Fenton v The Queen

[2020] NZHC 1832

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 proceeded as a judge-alone trial before Judge E M Thomas.

[6]    At the trial the Crown opened its case and presented the prosecution evidence by means of a memorandum of agreed facts and by producing the prosecution exhibits with the consent of the defence. The appellant did not give evidence himself or call any defence evidence. At the conclusion of the evidence Judge Thomas found the appellant guilty of the charge of aggravated robbery.1

[7]    Both Mr Stewart and the appellant were sentenced by Judge Thomas on 19 July 2019. Mr Stewart was sentenced to five years’ imprisonment and the appellant to six years’ imprisonment.2

[8]    The appellant now appeals his conviction on the grounds of trial counsel error, primarily on the basis of the failure to call Mr Stewart as a defence witness.

[9]    The appeal is out of time. The explanation for the delay in filing the appeal is that, as a result of an understandable misunderstanding on the part of the appellant’s current counsel due to the initially scheduled jury trial and subsequent change to a judge-alone trial, a notice of appeal was erroneously filed in the Court of Appeal on 5 August 2019. That notice of appeal was filed within the 20 working day time for the filing of an appeal.3 When the error was discovered the appellant abandoned that appeal and filed a further notice of appeal in this Court on 26 May 2020. The Crown does not oppose the granting of an extension of time for the filing of the appeal.

[10]   Having regard to the interests of justice and to the explanation for the late filing of the notice of appeal as set out above, I am satisfied that it is necessary to extend the time for filing the notice of application for leave to appeal pursuant to s 220(3) of the Criminal Procedure Act 2011.

1      R v Fenton [2019] NZDC 1143.

2      R v Stewart [2019] NZDC 14852.

3      Criminal Procedure Act 2011, s 220(2).

Evidence presented at trial

[11]   As I have noted, the prosecution evidence at trial was all admitted by consent. The prosecution case against the appellant is circumstantial, there being no direct evidence of identification of the appellant as being one of the two masked offenders. The following is a brief summary of the prosecution evidence.

[12]   On 3 October 2017, the day before the aggravated robbery at Brownzy Bar, the appellant and Mr Stewart were recorded on CCTV at a Z Energy service station in Kaikohe travelling in a Nissan Navara vehicle registration DZK598. The appellant was wearing black trousers with a white tick brand on the left knee similar to the trousers worn by one of the offenders.

[13]   On the morning of 4 October 2017, Mr Stewart and the appellant exchanged text messages which indicated that were intending to drive to Auckland. Cell-phone polling data recorded their respective cell-phones at several locations between Whangarei and Silverdale during that day.

[14]   At 4.21 pm that afternoon, CCTV shows the pair arriving in the Nissan vehicle at Bunnings Warehouse and Pak’nSave in Silverdale. Shortly after their arrival, CCTV shows Mr Stewart getting out of the Nissan in the Bunnings carpark and walking towards Pak’nSave where he broke into a parked Subaru Legacy station wagon (registration BCD820) and drove it from the Pak’nSave carpark. Both the Nissan and the Subaru are recorded by CCTV images as they are driven away in the same direction.

[15]   Cell-phone polling data then has the pair travelling south to Auckland and spending some time at Sylvia Park and at Mangere around 7 pm. From 7.51 pm on, Mr Stewart and the appellant exchanged a series of text messages in which Mr Stewart said he needed to get petrol to get over to the “shore and another ride.” Around 9 pm the pair exchanged further text messages. In one text message sent by the appellant he said: “Everything gonna be closed by the time we get there”. Mr Stewart responded: “Yo, I’m on my way cuz.”

[16]   A Subaru of similar appearance to BCD820 is captured on CCTV by a camera located at the Super Liquor store located immediately adjacent to Brownzy Bar sometime around 10 pm. At 10.23 pm, a Subaru similar in appearance to BCD820 is recorded as being driven along Beach Road, Browns Bay some 600 metres from Brownzy Bar. The CCTV image showed that the passenger in the vehicle was wearing a high visibility (hi vis) jacket.

[17]   The aggravated robbery took place shortly after 11.30 pm when two offenders entered the bar as it was closing. One of the offenders was carrying a bag, the other a shotgun. The offender carrying the shotgun was dressed in a blue hooded sweatshirt jacket with the hood up over his head. He was wearing a balaclava which covered his face and over the blue hooded sweatshirt he was wearing a sleeveless orange-coloured high visibility jacket. The prosecution case was that the appellant was the offender holding the shotgun. A blue hooded sweatshirt of very similar appearance was subsequently found by police in the Nissan when it was later located. The sweatshirt was found behind the rear passenger seat and subsequent scientific examination determined the presence of the appellant’s DNA on it. A black balaclava and a spent shotgun cartridge were also found by the police in the Nissan. The balaclava was located hidden beneath the housing of the gear lever. It too was found to have the appellant’s DNA on it. One of the Brownzy Bar CCTV images recorded during the robbery shows the offender wearing the sleeveless high visibility jacket, as well as wearing long black pants which have a white tick brand on the left knee.

[18]   The Crown case was that Mr Stewart was the second offender, who was also wearing an orange coloured high visibility jacket, although his had long sleeves.

[19]   A few minutes after the robbery, Mr Stewart’s cell-phone was polling at Hillcrest, the Auckland Harbour Bridge, Market Road, Penrose, and Mangere East as Mr Stewart headed south and polling in Mangere at around 12.30 am on 5 October. However, shortly after midnight the Nissan is captured on CCTV at the Caltex service station on the corner of Massey Road and Saville Drive in Mangere East, where Mr Stewart exits the vehicle from the front left passenger door and proceeds to place something into a bin located beside an air compressor. A wallet belonging to one of the two Brownzy Bar staff and some light-coloured gloves, similar in appearance to

those worn by the offenders, were subsequently located by police in that bin. When exiting the Nissan, Mr Stewart is seen wearing long black pants which have a white stripe on the outside length of each leg. Long black pants with a white stripe down the side of each leg were also worn by the offender who was wearing the long sleeve high visibility jacket during the robbery.

[20]   At 12.08 am, the appellant sent a text to an unidentified phone saying: “Just at the gas down the road.” The number to which he sent that text is the same number to which he had previously sent a text in which he had referred to the recipient as “Sis”. The Crown says the appellant’s sister resides approximately 1.5 kilometres from the Caltex service station. Polling data for the cell-phones of the appellant and Mr Stewart thereafter appear to be consistent and the Crown says that is because they were together for a period after the visit to the Caltex service station.

[21]   On 6 October, the appellant was captured by CCTV cameras driving the Nissan vehicle in Whangarei. Police located and seized the vehicle on 8 October 2017. Inside it they found a large number of personal items, mail and documents belonging to the appellant consistent with him being the owner and user of the vehicle.

[22]   On the basis of this evidence, Judge Thomas found the charge of aggravated robbery proven beyond a reasonable doubt.

The affidavits and Mr Stewart’s statement

Mr Stewart

[23]   The appellant has filed a hand-written document signed by Mr Stewart and dated 1 July 2019. It was written and prepared by Mr Stewart for use by the appellant in relation to his appeal. Although the document is headed “Affidavit”, it is not sworn. In his statement Mr Stewart gives a detailed description of his involvement in the aggravated robbery of the Brownzy Bar on the night of 4 October 2017. He claims that he had purchased the Nissan from the appellant on 3 October 2017 for $4,000. He says that having agreed to purchase the vehicle he and the appellant drove in it together to Kaikohe so that he could get some money to give to the appellant as a down

payment on the vehicle. He said that while they were in Kaikohe they had stopped at the Z Energy service station for petrol and he had reported to his probation officer.

[24]   Mr Stewart says that before he and the appellant left Kaikohe on 3 October 2017, he had picked up one of his “mates who is known…as “nate” or “nate dog” (Nate). So he can come for a ride with me down to Auckland.” Mr Stewart says that he and Nate dropped the appellant off at an address in Morningside in Whangarei, and having done so then stayed that night in Whangarei. He says that the following day, 4 October 2017, he and Nate drove together to Auckland so that he could go and see his partner and daughter who were living in Manurewa. He says that on the way down to Auckland he found a phone that the appellant had left in the Nissan. He said he and Nate started to use the phone as it had unused credit on it.

[25]   Mr Stewart says that on their way they stopped at Silverdale Pak’nSave where he stole a silver Subaru from the car park and drove it away, following Nate who was driving the Nissan. He says that he then parked the Subaru on East Coast Bays Road so that they could return later and use it to commit a crime. He says that he and Nate then drove to Manurewa where he spent several hours with his partner and daughter.

[26]   He says that at about 9 pm he and Nate travelled back to the stolen Subaru and parked the Nissan. They then drove around in the Subaru before proceeding to Browns Bay where they had decided to rob the Brownzy Bar. He said that after he and Nate had committed the robbery of the bar, they departed in the Subaru travelling a short distance. They then drove to Mangere and went to the Caltex service station where he says he discarded some items taken in the robbery and some clothes he had been wearing.

[27]   After leaving the Caltex service station in the early hours of 5 October 2017, he says that he and Nate went to Manurewa where they stayed at the place where his partner was staying. Mr Stewart says that later that day Nate took the Nissan and travelled back to Whangarei where he left it with a friend of Mr Stewart’s in Tikipanga.

The appellant’s affidavit

[28]   The appellant has filed an affidavit in support of his appeal against conviction.4 In it he says that he was not with Mr Stewart at the time of the robbery. The appellant says in his affidavit that prior to his trial in January 2019, he was on remand at the Mount Eden Correctional Facility. The appellant says that he had been granted legal aid and Mr Anderson was his assigned counsel. He says that prior to his trial he had several meetings with Mr Anderson via AVL link, but did not meet with him in person.

[29]   The appellant says that prior to his trial Mr Stewart had told him that he had written a statement saying that the appellant was not present when the aggravated robbery had taken place. The appellant says that he did not see or read that statement and was only told by Mr Stewart what he had written in it. He says that Mr Stewart told him that he wanted to give evidence to say what he had written in his statement.

[30]   The appellant says that during the period prior to his trial, Mr Stewart had told him that was intending to plead guilty but had kept changing his mind. The appellant says that as a result he did not know for certain that Mr Stewart was going to plead guilty until the day of the trial.

[31]   The appellant says that after Mr Stewart had entered guilty pleas on the first scheduled day of the trial, he spoke to Mr Anderson and told him about Mr Stewart’s statement which Mr Stewart had told him he had with him. The appellant says that he told Mr Anderson that he wanted Mr Stewart called to give evidence, and asked Mr Anderson to ask Mr Stewart’s counsel for the statement. The appellant says that without having seen Mr Stewart’s statement, Mr Anderson had told him that the statement would not help him, and that calling Mr Stewart as a defence witness would be bad for him.

[32]   The appellant says that after Mr Stewart had pleaded guilty, he and Mr Anderson had a discussion about changing from a jury trial to a judge-alone trial. The appellant says that Mr Anderson advised him that a judge-alone trial would be better for the appellant, and that he signed a paper which confirmed that he wished to make

4      The appellant’s affidavit was sworn on 18 November 2019.

the change. The appellant says that he did not know what the procedure of a judge- alone trial was, but thought that it meant that the defence was unable to call any evidence. He says that he developed that understanding from what the Judge had said about it.

[33]   The appellant says that he was advised by Mr Anderson that he was likely to get off the charge he was facing if Mr Stewart pleaded guilty, because all of the evidence was against Mr Stewart and not him.

[34]   The appellant says that on the day of the robbery of the Brownzy Bar he was with his father in the morning and later at his sister’s house. He says he does not remember Mr Anderson asking him about his whereabouts when the robbery was taking place, or being asked about any enquiries being made on his behalf regarding the possible calling of other witnesses to “talk about where I was on the day of the robbery.”

[35]   The appellant also says that he does not recall Mr Anderson talking to him about preparing a brief of evidence and he does not recall writing anything of that kind for Mr Anderson. He says that he does not think that he was provided with a copy of all of the prosecution disclosure materials as he was sharing a cell at Mount Eden Correctional Facility with Mr Stewart and it appeared that Mr Stewart had more documents than he had.

Mr Anderson’s affidavit

[36]   As is customary where an appellant advances counsel error as a ground of appeal, Mr Anderson has filed a detailed affidavit to which he has annexed a number of exhibits. Mr Anderson has also provided a letter to Ms Kincade QC, dated 4 July 2020, in which he has made some further comments.5

[37]   Mr Anderson commenced his affidavit by explaining that he has practised in the field of criminal law since 1980 and has appeared as lead counsel for the defence in many criminal jury trials in both the District Court and the High Court.

5      Letter of Mr Anderson to Ms Kincade QC, dated 4 July 2020.

[38]    In his affidavit6 Mr Anderson says that the clear instruction he was given as regards the defence to be offered on behalf of the appellant was that the charge could not be proved beyond reasonable doubt. He says that he was never instructed by the appellant that he had an alibi in relation to the time of the robbery. He says that the appellant never mentioned that he had an alibi or requested that the availability of alibi evidence be investigated.

[39]   Mr Anderson says that prior to being sent a copy of Mr Stewart’s statement dated 1 July 2019 in November 2019, he had never seen the document and had never been advised of its contents.

[40]   Mr Anderson says that by referring to his diary he can confirm that he saw the appellant in person on two occasions at the North Shore District Court and had nine interviews or consultations with him via AVL link. On 16 January 2019, several days before the scheduled trial date of 21 January, Mr Anderson met with the appellant at Mount Eden Prison.

[41]   Mr Anderson says that he did send the prosecution disclosure material to the appellant and he has exhibited a series of letters he sent to the appellant at the Mount Eden Corrections Facility enclosing the prosecution disclosure.7 Mr Anderson says that when he met with the appellant at Mount Eden Correctional Facility on 16 January 2019, he again took him through all the prosecution evidence, and offered him a complete copy of the file which included copies of the prosecution photo booklets, which the appellant declined.

[42]   In a letter sent by Mr Anderson to the appellant dated 16 June 2018, he set out some preliminary advice in relation to the requirements of the Criminal Procedure Act 2011 and as regards a number of issues that would need to be considered by the appellant. The topics referred to in this letter included two which were headed “Instructions”. They said:

6      Affidavit of Geoffrey Anderson, sworn 4 December 2019.

7      The letters referring to enclosed disclosure are dated: 16 June 2018; 25 August 2018; 16 September 2018; 21 September 2018; and 29 September 2018; [Note: The 21 September 2018 letter appears to be incorrectly dated 21 September 2019, as it refers to the appellant’s next Court appearance as being on 19 November 2018 for the hearing of the application for dismissal of the charge pursuant to s 147 of the Criminal Procedure Act 2011, which was heard on 19 November 2018].

I would now be grateful to receive your written instructions so that I may continue with office preparation to be followed by office based (private AVL) meetings as required.

…

I am aware that memory always dims with time and so I ask that you consider the alleged facts carefully and start making notes in simple form at this time which will form the basis of your instructions.

[43]   It appears that despite the request made in Mr Anderson’s letter of 16 June 2018, the appellant chose not to make any notes and elected not to provide him with any written instructions.

[44]   Mr Anderson accepts that he did not prepare a brief of evidence for the appellant. He says the reason was because the appellant made it clear to him throughout their communications that he did not wish to give or call evidence, and that the defence at trial was up to Mr Anderson to make what he could of it. Mr Anderson has exhibited the appellant’s final written instructions which he signed on the morning of the trial in which the appellant confirmed his instructions to Mr Anderson were in accordance with their discussion at the meeting at Mount Eden Correctional Facility on 16 January 2019.

[45]The appellant’s written instructions to Mr Anderson state:

I, Mista Bob Fenton as the Defendant confirm as follows:

That I have had good and adequate access to my Counsel in the matter of the preparation of my Trial and that I have been provided with all necessary information and that I am ready to proceed in all respects

Further that I have indicated to Mr Anderson that I am not to give evidence.

I understand my defence to be that : that the case is so circumstantial I should not be convicted.

The law has been explained to me and the Prosecution Disclosure has been fully provided to me prior to the commencement of the Trial together with all information from the file.

I have discussed all issues I need to with my Lawyer and have no outstanding issues to discuss.

I am ready for Trial. Signed: [Mista Bob Fenton]

[46]   Mr Anderson says that although his file notes do not record that he discussed the issue of alibi with the appellant he is confident that he did. He says that, as the appellant had told him at an early stage that he was unable to provide Mr Anderson with an alibi witness or witnesses, there was no need for further discussion regarding the issue of alibi. However, Mr Anderson says that when he met with the appellant on 16 January 2019, he “specifically made enquiry to have him confirm that in fact he was an offender…”.8 Mr Anderson says that during his meeting with the appellant on 16 January 2019, he is confident that he specifically discussed with him whether he had an alibi, noting that it would be a complete defence to the charge. Mr Anderson says that despite him pushing the appellant on the issue, the appellant has never said or suggested that he was at his sister’s address when the aggravated robbery was taking place. Mr Anderson says that when he suggested to the appellant that the reason he could not provide an alibi was because he had in fact been present at the actual offence as an offender, the appellant had nodded. Mr Anderson says that from that point on he could not have called the appellant to give evidence of an alibi as in Mr Anderson’s opinion the appellant had admitted his involvement in the offending to him.

[47]   Mr Anderson further notes that he met the appellant’s sister in the course of his engagement as the appellant’s counsel. The person who Mr Anderson thought to be the appellant’s sister commented to him (he thinks on 19 November 2018 when the   s 147 application was heard), that she was aware that the appellant was travelling to Auckland to stay with her for work purposes, commenting that it was a shame that the alleged offending occurred, but that she was otherwise unable to assist. She made no mention of an alibi, but gave Mr Anderson her contact phone number so that he could advise her of the outcome of the application before the Court and any future court dates.

[48]   Mr Anderson says that it is significant to note that the entire prosecution case against the appellant, apart from the CCTV recording of the aggravated robbery taking place, is circumstantial and that the circumstances relied on by the Crown cannot be disputed to any significant extent. In these circumstances says Mr Anderson “the Trial was always to be an argument as to ‘beyond reasonable doubt’, or not”.9 Mr Anderson

8      At paragraph 27.

9      At paragraph 33.

further says that after an unsuccessful application for dismissal of the charge pursuant to s 147 of the Criminal Procedure Act 2011, and following discussion with the appellant it had been agreed that the trial would proceed on the same basis as the s 147 argument, but taking into account the higher standard of proof required at trial.

Events on the morning of the first day of trial

[49]   Mr Anderson says that on the morning of the first scheduled day of the trial, he went to the Court cells to speak briefly to the appellant. He says that while he was speaking with the appellant, Mr Stewart handed him a folded piece of paper which he subsequently handed to Mr Stewart’s counsel immediately after he returned to Court. Mr Anderson says that he did not read the note and had not been told what it related to.

[50]   Mr Anderson says that immediately after he had given the note to Mr Stewart’s counsel they left the Court to speak to their client in the Court cells. Mr Stewart’s guilty pleas were then entered. Mr Anderson denies being told by the appellant before the trial that Mr Stewart had signed an affidavit saying that the appellant was not involved in the aggravated robbery. He is adamant that he has no knowledge of the contents of the note he was handed by Mr Stewart on the morning of the trial.

[51]   Mr Anderson says that after Mr Stewart had entered guilty pleas, the appellant told him that he wanted to call Mr Stewart to give evidence as a defence witness to say that the appellant was not the second person involved in carrying out the aggravated robbery. Mr Anderson says that at the time he understood that the effect of s 73 of the Evidence Act 2006 prevented the appellant from calling Mr Stewart as a defence witness, and he advised the appellant accordingly.

[52]   Mr Anderson says however that on reflection he now accepts that when Mr Stewart pleaded guilty, he ought to have paused and considered the options of:

(a)Seeking an adjournment and new trial date to enable an assessment to be made of the situation.

(b)Seeking the permission of Mr Stewart’s counsel to speak with him about what the appellant had told him.

(c)Asking the appellant once again about the availability of an alibi witness or witnesses.

[53]   Mr Anderson disputes the appellant’s claim that he did not understand the consequences of electing a judge-alone trial. Mr Anderson say that the appellant was involved in discussions with him regarding whether he should proceed with the scheduled jury trial or elect a judge-alone trial. Mr Anderson says that he did explain the judge-alone trial procedure to the appellant and says that the appellant’s claim, to have understood that in a judge-alone trial he would be prevented from giving evidence, is a fabrication or distortion of the conversation he had with the appellant regarding the judge-alone trial process and procedure.

[54]   As regards the appellant’s claim that Mr Anderson told him that he would be likely to “get off” the charge, Mr Anderson says that although he had told the appellant that his prospects of a successful defence would improve if Mr Stewart was to plead guilty, he says he did not tell him that he “would be likely to get off” in the event of Mr Stewart pleading guilty.

Submissions

The appellant’s submissions

[55]   The appellant’s first and principal ground of appeal is that his trial counsel, Mr Anderson, made a fundamental error by failing to act on his instructions to call Mr Stewart to give evidence as a defence witness. Ms Kincade says that in an appeal where the ground relied on is a failure by trial counsel to follow their client’s instructions as to fundamental decisions, the focus will be on whether, as a matter of fact, there was a failure to do so.

[56]   Ms Kincade says that here, Mr Anderson accepts that the appellant had raised the matter of calling Mr Stewart with him before his trial, but as he understood that   s 73 of the Evidence Act prohibited a co-defendant from being called or compelled to

give evidence, he had advised the appellant that as a matter of law it was not possible to do so.

[57]   Ms Kincade submits that Mr Anderson’s principal error was compounded by his failure to prepare a brief of evidence for the appellant, and the advice he gave the appellant regarding the strength of the Crown case.

[58]   As regards Mr Anderson’s advice to the appellant that s 73 of the Evidence Act prevented him calling Mr Stewart as a defence witness, Ms Kincade says that Mr Anderson’s advice was in error. Counsel submits that s 73 did not apply to the situation that had arisen. She says that no issue of compellability existed as Mr Stewart was willing to give evidence and there was no need for him to be compelled to do so. Moreover, says Ms Kincade, s 73(3) is only applicable to an unwilling witness.

[59]   Ms Kincade accepts that when giving the appellant the advice regarding the effect of s 73, Mr Anderson had not spoken to Mr Stewart and accordingly he did not know whether or not he was willing to give evidence. However, Mr Anderson could readily have ascertained Mr Stewart’s position by speaking to Mr Stewart’s counsel and asking them to ascertain their client’s position or by obtaining their approval for him to speak directly to Mr Stewart.

[60]   Ms Kincade also accepts that the one day deferral of the commencement of the appellant’s trial may not have allowed sufficient time for Mr Anderson to make arrangements to speak with Mr Stewart given that he had been remanded in custody following his entry of guilty pleas, but she submits that having regard to the unexpected change brought about by Mr Stewart’s guilty pleas he could have sought an adjournment of the trial to enable him make the necessary enquiries.

[61]   As regards Mr Anderson’s explanation that he could not call Mr Stewart as a defence witness because he still did not have an alibi witness, Ms Kincade submits that this is a separate issue from whether Mr Stewart was able to be called as a witness. Calling Mr Stewart to give evidence that the appellant was not with him or involved in the aggravated robbery did not require the appellant to also call alibi evidence as to where he was at the time.

[62]   Ms Kincade submits that by not following the appellant’s instructions to call Mr Stewart, Mr Anderson’s actions and advice to the appellant deprived him of the opportunity of presenting his defence such that there is a real risk that counsel’s errors affected the outcome of the trial. Counsel submits that having regard to the significant effect on the appellant’s right to a fair trial caused by counsel’s failure to follow the appellant’s instructions, the only way in which that denial of his rights can be addressed is by the ordering of a re-trial. In this regard, Ms Kincade notes that the present case is not one which would involve a vulnerable complainant having to give their evidence again at a re-trial.

[63]   In relation to the appellant’s second ground of appeal, based on Mr Anderson’s failure to prepare a brief of evidence for the appellant, Ms Kincade acknowledges that such a failure is not of itself an error which will preclude a defendant from receiving a fair trial. Ms Kincade submits that had Mr Anderson followed best practice and prepared a brief of evidence for the appellant there would have been clarity regarding the issue of the calling of defence witnesses. To that extent says Ms Kincade, the failure to prepare a brief of evidence contributed to the unfairness of the appellant’s trial.

[64]   Finally, Ms Kincade submits that Mr Anderson’s advice to the appellant that he was “likely to get off” was overly optimistic, inappropriate and failed to address the strengths of the Crown case, and is another factor that adds weight to the effect of counsel’s primary error of failing to call Mr Stewart as a defence witness as he was instructed to do.

Submissions for the respondent

[65]   Mr Carruthers, for the Crown, submits that no miscarriage of justice has occurred. Mr Carruthers accepts that Mr Anderson was told on the morning of his trial that he wanted to call Mr Stewart as a witness. He also accepts that Mr Anderson should have done so, and acted in accordance with his client’s instruction. However, he submits that while Mr Anderson should have done more to explore the possibility of calling Mr Stewart as a witness, his failure to do so and his failure to call Mr Stewart to give evidence did not have any material effect on the trial because Mr Stewart’s

proposed evidence is not credible and is inconsistent with objectively accurate facts established by evidence at the trial.

[66]   Mr Carruthers submits that not every failure by trial counsel to follow their client’s instructions will result in a miscarriage of justice, even where the instructions relate to fundamental trial decisions. He submits that where the defence an appellant claims he or she wished to advance, or the evidence that they wished to give or call, is so inadequate that it would have had no prospect of affecting the outcome of the trial in the appellant’s favour, an appellate court may properly dismiss an appeal.

[67]   Mr Carruthers submits that the present appeal falls into that category. He submits that the evidence that Mr Stewart would have given is fanciful and introduces a nameless associate as the person with him when he carried out the aggravated robbery. He says Mr Stewart’s claim to have purchased the Nissan Navara vehicle from the appellant is inconsistent with the evidence of the police finding a large number of personal items belonging to the appellant when the vehicle was located. He further says that Mr Stewart’s account of finding and using the appellant’s cell phone which included sending text messages to someone described as “Sis” sits uncomfortably with the explanation the appellant is now advancing in his affidavit in which he says he was with his father and sister while the aggravated robbery was being committed.

[68]   Mr Carruthers says that the explanation offered by the appellant in his affidavit as to his whereabouts during the robbery lacks credibility as it was never previously provided to his counsel despite a request being made, and there being no reason why he could not have told Mr Anderson what he is now claiming in his affidavit. Counsel say that similarly, the appellant’s claim to have understood that, by having a judge- alone trial meant he could not offer any evidence, also lacks credibility.

[69]   Mr Carruthers submits that the appellant’s claims as contained in his affidavit and Mr Stewart’s account of having committed the robbery accompanied by an associate named “Nate”, lack any credibility and should be put to one side, and the appeal dismissed.

Analysis

[70]   The appeal is brought under s 232 of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any other reason.

[71]   Earlier this year, in K v R,10 the Court of Appeal affirmed the summary of principles applicable to appeals in which trial counsel’s conduct is impugned that it had set out in Clutterbruck v R:11

[13]      The starting point is R v Sungsuwan where the Supreme Court emphasised  that  the  focus  must  always  be  on  whether  there  has  been  a miscarriage of justice.12 Counsel’s decisions may be relevant to that, but radical error by trial counsel is not required to establish a miscarriage has occurred. More recently this court in R v Hall reviewed the topic of alleged counsel error.13  The Court identified three fundamental matters over which   a defendant had the absolute right to decide and concerning which counsel must follow or not act – the plea, the focus of the defence and the decision to testify.14

[14]      The  emphasis  in  R  v  Sungsuwan  on  whether  there  has  been     a miscarriage had the effect of reducing the emphasis or focus on the nature of counsel’s error, and the then test of whether it was a “radical” error.     The consequence of any errors was more important than assessing their gravity. R v Hall is consistent with this, but clarifies that some matters are so fundamentally tied to a defendant’s rights that errors in relation to them will almost always constitute a miscarriage.

[72]In R v Sungsuwan, the Supreme Court had observed:15

While the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

10     K v R [2020] NZCA 133 at [80] – [81].

11     Clutterbruck v R [2017] NZCA 361.

12     R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [69] – [70].

13     Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.

14 At [65].

15     R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.

[73]In cases in which trial counsel error is alleged, the approach is to:16

Ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

[74]   The Court of Appeal in Hall v R provided specific guidance in relation to cases of failure by trial counsel to follow client instructions. The Court said:17

[68]      There may be cases where a failure to follow instructions on a fundamental decision does not give rise to a miscarriage, but they will be rare. One example is this Court’s decision in R v Chin. The Court in that case said that even if there had been a “firm instruction” to trial counsel that Mr Chin was to give evidence, failure to call him would not, “in the particular circumstances” of the case, have resulted in a miscarriage of justice. That was because the Court heard from Mr Chin as to what he would have told the jury if he had given evidence. The Court found that his evidence “would have invited incredulity from the jury”.

[69]      In an appeal based on a failure to follow instructions as to these fundamental decisions, the focus will be on whether, as a matter of fact, there was a failure to do so. “Instructions” in this context mean a clear direction as to how the trial or an aspect of it is to be run. This Court in R v S drew a distinction between “an expression of the client’s views on a particular matter” and “directions to be observed and implemented by counsel”.

[70]      The authorities suggest there is a valid distinction to be drawn between fundamental decisions and other trial decisions. In R v McLoughlin the Court concluded a miscarriage of justice had resulted from a failure to follow instructions to advance an alibi defence in a rape trial. Two alibi witnesses had been briefed and notice was given that they were to be called. Trial counsel began to advance the alibi defence in cross-examination but then decided not to pursue it. Instead, he sought to rely on the, incompatible, defence of consent. Not surprisingly, the Court said counsel had no right to disregard instructions. The Court in Pointon contrasted the type of conduct in issue in McLoughlin with “a mere mistake in tactics in the conduct of the defence”.

(footnotes omitted)

[75]   I am of the view that this is one of those rare cases referred to in R v Chin and Hall v R where counsel’s failure to follow instructions on a fundamental decision did not give rise to a miscarriage.

16 At [17].

17     Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.

[76]   There is no dispute as to whether the appellant informed Mr Anderson that he wanted him to call  Mr  Stewart  to  give  evidence.  That  he  did  is  accepted  by  Mr Anderson in his affidavit. However, he explained that he did not call Mr Stewart as a witness for two reasons. First, because he understood that calling Mr Stewart was precluded by s 73 of the Evidence Act 2006. Second, because he had not spoken to him and did not know what he would say. In his affidavit he remarked:

55. I accept Mr Fenton raised with me the possibility of Mr Stewart giving evidence that he (Fenton) was not his co-offender in the aggravated robbery as depicted in the video of the actual aggravated robbery, but how was that to work because as a matter of law, Stewart was not a competent or compellable witness and secondly I still did not have an Alibi [sic]. This conversation occurred after Stewart pleaded guilty and that conversation occurred in the Court cells. I had never spoken to Mr Stewart on the topic as he was not my client to talk to.

[77]   Mr Anderson was clearly mistaken in his understanding of the effect of s 73 of the Evidence Act. Section 73 provides that a defendant in a criminal proceeding is not a compellable witness for the prosecution or the defence in that proceeding. However, s 73 does not limit a witness’s eligibility. It is not engaged where a person who is a defendant or an associated defendant in a criminal proceeding is willing to give evidence voluntarily.18 Because of his  misunderstanding  of  the  effect  of  s  73,  Mr Anderson failed to ascertain whether Mr Stewart was willing to give evidence notwithstanding the appellant’s instructions which indicated that Mr Stewart was willing to give evidence, as he confirms in his handwritten statement dated 1 July 2019. Mr Anderson’s position as regards Mr Stewart’s competence as a witness is similarly misconceived. Section 71 of the Evidence Act provides that any person is eligible to give evidence.

[78]   Whilst it is correct that Mr Anderson did not know what Mr Stewart would say if called as a witness, given that it was the appellant that wanted him called, it was reasonable to assume that the appellant at least considered that what he would say would assist his defence. In these circumstances, the proper course for Mr Anderson to have adopted would have been to take urgent steps to ascertain what Mr Stewart would say if he was to be called as a defence witness. Having regard to the unexpected development of Mr Stewart’s guilty pleas and the need for the appellant to have the

18     Evidence Act 2006, s 71; Taha v R [2015] NZCA 107 at [22].

opportunity of assessing the implications of this development as regards his own defence, it was important for Mr Anderson to ensure that both he and, more fundamentally, the appellant, made their decisions regarding the future conduct of the trial on a properly informed basis. If more time was required than was available to them in the interval between the first scheduled trial day and the following day when the judge-alone trial was due to commence, trial counsel ought to have sought an adjournment. The absence of any alibi witness did not justify not inquiring further as regards Mr Stewart’s proposed evidence.

[79]   Having regard to the circumstantial nature of the prosecution case against the appellant and the absence of any direct identification evidence placing the appellant at the robbery, the decision as to whether or not to call Mr Stewart was a matter of fundamental significance to the presentation of the appellant’s defence. I accordingly turn to consider whether counsel’s failure to call Mr Stewart created a real risk of rendering the verdict unsafe.

[80]   To support his appeal the appellant relies on Mr Stewart’s handwritten statement, dated 1 July 2019. It is not a sworn statement and consequently its contents are necessarily to be treated with caution. There has been ample time available to the appellant and his counsel to arrange for Mr Stewart to swear an affidavit setting out his account of his actions and the involvement of the appellant in the events surrounding the robbery Mr Stewart accepts he committed at the Brownzy Bar. Had the appellant’s counsel obtained an affidavit from Mr Stewart in support of the appeal, such an affidavit could be expected to have addressed and elaborated on those aspects of his handwritten statement where detail and specificity is obviously lacking. As it is, the Court is left to consider the statement without any such detail and without verification that the handwritten statement was prepared by Mr Stewart.

[81]   However, putting aside the unsatisfactory basis on which Mr Stewart’s statement is before the Court, his account of the appellant’s involvement in the events preceding and following the robbery, is completely implausible. It appears to have been composed in an attempt to exculpate the appellant by means of a series of events which are each implausible and inconsistent with reliable Crown evidence and indeed

common sense. The following aspects of the statement illustrate the implausibility of those aspects which purport to be exculpatory of the appellant.

The appellant’s cell phone

[82]   Firstly, the cell phone polling evidence related to the appellant’s cell phone and its whereabouts during the period prior to and following the robbery is an important aspect of the Crown case against the appellant. The polling data for that phone places the appellant in Auckland and in proximity to Mr Stewart at key times prior to and following the robbery. Mr Stewart says in his statement that he found the appellant’s cell phone in the Nissan Navara sometime after he had dropped the appellant off in Whangarei, and noticing that it had unused credit on it, he and Nate had used it to send and receive test messages. However the appellant himself has never said that he left his phone in the Nissan Navara on 4 October 2017. To the contrary, the appellant formally admitted in the memorandum of agreed facts that the phone was in use by him at the relevant times.19

Nate

[83]   Secondly, Mr Stewart does not provide Nate’s full name or any details related to him which would enable him to be identified, and accordingly there is no proof that his associate called Nate exists. Moreover, while Mr Stewart claims that he and Nate used the appellant’s cell phone after finding it in the Nissan Navara, prior to then, even on Mr Stewart’s version of events, there could be no dispute that Mr Fenton was the one using his phone, and it was during that time that the trip to Auckland together was planned. So, on Mr Stewart’s account, the appellant having arranged to drive Mr Stewart to Auckland, inexplicably stopped and stayed in Whangarei, leaving Mr Stewart to take his Nissan to Auckland accompanied by his associate, Nate.

Text to “Sis”

[84]   Shortly after Mr Stewart disposed of his clothes at the Caltex service station in Mangere East immediately following the robbery, a text message was sent from the appellant’s cell phone to the appellant’s sister’s phone saying, “just at the gas down

19     Memorandum of agreed facts dated 23 January 2019.

the road”. The appellant’s sister’s residence is approximately 1.5 kilometres from the petrol station. A further text message from the appellant’s cell phone to the same number at 3 am said, “Yea shouldn’t be too much longer sis”.

[85]   While these messages are consistent with the appellant having used his cell phone to send messages to his sister who was residing in Mangere, it is quite implausible that Mr Stewart and Nate would be communicating on the appellant’s phone with the appellant’s sister and referring to her as “sis”. On Mr Stewart’s account, prior to making arrangements with the appellant for the purchase of the Nissan, he did not know the appellant. Accordingly, it is unlikely Mr Stewart was sufficiently familiar with the appellant’s sister to be calling her “sis”.

The Nissan Navara

[86]   Mr Stewart claims that he had arranged to purchase the Nissan Navara from the appellant and says that they went in it to Kaikohe so that he could get money to pay for it. Mr Stewart says that he then took the Nissan back to Auckland accompanied by Nate. However, the appellant had possession of the Nissan when it was located in Whangarei by the police on 8 October 2017 and it contained a significant quantity of the appellant’s personal property, mail and documents. So, on Mr Stewart’s account he purchased the Nissan from the appellant and drove it to Auckland, then drove back to Whangarei and returned it to the appellant, leaving a number of items associated with the robbery in it. Mr Stewart’s claim that he arranged to purchase the Nissan Navara from the appellant is quite inconsistent with the evidence that it remained in the appellant’s possession and use following the robbery and the evidence that when found by police on 8 October 2017, it contained mail, documents and other personal items belonging to the appellant, as well as the concealed black balaclava with the appellant’s DNA on it.

[87]   Finally, there is the issue of what the appellant says in his affidavit regarding having been out of Auckland during the relevant time when the robbery was committed. As the account contained in Mr Anderson’s affidavit makes clear, such a claim was never mentioned by the appellant to his trial counsel, despite him being

pressed and given any number of opportunities to do so. The belated timing of the appellant’s claim serves only to emphasis its implausibility.

Conclusion

[88]   Although Mr Stewart’s statement if taken at face value provides the appellant with an alibi and exonerates him from any direct involvement in the robbery, it cannot withstand any sensible and objective scrutiny, and cannot possibly be true.

[89]   Mr Stewart’s explanation for the presence of the appellant’s cell phone in and around Auckland in places and at times which would otherwise associate the appellant with Mr Stewart and implicate him in the robbery, is not only inconsistent with the appellant’s formal admission that he was using his phone over that time, but also inconsistent with the other prosecution evidence pointing to the appellant’s involvement in the robbery. Mr Stewart’s introduction of his associate Nate to his narrative is in my view simply an attempt to account for the presence and involvement of a second offender in the robbery, and the scant information provided as to who Nate is, reveals the implausibility of this version of event.

[90]   Had Mr Stewart been called as a defence witness his evidence could not possibly have altered the outcome of the trial in favour of the appellant.

[91]   In my view this is an example of the type of case referred to by the Court of Appeal in Hall20 where although there was a failure by trial counsel to follow his client’s instructions on a fundamental decision regarding whether to call a defence witness, that failure did not in the circumstances of this case give rise to a miscarriage of justice.

Result

[92]   The appellant is granted an extension of time to 26 May 2020 for the filing of the appeal.

[93]The appeal is dismissed.

Paul Davison J

20     Hall v R [2015] NZCA 403 at [68].