Attorney-General v District Court at Manukau

[2017] NZHC 1958

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-000226 [2017] NZHC 1958

IN THE MATTER

of an application for review

UNDER

the Judicature Amendment Act 1972

BETWEEN

ATTORNEY-GENERAL Applicant

AND

DISTRICT COURT AT MANUKAU First Respondent

PHILIP JUNIOR OLIVE LEIATAUA Second Respondent

Hearing:	16 August 2017
Counsel:	GR Kayes and JM Pridgeon for Applicant CJ Tennet and M Houra for Respondent
Judgment:	17 August 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 17 August 2017 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Kayes Fletcher Walker Ltd, Manukau.

CJ Tennet, Wellington. M Houra, Whangaroa.

ATTORNEY-GENERAL v DISTRICT COURT AT MANUKAU [2017] NZHC 1958 [17 August 2017]

The case

[1]      The Attorney-General seeks judicial review of the District Court’s decision to allow Mr Leiataua to vacate his guilty plea.  Judicial review is exercised sparingly in criminal cases.1    The Attorney contends this is an appropriate occasion for judicial review given the presence of alleged jurisdictional error.  Mr Leiataua submits to the contrary.

Background

[2]      The background is uncontested—and important.

[3]      On 6 November 2015 the Crown Solicitor at Manukau filed a charge notice against Mr Leiataua containing five charges: one of indecent assault and four of committing an indecent act on a young person.  There are two complainants.  Both are young and connected in some way to Mr Leiataua.  Further detail is undesirable, for, it could lead to their identification. Trial was fixed for 11 April 2016.

[4]      On 31 March 2016 Mr Leiataua sought a sentence indication in relation to one of the charges.  The Crown advised Mr Leiataua if he entered a guilty plea in relation to that charge it would abandon the rest.

[5]      On 6 April 2016, and so five days before trial, Judge McNaughton convened a sentence indication hearing.  The Judge heard the parties. The Judge foreshadowed a starting point of 18 months’ imprisonment with full credit for a guilty plea.  The Judge then said:2

… That is a sentence which is within range for home detention to be substituted but I will only do that if the defendant attended a restorative justice conference and admitted his offending in front of the complainant and the extended family.  Without that I am not giving any assurance in respect of a non-custodial sentence, imprisonment is fully justified on the basis of the offending described here and its impact.

[6]      All this happened at approximately 11.15 am.  The Judge gave the defendant until 2.15 pm to consider his position.  When the case was called, the defendant said

he required more time.  The Judge acceded to that request.  The matter was recalled at approximately 3.34 pm.   Mr Leiataua informed the Judge he accepted the indication.  The (amended) charge was read.  Mr Leiataua entered a guilty plea.  A first strike warning was administered.  The Judge fixed sentencing for 5 July 2016 and remanded Mr Leiataua on bail.  The trial was vacated.  And, the complainants stood down.

[7]      The next day, the defendant decided he would change his lawyer and take steps to vacate his guilty plea.   On 18 April 2016 the defendant conveyed both aspects by text message to his counsel, Ms Vear.   By 20 April, a fresh legal aid lawyer was assigned to Mr Leiataua.

[8]      On 29 June 2016 Mr Leiataua applied to vacate his guilty plea on the basis it had  been  entered  in  consequence  of  undue  pressure  from  his  former  counsel. Mr Leiataua later waived privilege.  The Crown filed an affidavit from Ms Vear in opposition to the application.  Mr Leiataua filed an affidavit too.  Both parties filed submissions.

[9]      A different judge—Judge McIlraith—heard the application on 21 September

2016.   Ms Vear and Mr Leiataua were cross-examined.   The Judge reserved his decision and released it  shortly thereafter (on 30 September 2016).   The Judge dismissed the application.   In short, Judge McIlraith concluded Ms Vear had not “advised Mr Leiataua inaccurately or acted in a way that [had] induced him to plead guilty”.3

[10]     The   case   was   relisted   before   Judge   McNaughton   for   sentencing   on

21 December 2016.  As will be recalled, Judge McNaughton had given the sentence indication.  However, sentencing did not proceed on the 21st.  Instead, on that day, Judge McNaughton granted leave to Mr Leiataua to withdraw his guilty plea.  The Judge said this:4

[1]  I have read Judge [McIlraith’s] decision on Mr Leiataua’s application to vacate his guilty plea.

[2]  The Judge has carefully analysed the evidence and given his findings on the evidence and the decision is correct and in accordance with legal principle, however, Judge [McIlraith] is not the Judge who has to carry out the sentencing.  It is me who has to carry out the sentencing, and in good conscience, I simply cannot do that for a defendant who has pleaded guilty but does not accept responsibility for the offending and who was placed under pressure to plead guilty.  That was the point of the exercise, to put you under pressure to accept responsibility and to admit that in front of the complainant at a restorative justice conference.

[3]  Counsel, no doubt acting in your best interests, advised you to take the deal, to accept that option, as any responsible lawyer would but in the end you cannot, or will not, do that at a restorative justice conference and the plea has to be set aside.

[4] The plea is set aside.

[11]     The Judge did not call for or hear argument before vacating Mr Leiataua’s

plea.

[12]     Subsequent events need not be recounted in detail.  It is sufficient to observe the Attorney commenced this action on 16 February 2017.   Mr Leiataua had, the preceding month, failed to appear at a callover to allocate a fresh trial. A warrant for his arrest was issued.

[13]     It   is   all   but   certain   the   conference   with   the   victim   anticipated   by Judge McNaughton never occurred because of Mr Leiataua’s decision to vacate his plea (as signalled to Ms Vear on 18 April 2016).  By then, the basis for the potential conference—acceptance of responsibility for the offending—had collapsed.

A précis of the parties’ cases

[14]     For  the Attorney,  Mr  Kayes  submits  the  case  exhibits  a  combination  of procedural  impropriety  and  jurisdictional  error.     More  particularly,  Mr  Kayes contends the Judge breached the principles of natural justice in not hearing from the parties before vacating Mr Leiataua’s guilty plea, and was without jurisdiction in doing so.

[15]     On   behalf   of   Mr Leiataua,   Mr   Tennet   contends   it   was   open   to Judge McNaughton to vacate the plea because of the jurisdiction afforded to a Judge in relation to a sentence indication hearing by s 116 of the Criminal Procedure Act

2011.  Mr Tennet acknowledges the Judge should have heard from the parties first, but contends the same outcome would have occurred but for procedural error, so any such error is harmless.

Analysis

[16]     As observed at the outset, judicial review is exercised sparingly in criminal cases.5   However, it is appropriate here because the case exhibits obvious reviewable error, including of a jurisdictional nature.   And, because the errors go to process rather than merits.

[17]     First, Judge McNaughton should not have vacated Mr Leiataua’s guilty pleas without first hearing from the parties.   The Judge’s decision to proceed without giving the parties an opportunity to be heard was contrary to the principles of natural justice.   The parties appeared for sentencing but were instead confronted, without notice, by a hearing of an entirely different character.   Materially, they had no opportunity to be heard.   The Judge simply proceeded to vacate the pleas, in the absence of argument—and without calling for any.  And for the reasons below, this breach was not harmless error.

[18]     Second, there was no jurisdictional basis upon which Judge McNaughton could revisit Judge McIlraith’s decision absent a material change of circumstance. Section 115 of the Criminal Procedure Act affords jurisdiction to vacate a plea of guilty “before the defendant has been sentenced or otherwise dealt with”.   The circumstances  in  which  this  jurisdiction  may  be  exercised  are  settled,  and Judge McIlraith approached the case accordingly.6    Successive applications in this context appear to be possible, for, the Court of Appeal expressly left open this course in R v Ripia.7   However, it is axiomatic successive applications must be referable to some changed legal or factual basis.  Some elaboration is required by reference to

broader principle.

5      Auckland District Court v Attorney-General, above n 1.

6      R v Stretch [1982] 1 NZLR 225 (CA).

7      R v Ripia [1985] 1 NZLR 122 at [123].

[19]     It is well established a material change of circumstance is required before a Judge may revisit a ruling made by another Judge of the same jurisdiction.   The principle was recently examined by the Court of Appeal in M v R.8   There, a Judge made a pre-trial determination admitting evidence in favour of the prosecution.  A different Judge presided at trial.   The trial Judge considered the earlier Judge’s determination was arguably wrong.  Consequently, the Judge adjourned the trial to allow the defendant  to  challenge  the original  pre-trial  determination  by  way of appeal to the Court of Appeal.  The Court analysed a line of well-known cases that

hold a trial Judge may revisit a ruling of another Judge on a pre-trial application. But, as the Court of Appeal observed:9

Those cases do not contemplate … a trial Judge may simply express disagreement with a pre-trial ruling previously made, and, in the absence of any material change in circumstances, make a different decision on the admissibility of the evidence in question.

[20]     The Court noted “widespread inconvenience” would arise “if parties could not rely on rulings …  made before the commencement of a trial whenever the eventual trial Judge happened to be a different judicial officer.10    The Court said

although it was not necessary to decide the point:11

… we express our view … one District Court Judge, prior to the trial, does not  have  the  power  to  formally  depart  from a  pre-trial  ruling  made  by another  District  Court Judge,  absent  a  relevant  change  of  circumstances (either factual or legal).

[21]     The Court also said a second pre-trial application advanced in the hope of securing a different outcome before another Judge would constitute an abuse of process.12   Moreover:13

… as a matter of principle and jurisdiction, one District Court Judge does not have  the power to re-determine  a  matter  already determined  by another District Court judge.

8      M (CA245/2015) v R [2015] NZCA 413.

9 At [10].

10 At [11].

11 At [13].

12 At [14].

13 At [14].

[22]     The  Court  considered  to  hold  otherwise  “would  be  to  contemplate  the existence of two orders concerning the same issue by Judges of the same level in the hierarchy of courts, but to opposite effect”.14

[23]     This reasoning is apposite.   In the absence of an appeal, the parties were obliged to assume Judge McIlraith’s decision was determinative of the application to vacate  the  plea,  and  sentencing  would  proceed  as  scheduled.    To  employ  the language of M v R, absent a material change of circumstance, Judge McNaughton had no “power to re-determine a matter already determined by another District Court Judge.”15   Judge McNaughton appears to have recognised as much, for, His Honour acknowledged, “Judge [McIlraith] has carefully analysed the evidence and given his findings on the evidence and the decision is correct and in accordance with legal principle.”16

[24]     Third, contrary to Mr Tennet’s submission, s 116 of the Criminal Procedure

Act does not alter the position. That section provides:

116  Effect of sentence indication

(1)   This section applies to a sentence indication given under section 61 if the defendant pleads guilty to the offence in respect of which it was given within the period that it has effect.

(2)   The sentence indication is binding on the judicial officer that gave it unless—

(a)   information  becomes  available  to  the  court  after  the  sentence indication was given but before sentencing; and

(b)   the  judicial  officer  is  satisfied  that  the  information  materially affects the basis on which it was given.

(3)   The sentence indication is not binding on a judicial officer other than the judicial officer who gave the indication.

[25]     As  its  terms  state,  s  116  requires  the  Judge  who  provided  a  sentence indication to pass sentence in accordance with the indication unless later information satisfies the Judge of a material change from “the basis on which [the indication]

was  given”.     There  was  no  material  change  in  circumstance  in  this  case.

14     M (CA245/2015) v R, above n 8, at [14].

15 At [14].

16     R v Leiataua, above n 4, at [2].

Judge McNaughton told Mr Leiataua if he attended a restorative justice conference and admitted his offending, home detention was a possible sentencing response. Mr Leiataua’s subsequent decision to seek to vacate his plea necessarily precluded a conference with the victim, but that decision did not constitute a material change in circumstance; it merely foreclosed the possibility of a sentence of home detention. More fundamentally, the decision was Mr Leiataua’s.   And, this is not a case in which circumstances external to the defendant and beyond his or her control or contemplation have intervened to foreclose the only sentence indication on the table.

[26]     The recent decision of Boyce v R is illustrative.17   The Judge at first instance indicated a sentence less than imprisonment was possible in the event of favourable pre-sentence reports.  The reports were unfavourable.  The Court of Appeal held the Judge did not err in imposing terms of imprisonment as the Judge had made it clear a lesser sentence depended on the existence of a factor that had not come to pass.

[27]     Conversely, in Wilson v R the Judge indicated the defendant would receive a community-based sentence, which required a suitable address.18   No address became available.  The Judge sentenced the defendant to a term of imprisonment.  Wylie J concluded the unavailability of an address for community detention constituted a material change of circumstance.   Implicit to the decision is the proposition the Judge at first instance had excluded the possibility of imprisonment at the sentence indication hearing.

[28]     For completeness, Judge McNaughton was also wrong to observe the purpose of the sentence indication was to place Mr Leiataua “under pressure” to plead guilty. A sentence indication is given to inform a defendant of the likely sentence by type, range or quantum; not to place pressure on a defendant to plead  guilty.19     The significance of this point cannot be overstated, for, it is elementary to our system of criminal justice that a defendant’s plea, whether guilty or not guilty, is given freely

and voluntarily.

17     Boyce v R [2014] NZCA 295.

18     Wilson v R [2015] NZHC 298.

19     Criminal Procedure Act 2011, s 60.

[29]     As Mr Kayes observed, the Criminal Procedure Act contains a number of protections in this respect.  A sentence indication is available only at the request of a defendant.  Any such request must come before trial.20   A sentence indication must be given in open court;21  a record must be kept;22  and unless otherwise specified, a defendant has five working days after the date on which the indication is given to make his or her decision.23

[30]     It  is  also  important  to  record  Judge  McIlraith  explored  the  question  of whether the defendant was placed under pressure to plead guilty.   The Judge concluded—after hearing evidence from both the defendant and Ms Vear, and following a hearing directed specifically to this issue—that was not so.  All of this serves to underscore the procedural and jurisdictional error that has visited this case, which, with respect, has gone off course.

[31]     The claim for judicial review is upheld.

Orders

[32]     Judge  McNaughton’s  decision  to  vacate  Mr Leiataua’s  plea  of  guilty  is quashed:

(a)       Sentencing is to occur before Judge McNaughton as soon as possible

(or another Judge if His Honour is unavailable).

(b)Sentencing must proceed in accordance with Judge McNaughton’s sentence  indication  of  6  April  2016  and  ss  115  and  116  of  the Criminal Procedure Act.

……………………………..

Downs J

20     Criminal Procedure Act, s 61(1).

21     Section 62(2).

22     Section 62(3).

23     Section 64.