Foley v R - [2016] NZCA 607

IN THE COURT OF APPEAL OF NEW ZEALAND

CA308/2015
[2016] NZCA 607

BETWEEN	TIMOTHY JOSEPH FOLEY Appellant
AND	THE QUEEN Respondent

Hearing:	17 November 2016
Court:	Kós P, French and Venning JJ
Counsel:	Appellant in person H T Young, Counsel assisting M J Lillico for Respondent
Judgment:	14 December 2016 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Ms Michelle Lawrence was murdered in her Christchurch flat. Her neighbour and sometime lover, Mr Foley, admits he bludgeoned her with a garden gnome.[1] He confessed and pleaded guilty to her murder. He was sentenced to life imprisonment with a minimum term of eleven years and eight months.[2]
[1]Or a metal bar. He gave differing accounts as to the weapon he used.
[2]R v Foley [2015] NZHC 955.
Now Mr Foley says there was in fact a second assailant, another neighbour, Mr T. Mr Foley says Mr T must have entered Ms Lawrence’s flat after his own attack and departure, and renewed the attack on Ms Lawrence.
If so, this unfortunate woman was the victim of not one but two quite unrelated murderous attacks in her home, late at night. And again, if so, the second assault must have occurred within just five minutes of first assailant’s departure.
Mr Foley says he did not receive proper advice before pleading guilty. He asserts trial counsel error, and the denial of his fair trial right. Primarily on that basis he appeals his conviction.

Background

As trial counsel error is alleged, Mr Foley has waived privilege. So far as relevant we set out the advice and instructions given. We record that counsel, Mr Simon Shamy, had taken the precaution of keeping admirably detailed file notes. Like Mander J before us, we find those file notes to be reliable. Mr Shamy was cross-examined on his affidavit and those file notes in the High Court when Mr Foley sought vacation of his guilty plea. Mander J accepted Mr Shamy’s evidence and preferred it to Mr Foley’s where the two varied. Mr Shamy was not cross-examined before us.
Mr Foley and Ms Lawrence were neighbours. They became lovers. The relationship ended on 4 June 2012. That day Mr Foley received a trespass notice from Ms Lawrence. Five days later, at about 11 pm on 9 June 2012, Mr Foley visited Ms Lawrence’s flat alone. He went there to discuss their relationship problems. At 1.08 am the next morning he called 111. The call ended at 1.13 am. He then left the property. Ambulance and police staff arrived at 1.18 am and 1.20 am respectively. Shortly thereafter they found Ms Lawrence alone in a pool of blood, covered by a blanket. She was taken to hospital with life-threatening head injuries. On 30 June 2012 Ms Lawrence died.

Version 1 — Mr Foley confesses

When Mr Foley rang 111 at 1.08 am on 10 June 2012 he told the operator he had hit Ms…

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 Foley v R

Details

AGLC: Foley v R [2016] NZCA 607
Case: [2016] NZCA 607
Decision Date: 14 December 2016 at 2.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Foley v R involved Timothy Joseph Foley, the appellant, who was appealing his conviction for the murder of Michelle Lawrence. Foley admitted to bludgeoning Lawrence with a garden gnome or a metal bar but claimed that there was a second assailant, Mr. T, who continued the attack after Foley left the scene. Foley argued that he did not receive proper advice before pleading guilty and that his trial counsel's error and the denial of his right to a fair trial warranted an appeal against his conviction.

The legal issues in this case involved the adequacy of trial counsel's advice and whether the appellant's plea of guilty was made with full understanding and appreciation of the merits of his position. The court examined the advice given by Foley's trial counsel, Mr. Shamy, and found that he had provided detailed and reliable advice to Foley regarding the lack of evidence for a second assailant. The court also considered whether Foley's plea of guilty was affected by his ill-health due to a hunger strike and other circumstances.

The Court of Appeal found that no tenable defence existed in this case, as Foley admitted to attacking Lawrence and striking her twice with a heavy object. The court determined that it was highly unlikely that another assailant could have entered the property and completed the attack on Lawrence within the five-minute timeframe between Foley's departure and the police's arrival. Furthermore, the court found that Foley made a free and informed decision to plead guilty, motivated by a desire to obtain credit for the plea and avoid a Crown allegation of home invasion.

The appeal against conviction was dismissed, and Foley's conviction for the murder of Michelle Lawrence was upheld.

Orders