Appeal dismissed for man's brutal axe attack on fishermen at Ti Point Wharf

Neither of the victims have ventured back to Ti Point Wharf - one of their favourite fishing spots - since the attack. Photo / Michael Craig

A man who savagely attacked two Korean fishermen with an axe has had an appeal against his conviction dismissed.

Shaun David Austin, 37, was found guilty after a trial in the Auckland District Court last year, after running a defence that he simply wasn't present at the time of the attack.

But Austin argued in the Court of Appeal in July that his lawyer, Jo Wickliffe, pushed him into that defence, and that he actually was present at the incident but was not responsible for the assaults and robbery.

A recently-released decision from the Court of Appeal said this wasn't true, and that Austin only told his lawyer of the alternative story after trial and conviction.

The court decision said Wickliffe was a "professional, determined and empathetic counsel" who did her best with a client who was hard to deal with.

Following conviction, Austin hand-wrote a letter saying that he had been in the area when the attack took place. He sent it to a police detective, probation services and Wickliffe.

Austin argued he told Wickliffe this story before the beginning of his trial, but the Court of Appeal did not believe his evidence.

"We are satisfied Ms Wickliffe defended Mr Shaun Austin in accordance with his instructions and it was only after he was convicted that he produced his alternative account," the decision read.

Notes taken by Wickliffe in a meeting with Austin after his conviction reveal their discussion about his sudden change in account.

M: You saying you were there now?

S: Yes.

M: Ran it on basis not there - can't do much now w what happened.

Wickliffe notes show she explained to Austin that given the trial was run on an "I wasn't there" defence, he could not dispute what happened during the attack.

Austin also claimed in his appeal he wanted to give evidence during the trial, to tell his side of the story, but was pressured not to take the stand.

Wickliffe admitted warning him against taking the stand in court, but said that was because of his "highly agitated" state.

"After the way he had conducted himself in the courtroom I was concerned about him giving evidence.

"I talked to him in almost every adjournment because of the way he was conducting himself, the battles I was having with security, and his focus on his partner.

"I've set it out in my affidavit and I'll say it again. From the moment he sat down in the dock and his partner sat behind him, he was talking to her, whispering to her.

"Security was having to tell him to face the front. I can barely remember him facing the front the whole time.

"His whole focus was on connecting with Abby, and that went on the whole trial.

"Never once did he say he wasn't happy with the way I was conducting the trial."

The attack

Shaun David Austin, 37, and Robert Eric Austin, 40, were sentenced last year in the Auckland District Court for savagely beating two men who were fishing at the Ti Point Wharf on April 1, 2015.

The Korean men, both Auckland-based pharmacists, had driven their new car to one of their favourite spots for some night fishing.

In the trial, the Austin brothers were found to have attacked the men at night, with Shaun Austin demanding car keys and wallets, while he held an axe.

When the man refused, Shaun dragged him from his car and began punching and kicking his head.

After several hits, Shaun used the axe and delivered a sickening strike to the man's head, with the back of the weapon.

The court was told Shaun then uttered to his brother, "let's finish 'em off", but Robert insisted they flee the scene.

The two men survived but told the court last year they suffered ongoing medical problems, and no longer returned to their previous favourite fishing spot.