Collett v Police

[2015] NZHC 2307

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000120 [2015] NZHC 2307

BETWEEN

STANLEY ERNEST COLLETT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 September 2015
Appearances:	D P H Jones QC for Appellant S McMullan for Respondent
Judgment:	23 September 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 23 September 2015 at 11.30am

pursuant to r 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

COLLETT v NZ POLICE [2015] NZHC 2307 [23 September 2015]

Introduction

[1]      Stanley Ernest Collett was convicted in June 2010 on one charge of driving with excess breath alcohol.   Judge Treston refused to discharge him without conviction under s 106 of the Sentencing Act 2002.1   Mr Collett has now applied for leave to appeal that decision and, in the event that leave is granted, to adduce further evidence in support of the appeal.

[2]      The ground advanced in support of the applications for leave to appeal and the proposed appeal is that since his conviction Mr Collett’s circumstances have changed significantly; he is now required to travel frequently for business and his daughter is planning to move to Canada.  He claims that his conviction will pose a serious impediment to his travel for both purposes.

[3]      The fresh evidence he seeks to adduce sets out his new circumstances and also documents the difficulties his conviction is likely to cause him when he attempts to travel overseas.

Leave to appeal

[4]      The principles to be applied in considering an extension of time to appeal are those identified in R v Knight2 and more recently summarised in Isherwood v R:3

A balancing of all relevant interests is required. These include the public interest in finality of decisions and the individual’s interest in having the conviction or sentence reviewed, bearing in mind that an appeal may be brought as of right if it is filed within time.  Also relevant are the strength of the proposed appeal, the length of the delay and the explanation for it, the prejudice to the Crown from the delay (in particular, the difficulty in conducting a retrial) and the effect of reopening the case on the victim(s). And there may be other factors as well in particular cases.

[5]      In  this  case  there  is  no  suggested  prejudice  to  the  Crown  in  granting Mr Collett  leave  to  appeal.     The  real  issue  is  whether  Mr  Collett’s  current circumstances justify setting aside a decision made more than five years ago.  This

involves consideration of the changes in his circumstances, his explanation for not

1      Police v Collett DC North Shore CRI-2009-404-8463, 29 June 2010..

2      R v Knight [1998] 1 NZLR 583 (CA).

3      Isherwood v R [2010] NZCA 347 at [16].

having applied for leave to appeal earlier and the prospects that the proposed appeal might succeed.

[6]      At the time of his conviction Mr Collett was a maritime consultant and a person  authorised  by  New  Zealand  Maritime  Safety  to  conduct  surveys  of commercial fishing boats.   When he applied for a discharge without conviction in

2010 he did not rely on any need for overseas travel, either in connection with his work or for personal reasons.   Since then, however, he has acquired a business interest that involves frequent travel, particularly to Asia.   Last year he spent approximately three months travelling in Asia for the purposes of his work and some

40 per cent of his income came from this source.  This year it has been higher and he expects over the next five years some 60 to70 per cent of his annual income will come from his business in Asia.   In addition, his daughter has recently announced plans to move to Canada to live.

[7]      I accept that Mr Collett has genuine and significant reasons to travel to Asia and Canada.  I do not, however, accept that it is in the interests of justice to grant leave for him to appeal Judge Treston’s decision.  The reason is that between 2011 and  2014  Mr  Collett  travelled  freely  in Asia  as  a  result  of  not  disclosing  his conviction when he was required to do so.  He says that, at least until late 2014, he did not appreciate that he was required to do so and that his late application for leave to appeal is due to that misunderstanding.  Having now learnt that he must disclose the conviction, he wishes “to regularise” the position.  In order to explain why I do not consider that  leave would  appropriate in  this  case it  is necessary to  record Mr Collett’s explanation as to how he came to be in this position.

[8]      Mr Collett does not explain when he became involved in his current business. There is no mention of it in the affidavit he swore in June 2010 in support of his application for discharge without conviction.  But by March 2011 he was looking to apply for an APEC card.  This card is issued to qualifying business travellers and relieves them of the need to apply for visas or entry permits participating countries in the Asia-Pacific region.   He applied for and obtained an APEC card later that year.

[9]      The APEC  application  form  asked  whether  the  applicant  had  ever  been “convicted … for any offence(s) against the law in any country including New Zealand”   Before lodging his application Mr Collett completed a request to the Ministry of Justice under the Privacy Act 1993 for a copy of his criminal record.  He says that he did so because he understood that he was required to submit information relating to criminal convictions with the APEC card application.  The basis for this understanding is unclear because the application form (exhibited to Mr Collett’s affidavit)  only  requires  supporting  documentation  if  the  applicant  has  answered “yes” to the question whether they have any convictions.  At this stage Mr Collett claims he believed he did not have a conviction.

[10]     There were difficulties processing his Ministry of Justice request because he did not include a photocopy of his driver’s licence or passport.  Mr Collett supplied the requested information but did not hear back.  He asserts he then made a second application  but  by  the  end  of  May  2011  the  Ministry  of  Justice  had  still  not responded.  Mr Collett said:

I subsequently filed the APEC card application by post. … I believe I must have received the information back from the Ministry of Justice and forwarded  it  with  the  application.    The  only  other  possibility  is  that  I received nothing from the Ministry and sent the application anyway.

[11]     In relation to the APEC application card Mr Collett said:

I do not have a copy of my handwritten application for the APEC card. However, I confirm that I would have answered the declaration which asks “Have you ever been convicted” with the answer “No” as I believed that the excess breath alcohol charge was a traffic matter, rather than a criminal conviction.

[12]     I find it very difficult to establish a clear picture from this evidence.  If the APEC card application did require a copy of the criminal record then it is difficult to see how the card was issued because either the Ministry of Justice sent a copy of Mr Collett’s criminal record showing his conviction or the application was lodged without that information.  I think it more likely that as, the application form suggests, the criminal record was not actually required and that Mr Collett, as he intimates, simply completed the form without disclosing the conviction.

[13]     This brings me to Mr Collett’s claim that he believed the conviction was not a criminal conviction but merely a “traffic matter” that did not have to be disclosed.  I find that assertion extremely difficult to accept because when Mr Collett swore his affidavit in June 2010 in support of his application for a discharge without conviction he referred specifically to the consequences of the conviction on his career and on his standing as an “approved person” with Maritime New Zealand.  It is not credible to think that only nine months later he would have thought that the conviction about which he had been so concerned was actually only a “traffic matter”.

[14]     Finally, I have serious concerns about Mr Collett’s actions in the months leading up to the present application.  When Mr Collett’s APEC card was close to expiry last year he re-applied for a fresh card.  Once again he did not disclose his conviction.  He deposes that he completed the application form “on the (mistaken) understanding that I did not have a criminal conviction”.  However, his application was declined in July 2014, Immigration New Zealand having obviously obtained information to the contrary.

[15]     Mr Collett did not seek legal advice until January 2015.  His only explanation for that delay is that until that time he had given no thought to whether he could appeal Judge Treston’s decision.   He says that it was only when he obtained legal advice that he discovered that the conviction for driving with excess breath alcohol was a criminal conviction for the purposes of visa applications.  Between obtaining that legal advice and making the present application in August 2015 Mr Collett has applied for visas to countries to which he was required to travel for business, in each case failing to disclose his conviction.  He says that he felt he had no other option if he  was  to  retain  his  business.    His  purpose  in  making  this  application  is  to “regularise the position and avoid having to make any false declaration to gain access to those countries”.

[16]     It is evident that, had Mr Collett disclosed his conviction in 2011, he would not have obtained an APEC card and would have had to apply for visas in the usual way.  Granting leave to appeal now would mean that he would be in a better position as a result of his non-disclosure than he would have been had he complied with his obligations.  Moreover, even after Mr Collett was advised of the fact that he had a

criminal conviction that he was required to disclose he continued his course of failing to make proper disclosure.  It is simply not in the interests of justice to grant leave to appeal in these circumstances.

[17]     The application for leave to appeal is dismissed.    Given this result it is unnecessary to consider the application for leave to adduce further evidence.

P Courtney J