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A challenge to a Napier man’s conviction, prison sentence and historic farm confiscation more than 30 years ago could become New Zealand’s last case before the Privy Council in London - if Shaun Allen has his way.
He says just getting the matter filed with the council, by high-flying Londonbarrister Raban Kherbane, is “a win”.
But if successful, which could be this year, it will show New Zealanders' right to the last-resort line of appeal in the UK should never have been abandoned, as it was when New Zealand replaced it with its own Supreme Court in 2004.
Shaun Allen at Ahuriri. In the distance is the Esk Valley, the site of his farm that was forfeited in Proceeds of Crime legal action 30 years ago. Photo / Doug Laing
Allen, now 67, has amassed mountains of material in a fight to prove he had nothing to do with the cannabis plants a police helicopter operation found on the Esk Valley farm in January 1993, nor the seeds later found at his home in Napier.
He claims the New Zealand system “failed” him from police, to lawyers, to courts, and legal aid bids.
Since he ran out of options down under, he’s had a patient decade-long wait, but making contact with barrister David Hislop QC (now KC), who took the case of convicted double-murderer Mark Lundy to the council, the wheels started moving.
Kherbane, of internationally-renowned London firm Doughty Street Chambers, lodged the paperwork this week, an application for Permission to Appeal.
Shaun Allen at the fence line of the forfeited Esk Valley farm in 2003. Photo / NZME
The application seeks to set aside the decision of the New Zealand Court of Appeal to turn down Allen’s appeal against conviction and sentence, which was principally done on the basis that fresh evidence was not explored at the trial, and that the association of some of the jurors with the police did not constitute a material irregularity.
The grounds advanced for an appeal are the claim that withheld police disclosure at the time of the trial and fresh evidence establish the jury would or could have acquitted Allen.
There is also a claim that an over-association with the police within the jury constituted a material irregularity in the circumstances of the case.
“The case raises issues of law in relation to the Court of Appeal’s approach to fresh evidence, where it could credibly constitute a miscarriage of justice, but may have not been explored at the trial, and also the correct approach to a perception of bias within the jury pool,” the barrister wrote in the application.
Kherbane is ranked on The Legal 500 in the UK and practises in all areas of public law, terrorism and homicide cases, sanctions, criminal appeals, public international law, asset recovery, and media cases. He is a specialist in terrorism and national security issues.
Raban Kherbane, the London barrister who has lodged Shaun Allen's application with the Privy Council.
He said the first stage is for proceedings to be issued to the council, and for the Attorney-General’s office in New Zealand to respond, which can take up to eight weeks.
“After that, the case will be considered for permission on the papers,” he said.
That depends on whether the court seeks further information, but if it does go to a hearing, he hopes would be this year.
Doug Laing is a senior reporter based in Napier with Hawke’s Bay Today, and has 52 years of journalism experience, 42 of them in Hawke’s Bay, in news gathering, including breaking news, sports, local events, issues, and personalities.
