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Over 30 Years of Advocacy
Notable Cases
Razouk v Police [2022] NZHC 28
Mr Razouk, represented by Kevin, appealed a decision of the District Court finding that evidence obtained through a series of warrantless searches was admissible at trial.
In relation to a warrantless search of a vehicle, Kevin argued that there were no reasonable grounds to believe that it was impracticable to obtain a warrant and no reasonable grounds to believe that evidential material would be destroyed if a search was not immediately undertaken. Regarding a warrantless search of a storage unit, Kevin argued that there were no reasonable grounds to believe that it was impracticable to obtain a warrant.
The High Court accepted these arguments. The searches were determined to be unlawful and unreasonable as a consequence.
Fitzgerald v R [2021] NZSC 131
Kevin was senior counsel for the appellant in this case. The appellant had previously been sentenced to seven years’ imprisonment for indecent assault. The offending, namely grasping a stranger and kissing her on the cheek, was his third strike and s 86D(2) of the Sentencing Act 2002 accordingly applied.
Disagreeing with the decisions of the High Court and Court of Appeal, the Supreme Court allowed the appeal against sentence. It was found that 86D(2) should be given a rights-consistent meaning and must be read as subject to the proviso that a maximum sentence may not be imposed where to do so would breach of s 9 of the Bill of Rights Act 1990.
R v Shirkey [2021] NZHC 1741
The defendant in R v Shirkey driving at high speed crashed his car into another vehicle killing the occupant. The defendant was consequently charged with murder, which carries as presumptive life sentence under s 102 of the Sentencing Act 2002.
Kevin argued that the defendant was legally insane at the time of the event, citing a bipolar diagnosis. The judge accepted this and found the defendant not guilty. The defendant was hospitalised for treatment.
Media coverage of this case can be found here.
Mellas v R [2020] NZCA 418
Kevin represented Mr Mellas in the Court of Appeal, arguing that a warrantless search was unlawful and that the evidence found in that search was inadmissible.
In his submissions, Kevin focused on the different requirements for “suspect” and “believe” legal tests. He submitted that while the Police may have suspected evidence was in the defendant’s car, they did not have reasonable grounds to believe this to be the case. The latter was required by the Search and Surveillance Act 2012 for the search to be lawful.
The Court agreed with this analysis and ordered that the evidence be excluded. In doing so, the Court emphasised that the Police should not proceed without a warrant in circumstances where one could be sought.
As a consequence of the decision, the serious drug charges against Mr Mellas were dismissed; there was insufficient evidence.
Turnbull v Chief Executive of the Department of Corrections [2020] NZCA 409
In this case, Kevin represented an appellant in the Court of Appeal and argued that an extended supervision order ought to be quashed.
While unrepresented, the appellant had consented in the District Court to the imposition of an extended supervision order. Kevin submitted on appeal that the order nevertheless ought not to have been made as the statutory test was arguably not fulfilled.
Accepting this submission, the Court of Appeal allowed the appeal and quashed the extended supervision order.
R v Woods [2019] NZHC 122
Kevin was senior counsel for the defendant in this case. Mr Woods had been charged with murder following the death of his girlfriend.
Prior to trial, Kevin made an application under s 147 of the Criminal Procedure Act 2011 for dismissal of the charge. He argued that a jury, properly directed, could not reasonably be satisfied of the defendant’s guilt on the available evidence. It was also noted that there was a risk that the jury would nevertheless find Mr Woods guilty, due to prejudice against him.
The application was granted by Collins J in the High Court. The murder charge against Mr Woods was dismissed.
R v Ohuka [2018] NZHC 3304
In this case, Kevin represented a defendant charged with wounding with intent to cause grievous bodily harm and unlawful possession of a firearm. The charges arose from an unprovoked shooting of a taxi driver.
Kevin engaged in negotiations with the Crown. Following these negotiations, the Crown withdrew the charge of wounding with intent to cause grievous bodily harm. The defendant received a community-based penalty for the conviction of unlawful possession of a firearm.
Media coverage of this case can be found here.
Longman v Police [2017] NZHC 2928
Longman v Police is a leading High Court authority regarding credit at sentencing for time spent on remand.
This judgment confirmed that those sentenced to home detention should receive credit for time spent in prison prior to sentencing—usually, credit at the value of the whole period spent incarcerated.
The effect of the judgment is broadly explained in the following passage by Simon France J:
“With a sentence of imprisonment, credit is given automatically. With home detention, the Court needs to act to ensure it is given recognition… In my view the clear default position is that full credit should be given.”
R v Hunt DC Wellington CRI-2012-085-2862, 29 May 2014
This case was prosecuted by the Serious Fraud Office. Kevin’s client (one of two defendants) was convicted of 41 charges of using a document for pecuniary advantage and sentenced on the basis that he had jointly fraudulently obtained $9.75m through the offending.
The Crown advocated for starting point of nine years’ imprisonment. Advocating on his client’s behalf, noting particularly the degree of demonstrable remorse present, Kevin achieved an overall sentence of three and a half years.
Media coverage of this case can be found here.
R v King [2012] NZHC 3072
Mr King had been convicted of manslaughter. The victim was killed when he was dropped by the defendant onto the ground outside of a bar where the defendant worked. The defendant had immediately beforehand removed the victim from the bar by putting him into a sleeper hold.
At sentencing, the Crown proposed that the degree of culpability was approximately that of “one punch” manslaughter cases. Kevin characterized the case as one of gross negligence; a tragic case where the consequences outweighed the defendant’s conduct.
The sentencing judge accepted that the starting point proposed by Kevin, two years, was appropriate. The defendant was ultimately sentenced to 12 months’ home detention.
A media report on this case is available here.