IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-182
[2020] NZHC 1832
BETWEEN MISTA BOB FENTON
Appellant
AND
THE QUEEN
Respondent
Hearing: 20 July 2020 Appearances:
J-A Kincade and A Shendi for Appellant J E L Carruthers for Respondent
Judgment:
27 July 2020
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 27 July 2020 at 4:15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Law Office, Wellington
FENTON v R [2020] NZHC 1832 [27 July 2020]
[1] At approximately 11.40 pm on 4 October 2017 two men wearing balaclavas concealing their faces robbed “The Brownzy Sports Bar,” (Brownzy Bar) in Browns Bay, on the North Shore of Auckland. One of the men was carrying a shotgun which he pointed at the two bar staff. The offenders demanded money and took approximately $7,000 in cash and the wallets belonging to the bar staff.
[2] Cody Morris Stewart (Mr Stewart) and Mista Bob Fenton (the appellant) were subsequently jointly charged with aggravated robbery. Their jury trial was scheduled to commence on 22 January 2019. On the morning of their trial, Mr Stewart pleaded guilty to one charge of aggravated robbery, and one charge of unlawfully taking a motor vehicle.
[3] The appellant’s counsel, Mr Geoffrey Anderson, had been given no prior warning that Mr Stewart would be pleading guilty to the aggravated robbery. While Mr Anderson was meeting with the appellant in the Court cells on the morning of the scheduled commencement of the trial, Mr Stewart handed him a folded piece of paper which he passed to Mr Stewart’s trial counsel without reading it when he returned to the courtroom. Upon being handed the folded note, Mr Stewart’s counsel immediately went to see him in the Court cells, and shortly thereafter returned and advised that their client had given them instructions that he would enter pleas of guilty to the charges.
[4] The appellant then instructed Mr Anderson that he wished to call Mr Stewart as a defence witness to give evidence saying that the appellant was not the second person responsible for committing the aggravated robbery at Brownzy Bar. However, Mr Anderson considered that, as Mr Stewart was to plead guilty to the aggravated robbery charge, s 73 of the Evidence Act 2006 prohibited the appellant from calling Mr Stewart as a witness. Mr Anderson considered that Mr Stewart was not a competent or compellable witness, and that the appellant did not have an alibi witness. On the basis of that understanding of the law, Mr Anderson advised the appellant that he was unable to act on his instructions to call Mr Stewart as a defence witness.
[5] When Mr Stewart pleaded guilty on the day of his trial he was convicted and remanded for sentence and the appellant’s trial was adjourned and re-scheduled to
commence the following day. When his trial commenced the appellant changed his election and it…
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