Webster v The Queen

[2010] NZCA 402

IN THE COURT OF APPEAL OF NEW ZEALAND

CA360/2009
[2010] NZCA 402

BETWEENTIMOTHY PAUL WEBSTER

Appellant

ANDTHE QUEEN

Respondent

Hearing:30 August 2010

Court:Arnold, Keane and Mackenzie JJ

Counsel:W C Pyke for Appellant

M D Downs for Crown

Judgment:30 August 2010  

JUDGMENT OF THE COURT

The appellant’s application for an adjournment is granted.

REASONS OF THE COURT

(Given by Arnold J)

[1]        At the commencement of the hearing Mr Pyke, on behalf of the appellant, sought an adjournment.  After hearing argument, we granted the application.  These are our reasons for doing so.

[2]        Mr Pyke advised us that the appellant now wishes to pursue a point about the DNA evidence that he had previously instructed counsel to abandon (the point involves further forensic testing of a condom).  Further, the appellant has discharged him as counsel.  In addition, Mr Pyke said, he would face ethical difficulties in any event in continuing to represent the appellant on the appeal.  Relying on the recent decision of the Supreme Court in Petryszick v R,[1] Mr Pyke argued that the appellant was entitled to have his appeal heard on the merits and that would require the granting of an adjournment to enable the appellant to instruct new counsel.

[1]      Petryszick v R [2010] NZSC 105.

[3]        Mr Downs for the Crown opposed the adjournment application.  First, he noted that the charges had been laid in 2006, there had been a trial in 2007 and a re-trial in 2009.  The appeal had been scheduled for April 2010 but the hearing was adjourned on the appellant’s application to allow a change of counsel (from trial counsel, Mr Kaye, to Mr Pyke).  In granting that adjournment, Glazebrook J had said that any further adjournment was unlikely (there had been one earlier adjournment).  Mr Downs highlighted the impact of further delay on the complainant.

[4]        Second, Mr Downs noted that, following the change of counsel, the appellant had advised the Court formally, through counsel, that he abandoned the ground of appeal involving the DNA evidence and the further testing.  Moreover, the point was unarguable, he submitted, having been pursued at trial by Mr Kaye.  The expert evidence at trial was that it was unlikely that the DNA in question had come from anywhere other than the complainant’s genitalia.  

[5]        Finally, Mr Downs submitted that the appellant could not simply dismiss counsel at the last moment and expect new counsel to be appointed.

[6]        We have considerable sympathy with Mr Downs’ submissions.  The appellant has now dispensed with the services of two well experienced and able criminal counsel in respect of this appeal and this is the third adjournment application that he has made.  Moreover, there will, we accept, be an adverse impact on the complainant. 

[7]        Despite this, we considered that the adjournment should be granted.  The appellant has discharged Mr Pyke as counsel and Mr Pyke said that he would have difficulty acting now for ethical reasons.  We could not sensibly appoint Mr Pyke as a friend to the court to argue the appeal and the appellant could not argue it himself at short notice.  Further, as Mr Pyke said, we do not know of the circumstances leading to the filing of the memorandum advising that the DNA ground was abandoned, although we have no reason to doubt that Mr Pyke was acting on instructions.

[8]        The appellant is to take immediate steps to appoint new counsel.  There is then to be a telephone conference before Ellen France J to assess progress with the appeal.  The telephone conference is to take place no later than four weeks from today’s date.

[9]        It is difficult to foresee any circumstances in which a further adjournment will be granted. 

Solicitors:

Crown Law Office, Wellington for Respondent