Convicted murderer Warren Pay appeals life sentence, claims his legal team failed him

Warren Leonard Pay at his 2020 sentencing in the High Court at Wellington. Photo / Melissa Nightingale

A man who plunged a knife into the heart of a man he was fighting with claims it was in self-defence and his murder conviction should be overturned as his legal team failed him.

Warren Leonard Pay, who has a brain injury and struggles with interpreting information, says his legal team didn’t adequately represent him in the lead-up to, and during, his trial, and that his actions on the night he fatally wounded Faapaia Fonoilaepa, 29, were borne of self-defence.

He has now appealed his conviction and sentence of life imprisonment with a minimum non-parole period of 10 years, stating his case to the Court of Appeal, which sat in the High Court at Wellington yesterday.

Pay spent the day-long hearing assisted by a communication specialist who sat with him in the dock of courtroom one.

He was found guilty in 2019 of murdering Fonoilaepa in Lower Hutt.

According to the summary of facts recounted at his 2020 sentencing, Pay was wearing a metal chainlink vest and a mouthguard while carrying a homemade gun and a butcher’s knife on the night of the attack in September 2018.

He came across Fonoilaepa, who was walking with a friend down High St in the suburb of Taita, when he approached the men and challenged them before attacking with his fists.

Pay crossed the road, but the men followed him as the violent encounter continued, this time with Fonoilaepa and his friend punching Pay to the ground and stomping on him.

As the pair went to leave, Pay yelled something and Fonoilaepa returned.

Pay stabbed Fonoilaepa through the heart with the knife and the violent encounter, which lasted just more than two minutes, came to an end.

During his appeal, Pay was questioned at length by Crown prosecutor Dale La Hood.

Lawyers Eric Forster, who was Pay’s initial lawyer, and Chris Tennet and Geoff Fulton, who took over the case and represented Pay at trial, also gave evidence.

Pay argued he wasn’t given full disclosure prior to his trial and was disadvantaged by his legal representation. He also did not have a full brief of evidence prepared before the trial, he claimed.

Warren Pay's case was heard by the Court of Appeal.

During cross-examination, Pay described himself as “slow”, and said when he gave his interview with police, evidence that was heavily relied on at trial, he was still suffering from the impacts of the attack.

He said he wanted to give evidence at his trial, but his lawyers advised against it as they were scared he was going to change his story.

“He didn’t want me to change the story and If I changed the story I’d be looked at as a liar,” Pay said. “I wasn’t going to lie, all I was going to tell was the truth.”

Pay’s appeal lawyer Elizabeth Hall alleged his original lawyers didn’t act in his best interests.

Hall argued inadequate preparation in the lead-up to the trial “made what happened at the trial almost an inevitability”.

This included inaction on professional advice from forensic psychiatrist Dr Justin Barry Walsh, who suggested a neuropsychological assessment would be beneficial in understanding Pay’s mental wellbeing and the impacts of his head injury.

Hall argued file notes and preparations by Pay’s then lawyers weren’t thorough enough to broach her client’s complicated case, he was not shown the police interview before trial, and the communication assistant was engaged weeks before a jury would decide his fate.

Due to his brain injury, which he suffered as a child, Pay has significant difficulty in interpreting information and communicating, Hall said, and a communication assistant should have been called sooner.

Tennet accepted he didn’t act on the advice of Dr Barry Walsh and failed to sit down and watch Pay’s police interview with his client present.

Fulton, who took a lesser role during the trial but assisted Tennet, agreed a communication assistant should have been engaged earlier and Pay should have seen the police interview before the trial.

La Hood said there was no miscarriage of justice in Pay’s case and asked for the decision of the High Court to be upheld.

The court reserved its decision.

Hazel Osborne is an Open Justice reporter for NZME and is based in Te Whanganui-a-Tara, Wellington. She joined the Open Justice team at the beginning of 2022, previously working in Whakatāne as a court and crime reporter in the Eastern Bay of Plenty.