BROOMHALL v R [2021] NZCA 617

BROOMHALL v R [2021] NZCA 617 [19 November 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA448/2021[2021] NZCA 617BETWEEN TREVOR PAUL BROOMHALLApplicantAND THE QUEENRespondentCourt: Brown, Mallon and Moore JJCounsel: J E L Carruthers and E Huda for ApplicantA G Becroft for RespondentJudgment:(On the papers)19 November 2021 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a Judge-alone trial in the District Court at ChristchurchMr Broomhall was convicted on 11 charges, primarily of sexual offending, relating tofive complainants. His appeal against conviction in the High Court was dismissed.11 Broomhall v R [2021] NZHC 1521 [High Court judgment].[2] He seeks leave to bring a second appeal contending that there is a soundargument that his trial miscarried for the reason that his election not to give evidencewas uninformed. The application is opposed.The trial in the District Court[3] Mr Broomhall faced 18 charges of alleged sexual offending relating to twodistinct periods. The charges were all heard together following this Court's decisionin B (CA635/2018) v R.2 The District Court Judge considered that all the evidenceheard from the complainants was mutually admissible, subject to the warning that theweight to be given to the evidence needed to be considered in respect of each chargeand each complainant.3[4] Prior to trial Mr McCormick, Mr Broomhall's counsel, worked with him toprepare a detailed 26-page brief of evidence which Mr McCormick used to test thewitnesses' evidence in cross-examination and to put Mr Broomhall's case to them.[5] The Crown's evidence was completed on the morning of Friday 29 November2019 when four of the charges were dismissed. The Judge allowed Mr Broomhall theweekend to consider his election as to whether to give and call evidence.[6] Mr McCormick prepared and on Saturday emailed to Mr Broomhall a six-pageanalysis of how the Crown case had gone by reference to the individual charges andthe evidence of the witnesses (the reporting letter). The letter contained a substantialdiscussion under the heading "Do you give evidence?".[7] Mr McCormick and his junior met with Mr Broomhall and his partner onSunday 1 December 2019 to discuss the question of election. The High Courtjudgment described the outcome of the meeting in this way:[24] Mr Broomhall instructed Mr McCormick that he did not wish to giveevidence. Mr McCormick deposed he did not have to convince Mr Broomhall(at the interview) to not give evidence, as it was Mr McCormick'sunderstanding that Mr Broomhall agreed there would be a risk incompromising progress that had been made in cross-examination.2 B (CA635/2018) v R [2019] NZCA 71.3 High Court judgment, above n 1, at [71].Mr McCormick had Mr Broomhall sign a handwritten note confirming hiselection not to give or call evidence.[8] No evidence was led for Mr Broomhall. He was acquitted on three chargesand convicted on 11 charges in respect of five complainants.The High Court judgment on appeal[9] Mr Broomhall appealed to the High Court on a number of grounds, includingthat Mr McCormick failed to ensure he had the necessary information to make a fullyinformed decision on whether to give evidence. He said this resulted in an unfair trialin terms of s 232(4)(b) of the Criminal Procedure Act 2011.[10] The judgment records that Mr Broomhall identified two particular matters onwhich Mr McCormick was said not to have advised him:4(a) The potential benefits of Mr Broomhall's giving evidence, and inparticular the advantages (not identified by Mr McCormick) as wellas the disadvantages (identified by Mr McCormick of givingevidence). (b) The need for an evidential foundation. Mr Broomhall deposedMr McCormick had not advised him of the effect of the legal principlethat propositions put in cross-examination did not become evidenceunless those propositions were accepted by the witnesses. Mr Broomhall deposed that if these matters had been explained to him he would havegiven evidence.[11] After a detailed review of Mr Broomhall's evidence and that ofMr McCormick, who provided an affidavit and was cross-examined, the reportingletter and the authorities relied on by Mr Broomhall,5 Osborne J concluded that neitherMr Broomhall's decision not to give evidence nor Mr McCormick's advice to thateffect resulted in a miscarriage of justice. He explained:[85] In the circumstances of this case, and as borne out by the trial Judge'ssubsequent assessment of the evidence, Mr McCormick's assessment thatthere was not a tangible, potential benefit in Mr Broomhall being called togive evidence of his denials was an appropriate judgement call. To have4 At [31].5 Chambers v R [2011] NZCA 218; Tarring v R [2016] NZCA 452; Jane v R [2019] NZCA 384; andSalvaji v R [2019] NZCA 611.explored in his written (or indeed oral) advice to Mr Broomhall the possibilitythat denials in evidence would materially advantage him or improve his casewould have been more likely to positively mislead Mr Broomhall.[86] [Counsel for Mr Broomhall] Mr Huda, in addition to his criticism ofMr McCormick's failure to identify in his written advice the advantages ofMr Broomhall giving evidence, criticised the advice for lacking anyexplanation along the lines of the standard tripartite direction given to juries.[87] Given the criticism of Mr McCormick's explanation and advice, andMr Huda's failure to identify in his written submissions the sort of wordingwhich he submitted would have been appropriate, I had Mr Huda state in thecourse of his oral submissions what he submitted should have been added tothe reporting letter. I took a note of the actual additions Mr Huda would haveadded but do not include the lengthy response here. It included discussion ofthe concepts of reliability and credibility, a discussion as to the tripartitedirection, and reference to the model jury direction endorsed in Taniwha v R.I did not find it to add materially or helpfully to the advice provided byMr McCormick. To the contrary, in a case in which the defence involved adenial of any sexual incidents, the additional explanations proposed byMr Huda might well have served as an impediment to Mr Broomhall makingan appropriately informed election that Sunday.[88] Here, Mr McCormick's advice clearly identified that the burden ofproof remained on the Crown at all times and that Mr Broomhall did not haveto prove that he did not commit the alleged offences. Mr McCormick'sconcluding remarks clearly identified the standard of proof with the acceptedexplanation that "the Judge [must be] sure that what each complainant issaying is true".[89] Those were the essential matters of criminal law and procedure forMr Broomhall to understand if he was to be able to make an informed decisionwhether to give or call evidence. In his affidavit he does not suggest he didnot understand them.[90] I recognise that there is a lengthy passage in his affidavit in whichMr Broomhall sets out a version of the tripartite direction before observingthat, had Mr McCormick explained that to him, he would have given evidence.There is no reason to doubt the sincerity of that (hindsight) statement on thepart of Mr Broomhall. Indeed, the Crown responsibly did not require him forcross-examination. But the fact remains that, through the straightforwardadvice that Mr McCormick provided, Mr Broomhall had a simple explanationof both the burden of proof and the standard of proof sufficient to enable himto make a fully-informed decision.(Footnote omitted.)Leave principles[12] The application for leave to bring a second appeal against conviction isgoverned by s 237 of the Criminal Procedure Act. This Court must not give leaveunless satisfied that the appeal involves a matter of general or public importance, orthat a miscarriage of justice may have occurred or may occur unless the appeal isheard.6[13] As this Court confirmed in McAllister v R, the test for a second appeal is high.7Leave will not generally be granted where the application raises issues calling for afactual assessment specific to the circumstances of the case in question.8 Although themiscarriage test will extend to arguable errors by the Court below, not every such errorwill give rise to a miscarriage of justice.9Discussion[14] For Mr Broomhall, Mr Carruthers contended that, simply put, Mr Broomhall'selection cannot have been an informed one if he was unaware of two of the basiceffects which his giving evidence would have on the trial: the introduction of evidenceto the effect that the alleged offending did not occur, and the Judge having to confrontthe task of considering and rejecting his evidence before she could go on to find himguilty.[15] He submitted that advice about the practical effect of giving evidence wasparticularly important in this instance given the strength of the Crown case, theabsence of any material concessions from the complainants, and the fact thatMr Broomhall had refused a police interview. He described the Crown case asformidable, including as it did allegations from originally six complainants that werelargely cross-admissible and from which they did not resile in evidence. That and theabsence of a police interview from Mr Broomhall meant that, unless he gave evidence,there would be very little standing between the Judge and a suite of guilty verdicts.[16] Considerations similar to these had informed this Court's decision in Jane v Rwhere an appeal was allowed on the basis that the appellant's election not to giveevidence was an uninformed one.10 From Jane and other authorities11 Mr Carruthers6 Criminal Procedure Act 2011, s 237(2).7 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.8 At [36].9 At [38].10 Jane v R, above n 5.11 Tarring v R, above n 5; and I (CA128/2018) v R [2019] NZCA 625.submitted that three broad propositions relating to the decision to giveevidence emerged:(a) Counsel must advise the defendant of any advantages of givingevidence.(b) In circumstances where the Crown case is strong, the defence has beenput to, and rejected by the complainants, and the defendant is unable todraw on a police interview, there may be compelling reasons for adefendant to give evidence.(c) Benefits such as securing an evidential foundation for the defence,placing sworn as opposed to unsworn evidence before the fact-finder,the reasoning process that giving evidence forces the fact-finder toengage in, and having an opportunity to develop a rapport with thefactfinder are not necessarily illusory.Against the backdrop of those propositions, the advice which Mr Broomhall receivedwas said to be plainly lacking.[17] The Crown appropriately acknowledged that there is no question that thedecision whether to give evidence is one of the fundamental decisions a defendant canmake. As a corollary, it is one of the decisions on which trial counsel's failure tofollow specific instructions, or to ensure the decision is an informed one, will generallygive rise to a miscarriage with the result that the appeal will ordinarily be allowed.12However it submitted that Mr McCormick's advice to Mr Broomhall was detailed andclear, Mr Broomhall had ample opportunity to consider and discuss the advice withMr McCormick over the weekend, and Mr Broomhall was clear in his decision that hewould not give evidence.[18] Unlike some other cases, the advice provided to Mr Broomhall in writing andby Mr McCormick in person was fulsome. As the reporting letter records, the issue of12 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65]; and van der Krogt v R [2020] NZCA 512at [29].election was discussed prior to the first trial scheduled in May and then in the courseof the weeks which preceded the reporting letter. Having recorded the fact andimplications of the Crown's burden of proof, the letter proceeded to explain:Sometimes a defendant might decide to give evidence if he has to explain whyhe has done something. Perhaps an example might be say if in response to[A's] allegations that she woke up to you having sex with her, if you had saidthat you had been having sex with her and then she fell asleep and you did notnotice that before she woke up, then you might in such a situation think ofgiving evidence to explain that because your defence would be that sheconsented to sex or that you had a reasonable belief she was consenting.In this case though, your defence is not that you thought any of thecomplainants were consenting to the acts that they say you have done. Ratheryour defence is that none of the alleged acts actually happened.It is obviously very hard for a person to try to explain an act they have notdone.[19] Mr McCormick was taxed in cross-examination before the High Courtconcerning the absence of any "advantage" identified in the reporting letter.13However in his responses, which were recited verbatim in the High Court judgment,he explained that "quite frankly" he did not think that there were any advantages toMr Broomhall giving evidence.14 As the reporting letter had clearly explained, MrBroomhall's defence was a denial that any of the alleged conducted occurred. In suchcircumstances it was not necessary to testify so as to introduce evidence that thealleged offending did not occur.[20] Other cases, such as those cited by Mr Carruthers, need to be viewed in context.In Jane no formal brief was prepared and Mr Jane was unable to read the handwrittendocument his counsel gave him to sign, although it was read aloud to him.15Furthermore Mr Jane's counsel did not advise him as to the legal aspects of the burdenand standard of proof and the nature of the directions the trial Judge would havegiven.16 This Court's statement in I (CA128/2018) v R about the implications of notgiving evidence was made in the context of a case where the appellant had beenadvised previously he would not be giving evidence and was completely taken by13 High Court judgment, above n 1, at [48].14 At [49].15 Jane v R, above n 5, at [7]–[8].16 The differences between Jane and Mr Broomhall's case were fully reviewed by the High CourtJudge: High Court judgment, above n 1, at [82(c)] and [83].surprise when told he needed to give evidence, for which he said he was not at allprepared.17 In Tarring, where in this Court's words there were "not auspiciouscircumstances for a fully informed election", the decision was made in the space of athree-minute adjournment at the close of the Crown's case.18 Furthermore, as Mr Hudahad recognised in the High Court,19 Tarring was distinguishable as the defence at trialwas that the complainant had consented to sexual activity or that the defendant had thereasonable belief as to consent, as opposed to Mr Broomhall's defence that theoffending never happened.[21] We also agree with the Crown that, although the equivalent of the tripartitedirection was not given to Mr Broomhall, such a direction would not have materiallyor helpfully added to the advice given by Mr McCormick. We share the view of theHigh Court Judge that the explanations suggested by counsel may well have served asan impediment to Mr Broomhall making an appropriately informed election.20[22] On the facts of this case we are not satisfied that there is a risk a miscarriageof justice occurred and we agree with the Crown that the appeal does not raise a matterof general or public importance.Result[23] The application for leave to bring a second appeal is declined.Solicitors:Shaun Cottrell Law, Christchurch for ApplicantCrown Law Office, Wellington for Respondent17 I (CA128/2018) v R, above n 11, at [94].18 Tarring v R, above n 5, at [34]–[35].19 High Court judgment, above n 1, at [50].20 At [87]. See [11] above.