W (CA475/2021) v R [2023] NZCA 207

W (CA475/2021) v R [2023] NZCA 207 [2 June 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 WITNESSPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA475/2021[2023] NZCA 207BETWEEN W (CA475/2021)AppellantAND THE KINGRespondentHearing: 22 February 2023Court: Clifford, Wylie and Whata JJCounsel: H G de Groot for AppellantI R Murray for RespondentJudgment: 2 June 2023 at 11.00 amJUDGMENT OF THE COURTA The extension of time is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] Following a jury trial in the District Court at Hamilton, W was found guiltyand was convicted of three charges of sexual violation by unlawful sexual connectionof A, a 10 year old girl.1 W was a member of A's extended family. W was subsequentlysentenced by Judge Menzies to five years imprisonment.2[2] W now appeals his conviction, but not his sentence.[3] W challenges his conviction on the basis that his trial counsel,Ms Melissa James, failed to adequately represent him and, in so doing, deprived himof the reasonable possibility of an acquittal. W says, more particularly, that Ms James:(a) Failed to put into trial evidence of his offer to provide a voluntarysuspect DNA sample to police;(b) Failed to prepare him properly to give relevant evidence; and(c) Delivered a closing address that was unduly brief and which failed toadvance a defence theory as to why the Crown had not proved its case.[4] W requires an extension of time in which to bring this appeal. The appeal is42 working days out of time. The Crown did not oppose the extension of time. Giventhis, and because the delay is not major, the extension of time is granted.Background[5] A's father had been brought up by his aunt, Ms S, whom he regarded as hismother. And so Ms S, although biologically A's great-aunt, was in effect hergrandmother. W was in a relationship with Ms S. He was, in effect, A'sstep-grandfather at the relevant time. At that time Ms S and W, who had by then been1 The appellant's name has been anonymised throughout this judgment, despite it notbeing suppressed, because identifying the appellant by name would risk breaching thecomplainant's protections under ss 203 and 204 of the Criminal Procedure Act 2011 due to thenature of the offending and his relationship with the complainant. See H v R [2019] NZSC 69,[2019] 1 NZLR 675 at [54]–[58].2 R v [W] [2021] NZDC 8483 at [17].in a relationship for approximately 6 years, lived together with Ms S's three childrenaged 27, 24 and 16. A and her family — her father, mother and her two sisters —visited with Ms S and W regularly. They would also stay overnight with them.On occasion A and her sisters stayed with Ms S and W without their parents.[6] A alleged that on four occasions when she had been alone with W in thecouple's bedroom when she was about 10 or 11 years of age, he had put his handsdown her pants and inserted his fingers into her genitalia.[7] The offending came to light on 1 April 2018 when A received a text messagefrom W whilst on a family trip to the beach. She was alone on the beach with an aunt,while everyone else was swimming. She told her aunt about several priorinappropriate text messages from W and went on to also explain how she had beenabused by W on a number of occasions.[8] Later that day A's parents confronted W on the telephone about those messagesand the resulting concern they had that W may have sexually abused A. W and Ms Sthen came round to A's home, where there was a further confrontation.[9] The police were called and advised of the allegations of sexual abuse.They came to A's home, and asked W to see his phone. W said the phone was chargingat his home. The police went to W's home where he gave his phone to the police.While doing so W admitted to having deleted the messages with A from his phone.[10] The police later obtained the details of the messages pursuant to a productionorder.[11] The messages read:Saturday, 31 March 2018A Hi [W] is that u messaging me on messenger?B Yes I got a message from [A] is that youA Yeah I can't message u on messenger bc it keeps on saying that I can'tmessage uB We will have to be careful on when message so work out a time tosuite us bothB [W] add friendA Want me to add uB Baby where's mum are you in bedA I think mum's gone somewhere and I am in bedB You and I Will have to hide our messagesA Why???B So that you and I read them onlyA Yeah but whyB Like if I was to say something personalA And why would I do thatB Baby I so want you do youA No goshB Ok baby good nite love youA ByeSunday, 1 April 2018B You awake babyA YeahB What u doingA NothingB U bye yourselfA NoB Huni u need to delete all our messages do it nowA WhyB Cause I don't want anyone else to see them darlingA WhyB Baby just do it mum will get angry with me and you do it please babyA Mum should know what u have been doing bc this is not okB Then you should stop text meA U shouldn't of sent those thingsW's trial[12] At trial, the Crown adduced evidence from A, her mother and her aunt, Ms S,other members of A's family and, in the usual way, police officers involved in the case.W was the sole defence witness.[13] The narrative of A's allegations against W was provided by the playing of A'selectronically recorded interview. A also appeared as a witness by way of video link.A's evidence in chief was focussed on the booklet containing the text messagesbetween W and A, and an explanation by A — relative to a scene diagram of W andMs S's home — of where she said the offending had occurred. As regards the textmessages, A in effect read those messages into the record, confirming they weremessages exchanged between her and W and the dates and times on which that hadoccurred.[14] A explained that when she had set up her Facebook messenger app she had saidshe was 18 years old to meet what she understood to be the age requirement for thatapp.[15] In her cross-examination of A, Ms James focussed on the circumstances inwhich A would stay with Ms S and W from time to time, including the various peoplewho would be at W and Ms S's home on those occasions, and aspects of the textmessages. As regards the former Ms James' purpose was to emphasise those visitswere family events in which W had a relatively minor role. As regards the latter,Ms James endeavoured to place those messages, and the names used by W whenreferring to A, into the broader context of their ordinary, day to day, extended familyrelationship.[16] A's mother and father, and A's aunt, in their evidence in chief, confirmed thecircumstances in which A's allegations had come to light and subsequent events.A's mother gave evidence of the general circumstances in which A would stay with Wand Ms S, including a number of occasions when she stayed there without her parents.She confirmed that Ms S was principally responsible for minding the children whenthey were staying with her and W.[17] In her evidence in chief Ms S confirmed that although, generally, A and hersisters would only come into her and W's bedroom when they were both there together,there were occasions when W might be in their bedroom with A and her sisters, albeitbriefly, when she was not there.[18] Ms S confirmed she was responsible for her grandchildren when they stayedwith her and W. She also confirmed W worked weekdays, finishing around 5.00 pm,and that she worked Monday to Thursday, from 1.45 pm to 11.00 pm. A and her sisterswould visit their home in the evenings when she was at work, but after W had returnedfrom work.[19] In his evidence in chief W confirmed, in fairly general terms, his workarrangements, that A and her sisters, and their parents, were regular visitors and that,occasionally, the girls visited without their parents. He was, he said, never alonewith A.[20] As for the text messages, W explained he had come across something on"Messenger" in A's name which attributed her date of birth as being in 1999 and thathe had messaged her to ask whether what he had "come across" was a message fromher. W went on to unsuccessfully endeavour to explain — in response to questionsfrom Ms James — the context and meaning of the exchange of texts. The followingexchange evidences the difficulties he had in doing so:Q. Blue message, the first one? "You and I will have to hide our messages".What do you say about that?A. Well, I knew her gra – her mum would not like being me messaging her atall.Q. And why would you think her mum would not like youA. Well, she'll get very, very angry with both of us.Q. And what makes you say that?A. She, she's that type of woman, she would. She's get angry and I guess shehas a right to protect her daughter but I wasn't doing anything wrong.Q. But why do you say she would be angry with you?A. I don't know, I really don't know. I can't answer that question.Q. All right, so the next question we have is a yellow one from [A] who'sasking you: "Why"?A. Yes.Q. And then the next blue message: "So that you and I read them only", whywould you say that to [A]?A. Um, well, 'cos I said, there's no reason, I had nothing to, to, ah, to, muchto say to her about messages. I just know that I shouldn't be message her orMum shouldn't be seeing them and unfortunately, I messaged her.[21] In cross-examination W accepted the possibility that he and A had been alonetogether in his and Ms S's bedroom as the following exchanges record:(a) Q. If people were to say that you were alone with [A] in thatroom, even for only a short period of time, would that be a lieor would that be true?A. Depends, I mean I — it could've been, I mean I could've beenin there with her but very, very short time, I mean I would'vejust gone and got my phone and — or put my phone here oncharge and she would've just gone past or something like thatand that would made us been in the bedroom on our own, butI was in there for a minute and out again 'cos I used to put myphone on charge.Q. Right so you accept that it's possible that you were in the roomalone?A. It's possible.(b) Q. And before when my friend was asking you about whetheryou did each of these acts on these four occasions, a numberof times you said: "Couldn't've happened, didn't happen"?A. That's correct.Q. But in fact it could've happened couldn't it?A. Nah, could not have happened.Q. Because the girls were often in your room?A. The girls –Q. Yes.A. – were often in my room.Q. And [A] would be in there by herself wouldn't she?A. No.Q. And you'd be in there with her?A. Not with her as such.Q. What do you mean by that?A. Well I'll be doing something else, like I'd be doing – takingthe phone or picking up clothes or passing through.Q. But you'd be alone with her in the room wouldn't you?A. For the minute.[22] Against that background we consider the three grounds upon which W appealsincluding, as relevant, by reference to the evidence he and Ms James provided for thisappeal by way of affidavit and, at the hearing of the appeal, in their evidence in chiefand under cross-examination.Analysis[23] W advanced his appeal principally in reliance on a central proposition, namelywhat he said was the absence of an opportunity for him to have offended against A asalleged. In his affidavit he asserted Ms James had failed to adduce evidence he hadprovided of that lack of opportunity, and provided examples. He said, more generally,he had not been properly prepared to give his evidence, particularly his evidence oflack of opportunity, at trial. In submissions, for W, Mr de Groot argued Ms Jamesfailed to put the case for W of lack of opportunity, linking that to her failure to adducerelevant evidence.[24] In our view, the difficulty that argument faces is that given (i) the content ofthe messages W sent to and received from A, (ii) the context in which they weredisclosed by A to her aunt and in turn her parents, (iii) W's reactions at the time,including his action in deleting those messages from his telephone and being unableto explain why he had done so, and (iv) more generally his inability to address theadverse inferences that the messages almost inevitably gave rise to, meant that thosemessages were the central issue at trial rather than any question of limited opportunity.[25] As to opportunity, the evidence at trial did reflect W's limited role andresponsibility in and for the minding of the children, including A, when they werevisiting. That evidence, generally, confirmed Ms S was the responsible grandparent.But, and at the same time, Ms S herself acknowledged there would have beenoccasions, infrequent though they may have been, and of relatively limited duration,when W would have been alone with A. Ultimately W himself in cross-examinationhad to concede that, and also that there were occasions more generally when he wasat home when the children were there and when Ms S was not.[26] Generally, it is not unusual for intra-family sexual offending against childrento occur in an overall context of day to day family life and of relatively limitedopportunities for solo and unobserved interactions. But juries find, notwithstanding,such offending does happen.[27] In our view, it would not have been possible for Ms James to adduce theevidence that she did from W, nor to cross-examine Ms S in particular, without havingbeen adequately prepared in the way her affidavit reflected. Notwithstanding W'saffidavit evidence, and following cross-examination, we were not persuaded that anyof the examples to the contrary W sought to advance were persuasive. Ms Jamesprovided us with evidence as to her discussions and consultation with W, as well asher preparation for trial. There were numerous meetings between Ms James and W,and the issues were canvassed thoroughly. Ms James made notes at the time of eachof these meetings as to the content of these discussions. We have read these notes andthey provide further support for her account of her preparation, and extensiveconsultation with W. We note that Ms James also provided an account of each of theexamples provided by W in his affidavit or repeated via his viva voce evidence.Ms James explained how some of the examples were not raised with her prior to trial,but those that were, she had addressed and considered prior to trial.[28] In her closing address Ms James covered the issue of opportunity alongside theother issues at trial. Other counsel may have chosen to do so in a slightly differentway. More emphasis may have been put on the issue of opportunity. Had that beenthe trial tactic, the prosecution may then have sought to adduce relevantcounter-intuitive evidence.[29] The real contest here before the jury was as to their assessment of theimplications of the messages W exchanged with A, in the context of the balance of theavailable evidence. There was no evidence available for Ms James to build a firmplatform to rebut the inevitable and materially incriminating inferences thosemessages carried.[30] It follows that we reject the propositions that Ms James failed to prepare Wproperly to give relevant evidence and delivered a closing address that was undulybrief and which failed to advance a defence theory as to why the Crown had not provedits case.[31] Finally, we do not consider there is any significance, on appeal, in thepossibility that W may have advanced evidence he had offered a voluntary suspectDNA sample to police. There was never any request from the police for such a sample,nor any suggestion that one may have been relevant. Any such evidence would, atbest, have gone nowhere.[32] We dismiss W's appeal against his conviction.Result[33] The extension of time is granted.[34] The appeal is dismissed.