Kissling v The Queen - [2021] NZCA 6

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA28/2020
[2021] NZCA 6

BETWEEN	JAMIE RONAKI KISSLING Appellant
AND	THE QUEEN Respondent

Hearing:	30 November 2020
Court:	French, Whata and Mander JJ
Counsel:	E J Forster for Appellant B F Fenton for Respondent
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…

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 Kissling v The Queen

Details

AGLC: Kissling v The Queen [2021] NZCA 6
Case: [2021] NZCA 6
Decision Date: 22 December 2020 at 11 am

CaseChat Overview and Summary

Kissling v The Queen concerned an appeal against a conviction for causing grievous bodily harm with intent. Kissling pleaded guilty but later sought to vacate that plea, arguing that his trial counsel had provided incorrect advice about an alibi, bail, and the prospect of an acquittal. The Court of Appeal of New Zealand considered whether these errors led to a miscarriage of justice. The court found no merit in the alibi argument as it was revealed that an alibi notice had in fact been filed. The court found that while trial counsel did not advise Kissling that he was ineligible for bail pending sentence, this did not amount to a miscarriage of justice. The court also rejected the argument that counsel's pessimistic advice about the prospect of an acquittal amounted to an error. The appeal was dismissed.

Orders