JAYSON WIREMU POIHIPI v R [2023] NZSC 10

JAYSON WIREMU POIHIPI v R [2023] NZSC 10 [28 February 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 127/2022[2023] NZSC 10BETWEEN JAYSON WIREMU POIHIPIApplicantAND THE KINGRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: C G Tuck for ApplicantM J Lillico for RespondentJudgment: 28 February 2023JUDGMENT OF THE COURTA The application for an extension of time for leave to appealis granted.B The application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] Mr Poihipi seeks leave to appeal against a decision of the Court of Appealdismissing his appeal against conviction.1Background[2] Mr Poihipi was convicted in the High Court of the murder of his girlfriend,Lynace Parakuka. Mr Poihipi has some level of cognitive difficulty. He has not beenformally diagnosed but it is suspected he has foetal alcohol syndrome. He has poorcomprehension and struggles to read and write.1 Poihipi v R [2022] NZCA 421 (Miller, Duffy and Ellis JJ) [CA judgment].[3] At trial it was common ground that Mr Poihipi had assaulted Ms Parakuka bypunching and kicking her. The issue in dispute was whether he knew that death waslikely.[4] Mr Poihipi gave two police evidential video interviews (EVIs). In the first, hedenied the assault. In the second, he accepted the assault but said he did not intend tokill Ms Parakuka and did not realise the assault would cause death. Mr Poihipi saidhe was drunk at the time of the assault but did not disclose any drug use. Mr Poihipinow says that he was under the influence of psychedelic mushrooms and had usedmethamphetamine a few days prior.[5] Mr Poihipi did not tell his trial counsel, Mr Gowing, about themethamphetamine use. He did tell him that he had ingested mushrooms. Mr Gowinginterviewed Mr Poihipi's sister about that claim. Mr Gowing did not consider her tobe a reliable witness.[6] Mr Gowing's evidence before the Court of Appeal was that he gave Mr Poihipiadvice to the effect that if he (or his sister) were to give evidence to introduce themushroom use this would undermine the credibility of his second EVI. Mr Gowingtold Mr Poihipi that the second EVI put the defence case at its best. Mr Poihipi electednot to give evidence and signed a written acknowledgment of this.Court of Appeal judgment[7] Mr Poihipi appealed to the Court of Appeal on the basis that trial counsel failedto prepare, investigate and advance key elements of the defence case and had erred bygiving advice to Mr Poihipi not to give evidence.2 It was also submitted thatMr Gowing failed to communicate with Mr Poihipi appropriately and was under aduty to do so given Mr Poihipi's cognitive difficulties and mental state.3[8] The Court of Appeal rejected the arguments about the failure to investigate andadvance key elements of the defence case, in particular the elements that related to the2 At [12]–[13].3 At [14]. Mr Poihipi was suffering from suicidal ideation and possibly PTSD as a result of themurder.magic mushrooms. This was on the basis that the evidence of both ingestion and itseffect was weak.4 Further, the Court of Appeal stated that the expert evidencepredominantly pointed to the drug use affecting the motivation to assault rather thanMr Poihipi's understanding of the consequences.5 Additionally, had the evidence ofmushroom use been introduced, the credibility of the second EVI would have beenweakened because Mr Poihipi did not disclose this use, which would have called intoquestion what else he had kept from police.6[9] In relation to counsel failing to properly advise Mr Poihipi, the Court of Appealnoted that this ground of appeal is closely linked to the issue of not introducing theevidence of mushroom use. In addition, giving evidence would have exposedMr Poihipi to cross-examination, where he would have been questioned on theinconsistencies of the defence case, highlighting them and likely undermining hiscredibility.7[10] The Court of Appeal considered that Mr Poihipi was properly informed as tothe risks and benefits of giving evidence and accepted this advice in making hisdecision not to give evidence. Additionally, it was satisfied that Mr Gowing did noterr in advising Mr Poihipi to not give evidence. Accordingly, there was no error.8[11] The Court of Appeal accepted that counsel's communications when takinginstructions should be appropriate to the client's age and capacity. Where there areconcerns about a defendant's ability to understand the proceeding and instruct counsel,communication assistance pursuant to s 80 of the Evidence Act 2006 can be madeavailable. The objective must be that of full participation in the trial.9[12] The Court of Appeal held that there was nothing to indicate to trial counsel thatMr Poihipi was unfit to plead or participate in his trial. The Court noted thatMr Gowing knew from working for Mr Poihipi previously that he had some difficulty4 At [22].5 At [25].6 At [26].7 At [33].8 At [38].9 At [42].with comprehension, reading and writing. Mr Gowing had adjusted his approach toaccount for this.10The application for leave in this Court[13] Mr Poihipi applies for leave to appeal in this Court on the grounds that trialcounsel failed to tailor his approach to accommodate a vulnerable defendant and failedto provide adequate advice on giving or calling evidence.[14] The application for leave to appeal was out of time. Given the period isrelatively short, it is appropriate to grant an extension of time. The Crown did notoppose an extension being granted.Our assessment of the leave application[15] The Court of Appeal rightly recognised that counsel have a duty to tailor theircommunications to account for any vulnerabilities of their client. The issues raisedrelate to the application of that requirement to the particular circumstances of the caseand therefore the proposed appeal raises no matter of general or public importance.11[16] Further, nothing raised indicates that the Court of Appeal was wrong in itsassessment that trial counsel had appropriately adjusted his approach to account forMr Poihipi's impairment, that the advice was appropriate and that Mr Poihipiunderstood and accepted the advice given. Therefore, there is no risk of a miscarriageof justice.12Result[17] The application for an extension of time for leave to appeal is granted.[18] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent10 At [44].11 Senior Courts Act 2016, s 74(2)(a).12 Section 74(2)(b).