A.S. v New Zealand Police

JurisdictionNew Zealand
CourtHigh Court
JudgeToogood J
Judgment Date18 March 2014
Neutral Citation[2014] NZHC 503
Docket NumberCRI-2013-404-300
Date18 March 2014

[2014] NZHC 503

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2013-404-300

Between
“Alan Shore”
Appellant
and
New Zealand Police
Respondent
Appearances:

K Maxwell for Appellant

B Hamlin for Respondent

Appeal against conviction on assault and indecent assault charges on the grounds that trial counsel did not give the appellant the opportunity to give evidence in his defence — appellant had indicated pre-trial that he wished to give evidence — his defence was that one of the assaults was self-defence and that the complainant had fabricated allegation of indecent assault — counsel was concerned that previous convictions (including for assault of same complainant) would be raised but prosecution had not given notice of its intention to rely on propensity evidence — at end of prosecution case, appellant did not react when asked if he wished to give evidence and indicated to the Judge that there would be no defence evidence — defence indicated no evidence would be given — circumstances were such that conviction was inevitable — whether appellant had been given an opportunity to make an informed election on whether to give evidence.

Held: This case underlined the importance of defence counsel in a criminal trial obtaining clear written instructions from a defendant on whether the defendant should give or call evidence. Counsel were under a duty to advise the defendant on the advantages and disadvantages, and the potential implications, of their election. Counsel had to express their opinion as to the appropriate decision, but make it clear that the final decision about giving or calling evidence had to be made by the client.

G's concern about the prejudicial effect of cross-examination on S's previous convictions for assault and threatening behaviour may have been misplaced. G confirmed that the prosecution had not given any notice that it intended to rely on S's previous convictions as propensity evidence, so it was unlikely that evidence of his criminal history would have been admissible.

In appeals based on error by trial counsel, the Court was required to decide whether an error was made and, if so, whether there was a real risk it affected the outcome of the hearing. Such questions were posed to help the Court to determine the overall issue of whether there had been a miscarriage of justice. If there had been an error, an appeal would be successful only if the appellant could establish a real as opposed to a speculative risk of an unsafe verdict and showed that the impugned conduct of counsel had clearly caused that risk ( Sungsuwan v R).

Counsel's duty was to put before the client, all the advantages and disadvantages of giving evidence to ensure that the client made an informed choice in the circumstances. The duty extended as far as offering advice about which course was appropriate, but it had to be made entirely clear that the decision whether or not to give evidence was that of the client and that the client could reject counsel's advice.

In appropriate cases, the circumstances might be such that counsel had a duty to advise a defendant that conviction was inevitable unless defence evidence was given ( McNaughton v R). This was likely to be the case where there was a line of defence open to the defendant but no evidence before the Court to support it and merely putting the defendant's version of events to a witness in cross-examination might not be sufficient.

A Judge would have afforded counsel an opportunity to confer with her client at the close of the prosecution case, including by retiring briefly if necessary. But G did not seek that opportunity. She neither advised the appellant on the prospects of conviction having regard to the way in which the complainant had given evidence, nor that she obtained a clear instruction from S that, contrary to her prior understanding, he did not wish to give evidence.

The uncertainty between G and S would have been avoided if G had taken the rudimentary step of requiring her client to sign a written instruction which noted the advice counsel had given and which confirmed the client's election about giving evidence ( Chambers v R).

As a result, S did not actually make a choice about giving evidence, let alone an informed one. Further, in the particular circumstances, G was under a duty to ensure that her client understood that the state of the evidence at the close of the prosecution case meant his conviction on both assault charges was inevitable unless he gave evidence, to contradict that of the complainant, which might have raised a reasonable doubt in the mind of the Judge.

While there had been evidence tending to confirm the complainant's allegations, it was not unequivocal and the accusation by S that P fabricated her evidence because of his threats to remove the children was not wholly implausible. Moreover, S had maintained prior to the hearing that he wished to give evidence and G confirmed that she understood those to be his instructions when the trial began.

The evidence fell well short of establishing that S made an informed decision to change these instructions to counsel. It was S's right to give evidence if he chose to do so, even if there could have been no certainty that he would be acquitted as a result. He was not given an opportunity to exercise that right.

Convictions quashed.

Charges remitted to the DC for retrial.

REASONS JUDGMENT OF Toogood J

Introduction
1

This case underlines the importance of defence counsel in a criminal trial obtaining clear written instructions from a defendant on the important and often difficult issue of whether the defendant should give or call evidence. Counsel are under a duty to advise the defendant on the advantages and disadvantages, and the potential implications, of their election. Counsel should express their opinion as to the appropriate decision, but make it clear that the final decision about giving or calling evidence must be made by the client.

2

Immediately after hearing evidence and counsel's submissions in respect of this appeal against conviction on two assault charges, I allowed the appeals and remitted the case to the District Court for rehearing. These are my reasons for doing so.

3

I make an order 1 forbidding publication of the appellant's name on the grounds that publication might lead to the identification of the complainant whose name is automatically suppressed. 2 In this judgment the appellant is referred to as ‘Alan Shore’ or ‘Mr Shore’. The complainant is referred to as ‘P’.

Procedural background
4

On 10 June 2013, following a summary defended hearing before Judge Russell Collins in the North Shore District Court, Alan Shore was convicted of indecent assault and, being a male, assaulting a female. The complainant, P, was the appellant's ex-wife and the mother of their two children. Mr Shore was subsequently sentenced to imprisonment for two years six months on the charge of indecent assault and to a concurrent term of three months' imprisonment on the charge of assaulting a female.

5

The grounds set out in the Notice of Appeal were that trial counsel did not follow Mr Shore's instructions or allow him to give evidence in his defence, and that she did not say the things that Mr Shore wanted her to say.

6

At the hearing, Mr Shore and his trial counsel, Ms Liesje Garraway-Lina, were cross-examined on the affidavits they had filed concerning the circumstances in which Mr Shore gave counsel his instructions, and on the course of the District Court hearing.

7

To explain more fully the grounds of appeal and my reasons for quashing the convictions, it is necessary to set out the factual background to the prosecution, and the Judge's findings.

Background facts and findings
8

On 19 December 2012, the Police were called to P's home. P and Mr Shore were engaged in a heated argument at the time the Police arrived. After P made a complaint of assault, Mr Shore was arrested. The Police officers who attended described Mr Shore as hostile towards them and he was charged with resisting Police, to which he later pleaded guilty.

9

P gave evidence at trial that, although they were no longer living together, she had agreed to collect Mr Shore from a work function and let him sleep on her couch. She said he was intoxicated and made unwanted and forceful sexual advances towards her, which included throwing her onto the couch and holding her down by lying on top of her. She said that her trousers were ripped off and thrown across the room during the struggle but that Mr Shore did not remove any of his clothing at any time. She said she screamed out and things came to an end. It appears that neighbours called the Police. An attending Police officer found on the living room floor a button which had become detached from P's trousers.

The District Court Judge's decision
10

In his oral decision, Judge Collins noted that P was a careful witness who was not dramatic in any way and did not exaggerate her complaints against Mr Shore. He said she became angry when it was suggested to her in cross-examination that she was not telling the truth....

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1 cases
  • Stewart v R
    • New Zealand
    • Court of Appeal
    • 14 June 2017
    ...NZCA 176. Nightingale v R [2010] NZCA 473 at [12]. Chambers v R [2011] NZCA 218 at [15]. W v R [2012] NZCA 238 at [26]. Shore v Police [2014] NZHC 503 at [1]; and Din v R [2015] NZCA 316 at We do not accept the evidence of Mr and Mrs Stewart and Mr Friend that Mr Stewart was given no choice......

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