D v Police HC Wanganui CRI 2007-483-17

[2007] NZHC 1385

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2007-483-000017

BETWEEN  D

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 December 2007

Counsel:         Appellant in Person

H C Mallalieu for the Respondent

Judgment:      6 December 2007

JUDGMENT OF WILD J

Introduction

[1]      The appellant pleaded guilty on 20 September in the District Court at Marton to one charge of assault and one charge of disturbing use of a telephone.  Judge E M Aitken convicted her and ordered her to come up for sentence if called upon within 9 months.

[2]      Ms Larking appeals only against her conviction on the assault charge.

Factual background

[3]      It seems the appellant has a long running dispute with the owners and staff of the Rangitikei Tavern in Bulls, where she lives.  The appellant is also at odds with

D V NEW ZEALAND POLICE HC WANG CRI 2007-483-000017  6 December 2007

the Police in Bulls.   In her submissions in support of her appeal she mentioned a number of times that she considered the Police are constantly harassing her.

[4]      It is against that general background that the events resulting in the two charges occurred on 16 March 2007.   The appellant had bought some groceries, including a bottle of wine, from the Four-Square store at Bulls.  After she left the store she became involved in an altercation in the carpark with an employee of the Rangitikei Tavern.  The Police case is that the appellant approached this employee and, in the course of the resulting altercation, emptied the bottle of wine she had just bought over the Tavern employee’s head.  She then left and drove home.

[5]      Shortly afterwards she telephoned the Four-Square store and told the cashier that she was going to bomb the Rangitikei Tavern, and that the cashier should ring

111 and arrange to evacuate the Tavern.  She then rang 111 herself and repeated her threat to bomb the Tavern.  The Police arrested the appellant at her home later that afternoon,  by  which  time  she  was  intoxicated.    The  Police  charged  her  with assaulting the Tavern employee and with disturbing use of a telephone.

[6]      The appellant told me that she appeared in Court on the two charges on five occasions before 20 September, and on each occasion maintained a plea of not guilty.

[7]      That does not accord with the information on the assault charge, which is the only one I have.  That information was sworn on 23 April.  It records the appellant first appearing on 10 May when she pleaded guilty and was remanded on bail to 6

July.    On  6  July  she  again  appeared  and  was  further  remanded  on  bail  to  20

September, I think for a defended hearing estimated to take four hours (as the record is noted “@ 1.30 pm 4 hours”).

[8]      Next, and somewhat confusingly, the record has the appellant appearing on

16 August, entering a plea of guilty, and being convicted and ordered to appear for sentence if called on within nine months.

[9]      I think that date is probably correct, although Judge Aitken has dated her sentencing notes 20 September.   20 September cannot be correct, because the appellant’s notice of appeal is dated 13 September and date stamped as having been filed in the District Court at Marton on the same day, and received here in the High Court at Wanganui on 19 September.  Thus, I proceed on the basis that the appeal was filed just under a month after the hearing before Judge Aitken.

Appeal after guilty plea

[10]     An appeal from a conviction entered after a plea of guilty will be entertained only where there is evidence of a miscarriage of justice.  Where the appellant fully appreciated the merits of her position, and made an informed decision to plead guilty, the conviction cannot be impugned:  R v Stoves CA457/04 24 May 2005; Udy v Police [1964] NZLR 235; R v Stretch [1982] 1 NZLR 225, 229 (CA); R v Ripia [1985] 1 NZLR 122 (CA).

[11]     In Udy Gresson J observed that the submission for the plea of guilty ought not to have been entered:

…   is   more   readily   heeded   when   made   by   an   appellant   who   was unrepresented at the trial. An appellant who was represented will encounter greater difficulty when advancing such a contention.

[12]     In R v Le Page [2005] 2 NZLR 845 the Court of Appeal noted that there are at least three categories of cases where an appeal after a plea of guilty might be upheld:

(1)Where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;

(2)Where on the admitted facts the appellant could not in law have been convicted of the offence charged; or

(3)Where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.

[13]     Categories 2 and 3 have no application here.  The appellant could only bring herself within category 1 if she could demonstrate that she was not fully appreciative of the nature of the charges or the consequences of her plea.  Any prior experience the  appellant  had  with  the  criminal  justice  system  is  relevant:    R  v  Roycroft CA312/01 4 September 2002.

Decision

[14]     For four reasons, two of them closely connected, I am not prepared to allow this appeal.

[15]     The first reason is that the appellant had legal advice before she entered her pleas  of  guilty.    What  happened  was  that  Judge  Aitken  gave  the  appellant  a sentencing indication.  The Judge had obviously read the file, and had come to grips with what had happened, and the background as to why it had happened.  Having given that sentencing indication the Judge adjourned and gave the appellant time to confer with counsel.  That counsel was Mr Oliver.  Mr Oliver happened to be the lawyer who had previously advised the appellant in relation to the charges, but she had sacked him because of “a difference of opinion”.   Mr Oliver was the duty solicitor at Court that day, and it was in that capacity that he advised the appellant following the Judge’s sentence indication.

[16]     That leads into my second and closely related reason.  If the appellant is to have any chance of persuading the Court that she did not appreciate the nature of the charges, or did not intend to plead guilty to them (or either of them), then she will need to place before the Court an affidavit from Mr Oliver outlining the advice he gave her at Court that day.  That requires the appellant to waive privilege as to that advice.  She indicated to me that she is not prepared to waive her privilege:  she does not want Mr Oliver making an affidavit.

[17]     My third reason is that I am satisfied the appellant did understand the nature of the charges to which she pleaded guilty.  In the course of her submissions I asked her whether she understood that the assault charge arose out of the altercation in the carpark during which the Police say she poured her newly purchased bottle of wine

over the Tavern employee.  She accepted that she understood that the charge arose out of that incident.   I should add that she does not accept that she assaulted the Tavern employee.  She maintains she poured the wine over the Tavern employee as a measure in self defence.  But the point is she understood she was pleading guilty to the charge that she assaulted the Tavern employee in the carpark by pouring wine over her.  Similarly, I satisfied myself that she understood that the telephone charge resulted from the 111 call she had made.

[18]     Fourth, and last, I am satisfied that the appellant has had a change of mind. This  is  the  note  I  took  of  her  submission  to  me  in  reply  to  Mr  Mallalieu’s submissions for the Crown:

I thought for free that day at Court I could end it.   Now I realise that the (assault) conviction will mar my job prospects.  So the financial reasons for which I pleaded guilty that day were no reasons at all.  I was accepting it could end that day – that there would be no more time cost or money cost to me.   I accepted that it ended that day.   I am saying I was under financial duress.  Mr Oliver was telling me “this will cost you thousands of dollars to defend”.

[19]     That last reference to Mr Oliver’s advice underlines the importance of the Court having the benefit, direct from Mr Oliver, of what his advice to the appellant was at Court that day.

Result

[20]     The appeal is dismissed.   The appellant’s conviction on the assault charge stands.

Solicitors:

Crown Solicitor, Wanganui for the Respondent