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…

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 Fenton v The Queen

Details

AGLC: Fenton v The Queen [2020] NZHC 1832
Case: [2020] NZHC 1832
Decision Date: 27 July 2020

CaseChat Overview and Summary

Mista Bob Fenton appeals against his conviction for aggravated robbery. He argues that his trial counsel, Mr Anderson, made a fundamental error by failing to act on his instructions to call Cody Morris Stewart as a defence witness. Mr Anderson accepted that the appellant wanted him to call Mr Stewart to give evidence but he did not do so because he understood that calling Mr Stewart was precluded by s 73 of the Evidence Act 2006. He also had not spoken to Mr Stewart and did not know what he would say. The appellant also complains about the failure of Mr Anderson to prepare a brief of evidence for him, and the advice he gave the appellant regarding the strength of the Crown case. The Court is of the view that this is one of those rare cases where counsel’s failure to follow instructions on a fundamental decision did not give rise to a miscarriage. The evidence that Mr Stewart would have given is implausible and inconsistent with reliable Crown evidence. It could not possibly have altered the outcome of the trial in favour of the appellant. The appeal is dismissed.

Orders