Selby v Police

[2022] NZHC 329

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-454-30

[2022] NZHC 329

BETWEEN

JACOB PAUL SELBY

Appellant

AND

NEW ZEALAND POLICE

Respondent

On the papers

Counsel:

E J Forster for Appellant

M R L Davie for Respondent

Judgment:

1 March 2022

JUDGMENT OF SIMON FRANCE J

[1]        Mr Selby was convicted after a Judge-alone trial on two counts of assaulting a child.1 The context was a school setting and Mr Selby was a teacher-assistant.

[2]        Mr Selby wished to advance a defence of self-defence. He claims on appeal his counsel failed to put his defence. The record supports that. At the end of cross- examination of the complainant, the Judge asked counsel if a/the defence had been put. The defendant testified and it became immediately apparent that many aspects of his version of events had not been put to prosecution witnesses.

[3]        Defence counsel has filed an affidavit. It does not assist. It seems defence counsel thought the defence unrealistic and observes he “attempted to avoid the subject”.

[4]        The rules are clear2 and counsel is not permitted to simply ignore the defence his client wishes put. Further, counsel seems not to have obtained a brief from his client even though there was early agreement the defendant would testify. The concern is not the absence of a formal brief but an apparent unawareness of the detail of what the defendant would claim. The failure to put these claims to the prosecution witnesses was accordingly inevitable.

[5]        The Crown responsibly do not oppose the appeal which will be allowed. The convictions are quashed. A retrial is directed. Whether it proceeds is a matter for the prosecution.

Simon France J

Solicitors:

Crown Law, Wellington for Respondent