Poihipi v The King - [2023] NZSC 10

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 127/2022
[2023] NZSC 10

BETWEEN	JAYSON WIREMU POIHIPI Applicant
AND	THE KING Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	C G Tuck for Applicant M J Lillico for Respondent
Judgment:	28 February 2023

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS

Mr Poihipi seeks leave to appeal against a decision of the Court of Appeal dismissing his appeal against conviction.[1]

Background

[1]Poihipi v R [2022] NZCA 421 (Miller, Duffy and Ellis JJ) [CA judgment].

Mr Poihipi was convicted in the High Court of the murder of his girlfriend, Lynace Parakuka. Mr Poihipi has some level of cognitive difficulty. He has not been formally diagnosed but it is suspected he has foetal alcohol syndrome. He has poor comprehension and struggles to read and write.
At trial it was common ground that Mr Poihipi had assaulted Ms Parakuka by punching and kicking her. The issue in dispute was whether he knew that death was likely.
Mr Poihipi gave two police evidential video interviews (EVIs). In the first, he denied the assault. In the second, he accepted the assault but said he did not intend to kill Ms Parakuka and did not realise the assault would cause death. Mr Poihipi said he was drunk at the time of the assault but did not disclose any drug use. Mr Poihipi now says that he was under the influence of psychedelic mushrooms and had used methamphetamine a few days prior.
Mr Poihipi did not tell his trial counsel, Mr Gowing, about the methamphetamine use. He did tell him that he had ingested mushrooms. Mr Gowing interviewed Mr Poihipi’s sister about that claim. Mr Gowing did not consider her to be a reliable witness.
Mr Gowing’s evidence before the Court of Appeal was that he gave Mr Poihipi advice to the effect that if he (or his sister) were to give evidence to introduce the mushroom use this would undermine the credibility of his second EVI. Mr Gowing told Mr Poihipi that the second EVI put the defence case at its best. Mr Poihipi elected not to give evidence and signed a written acknowledgment of this.

Court of Appeal judgment

Mr Poihipi appealed to the Court of Appeal on the basis that trial counsel failed to prepare, investigate and advance key elements of the defence case and had erred by giving advice to Mr Poihipi not to give evidence.[2] It was also submitted that Mr Gowing failed to communicate with Mr Poihipi appropriately and was under a duty to do so given Mr Poihipi’s cognitive difficulties and mental state.[3]
[2]At [12]–[13].
[3]At [14]. Mr Poihipi was suffering from suicidal ideation and possibly PTSD as a result of the murder.
The Court of Appeal rejected the arguments about the failure to investigate and advance key elements of the defence case,…

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.

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Details

Case: [2023] NZSC 10
Decision Date: 28 February 2023

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr. Jayson Wiremu Poihipi applied for leave to appeal against the Court of Appeal's decision to dismiss his appeal against his conviction for the murder of Lynace Parakuka. Poihipi claimed that trial counsel had failed to tailor his approach to accommodate his cognitive difficulties, failed to investigate and advance key elements of the defence, and had given inappropriate advice not to give evidence. The Court of Appeal rejected these arguments, finding that counsel had appropriately adjusted his approach to account for Poihipi's impairments, the advice was appropriate, and Poihipi understood and accepted the advice given.

The legal issues before the Supreme Court were whether the proposed appeal raised any matter of general or public importance and whether there was a risk of a miscarriage of justice. The Court of Appeal had correctly recognised that counsel have a duty to tailor their communications to account for any vulnerabilities of their client, and the issues raised related to the application of that requirement to the particular circumstances of the case. The proposed appeal did not raise any matter of general or public importance. Additionally, nothing raised in the application indicated that the Court of Appeal was wrong in its assessment that trial counsel had appropriately adjusted his approach to account for Mr. Poihipi's impairment, that the advice was appropriate, and that Mr. Poihipi understood and accepted the advice given. Therefore, there was no risk of a miscarriage of justice.

The Supreme Court granted the application for an extension of time for leave to appeal, as the period was relatively short. However, the application for leave to appeal was dismissed as the proposed appeal did not raise any matter of general or public importance, and there was no risk of a miscarriage of justice. The Court's decision was based on the Court of Appeal's assessment that trial counsel had appropriately adjusted his approach to account for Mr. Poihipi's impairment, that the advice was appropriate, and that Mr. Poihipi understood and accepted the advice given. As a result, the application for leave to appeal was dismissed, and no further appeal would be entertained.

Orders