Cherrington-Williams v Police - [2023] NZHC 1795

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2023-488-24

[2023] NZHC 1795

BETWEEN
RAYMOND CHERRINGTON-WILLIAMS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 July 2023

Appearances:

J P R Scott for Appellant

B O’Connor for Respondent

Judgment:

10 July 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 10 July 2023 at 4.30 pm

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Whangarei

CHERRINGTON-WILLIAMS v POLICE [2023] NZHC 1795 [10 July 2023]

Summary

[1] Raymond Cherrington-Williams seeks leave under s 231(3) of the Criminal Procedure Act 2011 (the Act) to appeal out of time his conviction, entered in the Whangārei District Court on 3 October 2022, on a charge of assault in terms of s 9 of the Summary Offences Act 1981. He says that the duty solicitor who appeared for him on that day contradicted his instructions, by entering a guilty plea when his instructions were that he did not want to plead guilty.

[2] The key issue for determination is whether or not Mr Cherrington-Williams instructed the duty solicitor that he wished to plead guilty. On my assessment of the evidence, Mr Cherrington-Williams instructed the duty solicitor that he wished to plead guilty. The duty solicitor properly entered Mr Cherrington-Williams’ guilty plea. There has been no miscarriage of justice.

[3] The background, evidence, submissions of counsel, legal position and reasons for my assessment are set out in detail below.

[4] During the hearing, I indicated I would hear the appeal, including the evidence to be advanced, before dealing with the question of leave. In light of my assessment of the merits, Mr Cherrington-Williams’ delay in bringing the application for leave to appeal has not been satisfactorily explained.

[5]The application for leave to appeal is dismissed.

Background

[6] Mr Cherrington-Williams and his then partner, who worked together on fishing boats operating out of Timaru, were on holiday in Northland in early October 2022. At around 1 am on Sunday, 2 October 2022, they were at the Grand Hotel bar in Whangārei.

[7] The police alleged there was an argument between the pair, and that when his partner went outside there was physical contact between them: he trying to pull her back to the bar; she resisting. As police arrived, Mr Cherrington-Williams was seen

to attempt to pull his partner up off the ground, before dropping her back. He then grabbed the hoodie she was wearing, trying aggressively to pull it off her. When he then saw the police, he ran away on foot. Upon being apprehended he said that he went after his partner as if she were leaving him he wanted his hoodie from her, it having cost him $100.

[8] Mr Cherrington-Williams was held in custody and appeared in court the following day, charged with the offence under s 194A of the Crimes Act 1961 of assault on a person in a family relationship. When the case was called, John Day appeared as duty solicitor for Mr Cherrington-Williams.…

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.

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Details

Case: [2023] NZHC 1795
Decision Date: 10 July 2023

CaseChat Overview and Summary

Raymond Cherrington-Williams sought leave to appeal his conviction for assault against a person in a family relationship, entered in the Whangārei District Court. The key issue was whether Mr Cherrington-Williams instructed his duty solicitor to plead guilty. The court assessed the evidence and concluded that Mr Cherrington-Williams did instruct his duty solicitor to plead guilty. The court found that the duty solicitor properly entered the guilty plea and that there had been no miscarriage of justice. The court also considered Mr Cherrington-Williams' delay in bringing the application for leave to appeal, which was not satisfactorily explained. Consequently, the application for leave to appeal was dismissed.

The court's reasoning was based on several factors. Firstly, Mr Cherrington-Williams' initial complaint focused on the restrictive bail conditions he would have faced if he had not pleaded guilty. His later affidavit and evidence suggested he had changed his position, but the court found his initial complaint more credible. Secondly, the transcript of the hearing showed that the topic of Mr Cherrington-Williams' plea was raised multiple times, and the duty solicitor followed standard procedure by asking the court to record the plea. Thirdly, the court noted the variability in Mr Cherrington-Williams' evidence and found it less reliable than the duty solicitor's consistent practice of not entering guilty pleas without clear instructions. Finally, the court was not persuaded by the reason given for the delay in bringing the appeal, which was that it was affecting Mr Cherrington-Williams' job and life. Overall, the court found that Mr Cherrington-Williams had not demonstrated exceptional circumstances warranting an out-of-time appeal.

Orders