A.S. v Police - [2014] NZHC 503

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF APPELLANT PROHIBITED BY ORDER UNDER S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-300 [2014] NZHC 503

BETWEEN "ALAN SHORE" Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 March 2014

Appearances: K Maxwell for Appellant
B Hamlin for Respondent

Reasons for
Judgment:

18 March 2014

REASONS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 18 March 2014 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

A.S. v NEW ZEALAND POLICE [2014] NZHC 503 [18 March 2014]

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 order1 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.

1 Pursuant to the Criminal Procedure Act 2011, s 200(1).
2 Criminal Procedure Act 2011, s 203(1).

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A.S. v Police

Details

AGLC: A.S. v Police [2014] NZHC 503
Case: [2014] NZHC 503
Decision Date: 18 March 2014

CaseChat Overview and Summary

The case of Alan Shore against the New Zealand Police concerns an appeal against conviction on two assault charges. The appellant, Alan Shore, was convicted in the North Shore District Court of indecent assault and assaulting a female, charges relating to an incident involving his ex-wife, P. Shore appealed the conviction on the basis that his trial counsel did not follow his instructions or allow him to give evidence in his defence. The High Court allowed the appeal, finding that a miscarriage of justice had occurred due to the trial counsel's failure to properly advise and obtain clear instructions from Shore on whether he should give evidence.

The key legal issue in this case was whether the trial counsel's failure to ensure that Shore made an informed decision about giving evidence constituted a miscarriage of justice. The Court found that the counsel had not adequately advised Shore of the consequences of not giving evidence and had not obtained a clear instruction from him about his election. The Court concluded that in the particular circumstances, there was a real risk that Shore's conviction was unsafe due to the lack of an informed choice about giving evidence. The Court also noted that obtaining clear written instructions from the defendant about giving evidence is well-established practice and would have prevented the uncertainty in this case.

The Court quashed the convictions and remitted the case to the District Court for rehearing, noting that there was a strong case to be answered by the defence. The Court emphasised the importance of defence counsel ensuring that a defendant makes an informed decision about giving evidence, including advising the defendant of the potential implications of their choice and obtaining clear written instructions. The Court also highlighted the need for counsel to be mindful of the duty to ensure that the defendant understands the state of the evidence and the prospects of conviction if they do not give evidence.

Orders