C v The King - [2024] NZHC 362

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading C v The King

Details

AGLC: C v The King [2024] NZHC 362
Case: [2024] NZHC 362
Decision Date: 28 February 2024

CaseChat Overview and Summary

In C v The King, the High Court considered an appeal against the refusal of the District Court to vacate a guilty plea for sexual violation by anal penetration. The appellant, C, had entered a guilty plea to this charge alongside three others, but elected to plead not guilty to eight further charges of sexual violation by rape and indecent assault. The District Court refused to vacate the guilty pleas, finding that C had received proper advice and had entered the pleas voluntarily.

On appeal, the appellant argued that he did not understand the nature of the charge, given his English was not his first language and his former counsel had misunderstood his police interview, leading to flawed advice. The Crown argued that C had received proper advice and had freely entered the plea, and that the appeal should be considered as an appeal against conviction, which is rarely successful following a guilty plea.

The High Court allowed the appeal, finding that a miscarriage of justice had occurred. The Court noted that C had consistently denied the charge of anal penetration in his police interview, and that his former counsel's misunderstanding of this had led to flawed advice. The Court also found that the guilty plea was inconsistent with C's other pleas and defence, and that it had been entered under time pressure and when C was in poor health. The Court quashed the conviction for the charge of sexual violation by anal penetration, allowing it to be determined at trial alongside the other charges.

Orders