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IN THE COURT OF APPEAL OF NEW ZEALAND
CA709/2015 [2017] NZCA 596
BETWEEN
GRENVILLE HENARE FAHEY Appellant
AND
THE QUEEN Respondent
Hearing:
31 May and 1 June 2017
Court:
Miller, Cooper and Clifford JJ
Counsel:
J A Kincade and J Oliver-Hood for Appellant B J Horsley and A B Richards for Respondent JHM Eaton QC for New Zealand Law Society and New Zealand Bar Association (intervening with leave) K H Cook and F E Guy Kidd for New Zealand Criminal Bar Association (intervening with leave)
Judgment:
14 December 2017 at 4.00 pm
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
The facts [4] The course of proceedings in the High Court [8]
Pretrial proceedings [8] The trial [18] Closing addresses [28] The summing-up [32]
The grounds of appeal [36] The rights to fair trial and self-representation [40]
The right to fair trial [41] The right to self-represent [42] Waiver of counsel affects but does not preclude appeal [46] What should a trial court do to ensure a self-represented defendant’s trial is fair? [50]
Court-appointed counsel: existing practice [53]
A court may appoint counsel to assist the defendant, in its discretion [53] Appointments ought to be rare [55]
The pattern of recent appointments [56]
Appointments are increasing in number [56] Former counsel may be appointed [58] The terms of appointment [60]
Terminology [64] Surveying the options [65]
The views of the Bar and the Crown [65] Practice in other jurisdictions [69]
Trial courts’ power to appoint standby counsel [75]
The power exists [75] Difficulties addressed by better role definition [79] Appointments ought to be exceptional [85] Constructive waiver of counsel [86] Former counsel should not ordinarily be appointed standby counsel, or amicus [90]
May a court assign control of the defence to court-appointed defence counsel? [97] Summary [105] Was Mr Fahey denied the right to represent himself? [106] Should the Court have inquired into Mr Fahey’s capacity to represent himself? [107] Did counsel’s intervention compromise Mr Fahey’s defence? [108] Should Mr Fahey have been permitted to lead propensity evidence about Mr Harris? [111] Result [114]
Mr Fahey appeals his conviction for the murder of Steven Harris at Auckland on 4 September 2013. He alleges that the trial judge forced counsel upon him although he had elected to represent himself and complains that counsel did not advance his preferred defence, causation, instead urging lack of murderous intent upon the jury.
The appeal raises important questions about the role of counsel appointed by courts to assist in criminal trials in which the defendant is self-represented. We heard from counsel for the New Zealand Law Society, the New Zealand Bar Association and the New Zealand Criminal Bar Association. All agree, as does the Crown, that the role of court-appointed counsel wants closer definition. This judgment is intended to guide trial…
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
Fahey v R [2017] NZCA 596
Case
[2017] NZCA 596
Decision Date
CaseChat Overview and Summary
Grenville Henare Fahey appeals his conviction for the murder of Steven Harris at Auckland on 4 September 2013. The appeal raises important questions about the role of counsel appointed by courts to assist in criminal trials in which the defendant is self-represented. The Court of Appeal grants the necessary extension to allow the appeal to proceed and dismisses the appeal. The Court provides guidance on the appointment of standby counsel in criminal proceedings. The Court held that trial courts possess an implied power to appoint standby counsel for a self-represented defendant where necessary to ensure a fair trial. The power is discretionary. The roles of amicus curiae and standby counsel must be distinguished, and that of standby counsel adequately defined, to avoid conflicts of duty and risk of confusion at trial. Amicus is appointed to assist the court itself, usually on questions of law, when it appears the parties may not do so. Standby counsel is appointed to assist a self-represented defendant to the extent he or she is willing to accept help, and only as an incident of appointment does counsel assist the court itself. The role of standby counsel is necessarily flexible and case-dependent, and it may evolve during the trial. Counsel’s role should be recorded and clearly explained to the defendant and the jury. Although appointed by the court, standby counsel takes instructions from the defendant. The duties that counsel owes the court do not differ in principle from those owed by defence counsel, except that standby counsel must obtain the court’s approval for costs and expenses. The power to appoint standby counsel extends to cases in which the defendant dismisses his or her own counsel to secure an adjournment or is thought likely to cause disruption by dismissing counsel at trial. Care should be taken to balance the various interests affected when deciding whether to adjourn, so the defendant may brief new counsel of his or her own, or to press on with or without standby counsel. Rarely if ever should a defendant’s former counsel be appointed amicus. Former counsel should not normally be appointed standby counsel either. If withdrawal or dismissal as defence counsel disrupts the court’s business, the court may inquire about the reasons for withdrawal, without requiring disclosure of privileged information. If counsel cites ethical reasons the court should not inquire further. Former counsel should not be appointed in a standby role if the court accepts that counsel’s relationship with the defendant has broken down. Only if satisfied that there is no conflict of duty and counsel can satisfactorily discharge the responsibilities of standby counsel should the court contemplate appointing former counsel.