Simeon v The Queen

[2011] NZCA 557

IN THE COURT OF APPEAL OF NEW ZEALAND

CA841/2010
[2011] NZCA 557

BETWEEN  BRETT SIMEON
Appellant

AND  THE QUEEN
Respondent

Hearing:         2 November 2011

Court:             Harrison, Miller and Asher JJ

Counsel:         M Dixon for Appellant
M J Lillico for Respondent

Judgment:      4 November 2011 at 3 pm

JUDGMENT OF THE COURT

A        The application for an extension of time to appeal is granted. 

B        The appeal is dismissed. 

REASONS OF THE COURT

(Given by Harrison J)

1. Brett Simeon was found guilty following trial before a Judge and jury in the District Court at Manukau on charges of assaulting three police officers by using a knife as a weapon.  He had earlier pleaded guilty to threatening to kill his wife and mother-in-law, assaulting his wife and being in possession of a knife with an intention to use it to commit an offence.  All the charges arose from a domestic incident in February 2010.  Mr Simeon was convicted and sentenced to a term of three years imprisonment.[1]

   [1]      R v Simeon DC Manukau CRI-2010-055-361, 12 October 2010.

2. Mr Simeon applied for an extension of time to file an appeal against his conviction.  His appeal was based on the ground of an alleged error by his trial counsel, Ms Te Whata, in advising him not to give evidence in his own defence.   It is common ground that Mr Simeon freely signed written instructions to Ms Te Whata to that effect at the end of the prosecution case. 

3. The appeal proceeded today.  At the conclusion of Mr Simeon’s evidence Mr Dixon sought further instructions.  Mr Dixon subsequently advised that Mr Simeon had instructed him to abandon the appeal. 

4. As a result, Ms Te Whata was not required to give evidence.  However, we record our satisfaction that Ms Te Whata represented Mr Simeon at trial with commendable skill and care.  She performed her professional duties to Mr Simeon’s best advantage in conducting his defence in accordance with his instructions in circumstances where the Crown case was strong if not overwhelming.

5. In the result Mr Simeon’s application for an extension of time to file his appeal is granted.  His appeal is dismissed. 

Solicitors:
Crown Law Office, Wellington, for Respondent