Colman v Police
[2014] NZHC 3243
•17 December 2014
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2014-488-000007 [2014] NZHC 3243
BETWEEN JOHN COLMAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 15 December 2014 Appearances:
Mr Colman, Appellant in person
G R Anson for Respondent
A Fairley, amicus curiaeJudgment:
17 December 2014
(RESERVED) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]
This judgment is delivered by me on 17 December 2014 at 4 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
COLMAN v NEW ZEALAND POLICE [2014] NZHC 3243 [17 December 2014]
Introduction
[1] Mr John Colman was convicted in the District Court at Whangarei on
11 February 2014 after pleading guilty to a charge of criminal harassment. He was ordered to come for sentence if called upon within 12 months. He has appealed against conviction and sentence.
[2] Mr Colman appealed his conviction on the grounds that his plea of guilty was coerced and he did not have enough time to consider his plea; and his acts did not amount to criminal harassment. He appealed against his sentence on the ground that he should have been given the opportunity to apply for a discharge without conviction.
[3] At the conclusion of the appeal hearing I advised the parties that I had concluded that Mr Colman’s appeal against conviction should be allowed and the conviction set aside. I sought submissions as to the disposition of this matter, in the light of that conclusion. Having heard further from Mr Colman, Mr Anson, and Mr Fairley, I reserved my decision on that point and indicated that it would be included in my reasons for judgment.
[4] I now set out my reasons for quashing the conviction, and my decision as to the further disposition of this matter.
Background
[5] On 1 November 2013 Mr Colman was charged with threatening to kill a named District Court Judge. The threat was alleged to have been made in a letter forwarded by Mr Colman to the Governor-General, as part of attempts by Mr Colman to obtain redress for what he believes to be injustices he has suffered in the past from the Police and the courts.
[6] The genesis of Mr Colman’s concerns is an incident that occurred on
17 December 2007. He was charged with disorderly behaviour and using insulting language towards people he says were trespassing on his property. He was subsequently found not guilty on the disorderly behaviour charge, but guilty of the
charge of using insulting language. On appeal, he was discharged without conviction.
[7] According to a Police summary of facts, Mr Colman then proceeded to go to “great lengths to try and remedy what he sees as a great grievance against him by Police and the Judiciary.” He sent emails to Members of Parliament, dignitaries, and “directly to persons holding office within the work environments of those offices he believes have done wrong by him.”
[8] In August 2013, Mr Colman sent an email to the Governor General, seeking his assistance. As a result, Detective Senior Sergeant Begbie visited Mr Colman at his address. Mr Colman said that he meant no harm to anyone, and was using emails to draw attention to the injustice he had suffered.
[9] On 10, 22 and 23 October 2013, Mr Colman sent insulting and threatening emails to the Chief Justice, President of the Court of Appeal, Chief High Court Judge, and Chief District Court Judge. The emails contained references to “judicial assassinations” and statements that “Judges will die for this”. He said that actions would not be taken by him, but by members of his family. Mr Colman specifically mentioned one particular Judge (“the District Court Judge”), who had previously presided over a hearing involving him. He said that that Judge “will most assuredly be on the list of those warranting assassination.”
[10] When he was spoken to by the Police, Mr Colman admitted he had written the emails and said he was only trying to get someone to make right all the wrong that had been done to him by Police and the judiciary.
[11] As noted earlier, Mr Colman was initially charged with threatening to kill. That charge was laid on 1 November 2013. An issue arose as to Mr Colman’s fitness to stand trial. The Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CP (MIP) Act”) procedure was triggered. On 4 December 2014, Judge Paul found on the balance of probabilities that Mr Colman had been involved in the offence. Reports were received from Dr Sakdalan and Dr Karayiannis pursuant to s 14 of the CP (MIP) Act. Dr Sakdalan considered Mr Colman was fit to stand trial.
Dr Karayiannis, on the other hand, concluded that Mr Colman was unfit to stand trial.
[12] On 11 February 2014, Judge Roberts found Mr Colman fit to stand trial. He found on the balance of probabilities that Mr Colman has a mental impairment, being paranoid delusional disorder, but is fit to stand trial.
[13] It appears that, following Judge Roberts’ finding, there were discussions between Mr Colman and counsel, Mr Gruar (who appeared for him on the “fitness to plead” issue) and with the Court. It is common ground that a sentence indication was given, that if Mr Colman were to plead guilty to a charge of criminal harassment, he would receive a suspended sentence. The transcript of the hearing does not include a record of discussions with the Court except to record that Judge Roberts gave the prosecution leave to amend the charge to one of harassment of the District Court Judge with intent to cause him to fear for his safety, that that charge was put to Mr Colman, and that he pleaded guilty. Mr Colman was then ordered to come up for sentence if called upon within 12 months. The transcript records that when discussing the amendment of the charge, Judge Roberts said, “Mr Colman this has your tacit approval doesn’t it?” Mr Colman responded, “yes Sir”.
Issues
[14] As outlined in Heath J’s Minute (No 2) dated 4 December 2014, the issues
are:
(a) Whether Mr Colman entered an informed plea of guilty.
(b)Whether there has, in any event, been a miscarriage of justice arising out of Mr Colman’s guilty plea, in that a defence could have been advanced to the amended charge.
Submissions
[15] Mr Colman submitted that nothing he did satisfied the actus reus for a charge of criminal harassment. He submitted that he pleaded guilty because he was
unprepared, traumatised and coerced. He attended Court on 11 February in the expectation of only one event taking place that day, being the determination of his mental fitness. He did not expect to have to enter another plea.
[16] Mr Colman said that the Court went immediately from concern for his mental state and ability to understand proceedings to instantly asking him for a new plea. He said he could not cope in these circumstances. He submitted that the haste was in breach of s 24 Bill of Rights Act, as the first he knew of a harassment charge was when the Judge was arraigning him. The first time the word harassment was used was when Judge Roberts was reading the charge to him, and he was then expected to enter a plea.
[17] Mr Colman submitted that by the time he appeared for the “fitness to plead” hearing, he had been in custody for 100 days (first at Ngawha, then Mt Eden, then at the Mason Clinic). Over the seven years since the original incident he had been required to appear at Court on 70 occasions, and he had been arrested on a number of charges, which he described as frivolous. He had been convicted on only one charge, the others being dismissed. He submitted that at the “fitness to plead” hearing he was entitled to assume that if the Police and Court were linking the summary of facts of his offending with a charge of criminal harassment, then they knew what they were doing, when the opposite was the case. He submitted that he pleaded guilty because he knew that if he did he would get to go home but if he pleaded not guilty he would be remanded in custody. He submitted that he was coerced by the circumstances into giving a plea that could not be given freely or objectively.
[18] For the respondent, Mr Anson acknowledged that the transcript for the proceedings on 11 February 2014 is incomplete. However, he submitted that Mr Colman was not coerced or unduly influenced to plead guilty to the amended charge. He submitted that Mr Colman had not specified any action by the Court, the prosecutor or Mr Gruar, which amounted to coercion or undue influence.
[19] Mr Anson further acknowledged that Mr Colman did not have legal advice as to the nature of the amended charge, and he was prepared to accept that Mr Colman
would not have known the legal ingredients of the proposed charge. He acknowledged that Mr Colman has a mental impairment. However, he submitted that due to the intervention of the lunch adjournment and Mr Gruar’s presence and availability to Mr Colman (albeit in an informal capacity), Mr Colman’s vulnerability on account of mental impairment did not cause any miscarriage of justice.
[20] Mr Anson submitted that the summary of facts supports the charge of criminal harassment. It refers to three emails sent during October 2013. He submitted that the sending of those emails is consistent with the ingredients of the charge of criminal harassment. The content of those emails clearly amounted to threats against Judges. Mr Colman’s explanation for the threats was that he had a grievance over the way Judges had dealt with him. Mr Anson submitted that this meant that the threats against Judges were particularly directed at those Judges who had presided over his previous cases, in particular, the District Court Judge.
[21] Mr Anson further submitted that the sending of emails is a “specified act” for the purposes of the Harassment Act, and may be assumed reasonably to have caused the District Court Judge to fear for his safety. He submitted that sections 3(2)(b) and
5(a) of the Act confirm that the emails do not need to be sent to the complainant, as long as they are directed at the complainant. He submitted that it is irrelevant that the pattern of behaviour may have been directed at more than one person. Here, it was directed at judges who had presided over Mr Colman’s cases. He submitted that it would be anomalous and contrary to the objects of the Act if behaviour directed at more than one person, or at a limited group of people, was not amenable to the charge of criminal harassment.
[22] Mr Anson also submitted that if the appeal against conviction is allowed, a new trial should be ordered and the appellant retried on the charge of threatening to kill as originally charged.
[23] In relation to the circumstances in which Mr Colman pleaded guilty, Mr Fairley submitted that Mr Colman had representation in the form of Mr Gruar, but that was only in respect of the “fitness to plead” issue. Any discussion between
Mr Colman and Mr Gruar about the new charge and the sentence indication was not a lawyer giving advice to his client. He was in Court for the specific purpose of a determination whether he was fit to plead or stand trial. As to that, the evidence was that it was a “close call” (as there were conflicting opinions before the Court), which should have put the Court on alert, and special care should have been taken to ensure that Mr Colman understood what was happening in Court. Further, at no stage was Mr Colman given legal advice as to the components of a harassment charge.
[24] In respect of the harassment charge, Mr Fairley submitted that it had to be established that Mr Colman had performed two specified acts, and that those acts were “done to” the District Court Judge. While he suggested there was unlikely to be any issue as to whether there were “two specified acts”, Mr Fairley submitted that the summary of facts does not support a charge of criminal harassment, as two specified acts cannot be said to have been directed at the District Court Judge. He acknowledged that case law accepts that a pattern of behaviour directed at an individual through intermediaries, usually family, may sustain a charge, but submitted that allowing threats to “work colleagues” to constitute acts “done to” a person would draw the line too far. He submitted that the appeal should be allowed, and the conviction for criminal harassment quashed.
Approach to appeal
[25] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 232(2)(b) and (c), the High Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason.”
[26] “Miscarriage of justice” is defined in s 232(4) as: “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.”
As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.1 The error or irregularity must lead to either of the consequences listed in paras (a) or (b)
[27] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”2 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.3
[28] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.4 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.5 Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.6
[29] Unfairness does not necessarily give rise to a nullity;7 there has to be some fundamental procedural error. Examples of such a fundamental error include where the charge fails to disclose a criminal offence.8
Relevant legal principles
[30] Mr Colman’s written submissions appeared to reflect an attempt to vacate his
guilty plea. However, s 115(1) of the Criminal Procedure Act provides that a plea of guilty may be withdrawn, by leave of the court, at any time before the defendant has
1 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity.”: Matenga v R [2009] NZSC 18 at [30].
2 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
3 R v Sungsuwan, above n 2, at [110].
4 Condon v R [2006] NZSC 62 at [78].
5 Randall v R [2002] 1 WLR 2237 (PC) at [28], cited in Condon v R, above n 4, at [28].
6 See James v R [2011] NZCA 219 at [29].
7 Jago v The District Court of New South Wales (1989) 168 CLR 23 (HCA) at 57, cited in
Condon v R, above n 4, at [77].
8 R v Fonotia [2007] NZCA 188.
been sentenced or otherwise dealt with. Thus, a person who has been sentenced can challenge his or her entry of a guilty plea only by way of an appeal against conviction.9 The plea itself cannot be vacated.
[31] Generally, an appeal against conviction will only be entertained in exceptional circumstances following a plea of guilty, where a miscarriage of justice will result if the conviction is not overturned. The applicable test is as set out in the judgment of the Court of Appeal in R v Le Page, where the Court identified three broad categories where a miscarriage of justice would occur. These were: 10
[17] … The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element …
[18] A further category is where on the admitted facts the appellant could
not in law have been convicted of the offence charged …
[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law
…
[32] The first category aligns with the first issue identified by Heath J, and the second aligns with the second issue identified by his Honour.
The charge of criminal harassment
[33] It is convenient to deal first with the question whether Mr Colman could have raised a defence to the charge under the Harassment Act, to the effect that there was no harassment as defined in the Act.
[34] Section 8 of the Harassment Act provides:
8 Criminal harassment
(1) Every person commits an offence who harasses another person in
any case where—
(a) the first-mentioned person intends that harassment to cause that other person to fear for—
(i) that other person's safety; or
(ii) the safety of any person with whom that other person is in a family relationship; or
9 Marino v Police HC Napier CRI-2007-441-27, 14 May 2008.
10 R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19].
(b) the first-mentioned person knows that the harassment is likely to cause the other person, given his or her particular circumstances, to reasonably fear for—
(i) that other person's safety; or
(ii) the safety of any person with whom that other person is in a family relationship.
(2) Every person who commits an offence against this section is liable,
on conviction, to imprisonment for a term not exceeding 2 years.
[35] “Harassment” is defined in s 3:
3 Meaning of “harassment”
(1) For the purposes of this Act, a person harasses another person if he
or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
(2) To avoid any doubt,—
(a) the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:
(b) the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour
is directed against the same person.
[36] “Specified act” is defined in s 4:
4 Meaning of “specified act”
(1) For the purposes of this Act, a specified act, in relation to a person,
means any of the following acts:
(a) watching, loitering near, or preventing or hindering access to or from, that person's place of residence, business, employment, or any other place that the person frequents for any purpose:
(b) following, stopping, or accosting that person:
(c) entering, or interfering with, property in that person's possession:
(d) making contact with that person (whether by telephone, correspondence, or in any other way):
(e) giving offensive material to that person, or leaving it where
it will be found by, given to, or brought to the attention of, that person:
(f) acting in any other way—
(i) that causes that person (“person A”) to fear for his or her safety; and
(ii) that would cause a reasonable person in person A's particular circumstances to fear for his or her
safety.
(2) To avoid any doubt, subsection (1)(f) includes the situation where—
(a) a person acts in a particular way; and
(b) the act is done in relation to a person (“person B”) in circumstances in which the act is to be regarded, in accordance with section 5(b), as done to another person (“person A”); and
(c) acting in that way—
(i) causes person A to fear for his or her safety; and
(ii) would cause a reasonable person in person A's particular circumstances to fear for his or her
safety,—
whether or not acting in that way causes or is likely to cause person B to fear for person B's safety.
(3) Subsection (2) does not limit the generality of subsection (1)(f).
[37] Mr Colman sent an email to the Governor General mentioning the District Court Judge on 23 October 2013, which was capable of being one “specified act” pursuant to s 4(1)(f), “acting in any other way that causes that person (person A) to fear for his or her safety; and that would cause a reasonable person in person A’s particular circumstances to fear for his or her safety”, or s 4(1)(e), “giving offensive material to that person, or leaving it where it will be found by, given to, or brought to the attention of, that person”. It was capable of being an act “done to” the District Court Judge, pursuant to s 5:
5 Meaning of act “done to” person
An act is done to a person (“person A”), for the purposes of this
Act, if that act is done—
(a) in relation to person A; or
(b) in relation to any other person (“person B”) with whom person A is in a family relationship, and the doing of the
act is due, wholly or partly, to person A's family
relationship with person B.
[38] Nothing else in the statement of facts amounts to doing a second specified act against the District Court Judge. I accept Mr Anson’s submission that an email does not have to be sent directly to the complainant to qualify as a specified act. However, I do not accept his submission that Mr Colman did a second specified act to the District Court Judge, by sending emails that did not specifically name the Judge. The District Court Judge was not named until the last email. The amended charging document says “Between 24 June 2013 and 24 October 2013, harassed [the District Court Judge] with intent to cause that person to fear for his safety”. The Judge is specifically named as being the person the specified acts were done to. I accept Mr Fairley’s submission that threats to “work colleagues” could not sustain the charge.
[39] I conclude that Mr Colman could not have been convicted of the offence of criminal harassment. He did not engage in a pattern of behaviour that was directed at the District Court Judge, “being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of
12 months.”
[40] That conclusion is sufficient for me to allow the appeal and set the conviction aside. However, for completeness, I consider the submission that there has been a miscarriage of justice arising out of the circumstances in which Mr Colman entered the guilty plea.
Mr Colman’s guilty plea
[41] In an affidavit sworn on 28 November 2014, Mr Gruar said that Mr Colman asked him for assistance at the hearing considering his fitness to plead. Mr Gruar acted for him at that hearing, after making an urgent application for a grant of legal aid in relation to that hearing only. He said that he did not offer to act as counsel for Mr Colman on his continued prosecution should he be found fit to stand trial, and his understanding was that Mr Colman would continue to act on his own behalf in relation to his defence of the charge. Mr Gruar was unaware that another lawyer, Mr Puriri, had been appointed as amicus curiae in the proceedings. At paragraph 25 of his affidavit, Mr Gruar said:
During the course of the s 14 hearing His Honour Judge Roberts raised the issue of Mr Puriri stepping aside and my being appointed as amicus curiae in respect of the criminal charge. This appeared to be accepted by John Colman. However, it was not something I had discussed with him and came as a surprise to me. However it was clearly not necessary for Mr Puriri to remain in Court during the s 14 stage of the proceedings and John Colman did not seek for him to remain in Court.
[42] Mr Gruar then said:
At the conclusion of the hearing prior to the luncheon adjournment his Honour had indicated what his findings would be. At the conclusion of his indication he invited Sergeant Layne, the Police Prosecutor, to consider amending the charge. If Sergeant Layne was to apply for that amendment, his Honour gave a sentence indication of the likely final sentence if John Colman was to plead guilty to the amended charge. This was a sentence to come up to sentence if called upon for either 6 or 12 months. John Colman was invited to consider this sentence indication over the luncheon
adjournment. I do not recall detailed discussion of the nature of the amended charge. It was referred to as a charge of criminal harassment. The conversation was with John Colman himself as a self-represented defendant rather that with me as his criminal counsel. It was made clear to John Colman that it was a lesser charge that would result in a less serious sanction upon conviction.
…
… John Colman could not have pleaded not guilty to the new charge. The new charge would have only been available to him if he pleaded guilty and he could then have taken advantage of his Honour’s sentence indication.
…
At 2pm I returned to Court and discussed the matter with John Colman. He had had the opportunity to consider the matter over the luncheon
adjournment. During this conversation John Colman did not seek legal
advice from me regarding the proposed amended charge. It was my impression of him that he clearly understood this was a resolution by compromise and he readily agreed to it. He advised me that he would plead guilty and accept the sentence indication previously given if prosecution would agree to amend the charge. I then discussed the matter with Sergeant Layne who indicated he would do so.
[43] Mr Colman appears to have thought Mr Gruar was acting for him. Mr Gruar thought Mr Colman was acting for himself. It is not clear what the actual situation was, in Mr Colman’s mind. If he was relying on Mr Gruar for advice, he did not receive it.
[44] I accept Mr Fairley’s submission that in the circumstances, caution should have been exercised. Medical reports gave rise for concern as to Mr Colman’s condition. He should have received legal advice as to the charge, and he needed some time to consider that advice. In the absence of those, a miscarriage of justice resulted. On that basis, also, the conviction must be quashed.
Conclusion as to the charge against Mr Colman
[45] I have concluded that a miscarriage of justice has occurred. Accordingly, the appeal is allowed. Mr Colman’s conviction on the charge of criminal harassment is set aside.
Disposition
[46] In the light of that conclusion I heard brief submissions as to whether I should order that the matter be remitted back to the District Court. Mr Anson did not seek an order that the harassment charge be remitted back to the District Court, but
submitted that it was open to this Court to order that the original charge of threatening to kill be remitted to the District Court for trial. He submitted that the allegations against Mr Colman went to the heart of the administration of justice, and there is a clear public interest in having those allegations resolved, either by plea or trial.
[47] Mr Colman asked that this Court bring an end to the matter, immediately. He referred to the events of the seven years since the original incident, and in particular to what had occurred over the past year. He was adamant that he would not attempt to send any further correspondence to the Governor General, or any other person or agency.
[48] Mr Fairley noted the very wide powers available to the Court under s 233(3) of the Criminal Procedure Act, and noted that the period Mr Colman spent in custody after being charged (100 days) would equate to a sentence of seven months’ imprisonment, had Mr Colman been convicted.
[49] Pursuant to s 233(2) of the Criminal Procedure Act, having allowed Mr Colman’s appeal against conviction, this Court must set aside the conviction and must also, pursuant to s 233(3):
(a) direct that a judgment of acquittal be entered; or
(b) direct that a new trial be held; or
(c) exercise the powers under s 234; or
(d) exercise the powers under s 235(2); or
(e) make any other order it considers justice requires.
[50] Although counsel invited me to call for further submissions as to what order should be made, I have concluded that it is not necessary to do so. I accept Mr Anson’s submission that Mr Colman’s actions went to the heart of the administration of justice, but I have concluded that if Mr Colman were to be tried
and convicted on a charge of threatening to kill, it would be unlikely that he would receive a sentence that required him to serve more time than he has already spent in custody. I accept as sincere his statement that he will not engage in any further correspondence. In the circumstances, I have concluded that I should not order a trial of the charge of threatening to kill.
Result
[51] Mr Colman’s conviction on a charge of criminal harassment is set aside. Pursuant to s 233(3)(a) I direct that a judgment of acquittal be entered in place of the
conviction. I make no further order.
Andrews J
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