New Zealand Case Law: Decisions & Judgments

Topic

Counsel error

Legal area

Court

28 Mar 2023

WHAKATAU v NEW ZEALAND POLICE [2023] NZHC 650

Citation

[2023] NZHC 650
Court

High Court

Leave to appeal out of time was granted but the appeal was dismissed because the appellate court found no counsel error that created a real risk of affecting the verdict — standby counsel's decisions were reasonable tactical judgments and key issues were ventilated at trial — and police investigatory omissions involved no bad faith and any lost evidence was speculative and unlikely to have produced real assistance to the defence.
9 Feb 2023

METE v POLICE [2023] NZHC 138

Citation

[2023] NZHC 138
Court

High Court

Because counsel materially erred by failing to make a searching inquiry into whether the appellant should be discharged without conviction before advising the judge to enter convictions, the convictions were quashed for miscarriage of justice and the charges were remitted to the District Court.
14 Dec 2022

TAYLOR v R [2022] NZCA 626

Citation

[2022] NZCA 626
Court

Court of Appeal

Notice of abandonment was set aside because the appellant's abandonment was linked to unsatisfactory conduct by the solicitor who handled the appeal steps; however, after considering the merits the Court dismissed the appeal because the appellant failed to establish a miscarriage of justice — trial counsel's tactical decisions (relying on a comprehensive police video interview and concerns about calling the appellant) were reasonable, there was no demonstrable prejudice from not calling the brother and his later affidavit was neither sufficiently credible nor cogent as fresh evidence, and the…
22 Dec 2020

KISSLING v R [2021] NZCA 6

Citation

[2021] NZCA 6
Court

Court of Appeal

Although trial counsel omitted to advise about the statutory ineligibility for bail and the alibi notice issue, and may have given a pessimistic impression about acquittal prospects, those failures did not create a real risk that the trial outcome was affected; the appellant entered a voluntary, informed guilty plea after appreciation of the merits and available evidence, so no miscarriage of justice occurred and the appeal is dismissed.
27 Jul 2020

FENTON v R [2020] NZHC 1832

Citation

[2020] NZHC 1832
Court

High Court

Although trial counsel was mistaken about s73 and should have taken steps (seek adjournment, contact co-defendant's counsel or obtain the co-defendant's willingness to testify) such error did not produce a real risk the verdict was unsafe because the proposed exculpatory account was implausible and contradicted reliable objective evidence; accordingly the appeal is dismissed though extension of time is granted.
2 Apr 2020

STITT v POLICE [2020] NZHC 676

Citation

[2020] NZHC 676
Court

High Court

The appellate Judge concluded the trial Judge's reasons were inadequate and relied on problematic treatment and weighting of photographic evidence and insufficient corroboration; absence of injury to the appellant was an inadequate basis to reject his evidence; these errors created a real risk the trial outcome was affected, so the convictions were set aside and a retrial ordered.
18 Feb 2020

RAKESH REDDY v NEW ZEALAND POLICE [2020] NZHC 197

Citation

[2020] NZHC 197
Court

High Court

No counsel error was found on the evidence, but on consideration of admissible s 94 material the court concluded a substituted community-based sentence would have been available and the disqualification imposed was manifestly excessive; the disqualification was quashed and a further 40 hours community work was imposed (appellant had completed 60 hours).
4 Feb 2020

CLARKE v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2020] NZHC 63

Citation

[2020] NZHC 63
Court

High Court

No counsel error was established — previous counsel did not advise that home detention or bail were likely and any advice that home detention remained possible was not incorrect; however the District Court erred in setting an excessively high starting point for the lead offences and in the quantum of uplift for managing a business while bankrupt; the appropriate sentence on the concealing and fraudulent removal charge was reduced from two years to 15 months and overall total sentence reduced accordingly to 2 years 3 months, while other component sentences were left intact.
25 Jun 2019

McNABB v NEW ZEALAND POLICE [2019] NZHC 1448

Citation

[2019] NZHC 1448
Court

High Court

Appeal dismissed: counsel's decision not to call or rely on the disputed affidavit was a reasonable tactical choice, there was no clear instruction to call the witness, the third‑party evidence was unreliable and temporally irrelevant to the charged conduct, and no real risk existed that the verdict would have been different had the evidence been called.
18 Dec 2018

YARROW v WESTPAC NEW ZEALAND LIMITED [2018] NZCA 601

Citation

[2018] NZCA 601
Court

Court of Appeal

Grant extension because delay resulted from counsel error by a practitioner unfamiliar with appellate practice, the appeal had been filed in time, the respondent could not show material prejudice, and pre‑hearing merits review must be superficial for appeals as of right; accordingly r 43(2) warranted extension and reinstatement of the appeal to be scheduled for hearing.