Nightingale v R - [2010] NZCA 473

IN THE COURT OF APPEAL OF NEW ZEALAND
CA122/2010
[2010] NZCA 473
BETWEENSTEVEN WEARNE NIGHTINGALE

Appellant

ANDTHE QUEEN

Respondent

Hearing:30 September 2010

Court:Glazebrook, Potter and Asher JJ
Counsel:W C Pyke for Appellant

M D Downs for Respondent

Judgment:19 October 2010 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Asher J)
Introduction
[1]        The appellant, Steven Wearne Nightingale, has been convicted after a trial of one count of male assaults female, three counts of injuring with intent to injure, one count of aggravated burglary and one count of murder. He was sentenced to life imprisonment with a minimum term of 17 years. He now appeals against his conviction submitting that a miscarriage of justice arose at his trial because he accepted the advice of his trial counsel not to give evidence when he was pressured, and when that advice was deficient. He also asserts that there is fresh evidence available in the form of testimony from one Lorraine June Hepburn. His case is that if he had given evidence, and the additional evidence had been adduced, this could have made a difference to the result, and indeed that such evidence presented the only real prospect of an acquittal.
Background
[2]        In September 2007 Mr Nightingale was living in an apartment complex at Waihi Road, Tauranga with his partner Gina Murphy and three young children. The deceased, Shane Donald Kurth, lived in a different apartment in the same complex.
[3]        At approximately 11am on Friday, 14 September 2007 Mr Nightingale began drinking at his unit with a number of other tenants in the complex, friends and family members. These included his partner Ms Murphy and her mother Angela Reiri, Robert Grace, Robert Moffett and Dion Honeycombe. Messrs Moffett and Honeycombe lived in the complex and Mr Grace lived nearby.
[4]        By 4pm considerable amounts of alcohol had been drunk and cannabis had been smoked. Mr Nightingale became argumentative and belligerent. He took exception to people leaving the unit and not wanting to stay on drinking. When Ms Reiri indicated she was going to leave with her seven year old son he began arguing with her and jostling her. When her daughter Ms Murphy intervened, Mr Nightingale punched Ms Murphy in the eye and about the head. She fell backwards and suffered swelling and a bloodshot eye.
[5]        Mr Moffett attempted to intervene. Mr Nightingale punched him in the side of the head with sufficient force to cause him to fall and become unconscious for a short period. After regaining consciousness Mr Moffett returned to the lounge and resumed drinking. He was bleeding from the ear.
[6]        Another friend took Mr Nightingale outside which enabled Ms Murphy to leave the house. Mr Nightingale then became angry with Mr Grace who was sitting at a table inside the unit. He went into the unit and punched Mr Grace who fell to the floor. He also kicked Mr Grace about the body. Mr Grace suffered…

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 Nightingale v R

Details

AGLC: Nightingale v R [2010] NZCA 473
Case: [2010] NZCA 473
Decision Date: 19 October 2010

CaseChat Overview and Summary

The case of Nightingale v R involves Steven Wearne Nightingale, who was convicted of multiple charges including murder, and sentenced to life imprisonment with a minimum term of 17 years. Nightingale appeals his conviction, arguing that his trial counsel pressured him to not give evidence and that the advice to not testify was deficient. He also claims that there is fresh evidence in the form of testimony from Lorraine June Hepburn that could have resulted in an acquittal if he had testified and the evidence had been presented. The Court of Appeal of New Zealand was tasked with determining whether a miscarriage of justice had occurred during Nightingale's trial.

The primary legal issues the Court had to decide were whether Nightingale's counsel had exerted undue pressure on him to not give evidence and whether the advice given was deficient. Additionally, the Court had to assess the credibility and admissibility of the fresh evidence presented by Nightingale.

The Court found that there was no undue pressure exerted by Nightingale's counsel, as they had provided him with measured advice about his options and sufficient time to make his own decision. The Court also concluded that the decision to advise Nightingale against giving evidence was within the scope of competent counsel and not deficient. Furthermore, the Court found the fresh evidence presented by Nightingale to be lacking in credibility and not fresh, as it had not been presented at the time of the original trial and was deemed inadmissible.

Based on these findings, the Court of Appeal dismissed Nightingale's appeal, concluding that there was no miscarriage of justice on the grounds presented by Nightingale.

Orders