Cherrington-Williams v Police
[2023] NZHC 1795
•10 July 2023
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. He advised Judge Rzepecky that there would be a plea of guilty to an amended charge under the Summary Offences Act, the police sergeant in Court confirming that he proposed amendment of the charge “to get the matter resolved”. Judge Rzpecky amended the charge accordingly, accepted Mr Cherrington-Williams’ guilty plea through his counsel Mr Day, and convicted and sentenced him to a fine of $800, taking into account a victim impact report in which his partner said:1
… [she had] cuts and scratches on her hands and elbows from what happened.
…
My partner [Mr Cherrington-Williams] is only like that when he drinks. I want to be with him but not when he drinks.
[9] Mr Cherrington-Williams filed his appeal notice himself. It is dated 3 March 2023 and was accordingly around four months out of time.2 The reason provided for seeking an extension of time in which to appeal was “because its effecting my life and job [sic]”. In the space for Mr Cherrington-Williams to specify the grounds of his appeal, he wrote:
Was not true as it was very rushed. Forced to go with the flow and plead guilty cause there would of been conditions if I did not.
[10] At the first callover of the appeal, on 24 March 2023, Whata J indicated to Mr Cherrington-Williams that he would need to consider whether to give the Crown
1 Police v Cherrington-Williams [2022] NZDC 26137.
2 Criminal Procedure Act [CPA], s 231(2).
permission to speak to his former lawyer about what he was claiming, suggesting that he take legal advice.3
[11] By letter dated 6 April 2023, Mr Day wrote to the Crown Solicitor for Northland. Mr Day commenced by stating that the Crown Solicitor had approached him “[p]ursuant to judicial direction”, “to make contact with the appellant Mr Cherrington-Williams with a view to providing him with some legal advice re waiver of privilege and, more generally, whether the appeal had merit”. Plainly, there had been no such judicial direction.
[12] Mr Day’s letter went on to describe him obtaining Mr Cherrington-Williams’ file from the registry, and realising only then he had acted for Mr Cherrington-Williams as duty solicitor on 3 October 2023. He advised that in the circumstances he would not contact Mr Cherrington-Williams. Reflecting on the possibility that the Crown Solicitor had instead wanted Mr Day’s recollection of how it was that the guilty plea came to be entered, Mr Day went on to set out the circumstances. The essence of Mr Day’s then recollection was that he could not recall with any specificity what it was that he was told or instructed in connection with matter. That said:
(a)He would “almost certainly” have obtained initial disclosure, likely to have been the summary of facts and conviction/bail history, before going to see Mr Cherrington-Williams in the cells, that being his constant practice as duty solicitor in the Whangārei District Court for 37 years.
(b)He inferred Mr Cherrington-Williams wanted matters resolved on the day.
(c)Pursuant to those “probable” instructions, he would have approached the police prosecutor and negotiated the charge reduction.
3 Williams v R HC Auckland CRI-2023-488-24, 24 March 2023.
(d)“[H]aving reported back to [Mr Cherrington-Williams] and obtained his agreement to the plea reduction [he] would have duly appeared for him before Judge Rzepecky, entered the plea of ‘guilty’ to the amended charge.”4
Mr Cherrington-Williams’ affidavit
[13] By the time of the next mention on 21 April 2023, Mr Cherrington-Williams had been granted legal aid and was represented by Mr Scott. With Mr Scott’s assistance, Mr Cherrington-Williams filed an affidavit dated 23 June 2023 in which he denied the assault. He said that although he was only standing over his partner trying to help her up when the police arrived, he knew how bad it would look. He ran away because he did not want to spend time in the cells until court on Monday. He went on to describe Mr Day approaching him in the court cells. He said:
17.He went through some paper work with me and I said over and over that I didn’t assault anyone. Because of that I didn’t want to go guilty to the charge.
18.He told me that it would be better to sort it out on the day. He said that if I didn’t plead guilty there would be bail conditions – like not being able to live with my partner.
19.I still said that I wanted to plead not guilty, but asked him not to get bail conditions that would effect [sic] my life.
20.But he kept saying that I should plead guilty. I’d been in the cells for so long and I was tired and getting frustrated because he wasn’t listening to me. In the end I just said “do what you want” – I didn’t feel like I had any choice.
21.I never told him I wanted to plead guilty.
[14] Mr Cherrington-Williams’ affidavit describes him not speaking up in court when his plea was entered and a fine imposed because “I didn’t think I was allowed to talk”. It adds “I have paid that fine in full”.
4 (Emphasis added).
Mr Day’s affidavit
[15] I understand that it was not until the day of the hearing of Mr Cherrington-Williams’ application that counsel for New Zealand Police invited Mr Day to swear an affidavit. Be that as it may, he did so, and it was filed without objection from counsel for Mr Cherrington-Williams.
[16] Mr Day’s affidavit dated 5 July 2023 largely confirms the views he expressed in his 6 April 2023 letter. However, it adds that he had read the transcript of proceedings of 3 October 2023 and Mr Cherrington-Williams’ affidavit dated 23 June 2023. Mr Day further wrote:
12. As said above, I cannot recall what the appellant might then have informed me as to such personal circumstances of his as they related to issues of employment and domestic relationships.
12.However, I do recall that the appellant was most concerned about bail and the imposition of bail conditions. I recall he worked with the complainant and was concerned about how bail conditions would affect that.
13.I would never approach Police and negotiate an amendment to charges without clear instructions from a defendant to do so.
14.I would never enter guilty pleas on behalf of a defendant without clear instructions to do so.
Evidence at hearing
[17] At the hearing of the appeal, Mr Cherrington-Williams gave evidence on his own behalf, and Mr Day gave evidence when called by Ms O’Connor, for New Zealand Police. Both were cross-examined. I will relate aspects of the evidence later in this judgment. In broad terms, their evidence replicated their affidavits.
Mr Cherrington-Williams’ submissions
[18] For Mr Cherrington-Williams, Mr Scott submitted that Mr Day failed to follow Mr Cherrington-Williams’ instructions. In particular, the guilty plea was entered when Mr Cherrington-Williams’ instructions were that he wished to plead not guilty. Accordingly, in terms of s 232(2)(c) of the Act, a miscarriage of justice occurred.
New Zealand Police submissions
[19] Ms O’Connor’s written submissions for New Zealand Police, dated 4 July 2023, had conceded the appeal. But having obtained Mr Day’s affidavit, the position taken for New Zealand Police shifted. Ms O’Connor submitted that Mr Day did not act contrary to instructions. The appeal should be dismissed.
Legal principles
[20] If leave to appeal out of time were granted, the appeal would require determination under s 232 of the Act. In the circumstances of this case, the Court would be required to allow the appeal if satisfied that a “miscarriage of justice” had occurred.5 A “miscarriage of justice” means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.6 Here, “trial” includes the hearing on 3 October 2022, leading to and including the entry of the conviction.7
[21] The general position is that only in exceptional circumstances will an appeal against conviction be entertained following entry of a plea of guilty. Where an appellant fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot be impugned.8
[22] However, amongst what has been described as the three broad situations where a miscarriage of justice is indicated is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge.9 In determining whether the appellant comprehended the charge the court may have regard to any prior experience of the criminal justice system which the appellant may possess.10
[23]In Hall v R, the Court of Appeal found it:11
5 CPA, s 232(2).
6 Section 232(4).
7 Section 232(5).
8 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
9 At [17].
10 R v Roycroft CA312/01, 4 September 2002 at [22].
11 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].
… helpful to identify three fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage. The fundamental decisions are those relating to plea, electing whether to give evidence and to advance based on a [defendant’s] version of events.
[24]The Court went on to observe:
[69] In an appeal based on a failure to follow instructions as to these fundamental decisions, the focus will be on whether, as a matter of fact, there was a failure to do so.
[25] In this case, there is no suggestion Mr Cherrington-Williams did not appreciate the significance of the guilty plea entered by Mr Day on his behalf. Mr Cherrington-Williams has experience of the criminal justice system, previously having pleaded guilty and been sentenced for matters including assault on a person in a family relationship.
[26] As mentioned above, the key issue for determination was accordingly whether or not Mr Cherrington-Williams instructed Mr Day that he wished to plead guilty.
Assessment of evidence
[27] In my assessment, though he may now genuinely believe otherwise, Mr Cherrington-Williams instructed Mr Day on 3 October 2022 that he would plead guilty to the reduced charge. The following are my reasons.
[28] First, it is significant that Mr Cherrington-Williams’ initial complaint was as stated above at [8]. The tenor was that Mr Cherrington-Williams pleaded guilty, albeit reluctantly in light of his own view of the evidence, because he would otherwise have had to endure restrictive bail conditions. By the time of his affidavit, and his evidence at the hearing, Mr Cherrington-Williams’ position had changed. The passage quoted above captures the essence of the affidavit. His evidence in chief including the following:
Q. Do you recall what he said to you?
A. No.
Q.No? Okay. Did he talk to you about whether you wanted to plead guilty or not guilty?
A. Yes.
Q. What did he say about that?
A.He asked me if I wanted to plead guilty or not guilty. I said: “Not guilty. I didn’t do it.”
Q. Okay. What did he say after you said that?
A. He said: “If you plead guilty you get this matter over and done with.”
Q. Okay. What did you say?
A. I said: “I didn’t do it. I don’t want to plead guilty.”
Q. And what did he say?
A. “He pleads guilty.”
[29] But when asked whether there was a conversation about bail, Mr Cherrington-Williams’ evidence was:
A. Yeah, what could happen.
Q. What could happen in what circumstance?
A.Oh, like, to get bail, like, we will be separated. We’ll be – we couldn’t talk to each other.
Q. Okay. And what did you say when Mr Day told you about that?
A. I told him we can’t do that ‘cos we work together.
Q. What did he say?
A. We live together. We, you know, we do life together.
Q. What did he say?
A. I don’t know. I can’t recall.
[30] Mr Cherrington-Williams’ evidence went on to confirm that this discussion, about him being separated while on bail from the partner he had allegedly assaulted, occurred prior to Mr Day going away and returning to discuss the reduced charge that had been negotiated.
[31] The clear impression I formed was that Mr Cherrington-Williams’ primary, retrospective concern about what had occurred on 3 October 2022 was in essence the same concern he had then: that he felt he had done nothing wrong, and he should not
have had to face either a charge or the prospect of a non-association condition. But, as Mr Day asserted in evidence, a non-association condition would have been a natural and standard condition for the presiding Judge to have seen fit to impose, particularly in light of Mr Cherrington-Williams’ previous conviction for assault on a person in a family relationship. There was no realistic prospect of Mr Cherrington-Williams both disputing the charge and being bailed without a non-association condition. Yet Mr Cherrington-Williams’ evidence was that when the issue of bail was raised, and he pointed out he could not “do” a non-association condition, he could not recall Mr Day’s response.
[32] Of course, Mr Cherrington-Williams was confronted with making a choice, about which he needed to instruct Mr Day. There has been no suggestion, in his appeal notice, his affidavit or his evidence in person, that he chose to accept he would be bailed with a non-association condition, or that he instructed Mr Day to advance an application for bail without a non-association condition. His evidence was that he could not recall further discussion about bail.
[33] On this basis, the greater likelihood is that Mr Cherrington-Williams did, as his appeal notice suggests, “plead guilty” through Mr Day. By doing so he made an informed choice about plea given his adequate understanding of the weight of the evidence and the likely nature of his bail conditions pending a substantive hearing.
[34] Second, the transcript of the hearing on 3 October 2022 indicates that there were three occasions on which the topic of Mr Cherrington-Williams’ plea was raised:
(a)first, when Mr Day advised “there is going to be a plea of guilty to an amended charge under the Summary Offences Act”;
(b)second, when Judge Rzepecky confirmed there would be amendment of the charge and Mr Day repeated the proposal; and
(c)third, when the Judge had made the amendment and asked for “your plea, the plea”, with Mr Day saying, “guilty through me, sir, thank you”.
[35] Mr Day’s evidence was that had there been “the slightest inkling or doubt or uncertainty in my mind” whether Mr Cherrington-Williams wished to plead guilty he would have had the registrar put the charge. I accept that evidence on the basis it can be expected to be Mr Day’s standard approach, in line with that of counsel generally when a defendant for whom they act as duty solicitor has displayed prevarication.
[36] More significantly for present purposes, I do not accept Mr Cherrington-Williams remained silent throughout the hearing with the guilty plea being entered against his instructions. He is familiar with the court process, having pleaded guilty and been fined, or had community work or supervision imposed previously. In evidence, he asserted he had been held in contempt of court for speaking on a prior occasion, but that reason was not offered in his affidavit and so does not appear to have been in his mind when the affidavit was made. Mr Cherrington-Williams was forthright and confident about voicing his perspective when giving evidence: at times he commenced to talk over both Ms O’Connor when cross-examining and me when seeking clarification; and at one moment he simply stood up and started to walk from the witness box (explaining when stopped that he wanted to talk to Mr Scott).
[37] Third, Mr Cherrington-Williams’ evidence was, at times, somewhat flexible. For example, he was asked whether he approached Mr Day after his court appearance on 3 October 2022 and said he did not, because he left through the rear exit from the cells. Mr Day “was nowhere to be seen”. When asked whether he came back around into the main body of the courthouse, he said “[n]o. No, I was sussing out my ride.” Within the course of the next exchange, he was asked to clarify whether he walked around and came into the front of the courthouse, and said “[o]f course I did. I needed to charge my phone, asking people to use their charger. My focus was getting home.” Similarly, his affidavit recorded that he had paid the $800 fine imposed by Judge Rzepecky in full. Yet in evidence in chief when asked whether he had paid the fine he said “[n]o, I haven’t paid no fines. I didn’t pay fines. I do community work. That’s the plan though.” In cross-examination, his final position was that he did not know whether he had paid the fine.
[38] The variability of Mr Cherrington-Williams’ evidence tells against preferring his modified account of events set out in his affidavit and viva voce evidence over his initial summary as set out in his appeal notice.
[39] Fourth, I have no difficulty accepting Mr Day’s evidence that it is not his practice to enter guilty pleas on behalf of a defendant without clear instructions to do so. It is correct that this evidence was offered for the first time only in Mr Day’s affidavit of 5 July 2023, and not in his letter. But that is understandable. When Mr Day wrote his letter on 6 April 2023, the allegations being made by Mr Cherrington-Williams (via his appeal notice) were that matters were rushed and he had been forced to plead guilty. Whether Mr Day was briefed to that extent is not clear. However, it is in any event unlikely he had been told Mr Cherrington-Williams was alleging that he instructed Mr Day to enter a “not guilty” plea. Mr Cherrington-Williams did not make that allegation until it appeared in his affidavit of 23 June 2023. Accordingly, it is unsurprising Mr Day’s letter focussed on how it was that he came to negotiate the reduced charge.
[40] This is not to say Mr Day necessarily holds a memory of taking Mr Cherrington-Williams’ instructions. His evidence made it plain that in the absence of a written record in the form of a note signed by Mr Cherrington-Williams confirming his instructions he had to “fall back on what [he] routinely [does] as a duty lawyer”. That is similarly unsurprising given the unexceptional nature of the hearing and the lapse of time from then until a first invitation to recall events nearly six months later.
[41] Overall, however, I was left with the clear view that Mr Day’s general methodology as he approaches his work as duty solicitor is sufficiently careful in respect of defendants’ “fundamental decisions” such as plea as to make it most unlikely he might enter a client’s guilty plea while under a misapprehension on that subject. Yet Mr Cherrington-Williams’ case goes further, suggesting Mr Day entered a guilty plea when Mr Cherrington-Williams did nothing to suggest that was what he wanted. Mr Day’s practice is not to conduct himself in that way. He did not do so on this occasion.
[42] I note, incidentally, that the evidence suggested Mr Cherrington-Williams returned to Timaru within a week or so of 3 October 2022, and that he went to sea soon thereafter. But he was back on land for Christmas 2022, and although he had intended to go to sea again he was injured and did not do so. His appeal notice not being filed in the Timaru District Court until 3 March 2023, I find the reason offered for the delay12 somewhat obscure.
[43] In light of the merits of the appeal, and the unclear reason for the delay in it being brought, I am not prepared to grant leave to bring the appeal out of time.
Johnstone J
12 See above at [8] (“Because its effecting my job and my life”).
0