C v Police HC Auckland CRI 2006-404-25

[2006] NZHC 805

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-025

BETWEEN  C

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         12 July 2006

Counsel:        CA Hainsworth-Powrie for Appellant

C Parkhill for Respondent

Judgment:      12 July 2006

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Ms CA Hainsworth-Powrie, P O Box 72-999, Papakura for Appellant

Meredith Connell, P O Box 213, Auckland for Respondent

C V  POLICE HC AK CRI 2006-404-025  12 July 2006

Introduction

[1]      The appellant  appeals against  his conviction and  sentence  in the  District Court at Manukau on charges of wilful trespass and theft.  On both charges he was ordered to come up for sentence within six months if called upon.

[2]      When the appellant first appeared he entered pleas of not guilty.  These were later vacated and pleas of guilty entered.  He now wishes to withdraw the pleas of guilty.  By s 42 of the Summary Proceedings Act 1957, the District Court may grant leave  to  withdraw  a  plea  of  guilty  before  a  defendant  has  been  sentenced  or otherwise  dealt  with.    Once  sentencing  has  taken  place  a  conviction  may  be challenged only by way of an appeal: R v Le Page [2005] 2 NZLR 845 (CA).

Background facts

[3]      The appellant has filed an affidavit in support of his appeal.  He deposes that he did not understand, until several months after his conviction on 10 October 2005, that he had been convicted.  He says he believed the charges had been “thrown out”.

[4]      He  had  been granted  legal aid.    Ms Hainsworth-Powrie,  who  appears  in support of the appeal, had been assigned to him.  On his instructions she had entered pleas of not guilty.   He said he failed to appear at a status hearing on 6 October because he was receiving hospital treatment for cancer on that day.  A warrant for his arrest was issued.  As a result, he made a voluntary appearance on 10 October.

[5]      The appellant  deposes that on that  day he was seen by a  duty solicitor, Ms Cathy Bell, to whom he had paid $600.  That was in addition to another payment of $600 made to Mr Christopher Wilkinson-Smith of Ms Bell’s office a few weeks earlier.  He maintains that he went to Court with Ms Bell and believed the charges to have been dismissed.

[6]      The appellant claims to have a defence to both charges.   He says, without elaboration, that he did not believe he was trespassing at the premises of Botany

Town  Centre  as  alleged.    He  denies  having  stolen  perfume  from  the  Farmer’s

Trading Company on the same day.

[7]      I have not, in the usual way, received an affidavit from counsel whom the appellant claims to have represented him at the hearing.  However, without objection from the  Crown,  I  have  received  through  Ms  Hainsworth-Powrie  a  letter  from Mr Wilkinson-Smith.  It provides an account of events which is materially at odds with the appellant’s affidavit.

[8]      He says that the appellant instructed him to defend charges of trespass and criminal harassment.  Presumably at his request, Ms Bell represented the appellant at the hearing of those charges of 12 October.  They were dismissed.  Mr Wilkinson- Smith goes on to say he has spoken to Ms Bell who says she did not represent Mr C   on 10 October either as duty solicitor or in a private capacity.

[9]      I have no hesitation in accepting Mr Wilkinson-Smith’s account of events.  It appears that the appellant has muddled the Court appearances he made on 10 and

12 October.  He has correctly recalled that charges against him were dismissed at a hearing at which he was represented by Ms Bell.  He has wrongly claimed that she appeared for him when the charges under appeal were dealt with on 10 October.

Applicable principles

[10]     There  is  no  real  disagreement  as  to  the  principles  which  apply  to  an application to set aside a plea of guilty following sentence.  There must be evidence of a miscarriage of justice.  Among the circumstances in which a miscarriage may arise is where the defendant has not appreciated the nature of the charge or may not have intended to  admit  his or her guilt: Udy v Police  [1964] NZLR 235. The discretion to allow a change of plea is, however, not to be slightly exercised. The threshold is high and it has been said that only in exceptional cases will an appeal against conviction succeed after the plea of guilty: R v Stretch [1982] 1 NZLR 225 (CA); R v Ripia [1984] 1 NZLR 122.

[11]     In determining whether to grant leave, the Court should consider all the facts and circumstances of the case.  Where the defendant asserts that he did not intend to admit guilt, the Court must consider all such circumstances to determine whether the plea was genuine or whether a mistake has been made.   An appellant who is represented will generally encounter greater difficulty proving that such an error was made: Udy v Police (supra).

Appellant’s submissions

[12]     In support of the appeal, Ms Hainsworth-Powrie argues that it is clear that the appellant has a confused view of the sequence of events.  This supports her advice to me from the bar that the appellant’s treatment for cancer has rendered him prone to memory loss.  She points out that she had advised the appellant to defend the charges and was in the course of obtaining discovery and otherwise preparing for a defended hearing when the appellant made his voluntary appearance on 10 October 2005.  She also makes the point that, having regard to the lenient way in which the appellant was treated, this cannot  be taken as one of those cases  where  a  defendant  has repented his decision to plead guilty as a result of an unexpectedly severe sentence.

Respondent’s submissions

[13]     Ms Parkhill, pointing to the high threshold which the appellant is required to surmount, submits there is insufficient evidence to permit me to conclude that there has been a miscarriage of justice.  She draws my attention to the criminal and traffic history of the appellant which discloses that, although having an unblemished record until 2005, apart from a driving offence in 1975, he was in January 2005 convicted on two charges of wilful trespass and ordered to come up for sentence if called upon within one year.  She submits that this tends to show that the appellant was familiar with Court processes and, by virtue of recent experience, should have known that he had entered a guilty plea and had been sentenced.

[14]     I accept that the appellant’s experience of judicial processes in the course of last  year  should  have  brought  with  it  an understanding  of the  elementary steps involved in entering a plea of guilty.  On the other hand, the confusion exhibited in his affidavit supports Ms Hainsworth-Powrie’s advice that he has some degree of cognitive impairment and memory loss as a result of the medical treatment he is receiving.

[15]     It is clear that he had made a deliberate and considered decision on legal advice to defend these charges.  He had been advised that he had a defence to them. He made his appearance on 10 October only for the purpose of dealing with the breach of bail.  There is no reason why he should have been prepared at that time to enter a plea on the two charges he was facing.  He did not have the benefit of advice from counsel who had been assigned to him in relation to those two charges.  It is not at all clear what, if any, advice he received from the duty solicitor.  There is no apparent reason why he should have suddenly decided to plead to the charges.

[16]     I accept this has none of the hallmarks of a case in which a defendant has simply and belatedly repented of his decision to admit a charge.  He was dealt with leniently by the Court.   If the appeal is successful, he will face a rehearing in the District Court with all that that entails.  I am mindful of Ms Parkhill’s concern that if the Courts do not adopt a firm stance in these kinds of cases, floodgates could open to permit a deluge of applications to vacate guilty pleas.  However, I am left in doubt whether when entering guilty pleas to the charges, the appellant had a full understanding of what was happening.  In the circumstances, there is substantial risk that a miscarriage of justice may have occurred.   For these reasons I consider he should have leave to vacate the plea of guilty.

[17]     In the result, leave is granted to bring the appeal out of time.  The appeal is allowed.  The pleas of guilty to the two charges are vacated.  The matter is remitted to the District Court at Manukau for rehearing.