S v Police HC Dunedin CRI 2009-412-42

[2010] NZHC 1028

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2009-412-42

CRI 2009-412-43

BETWEEN  S

AND          

S

Appellants

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 May 2010

Counsel:         S A Saunderson-Warner for Appellants

J Young for Respondent

Judgment:      13 May 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr and Mrs S   were convicted in the District Court on a number of offences of dishonesty.   They have brought this appeal against conviction.   The appeal raises allegations of incompetence of trial counsel and affidavits have been filed on each side following a waiver of privilege.

[2]      The grounds alleged can be summarised as follows:

•A decision to supply the Smiths’ briefs of evidence to the prosecutor in advance;

•    A failure to resist the charges being heard together;

•    A failure effectively to oppose recall of a police witness;

S AND ANOR V NEW ZEALAND POLICE HC DUN CRI 2009-412-42  13 May 2010

•    Ineffective and incomplete cross-examination;

•Lastly, the conduct of the hearing generally including failure to appreciate the elements of the offences and defences.

[3]      I note that these allegations are also the subject of a complaint to the Law

Society.

[4]      Appearing for the police, Mr Young accepts that the overall cumulative effect of the complaints result in the convictions being unsafe.  In those circumstances, I will allow the appeals against conviction and remit all of the informations to the District Court for rehearing.  The Smiths are to appear in that Court on 12 July for a status hearing.

[5]      The appellants are released on bail pending their appearance in the District Court on the condition that by 5pm tomorrow they surrender their passports to the police.

[6]      Because it is based on a police concession, this decision is not to be taken as an endorsement of the complaint regarding the conduct of former counsel.

Miller J

Solicitors:

Aspinall Joel, Dunedin for Appellants

Crown Solicitor’s Office, Dunedin for Respondent