Hall v R

Case [2015] NZCA 403 2 September 2015

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NOTE: PUBLICTION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

ORDER MADE IN THE DISTRICT COURT FOR PERMANENT NAME SUPPRESSION FOR APPELLANT IN CA322/2014 REMAINS IN FORCE.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA872/2013 [2015] NZCA 403

BETWEEN
GRAEME MARTIN HALL

Appellant

AND

THE QUEEN Respondent

CA322/2014

BETWEEN H (CA322/2014) Appellant

ANDTHE QUEEN Respondent

Hearing: 6 and 7 May 2015

Court:

Ellen France P, Randerson, Stevens, White and French JJ

Counsel:

A M Simperingham and H B Vaughn for Appellant Hall

L B Cordwell and G Ghahraman for Appellant H B Horsley and S K Barr for Respondent

J H M Eaton QC and V Scott for New Zealand Bar Association
S J Bonnar QC for New Zealand Law Society
K H Cook and N J Sainsbury for Criminal Bar Association
M F Laracy and N P Chisnall for Public Defence Service
D Howden for Legal Services Commissioner as interveners

Judgment:

2 September 2015 at 3 pm

JUDGMENT OF THE COURT

HALL v R [2015] NZCA 403 [2 September 2015]

A Extension of time to appeal is granted to Mr Hall. Mr Hall’s appeal

B

against conviction is dismissed.

Mr H’s appeal against conviction is dismissed.

REASONS OF THE COURT
(Given by Ellen France P and Randerson J)

Table of contents

Para No

Challenges to the conduct of trial counsel [1] The current position [5] The factual background [6] The relevant principles [8] Current procedures [13] The Rules [14]
R v Clode [17] What changes should be made to current procedures? [20] Procedural steps [26] Related issues [31] Other questions [46] A two-stage process? [47] Role for the trial Judge? [48] Evidential issues [49] Application of principles to counsel assisting appointed at trial? [51] The obligations on counsel [53] Advice on whether the appeal ground is arguable [54] Submissions on the effect of a failure to follow instructions [61] Our analysis [65] Conclusions on Clode [78] Acknowledgement of assistance from counsel [82] The cases at hand [83] Hall v R (CA872/2013) [84] Issues on appeal – Hall [89] Failure to consult prior to trial and failure to brief [90] Failure to adduce alibi evidence [96] Count 1 [97] Discussion [101] Count 2 [107] Adequacy of cross-examination [117] False complaint [118] Cross-examination about S’s psychological health [125] Reading of Mr Page’s brief [133] No instructions about amendment of dates in the indictment [137] Failure to lead evidence about the Ford Falcon [140] Failure to call defence witnesses [143]

Failure to mention count 1 in closing [147] Failure to give s 122 warning [149] Conclusion – Hall [153] H (CA322/2014) v R [154] Background facts [156] The decision not to call Mr H to give evidence [164] Discussion [172] Summary of conclusions on Mr H giving evidence [180] Failure to advance Mr H’s defence [185] Mr Bogiatto’s instructions [185]
Mr Bogiatto’s opening statement for the defence [191] Cross-examination of the…

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 Hall v R

Details

AGLC: Hall v R [2015] NZCA 403
Case: [2015] NZCA 403
Decision Date: 2 September 2015 at 3 pm

CaseChat Overview and Summary

Graeme Martin Hall and H appeal against their convictions. The Court of Appeal considers the appeals together. The Court reviews the procedures applicable to appeals challenging the conduct of trial counsel, including a Clode-type process, and considers changes to the current procedures. The Court proposes a process involving steps for appellate counsel to take instructions from the appellant and make a preliminary assessment, approach trial counsel, and evaluate the response. The Court also discusses related issues, such as the application of the process, access to trial counsel's file, waiver of privilege, timing, and case management. The Court emphasises the importance of trial counsel's duty to follow instructions and the need for a careful assessment of the merits of an appeal based on trial counsel conduct. In relation to Mr Hall's appeal, the Court finds that trial counsel did not err in not advancing alibi evidence, the adequacy of cross-examination, or the failure to read Mr Page's brief. The Court also finds that there were no instructions about amending the dates in the indictment, and the omission of a warning about reliability under s 122(2)(e) of the Evidence Act 2006 did not result in a miscarriage of justice. In relation to Mr H's appeal, the Court finds that trial counsel did not err in the decision not to call Mr H to give evidence, the failure to advance Mr H's defence, and the mistaken attribution issue. The Court concludes that neither appeal is successful, and Mr H's appeal against conviction is dismissed.

Orders