Garden gnome defence goes to appeal
The Court of Appeal is being asked to consider whether another man could be accused of fatally bashing Michelle Lawrence, after Timothy Joseph Foley had struck her twice with a garden gnome.
Miss Lawrence was found with head injuries at her home in Linwood in June 2012 and died in hospital three weeks later. The Crown said she was repeatedly struck with a crow bar.
Foley was a neighbour who had an intermittent relationship with Miss Lawrence but five days before the fatal assault, she took out a trespass order against him after police attended a domestic dispute.
Foley, 56, appeared by video-link from the prison – where he is serving a life term with a non-parole term of 11 years 8 months – when the Court of Appeal sat in a High Court room in Christchurch today to hear his appeal.
Foley pleaded guilty just before his murder trial, but now says he pleaded guilty because he believed he was not going to be allowed to put forward a defence accusing another man of delivering the fatal blows.
He said he was under pressure to plead guilty because the Crown threatened that if he didn’t they would cite the issue of home invasion and seek a much higher non-parole term.
He accused the Crown and police of twisting the facts to suit themselves and fabricating evidence.
The appeal turns on the advice given to Foley by his defence counsel, Simon Shamy, about whether he could accuse another man of the murder on the basis of the evidence that would be presented at the trial.
Counsel for Foley at the appeal, Hugo Young of Invercargill, said the court rules meant that counsel could not “wantonly or recklessly” cast blame on someone else at trial unless the facts or circumstances given in evidence, or a rational inference, “raised a not unreasonable suspicion”.
The question is whether Foley was denied his right to a fair trial by the combination of what he was told before the trial by the counsel, and the trial judge, Justice Cameron Mander.
“It seems a bit unfortunate that in this case such black and white advice was given,” said the President of the Court of Appeal, Justice Stephen Kos QC.
The right advice would have been to tell Foley that the accusation against another man could not be made in the defence opening submissions, but could possibly be made later once evidential matters had been raised that could support it. It could have been pursued if cross-examination of the man “threw up any nuggets”.
Foley phoned 111 after the assault and admitted striking Miss Lawrence, and then left her lying unconscious and left the scene. He later contacted the police, telling them he had snapped because he was jealous of her relationship with another man, and upset by her excessive drinking, the court was told at his sentencing.
Justice Kos said the defence was that Foley said that after he gave Miss Lawrence a couple of whacks to the head, she was then assaulted by another person who had come through the window.
Foley told the court he had realised when he saw the autopsy report on Miss Lawrence that he had not caused the fatal injuries. He had struck her twice with the garden gnome, but she had been struck five or six times. “The rest weren’t inflicted by myself,” he said. “And I never had a crow bar.”
He believed another man – he has been named, but the name is suppressed – had entered the house after his initial bashing and had delivered the blows that killed her.
Crown counsel Mark Lillico said it was common for people to plead guilty to gain advantage. In this case, one of the advantages had been the lesser sentence available. The man Foley had accused of being the murderer had been reinterviewed by police after Foley raised questions about the autopsy results. He was going to be called to give evidence at the trial.
Justice Kos said it was “an interesting and difficult point” when the panel of three Justices reserved its decision. The decision would not be released before Christmas, he said.
Category: Focus
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