KISSLING v R [2021] NZCA 6

KISSLING v R [2021] NZCA 6 [22 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA28/2020[2021] NZCA 6BETWEEN JAMIE RONAKI KISSLINGAppellantAND THE QUEENRespondentHearing: 30 November 2020Court: French, Whata and Mander JJCounsel: E J Forster for AppellantB F Fenton for RespondentJudgment: 22 December 2020 at 11 amReasons: 5 February 2021JUDGMENT OF THE COURTA The application to adduce further evidence on appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Kissling pleaded guilty to a charge of causing grievous bodily harm withintent to cause grievous bodily harm. He subsequently applied to vacate his plea.His application was declined.1 He appealed that decision and his conviction on thebasis that he had not been properly advised by his trial counsel. That appeal was1 R v Kissling [2019] NZDC 23647 at [82] and [83].dismissed in a results judgment issued on 22 December 2020.2 We now give ourreasons.[2] Mr Kissling claims that trial counsel erred in the following respects:(a) trial counsel did not provide an alibi notice to police and was thereforeconflicted in relation to an application to seek an adjournment ofthe trial relating to that failure;(b) bail pending sentencing was a key factor in pleading guilty, but trialcounsel failed to advise that he was ineligible for bail pendingsentencing; and(c) trial counsel gave unduly pessimistic advice about the prospect of anacquittal.[3] Mr Kissling also contends that police non-disclosure regarding threats madeby the complainant's whānau, a retraction by the complainant, and a settlement offerby the complainant's whānau, support a conclusion that there was a miscarriage ofjustice.[4] We must determine whether the alleged errors occurred and, if so, whetherthe trial miscarried and whether the guilty plea should be vacated.Background[5] On the Crown case, there was tension between two groups of neighbours —Mr Kissling's whānau and the Nuku-Rauhihi whānau. In July 2016, this escalated tothreats of violence and various altercations between them. One incident is the focusof this appeal. Mr Kissling is said to have pointed a slug gun at Mr GrantNuku-Rauhihi and fired it from a distance of about three metres. The pellet hitMr Nuku-Rauhihi in the eye. He is now blind in that eye.2 Kissling v R [2020] NZCA 685.[6] Mr Kissling was charged with, among other charges, causing grievous bodilyharm with intent to cause grievous bodily harm (the slug gun charge). Mr Paul Murraywas initially retained as Mr Kissling's trial counsel. However, after members ofthe complainant's family approached him about a deal, it was decided Mr Murrayshould not act. This decision was made in case he was required to give evidence.He was replaced by Ms Gretel Fairbrother. An initial trial fixture was adjournedbecause the police witnesses were not available. Mr Kissling then fell out withMs Fairbrother and Mr Murray was reappointed on the basis he would not be requiredto give evidence.[7] The first day of trial did not go according to plan. Mr Kissling's defence wasthat he was not present at the time of the shooting, but his intended witnesses whocould support that narrative did not turn up. Unexpectedly also, Mr Kissling's teenagestep-son, Mana Bennett (Mana), confessed to being the shooter. Mr Murray wasconcerned about the credibility of this belated revelation and Mr Kissling wantedan adjournment and bail to, among other things, organise his witnesses. Mr Murrayadvised that the trial could be aborted but that it would require Mr Kissling to dispensewith Mr Murray's services. The prospect of dispensing with Mr Murray andan adjournment was then raised with Judge Edwards. She gave the request foran adjournment short shrift. Inquiries were then made with the Crown about aproposal to resolve matters by withdrawing all of the other charges in exchange for aguilty plea to the slug gun charge. This was followed by a request for a sentencingindication for that charge. An indication of five years and four months' imprisonmentgiven later that day was, however, rejected. Mr Kissling decided to press on with thetrial.[8] The trial commenced in earnest at 2.15 pm with the evidence in chief ofMs Lisa Nuku-Rauhihi, the complainant's sister and an eyewitness to the events.It was not compelling and, after discussing the merits with Mr Murray, Mr Kisslingdecided to see how the complainant's evidence went. That evidence was given on thestart of day two. It went really well for the Crown. Mr Kissling was clearly identifiedas the shooter. Mr Kissling thereafter decided to pull the plug on the trial and pleadguilty. Mr Kissling's signed written instructions, dated 13 November 2018, were:I, Jamie Ronaki Kissling, instruct my lawyer as follows:1. It is the morning of the second day of my trial.2. Lisa Nuku-Rauhihi has given her evidence in chief.3. Grant Nuku-Rauhihi has given evidence.4. Both Lisa and Grant have identified me as shooting Grant.5. I am not willing to take the risk of the jury not believing me or mywitnesses.6. I want to plead Guilty to charge 5 (causing [grievous bodily harm]with intent to cause [grievous bodily harm]) – shooting Grant in theeye.7. I make this decision of my own free will.8. I have had advice from my lawyer.9. I also want to plead Guilty to all of the driving charges fromCambridge and Tauranga.[9] Mr Kissling was subsequently arraigned and entered a guilty plea to the sluggun charge and other unrelated charges. He then applied for bail pending sentence.Bail[10] It was not appreciated by counsel, Mr Kissling or the Judge that Mr Kisslingwas not eligible for bail pending sentence.3 However, on 16 November 2018,the Judge granted what she described as "compassionate" bail under s 13 of the BailAct 2000.4 The main relevant consideration was the personal circumstances ofMr Kissling and his immediate family. The Judge also gave careful consideration tothe ability to manage the risks presented by Mr Kissling with electronic monitoring.5[11] The issue of bail was subsequently revisited by the Judge in December 2018when Mr Kissling applied to vacate his guilty plea (discussed below). She noted shehad granted him bail because it was in the interests of justice to do so and also as itwas her expectation that sentencing would proceed on 18 December 2018. She did3 Section 11 of the Bail Act 2000 statutorily excluded him from being granted bail pending sentence.4 R v Kissling [2018] NZDC 24023 at [5] and [22].5 At [21]–[22]; see also the discussion of Judge Edwards in R v Kissling DC Palmerston North CRI-2018-070-3351, 18 December 2018 (Minute of Judge Edwards) at [9]–[11].not consider that, in light of the application to vacate the guilty pleas, the interests ofjustice continued to favour bail.6 Mr Kissling was then remanded in custody.The High Court subsequently allowed Mr Kissling's appeal against refusal to allowbail.7 We are also advised by the Crown that Mr Kissling remained on bail untilMay 2019, when his address was no longer considered suitable. He was thenreadmitted to bail in June 2019 until August 2019.Application to vacate guilty pleas[12] On 7 December 2018, Mr Kissling applied to vacate his guilty pleas.Mr Kissling alleged trial counsel misconduct in multiple respects. As most of thesecomplaints are not pursued before us, it is necessary only to observe that JudgeCrayton rejected Mr Kissling's claims that Mr Murray failed to take instructions, hadnot explored all lines of defence (including the alibi defence) and/or failed to organisehis witnesses, sheeting home that particular problem to Mr Kissling.8 In the result,the Judge was satisfied that Mr Murray acted competently.9[13] Mr Kissling also claimed the prosecution failed to disclose material which, ifdisclosed, would have impacted on Mr Kissling's decision to enter guilty pleas.As this claim is also before us, it is helpful to refer to the Judge's response to it.The claim relates to statements neighbours of Mr Kissling made to the police aboutthreats made by a Mr Haumeera Ferris and "Rauhihi" between 13 July 2016 and22 September 2016. The neighbours, a Mr Hipson and a Ms Clark, told police that"Humowera" and another person came to the Kissling house and threatened to breakhis knee caps. The statement further records that Mr Hipson "believes this is linked tothe shooting where Jamie Kissling was the offender".10 The Judge noted that, hadthe officer in charge known about this statement, he would have disclosed it asrelevant. But the Judge found there was no bad faith, and that, in any event, therelevance to the trial would have been minimal.11 He said it did little more than cast6 At [13].7 Kissling v R HC Palmerston North CRI-2019-454-1, 24 January 2019.8 R v Kissling, above n 1, at [21].9 At [36].10 At [39].11 At [39], [42] and [43].aspersions on Mr Ferris and Mr Nuku-Rauhihi, and would have opened up evidencethat the motive for that incident was because Mr Kissling was the shooter.12[14] Mr Kissling also claimed he was under unfair pressure to plead guilty, giventhe trial Judge's refusal to entertain an adjournment and his personal circumstances.The Judge accepted there were external matters affecting Mr Kissling and, inparticular, that he was understandably concerned about his partner who had stage threeterminal cancer. He also noted that trial Judge indicated to Mr Kissling that the trialwould carry on, should he dispense with Counsel.13 Judge Crayton, however,observed at Mr Kissling was "clearly seeking to delay the trial"; that Judge Edwardshad made it clear the trial would proceed; and that Mr Kissling then sought to brokerfor himself the best possible outcome.14[15] The Judge also reviewed the events leading to the guilty plea. He found thatMr Kissling dictated the approach taken to the case and the resolution. He alsorejected the claim that Mr Murray forced him to enter guilty pleas.15 The Judge thencame to what he called an "inescapable conclusion" that:16the defendant realised prior to the start of trial that, the witnesses havingattended, he was at significant risk of conviction on a number of charges anda sentence, as he put it, of 10 years['] imprisonment.The Judge went on to find that Mr Kissling was aware of his tenable defences tothe charges at the time of his plea.17 Given this, he was satisfied that Mr Kissling hadweighed up his chances and determined that, by pleading guilty, he would gain asignificant advantage through resolution,18 and that he entered the pleas of his ownfree will. There being no miscarriage, leave to vacate the guilty pleas was declined.1912 At [43].13 At [57].14 At [58].15 At [66]–[70].16 At [74].17 At [75]–[79].18 At [81].19 At [82] and [83].Evidence on appeal[16] Affidavit evidence was provided by Mr Kissling and Mr Murray on appeal.Both were cross-examined before us. We admit this evidence on appeal.[17] The subject matter of their evidence is wide-ranging. We address relevantaspects below. For present purposes, it is sufficient to note that we were impressedwith Mr Murray's evidence and found it to be credible and cogent. His account ofwhat happened prior to trial and at trial was consistent with the contemporaneousrecord of events. He also made appropriate concessions, including thatMs Nuku-Rauhihi was not a compelling witness and that Mr Hipson's statement wasrelevant such that, had he known about it, he would have used it.[18] In contrast, Mr Kissling's position was inconsistent in material respects withthe available record. For example, his claim that Mr Murray was responsible forcontacting witnesses is not reconcilable with Mr Murray's documented requests toMr Kissling about ensuring witnesses made themselves available.Furthermore, aspects of his evidence were implausible, including his claim that hisbrief of evidence did not mean what it said and that he simply told Mr Murray aboutMana's admission without instruction to use it.[19] It transpires, however, that very little turns on the differences betweenMr Kissling and Mr Murray in terms of Mr Kissling's key complaints. This is becausewe accept Mr Kissling's claims that Mr Murray did not advise about the alibi noticeor Mr Kissling's ineligibility for bail, and that Mr Murray was pessimistic aboutthe prospect of an acquittal.Principles on appeal[20] This is an appeal against conviction pursuant to s 232 of the CriminalProcedure Act 2011. That provision requires an appellate court to allow an appealwhere there has been a miscarriage of justice for any reason. "Miscarriage of justice"is defined in ss 232(4) as follows:(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[21] The relevant principles in the context of a guilty plea are not in dispute.As stated by this Court in R v Le Page:20 it is only in exceptional circumstances that an appeal against convictionwill be entertained following entry of a plea of guilty. An appellant must showthat a miscarriage of justice will result if his conviction is not overturned.Where the appellant fully appreciated the merits of his position, and made aninformed decision to plead guilty, the conviction cannot be impugned.[22] The exceptional categories identified by the Court in R v Le Page include:21(a) where the appellant did not appreciate the nature of, or did not intendto plead guilty to, a particular charge;(b) where on the admitted facts the appellant could not in law have beenconvicted of the offence charged; or(c) where the plea was induced by a ruling which embodied a wrongdecision on a question of law.[23] This is not a complete list. In R v Merrilees, this Court identified trial counselerror as a further category:22[34] There will be a further situation where trial counsel errs in his or heradvice to an accused as to the non-availability of certain defences, oroutcomes, or if counsel acts so as to wrongly, and perhaps negligently, inducea decision on the part of a client to plead guilty under the mistaken belief orassumption that no tenable defence existed or could be advanced.[24] However, as also stated in R v Merrilees:23If a plea of guilty is made freely, after careful and proper advice fromexperienced counsel, where an offender knows what he or she is doing and of20 R v Le Page [2005] 2 NZLR 845 (CA) at [16].21 At [17]–[19]; and as helpfully summarised by this Court in Gleason-Beard v R [2018] NZCA 349,[2018] 3 NZLR 699 at [23].22 R v Merrilees [2009] NZCA 59.23 At [35].the likely consequences, and of the legal significance of the facts alleged bythe Crown, later retraction will only be permitted in very rare circumstances.[25] Furthermore, in the absence of material counsel error, the mere existence of adefence will not be enough to establish a miscarriage of justice.24The claimed errors[26] As noted, the claimed trial counsel errors are that trial counsel, Mr Murray:(a) did not give an alibi notice;(b) failed to give correct advice about the availability of bail pendingsentence; and(c) gave unduly pessimistic advice about the prospect of an acquittal.Alibi[27] We can deal with the alleged alibi error briefly. Mr Kissling claims:(a) He gave instructions to Mr Murray that he had left the scene prior tothe slug gun being fired and that he was with family members in his caron the way to, or at, Waitarere Beach when the shooting occurred.(b) Family members and neighbours were and remain able to be called aswitnesses to support his account.(c) As the proposed evidence tended to show that Mr Kissling wassomewhere else at the time of the alleged offence, he had an alibidefence pursuant to s 111 of the Criminal Procedure Act.(d) Mr Murray did not file the requisite alibi notice.24 Penniket v R [2016] NZCA 154 at [8]. See also the discussion in Gleason-Beard v R, above n 21,at [21]–[27].Assessment[28] Mr Forster for Mr Kissling submits that, given the above, Mr Murray couldhave been at fault by not giving adequate alibi advice and/or providing an alibi notice.Mr Forster further submits that, given this failing, Mr Murray could not have advisedMr Kissling about an adjournment of the trial on the basis of counsel failure to providean alibi notice without acting in a conflict of interest situation. Furthermore, he couldnot have provided accurate advice on the prospect of success at trial because the failureto provide an alibi notice impeded the defence. It transpires, however, thatMs Fairbrother had in fact filed an alibi notice, so there was no alibi notice error.Moreover, we accept Mr Murray's evidence that the potential absence of an alibinotice had no effect on his advice, trial strategy or the decision to plead guilty. There istherefore no merit in this ground of appeal.Failure to give accurate bail pending sentence advice[29] Mr Forster submits that bail pending sentence was an important concern toMr Kissling, given his family considerations, and in particular his partner's terminalillness. He also submits that Mr Kissling was told by counsel that bail was apossibility. Mr Kissling accepts he was told at the time that the offending was a secondstrike offence and that he would serve the entire sentence without parole. However, hewas not told that s 11 of the Bail Act statutorily excluded him from getting bail pendingsentence. It is conceded that Mr Kissling in fact did get bail for a period of time but,regardless, Mr Kissling would not have pleaded guilty had he been given the correctadvice.Assessment[30] Section 11 of the Bail Act states:11 Restriction on bail if defendant with previous conviction forspecified offence found guilty or pleads guilty to further specifiedoffence(1) No defendant of or over the age of 18 years who is found guilty of, orpleads guilty to, a specified offence (as defined in section 10(2)) andwho has 1 or more previous convictions for a specified offence(whether those convictions were for the same specified offence or fordifferent specified offences) may, while waiting to be sentenced orotherwise dealt with for the first-mentioned specified offence, begranted bail or allowed to go at large.[31] As Mr Kissling pleaded guilty to a qualifying serious violence charge and hada previous conviction for a specified offence (robbery), he was never eligible for bailpending sentence.25 However, the potential for bail was an important considerationfor him in deciding to plead guilty. He had good reason to want bail. He wanted tobe with his terminally ill partner. Mr Murray deposes that bail was an ongoing concernfor Mr Kissling and his notes identify that bail was an important consideration forMr Kissling. Mr Kissling also indicated to Judge Edwards that he would plead guiltyin exchange for bail.26 Mr Kissling was steadfast under cross-examination in thisCourt that the potential for bail was a key factor in his decision to plead guilty.Accordingly, we accept that, had Mr Kissling been advised that bail pending sentencewas not available, he would not have pleaded guilty. Given this, we find thatthe prospect of bail, and Mr Murray's failure to advise Mr Kissling about s 11, was aninducement to plead guilty.[32] However, we do not consider that the bail error gave rise to any miscarriage.It does not engage any of the recognised exceptional categories for vacating a guiltyplea (as discussed above at [19]–[23]). Most importantly, the bail error did not affectMr Kissling's appreciation of the nature of the charge to which he pleaded guilty andit did not induce a mistaken belief or assumption that no tenable defence existed orcould be advanced. In reality, the issue of bail had nothing to do with the proceduralor substantive merits of the case for or against Mr Kissling.[33] Furthermore, Mr Kissling could have had no expectation of bail as he wasaware the Judge was not prepared to grant bail in exchange for a guilty plea.Mr Kissling knew imprisonment was inevitable if he was convicted. Also, hadMr Kissling been sentenced as planned, he would have been a sentenced prisoner from4 December 2018 (that is, within weeks of pleading guilty). Relevantly, Mr Kisslingwas granted bail on compassionate grounds almost immediately and except for25 Wounding with intent is a specified offence pursuant to s 10(2)(h) of the Bail Act.26 See R v Kissling, above n 1, at [57]: "The defendant then addressed the Judge in Chambersinforming her that he would plead Guilty if she would grant him bail."two brief periods, was remanded on bail until August 2019. Thus, whateverexpectation he had about bail was in fact realised irrespective of the error. This issignificant because Mr Kissling cannot claim to have been unfairly done by as a resultof the bail error.[34] Accordingly, we reject this ground of appeal also.Advice as to the prospect of success[35] Mr Forster submits that Mr Murray did not properly advise Mr Kissling aboutthe prospect of an acquittal. He submits that the case for Mr Kissling was always a"them against us" case but that Mr Murray did not see it that way, as he wronglythought Mr Kissling did not want to call witnesses other than Mana, who Mr Murrayconsidered to be an unimpressive witness. He also submits that Ms Nuku-Rauhihi'sprior conviction for giving a false statement to police was material as it showsthe contest was a live contest.[36] Mr Forster further submits that intention to cause serious injury was a liveissue, as the jury would need to have been satisfied that Mr Kissling intended to shootMr Nuku-Rauhihi in the eye. Mr Murray's position is that intention could be inferredfrom the fact Mr Kissling targeted the head, but Mr Forster argues that assertion isspeculative. Accordingly, he says there was a genuine prospect of an acquittal.Overall, therefore, he contends that Mr Murray's assessment of the prospect of successwas unduly pessimistic. It was also Mr Kissling's evidence that Mr Murray appearedto have lost faith in his case.Assessment[37] We reject any suggestion that Mr Murray did not properly advise Mr Kisslingabout a guilty plea and/or that Mr Kissling did not make a properly informed decisionabout the guilty plea. Mr Murray has deposed (and we have no reason to doubt him)that he stressed to Mr Kissling that he should not rush any decision and that he madeit clear to him that it was his (Mr Kissling's) decision to make. More specifically, asdocumented in the file notes, immediately prior to the recommencement of the trial onthe second day, Mr Murray confirmed that the Crown resolution proposal was still onthe table. He also spent some considerable time advising Mr Kissling of the risks ofproceeding. The decision was then made to see how Mr Nuku-Rauhihi performed asa witness. After Mr Nuku-Rauhihi gave his evidence, Mr Murray says there was afurther exchange in which Mr Kissling asked Mr Murray: "is that enough?". He sayshe replied saying it "was his call, but that it probably was". Mr Kissling then gaveinstructions to "pull the pin".[38] We do, however, accept that it is likely that Mr Murray may have left apessimistic impression of the prospect of an acquittal with Mr Kissling. Mr Murrayclearly had serious concerns about Mr Kissling's case including:(a) The mobile nature of Mr Kissling's account of what had happened.Mr Kissling initially said he had been at home on the day ofthe shooting but left before it happened. He later said that he had beenat the beach all day. Then, on the first day of trial, Mr Murray was toldthat Mana would accept responsibility for the shooting.(b) Mr Murray considered Mana to be an unconvincing and unpreparedwitness. He also considered that the evidence of Ms Sharon Goomes,a friend who was said to have lent Mr Kissling her car to travel toWaitarere Beach (thereby supporting his alibi), had limited valuebecause she could not confirm that Mr Kissling had taken her car onthe day of the alleged offending.(c) He also had concerns about whether Mr Kissling's other witnesseswould make themselves available and Mr Murray also deposed thatthey had not made any direct contact with him and Mr Kissling nevergave him any contact details.[39] On appeal, the question for us is whether there was any error in Mr Murray'spessimism, and in our view, there was none. The belated instruction that Mana wouldtake responsibility for the shooting was rightly met with concern and scepticism.The admission had not been explored previously and was not consistent with previousinstructions. We also note that a statement by Mana obtained by a private investigatordoes not include any admission that he was the shooter. The ongoing no show of otherkey witnesses, including the neighbours Ms Clark and Mr Hipson, was another reasonfor serious concern. The strong performance on the stand by Mr Nuku-Rauhihi furtherjustified a realistically low assessment of the prospect of an acquittal.[40] For completeness, in evidence before us, Mr Kissling insisted that he left thetask of arranging witnesses with Mr Murray. As foreshadowed above, we do notaccept this evidence as credible. Mr Murray's file note records a request by him toMr Kissling to ensure that his witnesses make contact so that he could speak withthem.[41] We also see nothing in the fact of Ms Nuku-Rauhihi's prior conviction.First, under cross-examination before us Mr Kissling said he knew about it, so itformed part of the background to the decision to plead guilty. Moreover, her evidencewas assessed at the time as relatively weak in any event. We also note Mr Murray'sevidence (before the District Court) that, in his assessment, Mr Kissling had alwaysseen the key evidence as being that of Mr Nuku-Rauhihi. And as we have said, wehave no reason to doubt that evidence. Furthermore, the Crown had several othereyewitnesses who saw Mr Kissling fire the gun and who saw Mr Nuku-Rauhihi's headrock back and/or the immediate aftermath of the shooting.[42] Finally, in relation to the issue of proof of intention to cause serious harm,while there is clear room for doubt about an intention to shoot Mr Nuku-Rauhihi inthe eye, an intention to shoot to the head, and thus cause serious injury, is readily ableto be inferred from the objective facts — the shot having been taken from onlythree metres.[43] In short, there was good reason to take a realistically low view of the prospectof an acquittal based on the available evidence.Other matters — miscarriage[44] In addition to the alleged trial counsel errors, Mr Forster referred to othermatters which he argues support a finding of miscarriage, namely:(a) Mr Hipson's statement to police (not disclosed to the defence) referringto threats made by the Nuku-Rauhihi whānau which is consistent withMr Kissling's general account of that whānau as threatening andaggressive;(b) Mr Nuku-Rauhihi made a statement retracting his identification ofMr Kissling as the shooter; and(c) Mr Murray had been contacted by members of the Nuku-Rauhihiwhānau in 2016 who offered to come to an arrangement whereby theproblem might go away if a demand for a settlement out of court wassatisfied. This placed Mr Murray in the position of being a potentialwitness, and also shows that the Nuku-Rauhihi family was tarnished byfinancial interest.[45] We endorse the conclusion reached by Judge Crayton on the first matter(referenced at [12] above). The statement provided by Mr Hipson about threats madeby the Nuku-Rauhihi whānau members provides little, if any, support forMr Kissling's defence; namely that he was not there. It also implicates Mr Kissling inthe offending. As to Mr Nuku-Rauhihi's retraction, it transpires it was short-lived.In a further statement to the police, he effectively disowned the retraction as not havingbeen signed by him.[46] As to the last matter, it is not clear to us what the actual complaint is. Assumingit is a submission that Mr Murray should not have acted, we note that Mr Murray wasre-engaged by Mr Kissling on the very clear basis that the Nuku-Rauhihi offer wouldnot be used in the defence case. This removed the potential for Mr Murray having toappear as a witness. Moreover, the apparent proclivity for deal making by theNuku-Rauhihi whānau also would have done little to advance Mr Kissling's claimeddefence, that is that he was not there at the time of the shooting.[47] We conclude there was no material trial counsel error. We also agree withJudge Crayton that Mr Kissling fully appreciated the merits of his position and madean informed decision to plead guilty. That being the case, the decision to plead guiltycannot be impugned.Result[48] The application to adduce fresh evidence on appeal is granted.[49] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent