JAYSON WIREMU POIHIPI v R [2022] NZCA 421

JAYSON WIREMU POIHIPI v R [2022] NZCA 421 [8 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA205/2020[2022] NZCA 421BETWEEN JAYSON WIREMU POIHIPIAppellantAND THE QUEENRespondentHearing: 12 May 2022Court: Miller, Duffy and Ellis JJCounsel: C G Tuck for AppellantS K Barr for RespondentJudgment: 8 September 2022 at 11.45 amJUDGMENT OF THE COURTA The application to adduce further evidence on appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] Mr Poihipi was convicted of the murder of Lynace Parakuka after trial by juryon 27 September 2019.1 He appeals against conviction on the basis of trial counselerror.[2] Several affidavits and reports have been put into evidence before us.The appeal is not advanced on a fresh evidence basis, rather, the evidence is introduced1 Crimes Act 1961, s 167(b).to demonstrate what would have been available had trial counsel pursued certain steps.We make reference to this evidence to the extent we consider relevant.Background[3] Mr Poihipi is now 23 years old and was 19 at the time of the offending, whichoccurred in 2018. He has some level of cognitive difficulty. Although he has not beenformally diagnosed it is suspected he has foetal alcohol syndrome.2 He has poorcomprehension and struggles to read and write. Following his conviction Mr Poihipisuffered from suicidal ideation and was placed in the at-risk unit at Waikeria Prison.[4] The police summary of facts alleged the following. On 7 September 2018Mr Poihipi and Ms Parakuka, his girlfriend, had been drinking alcohol at an associate'shouse. The pair made their way back to Mr Poihipi's uncle's house and went separateways for a period of time. They happened upon each other on the street at about 11 pmand became involved in a heated argument. Mr Poihipi grabbed Ms Parakuka by herhand and dragged her onto the grounds of a nearby school, where they continued toargue. Mr Poihipi then lashed out at Ms Parakuka, punching her several times andcausing her to fall to the ground. He described the punches as being as hard as hecould punch. Ms Parakuka attempted to get up, but Mr Poihipi kicked her in the head.She fell to the ground, unconscious. Mr Poihipi walked a short distance and sat downfor about 20 minutes. He could hear Ms Parakuka breathing in a laboured mannerbefore she made a gurgling noise and then stopped making noise. This prompted himto check on her. Upon seeing her injuries and that she was not breathing, he ran to gethelp. He returned to Ms Parakuka with an associate. Emergency services were notable to resuscitate her.[5] The sentencing notes add that there were 11 to 20 blows to Ms Parakuka's headand face, and Mr Poihipi and his associate had attempted to resuscitate Ms Parakukaat the scene.32 The report of Dr Jansen before us on appeal notes that it is "more likely than not that he has adegree of Foetal Alcohol Syndrome" but "this is not yet proven". There is no reference in thepre-sentence PAC report to foetal alcohol syndrome.3 R v Poihipi [2019] NZHC 3048 at [5]–[6].[6] Mr Poihipi was charged under s 167(b) of the Crimes Act 1961. The Crowncase was that he caused Ms Parakuka's death by intentional assault knowing that deathwas likely. 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. The defence case was that Mr Poihipi was guilty of manslaughter only. He didnot appreciate the assault would cause death because he was intoxicated, he lashed outin anger and violent assaults were normalised to him due to his mother's experiencewith domestic abuse.[7] Mr Poihipi gave two police evidential video interviews (EVIs). In the first,recorded within hours of the assault, he denied accountability for the assault altogetherand blamed it on an earlier assault Ms Parakuka had suffered. In the second, recordedon 9 September 2018, he accepted the assault but said he did not intend to killMs Parakuka and did not realise the assault would cause death. He appeared upsetand remorseful. Mr Poihipi said he was drunk at the time of the assault but did notdisclose any drug use.[8] According to the evidence of Mr Gowing, trial counsel, Mr Poihipi instructedhim that the second EVI gave a true account of events. Mr Gowing therefore reliedon the second EVI in place of a brief of evidence.[9] However, Mr Poihipi says now that he was under the influence of psychedelicmushrooms and had used methamphetamine a few days prior. This was not stated inthe second EVI. He says that he wanted the mushroom use and proximatemethamphetamine use to be put into evidence to prove that he did not realise deathwas likely.[10] Mr Poihipi did not tell Mr Gowing about the methamphetamine use. He didtell him that he had ingested mushrooms. Mr Gowing interviewed Mr Poihipi's sisterabout that claim. His notes of the meeting state she informed him that she sawMr Poihipi "chew a few of them" before taking them off him and consuming someherself. She did not feel any effect "as it wasn't enough and I was too drunk".Mr Gowing did not consider her to be a reliable witness because she did not disclosethe drug use in her police statement when asked about intoxication and she admittedto her memory being poor because she was a chronic alcoholic. There was noindependent evidence of the mushroom use affecting Mr Poihipi that night and in factthere was some evidence that he did not appear to be intoxicated. His uncle andcousin, who saw him that evening, did not consider him to be acting abnormally(although the officer conducting the first EVI thought Mr Poihipi was drunk).[11] Mr Poihipi says that he always wanted to give evidence but did not know whathe might say and was anxious about going into the witness box. Mr Gowing's recordsdescribe Mr Poihipi as "reluctant" to give evidence. Mr Gowing states that he gaveMr Poihipi advice to the effect that if he (or his sister) were to give evidence tointroduce the mushroom use this would undermine the credibility of his second EVIbecause it would show the jury he was lying. Mr Gowing told Mr Poihipi that thesecond EVI put the defence case at its best. Mr Poihipi elected not to give evidenceand signed a written acknowledgment of this.The appeal[12] Mr Tuck for Mr Poihipi submits that Mr Gowing failed to prepare, investigateand advance key elements of the defence case:(a) the issue of proximate drug taking (mushroom use);(b) Mr Poihipi's history of anger; and(c) whether proximate injuries suffered by Ms Parakuka contributed to herdeath;Mr Tuck also submits Mr Gowing failed to prepare and advance the defence case byfailing to call witnesses and failing to take instructions on pretrial issues.[13] Second, Mr Tuck submits Mr Gowing erred by giving advice to Mr Poihipi tonot give evidence. This ground is closely related to the decision not to introduce theproximate drug taking issue.[14] Third, Mr Tuck submits that Mr Gowing failed to communicate withMr Poihipi appropriately and was under a duty to do so given Mr Poihipi's cognitivedifficulties and mental state.[15] Accordingly Mr Tuck alleges there has been a miscarriage of justice.Law[16] For Mr Poihipi to succeed on the appeal, the Court must be satisfied there hasbeen a miscarriage of justice.4 The leading case on trial counsel error isR v Sungsuwan, where the Supreme Court stated:5[70] In summary, while the ultimate question is whether justice hasmiscarried, consideration of whether there was in fact an error or irregularityon the part of counsel, and whether there is a real risk it affected the outcome,generally will be an appropriate approach. If the matter could not have affectedthe outcome any further scrutiny of counsel's conduct will be unnecessary.But whatever approach is taken, it must remain open for an appellate Court toensure justice where there is real concern for the safety of a verdict as a resultof the conduct of counsel even though, in the circumstances at the time, thatconduct may have met the objectively reasonable standard of competence.[17] Thus, an appropriate approach is to consider whether there was in fact any erroror irregularity on the part of counsel, and whether there is a real risk it affected theoutcome. If the matter could not have affected the outcome any further scrutiny ofcounsel's conduct will be unnecessary.6[18] In Hall v R, this Court stated that there are three fundamental decisions onwhich trial counsel's failure to follow specific instructions would likely give rise to amiscarriage of justice: "relating to plea, electing whether to give evidence and toadvance a defence based on the accused person's version of events".7 Other errors areless likely to lead to a miscarriage of justice.[19] Further, trial counsel has a discretion over their trial strategy. Trial counselerror that is capable of leading to a miscarriage of justice is distinct from circumstances4 Criminal Procedure Act 2011, s 232(2).5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.6 At [70].7 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].where trial counsel has made a tactical decision which was reasonable in the contextof the trial.8 It is not a matter of whether counsel could have reached a differentdecision or conducted the trial in another way.9[20] A defendant who elects not to give evidence must make that decision on aproperly informed basis. This means the defendant must have been given advice thatconsiders, in the particular circumstances of a defendant's trial, the potential benefitsand risks associated with the defendant giving evidence.10DiscussionFailure to investigate, prepare and advance key elements of defence case[21] Mr Tuck submits that Mr Gowing failed to follow instructions that Mr Poihipihad consumed mushrooms prior to the killing and to put this to the jury. He saysMr Gowing should have turned his mind to, or sought expert opinion on, the effectsof psylocibin (the active compound in psychedelic mushrooms) on a young brain,especially when taken for the first time, and the impact of this on Mr Poihipi at thetime of the killing and at the first interview.[22] However, as Mr Gowing deposes, engaging experts in an analysis of thepossible impact of psychedelic mushrooms on mental state would have been mootgiven there was no evidence of the mushrooms having any effect on Mr Poihipi, andonly inconsistent evidence that he had consumed any. His cousin and uncle reportedthat he seemed to be acting normally when he and Ms Parakuka visited them and whenhe returned after the killing to get help. The police merely reported that he seemeddrunk. His sister stated to Mr Gowing that she had seen Mr Poihipi "chew a few ofthem" and that there was no effect on her after consuming the rest. The fundamentalevidence confirming consumption and some effect had to be established before furtherevidence would be useful, and on the evidence available, it could not be.8 R v Scurrah CA159/06, 12 September 2006 at [18].9 R v Sungsuwan, above n 5, at [66].10 Weston v R [2019] NZCA 541 at [25] citing Nightingale v R [2010] NZCA 473 at [12].[23] Further, the account given by Dr Jansen in the psychiatrist report now beforeus (written post-conviction) of the effect of Mr Poihipi's mushroom use on hisbehaviour is not necessarily conclusive. He states that research:has not generally found a causal relationship between taking [psychedelichallucinogens] and violence – indeed the reverse seems to be true Whathappened in this case appears to be a rare event.[24] Dr Jansen's analysis of Mr Poihipi's likely mental state was also not necessarilyconclusive as to whether the mushroom use meant he could not appreciate the assaultwas likely to cause death:177. The evidence from both Mr Poihipi himself and from witnessesindicates to me that Mr Poihipi probably did know who he was at the time ofthe offence, and where he was, and most of the time he is likely to have knownwho the victim was. However, he has said that he did not know who she wasall of the time, that she appeared to be several different people, and that hewas 'going in and out' of a drug-induced state.178. I have not seen cause to doubt his account that they argued over anumber of matters, and they have argued before with violence resulting.179. However, Mr Poihipi's jealousy at the peak of the psilocybinexperience may have been pathological, and his stated belief that she wassetting him up for the gangs seems likely to have been paranoid, as were hisconcerns about others laughing at him. At least some of his beliefs are likelyto have arisen from, or been strengthened by, substances consumed.180. Mr Poihipi has also provided prosaic reasons for the argument, suchas his losing money at pokies [sic], and being evicted from his sister's home.181. Mr Poihipi has denied forming any intent to kill the victim.He described losing control of himself in the face of perceived extremeprovocation and paranoid beliefs.182. In my opinion, Mr Poihipi did know at the time that his actions werewrong for him to perform, and he did mean to attack the victim. He thus doesnot have a defence of automatism available to him as regards the attack, andhe also does not have a defence of insanity available to him.183. However, there may well have been a degree of disconnectionbetween mind and body once this attack was underway, in terms of its severity,and the psilocybin could, in this instance, have caused that.184. There are thus some medical grounds to conclude a degree ofdiminished responsibility, and to question whether Mr Poihipi formed anintent to kill the victim, as opposed to losing control of himself in response tobeliefs and perceptions which were at least partly false.[25] Even if the jury accepted that Mr Poihipi was having drug-induced delusions,they would have had to believe that he did not appreciate his assault would be likelyto cause death. It was not a matter of whether he formed "intent to kill" because hewas charged on the basis of reckless knowledge. The expert evidence predominantlypoints to the drug use affecting his motivation to assault rather than his understandingof the consequences. Further, insofar as Dr Jansen comments on diminishedresponsibility influencing murderous intent, we note that diminished responsibility isnot a defence (or partial defence) to murder in New Zealand.11[26] The jury already had evidence of Mr Poihipi's intoxication. In his second EVIhe stated he had been drinking all day and one of the police officers attending the scenegave evidence that he was intoxicated. Another officer gave evidence that Mr Poihipisaid he had an 18-pack of Cody's. The Judge gave an orthodox intoxication direction,which permitted the jury to take intoxication into account when assessing Mr Poihipi'sstate of mind at the time of the killing and his ability to comprehend consequences.We doubt that adding the evidence of mushroom use would have been capable ofaffecting the outcome of the trial. Additionally, had the mushroom use evidence beenintroduced, the credibility of the second EVI would have been weakened becauseMr Poihipi did not disclose this use, which would have called into question what elsehe kept from police.[27] We put the potential prior methamphetamine use to one side as Mr Poihipi didnot disclose this to trial counsel so Mr Gowing could not reasonably have beenexpected to pursue it.[28] The alleged failure to call defence witnesses is a corollary of the above.His sister's affidavit prepared for this appeal states that she would have given evidenceMr Poihipi "stuff[ed] a handful [of mushrooms] in his mouth" but he "denied havingany" and she "did not notice if [he] was tripping". Even if she had given this evidenceit is unlikely this would have established that Mr Poihipi was intoxicated by themushroom consumption to the extent that he may not have appreciated theconsequences of his actions.11 Dr Jansen spent some time practicing in the United Kingdom where diminished responsibility isa partial defence to murder.[29] We do not consider that Mr Poihipi's history of anger would have assisted thedefence case. While it may have supported the defence case that Mr Poihipi "lashedout", that was already obvious. The fact that he acted in anger does not detract frommurderous intent.[30] We agree with Mr Gowing that the proximate injuries suffered by Ms Parakukafrom the earlier assault (see [7] above) were not especially relevant to the defence.It was not precisely clear when the earlier assault occurred, and the Crown pathologyreport as to cause of death was self-evident. Additionally, this issue was pursuedbriefly in cross-examination, however the pathologist made it clear that it would beeasy to distinguish between injuries inflicted just prior to or at the time of death andthose inflicted several days earlier. Further evidence was unlikely to have assisted.[31] Mr Tuck has not pointed to any pretrial issues that should have been the basisof an application, which, if granted, may have affected the outcome. He saysadmissibility of police evidence should have been challenged because the police talkedto Mr Poihipi on a cigarette break without the requisite warnings. However, asMr Gowing notes, that evidence largely reiterated what Mr Poihipi said in his EVIsand had little impact on the outcome of the trial.[32] Accordingly, we are satisfied there was no trial counsel error relating to afailure to investigate, prepare and advance key elements of the defence case.Failure to properly advise Mr Poihipi regarding giving evidence[33] This ground of appeal is closely linked to the issue of not introducing themushroom use evidence, because that was the only piece of evidence Mr Poihipiindicated he did not disclose in his second EVI. As discussed above, it is unlikely thatthis evidence would have been material to the verdict. Further, giving evidence wouldhave exposed Mr Poihipi to cross-examination, where he would have been questionedon the inconsistencies of the defence case, highlighting them and likely undermininghis credibility. For example, the Crown pathology report suggested a much moresustained and brutal attack than Mr Poihipi admitted in his second EVI, and he wouldhave been challenged on that. There were clearly disadvantages to Mr Poihipi givingevidence.[34] Mr Tuck is critical that the document Mr Poihipi signed to confirm his electionto not give evidence merely records cross-examination as a risk of giving evidenceand does not record any other benefits or risks. He submits it does not go into enoughspecific detail, especially as to the potential benefits of giving evidence.[35] However, Mr Gowing had clearly discussed this risk in some detail withMr Poihipi, the main risk being that Mr Poihipi's second EVI would be undermined.Mr Poihipi confirmed in cross-examination before us that he had had a number ofdiscussions with Mr Gowing about whether or not he should give evidence, bothbefore trial and after the Crown case. He agreed that Mr Gowing had explained tohim that the second EVI was good for his defence and the problems with him givingevidence. He understood it was his decision to choose whether or not to give evidenceand accepted Mr Gowing's advice because he thought Mr Gowing "was a goodlawyer".[36] Mr Tuck also points to the fact that Mr Gowing did not prepare a brief ofevidence and this caused Mr Poihipi to feel confused and unsure about what evidencehe would give, even though he did want to give evidence. However, Mr Gowing reliedon the transcript of the second EVI as Mr Poihipi informed him it set out what hadhappened. They went over the transcript carefully together. Mr Gowing's evidencewas that Mr Poihipi was consistent that he did not want to give evidence so no furtherpreparation was made. There may have been a lack of understanding on Mr Poihipi'spart about precisely what he would say but it was clear between him and Mr Gowingthat the main purpose of giving evidence would be to introduce the mushroom useevidence.[37] Mr Tuck submits that Mr Poihipi needed to give evidence to clarify the firstEVI. However it was a legitimate defence strategy to simply maintain that the firstEVI was a lie but the second EVI was the truth. This did not require Mr Poihipi togive evidence.[38] We consider that Mr Poihipi was properly informed as to the risks and benefitsof giving evidence and accepted this advice in making his decision not to giveevidence. Additionally we are satisfied that Mr Gowing did not err in advisingMr Poihipi to not give evidence. Accordingly there was no error.Failure to tailor approach to Mr Poihipi's background and mental state[39] Mr Tuck submits that Te Wini v R is authority for the following propositions:12(a) There is a duty for trial counsel to take additional care when acting fora vulnerable young defendant.(b) There is a duty on trial counsel to adequately explore psychiatric issueswhich may have a bearing on the defendant's state of mind at the timeof the offending and/or fitness to plead.[40] In Te Wini, the defendant was 14 years old at the time of the alleged offendingand 15 years, 11 months old at trial. She was taking a medication that impairedalertness and concentration. She was also experiencing depression, complexpost-traumatic stress disorder, suicidal ideation, negative cognitions, emotionaldysregulation, self harming, hallucinations, flashbacks and nightmares.No accommodations were made at trial to account for her youth or psychiatric state.Further, no psychiatric report was obtained by trial counsel.[41] This Court canvassed special measures that have been made to murder trials toaccount for the young age of the accused and cited the rationale set out by Fisher J inR v Kaukasi:13 because of the age of some of these accused unusual measures are justifiedto reduce stress upon them and hence promote the kind of fairness of trial morereadily achieved for an adult. the difficulty in trials of this nature is thatprolonged stress on young accused can disable them from taking anymeaningful part in defending charges against them.[42] We observe that Te Wini relates to youth defendants and addresses measurestaken by the court during trial to help such a defendant participate fully. It does notaddress how counsel should deal with their client during trial preparation. Counsel12 Te Wini v R [2011] NZCA 405.13 At [20], quoting R v Kaukasi (Minute No 5) HC Auckland T014047, 4 July 2002 at [30].appearing before us were not able to identify any case pointing to a special standardthat should be met by defence counsel where the client is youthful or under a disabilityof some kind. Counsel must always obtain instructions after explaining the nature andconsequences of the client's decision.14 It is implicit in that obligation that counsel'scommunications, when taking instructions, should be appropriate to the client's ageand capacity. Where there are concerns about a defendant's ability to understand theproceeding and instruct counsel, communication assistance pursuant to s 80 of theEvidence Act 2006 can be made available. The objective must be that of fullparticipation in the trial.[43] It may also be necessary for counsel to seek a specialist report where counselis aware of difficulties which may affect the client's participation in the trial.15In Te Wini, this Court commented that counsel should have sought a psychiatric report,because counsel knew of the defendant's psychiatric difficulties and the report couldhave at least had relevance to her participation at trial and her sentence.[44] Here, there was nothing to indicate to Mr Gowing that Mr Poihipi, who wasaged 18 at the time of the offending, was unfit to plead or participate in his trial.Mr Gowing knew from working for Mr Poihipi previously that he had some difficultywith comprehension, reading and writing. He adjusted his approach to account forthis — for example, he read the agreement to elect to not give evidence aloud toMr Poihipi rather than have him read it.[45] Additionally, although Mr Poihipi was struggling with suicidal ideation andpossibly PTSD, these resulted from his involvement in the killing. This was clear toMr Gowing from Mr Poihipi's comments that he could not live without Ms Parakuka.Accordingly, there would have been no reason to investigate the impacts of thispsychiatric state on Mr Poihipi's state of mind at the time of the killing.14 Lawyers and Conveyancers Act (Lawyers: Client Care and Conduct) Rules 2008, r 13.3. See alsor 13.13.15 We note also the duty of counsel to be vigilant as to signs that the defendant is not fit to stand trialand to raise any concerns with the Court where appropriate: McKay v R [2009] NZCA 378, [2010]1 NZLR 441 at [39].[46] Whilst Dr Jansen's report touches on the possibility of Mr Poihipi beingaffected by foetal alcohol syndrome, there was no firm diagnosis of this condition, noris there evidence relating to how it might affect Mr Poihipi's ability to receiveinformation from his counsel and provide instructions in response.[47] It follows that we see no error in relation to how Mr Gowing approached therepresentation of Mr Poihipi.Result[48] The application to adduce further evidence on appeal is granted.[49] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent