SELBY v NEW ZEALAND POLICE [2022] NZHC 329
Counsel's failure to put the appellant's instructed defence to prosecution witnesses and lack of sufficient instructions rendered the trial unfair; accordingly the convictions were quashed and a retrial was directed.
Source-derived case information.
- Citation
- [2022] NZHC 329
- Parties
- Appellant: Jacob Paul Selby; Respondent: New Zealand Police
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 1 March 2022
- Procedural Posture
- Criminal Appeal / High Court Judgment (on the Papers)
- Outcome
- Appeal allowed; convictions quashed; retrial directed.
- Legal Topics
- Self Defence, Duty to Put Defence, Ineffective Assistance of Counsel, Retrial
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Paul Selby
Appellant
New Zealand Police
Respondent
Procedural Posture
Criminal Appeal / High Court Judgment (on the Papers)
Legal Issues
- 1 Whether defence counsel failed to put the appellant's defence (self-defence) to prosecution witnesses
- 2 Whether counsel's failure and lack of instructions rendered the trial unfair
- 3 Whether convictions should be quashed and a retrial directed
Ratio Decidendi
Counsel's failure to put the appellant's instructed defence to prosecution witnesses and lack of sufficient instructions rendered the trial unfair; accordingly the convictions were quashed and a retrial was directed.
Court Disposition
Appeal allowed; convictions quashed; retrial directed.
Orders
- Appeal allowed
- Convictions quashed
Full Case Text
Judgment text and source record
1 paragraphs
SELBY v NEW ZEALAND POLICE [2022] NZHC 329 [1 March 2022]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-454-30[2022] NZHC 329BETWEEN JACOB PAUL SELBYAppellantAND NEW ZEALAND POLICERespondentOn the papersCounsel: E J Forster for AppellantM R L Davie for RespondentJudgment: 1 March 2022JUDGMENT OF SIMON FRANCE J[1] Mr Selby was convicted after a Judge-alone trial on two counts of assaulting achild.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 appealhis 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 beenput. The defendant testified and it became immediately apparent that many aspects ofhis version of events had not been put to prosecution witnesses.[3] Defence counsel has filed an affidavit. It does not assist. It seems defencecounsel thought the defence unrealistic and observes he "attempted to avoid thesubject".1 New Zealand Police v Selby [2021] NZDC 16640.[4] The rules are clear2 and counsel is not permitted to simply ignore the defencehis client wishes put. Further, counsel seems not to have obtained a brief from hisclient even though there was early agreement the defendant would testify. The concernis not the absence of a formal brief but an apparent unawareness of the detail of whatthe defendant would claim. The failure to put these claims to the prosecution witnesseswas accordingly inevitable.[5] The Crown responsibly do not oppose the appeal which will be allowed. Theconvictions are quashed. A retrial is directed. Whether it proceeds is a matter for theprosecution._____________________Simon France JSolicitors:Crown Law, Wellington for Respondent2 Hall v R [2018] 2 NZLR 26 (CA).