C v The King
[2024] NZHC 362
•28 February 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S)
PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-191
[2024] NZHC 362
BETWEEN C
Appellant
AND
THE KING
Respondent
Hearing: 1 February 2024 Appearances:
A J Bailey for Appellant
A M Harvey for Respondent
Judgment:
28 February 2024
JUDGMENT OF EATON J
(appeal against refusal to vacate guilty plea)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
C v R [2024] NZHC 362 [28 February 2024]
Introduction
[1] On 8 July 2021, C entered guilty pleas to four charges alleging sexual offending against his stepdaughter. Those charges were:
(a)indecent act on a child (representative);1
(b)indecent assault on a child (representative);2
(c)indecent act (representative);3 and
(d)sexual violation (by anal penetration).4
[2] On the same date, C entered not guilty pleas and elected trial by jury on a further eight charges alleging sexual offending against the same complainant, being charges of:
(a)sexual violation by unlawful sexual connection x6 (all representative);5 and
(b)sexual violation by rape x2 (one representative).6
[3] Following the entry of guilty pleas, convictions were entered and C was remanded in custody pending his trial. On 20 October 2021, and following a change in legal representation, C applied to the District Court to vacate the four guilty pleas. On 6 September 2022, Judge Neave heard that application. Both C and his former counsel gave evidence. The Judge gave a results decision declining the application and, on 7 December 2022, a reasons ruling.7
1 Crimes Act 1961, s 133(1)(c); maximum penalty 10 years’ imprisonment.
2 Section 134(2)(a); maximum penalty seven years’ imprisonment.
3 Section 134(3); maximum penalty seven years’ imprisonment.
4 Sections 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
5 Crimes Act, ss 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
6 Sections 128(1)(a) and 128B; maximum penalty 20 years’ imprisonment.
7 R v [C] [2022] NZDC 18750.
[4] C sought leave to appeal the District Court decision to the Court of Appeal under ss 296 and 297 of the Criminal Procedure Act 2011 (CPA). In a minute issued on 16 February 2023, Courtney J recorded that the registry had been correct to treat the appeal as an appeal against conviction and that the Court of Appeal did not have jurisdiction to hear the appeal.8 A hearing as to jurisdiction was convened and the Court of Appeal confirmed it did not have jurisdiction to hear the appeal as the correct first appeal court is the High Court.9 The Court observed that “Assuming that the proposed question […] is a question of law, it is open to C to invoke s 296.”10
[5] C now applies for leave to appeal the District Court decision to this Court but only in relation to the charge of sexual violation by anal penetration. He has abandoned the application insofar as it related to the other three charges to which guilty pleas were entered. C is yet to face trial. His trial is scheduled to proceed in the District Court in April 2024.
Alleged/admitted facts
[6] The appellant is the stepfather of the complainant.11 He entered a relationship with the complainant’s mother when the complainant was three years old. The complainant was six or seven years old and living in Fiji when the sexual abuse began. The offending, both alleged and admitted, occurred between 23 December 2000 and 22 December 2006.
[7] The alleged offending involved the appellant touching and sucking her breasts, touching her vagina, digital penetration, oral sex, and penetrative sex (both anal and vaginal). It is alleged the appellant often put on pornography and made the complainant watch it to “get her in the mood”. The offending occurred frequently, most of the time when she was in bed and generally when all other occupants were out or at night when they were asleep. The offending stopped when the complainant became pregnant to the appellant. Their child was born on 1 January 2007 when the complainant was 15 years old, however sexual activity did continue.
8 [C] v R CA40/2023, 16 February 2023.
9 C(CA40/2023) v R [2023] NZCA 453.
10 At [19].
11 I refer to the stepdaughter as the complainant, but a more accurate description in relation to the three charges to which guilty pleas have been entered and are maintained, is the “victim”.
[8] It is necessary to refer in more detail to the alleged facts of the sexual violation by anal penetration charge (the disputed charge). In 2003, when the complainant was about 12 years old, her mother had a cleaning job at a language school in Bishopdale Mall. On one occasion, the complainant’s mother was sick, so the appellant took the complainant with him to help do the cleaning during the afternoon.
[9] It is alleged the complainant was cleaning the toilets when the appellant stood behind her and asked her for penetrative sex. He reminded the complainant about things he had bought for her and told her that now was a good time for her to make him feel good.
[10] The complainant alleges that she reluctantly agreed to his request. The appellant told her to turn around and bend over the toilet before pulling her pants down. He tried to put his penis inside her vagina but put it into her anus. The complainant told him to stop because it was painful but the appellant is alleged to have said, “I’m almost there” and continued to insert his penis further into her anus. The complainant pushed the appellant away which caused him to stop.
[11] The complainant was crying and told the appellant, “You put it in my bum”. The complainant alleges the appellant replied by asking her if she wanted to try again but she said no and went outside crying while she waited for him to finish the cleaning.
[12] The summary of facts records the appellant’s admission that he began touching the complainant from about the age of six years when they were in Fiji and more generally that he has sexually assaulted the complainant. It records he remembered the Bishopdale Mall incident but said it was an attempt to have sex with the complainant and there was no penetration. He admitted having sexual intercourse with the complainant when she was 15 years old and fathering her child but maintained the complainant had consented.
District Court decision
[13] C advanced two grounds in support of the application to vacate the four guilty pleas. First, that he was not guilty of the offences as it was “the thing within him” that committed the offences and not him. Secondly, in relation to the sexual violation by
anal penetration charge, that he did not understand the elements of the charge and had denied that offence at interview.
[14] Unsurprisingly, the Judge placed little weight on the first ground. It is not advanced on appeal and does not require further discussion.
[15] In dealing with the second ground, the Judge referred to the relevant passages of appellant’s police interview and described his response to the disputed charge as being, at best, contradictory, observing that while the appellant denied anally penetrating the complainant and had told police he only touched his penis around the complainant’s genital area, he had on a number of occasions said that he “pulled out” of her. The Judge considered the appellant’s interview provided at least some support for the complainant’s allegations.
[16] The Judge acknowledged C’s evidence that he had understood from his discussions with his former counsel that he had acknowledged committing the offence in his police interview and that he felt he had limited discussions with his counsel prior to entering a plea. The Judge referred to C’s evidence that he did not properly understand the elements of the charge when he instructed his former counsel he would plead guilty to the disputed charge. The Judge referred to the two affidavits provided by former counsel. The Judge accepted counsel had obtained full disclosure, watched the complainant’s evidential interview with the appellant the day prior to pleas being entered, had provided the appellant with copies of relevant legislation and a summary of the “relevant legal test” and had received written instructions as regards pleas in relation to all 12 charges. The Judge noted that former counsel considered seeking an adjournment, acknowledging C might have felt rushed and was not in the best of health but observed that the pleas accorded with the signed instructions provided to counsel. The Judge observed that it is for the defendant and not counsel to decide what plea to enter.
[17] The Judge referred to the four primary circumstances where a guilty plea may be permitted to be withdrawn and considered only the first, namely whether the defendant did not appreciate the nature of the charge, applied to C’s application. The Judge referred to C having had had an “almost instantaneous” charge of heart
regarding his plea following his custodial remand giving rise to “at least a suspicion” it was the custodial remand that gave rise to a re-think of the guilty plea. The Judge observed regret was not a basis to set aside a guilty plea.
[18] The Judge was satisfied C had received “entirely proper advice and chose to enter a plea for his own reasons, whatever they may have been.”12 The application to vacate the four guilty pleas was dismissed.
Submissions
Appellant’s submissions
[19] Mr Bailey, for C, submitted leave to appeal should be granted under s 296 of the CPA because there is an arguable question of law and the outcome of this appeal will be very important to the appellant’s trial. Mr Bailey submitted the relevant question of law is whether the District Court Judge’s conclusion that “there [were] no grounds for interfering with the [appellant’s] plea” was correct.13 Alternatively, he submitted the question of law is “whether the Judge was correct to conclude the advice provided to the applicant by his counsel resulted in the applicant’s guilty pleas being entered on an informed basis”.
[20] Mr Bailey critiqued the legal advice provided to the appellant by former counsel. The handouts given to the appellant, including the definition of “sexual violation”, was incorrect because counsel provided the current version of s 128 of the Crimes Act 1961 that came into effect on 20 May 2005. Five of the appellant’s nine sexual violation charges, including the disputed charge, are alleged to have occurred prior to this date. The relevant definition was not given to the appellant. Further, Mr Bailey submitted the “test” for sexual violation as drafted by former counsel and provided to the appellant erroneously said that “sexual penetration” is an element of the offence and that the test counsel articulated did not refer to the requirement that the penetration be intentional.
12 R v [C], above n 7, at [42].
13 At [44].
[21] In respect of the police interview, Mr Bailey submitted that, in contradistinction to the disputed charge, the other three charges the appellant entered guilty pleas to were clearly admitted in the interview. Mr Bailey submitted the appellant made clear denials of the disputed charge at interview, and that those denials provide an arguable defence to that charge.
[22] Mr Bailey highlighted that former counsel did not dispute the appellant’s evidence that his instructions in respect of the disputed charge did not differ to what he said in the police interview. Mr Bailey pointed out that this was corroborated by former counsel’s notes that recorded, “anything to do with penetration did not happen… first time breast = when had sex when she was 15 because she allowed me to”. Former counsel acknowledged she had “sparse” notes in respect of the disputed allegation.
[23] Mr Bailey submitted the breakdown in understanding between the appellant and former counsel arose because former counsel erroneously formed the view the appellant had admitted the disputed charge at interview. Mr Bailey contends this error explains why the charge was not discussed in any level of detail. He submitted because the appellant’s first language is not English, he is prone to use the wrong words. For example, when the appellant said he did sexually violate the complainant in relation to the disputed charge, he was admitting touching the complainant, not an act of penetration. Similarly, the District Court Judge’s literal interpretation of certain passages of the interview, including the “pulling out” references, Mr Bailey submitted is unfair given the appellant’s English limitations.
[24] Mr Bailey pointed to additional factors he submits raise doubts as to the appellant’s understanding of the disputed charge. First, it is not disputed the appellant instructed former counsel there was no act of penetration until the complainant was 15 years old. The guilty plea contradicts this as it is said to have occurred when she was 12 years old. Secondly, former counsel’s record that “sexual penetration had occurred” was ambiguous but also wrong as a matter of law. Mr Bailey submitted this is a significant error because it is clear, when reading the appellant’s police interview as a whole, the appellant was clearly trying to deny any penetration occurred. On this point, Mr Bailey submitted the Judge’s finding that it was “ambiguous” whether the
appellant had made an admission of guilt at least reinforces the importance of former counsel clarifying the appellant’s position. Mr Bailey submitted former counsel failed to seek clarification. Thirdly, Mr Bailey submitted the failure by former counsel to refer to the requirement that an act of penetration be intention is an important omission. Finally, Mr Bailey submitted former counsel did not discuss with the appellant any implications arising from a guilty plea to the disputed charge. He submits that as a consequence of the guilty plea, the appellant will face trial as a self-confessed liar given his denial of that charge at interview and because he denied any act of penetration until the complainant was 15 years of age. This undermines his defence in relation to the remaining eight charges to be determined at trial. Mr Bailey submitted a reasonably prudent lawyer would have discussed these factors with the appellant. He accepts the reason former counsel did not do so might be explained by her own misunderstanding that C had admitted the disputed charge at interview.
[25] Mr Bailey referred to Fourie v Police, where signed guilty plea instructions were obtained in relation to doing an indecent act with intent to offend.14 The appeal was allowed because the Court found, “Mr Fourie did not appreciate the nature of the charge or because trial counsel error as to the availability of certain defences”.15 Mr Bailey submitted the appellant may well have had a defence which former counsel failed to consider.
Respondent’s submissions
[26] By way of overview, Mr Harvey, for the Crown, submitted the appellant made an informed decision to plead guilty and the post-plea change of mind does not justify the “exceptional circumstances” required to vacate a guilty plea.
[27] In reliance on the observation of the Court of Appeal, Mr Harvey submitted the appeal was more appropriately considered as an appeal against conviction. He advanced his submissions focussing on an alleged miscarriage of justice.
14 Fourie v Police [2018] NZHC 3430.
15 At [27], citing R v Le Page [2005] 2 NZLR 845 (CA) at [16]-[19]; and R v Merrilees [2009] NZCA 59 at [34].
[28] Mr Harvey submitted that arguments critiquing former counsel’s legal advice were being advanced for the first time on appeal and the court ought to exercise caution in assessing any criticisms. He disputes the appellant was materially misinformed as to the charges he was facing. Mr Harvey submitted even if the incorrect legal definitions of “sexual violation” were provided, they made no substantial difference because the charge in question specifically referred to penetration of the anus, therefore there was no room for any misapprehension. Mr Harvey submitted clear advice was provided by former counsel of the elements of the offence. Further, he submitted C’s police interview demonstrates he understood the distinction between violation and indecency because he used each term in reference to some of his actions correctly. Mr Harvey did not accept that some leeway should be afforded the appellant due to English difficulties, submitting that the appellant has lived and worked in New Zealand for decades, including for the Department of Corrections. Mr Harvey submitted his understanding of English is firm.
[29] Mr Harvey submitted the first time the appellant told his former counsel anal sex had not occurred was after the entry of guilty pleas. C did not expressly do so when they discussed the charges together prior to the plea being entered.
[30] Mr Harvey acknowledged the interview was open to competing interpretations, but he submitted former counsel’s understanding, or misunderstanding, of the interview is irrelevant unless it impacted on the quality of her legal advice. Mr Harvey submitted the appellant was fully informed as to the elements of the charge and made an informed decision to plead guilty to the disputed charge. Relevantly, Mr Harvey submits, the appellant had initially told former counsel he wished to plead guilty to all 12 charges, yet following advice and review of the evidence he changed his mind to only plead to those he had made admissions to in his interview. Mr Harvey submitted this demonstrates the considered process adopted by former counsel.
[31] Mr Harvey supports the Judge’s finding that the legal advice provided by trial counsel was entirely proper. He highlights written instructions in relation to the guilty plea were provided and counsel was satisfied C understood the elements of the charge and made an informed and personal decision to enter a guilty plea. He supports the Judge’s reasoning it was for the appellant and not counsel to determine the proper plea.
He submits the Judge was right to find C presents as an example of a defendant having regret over a plea, no doubt influenced by the custodial remand that followed the entry of that guilty plea.
Approach on appeal
[32] Mr Bailey framed the appeal as an application for leave under s 296 of the Criminal Procedure Act 2011, being an appeal on a question of law against a ruling by the trial Court. Mr Harvey’s response framed the appeal as an appeal against conviction with a focus on whether any error had given rise to a miscarriage of justice. The Crown takes no issue that whilst a conviction has been entered, C has not been sentenced and his trial on the other charges is yet to be heard.
[33] Mr Bailey was ultimately content for the appeal to be determined as an appeal under s 232 of the CPA. This Court must allow the first appeal if satisfied a miscarriage of justice has occurred for any reason.16 A miscarriage of justice is defined in s 232(4) as:
232 First appeal court to determine appeal
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[34]Relevantly s 232(5) provides:
232 First appeal court to determine appeal
…
(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty
[35]The Court of Appeal in R v Le Page:17
16 Criminal Procedure Act 2011, s 232(2)(c).
17 R v LePage, above n 15, at [16].
…it is only in exceptional circumstances that an appeal against conviction will be entertaining following entry of a plea of guilty. An appellant must show that a miscarriage will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch and R v Ripia are examples.
(footnotes omitted)
[36] In Harding v R, the Court of Appeal observed four broad categories that might produce circumstances where a miscarriage of justice arises as a result of a guilty plea:18
(a)Where the offender did not appreciate the nature or did not intend to plead guilty to a particular charge.
(b)Where, on the admitted facts, the offender could not in law have been convicted of the offence charged.
(c)Where the plea was induced by a ruling based on a wrong legal authority.
(d)Where trial counsel errs in his or her advice as to the non-availability of certain defences or outcomes.
[37] The Court of Appeal observed in Hussein v R leave will rarely be granted where the accused has had proper advice and then freely pleaded guilty. 19 The essential issue is whether a miscarriage will arise if C’s conviction is not quashed. The assessment undertaken on appeal will necessarily be highly fact specific.
18 Harding v R [2019] NZCA 259 at [15].
19 Hussein v R [2011] NZCA 58 at [22].
Discussion
[38] Mr Bailey points to a number of factors said to have led to C not adequately understanding the disputed charge and consequently entering a guilty plea. He submits the Judge erred in his assessment of those factors. Those factors are:
(i)C denied the allegation at police interview and maintained that position in instructing former counsel;
(ii)former trial counsel erroneously understood C had admitted the disputed charge at police interview and consequently did not fully engage with C as to that charge;
(iii)former counsel’s advice as to the “legal test” was flawed;
(iv)C’s guilty plea is inconsistent with and harms the defence to be advanced at trial on the charges to which not guilty pleas were entered;
(v)C was under inappropriate time pressure to enter a plea and entered the plea; and
(vi)C was suffering poor health at the time he entered the plea.
[39]I will deal with each of those factors in turn.
C’s interview
[40] C’s police interview is central to this appeal. It is not disputed that at interview C admitted various acts of indecent assault on the complainant and denied allegations of sexual violation by rape. He consistently maintained he did not engage in penetrative sex with the complainant until she was 15 years old. He claimed the sexual intercourse was consensual. He expressed his shame and remorse. I set out below and in full the exchange in relation to the disputed charge.
BGOkay. There is one incident um at the Bishopdale Language School, so (wife) your wife, do you recall her working as a cleaner at a language school?
C We clean together yeah. BG Yeah you cleaned together. C Mm.
BG Um there was an incident when (complainant) thinks she was about 12.
C Mm.
BG That it was just you and her. C Yeah.
BG Do you recall this? C I can.
BG Can you tell me what happened. C I can’t remember, I know I, ah, I. BG Tell me what you can remember?
C Yeah, no we, I did sexually um violate her then. BG So what do you mean by sexually violating her? C I can’t remember.
BG Did you have anal sex with her?
CI didn’t. We, like I said we didn’t go any further than an attempt, so I had, it never did happen.
BG You never went further than an attempt?
C Yeah.
BG So describe that? C It’s.
BGWhat, what do you mean by an attempt, and I know this is tough to talk about.
C Yeah, um, ah I just don’t want to comment.
BG Okay so she says that you were pressuring her to have penetrative sex. C Mm.
BG And she says that you approached her in the toilets. C Yeah.
BG Yeah and you tried to have sex with her.
C Yeah.
BG But she says you ended up putting your penis in her anus.
CNo, no it didn’t happen. We I did ha like I said attempt to, not in her anus, but then we, I, I, I pulled myself out of her.
BG So you attempted to have vaginal sex with her.
CIt’s not true vagina, but just like I said sexual um, what’s the word that I used first. It’s um indecent, indecent. Yeah.
BG Can you tell me what you mean by indecent? C I did, I just rubbed myself on her and that’s it. BG Rubbed your penis on her.
CYeah, then I pulled out because yeah, it didn’t last any longer than even, it was just a quick moment of, yeah but then I pulled out, I didn’t want to go through with it.
BG Do you remember (complainant) being upset. C She was.
BG So why was she upset?
C I suppose because she didn’t want to, yeah.
BG She says that ah you, your penis did end up starting to go in her anus and it really hurt.
C Mm.
BG And that’s when she got really upset and cried.
C Yeah I know, it, like I said I attempted to do the sex, the sex but I pulled out because.
BG Okay.
C Yeah she was upset.
BG So when you say you attempted to you were trying to put your penis inside her?
C No it’s just on the, just outside.
BG Okay.
C Mm.
BG Cos she said you were trying to put it inside.
C No.
BG And that it did go inside a little bit and that’s why it hurt.
C No, ah it was just outside. But she was upset so I stopped and. BG Mm mm.
C Yeah.
BG Okay so what, what made you think that that was I guess okay? C It wasn’t. It never is OK.
BG Okay. (emphasis added)
[41] The Judge did not agree the above passage evidences a clear denial of the allegation of anal sex. The Judge described the appellant’s position at interview in relation to the disputed charge as being “at best contradictory”.20
[42] Complicating the assessment of C’s police interview and his understanding of the disputed charge is that English is C’s second language. He is Fijian by birth. He has lived in Australia, the United States and New Zealand for many years and is undoubtedly fluent in English. He has previously worked as a Corrections officer. In that capacity he was likely exposed to phrases commonly used within the criminal justice system.
[43]C deposed :
What I’m saying is because English is not my first language as well, so, therefore, it takes me a little while to understand a lot of things, that’s why most of the things that had been presented, I would go over it, but the full understanding takes me a long time to get to understand it.
[44] Mr Bailey submits the appellant did not fully comprehend what was meant by the words “penetration of the anus”. Whilst at face value that strikes as unlikely, I am conscious that both within the police interview and the evidence C gave at the pre-trial
20 R v [C], above n 7, at [30].
hearing there are examples that support the submission he did not understand the legal language associated with sexual offending. By way of example, during his police interview, when asked about the incident giving rise to the disputed charge, C was asked to explain what he remembered. He replied “… I did sexual violate her then.” In his further explanation, C described an attempt to have vaginal intercourse that involved him rubbing his penis on the outside of the complainant’s vagina. The act he described was not a sexual violation — it was an indecent assault. Another example of a language issue arose in cross-examination of C at the pretrial hearing:
Q You said you’re not denying the violation? A Of course I’m not
Q Can you tell me what you mean by that?
AThe sexual violation as in touching [the complainant] when she was young, I’m not denying that.
[45] Both examples provide context and highlight the risk of misunderstanding and misuse of legal language.
[46] The appellant described an act of attempted sexual intercourse in which he was standing behind the complainant. I agree with the Judge the appellant’s reference to “pulling out” might be seen as inconsistent with his assertion that he only touched the complainant around the top of the vagina with his penis. However, and as the Judge observed, the reference to pulling out could have been intended to reflect a withdrawal from the attempt at intercourse. Whilst I do not disagree with the Judge that the appellant’s position might therefore be described as contradictory as to whether there was an act of penetration, in my view the appellant was consistent and unequivocal in his denial of the allegation of anal penetration.
[47] I am therefore satisfied, with reference to his police interview, C has an arguable defence to the charge, namely a denial of the act of penetrating the complainant’s anus.
[48] The finding of the Judge that C’s response at interview was at best contradictory is of some significance given the Judge ultimately found that the advice former counsel provided was entirely proper. I am satisfied C’s responses at interview
(and confirmed in his evidence at the pre-trial hearing) could not reasonably be taken as an admission of the allegation of sexual violation by anal penetration. C expressly and repeatedly denied that allegation.
Former counsel’s understanding of interview
[49] Former counsel deposed that, in her mind, neither in the police interview or in other discussions had C obviously indicated a defence to the disputed charge. Her evidence is she did not believe C had a viable defence to that charge (or the other three charges to which guilty pleas were entered).
[50] Former counsel further deposed she had assessed the complainant as being a credible witness and that C had instructed her the complainant’s account was incorrect. Under cross-examination counsel said that based on the police interview she formed the view it seemed C had accepted that allegation. She acknowledged his factual instructions did not differ to what he had told police in his evidential interview in relation to the disputed allegation. She said “I had in my mind that he had accepted the anal penetration…” And further, “the way I recall it was that he definitely admitted that during the police interview. I would’ve discussed that with him. I mean it, but I really thought it was admitted actually.” Former counsel said she was satisfied C understood the elements of the charge and had therefore made an informed decision to plead guilty.
[51]C deposed:
When I instructed my lawyer to plead guilty to charge 7, I did so on the understanding that I had already acknowledged having committed this offence in my police interview. I believe this was cause, at least in part, by the limited discussions we had in relation to the charges and my position. I certainly did not properly understand the elements of charge 7 when I instructed my former lawyer to plead guilty to it. My position with respect to that allegation, from a factual point of view, remained (and remains) the same as when I spoke to the police about it.
[52] There is little doubt former counsel had formed a clear view C had admitted the disputed charge at interview. I agree with Mr Bailey that view was flawed but was communicated to C (either directly or indirectly). It played a significant role in C’s erroneous understanding that he had admitted that offence to the police.
[53] If counsel had understood that at interview C had denied the allegation of anal penetration, counsel should have, and no doubt would have sought and recorded C’s explanation as to why, in entering a guilty plea to the disputed charge, he was adopting a position that was wholly consistent with his police interview, except in relation to the allegation of anal penetration, and why he had shifted his position from that taken at interview. In my view, it was counsel’s erroneous assessment of C’s interview that explains why the proposed guilty plea was not discussed in appropriate detail.
[54] A defendant, and particularly one who has no prior experience as a defendant in a criminal prosecution, and who has admitted sexual offending against a family member and is expressing shame and remorse, is likely be strongly influenced by counsel’s assessment of guilt when determining plea. I agree that C’s decision to enter a guilty plea to the disputed charge was significantly influenced by former counsel’s assessment that he had admitted the offence at interview and therefore had no viable defence to the charge.
Competent advice?
[55] Judge Neave formed the view that advice provided by former counsel was “entirely proper”. I do not share that view. I have found former counsel failed to appreciate C had denied the disputed charge at interview and therefore had an arguable defence to that charge.
[56] On appeal, Mr Bailey has raised fresh criticisms of the legal advice provided by former counsel. I understand these matters were not advanced in the District Court.
[57] First, Mr Bailey highlights that while trial counsel did provide the appellant with a version of s 128A of the Crimes Act, the version provided related to the offence as defined from 20 May 2005. The disputed offence and other sexual violations are alleged to have been committed prior to that date. Unlike the relevant version, the version provided to C does not define “sexual connection”. As Mr Bailey submits, the consequence is that C was provided with some, but not all, of the relevant legislation.
[58] Secondly, former counsel also gave C a typewritten document with a heading “Test” under which former counsel set out, in her words, the elements of the charge of
sexual violation. Mr Bailey complains that this note described the first element as “that sexual penetration occurred”. Mr Bailey correctly submits that the offence of sexual violation does not necessarily require prove of penetration; that sexual penetration does not reflect the language of the statute; and finally, that the notes omit any reference to intent.
[59] I accept the material provided to C was imperfect. However, I do not consider those imperfections were of a nature that, in and of themselves, might have caused C to misunderstand the disputed charge. Mr Harvey is right that, in the District Court, C did not challenge the competency of the legal advice he was given by former counsel. But the errors highlighted on appeal speak for themselves and have some relevance given the finding of the Judge that former counsel’s advice was entirely proper.
Consistency with other pleas
[60] Mr Bailey submits not only does C have an arguable defence to the disputed charge, but the guilty plea to that charge is both inconsistent with and will negatively impact C’s defence in relation to the charges to which he has entered not guilty pleas.
[61] I agree with Mr Bailey the guilty plea to the disputed charge does not sit well with the pleas entered to all other charges. C entered not guilty pleas to eight charges. I understand those primarily relate to allegations of sexual violation by rape. C maintains either the complainant consented, or he had reasonable grounds to believe she was consenting. He consistently maintained throughout his interview the complainant was about 15 years old at the time of the first penetrative sex. At interview he had made other frank admissions of sexually assaulting the complainant when she was younger. The guilty pleas he entered (and no longer challenges) reflect those admissions.
[62] It follows the guilty plea to the disputed charge represents the only factual allegation where C’s plea is inconsistent with his response at police interview. The denial at interview of the alleged anal or vaginal penetration was consistent with the position C took throughout the interview, namely that the complainant was 15 years old when penetrative sex commenced. Mr Bailey submits the guilty plea permits the
Crown to persuasively submit to the jury that, by his own admission, C lied at interview. He submits that “lie” will negatively impact on C’s credibility and prohibit the defence from advancing an argument that C gave an honest and reliable account at interview.
[63] I agree the guilty plea might well be seen by the jury as evidence C lied at interview. But that does not undermine the sanctity of the plea if it was entered voluntarily following appropriate legal advice. It does strike as odd that C’s about face in relation to this charge was not the subject of a focused discussion with counsel. Again, that is explained by former counsel’s assessment of the interview. Had there been what I consider to be the necessary discussion, counsel would have raised with C that the guilty plea would inevitably be highlighted by the prosecution as evidence of a significant lie told by C to the police.
[64] But the guilty plea also undermines C’s repeated assertion at interview that there was no act of penetrative sex until the complainant was aged 15 years. His defence to the charges of sexual violation by rape is that the complainant was aged 15 years when he first had intercourse (penetrative sex) with her and that she was consenting. The complainant was only aged 12 years on the date of the act the subject of the disputed charge.
[65] The unintended consequences of the guilty plea should have been explained to C before he entered his plea. Former counsel did do so not only because she believed the disputed charge had been admitted by the appellant at interview, but further because she believed C understood the disputed charge and because it was his decision alone as to the appropriate plea.
Health and time pressure
[66] There are two further factors relevant to the timing of the guilty plea I consider impacted on the appellant’s level of understanding of the disputed charge at the time he entered the guilty plea. First, and as was frankly acknowledged by trial counsel in the District Court, the plea was entered under time pressure. The pleas were entered on the morning of 8 July. It was only on 7 July that trial counsel had viewed the complainant’s evidential interview with the appellant. The evidence in the
District Court was that the appellant was anxious to do the right thing by the complainant and at one stage indicated he would just enter guilty pleas to all charges. No doubt C was feeling (appropriately) guilty, having admitted he had been sexually abusing his stepdaughter and was likely emotionally impacted, having so recently viewed the evidential interview.
[67] It was the following morning written instructions were provided recording the proposed pleas. Former counsel deposed she intended to apply for an adjournment to allow more time before pleas were entered. I infer from her evidence that counsel sensed unnecessary pressure was being brought to bear on C. However, having taken the view the presiding Judge was unlikely to grant a further adjournment, no such application was advanced. Rather, counsel told C “we need to enter pleas today”.
[68] Former counsel also acknowledged that, at the time the pleas were entered, C was not in a particularly good frame of mind. He was recovering from a series of serious heart attacks he had suffered earlier in the year. Former counsel said:
I accept that he really wasn’t well at the time and he was a lot weaker than he is now, his instructions were more vague and not as precise and strong as I saw he gave evidence today, he wasn’t a well man.
[69] In my view, C entered his guilty pleas under time pressure and at a time when he was physically, and likely mentally, vulnerable. Those factors are relevant considerations in assessing his level of understanding of the disputed charge.
Overview
[70] As Mr Harvey highlights, C gave former counsel signed instructions recording he would enter a guilty plea to the disputed charge. He stresses, and I agree, that the plea is for the defendant to determine, not counsel. Notwithstanding, I have concluded that this is one of the rare cases engaging exceptional circumstances such that C did not appreciate the nature of the disputed charge and that a miscarriage of justice has occurred as a consequence of the guilty plea.
[71] It is not a single factor that gives rise to a miscarriage of justice. Rather, it is the accumulation of factors. The language issues and the consistent denial of the
disputed charge at interview; former counsels’ misunderstanding of C’s denial and consequential advice to C; the failure to consider the implications of the guilty plea for the trial; and that the plea was entered under pressure of time and when the appellant was in poor health together result in a miscarriage of justice.
Consequences for complainant
[72] In considering whether a guilty plea will be set aside, the Court will engage in a broader interest of justice inquiry. That will include consideration of the position of the complainant and other witnesses. This case is rather unusual in that the appellant faces a number of charges alleging sexual violation by rape which he denied at interview, has entered not guilty pleas and will defend at trial. It follows, that regardless of the outcome of this appeal, the complainant will be required to give evidence at trial. That scenario minimises the adverse consequences for the complainant if the appeal is allowed.
Result
[73] The appeal is allowed. The conviction on the charge of sexual violation by anal penetration is quashed. That charge will appropriately be determined at trial alongside the other charges to which C has entered not guilty pleas.
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Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
A J Bailey, Barrister, Christchurch
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