Nightingale S W v R Ca

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeAsher J
Judgment Date19 October 2010
Neutral Citation[2010] NZCA 473
Date19 October 2010
Docket NumberCA122/2010

[2010] NZCA 473



Asher, Potter and Asher JJ


Steven Wearne Nightingale
The Queen

W C Pyke for Appellant

M D Downs for Respondent

Appeal against conviction — defendant convicted of murder and sentenced to life imprisonment — allegation that trial counsel pressured defendant not to give evidence and that the advice not to testify was deficient — consideration of role of trial counsel when advising clients not to give evidence — whether testimony of a witness was fresh evidence and should have be admitted — whether a miscarriage of justice had occurred.

Held: Where counsel deprived an accused of the choice whether to give evidence, an appellate Court was likely to find that there had been a miscarriage of justice. The proper role of counsel was to inform the client of all the advantages and disadvantages of giving evidence so that the client makes an informed choice. However, the decision as to whether to give evidence was the client's. The fact that the informed choice of an accused not to give evidence may with the benefit of hindsight have shown to be the wrong choice did not of itself amount to a miscarriage of justice.

M had expressed that he had held reservations about N's credibility in the eyes of the jury and of the impact cross-examination could have had if he had given evidence. The prosecutor would have had the opportunity to re-emphasize the series of assaults committed by N leading up to the murder and to also emphasize a number of inconsistencies in N's accounts given to the Police.

M had clearly discussed the issue with N and put forward the advantages and disadvantages. M had also provided N with sufficient time for him to consider the issue and had asked him to sign a detailed confirmation of his decision to not give evidence which M read to him and which had witnessed. There had been no undue pressure placed on N.

It was part of the role of trial counsel in a criminal trial to address with their client the issue of whether or they should give evidence. Often there was no clear right or wrong answer. Counsel's advice will be driven by the strength of theCrown case and the ability of the accused's evidence to improve the position of the defence. The Crown case had been very strong. N's ability to effectively answer such strong evidence was limited. There were arguable defences but there was also a chance those arguable defences could have been weakened by N giving evidence. N's account had also changed a number of times and continued to do so. There was a risk that it would continue to do so from the witness box, making the position worse. Therefore, there had been no error in M's advice not to give evidence.

The availability of Hepburn's account detailing H's comments after the incident seemed to indicate an acknowledgment of responsibility by H. It was however unlikely that H would have made such comments without anyone else present at the time also noticing them. Hepburn's evidence to the Police at the time had made no reference to the comments and there was no satisfactory explanation given as to why this evidence was not given to the Police at the time or prior to the trial. After cross-examination, her evidence was found not to be credible. Even if her evidence was to be believed, it fell far short of an admission by H. The evidence was neither fresh nor cogent and was inadmissible.

The appeal is dismissed.


(Given by Asher J)


The appellant, Steven Wearne Nightingale, has been convicted after a trial of one count of male assaults female, three counts of injuring with intent to injure, one count of aggravated burglary and one count of murder. He was sentenced to life imprisonment with a minimum term of 17 years. He now appeals against his conviction submitting that a miscarriage of justice arose at his trial because he accepted the advice of his trial counsel not to give evidence when he was pressured, and when that advice was deficient. He also asserts that there is fresh evidence available in the form of testimony from one Lorraine June Hepburn. His case is that if he had given evidence, and the additional evidence had been adduced, this could have made a difference to the result, and indeed that such evidence presented the only real prospect of an acquittal.


In September 2007 Mr Nightingale was living in an apartment complex at Waihi Road, Tauranga with his partner Gina Murphy and three young children. The deceased, Shane Donald Kurth, lived in a different apartment in the same complex.


At approximately 11am on Friday, 14 September 2007 Mr Nightingale began drinking at his unit with a number of other tenants in the complex, friends and family members. These included his partner Ms Murphy and her mother Angela Reiri, Robert Grace, Robert Moffett and Dion Honeycombe. Messrs Moffett and Honeycombe lived in the complex and Mr Grace lived nearby.


By 4pm considerable amounts of alcohol had been drunk and cannabis had been smoked. Mr Nightingale became argumentative and belligerent. He took exception to people leaving the unit and not wanting to stay on drinking. When Ms Reiri indicated she was going to leave with her seven year old son he began arguing with her and jostling her. When her daughter Ms Murphy intervened, Mr Nightingale punched Ms Murphy in the eye and about the head. She fell backwards and suffered swelling and a bloodshot eye.


Mr Moffett attempted to intervene. Mr Nightingale punched him in the side of the head with sufficient force to cause him to fall and become unconscious for a short period. After regaining consciousness Mr Moffett returned to the lounge and resumed drinking. He was bleeding from the ear.


Another friend took Mr Nightingale outside which enabled Ms Murphy to leave the house. Mr Nightingale then became angry with Mr Grace who was sitting at a table inside the unit. He went into the unit and punched Mr Grace who fell to the floor. He also kicked Mr Grace about the body. Mr Grace suffered a severe eye injury which caused him ultimately to lose the sight in that eye.


Mr Honeycombe then left the unit and spoke to other occupants of the complex in the communal carpark. Mr Nightingale stood outside the unit on the landing and shouted abuse at him. This lasted for several minutes and then Mr Nightingale walked down to the carpark and punched Mr Honeycombe about the face. Mr Honeycombe fell to the ground but managed to get up again, when he was again punched about the face and the head. Mr Honeycombe fell down and when he got up again Mr Nightingale threw him towards an open doorway. He suffered bruising and abrasions to his head, lip and body.


During the course of the afternoon Mr Nightingale had made threatening remarks about the deceased Mr Kurth, stating that he was going to assault him and “get him”. Mr Kurth lived at unit 9 and knew Mr Nightingale. Mr Nightingale then took a knife from the kitchen drawer and placed it in his clothing. At some time after 5pm he went down to Mr Kurth's unit. Mr Kurth was sitting there with Mr Honeycombe who had by that stage joined him. They were about to have a cup of coffee. Mr Nightingale entered Mr Kurth's unit forcing the door open with such force that it left an indentation on the side of the wall. He then struggled with Mr Kurth. He repeatedly struck Mr Kurth in the back and about his body with the knife.


Ultimately Mr Kurth suffered two stab wounds in the back and a number of slashing wounds to his back, neck and arm. The fatal wound was administered in Mr Kurth's left side from the back breaking one rib and chipping another. The blade of the knife had gone through the chest wall and penetrated two chambers of the heart causing rapid blood loss and death.


Stevens J in his sentencing notes recorded that there was a struggle between Mr Honeycombe and Mr Nightingale during which Mr Honeycombe fell to the ground. Mr Nightingale got up and ran from the unit.


Mr Nightingale surrendered himself to the Police the following day. He admitted striking Messrs Moffett, Grace and Honeycombe. He denied assaulting Ms Murphy although he admitted a physical altercation. He admitted being involved in an altercation with Mr Kurth.


The essential question is whether there has been a miscarriage of justice. The focus must be on the safety of the verdict. 1 Where counsel acts so as to deprive an accused of the choice of whether to give evidence an appellate Court is highly likely to find that there has been a miscarriage of justice. 2 The proper role of counsel is to put before the client all the advantages and disadvantages of giving evidence to ensure that the client makes an informed choice. 3 It is entirely permissible for counsel to offer advice about the appropriate course, and indeed that is the role of counsel. Nevertheless, it should be made entirely clear that the decision as to whether or not to give evidence is that of the client, and that the client may reject counsel's advice. The fact that the informed choice of an accused not to give evidence may with the benefit of hindsight have been shown to be the wrong choice will not of itself amount to a miscarriage of justice.

Complaints about trial counsel

At the outset of the hearing of the appeal there were in essence two limbs to the appellant's case. First there was the evidence of Mr Nightingale to the effect that he was pressured by his counsel Mr Paul Mabey QC not to testify. Mr Nightingale

filed an affidavit and was cross-examined. Mr Mabey and his instructing solicitor Mr Vivian Winiata also swore affidavits and were also cross-examined.

The second point raised was that the advice that Mr Mabey gave Mr Nightingale not to testify was wrong, as he had no real prospect of being...

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