Applications for leave to adduce further evidence [11]
Evidence on appeal [13]
Trial counsel’s perception of Mr Wheble’s mental state [15]
Mr Wheble’s mental health records while in prison [28]
Dr Karayiannis’ s 88 report [35]
Dr Louw’s s 88 report [41]
Dr Duff’s opinion [44]
Appeal against conviction following guilty plea [47]
Was Mr Wheble fit to plead? [50]
The law on fitness to plead [50]
Was Mr Wheble fit to plead? [58]
Trial counsel error in relation to plea? [64]
Did justice miscarry because trial counsel did not explore a defence of insanity? [67]
Law on impugning a guilty plea [67]
Trial counsel error in failing to explore defence of insanity? [71]
Was insanity a tenable defence? [76]
Conclusion [83]
Result [84]
Introduction
Mr Wheble pleaded guilty to a charge of attempted murder. He was sentenced by Lang J in the Auckland High Court on 20 October 2022 to preventive detention.[1] Mr Wheble initially filed an appeal against sentence. He now seeks leave to appeal his conviction.
The time limit for filing an appeal against conviction is 20 working days,[2] but the first appeal court can extend the time.[3] This Court recently summarised the principles governing leave to appeal in Kriel v R.[4] The overarching question is whether it is in the interests of justice to do so.
Mr Wheble’s appeal against sentence was filed within time, but approximately six months later he indicated he was exploring challenging his conviction. Mr Wheble eventually filed grounds of appeal on 20 February 2024, 16 months after his sentencing. His amended notice of appeal dated 23 February 2024 is an appeal against conviction. His sentence appeal was not pursued, but has not been formally abandoned. For the avoidance of doubt, we dismiss the appeal against sentence.
Ms Cresswell, counsel for Mr Wheble, notes the change of counsel in late 2023 as accounting for some of the delay and also says that the grounds for a conviction appeal became apparent only when a psychiatrist was engaged to review one of the s 88 reports prepared for Mr Wheble’s sentencing.[5] The Crown…
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.
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AGLC
ANTHONY JOHN WHEBLE AND THE KING [2024] NZCA 541
Case
[2024] NZCA 541
Decision Date
CaseChat Overview and Summary
The appellant, Mr Wheble, sought to appeal his conviction for attempted murder on the basis that he was unfit to plead and that trial counsel was in error for not exploring a defence of insanity. The appeal was out of time and required the leave of the Court of Appeal. The Court granted leave on the basis that there was no prejudice to the Crown and no fault on the part of Mr Wheble.
The Court of Appeal considered the evidence of trial counsel, who said that Mr Wheble was fit to plead, and two expert reports that did not conclude that Mr Wheble was unfit to plead. The Court found that Mr Wheble was fit to enter a guilty plea and that trial counsel was not in error for not exploring a defence of insanity. The Court of Appeal concluded that there was no miscarriage of justice and dismissed the appeal.