The Queen v Shane Thomas Hoko - [2003] NZCA 128

IN THE COURT OF APPEAL OF NEW ZEALAND
420/02
THE QUEEN
v
SHANE THOMAS HOKO
Hearing:28 May 2003

Coram:Gault P
Fisher J
O'Regan J
Appearances: E G T Faleauto for Appellant

K Raftery for Crown

Judgment:30 June 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]       There are a number of concerns in this case.
[2]       The appellant was convicted of murder and a related offence under s191(1) Crimes Act 1961 after trial by jury in the High Court at Auckland. On 12 November 2002 he was sentenced to life imprisonment with a minimum sentence of 17 years to be served before being eligible for parole. A concurrent sentence of imprisonment was imposed in respect of the associated offence.
[3]       The notice of appeal notified five grounds of appeal against conviction, all directed to the Judge’s summing up to the jury, and (in effect) two grounds of appeal against the sentences.
[4]       All but one of the grounds of appeal against conviction and each ground of appeal against the sentences were the subject of written submissions filed prior to the hearing of the appeal by Mr Hart, who had represented the appellant at his trial. Careful reading of the case prior to the appeal hearing had suggested to the members of the Court that at least the first ground of appeal was of some substance and would require full argument. It was with considerable surprise that the Court found that the appellant was represented by Mr Faleauto who informed the Court that he did not consider he could advance argument in support of the appeal against conviction. He wished to make oral submissions only in respect of the minimum sentence imposed.
[5]       When asked why Mr Hart, who was counsel assigned by the Legal Services Agency, was not appearing, Mr Faleauto said he did not know and that he was appearing “pro bono”. Although he had had some previous involvement with the case before the preliminary hearing in the District Court, Mr Faleauto plainly was not prepared for detailed argument on the appeal against conviction.
[6]       The Court was left to investigate the strength of the first ground of appeal with Crown counsel. Mr Raftery had not been trial counsel but he was able to arrange for Mr Marchant, who had been, to assist with information on certain aspects of the trial.
[7]       In the end we are satisfied that we have been able sufficiently to review the conviction. By reference to the written submissions filed, the summing up has been considered in light of the evidence given and the explanations we have sought and obtained, where necessary, on the critical issues in the trial, and on the cases put to the jury respectively by the Crown and the defence.
[8]       Nevertheless we consider it well short of the duty of responsible counsel to file submissions extensively critical of the fairness of the Judge’s summing up and then not appear to support them.
The unfairness of the summing up

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 The Queen v Shane Thomas Hoko

Details

AGLC: The Queen v Shane Thomas Hoko [2003] NZCA 128
Case: [2003] NZCA 128
Decision Date: 28 May 2003

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against conviction and sentence brought by Shane Thomas Hoko, who was convicted of murder and a related offence. The primary issue before the Court was whether the summing up by the trial Judge was sufficiently fair to ensure a fair trial. Other issues included whether certain directions given to the jury regarding identification evidence, pathology evidence and lies told by the appellant were appropriate and whether the sentence imposed was excessive. The Court found that the summing up, though strong, did not unfairly influence the jury and did not give rise to a miscarriage of justice. It was held that the directions concerning identification evidence, pathology evidence and lies told by the appellant were appropriate. Finally, the Court held that the sentence imposed was excessive and substituted a minimum sentence of 15 years imprisonment.

Orders