[1] The appellant, Steven Wearne Nightingale, has been convicted after a trial of one count of male assaults female, three counts of injuring with intent to injure, one count of aggravated burglary and one count of murder. He was sentenced to life imprisonment with a minimum term of 17 years. He now appeals against his conviction submitting that a miscarriage of justice arose at his trial because he accepted the advice of his trial counsel not to give evidence when he was pressured, and when that advice was deficient. He also asserts that there is fresh evidence available in the form of testimony from one Lorraine June Hepburn. His case is that if he had given evidence, and the additional evidence had been adduced, this could have made a difference to the result, and indeed that such evidence presented the only real prospect of an acquittal.

Background

[2] In September 2007 Mr Nightingale was living in an apartment complex at Waihi Road, Tauranga with his partner Gina Murphy and three young children. The deceased, Shane Donald Kurth, lived in a different apartment in the same complex.
[3] At approximately 11am on Friday, 14 September 2007 Mr Nightingale began drinking at his unit with a number of other tenants in the complex, friends and family members. These included his partner Ms Murphy and her mother Angela Reiri, Robert Grace, Robert Moffett and Dion Honeycombe. Messrs Moffett and Honeycombe lived in the complex and Mr Grace lived nearby.
[4] By 4pm considerable amounts of alcohol had been drunk and cannabis had been smoked. Mr Nightingale became argumentative and belligerent. He took exception to people leaving the unit and not wanting to stay on drinking. When Ms Reiri indicated she was going to leave with her seven year old son he began arguing with her and jostling her. When her daughter Ms Murphy intervened, Mr Nightingale punched Ms Murphy in the eye and about the head. She fell backwards and suffered swelling and a bloodshot eye.
[5] Mr Moffett attempted to intervene. Mr Nightingale punched him in the side of the head with sufficient force to cause him to fall and become unconscious for a short period. After regaining consciousness Mr Moffett returned to the lounge and resumed drinking. He was bleeding from the ear.
[6] Another friend took Mr Nightingale outside which enabled Ms Murphy to leave the house. Mr Nightingale then became angry with Mr Grace who was sitting at a table inside the unit. He went into the unit and punched Mr Grace who fell to the floor. He also kicked Mr Grace about the body. Mr Grace suffered a severe eye injury which caused him ultimately to lose the sight in that eye.
[7] Mr Honeycombe then left the unit and spoke to other occupants of the complex in the communal carpark. Mr Nightingale stood outside the unit on the landing and shouted abuse at him. This lasted for several minutes and then Mr Nightingale walked down to the carpark and punched Mr Honeycombe about the face. Mr Honeycombe fell to the ground but managed to get up again, when he was again punched about the face and the head. Mr Honeycombe fell down and when he got up again Mr Nightingale threw him towards an open doorway. He suffered bruising and abrasions to his head, lip and body.
[8] During the course of the afternoon Mr Nightingale had made threatening remarks about the deceased Mr Kurth, stating that he was going to assault him and “get him”. Mr Kurth lived at unit 9 and knew Mr Nightingale. Mr Nightingale then took a knife from the kitchen drawer and placed it in his clothing. At some time after 5pm he went down to Mr Kurth’s unit. Mr Kurth was sitting there with Mr Honeycombe who had by that stage joined him. They were about to have a cup of coffee. Mr Nightingale entered Mr Kurth’s unit forcing the door open with such force that it left an indentation on the side of the wall. He then struggled with Mr Kurth. He repeatedly struck Mr Kurth in the back and about his body with the knife.
[9] Ultimately Mr Kurth suffered two stab wounds in the back and a number of slashing wounds to his back, neck and arm. The fatal wound was administered in Mr Kurth’s left side from the back breaking one rib and chipping another. The blade of the knife had gone through the chest wall and penetrated two chambers of the heart causing rapid blood loss and death.
[10] Stevens J in his sentencing notes recorded that there was a struggle between Mr Honeycombe and Mr Nightingale during which Mr Honeycombe fell to the ground. Mr Nightingale got up and ran from the unit.
[11] Mr Nightingale surrendered himself to the police the following day. He admitted striking Messrs Moffett, Grace and Honeycombe. He denied assaulting Ms Murphy although he admitted a physical altercation. He admitted being involved in an altercation with Mr Kurth.

Approach

[12] The essential question is whether there has been a miscarriage of justice. The focus must be on the safety of the verdict.[1] Where counsel acts so as to deprive an accused of the choice of whether to give evidence an appellate Court is highly likely to find that there has been a miscarriage of justice.[2] The proper role of counsel is to put before the client all the advantages and disadvantages of giving evidence to ensure that the client makes an informed choice.[3] It is entirely permissible for counsel to offer advice about the appropriate course, and indeed that is the role of counsel. Nevertheless, it should be made entirely clear that the decision as to whether or not to give evidence is that of the client, and that the client may reject counsel’s advice. The fact that the informed choice of an accused not to give evidence may with the benefit of hindsight have been shown to be the wrong choice will not of itself amount to a miscarriage of justice.

Complaints about trial counsel

[13] At the outset of the hearing of the appeal, there were in essence two limbs to the appellant’s case. First there was the evidence of Mr Nightingale to the effect that he was pressured by his counsel Mr Paul Mabey QC not to testify. Mr Nightingale filed an affidavit and was cross-examined. Mr Mabey and his instructing solicitor Mr Vivian Winiata also swore affidavits and were also cross-examined.
[14] The second point raised was that the advice that Mr Mabey gave Mr Nightingale not to testify was wrong, as he had no real prospect of being found not guilty unless he gave his version of events to the jury.

The evidence as it unfolded

[15] It is necessary to consider the facts that were traversed in evidence and the submissions before us in some more detail so that Mr Nightingale’s complaints can be assessed.
[16] When Mr Nightingale first went to the Police Station the day after Mr Kurth’s death he identified himself to the officer-in-charge of the Police Station saying “I’m the murderer, you know, from Waihi Road”. He wished to have a lawyer and Mr Winiata was called. In due course Mr Mabey also arrived. Mr Nightingale was aware that Mr Kurth was dead. Mr Nightingale acknowledged using a knife against Mr Kurth, but said that he was doing so out of fear for his own life and under attack from two men. His emphasis was that he acted out of self-defence.
[17] In the circumstances Mr Mabey and Mr Winiata advised Mr Nightingale that it was in his interests to make a statement to the police to support a claim at the time of trial that he had at all times acted in self-defence. Mr Nightingale then proceeded to make a detailed statement to the police. In that statement he acknowledged stabbing Mr Kurth in the back on a number of occasions. However, he said that he had gone to see Mr Kurth unarmed and that Mr Kurth attacked him with a knife when he went into the room. He said that he had wrestled the blade from Mr Kurth and that the wounds he had inflicted were with Mr Kurth’s own knife. He said that he held the knife in his right hand. Mr Nightingale was arrested and charged after making that statement. Ultimately he was granted bail and remained on bail until his trial. The trial was set down for hearing for two weeks commencing 22 February 2009.
[18] Over 2 and 3 February 2009 Mr Mabey met Mr Nightingale. In the course of a seven hour meeting he prepared a first draft brief. The brief notes that it “may be necessary” for Mr Nightingale to give evidence at trial.
[19] In his statement to the police directly after Mr Kurth’s death Mr Nightingale had made no mention of Mr Honeycombe stabbing the deceased or removing a knife from the deceased’s body. However, on 2 and 3 February it was his instruction to Mr Mabey and Mr Winiata that the fatal wound was inflicted by Mr Honeycombe. In his brief, as it was ultimately settled in the days that followed, Mr Nightingale said that he had seen Mr Honeycombe removing the knife from the fatal wound. The implication was, therefore, that Mr Honeycombe, in his efforts to help Mr Kurth, had accidently stabbed Mr Kurth.
[20] It seems that by the time the trial began it was intended by counsel and Mr Nightingale that Mr Nightingale would give evidence. While there had been no firm oral instruction or instruction in writing, this was what was anticipated. In the course of the first week Mr Mabey indicated to the Judge and Crown counsel that it was likely that defence evidence would be given. As could be expected from experienced counsel, however, no firm commitment was made.
[21] Mr Honeycombe gave evidence on Thursday 26 February 2009. Mr Mabey put it to Mr Honeycombe that he had stabbed Mr Kurth. Mr Honeycombe denied it. During the course of the lunch adjournment while Mr Honeycombe was still under cross-examination, Mr Mabey spoke to Mr Nightingale about the suggestion that he had seen Mr Honeycombe withdrawing the knife from the lefthand side of Mr Kurth’s body. The pathology evidence had shown that the fatal stab wound was on Mr Kurth’s back lefthand ribs. This could be seen as establishing that the person who administered the fatal wound had to have held the knife in his right hand. Mr Honeycombe had given evidence that he had seen Mr Nightingale holding the knife in his left hand. This evidence (which was contrary to what Mr Nightingale had said in his original statement) supported a submission that Mr Nightingale had not administered the fatal blow.
[22] At the lunch time meeting Mr Mabey explained the difficulty that arose in Mr Nightingale maintaining that he saw Mr Honeycombe pull the knife out thereby allowing Mr Kurth’s body to fall on Mr Nightingale. Mr Mabey’s filenote records him pointing out to Mr Nightingale that Mr Honeycombe was adamant that Mr Nightingale had left the apartment before Mr Honeycombe. Mr Honeycombe had said that after he put the knife back up on the sink, having picked up the knife from the floor and Mr Nightingale having left, the blood did not flow for some seconds. Mr Mabey’s filenote recorded:

Steve understood the position and said that he recalls that he probably did leave first and as I had previously suggested to him, [may] have reconstructed in his own mind the knife coming out of the side of Shane’s body when being held by Dion. He thinks that might be why he left that detail [out] of the Dudley interview.

[23] At the conclusion of this discussion, Mr Nightingale agreed that it would be best to avoid the risks of maintaining this part of the defence case. He agreed that Mr Mabey would not put that particular issue of the removal of the knife to Mr Honeycombe. He signed a handwritten note prepared by Mr Winiata setting out the difficulty in giving such evidence and his agreement that this assertion would no longer be part of the defence case.

Mr Mabey’s decision to advise against giving evidence

[24] Through the course of Monday 2 March 2009 with the Crown case closing ,Mr Mabey reconsidered the issue of whether Mr Nightingale should give evidence. He explained in his affidavit that the test he applied in respect of whether an accused should give evidence was whether the giving of that evidence would improve the chance of an acquittal. His filenote on that Monday records:

Contrary to the view I formed yesterday (Sunday, 1st March 2009) I was now of the view that Nightingale could probably not improve his position if he gave evidence. Viv Winiata was of the same [view]. The combination of seeing the video in court and the impact of the pathologist’s evidence which was effectively an acceptance that the fatal wound was the last wound had altered matters.

We spoke to Mr Nightingale. I asked him how he felt about the case and whether he thought that he should give evidence. Although we started the trial with a firm intent to call evidence – and I had been putting the case according to the brief (as amended from time to time during the trial) I was no longer of the same firm view that evidence was required.

Progress had been made during the trial with some of the witnesses. Certain witnesses had not come up to brief and the crown had now abandoned Mr Bays. The pathologist had effectively conceded the fatal blow is the last blow. There remained issues concerning his having the knife but Moffat was inconsistent and unreliable and that submission could be made to the jury. Selena Rota referred to the knife, and conceded that she may not have seen it being replaced (her evidence was that she was attending to Grace) and in any event had identified the knife in court as the one that she had seen him with.

I had formed the view (independent of any discussions I was going to have with Steve) that he would probably damage his position by giving evidence and it was no longer necessary for him to do so.

He thought that things were pretty good and he didn’t think that he needed to give evidence. I then asked him if he felt that there was anything he could say to improve his position. He said no.

[25] Mr Mabey in his evidence also explained that he had reservations about Mr Nightingale’s credibility in the eyes of the jury and the impact cross-examination could have if he gave evidence. The prosecutor would have the opportunity to rehearse and re-emphasise the series of assaults committed by Mr Nightingale leading up to the homicide, and that at no stage when interviewed by the police had Mr Nightingale ever mentioned Mr Honeycombe withdrawing the knife from the deceased’s body. Also, some prejudicial evidence that it had been anticipated would be called by the Crown had not been called. Mr Honeycombe had not said that Mr Nightingale had entered the room carrying a knife and this corroborated Mr Nightingale’s statement to the police that he did not have a knife, and that he had been attacked by Mr Kurth. Mr Honeycombe had not placed the knife in Mr Nightingale’s right hand and expressly stated that the knife was in his left hand, which was inconsistent with the location of the fatal wound. Any assertion by Mr Nightingale that the knife had been removed from Mr Kurth’s body by Mr Honeycombe was not supported by what Mr Nightingale had previously said to the police and would have little credibility.
[26] The helpful evidence of Mr Honeycombe that the knife was in Mr Nightingale’s left hand was, of course, inconsistent with what Mr Nightingale himself had said in his statement to the police. However, the situation in Mr Mabey’s view could not be improved by Mr Nightingale giving evidence. Mr Nightingale’s proposed explanation that he said to the police that it was in his right hand because the Detective had told him that the fatal wound was on the lefthand side of Mr Kurth’s body was potentially most unhelpful, as it indicated that Mr Nightingale was assuming that he administered the fatal wound. This would have therefore established that it was Mr Nightingale who inflicted the fatal wound and that it could not have been Mr Honeycombe.
[27] So Mr Mabey advised Mr Nightingale that he no longer thought that he should give evidence. He did not ask him to make a decision at that point but urged him to speak to his mother and his partner who were staying near to where he was in Hamilton. They would meet the next day at the end of the Crown case and he would then give his final instructions.
[28] When Mr Mabey did meet with Mr Nightingale at the close of the Crown case, Mr Nightingale signed a handwritten statement prepared by Mr Mabey in which he recorded his acceptance of his counsel’s advice that he would not give evidence. This statement recorded that he did not wish to give evidence and that he believed that he could not better his chances by doing so.

Alleged pressure

[29] At this point it is necessary to refer to a number of factual differences between Mr Nightingale and Mr Mabey in their evidence. Mr Nightingale is not prepared to accept that he fully understood the handwritten statement that he would not give evidence. However, Mr Winiata confirmed Mr Mabey’s evidence that he read it out to Mr Nightingale. Mr Winiata witnessed the document. We are entirely satisfied that the document was understood and willingly signed by Mr Nightingale.
[30] Mr Nightingale asserted that Mr Mabey had come on “very strong” and placed him under “heavy pressure” to not give evidence. He said that Mr Mabey told him if he was the prosecutor he would “destroy him” if he gave evidence.
[31] Mr Mabey flatly denied giving this advice or advice along these lines. He accepted, as indeed his handwritten notes expressly record, that he advised Mr Nightingale that he did not any longer consider it necessary for him to give evidence, but he said he went no further than giving Mr Nightingale his advice in the usual way.
[32] We accept Mr Mabey’s account of what happened. It struck us as truthful and entirely consistent with the written material. It was supported by Mr Winiata’s evidence. Mr Nightingale’s evidence, on the other hand, was not consistent or in accord with what he had signed. Mr Nightingale struck us as a savvy and determined man. He is articulate and able to express himself clearly and forcefully. He has had considerable experience in the workplace and of the criminal justice system. He is a determined person and not in our view at all susceptible to pressure.
[33] Where, of course, there has been a failure to properly discuss the issue and put the advantages and disadvantages, then an accused person is not able to make an informed choice. It is wrong for counsel to adamantly express a conclusory position and to not give an accused person the chance to understand the options and make the ultimate decision.[4] This criticism cannot be levelled against Mr Mabey. Indeed, we regard his conduct as counsel to have been exemplary. Having taken the initial view that evidence would be called he changed that view for good reason and he explained his change of mind in his revised advice to Mr Nightingale. Having done so he gave Mr Nightingale the night to think about his position and to discuss it with other persons. He got him to sign a detailed confirmation of his decision not to give evidence which he read to him and had witnessed. We find that there was no undue pressure placed on Mr Nightingale.
[34] Mr Nightingale also said that he had been “brain washed” and that Mr Mabey had said to him that his chances of success were “80 percent”. We do not believe this evidence. We accept Mr Mabey’s assertion that he would never have given such an optimistic prediction of success.

Alleged wrong advice

[35] It is part of the role of counsel in a criminal trial to address with their client the issue of whether he or she should give evidence, and to give advice on the topic. Often there will be no clear right or wrong answer. Counsel’s advice will be driven by the strength of the Crown case at its close and, as Mr Mabey commented, the ability of the accused’s evidence to improve the defence position. There may be tangible risks. Mr Mabey commented on the possibility always in counsel’s mind that the jury might, despite all the warnings that would be given, unconsciously reverse the onus when an accused gives evidence. There is the danger that a poor performance in the witness box by the accused might well resolve juror indecision adversely to the accused’s interests. Experienced counsel’s intuition on abstract issues such as how the jury has reacted to the evidence to date, may come into the equation.
[36] In his oral submissions, Mr Pyke focussed in particular on the decision not to put to Mr Honeycombe the prospective evidence of Mr Nightingale that he had seen Mr Honeycombe remove the knife from the fatal wound on Mr Kurth’s side. He submitted that from the time of that decision it became difficult to call Mr Nightingale. He submitted, however, that without evidence that Mr Honeycombe had removed the knife there was no narrative available to the defence to support the proposition that Mr Nightingale had not deliberately stabbed Mr Kurth. He submitted that Mr Mabey’s late change in mind was based on a mistaken evaluation of the evidence, trial pressures and a relatively late briefing of the appellant. Because his chances of a not guilty verdict were not good, not much was to be lost if Mr Nightingale gave evidence and did not perform well.
[37] We do not agree with this assessment. There was, as Mr Mabey concluded, some helpful material in the Crown case on which to pin a defence of lack of proof that Mr Nightingale administered the fatal stab wound, or self-defence. In particular, Mr Honeycombe’s evidence that indicated that Mr Nightingale did not have a knife on him when he entered the room, and that at the time of the stabbing the knife was in his left hand, was helpful. It might have created a reasonable doubt. Further, Mr Mabey had introduced through evidence, when cross-examining the appellant’s partner, that Mr Nightingale had told his partner that he believed that Mr Honeycombe had stabbed Mr Kurth while trying to stab him (Mr Nightingale). This was helpful to the defence. That possible reasonable doubt could have evaporated in the course of a poor performance in the witness box by Mr Nightingale. Also, his claim in his statement to the police that he acted in self-defence could evaporate entirely if he gave evidence about Mr Honeycombe removing the knife. In any event, such evidence which was not given in the original statement would appear to be reconstructed and not credible. The indication of self-defence in his original statement would be unlikely to survive a new claim that he did not inflict the final wound. Also, the reference to seeing Mr Honeycombe take the knife out did not show that Mr Honeycombe had put the knife in.
[38] It was observed in R v Timmins that on occasions, “the circumstances in their entirety [require] counsel to advise [the accused] that evidence should be given because otherwise conviction was [inevitable]”.[5] We do not consider this to be one of those cases. It must also be recognised that Mr Nightingale’s defence position at the start of the trial was unavoidably weak. There was evidence that could not be denied of appallingly violent and uncontrolled conduct on his part in the lead up to Mr Kurth’s death. There was evidence of him having a dislike for Mr Kurth and threatening to kill him. There was evidence of him taking a knife and putting it in his clothing before he went to see Mr Kurth. There was evidence indicating that he burst through the door with such force that it damaged the side wall. There was Mr Honeycombe’s eye witness evidence of Mr Nightingale stabbing Mr Kurth. There was Mr Nightingale’s own description the next day of himself as “the murderer”. So the Crown case was inherently very strong.
[39] Mr Nightingale’s ability to effectively answer such strong evidence was limited. But there were arguable defences available at the close of the Crown case. That case had not been as damaging as Mr Mabey feared. The chances were that these arguable defences would be weakened by Mr Nightingale giving evidence.
[40] It is also the case that the appellant’s account had changed and continued to do so. There was a risk that it would continue to do so from the witness box, making the position yet worse. The oscillations in his position could have become more obvious and damaging if he gave evidence.
[41] We are therefore not persuaded that Mr Mabey made an error when he advised Mr Nightingale not to give evidence.

Fresh evidence

[42] The appellant filed an affidavit in this Court of Ms Hepburn, a former resident of the apartment complex who gave evidence of her returning to the apartment in which Messrs Nightingale and Kurth lived to come across Mr Honeycombe outside. She deposed that he was crying or sobbing and saying over and over “tell Shane I am so sorry” and he also was saying “what have I done, what have I done”. Presumably this evidence was meant to indicate some acknowledgement of responsibility on Mr Honeycombe’s part for Mr Kurth’s death.
[43] On her evidence, these statements were being made by an emotional Mr Honeycombe while many other persons were present, including police officers. It seems most unlikely that Mr Honeycombe would have made such comments without them being noted by others at the time. They were not so noticed. Moreover, Ms Hepburn was interviewed by the police within a few days and specifically asked questions about what had happened on the night and whether there was anything she would like in addition to tell the police. She signed a document recording her advice to the police at the time. Her advice made no reference to the witnessing of Mr Honeycombe’s actions and statements that she now asserts. We are left with no satisfactory explanation as to why she did not pass on this information about the killing to the police at the time, or prior to the trial. She was cross-examined and we did not find her evidence credible.
[44] We do not believe her testimony. Even if it were believed, it is far short of an admission by Mr Honeycombe. This evidence being neither fresh nor cogent, is inadmissible.

Conclusion

[45] We have concluded that there was no undue pressure on the part of Mr Mabey or Mr Winiata to persuade Mr Nightingale that he should not give evidence. Mr Nightingale was given measured advice about his options and sufficient time to make his own decision. He made the decision freely and without pressure from counsel. We also conclude that no criticism can be made of Mr Mabey’s ultimate decision to advise him against giving evidence. That decision was entirely open to competent counsel. The so-called fresh evidence lacks credibility and is not fresh. It is inadmissible. There was no miscarriage of justice on the grounds put forward by Mr Nightingale.

Result

[46] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.

[2] R v Le CA208/00, 14 September 2000 and Sankar v The State of Trinidad and Tobago [1995] 1 All ER 236 (PC).

[3] R v Le at [29]; R v K [2009] NZCA 176, 10 July 2009.

[4] R v Le at [29]; R v K.
[5] R v Timmins CA250/02, 23 June 2003 at [19].

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