Kissling v The Queen
[2021] NZCA 6
•22 December 2020 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA28/2020 [2021] NZCA 6 |
| BETWEEN | JAMIE RONAKI KISSLING |
| AND | THE QUEEN |
| Hearing: | 30 November 2020 |
Court: | French, Whata and Mander JJ |
Counsel: | E J Forster for Appellant |
Judgment: | 22 December 2020 at 11 am |
Reasons: | 5 February 2021 |
JUDGMENT OF THE COURT
AThe application to adduce further evidence on appeal is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
Mr Kissling pleaded guilty to a charge of causing grievous bodily harm with intent to cause grievous bodily harm. He subsequently applied to vacate his plea. His application was declined.[1] He appealed that decision and his conviction on the basis that he had not been properly advised by his trial counsel. That appeal was dismissed in a results judgment issued on 22 December 2020.[2] We now give our reasons.
[1]R v Kissling [2019] NZDC 23647 at [82] and [83].
[2]Kissling v R [2020] NZCA 685.
Mr Kissling claims that trial counsel erred in the following respects:
(a)trial counsel did not provide an alibi notice to police and was therefore conflicted in relation to an application to seek an adjournment of the trial relating to that failure;
(b)bail pending sentencing was a key factor in pleading guilty, but trial counsel failed to advise that he was ineligible for bail pending sentencing; and
(c)trial counsel gave unduly pessimistic advice about the prospect of an acquittal.
Mr Kissling also contends that police non-disclosure regarding threats made by the complainant’s whānau, a retraction by the complainant, and a settlement offer by the complainant’s whānau, support a conclusion that there was a miscarriage of justice.
We must determine whether the alleged errors occurred and, if so, whether the trial miscarried and whether the guilty plea should be vacated.
Background
On the Crown case, there was tension between two groups of neighbours — Mr Kissling’s whānau and the Nuku-Rauhihi whānau. In July 2016, this escalated to threats of violence and various altercations between them. One incident is the focus of this appeal. Mr Kissling is said to have pointed a slug gun at Mr Grant Nuku‑Rauhihi and fired it from a distance of about three metres. The pellet hit Mr Nuku-Rauhihi in the eye. He is now blind in that eye.
Mr Kissling was charged with, among other charges, causing grievous bodily harm with intent to cause grievous bodily harm (the slug gun charge). Mr Paul Murray was initially retained as Mr Kissling’s trial counsel. However, after members of the complainant’s family approached him about a deal, it was decided Mr Murray should not act. This decision was made in case he was required to give evidence. He was replaced by Ms Gretel Fairbrother. An initial trial fixture was adjourned because the police witnesses were not available. Mr Kissling then fell out with Ms Fairbrother and Mr Murray was reappointed on the basis he would not be required to give evidence.
The first day of trial did not go according to plan. Mr Kissling’s defence was that he was not present at the time of the shooting, but his intended witnesses who could support that narrative did not turn up. Unexpectedly also, Mr Kissling’s teenage step-son, Mana Bennett (Mana), confessed to being the shooter. Mr Murray was concerned about the credibility of this belated revelation and Mr Kissling wanted an adjournment and bail to, among other things, organise his witnesses. Mr Murray advised that the trial could be aborted but that it would require Mr Kissling to dispense with Mr Murray’s services. The prospect of dispensing with Mr Murray and an adjournment was then raised with Judge Edwards. She gave the request for an adjournment short shrift. Inquiries were then made with the Crown about a proposal to resolve matters by withdrawing all of the other charges in exchange for a guilty plea to the slug gun charge. This was followed by a request for a sentencing indication for that charge. An indication of five years and four months’ imprisonment given later that day was, however, rejected. Mr Kissling decided to press on with the trial.
The trial commenced in earnest at 2.15 pm with the evidence in chief of Ms Lisa Nuku-Rauhihi, the complainant’s sister and an eyewitness to the events. It was not compelling and, after discussing the merits with Mr Murray, Mr Kissling decided to see how the complainant’s evidence went. That evidence was given on the start of day two. It went really well for the Crown. Mr Kissling was clearly identified as the shooter. Mr Kissling thereafter decided to pull the plug on the trial and plead guilty. Mr Kissling’s signed written instructions, dated 13 November 2018, were:
I, Jamie Ronaki Kissling, instruct my lawyer as follows:
1.It is the morning of the second day of my trial.
2.Lisa Nuku-Rauhihi has given her evidence in chief.
3.Grant Nuku-Rauhihi has given evidence.
4.Both Lisa and Grant have identified me as shooting Grant.
5.I am not willing to take the risk of the jury not believing me or my witnesses.
6.I want to plead Guilty to charge 5 (causing [grievous bodily harm] with intent to cause [grievous bodily harm]) – shooting Grant in the eye.
7.I make this decision of my own free will.
8.I have had advice from my lawyer.
9.I also want to plead Guilty to all of the driving charges from Cambridge and Tauranga.
Mr Kissling was subsequently arraigned and entered a guilty plea to the slug gun charge and other unrelated charges. He then applied for bail pending sentence.
Bail
It was not appreciated by counsel, Mr Kissling or the Judge that Mr Kissling was not eligible for bail pending sentence.[3] However, on 16 November 2018, the Judge granted what she described as “compassionate” bail under s 13 of the Bail Act 2000.[4] The main relevant consideration was the personal circumstances of Mr Kissling and his immediate family. The Judge also gave careful consideration to the ability to manage the risks presented by Mr Kissling with electronic monitoring.[5]
[3]Section 11 of the Bail Act 2000 statutorily excluded him from being granted bail pending sentence.
[4]R v Kissling [2018] NZDC 24023 at [5] and [22].
[5]At [21]–[22]; see also the discussion of Judge Edwards in R v Kissling DC Palmerston North CRI-2018-070-3351, 18 December 2018 (Minute of Judge Edwards) at [9]–[11].
The issue of bail was subsequently revisited by the Judge in December 2018 when Mr Kissling applied to vacate his guilty plea (discussed below). She noted she had granted him bail because it was in the interests of justice to do so and also as it was her expectation that sentencing would proceed on 18 December 2018. She did not consider that, in light of the application to vacate the guilty pleas, the interests of justice continued to favour bail.[6] Mr Kissling was then remanded in custody. The High Court subsequently allowed Mr Kissling’s appeal against refusal to allow bail.[7] We are also advised by the Crown that Mr Kissling remained on bail until May 2019, when his address was no longer considered suitable. He was then readmitted to bail in June 2019 until August 2019.
Application to vacate guilty pleas
[6]At [13].
[7]Kissling v R HC Palmerston North CRI-2019-454-1, 24 January 2019.
On 7 December 2018, Mr Kissling applied to vacate his guilty pleas. Mr Kissling alleged trial counsel misconduct in multiple respects. As most of these complaints are not pursued before us, it is necessary only to observe that Judge Crayton rejected Mr Kissling’s claims that Mr Murray failed to take instructions, had not explored all lines of defence (including the alibi defence) and/or failed to organise his witnesses, sheeting home that particular problem to Mr Kissling.[8] In the result, the Judge was satisfied that Mr Murray acted competently.[9]
[8]R v Kissling, above n 1, at [21].
[9]At [36].
Mr Kissling also claimed the prosecution failed to disclose material which, if disclosed, would have impacted on Mr Kissling’s decision to enter guilty pleas. As this claim is also before us, it is helpful to refer to the Judge’s response to it. The claim relates to statements neighbours of Mr Kissling made to the police about threats made by a Mr Haumeera Ferris and “Rauhihi” between 13 July 2016 and 22 September 2016. The neighbours, a Mr Hipson and a Ms Clark, told police that “Humowera” and another person came to the Kissling house and threatened to break his knee caps. The statement further records that Mr Hipson “believes this is linked to the shooting where Jamie Kissling was the offender”.[10] The Judge noted that, had the officer in charge known about this statement, he would have disclosed it as relevant. But the Judge found there was no bad faith, and that, in any event, the relevance to the trial would have been minimal.[11] He said it did little more than cast aspersions on Mr Ferris and Mr Nuku-Rauhihi, and would have opened up evidence that the motive for that incident was because Mr Kissling was the shooter.[12]
[10]At [39].
[11]At [39], [42] and [43].
[12]At [43].
Mr Kissling also claimed he was under unfair pressure to plead guilty, given the trial Judge’s refusal to entertain an adjournment and his personal circumstances. The Judge accepted there were external matters affecting Mr Kissling and, in particular, that he was understandably concerned about his partner who had stage three terminal cancer. He also noted that trial Judge indicated to Mr Kissling that the trial would carry on, should he dispense with Counsel.[13] Judge Crayton, however, observed at Mr Kissling was “clearly seeking to delay the trial”; that Judge Edwards had made it clear the trial would proceed; and that Mr Kissling then sought to broker for himself the best possible outcome.[14]
[13]At [57].
[14]At [58].
The Judge also reviewed the events leading to the guilty plea. He found that Mr Kissling dictated the approach taken to the case and the resolution. He also rejected the claim that Mr Murray forced him to enter guilty pleas.[15] The Judge then came to what he called an “inescapable conclusion” that:[16]
…the defendant realised prior to the start of trial that, the witnesses having attended, he was at significant risk of conviction on a number of charges and a sentence, as he put it, of 10 years[’] imprisonment.
The Judge went on to find that Mr Kissling was aware of his tenable defences to the charges at the time of his plea.[17] Given this, he was satisfied that Mr Kissling had weighed up his chances and determined that, by pleading guilty, he would gain a significant advantage through resolution,[18] and that he entered the pleas of his own free will. There being no miscarriage, leave to vacate the guilty pleas was declined.[19]
Evidence on appeal
[15]At [66]–[70].
[16]At [74].
[17]At [75]–[79].
[18]At [81].
[19]At [82] and [83].
Affidavit evidence was provided by Mr Kissling and Mr Murray on appeal. Both were cross-examined before us. We admit this evidence on appeal.
The subject matter of their evidence is wide-ranging. We address relevant aspects below. For present purposes, it is sufficient to note that we were impressed with Mr Murray’s evidence and found it to be credible and cogent. His account of what happened prior to trial and at trial was consistent with the contemporaneous record of events. He also made appropriate concessions, including that Ms Nuku‑Rauhihi was not a compelling witness and that Mr Hipson’s statement was relevant such that, had he known about it, he would have used it.
In contrast, Mr Kissling’s position was inconsistent in material respects with the available record. For example, his claim that Mr Murray was responsible for contacting witnesses is not reconcilable with Mr Murray’s documented requests to Mr Kissling about ensuring witnesses made themselves available. Furthermore, aspects of his evidence were implausible, including his claim that his brief of evidence did not mean what it said and that he simply told Mr Murray about Mana’s admission without instruction to use it.
It transpires, however, that very little turns on the differences between Mr Kissling and Mr Murray in terms of Mr Kissling’s key complaints. This is because we accept Mr Kissling’s claims that Mr Murray did not advise about the alibi notice or Mr Kissling’s ineligibility for bail, and that Mr Murray was pessimistic about the prospect of an acquittal.
Principles on appeal
This is an appeal against conviction pursuant to s 232 of the Criminal Procedure Act 2011. That provision requires an appellate court to allow an appeal where there has been a miscarriage of justice for any reason. “Miscarriage of justice” is defined in ss 232(4) as follows:
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
The relevant principles in the context of a guilty plea are not in dispute. As stated by this Court in R v Le Page:[20]
… it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.
[20] R v Le Page [2005] 2 NZLR 845 (CA) at [16].
The exceptional categories identified by the Court in R v Le Page include:[21]
(a)where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)where on the admitted facts the appellant could not in law have been convicted of the offence charged; or
(c)where the plea was induced by a ruling which embodied a wrong decision on a question of law.
[21]At [17]–[19]; and as helpfully summarised by this Court in Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699 at [23].
This is not a complete list. In R v Merrilees, this Court identified trial counsel error as a further category:[22]
[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
[22]R v Merrilees [2009] NZCA 59.
However, as also stated in R v Merrilees:[23]
If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[23]At [35].
Furthermore, in the absence of material counsel error, the mere existence of a defence will not be enough to establish a miscarriage of justice.[24]
The claimed errors
[24]Penniket v R [2016] NZCA 154 at [8]. See also the discussion in Gleason-Beard v R, above n 21, at [21]–[27].
As noted, the claimed trial counsel errors are that trial counsel, Mr Murray:
(a)did not give an alibi notice;
(b)failed to give correct advice about the availability of bail pending sentence; and
(c)gave unduly pessimistic advice about the prospect of an acquittal.
Alibi
We can deal with the alleged alibi error briefly. Mr Kissling claims:
(a)He gave instructions to Mr Murray that he had left the scene prior to the slug gun being fired and that he was with family members in his car on the way to, or at, Waitarere Beach when the shooting occurred.
(b)Family members and neighbours were and remain able to be called as witnesses to support his account.
(c)As the proposed evidence tended to show that Mr Kissling was somewhere else at the time of the alleged offence, he had an alibi defence pursuant to s 111 of the Criminal Procedure Act.
(d)Mr Murray did not file the requisite alibi notice.
Assessment
Mr Forster for Mr Kissling submits that, given the above, Mr Murray could have been at fault by not giving adequate alibi advice and/or providing an alibi notice. Mr Forster further submits that, given this failing, Mr Murray could not have advised Mr Kissling about an adjournment of the trial on the basis of counsel failure to provide an alibi notice without acting in a conflict of interest situation. Furthermore, he could not have provided accurate advice on the prospect of success at trial because the failure to provide an alibi notice impeded the defence. It transpires, however, that Ms Fairbrother had in fact filed an alibi notice, so there was no alibi notice error. Moreover, we accept Mr Murray’s evidence that the potential absence of an alibi notice had no effect on his advice, trial strategy or the decision to plead guilty. There is therefore no merit in this ground of appeal.
Failure to give accurate bail pending sentence advice
Mr Forster submits that bail pending sentence was an important concern to Mr Kissling, given his family considerations, and in particular his partner’s terminal illness. He also submits that Mr Kissling was told by counsel that bail was a possibility. Mr Kissling accepts he was told at the time that the offending was a second strike offence and that he would serve the entire sentence without parole. However, he was not told that s 11 of the Bail Act statutorily excluded him from getting bail pending sentence. It is conceded that Mr Kissling in fact did get bail for a period of time but, regardless, Mr Kissling would not have pleaded guilty had he been given the correct advice.
Assessment
Section 11 of the Bail Act states:
11Restriction on bail if defendant with previous conviction for specified offence found guilty or pleads guilty to further specified offence
(1)No defendant of or over the age of 18 years who is found guilty of, or pleads guilty to, a specified offence (as defined in section 10(2)) and who has 1 or more previous convictions for a specified offence (whether those convictions were for the same specified offence or for different specified offences) may, while waiting to be sentenced or otherwise dealt with for the first-mentioned specified offence, be granted bail or allowed to go at large.
…
As Mr Kissling pleaded guilty to a qualifying serious violence charge and had a previous conviction for a specified offence (robbery), he was never eligible for bail pending sentence.[25] However, the potential for bail was an important consideration for him in deciding to plead guilty. He had good reason to want bail. He wanted to be with his terminally ill partner. Mr Murray deposes that bail was an ongoing concern for Mr Kissling and his notes identify that bail was an important consideration for Mr Kissling. Mr Kissling also indicated to Judge Edwards that he would plead guilty in exchange for bail.[26] Mr Kissling was steadfast under cross-examination in this Court that the potential for bail was a key factor in his decision to plead guilty. Accordingly, we accept that, had Mr Kissling been advised that bail pending sentence was not available, he would not have pleaded guilty. Given this, we find that the prospect of bail, and Mr Murray’s failure to advise Mr Kissling about s 11, was an inducement to plead guilty.
[25]Wounding with intent is a specified offence pursuant to s 10(2)(h) of the Bail Act.
[26]See R v Kissling, above n 1, at [57]: “The defendant then addressed the Judge in Chambers informing her that he would plead Guilty if she would grant him bail.”
However, we do not consider that the bail error gave rise to any miscarriage. It does not engage any of the recognised exceptional categories for vacating a guilty plea (as discussed above at [19]–[23]). Most importantly, the bail error did not affect Mr Kissling’s appreciation of the nature of the charge to which he pleaded guilty and it did not induce a mistaken belief or assumption that no tenable defence existed or could be advanced. In reality, the issue of bail had nothing to do with the procedural or substantive merits of the case for or against Mr Kissling.
Furthermore, Mr Kissling could have had no expectation of bail as he was aware the Judge was not prepared to grant bail in exchange for a guilty plea. Mr Kissling knew imprisonment was inevitable if he was convicted. Also, had Mr Kissling been sentenced as planned, he would have been a sentenced prisoner from 4 December 2018 (that is, within weeks of pleading guilty). Relevantly, Mr Kissling was granted bail on compassionate grounds almost immediately and except for two brief periods, was remanded on bail until August 2019. Thus, whatever expectation he had about bail was in fact realised irrespective of the error. This is significant because Mr Kissling cannot claim to have been unfairly done by as a result of the bail error.
Accordingly, we reject this ground of appeal also.
Advice as to the prospect of success
Mr Forster submits that Mr Murray did not properly advise Mr Kissling about the prospect of an acquittal. He submits that the case for Mr Kissling was always a “them against us” case but that Mr Murray did not see it that way, as he wrongly thought Mr Kissling did not want to call witnesses other than Mana, who Mr Murray considered to be an unimpressive witness. He also submits that Ms Nuku-Rauhihi’s prior conviction for giving a false statement to police was material as it shows the contest was a live contest.
Mr Forster further submits that intention to cause serious injury was a live issue, as the jury would need to have been satisfied that Mr Kissling intended to shoot Mr Nuku-Rauhihi in the eye. Mr Murray’s position is that intention could be inferred from the fact Mr Kissling targeted the head, but Mr Forster argues that assertion is speculative. Accordingly, he says there was a genuine prospect of an acquittal. Overall, therefore, he contends that Mr Murray’s assessment of the prospect of success was unduly pessimistic. It was also Mr Kissling’s evidence that Mr Murray appeared to have lost faith in his case.
Assessment
We reject any suggestion that Mr Murray did not properly advise Mr Kissling about a guilty plea and/or that Mr Kissling did not make a properly informed decision about the guilty plea. Mr Murray has deposed (and we have no reason to doubt him) that he stressed to Mr Kissling that he should not rush any decision and that he made it clear to him that it was his (Mr Kissling’s) decision to make. More specifically, as documented in the file notes, immediately prior to the recommencement of the trial on the second day, Mr Murray confirmed that the Crown resolution proposal was still on the table. He also spent some considerable time advising Mr Kissling of the risks of proceeding. The decision was then made to see how Mr Nuku-Rauhihi performed as a witness. After Mr Nuku-Rauhihi gave his evidence, Mr Murray says there was a further exchange in which Mr Kissling asked Mr Murray: “is that enough?”. He says he replied saying it “was his call, but that it probably was”. Mr Kissling then gave instructions to “pull the pin”.
We do, however, accept that it is likely that Mr Murray may have left a pessimistic impression of the prospect of an acquittal with Mr Kissling. Mr Murray clearly had serious concerns about Mr Kissling’s case including:
(a)The mobile nature of Mr Kissling’s account of what had happened. Mr Kissling initially said he had been at home on the day of the shooting but left before it happened. He later said that he had been at the beach all day. Then, on the first day of trial, Mr Murray was told that Mana would accept responsibility for the shooting.
(b)Mr Murray considered Mana to be an unconvincing and unprepared witness. He also considered that the evidence of Ms Sharon Goomes, a friend who was said to have lent Mr Kissling her car to travel to Waitarere Beach (thereby supporting his alibi), had limited value because she could not confirm that Mr Kissling had taken her car on the day of the alleged offending.
(c)He also had concerns about whether Mr Kissling’s other witnesses would make themselves available and Mr Murray also deposed that they had not made any direct contact with him and Mr Kissling never gave him any contact details.
On appeal, the question for us is whether there was any error in Mr Murray’s pessimism, and in our view, there was none. The belated instruction that Mana would take responsibility for the shooting was rightly met with concern and scepticism. The admission had not been explored previously and was not consistent with previous instructions. We also note that a statement by Mana obtained by a private investigator does not include any admission that he was the shooter. The ongoing no show of other key witnesses, including the neighbours Ms Clark and Mr Hipson, was another reason for serious concern. The strong performance on the stand by Mr Nuku-Rauhihi further justified a realistically low assessment of the prospect of an acquittal.
For completeness, in evidence before us, Mr Kissling insisted that he left the task of arranging witnesses with Mr Murray. As foreshadowed above, we do not accept this evidence as credible. Mr Murray’s file note records a request by him to Mr Kissling to ensure that his witnesses make contact so that he could speak with them.
We also see nothing in the fact of Ms Nuku-Rauhihi’s prior conviction. First, under cross-examination before us Mr Kissling said he knew about it, so it formed part of the background to the decision to plead guilty. Moreover, her evidence was assessed at the time as relatively weak in any event. We also note Mr Murray’s evidence (before the District Court) that, in his assessment, Mr Kissling had always seen the key evidence as being that of Mr Nuku‑Rauhihi. And as we have said, we have no reason to doubt that evidence. Furthermore, the Crown had several other eyewitnesses who saw Mr Kissling fire the gun and who saw Mr Nuku-Rauhihi’s head rock back and/or the immediate aftermath of the shooting.
Finally, in relation to the issue of proof of intention to cause serious harm, while there is clear room for doubt about an intention to shoot Mr Nuku-Rauhihi in the eye, an intention to shoot to the head, and thus cause serious injury, is readily able to be inferred from the objective facts — the shot having been taken from only three metres.
In short, there was good reason to take a realistically low view of the prospect of an acquittal based on the available evidence.
Other matters — miscarriage
In addition to the alleged trial counsel errors, Mr Forster referred to other matters which he argues support a finding of miscarriage, namely:
(a)Mr Hipson’s statement to police (not disclosed to the defence) referring to threats made by the Nuku-Rauhihi whānau which is consistent with Mr Kissling’s general account of that whānau as threatening and aggressive;
(b)Mr Nuku-Rauhihi made a statement retracting his identification of Mr Kissling as the shooter; and
(c)Mr Murray had been contacted by members of the Nuku-Rauhihi whānau in 2016 who offered to come to an arrangement whereby the problem might go away if a demand for a settlement out of court was satisfied. This placed Mr Murray in the position of being a potential witness, and also shows that the Nuku-Rauhihi family was tarnished by financial interest.
We endorse the conclusion reached by Judge Crayton on the first matter (referenced at [12] above). The statement provided by Mr Hipson about threats made by the Nuku-Rauhihi whānau members provides little, if any, support for Mr Kissling’s defence; namely that he was not there. It also implicates Mr Kissling in the offending. As to Mr Nuku-Rauhihi’s retraction, it transpires it was short-lived. In a further statement to the police, he effectively disowned the retraction as not having been signed by him.
As to the last matter, it is not clear to us what the actual complaint is. Assuming it is a submission that Mr Murray should not have acted, we note that Mr Murray was re-engaged by Mr Kissling on the very clear basis that the Nuku-Rauhihi offer would not be used in the defence case. This removed the potential for Mr Murray having to appear as a witness. Moreover, the apparent proclivity for deal making by the Nuku‑Rauhihi whānau also would have done little to advance Mr Kissling’s claimed defence, that is that he was not there at the time of the shooting.
We conclude there was no material trial counsel error. We also agree with Judge Crayton that Mr Kissling fully appreciated the merits of his position and made an informed decision to plead guilty. That being the case, the decision to plead guilty cannot be impugned.
Result
The application to adduce fresh evidence on appeal is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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