Day v Police

[2019] NZHC 1256

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2019-488-000004

[2019] NZHC 1256

BETWEEN

JAMIE SHILO DAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 June 2019
Counsel:	VD Heather for Appellant KJG MacNeil for Respondent
Judgment:	5 June 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 5 June 2019 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

VD Heather, Auckland. Crown Solicitor, Whangarei.

DAY v POLICE [2019] NZHC 1256 [5 June 2019]

[1]                  A defendant may appeal conviction even if she or he has pleaded guilty. But, only if justice has miscarried. Ms Jamie Day pleaded guilty to cultivating cannabis. Judge A Swaran Singh sentenced her to terms of community work and supervision. Ms Day appeals conviction. In a one-page affidavit, Ms Day says the process miscarried because her lawyer did not follow her instructions:1

I met my lawyer … for the first time at my court appearance on 19th February 2019. I made it clear to her I wanted the case put off to another date for the Police to consider diversion. I explained to her that I had worked my whole life towards a career in the travel and tourism industry. I had been informed independently to try for diversion as it was my first offence, and that a conviction could affect my career choice. I understood my lawyer was aware of what was to happen in court when I appeared. I was confused when I appeared before the Judge as [he] was talking about sentencing me there and then. I do not recall my lawyer confirming my decision to be sentenced when I appeared. I do not recall signing anything to instruct my lawyer to enter a plea of guilty to the charge, or whether the charge was put to me in court. I feel my lawyer did not follow my instructions and therefore was not given the opportunity for my voice to be heard.…

[2]In short, Ms Day says:

(a)She instructed Ms Naivasha Moore to seek an adjournment, so Police could consider diversion.

(b)She was confused when she pleaded guilty.

(c)She  did  not  anticipate  the  Judge  sentencing  her  that  day.    And, everything happened the same day.

[3]                  The appeal was originally scheduled for 8 April 2019. Woolford J adjourned it as Ms Day had not waived privilege, meaning Ms Moore could not respond. Ms Day has since waived privilege. And, the Crown has now filed a comprehensive affidavit from Ms Moore.

[4]                  Ms Moore says things did not occur as Ms Day suggests. Rather, Ms Day and her partner were jointly charged with cultivating cannabis (a topic on which Ms Day

1      The format of the affidavit is different; each sentence has its own paragraph.

is silent). Other counsel acted for Ms Day’s partner.  And, the first hearing was on  18 January 2019—not 19 February 2019.

[5]                  Ms Moore’s “initial inclination” on 18 January was to seek an adjournment. However, Ms Day did not want this. Neither did her partner or his lawyer. Ms Moore was anxious Ms Day might have been taking responsibility for offending that was exclusively her partner’s; unlike her  partner,  Ms  Day  had  no  criminal  history.  Ms Moore “insisted on speaking with Ms Day privately without her partner present”. Ms Moore read the summary of facts to Ms Day. She asked her if the cannabis was hers or her partner’s. Ms Day was “adamant that it belonged to her”. Ms Moore was still anxious. She made other inquiries as to whether Ms Day “was being pressured to take responsibility for the cannabis by her partner”. Ms Day said she was not.

[6]                  Ms Moore asked Ms Day to sign the summary of facts to confirm she wished to plead guilty. Ms Day did so. Ms Moore appended the signed summary to her affidavit. It records: “Doug [Blaikie] acting for Partner”, and, “I wish to plead guilty to the charge”. Ms Day’s signature accompanies the latter.

[7]                  Ms Moore told the Registrar Ms Day would plead guilty on 19 February when a Judge would be available.

[8]                  Ms Moore and Ms Day spoke again in person at Court on the 19th. Ms Moore says Ms Day told her she was still with her partner, and Ms Day was growing cannabis “for personal use”. Ms Moore recorded both observations in a file note, which is appended to her affidavit. Ms Moore told Ms Day the Judge may sentence her that day or require her to return. Ms Moore says: “Ms Day seemed incredibly put out that she may be required to come back to court on another occasion”. Ms Moore was able to persuade Judge Singh another appearance was unnecessary; the Judge sentenced Ms Day on the 19th.

[9]                  Ms Moore says Ms Day never said anything about diversion, or her employment being affected by a conviction. Ms Moore also says had diversion been raised, she would have considered it likely the charge was too serious for that. Police saw cannabis growing on the property from the air. They found 53 plants.

[10]              Given all this, I assumed Ms Day would require Ms Moore for cross- examination.2 The reason for this assumption will be obvious: Ms Day’s case turns on the proposition Ms Moore ignored her instructions, and Ms Moore denies that.  Ms Moore also says Ms Day’s account is bereft of important detail; for example, that there were two hearings, not one; that Ms Day’s partner was jointly charged too; and that Ms Day signed the summary of facts, confirming she wanted to plead guilty to the charge.

[11]              I convened a telephone conference the day before the hearing to discuss arrangements. Ms Day’s counsel, Mr Heather, said Ms Moore’s account was not challenged. I told Mr Heather if that were so, an appeal would be difficult to pursue as Ms Moore’s affidavit would be taken “at face value”.3 Mr Heather said he understood.

[12]              The hearing unfolded as foreshadowed; Mr Heather made no challenge to the accuracy of Ms Moore’s evidence and accepted she had done “everything possible”. Some cases involving alleged trial counsel incompetence do not require cross- examination. For the reasons explained, this is not one of them.

[13]The appeal is dismissed.

Postscript

[14]              Mr Heather filed a helpful memorandum of counsel acknowledging the difficulties confronting the appeal. I repeat my thanks for it. However, the memorandum contained correspondence between Mr Heather and Ms Day attracting legal professional privilege. This should not have been appended. The Registrar is to seal this material. So too Mr MacNeil in relation to the copies on the Police file.

……………………………..

Downs J

2      And, Police would require Ms Day.

3      Evidence Act 2006, s 92.