JAMIE RONAKI KISSLING v R [2021] NZSC 132

JAMIE RONAKI KISSLING v R [2021] NZSC 132 [7 October 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 69/2021[2021] NZSC 132BETWEEN JAMIE RONAKI KISSLINGApplicantAND THE QUEENRespondentCourt: William Young, Glazebrook and Ellen France JJCounsel: Applicant in personB F Fenton for RespondentJudgment: 7 October 2021JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is granted.B The application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Kissling pleaded guilty to a charge of causing grievous bodily harm withintent to cause grievous bodily harm. His subsequent application to vacate his plea onthe basis of trial counsel error was unsuccessful1 and he was convicted and sentenced.2He appealed unsuccessfully to the Court of Appeal against conviction on the basis oftrial counsel error and maintaining that his application to vacate his guilty plea should1 R v Kissling [2019] NZDC 23647 (Judge Crayton).2 R v Kissling [2020] NZDC 3665 (Judge Crayton).have been allowed.3 Mr Kissling now applies for leave to appeal out of time from thedecision of the Court of Appeal.Background[2] The Crown case was that the offending arose in the context of tension betweentwo groups of neighbours – Mr Kissling's whānau and the Nuku-Rauhihi whānau.Matters escalated in July 2016 to threats of violence and some altercations. In theincident giving rise to the charge, Mr Kissling is said to have pointed a slug gun atMr Grant Nuku-Rauhihi and fired it from about three metres away. Mr Nuku-Rauhihiwas hit in the eye, blinding him in that eye.[3] Mr Kissling faced a number of charges. He was initially represented byMr Paul Murray. Ms Gretel Fairbrother took over as counsel for a period butMr Murray was re-appointed following the adjournment of an initial trial fixture. Thetrial went ahead on 12 November 2018.[4] What happened next is set out in the Court of Appeal judgment.4 For presentpurposes, it is sufficient to note that the evidence of the first Crown witness, thecomplainant's sister, was heard on the afternoon of 12 November. She was called asan eyewitness to the shooting. Although she identified Mr Kissling as the man firingthe slug gun, it appears the evidence was not particularly compelling. Mr Kisslingdecided to see how the evidence of the complainant, who was called next, went.Mr Nuku-Rauhihi's evidence was seen as having gone well for the Crown –Mr Kissling was clearly identified as the shooter. Mr Kissling decided to plead guilty.His signed instructions to that effect given on that day referred to the evidence notingboth witnesses identified him as the shooter and that he was not willing to take the riskthat he or his witnesses would not be believed.3 Kissling v R [2020] NZCA 685 (French, Whata and Mander JJ). The reasons for the Court'sjudgment were given in Kissling v R [2021] NZCA 6 (French, Whata and Mander JJ) [CA reasonsjudgment].4 CA reasons judgment, above n 3, at [7]–[8]. A proposal to resolve matters in exchange for a guiltyplea on the charge involving the slug gun was not pursued after Mr Kissling rejected the sentenceindication given for that charge.[5] Subsequently, on 7 December 2018, Mr Kissling applied to vacate his plea,raising trial counsel misconduct in a number of respects. Having heard evidence,Judge Crayton rejected claims Mr Murray did not take instructions, had not exploredall lines of defence and/or failed to organise witnesses.[6] In the Court of Appeal there were three claimed errors, namely, thatMr 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.[7] The alibi issue came to nothing as Ms Fairbrother had, in fact, filed an alibinotice. In addition, the Court of Appeal accepted Mr Murray's evidence that thepotential absence of a notice had no effect on his approach at all.[8] In terms of bail, the Court said that Mr Murray was in error in that he had notrealised Mr Kissling came within s 11 of the Bail Act 2000, which would preclude agrant of bail.5 The Court of Appeal accepted that the prospect of bail and the failureto be advised about s 11 were inducements to the guilty plea. But this aspect did notgive rise to a miscarriage of justice where the error did not engage any of therecognised exceptional grounds for vacating a guilty plea. The following factors wererelevant:(a) The error did not affect Mr Kissling's appreciation of the nature of thecharge and did not induce a mistaken belief he had no tenable defence.5 Section 11 of the Bail Act 2000 applies where a person convicted of a specified offence is foundguilty or pleads guilty to another specified offence.(b) Mr Kissling could have had no expectation of bail as he knew theDistrict Court Judge was not prepared to grant bail in exchange for aguilty plea.(c) Mr Kissling did in any event get bail on compassionate grounds almostimmediately.[9] On the final ground, advice as to prospects of success, the Court of Appealconsidered Mr Kissling had been advised of the risks of proceeding, althoughaccepting Mr Murray "may have left a pessimistic impression of the prospect of anacquittal".6 However, the Court set out various matters which explained whyMr Murray had serious concerns, including the "mobile nature of Mr Kissling'saccount" of where he was and as to what happened.7 The Court concluded "there wasgood reason to take a realistically low view of the prospect of an acquittal based onthe available evidence".8The proposed appeal[10] Mr Kissling wishes to raise a number of matters on appeal in support of thesubmission that a miscarriage of justice has resulted.9 Some of these matters wouldhave this Court re-consider matters raised in the Court of Appeal, such as the alibinotice issue. There is also reference to various other matters, including the failure bycounsel then acting to make an application for discharge in the context of the first trialdate; the failure of counsel on the appeal to follow instructions; and an affidavit whichMr Kissling says counsel was meant to raise on the appeal. Finally, Mr Kisslingchallenges the Court of Appeal's findings supporting Mr Murray's version of events.Mr Kissling maintains counsel did not act in his best interests.[11] The position in respect of the circumstances surrounding Mr Kissling's entryof the guilty plea and the advice Mr Kissling received has been the subject of evidenceand consideration in both the District Court and in the Court of Appeal. Nothing raised6 At [38].7 At [38(a)].8 At [43].9 Senior Courts Act 2016, s 74(2)(b). Mr Kissling also alleges various breaches of his rights underss 24 and 25 of the New Zealand Bill of Rights Act 1990.by Mr Kissling gives rise to the appearance of a miscarriage of justice in theassessment of those Courts of these matters. The criteria for leave to appeal are notmet.[12] Mr Kissling filed his notice of application for leave to appeal well out of time.He has provided an explanation for the delay and there is no objection from therespondent to our extending time.Result[13] The application for an extension of time to apply for leave to appeal is granted.The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent