Manukau v The Queen - [2013] NZCA 605

IN THE COURT OF APPEAL OF NEW ZEALAND

CA9/2013
[2013] NZCA 605

BETWEEN	KARAUNA TUMANAKO MANUKAU Appellant
AND	THE QUEEN Respondent

Hearing:	12 November 2013
Court:	Wild, Simon France and Asher JJ
Counsel:	C Muston for Appellant M J Inwood and M Lillico for Respondent
Judgment:	3 December 2013 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

This Court is vexed with meritless appeals based on the alleged incompetence of trial counsel. This appeal is a particularly bad example. What the appellant here

overlooked is that the ultimate question is whether justice has miscarried. So the focus is on the outcome.[1]

[1]Oliver v R [2007] NZCA 326 at [44] citing Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.

Where, as here, asserted errors on the part of trial counsel are relied on, there are two steps. First, to consider whether there was in fact an error on the part of trial counsel. Secondly, if there was error, to consider whether there is a real risk that error affected the outcome.[2]
[2]Sungsuwan v R at [70].
As to the first of these steps, an appellant contemplating this type of appeal must acknowledge the dynamic, constantly changing nature of a criminal trial. The case law acknowledges that defence decisions need to be reviewed as the trial progresses, and may change. The important decision whether or not to call defence evidence is the obvious example. Looking back, with the benefit of hindsight, it can often be argued that a different decision would have been preferable. That does not make the decision taken unreasonable or erroneous in the circumstances in which trial counsel made it. Other decisions may need to be made “on the run”, based on an on the spot assessment of how matters stand. The decision whether to cross-examine a prosecution witness, or whether to ask further questions, is an example. Again, with the benefit of the answers the witness gave, it can often be argued that trial counsel erred in asking too many questions, or even in asking any. But, again, it does not follow that the decision trial counsel made on the spot was unreasonable or wrong.
As to step two, Sungsuwan emphasises the appellant must establish a “real risk” or “real concern” for the safety of the verdict.[3] The way Tipping J summarises the position in his judgment in Sungsuwan provides practical guidance:
[116] It is appropriate to emphasise that this approach should not be regarded as giving the appellant the ability to speculate on what the outcome might have been if different tactical or other decisions had been made, or different advice had been given by counsel as to the content or presentation of the defence. Nor should the appellant be able to rely on speculative points to impugn counsel’s advice which he has accepted or…

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 Manukau v The Queen

Details

AGLC: Manukau v The Queen [2013] NZCA 605
Case: [2013] NZCA 605
Decision Date: 3 December 2013 at 10 am

CaseChat Overview and Summary

Manukau v The Queen is a case that came before the Court of Appeal of New Zealand. The appellant, Karauna Tumanako Manukau, sought to appeal against his conviction for wounding with intent to cause grievous bodily harm and threatening to kill. Manukau was one of several individuals present at a gathering where a serious assault occurred. The victim, Mr. Jessie Dick, was attacked after a confrontation, suffering severe injuries. Manukau was identified by the victim and another witness as one of the assailants. He claimed to have been merely a witness to the attack but was found guilty by a jury.

The legal issues in this appeal revolved around the conduct of Manukau's trial counsel, Mr. Garbett. The appellant argued that counsel failed to take adequate instructions, conducted inadequate cross-examination of the victim and a witness, did not challenge the evidence of a Crown witness, and provided erroneous advice regarding the dangers of calling defence evidence. The Court of Appeal considered each of these points in turn.

Regarding the failure to take adequate instructions, the Court found that counsel had discussed the case with the appellant and previous counsel, and had relied on the appellant’s police statement. Given the appellant’s intoxicated state at the time of the incident and during his police interview, the Court found no merit in the claim that counsel should have obtained a more detailed account.

As for the cross-examination of Mr. Dick, the Court held that counsel’s approach was appropriate. Counsel had effectively challenged the reliability of Mr. Dick’s identification and curtailing the cross-examination further would not have been beneficial. The Court also rejected the claim that counsel should have challenged the evidence of Mr. Barnes, noting that doing so might have undermined his helpful testimony. Finally, concerning the advice about calling defence evidence, the Court found no error in counsel’s explanation of the risks involved, and noted that any potential witness, such as Mr. Pomipi, would likely have been unconvincing to a jury.

In conclusion, the Court of Appeal granted the appellant's application for an extension of time to appeal but dismissed the appeal against conviction. The Court found no merit in any of the grounds of appeal, affirming the conviction and sentence imposed by the District Court.

Orders