A.S. v New Zealand Police

JurisdictionNew Zealand
JudgeToogood J
Judgment Date18 March 2014
Neutral Citation[2014] NZHC 503
Docket NumberCRI-2013-404-300
CourtHigh Court
Date18 March 2014
Between
“Alan Shore”
Appellant
and
New Zealand Police
Respondent

[2014] NZHC 503

CRI-2013-404-300

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

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.

Appearances:

K Maxwell for Appellant

B Hamlin for Respondent

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. The Judge said he “viewed her narrative against the undisputed facts in the case as being inherently credible” and said that “there was no suggestion of anything which would make it inherently incredible.” 3 The Judge noted that P's narrative was consistent with the actions of the neighbours in calling the Police and that her evidence was supported by the finding of the button. The Judge concluded that there was no alternative explanation as to how the button was detached from her trousers other than the one she provided.

11

The Judge noted that it had been put to P in cross-examination that what in fact had occurred was an argument between Mr Shore and P because Mr Shore had raised questions about P's care of their children and had made threats to involve Child, Youth and Family and the Police. He recorded that those propositions had been rejected by the witness and said that there was no evidence to support the allegation that she had made up the complaint for those reasons.

12

Mr Shore did not make a statement to the Police but commented that no one would believe P's allegations. He did not give or call evidence at the trial.

Findings on appeal as to the involvement of trial counsel
13

After having read the affidavits filed by both Mr Shore and Ms Garraway in respect of the appeal, and having had the advantage of seeing them cross-examined, I am satisfied that there is no substantial disagreement between them as to the circumstances in which Ms Garraway took instructions, prepared for the hearing and provided advice and representation to Mr Shore.

14

When Ms Garraway first took instructions she noted that the appellant said that P's story was fabricated. Mr Shore told counsel he accepted that he had grabbed P's shoulders when she was hitting him on the chest, after he had threatened to take the children from her because she often left them by themselves. Ms Garraway took more detailed instructions from Mr Shore in a lengthy telephone conference a few days before the defended hearing. It is clear from her file that she prepared diligently for the defended hearing, including typing up a note summarising Mr Shore's instructions to be used as an aide memoire by her in the event that Mr Shore should be called as a witness. Counsel regarded her handwritten notes of

the detailed instructions received by telephone as her client's brief of evidence. She also prepared notes for cross-examination of the complainant and the other prosecution witnesses
15

I accept Ms Garraway's evidence that prior to the hearing she advised Mr Shore of the consequences of his giving evidence, including the prospect that he would be cross-examined on his previous convictions for assaulting P, threatening behaviour and some 20 offences involving dishonesty.

16

Although Mr Shore complained that he had been “told” by...

To continue reading

Request your trial
1 cases
  • Stewart v R
    • New Zealand
    • Court of Appeal
    • June 14, 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......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT