Johnson v Police

[2013] NZHC 3098

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-485-37 [2013] NZHC 3098

BETWEEN  SHAUN JOHNSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   5 November 2013

Appearances:           J K Mahuta-Coyle for the Appellant

E M Light for the Respondent

Judgment:                22 November 2013

JUDGMENT OF MALLON J

Table of Contents

Introduction ....................................................................................................................................... [1] The law ............................................................................................................................................... [4] Trial counsel error .......................................................................................................................... [4] New evidence .................................................................................................................................. [5] District Court hearing....................................................................................................................... [7] The evidence ................................................................................................................................... [8] The Judge’s decision ..................................................................................................................... [14] Trial counsel error ........................................................................................................................... [16] Was there an error? ...................................................................................................................... [16] Real risk that error affected the outcome? ................................................................................... [24] New evidence ................................................................................................................................... [30] Result ................................................................................................................................................ [31]

JOHNSON v NEW ZEALAND POLICE [2013] NZHC 3098 [22 November 2013]

Introduction

[1]      Mr Johnson appeals against his conviction1 on a charge of common assault.2

The charge arose from an altercation with Mr Jama on the landing outside the door of a flat on the third floor of a block of flats.  In finding the charge proven the Judge relied on evidence from a witness, Mr Brock-Smith, who said he saw the altercation from  his  position  on  the  ground  floor  of  the  flats.    There  were  eight  scene photographs  taken  by the  police  but  only seven  of  them  were  produced  at  the hearing.  The photograph not included was taken from the ground floor looking up to the third floor.  It was the only one of the eight photographs which showed the view which could be had looking upwards from the ground floor.  That view was a narrow and restricted one.

[2]      The appeal is on the basis of trial counsel error.  It is said that Mr Johnson’s trial  counsel  erred  by  not  ensuring  the  eighth  photograph  was  included  in  the evidence at trial.  It is also said that he erred by not marshalling other evidence, and in particular by not obtaining further photographic evidence demonstrating the limitations of Mr Brock-Smith’s vantage point.  It is said that this evidence, if before the District Court at first instance, reasonably could have led to a finding of not

guilty.3

[3]      The respondent says that there was no trial counsel error.   It says that trial counsel questioned Mr Brock-Smith about whether he could see from his position on the ground floor, and made a legitimate tactical decision to concentrate on inconsistencies in Mr Brock-Smith’s account.  It is said that the Judge was entitled to make the assessments of the witnesses that he did and the admission of the photographic evidence now relied upon would not have made a material difference

to the outcome of the trial.

1      New Zealand Police v Johnson DC Hutt Valley CRI-2012-032-3652, 21 May 2013.  Mr Johnson

was sentenced to 120 hours’ community work. There is no appeal against sentence.

2      Crimes Act 1961, s 196.

3      Mr Johnson made other criticisms of his trial counsel.  However these were not pursued in the appeal submissions, presumably because the response of trial counsel which was in the material before me on the appeal made it clear…