The deliberations of Court of Appeal president Justice Ellen France and four other judges are expected to take some time. Photo / Mark Mitchell
The deliberations of Court of Appeal president Justice Ellen France and four other judges are expected to take some time. Photo / Mark Mitchell
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All eyes this week have been on the Court of Appeal, where a landmark full bench sitting of five judges grappled with the perplexing trend of appeals based partly on lawyer (in)competency.
The deliberations of court president Justice Ellen France, Justices Tony Randerson, Lyn Stevens, Doug White and Christine French are expected to take some time and draw what lawyers hope will be "a line in the sand".
Asked what it was all about, a Crown Law Office spokeswoman said the court "is hearing together two appeals against convictions for sexual offending that were entered against the appellants following jury trials in the District Court. Both appeals involve allegations of trial counsel error.
"As well as dealing with the merits of the individual appeals, the court will hear argument on more general issues arising with respect to appeals based on trial counsel competency. The court has received submissions regarding the processes for dealing with trial counsel competency issues from various interveners, including the New Zealand Bar Association, the Criminal Bar Association, the New Zealand Law Society, the Public Defence Service and the Legal Services Commissioner."
CaseLoaders will recall (CaseLoad August 21, 2014) how crime barristers previously took umbrage over an increase in the number of self-represented litigants and a surge in appeals based on lawyer competency.
Criminal Bar Association president Tony Bouchier told CaseLoad then how appeals based on legal competency meant experienced criminal lawyers were having their competency challenged by less experienced and less competent lawyers representing disgruntled clients.
"It's sometimes a case of a lawyer giving good advice to a client - such as it may not be a good idea to put the client in the witness box," Bouchier said.
"If the client doesn't like the outcome then there's an appeal based on counsel competency. But fewer than 10 per cent of such appeals are successful..."
In a 2005 case, the Supreme Court dismissed an appeal by Atirut Sungsuwan - previously convicted on two charges of sexual violation - who alleged his lawyer was incompetent.
That related to whether or not two potential defence witnesses should or should not have been called. They weren't.
Chief Justice Dame Sian Elias. Photo / Marty Melville
In her judgment - in which lawyers take some solace - Chief Justice Dame Sian Elias noted:
"Counsel error is not itself a ground of appeal under s 385(1) (Crimes Act 1961). The inquiry is not into the competence of counsel but whether the verdict is unsafe through any deficiency in the trial, however caused.
Where, as here, the basis of the ground of appeal is that relevant and admissible evidence was not called (whether because it was not reasonably available at trial or because counsel did not choose to call it), the effect of its absence will have to be assessed.
The context may include the cogency of the evidence not called, the other evidence at trial, any additional evidence likely to have been elicited in response had the evidence been called, and any risk to the defence in calling the evidence."
Meanwhile, the Court of Appeal has reserved its decision on an appeal by Michael Umanui Werahiko (33), previously convicted and jailed for life, with a minimum of 15 years, for the murder of journalist Derek Round (77).
Werahiko attempted to have his guilty plea withdrawn by claiming his lawyers did not give him the best legal advice.
He sacked lawyers Peter Brosnahan and Debbie Goodlet before he was sentenced in December 2013.
Brosnahan (a lawyer since 1976) reportedly told the Court of Appeal the other day he thought it was impossible to defend the murder charge on the basis of a lack of intent or recklessness.
Is pulling a judge's longbottom wig just horse-hair play or something more sinister?
No Big Surprise Here
Special congratulations are due barrister Natalie Walker, of Kayes Fletcher Walker, who was appointed to the newly-created role of crown solicitor for Manukau.
Crown Solicitor for Manukau, Natalie Walker. Photo / Bevan Conley
It was decided earlier by Attorney-General Christopher Finlayson that a growing legal workload in the Auckland region meant Manukau should have its very own crown solicitor.
Chief Justice Dame Sian Elias (Mrs Hugh Fletcher) will be particularly chuffed - she is mother-in-law to Walker, who is married to Dame Sian's son Ned Fletcher, a partner in Kayes Fletcher Walker.
And those legal backbiters (names are known) who gleefully predicted venerable law firm Meredith Connell would be stripped of its prestigious Auckland Crown Solicitor-ship were all wrong - as they would have known had they listened to CaseLoad.
Fun-loving rough diamond Brian "I'm one of the boys and enjoy a beer on a hot day" Dickey (47), who became acting Crown Solicitor after celebrity prosecutor Simon John Eisdell Moore was made a celebrity High Court judge more than a year ago, was confirmed in the Crown Solicitor role held by the firm for more than 90 years.
"Did you seek advice before describing Dickey as an alleged fun-loving rough diamond," quizzed Our Man At The Bar, dusting off his tattered volume of Jeffreys On Punishing Defamers Cruelly.
"What's Simon Moore doing with himself these days?" said A Big Bloke At The Next Leaner. "Haven't seen him around court for a while..."
"We know but we're not telling," smirked A Pair Of Mature Lady Briefs.
"My lips are sealed," said Jim the Judges' Barber.
"Gone too far this time," said The Scunner, whipping out his hot poker.
Of Death Penalties And Other Tolerated Atrocities
Much has been said about the firing squad execution by Indonesian authorities of two Australian drug runners and other foreigners deemed not as newsworthy.
So expect a global media meltdown should Wanganui man Antony de Malmanche (52) - in custody accused of smuggling methamphetamine into Indonesia - end up with a similar fate, which appears to be on the cards if things go badly for him.
But before getting too holier than thou about the Indonesian death penalty, ponder this: New Zealand carried out its last hanging in 1957, the United Kingdom in 1964, Australia in 1967 and the French only stopped using the guillotine in 1977.
The All Blacks were playing test rugby with the French in 1977, just a few weeks after their last head-lopping.
New Zealand has traded with and enjoyed sporting connections with those countries for many years, without a skerrick of protest over their application of the death penalty.
Isn't it interesting how often the foaming of the media and the outrage of politicos is selective and not always shared by ordinary folk?
Old Man Of Crime Says Something
Just when you think distinguished Christchurch Queen's Counsel Kenneth Nigel Hampton has slipped away into an old folks cave on Banks Peninsula, he keeps bouncing back and re-inventing himself.
Nigel Hampton QC pictured in 2011. Photo / Ross Setford
CaseLoad's heavily whiskered old mate Nigel - whose stellar career includes a stint as Chief Justice of Tonga - is of sufficient vintage and stature he can say what he likes and most likely get away with murder.
Introducing Justice Minister and fellow Cantabrian Amy Adams to a recent lawyers' knees-up, Nigel had this to say:
"As an aside, Minister, we do hope that you last somewhat longer in your present role than your distaff fellow the Hon Annette King - a bare year; and that you do not meet the fate of your immediate distaff predecessor the Hon Judith Collins - and as to that resignation, Sir William Young (Justice Willie Young of the Supreme Court and a former legal partner of Nigel's) will maintain to his grave that her fault, the cause of her fall, was naming a lane in the new Christchurch courts' complex "Robert Chambers" and not "William Young".
Mayhaps it is within your purview to remedy that insult (to Canterbury practitioners at least an insult; an Auckland name with no Canterbury connection, unlike you I hasten to add), to remedy that insult... etc, etc ... blah, blah..." (Source: Canterbury Tales, organ of the Canterbury Westland branch of the New Zealand law society.)
"Do they all talk weird down there?" said Our Man At The Bar, shaking open the Sexual Strictures section of Nigel Cawthorne's The Strange Laws of Old England.
Footnote: The lane in question was named after Supreme Court judge, the late Sir Robert Chambers - husband of leading Auckland Queen's Counsel Deborah Chambers - who died suddenly in his sleep in 2013.
Apoplectic fire-frothing Christchurch lawyers spewed unfettered parochialism against the lane being named after Sir Robert, knighted posthumously, seemingly regardless of any hurt to the judge's family.
Question Of The Week
Why do his fellow lawyers reckon much-loved Queen's Counsel Paul Dacre is in for a judicial caning???
Watch this space ...
Paul Dacre QC. Photo / Wayne Drought
Is This The Future???
Want a taste of what live courtroom TV streaming might look like??? Check out 12 hours of Norwegian knitting, 24 hours of Scandinavian log burning or five days of Pacific Ocean cruise ship bridgecam. You can look it up yourselves.
