Criminal Procedure – leave to appeal murder conviction on grounds trial counsel failed to tailor approach to accommodate vulnerable defendant and failed to provide adequate advice on giving or calling evidence – application for an extension of time for leave to appeal granted – application for leave to appeal dismissed – applicable principles – procedure – Court of Appeal rightly recognised that counsel have a duty to tailor their communications to account for any vulnerabilities of their client – issues raised relate to the application of that requirement to the particular circumstances of the case and therefore the proposed appeal raises no matter of general or public importance – Senior Courts Act 2016, s 74(2)(a) – nothing raised indicates the Court of Appeal was wrong in its assessment that trial counsel had appropriately adjusted its approach to account for applicant’s impairment – advice provided was appropriate – the applicant understood and accepted the advice given – no risk of a miscarriage of justice – Senior Courts Act 2016, s 74(2)(b)Jason Wiremu Poihipi v R [2023] NZSC 10 (Glazebrook, O’Regan and Ellen France JJ)Please note:

• The citation for the Court of Appeal decision, concerning the applicant’s appeal against conviction on the grounds trial counsel failed to prepare, investigate and advance key elements of the defence case and had erred by giving advice to Jason Poihipi not to give evidence is Poihipi v R [2022] NZCA 421. This decision provides a fuller factual background and discussion of pertinent case law on trial counsel error.

Following trial by jury, Jason Poihipi was convicted of murder of his girlfriend pursuant to s 167(b) of the Crimes Act 1961. The Crown case was that Poihipi caused his girlfriend’s death by intentional assault, knowing death was likely. The defence case was that Poihipi was guilty of manslaughter only, that he did not appreciate the assault would cause death because he was intoxicated, he lashed out in anger and violent assaults were normalised to him due to his mother’s experience with domestic abuse. It was common ground that Poihipi had assaulted his girlfriend by punching and kicking her.

The issue is dispute was whether Poihipi knew that death was likely.Poihipi gave two police evidential video interviews. In his first interview, Poihipi denied accountability for the assault and blamed it on an earlier assault his girlfriend had suffered. In his second interview, Poihipi accepted the assault but said he did not intend to kill his girlfriend and did not realise the assault would cause death. Further, he was drunk at the time of the assault but did not disclose any drug use.  Poihipi instructed his trial counsel that his second interview provided a true account.

He was 19 years old at the time of offending. He had some level of cognitive difficulty, poor comprehension and struggled to read and write. Although not formally diagnosed, it was suspected he had foetal alcohol syndrome. There was no reference to foetal alcohol syndrome in the pre-sentence report. A psychiatric report prepared post-sentence and for the purpose of Poihipi’s appeal against conviction at the Court of Appeal noted it was “more likely than not that he has a degree of foetal alcohol syndrome” but “this is not yet proven”. Following his conviction, Poihipi suffered from suicidal ideation and was placed in the at-risk unit at Waikeria Prison.

Poihipi sought leave to appeal against the decision of the Court of Appeal dismissing his appeal against conviction.

At the Court of Appeal, Poihipi advanced his appeal on the grounds trial counsel failed to prepare, investigate and advance key elements of the defence case – the issue of proximate drug taking – psychedelic mushrooms and methamphetamine – Poihipi wanted the mushroom and proximate methamphetamine use to be put into evidence at trial to prove that he did not realise death was likely – trial counsel had failed to follow instructions that Poihipi had consumed mushrooms prior to the killing and to put this to the jury – trial counsel should have turned its mind to, or sought expert opinion on, the effects of psylocibin on a young brain, especially when taken for the first time, and the impact of this on Poihipi at the time of the killing and at the first interview – Poihipi’s history of anger – whether proximate injuries suffered by his girlfriend – and had erred by giving advice to Poihipi to not give or call evidence – linked to the issue of not introducing the evidence of mushroom use.

It was further submitted that trial counsel had failed to communicate with  Poihipi appropriately and was under a duty to do so given his cognitive difficulties and mental state – that there is a duty for trial counsel to take additional care when acting for a vulnerable young defendant – and a duty to adequately explore psychiatric issues which may have a bearing on the defendant’s state of mind at the time of the offending and/or fitness to plead – that  Poihipi had difficulty with comprehension, reading and writing – was suffering from suicidal ideation and possibly PTSD as a result of the murder – and was possibility affected by foetal alcohol syndrome.

At the Supreme Court, Poihipi advanced his appeal on the grounds that trial counsel failed to tailor its approach to accommodate a vulnerable defendant and failed to provide adequate advice on giving or calling evidence.

Held: Application for an extension of time for leave to appeal granted – application for leave to appeal dismissed – no risk of a miscarriage of justice – the Court of Appeal rightly recognised that counsel have a duty to tailor their communications to account for any vulnerabilities of their client – nothing raised indicates the Court of Appeal was wrong in its assessment that trial counsel had appropriately adjusted its approach to account for Poihipi’s impairment, the advice was appropriate and Poihipi understood and accepted the advice given.

Hannah Hellyer is an Auckland criminal defence barrister and member of the ADLS Criminal Law Committee and Parole Law Committee