D'Ath v Police

[2015] NZHC 2605

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-11 [2015] NZHC 2605

BETWEEN

DAYNA MICHELLE D'ATH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 July and 30 September 2015
Counsel:	M S Boyd for Appellant N L Laird and S J Simpkin for Respondent
Judgment:	22 October 2015

JUDGMENT OF CLIFFORD J

Introduction

[1]      Dayna Michelle D’Ath pleaded guilty to one charge of driving with excess

blood  alcohol  in  the  District  Court  at  New  Plymouth  on  28  January  2015.1

Ms D’Ath  was  subsequently  convicted  and  sentenced  to  220  hours  community work,    disqualified    from    holding    or    obtaining    a    driver’s    licence    for

15 months/indefinitely, and made subject to a zero alcohol licence order.2

[2]      Ms D’Ath now appeals against her conviction, but not her sentence.  She says that  the  circumstances  in  which  she  entered  her  guilty  plea  are  such  that  a miscarriage of justice has occurred: she was inadequately advised by Ms Bolstad, her lawyer, and did not understand what she was doing.  Ms D’Ath says that her mental health difficulties (bipolar and borderline personality disorders) contributed to that

unjust outcome.

1      Land Transport Act 1998, s 56(2) – 230 milligrams per 100 millilitres of blood.

2      New Zealand Police v D’Ath [2015] NZDC 3126.

D'ATH v NEW ZEALAND POLICE [2015] NZHC 2605 [22 October 2015]

[3]      In her written submissions, Ms Boyd advanced an argument that there was a technical defence available to Ms D’Ath which Ms Bolstad had overlooked: the argument was that because a nurse had taken Ms D’Ath’s blood sample, procedures of the Land Transport Act had not been complied with.  Ms Boyd did not advance that submission before me.

[4]      I heard Ms D’Ath’s appeal in New Plymouth on 27 July.  Notwithstanding that  questions  of  counsel  incompetence  had  been  raised,  Ms  Bolstad  had  not provided an affidavit to the Court.  Rather (and I intend no criticism of her in this regard) she had set out her recollection of events in a letter addressed to defence counsel Mr Hannam.  Nor, it became apparent to me, had Ms Boyd considered the possibility of Ms Bolstad being available to be questioned.   Nevertheless, I went ahead with the hearing.  The evidential basis for that hearing was Ms Bolstad’s letter, and affidavits sworn by Ms D’Ath and a Mrs Bruning, Ms D’Ath’s mental health worker and support person who had been with her at Court on 28 January.

[5]      Subsequently, and as recorded in a Minute of 28 July 2015, I provided an opportunity for Ms Bolstad to supplement the contents of that letter.  There were a number of reasons I did so.   They are recorded in my Minute.   In particular, I observed:

I am also concerned there is a degree of ambiguity about advice given (or not as the case may be) regarding Ms D’Ath’s ability to apply for an adjournment, and the likelihood of that application being granted or otherwise.

[6]      Ms Bolstad then provided an affidavit.

[7]      A further hearing was held, by audio visual link, on 30 September at which

Ms D’Ath, Mrs Bruning and Ms Bolstad were all cross-examined and re-examined.

[8]      At the end of the hearing, I indicated I was minded to allow the appeal.  In response to that indication, counsel for Ms D’Ath and for the New Zealand Police sought leave to make written submissions as to whether a judgment of acquittal should be entered or a retrial directed.   I have now received those written submissions, and issue this judgment on the basis of all the materials now before me

Facts

[9]      On the afternoon of Tuesday 23 September 2014 Ms D'Ath and her friend Ms Bass were in Ms D'Ath’s vehicle driving along Devon Road.   Both had been drinking earlier in the day.  Ms Bass had also taken methadone, and had administered methadone to Ms D’Ath.  Ms D'Ath’s vehicle “tail-gated” a vehicle being driven by a Ms Frith.  Ms D'Ath’s vehicle did not stop.

[10]     Some time later, Ms D'Ath’s vehicle had a serious crash, leaving the road and flipping over. Ambulance and police attended.  Ms Bass was the driver.  Ms D’Ath’s vehicle was written off.   Ms D'Ath was taken to hospital and a blood sample was taken from her.  Ms D'Ath was subsequently charged with driving with excess blood alcohol, failing to stop at a non-injury crash and careless driving.

[11]     The police case – based on a statement of Ms Bass – was that Ms D'Ath had been driving her vehicle at the time of the first, and minor, crash with the vehicle belonging to Ms Frith, and that Ms D’Ath and Ms Bass had later changed seats.

[12]     Ms D'Ath entered not guilty pleas to those charges.   She denies being the driver of her car at the time of the first crash.  She said Ms Bass was driving the car at that time, and later.

[13]     In a written statement, Ms Frith said that the driver of the car at the time of the  first  accident  had  her  hair  down,  and  that  her  passenger  had  her  hair  up. Ms D'Ath says that she had her hair up.

[14]     Mrs Bruning filed an affidavit in support of Ms D'Ath’s appeal.   In that affidavit she said that on the day after the crash she had seen Ms D'Ath when she came home from being in police custody overnight.  To use Mrs Bruning’s words, “Her hair was still tied up – in a mess but still tied up!”.

[15]     Ms D'Ath’s summary trial was to take place on 28 January 2015.  Ms Frith arrived at Court.  Ms Frith was, shortly after arriving, injured in the courthouse, and had to be taken to hospital.   It appears she fell down some stairs.   Ms Bolstad advised the police that Ms Frith would be required to give evidence.   The police

advised Ms Bolstad that they intended to proceed with the trial but that if Ms D’Ath entered a guilty plea to the excess breath alcohol charge, the police would withdraw the charges of careless driving and failing to stop to ascertain injury.

[16]     After  discussions  between  Ms  Bolstad,  Ms  D'Ath  and  Mrs  Bruning, Ms D’Ath was given a sentencing indication on that basis.   Those discussions are central to this appeal, and I return to them in detail below.

[17]     Judge Roberts gave that indication in the following terms:

On a plea of guilty, Ms Bolstad, I will sentence her to 220 hours’ community work.   I will disqualify her for 15 months.   I will impose the indefinite disqualification and the zero licence order.  I did mention the final warning. That is what I will do when she pleads.

[18]     Following that sentencing indication, Ms D'Ath entered a guilty plea and was convicted and sentenced in accordance with the Judge’s indication.

Law

[19]     It is accepted that it will only be in very exceptional cases that an appeal against conviction will succeed after a guilty plea,3 and that it must be shown that a miscarriage of justice will result if the conviction is not overturned.4

[20]     As stated by the Court of Appeal in R v Le Page:5

Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.

[21]     The Court in Le Page goes on to set out three categories where an appeal against conviction after a guilty plea will succeed, the first of which is:6

… 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.

3      R v Stretch [1982] 1 NZLR 225 at 229.

4      R v Le Page [2005] 2 NZLR 845 (CA) at [16].

5 At [16].

6 At [17].

[22]     The Court of Appeal in R v Merrilees added a fourth category to those set out in Le Page:7

[34]      There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes,  or if counsel  acts  so  as to  wrongly,  and perhaps  negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.

Analysis

[23]     Central to Ms D’Ath’s appeal is her contention that her lawyer, Ms Bolstad, did not adequately advise her on her ability to apply to have her trial adjourned so that Ms Frith could be available to give evidence.

[24]     Ms D’Ath’s affidavit evidence was to the effect that Ms Bolstad told her, as she was entering the dock, that she had to plead guilty because her witness (Ms Frith I infer) was gone, that she signed her sentencing indication instruction while she was standing in the dock without reading it and that the possibility of an adjournment was never discussed with her.

[25]     In contrast to Ms D’Ath, Mrs Bruning’s recollection in her affidavit was that the issue of Ms Frith’s unavailability, the issue of an adjournment, and the possibility of  a  guilty  plea  to  the  single  charge  of  drink  driving  were  all  discussed  with Ms Bolstad privately before Ms D’Ath went into Court.   Similarly, Mrs Bruning recalled Ms D’Ath signing the instruction to request a sentencing indication at that time.  Mrs Bruning also refers to Ms D’Ath reluctantly signing “a paper to say she would plead guilty”.  At the same time, Mrs Bruning’s affidavit evidence was she was angry because it felt like Ms D’Ath had not been heard by Ms Bolstad, who had not been listening and who did not give Ms D’Ath the chance to say her part. Mrs Bruning further stated that Ms D’Ath was shaking and crying in the dock and that, after she had entered her guilty plea, she was “a mess”.

[26]     In her letter, Ms Bolstad described events on the day in question as follows:

19.I advised Ms D’Ath in the presence of her support person of the proposed withdrawal of the two charges upon the entry of a guilty

7      R v Merrilees [2009] NZCA 59.

plea to the excess breath alcohol charge.  I advised Ms D’Ath that she did not have to accept the proposal and that the decision was hers.  I advised Ms D’Ath that we could adjourn the matter however the police had indicated that they would proceed with the Judge alone trial without the evidence of Ruth.

20.I  also  advised  Ms  D’Ath  that  if  she  was  going  to  consider  the proposed withdrawal of the two charges and entry of a guilty plea to the excess breath alcohol we could seek a sentencing indication in the first instance and that that way she would know exactly what the Judge would impose.

21.I then advised Ms D’Ath that I would leave her to consider the matter.   I left Ms D’Ath and her support person alone in the duty solicitor room to consider and discuss the matter.  I did this as I did not want to influence Ms D’Ath.

(Emphasis added)

[27]     It was because of the ambiguity inherent in the highlighted sentence from

[19] of Ms Bolstad’s letter, that I suggested an affidavit could help.

[28]     Ms Bolstad, as noted, provided an affidavit.  In that affidavit she confirmed that she had clearly advised Ms D’Ath of her option to ask for an adjournment.  She did not clarify, however, whether she had given Ms D’Ath any advice as to whether or not such an application was likely to succeed.

[29]     In cross and re-examination, Ms D’Ath generally confirmed the statements

she had made in her affidavit.

[30]     Mrs Bruning did likewise.  Again, she provided a clearer narrative of events than Ms D’Ath was able to.  Her oral evidence was that Ms Bolstad had, once it was known that Ms Frith was not available to give evidence that day, spoken to the police and then conveyed to Ms D’Ath the position that if she were to plead guilty to the drink-driving charge, the Crown would not proceed with the charges of careless driving and failing to stop.  Her recollection was the impression Ms D’Ath would have been left with was that pleading guilty to the one charge was the best outcome she could hope for.   It was on that basis that Ms D’Ath had agreed to ask for a sentencing indication and then entered a guilty plea.   Mrs Bruning confirmed that Ms D’Ath  became  increasingly  distressed  as  the  morning  wore  on  and  was considerably upset when, in the dock, she entered a guilty plea.

[31]     In cross-examination Ms Bolstad acknowledged that she had not considered whether or not Ms Frith could be called as a defence witness if the trial was adjourned, nor had she considered, or given any advice to Ms D’Ath on, the likelihood of the Court granting an adjournment were it to be applied for.   Her concern had been that, if the trial proceeded in the absence of Ms Frith, as was the police’s  intention  (Ms  Frith  being  a  police  witness  at  that  point),  Ms  D’Ath’s position would not be a good one.  It would, in effect, be her word against the Crown witness, Ms Bass.  Moreover, Ms Bolstad confirmed that Ms D’Ath had been very distressed in the dock at the time the sentencing indication was given and, shortly thereafter, her guilty plea was entered.

[32]     In these circumstances, I am satisfied that Ms D’Ath’s decision to enter a guilty plea was not one that was made on a properly informed basis.   Ms Frith’s evidence  was  central  to  Ms  D’Ath’s  defence.    It  was,  at  least  as  recorded  in Ms Frith’s statement, independent confirmation of Ms D’Ath’s account of events.  In the circumstances, it seems most unlikely that the Court would have declined an adjournment  application,  notwithstanding  the  fact  that  Ms  Frith  was,  at  least formally, a Crown witness.  That is even more so the case where, the Crown having decided not to call Ms Frith for their own purposes, Ms Bolstad had advised the prosecutor that she was to be called by the Crown for, in effect, the benefit of the defence.  To be properly informed, in terms of the suggestion that a guilty plea be entered, Ms D’Ath needed to understand her right to seek an adjournment, and the likelihood of whether or not such an application would be granted.  Here, given my view that it is most likely it would have been granted, the fact that Ms D’Ath was not advised on that matter meant that her guilty plea was not a fully informed one.  I also consider  that  Ms  D’Ath’s  mental  illness  compounded  the  situation.    I  accept Mrs Bruning’s evidence on that point.

[33]     I therefore allow Ms D’Ath’s appeal and set aside her conviction.

[34]     Section 232 of the Criminal Procedure Act 2011 provides that:

Where a court allows a first appeal and sets aside the relevant conviction the court must also:

(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.

[35]     For Ms D’Ath, the submission is that the Court should order that a judgment of  acquittal  be  entered,  rather  than  directing  that  a  new  trial  be  held.    That submission principally relies on the fact that Ms D’Ath has served nearly half of her sentence of community work and three-fifths of the disqualification period imposed, that she has incurred considerable costs in terms of bringing her successful appeal and that the evidence against her faces significant difficulties.  Ms Boyd also points to the impact the charges and these proceedings have had on Ms D’Ath, due to her mental health issues.

[36]     Ms Boyd also submits that this Court should make an order preventing the two withdrawn charges from being re-laid.

[37]     For the police, the submission is that this Court should order that a new trial be held, and that “all three charges be re-activated as ‘there is a six month time restriction in terms of the police being able to re-lay the charges which has now expired’”.  The police do not refer to any specific statutory provision providing for this Court to make such an order.

[38]     I consider the question of the disposition of the charge to which Ms D’Ath originally pleaded guilty, and the questions relating to the two charges which were withdrawn, separately.

[39]     Section 233 of the Criminal Procedure Act replaces, and is in broadly similar terms to, ss 121(2), 121(2A), 131 and 132 of the Summary Proceedings Act 1957 (in respect of appeals against conviction in the summary jurisdiction) and ss 385(2) and

386 of the Crimes Act 1961 (in respect of appeals against conviction in the indictable jurisdiction).    The  commentary  in  Adams  on  Criminal  Law  suggests  that  the similarity between s 233 and those provisions means that a similar approach should be taken under s 233 as was taken under the earlier Acts, and that case law under

those Acts  remains  relevant.8      Here,  Ms  D’Ath’s  conviction  has  been  set  aside because her guilty plea was not properly informed, not because of any evidential issue at trial or any issues relating to  a fair trial.   On that basis, the principle consideration is whether or not the fact of sentence already served means that it would be appropriate to decline to order a new trial, and on that basis enter a judgment of acquittal.  Adams comments:9

A factor that may point against ordering a retrial is that the appellant has served  the  sentence imposed  following conviction, especially when it is unlikely any greater sentence will be imposed at a retrial.   Other relevant considerations include the cost and duration of a new trial, the “ordeal” for a defendant  being tried  again  and  whether  or  not  the  defendant  might  be prejudiced by the unavailability of evidence at a new trial.

[40]     Ms D’Ath was sentenced to 220 hours’ community work, and disqualified from holding or obtaining a driver’s licence for 15 months.

[41]   Ms D’Ath has served a substantial period of her nominal (15 months) disqualification, or will have done so by the time this judgment is released.  She has also performed some 90 hours of community work which, in the overall scheme of things, is evidence of reasonably committed compliance with her community work sentence until it was suspended.  I acknowledge that Ms D’Ath suffers from mental illness.  Her ability to cope with that illness, and to recover from it, will not have been helped by the circumstances that are reflected in my decision to allow her appeal.

[42]     On  8  October  2015  I  released  a  Minute  seeking  an  update  on  relevant matters, including whether Ms Frith was available as a witness at any retrial and what was a possible time to such a retrial.  I have not had a response to that Minute yet.  I do not criticise Crown counsel: I understand there may have been some delays in the police’s responses to relevant enquiries.  Those delays are no doubt indicative of the time that has already passed since the events in question.   No doubt, there would be a reasonable period of time to any subsequent trial.   In my view, those

delays are another factor which counts against an order for retrial.

8    Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CPA.233.01].

9      At [CPA.233.02(1)].

[43]     Taken together, those factors persuade me that a retrial is not called for here. I therefore order that there be no retrial on the charge on which I have allowed Ms D’Ath’s appeal.

[44]     I turn to the question of the two charges that were withdrawn.

[45]     Section 25(3) of the Criminal Procedure Act requires charging documents in respect of the offences with which Ms D’Ath was originally charged to be filed within six months after the date on which the offence was alleged to have been committed.   Ms Laird for the police has suggested that, notwithstanding that provision, this Court can in some way “reactivate” those charges.  No provision of the Criminal Procedure Act 2011 providing for such a procedure has been drawn to my attention.   In any event, I consider that matter would be one for the Court in which the charges were to be laid, namely the District Court.  I therefore decline to make any order of the sort requested as regards the two charges that were withdrawn following the entry of Ms D’Ath’s guilty plea.   Having said that, I am sure the Crown will take account of the factors that led me to conclude that a retrial is not

now appropriate.

Clifford J

Solicitors:

Hannam and Co Lawyers Ltd, New Plymouth for Appellant
Crown Solicitor, New Plymouth for Respondent