging cross-examination on all the other issues.[102] We also consider that viewed objectively Dr Schep's evidence was of limitedvalue and would not have significantly strengthened the defence case. His conclusionsabout quetiapine and alcohol were understandably and of necessity tentative. Theywere based solely on the manufacturer's instructions and one case involving a differentsituation which lacked relevant detail.[103] In an affidavit provided for the appeal, Dr Schep suggests that his concessionsafter reading the Panckhurst brief of evidence were not as significant as Mr Hallappears to have thought and that essentially he made concessions only on the liverissue. However, at the time, the liver issue was considered significant or would haveappeared to the jury to have been considered significant because Dr Schep went to thetrouble of providing an addendum solely on that issue. In our view, inaccuratestatements about Mr Mutsamwira's liver condition were likely to have damagedDr Schep in the eyes of the jury. The correct position was very plain to see in themedical records. At best the jury might have thought Dr Schep's opinion was basedon incomplete records or worse that he had been careless in his perusal of the recordsor selective in which part of the records he highlighted.[104] We therefore reject the argument that Mr Hall's evaluation of Dr Schep'sevidence was inadequate or erroneous. The advice not to call Dr Schep was soundlybased. It would not have substantially strengthened the defence and calling it wouldhave created more problems.The decision not to give evidence[105] That however is not the end of our inquiry.[106] The right of a defendant to give evidence is a fundamental right. It is sofundamental that even although a decision not to give evidence is objectively a wisedecision, the trial will still be by definition unfair if that decision was not madevoluntarily or was not a fully informed decision or was made under unfair pressure.9[107] Mr Mutsamwira says that his election not to give evidence was made underundue pressure. He claims to have had only 10 to 15 minutes to make up his mind.He also claims that it was during the 10 to 15 minutes that Mr Hall made him awarefor the first time of:(a) the Panckhurst brief of evidence, the only part which Mr Hall showedhim being the conclusions;(b) the fact the Panckhurst brief of evidence would cancel Dr Schep'sevidence;(c) that if he still wanted to call Dr Schep, he (Mr Mutsamwira) would haveto give evidence in front of the jury not only about the quetiapine butabout the whole night of the offence; and(d) if Dr Schep gave evidence, then the Crown would call Dr Panckhurst.[108] Mr Mutsamwira said he wanted more time to understand and ask morequestions. He asked Mr Hall for more time but was told the Judge would not allow it.He then asked Mr Hall if it was possible for him to obtain a phone and ring a coupleof support people. This too was denied by Mr Hall who stated that he had to make adecision right now.9 See generally New Zealand Bill of Rights 1990; and s 25; Hall v R [2015] NZCA 403, [2018] 2NZLR 26 at [65].[109] Mr Mutsamwira says his head was spinning. He was confused, upset, helplessand hopeless all at the same time. He could not think through the complicated issuesclearly. His case was crashing down around him and Mr Hall seemed exasperatedwith him. The last thing he wanted was to fall out with his lawyer. He did not feel hewas adequately prepared to give evidence. He felt he had no choice but to acceptMr Hall's advice. In what he describes as a "spur of the moment" decision, not to giveevidence seemed the only logical way to cushion the damage.[110] He also claims that Mr Hall never discussed the concessions Dr Schep hadmade after reading the Panckhurst brief of evidence and that Mr Hall never discussedwith him that if he and Dr Schep gave evidence, it could harm his defence.[W]e never discussed anything at length. The main purpose, when he came tosee me, during those ten minutes was to tell me we are not calling Dr Schepbecause Dr Panckhurst is going to be damaging, you have to testify and I amnot calling you on the stand.[111] As mentioned there was an hour and a half gap between the Court adjourningand Mr Hall advising the Judge of Mr Mutsamwira's instructions. During that hourand a half, Mr Hall spoke to both Dr Schep and Mr Mutsamwira. Exactly how longhe spoke with each is unclear. Dr Schep estimates the discussion with him was for20 to 30 minutes and that after approximately 10 minutes, Mr Hall returned to advisehim of Mr Mutsamwira's decision that he was not needed. That supportsMr Mutsamwira's estimate of time except for the fact that Dr Schep does not knowwhether Mr Hall had already spoken to Mr Mutsamwira before talking to him.Mr Hall's recollection is that he went back and forth between the two.[112] We consider it unlikely that any of the estimates of time are precise given theywere being recalled well over a year after the trial. But regardless of whose estimateis correct, it is beyond doubt that an hour and a half is not a long time.[113] However, there are critical aspects of Mr Mutsamwira's account of hisdiscussions with Mr Hall which we do not consider credible because they areimplausible and/or belated allegations which bear all the hallmarks of embellishment.[114] For example, Mr Mutsamwira claimed he was unaware of the difficulties hewould face if he were cross-examined and that the only reason he decided not to giveevidence was because he had not been prepared. The lack of preparation was also theonly reason he thought he might jeopardise the defence by giving evidence.[115] Mr Mutsamwira went even further and claimed that prior to trial he hadspecifically asked Mr Hall about cross-examination so he could try and figure out whatmight come out of cross-examination but that Mr Hall had refused to discusscross-examination.[116] This allegation was raised orally for the first time at the hearing. There was nomention of it in either Mr Mutsamwira's affidavits including an affidavit sworn inresponse to an affidavit from Mr Hall in which Mr Hall expressly asserted thatMr Mutsamwira was "well aware" of his shortcomings as a witness and the difficultieshe would face if he was exposed to cross-examination. We would add it seems mostunlikely that Mr Mutsamwira, who has a doctorate in chemistry, would have beenunable to appreciate for himself the difficulties he would face. His majorvulnerabilities as a witness were self-evident.[117] There were also inconsistencies. Having denied ever being advised thedifficulties he would face included his lies to the watch-house nurse, Mr Mutsamwirastated in re-examination that the first time the issue of what he had said to thewatch-house nurse came up was Tuesday 11 December. Not only was that inconsistentbut it was also demonstrably wrong. The transcript of the in chambers discussions of6 December records a discussion about the report which Mr Mutsamwira must haveknown about because the same transcript also records that Mr Mutsamwira had givenMr Hall a limited consent authorising disclosure of the report to Mr Hall. Mr Hallmust have discussed the contents of the report with Mr Mutsamwira because it hasnever been disputed that Mr Mutsamwira refused to agree to the report being disclosedto the prosecution.[118] Also raised for the first time at the appeal hearing was the allegation thatMr Mutsamwira had asked Mr Hall for a phone so he could ring support persons butthat Mr Hall had refused saying "no you cannot do it, you have to make a decisionright now."[119] Not only is that allegation belated, it does not make sense. Mr Mutsamwirawas aware that the trial had been adjourned until 3 pm. Further, the transcripts of thein chambers discussions support Mr Hall's contention that the Judge was well awareof the problems facing the defence and that had further time been required it wouldhave been allowed. Even if Mr Mutsamwira was not present at all the in chambersdiscussions — as he claims — there would be no reason for Mr Hall to mis-representthe Judge's attitude.[120] Another new allegation was that Mr Hall told Mr Mutsamwira that it was allhis (Mr Mutsamwira's) fault and that he had only brought it on himself, renderingMr Mutsamwira close to tears. Again there would be no reason for Mr Hall to saysuch a thing and it does not ring true.[121] Another inconsistency was that Mr Mutsamwira painted a graphic picture ofhimself being taken by surprise, having no input into the decision making, beingintimidated by Mr Hall's hostile manner and essentially being told by Mr Hall what todo. Yet, he also stated orally that Mr Hall had advised him the issue of intoxicationwould still be before the jury even if he and Dr Schep did not give evidence and thathe (Mr Mutsamwira) had disagreed with that assessment. That was something notmentioned in either of his affidavits.[122] For all those reasons, we have concluded that Mr Mutsamwira's account of thediscussions with Mr Hall on 11 December is not a reliable account. It exaggerates hislack of appreciation and understanding of the decision he had to make and the issuesbearing on that decision. It also overstates the pressure he was under and the timeconstraints. While the Panckhurst brief of evidence was late, the question of theevidential foundation for Dr Schep's evidence and how that might be resolved wereissues that had been traversed for several days.[123] In our assessment, the decision made by Mr Mutsamwira was an informeddecision and it was based on sound advice.[124] We therefore also reject this ground of appeal.Misdirection on intoxication[125] Mr Williams contends that the Judge's direction to the jury on intoxication wasflawed because the Judge referred to capacity for intent rather than the fact of intent.This combined with references made by Mr Hall to "involuntary behaviour" in hisclosing, created a real risk the jury may have erroneously believed the appellantneeded to be so intoxicated as to be incapable of forming intent. Whereas the correctlegal position is that the jury were entitled to conclude the Crown had failed to provethe necessary intent even if Mr Mutsamwira's level of intoxication fell short ofinvoluntary behaviour.[126] However the direction needs to be read in its entirety. And in our view thedirection in its entirety made it very clear that the question for the jury was whether asa matter of fact Mr Mutsamwira had acted with the requisite intent. This was furtherreinforced by the question trail. There was never any suggestion that intoxicationcould only be relevant if Mr Mutsamwira's mind was no longer functioning.[127] We therefore do not accept there was any risk of the jury being misled andtaken down illegitimate paths of reasoning.[128] This ground of appeal also lacks merit.Outcome[129] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent