Waihape v Police HC Napier CRI 2010-441-39

[2011] NZHC 114

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-39

CHARMAINE BERNADINE WAIHAPE

v

NEW ZEALAND POLICE

Hearing:         7 February 2011

Appearances: L Lafferty for Appellant

F E Cleary for Respondent

Judgment:      7 February 2011

Reasons:        9 February 2011

REASONS FOR JUDGMENT OF WHITE J

Solicitors:           Leo Lafferty, PO Box 322, Napier 4140

Crown Solicitors, PO Box 609, Napier 4140

WAIHAPE V POLICE HC NAP CRI 2010-441-39 7 February 2011

[1]      After a defended hearing in the District Court at Napier on 23 August 2010

Ms Waihape was convicted by Judge G A Rea on a charge under s 202C of the

Crimes Act 1961 of assault using a knife as a weapon.

[2]      Ms  Waihape  appealed  to  the  High  Court  against  her  conviction  on  the grounds that as a result of decisions by her then counsel during the course of the hearing in the District Court a miscarriage of justice had occurred.

[3]      In support of the appeal affidavits were filed by Ms Waihape and her former counsel. There was no dispute that this affidavit evidence showed that:

(a)      Ms Waihape’s instructions to her former counsel were to defend the charge on the grounds of self-defence.

(b)There was prima facie evidence to support the defence in the video of the Police interview of Ms Waihape at the time of her arrest.

(c)      The Police prosecution decision not to adduce the video in evidence at the hearing in the District Court was not challenged by Ms Waihape’s former counsel and the case proceeded without that evidence.

(d)      The cross-examination of the complainant by Ms Waihape’s former

counsel assisted the Police case rather than Ms Waihape’s defence.

(e)      While Ms Waihape wished to give evidence in her own defence, her former counsel elected not to call her.

(f)       Ms  Waihape’s  former  counsel  described  his  decision  not  to  call

Ms Waihape as “an experiment”.

[4]      Memoranda  were  filed  in  the  appeal  by  Mr  Lafferty,  new  counsel  for Ms Waihape, and Ms Cleary, Crown prosecutor.  Having reviewed the materials filed for Ms Waihape and in light of the affidavit evidence, Ms Cleary concluded that the appeal should not be opposed because there was a real concern for the safety of the

verdict as a result of the conduct of Ms Waihape’s former counsel.  Ms Cleary relied

on the decision of the Supreme Court in Sungsuwan v R.[1]

[1] Sungsuwan v R [2006] 1 NZLR 730 at [70].

[5]      At the hearing of the appeal on 7 February 2011 Ms Cleary confirmed that, while the Crown did not concede the matter lightly, there was in this case a real risk that as a result of the errors made by Ms Waihape’s former counsel the verdict in the District Court was unsafe. The Crown therefore did not oppose the appeal.

[6]      Having considered the affidavit evidence and the submissions of counsel, I agreed the appeal should be allowed.  The test for a miscarriage of justice laid down by the Supreme Court in Sungsuwan v R was clearly met in this case.

[7]      The appeal was therefore allowed and, with the agreement of both counsel, the case was remitted to the District Court at Napier under s 131 of the Summary

Proceedings Act 1957 for a re-hearing.

D J White J