W (CA272/2017) v R [2018] NZCA 11

W (CA272/2017) v R [2018] NZCA 11 [12 February 2018]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA272/2017[2018] NZCA 11BETWEEN W (CA272/2017)AppellantAND THE QUEENRespondentHearing: 16 November 2017Court: Brown, Courtney and Toogood JJCounsel: L A Andersen and C M Andersen for AppellantS K Barr for RespondentJudgment: 12 February 2018 at 11.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B Order prohibiting publication of name, address, occupation oridentifying particulars of appellant pursuant to s 200 of the CriminalProcedure Act 2011.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In March 2017 the appellant, Mr W, stood trial on 14 charges of sexualoffending against his stepdaughters over a nine-year period. He was convicted of allcharges and sentenced to 18 years' imprisonment with a minimum period ofimprisonment of 10 years.1 Mr W appeals his conviction on the ground ofmiscarriage of justice resulting from trial counsel error in:(a) failing to cross-examine in accordance with Mr W's instructions; and(b) failing to properly outline the defence case in closing by makingsubmissions that had no evidential basis, leading to counsel beingcorrected by the trial Judge.[2] In an appeal based on miscarriage of justice resulting from counsel error, theassessment as to the risk of a miscarriage of justice having occurred is ultimatelyfocused on the outcome of the trial. In R v Sungsuwan Gault J, writing for themajority of the Supreme Court, observed:2[66] There will be cases in which particular acts or omissions of counselmay in retrospect be seen to have possibly affected the outcome but theywere deliberately judged at the time to be in the interests of the accused. Insome cases the accused will have agreed or acquiesced — only to complainafter conviction. Where the conduct was reasonable in the circumstances theclient will not generally succeed in asserting miscarriage of justice so as togain the chance of defending on a different basis on a new trial. Normally anappeal would not be allowed simply because of a judgment made by trialcounsel which could well be made by another competent counsel in thecourse of a new trial.The offending[3] The complainants, C and T, were aged six and three when their mother, K,began a relationship with Mr W in 2005. At that time they were living with K andtheir two older brothers. Mr W regularly stayed overnight on weekends and, in2010, moved in with the family. Soon after Mr W moved in, K began workingcasually at the weekends. She would often leave the complainants with Mr W when1 R v [W] [2017] NZDC 8856.2 R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730.she was at work, and sometimes he took them with him to his work premises wherehe had a panel-beating business.[4] The relationship between K and Mr W was a difficult one. Mr W left andreturned several times. By August 2014, however, he had left permanently and takena flat. C and T continued to visit him and would stay overnight, notwithstanding Cmaking excuses not to go.[5] The complainants gave evidential video interviews (EVIs) and gave evidenceat trial. C said the offending started when she was seven or eight. She describedMr W taking her into a bathroom at his work premises and putting his fingers in hervagina, which formed the basis for a representative charge of unlawful sexualconnection (charge 1). She then described numerous instances of offending in thebedroom that Mr W shared with K. She said he would call her into the room in themorning and ask for a hug. On those occasions there was digital penetration, forcedoral sex and rape. These occasions formed the basis for representative charges ofunlawful sexual connection (charges 2 and 4) and of rape (charge 6).[6] C also described numerous times when she and T stayed with Mr W at his flatfollowing the break-up of his relationship with K. C slept in his bed with him andthose occasions involved digital penetration, oral sex and rape, forming the basis forrepresentative charges of unlawful sexual connection (charges 3 and 5) and rape(charge 7). C also described the last time that Mr W offended. That was a day in2015 when she had stayed at his house because she had a doctor's appointment in themorning. She woke to find him touching her bottom with his hand. She pushed himoff, got dressed and told him to take her home. This incident formed the basis of aspecific charge of indecent assault (charge 8).[7] T also described Mr W starting offending against her when she was agedseven or eight. He would ask for a massage and then touch her bottom and vaginalarea. These incidents were the basis for a representative charge of indecent assaulton a girl under 12 (charge 9). When T was nine Mr W began digitally penetratingher vagina during these incidents, which founded the representative charge of sexualviolation by unlawful sexual connection (charge 10). T described a specific incidentin Mr W's caravan when he put his finger in her vagina and made her masturbatehim. This incident was the basis for charges of unlawful sexual connection andindecent assault on a girl under 12 (charges 11 and 12). When T was aged betweennine and 11 Mr W raped her twice at her family home. This was the basis for arepresentative charge of rape (charge 13). T also described continued offending atMr W's flat during 2014 and 2015 involving indecent assault by touching her bottomusing the pretext of her massaging him. This formed the basis for the representativecharge of indecent assault on a girl under 16 (charge 14).[8] In January 2015 C told her mother that she did not want to go to stay withMr W because he touched her. K asked T if that had happened to her, and Tconfirmed it had. However, K did not believe the complainants and they continuedto stay with Mr W at his flat. Eventually in June 2015 T told a school friend, M, whoimmediately sought help. Both C and T were interviewed by a social worker. Atthat time C denied any abuse. A week later, however, she disclosed the abuse to hermother in the presence of a family friend. The EVIs were conducted shortlythereafter.Mr W's defence at trial[9] Mr W maintained that C and T were fabricating the abuse. He denied anywrongdoing during his police interview, suggesting that one of the complainants'brothers may have touched them and that K had put the complainants up to makingthe allegations.[10] Mr W initially stood trial in December 2016, at which Mr W was representedby a Mr Westgate. C and T gave evidence and were cross-examined at some lengthabout the details of each allegation. However, that trial was aborted following theinadvertent failure to edit out prejudicial material from M's statement.[11] Mr More was assigned the case in December 2016 and represented Mr W atthe second trial in March 2017. He met with Mr W twice prior to trial. These werereasonably lengthy meetings. In addition, Mr W emailed Mr More frequently;between 13 January and 27 February 2017, Mr More said Mr W sent 28 emails, anumber with attachments. These emails detailed Mr W's view of what he consideredto be inconsistencies in the complainants' statements.[12] As well as considering the points that Mr W had raised in his emails,Mr More reviewed the police disclosure, viewed Mr W's police interview, the EVIsof the complainants and the video interview of M, and read the evidence from thefirst trial.[13] Prior to the trial Mr W told Mr More that he did not wish to give evidenceand on the fourth day of trial, after both complainants had been cross-examined, heprovided written instructions confirming that. The trial ran for six days andMr More met with Mr W at least once a day to discuss the approach Mr More wastaking to the trial. He said that Mr W did not raise any objection with him as to theconduct of the trial.First ground of appeal: errors in cross-examination[14] Mr W asserts that Mr More failed to conduct his defence in accordance withhis instructions regarding cross-examination. In Hall v R this Court identified theobligation to advance a defence based on the accused person's version of events asone of the fundamental decisions on which trial counsel's failure to followinstructions will generally give rise to a miscarriage of justice.3 There is, however, adistinction between counsel's obligation to advance a defence in accordance with thedefendant's version of events and specific instructions that must be followed. InHall this Court said:[69] In an appeal based on a failure to follow instructions as to thesefundamental decisions, the focus will be on whether, as a matter of fact,there was a failure to do so. "Instructions" in this context mean a cleardirection as to how the trial or an aspect of it is to be run. This Court in R vS drew a distinction between "an expression of the client's views on aparticular matter" and "directions to be observed and implemented bycounsel".(Footnotes omitted.)3 Hall v R [2015] NZCA 403 at [65].[15] Relevantly for present purposes, decisions regarding the style and ambit ofcross-examination are not regarded as a fundamental decision where a failure tofollow a client's instructions will generally make the trial unfair.4 In S (CA361/2010)v R it was noted that the Court will ordinarily be slow to second-guess defencecounsel who must make immediate important decisions about the extent of cross-examination, noting that such decisions were often based simply on instinct andexperience.5 There is a degree of latitude accorded to counsel as to how to conductcross-examination.6 Thus, the decision as to how cross-examination should beapproached is, quintessentially, the province of counsel who is best placed by dint oftrial experience to determine the most effective approach in any given case.Failure to cross-examine on inconsistencies[16] In his affidavit filed on appeal, Mr W identified a number of inconsistenciesbetween the complainants' EVIs and their evidence at the first trial, including anumber of assertions made for the first time at the first trial. Mr W considered thatthese inconsistencies undermined the complainants' credibility and that they hadbeen "significantly and effectively traversed in the first trial" by Mr Westgate. Hesaid he expected that Mr More would do likewise.[17] Mr More had viewed the EVIs of the complainants and the interview with M,and considered that the complainants were compelling and M credible. He formedthe view that the case against Mr W was very strong. In his affidavit for thepurposes of the appeal, he explained that, having reviewed the notes of evidencefrom the first trial, he considered that Mr Westgate had made little headway incross-examination with either of the complainants. He came to the view thatrepeating this technique was not the best approach in the circumstances becausethere was no reason for either complainant to change her position and, havingalready been cross-examined, the girls were likely to withstand similarcross-examination a second time around. Moreover, a cross-examination thatfocused on the details of the various allegations risked reinforcing their evidence inthe minds of the jury.4 At [61] and [65].5 S (CA361/2010) v R [2013] NZCA 179 at [60]. See also Hall v R, above n 3, at [75].6 Loffley v R [2013] NZCA 579 at [53][18] In cross-examination before us, Mr More said that he told Mr W that hewould be running the trial differently to the way Mr Westgate had, including notcross-examining each of the complainants on the allegations in the level of detail thathad occurred at the first trial. As already noted, Mr W made no objection to the waythe trial was being run at the time.[19] We have not seen the complainants' EVIs, but we have reviewed thetranscripts of each. We have also reviewed the notes of their cross-examination atthe first trial and, in our view, Mr More's assessment of the effectiveness of thatcross-examination is correct. Little headway was made with either complainant. Tothe contrary, more details were elicited. On one view these further details might, inthemselves, have been regarded by the jury as inconsistencies, but we consider itmore likely that they would simply have been viewed as further details that emergednaturally from the additional questioning.[20] In these circumstances, we see no error in Mr More's assessment of the mostappropriate approach to cross-examination of the complainants. Thecross-examination that was undertaken put fairly to the complainants that Mr Wdenied all of the offending. It was put to them that they had made up the allegations.Some specifics were addressed, such as the lighting in the caravan, the complainants'recollections as to when the offending began, when K had begun working at theweekends, the sleeping arrangements at Mr W's flat and the likelihood of him beingable to carry C up the stairs to the bedroom in the flat, as she claimed, given his badback. But in our view this was not a case in which cross-examination on all thedetails of the allegations would have advanced matters; we agree with Mr More that,based on the cross-examination in the first trial, the likely outcome of that approachwould have been to reinforce the complainants' account rather than undermine it.Failure to put specific matters[21] Mr Andersen for Mr W also argued there were specific matters that shouldhave been put to the complainants and to M in cross-examination that were not.(a) M's statement[22] First, Mr Andersen objects to the fact that M's statement was admitted byconsent, submitting that she should have been called and cross-examined. Mr Wsaid he had identified inconsistencies between M's and T's evidence at the first trialand considered that they could be used to undermine T's credibility. In particular, atthe first trial T had said that, when speaking to M, she did not use the word "rape".But in M's statement, she said that T had told her that she had been raped. Further,at the first trial M said T told her she had been raped in a caravan on holiday. ButT's evidence was that the incidents of rape did not occur then.[23] We find it difficult to see how this point could have advanced Mr W'sdefence. There was no dispute that T had complained to M about Mr W sexuallyabusing her. In the circumstances of the case, any inconsistency between what Tsaid in evidence and what M heard from T would almost certainly be attributable toM's being mistaken on some points. T's own evidence was internally consistent; shehad not said in either her EVI or at trial that Mr W had raped her in the caravan but,rather, that rape had occurred at another location. When cross-examined on thispoint at the first trial, T said M had some of the details muddled and rejected thesuggestion that she had been lying, saying she did not recall making some of thestatements that M attributed to her.[24] More significantly, we agree with Mr More's assessment that having M'sevidence adduced by way of a written statement on an agreed basis was lessprejudicial to Mr W than having M give evidence, which would have included herdescription of how distressed T had been when making the disclosure to her.(b) Bank statement[25] The second issue it is said Mr More should have addressed was a bankstatement showing that Mr W was at an ATM machine on the morning of the lastinstance of alleged abuse against C. This issue did not arise at the first trial becauseit was only during that trial that the exact date and time of the doctor's visit waspinpointed. Mr W had evidently obtained the bank statement subsequently andemailed it to Mr More. However, Mr W did not produce the bank statement for thepurposes of the appeal.[26] C had given evidence that she had awoken at 8.00 am to find Mr W touchingher bottom. Mr W says that the bank statement showed that he was at the ATMearlier than that. But he was not specific as to the time and, without seeing the bankstatement, we cannot reach any conclusion as to its significance.[27] Mr More said that his decision not to put the bank statement to C was basedon the fact that Mr W did not want to give evidence. The bank statement could onlybe produced through Mr W himself, and Mr More therefore considered it better toleave the issue altogether. Mr Andersen submitted that the use of the bank statementdid not necessarily require Mr W to give evidence; the document could have beenput to C and it would only have been if she did not accept its implication that Mr Wwould have had to make an election as to whether to give evidence. We do notaccept that submission. Because it was likely C would reject its implication, puttingthe document to C carried a real risk that Mr W would have had to give evidence toaddress this issue, thereby exposing himself to cross-examination on other issues.We therefore consider the decision of Mr More not to cross-examine C on the bankstatement was reasonable, and did not give rise to a miscarriage of justice.(c) Mr W's workshop[28] The third point Mr Andersen criticises Mr More for not tackling incross-examination was the suggestion by Mr W that C was never alone with him athis workshop, but rather always in the company of T. There is nothing in this point.Sexual offending, notoriously, occurs often when other people are close by. Indeed,most of the offending was said to have taken place when at least both C and T werein the same house.(d) The length of the relationship with K[29] The fourth point related to the length of Mr W's relationship with K. Theallegations dated back to 2006 and Mr W now says that he did not begin a sexualrelationship with K until 2010 and did not move in until August of that year. Hetherefore had no opportunity to offend in the years 2006–2009, which should havebeen the subject of cross-examination. This point has no merit. Mr W said in his2015 police interview that he had a ten year relationship with K, which puts the startof the relationship at 2005. K also said in evidence that the relationship began in2005. Mr W could only advance this issue by giving evidence which he clearly didnot want to do.[30] Further, Mr More gave unchallenged evidence before us that during thecourse of the trial Mr W's instructions as to when the relationship began conformedwith K's evidence; it was not until after the trial, when Mr More was takinginstructions in relation to sentencing, that he asserted that the relationship had begunin 2010. Mr W gave no explanation for that change in date, and offered noindependent evidence to corroborate his assertion as to when the relationship started.(e) Positive statements about Mr W[31] Fifthly, Mr Andersen submitted that Mr More should have put to C that shehad made statements to both her high school dean and on a social media site praisingMr W for his love and support. However, we accept the submission from Mr Barrfor the Crown that essentially the same information was before the jury anyway; incross-examination, Mr More had elicited from C that she had generally had a goodrelationship with Mr W, and C had said herself during her EVI that he was a "niceperson". But in any event, it is very unlikely that the positive statements aboutMr W would have had any effect on the outcome of the trial because the jury heardexpert evidence from Dr Suzanne Blackwell that expressing affection towards anabuser was not inconsistent with abuse having occurred. The effect ofDr Blackwell's evidence would have been to neutralise the evidence elicited incross-examination.(f) "Admission" from the first trial[32] Finally, during cross-examination at her first trial, Mr Westgate had put to Cpart of her second statement to police in relation to charge 7. The followingexchange took place:Q. He asked you to recall the last time that you were raped. "I can'treally remember when this was but it was sometime this yearprobably [M suburb]." Is that what you said?A. Yes because he wasn't at my home address. He was living in [Msuburb] at that time.Q. Well again that never happened[?]A. Yeah, of course it never happened.Q. You say "probably [M suburb]" you're not sure is that what you'resaying?A. I don't exactly remember.[33] Mr Andersen submitted that the statement "[y]eah, of course it neverhappened" was either an admission that C was lying or a sarcastic answer and, eitherway, should have been the subject of cross-examination. We do not accept thissubmission. It is not helpful to take a single statement of this kind out of context; thewhole tenor of C's evidence from both trials, including under cross-examination, wasthat Mr W had sexually abused her, including by way of rape. She never resiledfrom that essential allegation. There are obvious possible explanations for heranswer including, as Mr Andersen has identified, that she was simply being sarcastic— which may have been understandable in the context of a lengthycross-examination in which it had been put to her numerous times already that theoffending had not occurred. There is also the possibility, as Mr Barr suggested, thatthe answer had been erroneously recorded. We see no realistic prospect thatcross-examination on this single answer from the first trial could have affected theoutcome in any way.Second ground of appeal: failure to put the case in closing[34] Mr Andersen identified four submissions in Mr More's closing address inrespect of which it was submitted there was no evidential basis and which provokedlegitimate criticism from the Judge, thereby prejudicing Mr W's defence. Thesesubmissions related to: when the offending against T began; whether there had beencollusion between the complainants; the lack of evidence as to ejaculation in relationto the incident in the caravan; and, whether when C was spoken to about T'sdisclosure she already knew that T had given a video interview. Mr More did notaccept that he made any submission without an evidential foundation.[35] Mr Anderson dealt with each of these as separate points and it is true thateach was the subject of separate submissions by Mr More in his closing. The Judgedealt with all four together, early in his summing-up and immediately after directingthe jury as to the nature of counsels' submissions, as opposed to evidence. Forconvenience, we set out the whole of the relevant part of the Judge's direction thatMr Andersen said criticised Mr More's closing submissions:Briefly at this point in time about counsels' addresses, I just wish to makemention of some matters. Mr More, in his closing on Friday, told you thatthe complainant [T] was clear that nothing had happened before thedefendant moved into [C Street]. Now that is a matter of evidence so,Mr Foreperson, ladies and gentlemen, I refer you to the evidence, thewitness, [T's] evidence from her evidential video interview at page 10 of thetranscript and onwards and in the transcript of her evidence in the witnessbox, page 62 onwards. You have regard to that evidence and you decide ifthat submission made by Mr More is correct or not. Mr More also told youin his closing that there was collusion between the complainants when theygave their respective video interviews. Well, that is a submission beingmade by him saying that there was collusion. The contention was not put incross-examination to either complainant by Mr More and if he intended tomake such a submission, it would need to have been put. It is a matter offact for you on [the] evidence but as I will say later to you when discussingthe evidential issues in this trial, that it appears to me that there is no directevidence of collusion here. Again Mr More said of the masturbation/oral sexincident [in the caravan] involving [T], and then made a more generalsubmission about both girls' evidence, that there would, and that there wasno evidence about semen. More particularly he said in relation to [T] that ifthere was this act of masturbation or oral sex, there would have had to havebeen ejaculation and semen, therefore, on [T's] hands. There is no evidenceof ejaculation or of semen.I am going to also direct you later on about inferences and your rights indrawing inferences but in order to draw any inference, it has to have anestablished factual basis. No questions were asked from the witnesses,particularly [T], as to whether the defendant had ejaculated. It is a matter ofevidence for you to decide but when I go back and say what I have said toyou earlier this morning, dealing with the case on the evidence does notentitled you to guess or speculate.Timing of abuse[36] The first complaint related to Mr More's submission in closing that "[T] wasclear in her evidence that nothing happened to her until after the defendant movedinto [C Street] ". This submission was based on T's statement incross-examination that:Q. So, and you've told us that everything that happened in eitherapart from [the incident in B town] which I'll leave for the momenthappened either at your mother's home in [C Street] or, after thedefendant left, his home in [M suburb]?A. Yes.[37] In the evidence that the Judge referred to on page 10 of the transcript of T'sEVI, what T had said was:Um I don't remember the exact age when it started, um, I was either 7 or8 years old, um, but before the age of 9 [38] We accept Mr Barr's submission that the Judge's direction was neither acorrection of Mr More nor a criticism. Nor was the submission made in closing byMr More without foundation. The Judge merely drew the jury's attention to anotheraspect of the evidence to provide a complete picture and left the overall assessmentof the evidence to the jury. We do not see that this could have created any prejudice.The submission of collusion[39] The second complaint relates to the issue of collusion. Mr Andersensubmitted that there was no direct evidence of collusion and that neither C nor T hadbeen cross-examined on the point. He submitted that the Judge saying that there wasno evidence of collusion had a "devastating effect", which was evident later whenthe Judge summarised the defence case as being based on collusion. Mr Andersenargued that, as a result, no effective defence was presented to the jury.[40] Mr More said in closing:The allegations are remarkably similar. Both girls, it was put to them,denied that they had discussed their evidence with each other. [I]t is implausible, at the very least, to say they would not then talk about, toeach other, what had happened. And then you will recall that when [T]subsequently disclosed the social worker , went to the home and spoketo [C], and [C] was adamant. She said firstly, "I know what [T] said". Shethen said, "I don't believe it, I trust the defendant". Now if she knew what[T] had said, because she hadn't seen the video disclosure, she and [T] hadspoken. And then later, a month or so later, then [C] makes her owndisclosure and the allegations are remarkably similar with the addition of theoral sex. So I suggest to you that you must have a reasonable doubt as towhether the girls were telling the truth when they said they had not spoken toeach other, and that there was collusion between them when they gave theirvideo interviews to the police.[41] Mr Barr argued that, in making his observation regarding the lack of directevidence of collusion, the Judge had misunderstood the defence case, perceiving thatcollusion was being alleged in the sense of the complainants having got together andplanned to make false allegations. Rather, Mr More's submission in closing wassimply that C and T were lying when they said they had never discussed the abusewith one another and suggested that their having done so accounted for the similarityin their allegations.[42] We accept that the effect of the submission made by Mr More was as Mr Barrdescribed. Further, there was an evidential foundation for Mr More's submission.T had conceded in cross-examination that she knew that C had disclosed the abuse totheir mother in January 2015. Further, when T made the disclosure to M, C told asocial worker that she knew what T had said; the social worker confirmed that C hadtold her she was aware of what T had alleged in her interview.[43] We agree that the Judge appears not to have appreciated the limited meaningin which Mr More was using the word collusion in the section of the summing up onwhich Mr Andersen relies. But later the Judge directed in accordance withMr More's submission, not criticising it and not undermining it. In the context of thepotential propensity effect of the complainants' evidence the Judge said:But you must consider and take note of any possibility of collusionwhenever that has arisen on the evidence. Mr More would argue that here ithas upon his submissions, although the two complainants denied havingspoken about it when questioned. Whether such collusion exists is a matterof fact for you to decide from the evidence. Mr More's submission, as Ihave said, is that there was, there had to have been I think he put it, and thathas to be looked at in light with the complainants[' evidence] that there wasnone and indeed no discussion at all until the first disbelieved statement inJanuary 2015.The defence says, however, that none of it occurred and it is all made up andthe two complainants have got together and concocted these similar falseallegations and that because of that collusion you cannot say that the patternor tendency is established.I warn you again about collusion and you need to look at that carefully andmake a finding on it. You have to make a finding on what Mr More hassubmitted to you in that regard.[44] And later still, when summarising the defence case, the Judge made it clearthat it was a matter of inference from C's knowledge of T's allegations and from theconsistency of their respective allegations that the complainants had talked to oneanother:The defence, as I have said, says the allegations are untrue and are made upand fabricated, that what they have said happened to each of them isimplausible and that when they said they had not spoken to the other, theywere not telling you the truth. I have said why it was the submission of thedefence that they turned against the defendant after he had walked out ontheir mother and broken the mother's heart. Mr More said that what each complainant has said is remarkably similar,the start of normalisation and the progression but he would say that that isbecause of them colluding and that each girl, at least by January 2015, knewof the other's complaint.In relation to the allegations being mutually supportive, Mr More says thatthe defence position is that the accounts have been fabricated. Not only hasthere been collusion but there has been a decision made that they would giveevidence and false evidence about it, they have made their stories up andthey have made them up and they have produced matching allegations. Ihave to say to you if that is a reasonable possibility, you should not rely onthe evidence at all of course because you would not be sure about the truth ofit.[45] In these circumstances, the clear tenor of the summing-up was not toundermine the defence case but rather to fully and fairly summarise it. It isabsolutely clear that Mr More's point, that the consistency of the allegations resultedfrom the fact that each complainant knew what the other had said, was before thejury and that if the jury thought that was a reasonable possibility they should rejectthe complainants' evidence. No prejudice can have arisen from this issue.No evidence of ejaculation[46] The third complaint relates to Mr More's assertion in closing that T's accountof being made to masturbate Mr W was not credible because she did not mentionejaculation:[I]f the defendant made [T] masturbate him, he would have ejaculated, therewould have been semen on her hands, there would have been semen, maywell have been on other parts of her body, and semen on the bedding. Andthere was, you have heard, no evidence at all from either of the girls aboutany semen in relation to any of the incidents which they have told you about.And in my submission that is a very telling factor, that is the sort of thing, Isuggest to you, a young girl would remember .[47] This criticism is well founded. Masturbation would not necessarily have ledto ejaculation, and there was therefore no basis on which to ask the jury to ascribeany significance to the absence of such evidence. But this was hardly a point ofmajor significance and there is no reason to suppose that it had any effect on thejury's consideration of the evidence.The issue of C's knowledge of T's EVI[48] The final complaint concerned the Judge's observation about Mr More'scomment on whether C had knowledge of T having made an EVI at the point in timewhen C was interviewed by the social worker. The Judge commented as follows:[11] Finally on this point, Mr More told you that when the [socialworker] spoke with [C], [C] had been told that her sister had been abusedand had made a video interview. I have to say that my reading of theevidence is that there was no evidence that [C] had been told that [T] hadmade a video interview .[49] Mr Anderson's criticism was based on the proposition that there was noevidence that C had been told that T had made an EVI.[50] However as Mr Barr explained, the Judge's "correction" of Mr More'sclosing actually accorded with the defence view of the evidence. Mr More hadpointed out to the jury that C had told the social worker that C knew what T hadalleged, despite the fact that C was unaware of the contents of T's EVI. That isdemonstrated by the italicised phrase in the extract at [40] above. Consequently thedefence had invited the inference that C and T must have conferred.[51] In our view no possible prejudice arose. The Judge did not criticise Mr Moreand, in any event, reinforced to the jury that such evidential matters fell in theirprovince.Conclusion[52] We are satisfied that Mr More conducted the defence in accordance withMr W's broad instruction that the allegations were fabricated. He cross-examined onsome specifics that might have undermined the account but his decision not to cross-examine on all the apparent inconsistencies identified by Mr W was a matter for hisjudgment. He was particularly well-placed to judge the most effective approach incross-examination, having had the benefit of the notes of evidence from the firsttrial. The fact that he conducted the trial in a different manner from the wayMr Westgate had was not an error and nor did it result in a miscarriage of justice.[53] Save for the (minor) issue over evidence about ejaculation, we do not see anyerror in Mr More's closing address. The matters that the Judge addressed would nothave had the effect of prejudicing Mr W's position in the eyes of the jury. They wererelatively innocuous comments that were put fully in perspective by the Judge's latercareful summary of the defence case.[54] Overall, we are satisfied that no miscarriage of justice resulted from the waythe trial was handled.Result[55] The appeal against conviction is dismissed.[56] To protect the identity of the complainants, we make an order prohibitingpublication of the name, address, occupation and identifying particulars of theappellant pursuant to s 200 of the Criminal Procedure Act 2011.Solicitors:Crown Law Office, Wellington for Respondent