A gang member-turned-artist has had his conviction for violence quashed, after a High Court judge found his lawyers did not give him sufficient advice on whether to give evidence.
Warren Pahia Smith, known as Bino Smith, was found guilty by Judge David Robinson on a charge of injuring with intent to injure after a judge-alone trial in the Dunedin District Court in February last year.
Smith appealed his conviction, on the basis his trial lawyers failed to ensure he had the necessary information to make a fully informed decision as to whether to give evidence, and failed to prepare him to give evidence.
In a High Court judgement issued late last month, Justice Jonathan Eaton said a "miscarriage has occurred".
The defendant’s lawyers were Nathan Laws and Kate Logan.
The conviction was quashed.
Last week the Crown opted not to pursue a retrial and the charge was dismissed.
"Based on what Mr Smith says was flawed and incomplete advice, he did not give evidence at his trial," Justice Eaton said.
Smith was alleged to have punched his daughter at a family function on July 17, 2020.
Justice Eaton said potential benefits to giving evidence included the fact that Smith had "always been willing, able and intent on giving evidence and could reasonably be expected to give strong, consistent denials" and "might impress the judge as a man who had turned his life around from his early years as a member of the Mongrel Mob".
Smith eventually signed a written acknowledgement confirming his election not to give evidence.
"Overall, he says he felt like the trial ‘happened without me’,"Justice Eaton said.
Justice Eaton had "some sympathy" for Smith’s lawyers.
The court directed the trial be brought on for an early hearing, then Crown counsel belatedly gave notice that Smith’s police interview would not be played.
The judge also noted Smith’s flight from Auckland to Dunedin was cancelled, meaning he arrived just before the trial.
"The inevitable consequence was that trial preparation was rushed and, ultimately in my view, incomplete."
Justice Eaton said it was "unfair" for the Crown to belatedly reverse the decision to offer Smith’s police interview into evidence.
"For the prosecution, so late in the day — in this case, one working day — to give notice that evidence will not be led can and, in my view in this case, did operate unfairly to the defence."
Smith has been contacted for comment.
