Enoka v The Queen
[2017] NZHC 8
•16 January 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH` REGISTRY
CRI-2015-009-001603 [2017] NZHC 8
ALBERT CHARLES ENOKA
v
THE QUEEN
Hearing: 5 December 2016 Appearances:
M Zarifeh for the Crown
A J D Bamford for the DefendantJudgment:
16 January 2017
JUDGMENT OF NATION J
[1] Mr Enoka seeks leave from the Court to withdraw his guilty plea to a charge of kidnapping.
Background
[2] Mr Enoka was charged, together with Mr Lindsay Francis, with various offences relating to an alleged kidnapping, burglary and violent behaviour arising out of events which began on 15 February 2015. The general nature of the allegations he faced was set out in a judgment of Dunningham J on a s 101 application as to the admissibility of certain identification evidence. The background is reproduced
below:1
[3] The summary of facts alleges that the defendant, Mr Enoka, is president of the Christchurch chapter of the Rebels gang and his co- defendant, Mr Francis, is a prospect for that gang. On 15 February 2015, Mr
1 R v Enoka [2016] NZHC 47.
ENOKA v R [2017] NZHC 8 [16 January 2017]
Enoka’s partner, Ann Johnston, went to Kibblewhite Street to visit Simon Kovacs. Ms Neho, Mr Kovacs’ partner, and another flatmate were also at the address.
[4] When Ms Johnston telephoned Mr Enoka mid-morning, he was angry that she was not at home and he thought she was with another man. He arranged to pick her up on the corner of Kibblewhite and Union Streets. He allegedly arrived with Mr Francis and another male. He grabbed Ms Johnston, punched her in the face, called her a slut and threw her inside the car. Ms Neho who had accompanied Ms Johnston to the meeting point was then asked by Mr Enoka and Mr Francis where the house was that she had come from and to take them there. When he arrived at the house, he pointed his knife at Mr Kovacs saying “have you been fucking my missus. What’s she doing here?”
[5] Mr Enoka is then alleged to have walked up to Mr Kovacs, held the knife against his throat and punched him twice in the mouth with a closed fist, giving Mr Kovacs broken teeth and a fractured jaw. He then asked who else was present in the house and dragged Mr Kovacs into the room where another flatmate, Kyle Morgan, was and threatened to stab the pair, again asking “who was fuckin his missus”. Mr Enoka is then alleged to have told Mr Kovacs and Mr Morgan that “you’re paying for having her here” and he began ransacking the house.
[6] Mr Francis then told Mr Kovacs and Mr Morgan that they were lucky because Mr Enoka had done worse things to others, saying he had seen Enoka chop people’s fingers off and worse. After making further threats, the defendants eventually left the property taking Ms Neho, and Mr Kovacs’ Chihuahua dog with them. They went to an unknown address where they stayed the remainder of the night.
[7] The next day they made Ms Neho and the dog get back into the car where Ms Johnston was also present. At one point Ms Neho observed that there were two firearms under the seat. After driving around for a number of hours trying to find a motel to stay in, they dropped Ms Neho off at an address in Addington and told the occupier to keep an eye on her. Mr Enoka and Mr Francis then left and the events which took place in the following hours are the subject of other charges which are not related to these applications.
[8] On the morning of 17 February, Mr Enoka returned to the address in Addington where he had left Ms Neho. When he left the address he did so in the car of the occupier, along with Mr Francis. When the occupier of the house left for work, Ms Neho found she was alone, and she then left the house with the dog, ran to a nearby bakery and asked for help.
[9] Mr Enoka denies any knowledge of, or involvement in the events that occurred at Kibblewhite Street, including the kidnapping of Ms Neho. Mr Francis admits going to the Kibblewhite Street address and says that he was invited in.
[10] Mr Enoka disputes the summary of facts, saying he made no admissions as to his presence in Kibblewhite Street. He says Ms Johnston is not available as a witness and there was no formal written statement from her. He also said Ms Neho, the complainant in the kidnapping charge, was
seen by a witness, Mr Lawson, cuddling and kissing the alleged co-offender, Mr Francis, at the Addington address where she was allegedly taken during the course of the kidnapping. He says this goes to the reliability of her identification of Mr Enoka and to the reliability and credibility of her claim to have been kidnapped.
The course of the proceedings
[3] Both Mr Francis and Mr Enoka first appeared in Court on relevant charges on
18 February 2015 and were both denied bail.
[4] On 5 June 2015, Mander J ordered the proceedings to be tried in the High
Court.
[5] On 7 August 2015, Mr Enoka pleaded guilty to three less serious charges arising out of the alleged offending:
· unlawfully removing an impounded vehicle;
· driving whilst disqualified, third or subsequent; and
· giving false or misleading information.
[6] In a minute of 23 October 2015, Mander J recorded the outcome of a pre-trial conference in the High Court.2 He then noted the proceedings had a firm trial date of
2 May 2016 but there were pre-trial applications, one as to the mode of evidence in respect of a Crown witness, the alleged kidnapping victim, and the other as to the admissibility of certain evidence.
[7] Dunningham J heard the argument over the pre-trial applications on 8
December 2015 and gave her judgment in relation to those issues on 2 February
2016. The minute records that, in relation to those applications, Mr Francis and his counsel would be taking a watching brief but would not be actively participating in respect of that particular argument.3 At that hearing, Mr Shamy appeared for Mr
Enoka and Mr Glover appeared for Mr Francis. Dunningham J’s judgment records:4
2 R v Enoka HC Christchurch CRI-2015-009-001603, 23 October 2015.
3 At [2].
4 R v Enoka, above n 1.
[17] The defendants’ opposition to the mode of evidence application is based on alleged concerns about Ms Neho’s reliability and credibility. In essence, the defence case is that Ms Neho went with the defendants of her own free will, taking the dog with her and was in fact assisting in what was occurring, rather than being a victim.
[8] In her judgment, Dunningham J ruled that Ms Neho could give her evidence from behind a screen. The Crown’s application under s 101 as to admissibility of certain identification evidence against Mr Enoka was refused. The application in respect of certain other identification evidence was deferred for determination by the trial Judge.
[9] On 12 February 2016, I gave a sentencing indication to Mr Francis as to charges of aggravated burglary and kidnapping.5
[10] On 19 February 2016, Mr Francis and Mr Enoka appeared at a pre-trial conference before Mander J. Mr Francis pleaded guilty to the two charges which were the subject of the sentence indication. Mr Enoka pleaded guilty to charges of possession of methamphetamine for supply, possession of cannabis for sale and unlawful possession of a sawn-off shotgun. The Judge’s minute records that Mr Enoka intended to go to trial on the balance of charges contained in the Crown
charge list.6
[11] On 11 March 2016 at a conference before Mander J, by consent, the trial date of 7 March 2016 was vacated, largely as a result of Mr Francis pleading guilty after the sentencing indication.7 The minute recorded the Crown wished to call Mr Francis as a witness and requested a trial date after his sentencing had been completed. The minute also recorded that Mr Enoka had filed a notice of alibi in respect of which the Crown needed to make enquiries. A new trial date was set for 7
June 2016.
[12] On 12 April 2016, Mr Francis was sentenced to four years’ imprisonment on
the aggravated burglary charge and three years concurrent on the unlawful
5 R v Francis HC Christchurch CRI-2015-009-001603, 12 February 2016.
6 R v Enoka HC Christchurch CRI-2015-009-001603, 19 February 2016.
7 R v Enoka HC Christchurch CRI-2015-009-001603, 11 March 2016.
detainment charge.8 The sentencing notes record that he was given a significant starting discount because of the assistance he was going to provide to the Crown in giving evidence as to Mr Enoka’s involvement in the offending at the victim’s home. Various suppression orders were made to avoid prejudice to the fair trial of Mr
Enoka.
[13]
plead
O
ed gu
·
n 3 June 2016, at a pre-trial callover, Mr Enoka, represented by Mr Shamy, ilty to the following charges:
aggravated burglary, namely, on 15 February 2015 at Christchurch,
together with Lindsay Trevor Francis, entered a building at 39 Kibblewhite Street without authority and with intent to commit an imprisonable offence therein, namely assault, and had with him a knife; ·
wounding with intent to injure, namely, on 15 February 2015 at
Christchurch with intent to injure wounded Simon Ferenc Kovacs; and
·
unlawful detainment, namely, on or about 15 February 2015 at
Christchurch, together with Lindsay Trevor Francis, unlawfully detained
Tony Jane Ashleigh Neho with her consent obtained by duress with
intent to cause her to be confined (“the kidnapping charge”).
[14] Mander J’s minute recorded the summary of facts was not read.9 Mr Shamy indicated there were some details that remained to be confirmed. Mr Enoka was remanded in custody to be sentenced at 2.15 pm on 12 July 2016.
[15] The Crown offered no evidence on another charge of aggravated burglary, namely, that on 15 February 2015, Mr Enoka had, with Mr Francis, entered the Kibblewhite Street home with intent to commit theft and had with him a knife. The Crown also offered no evidence on a charge that, on 17 February 2015, Mr Enoka had dishonestly interfered with a motor vehicle. On both those charges, Mr Enoka
was discharged.
8 R v Francis [2016] NZHC 646.
[16] On 8 July 2016, Mr Enoka, through a new lawyer, Mr Bamford, filed an application under s 115 of the Criminal Procedure Act 2011 to withdraw his guilty pleas.
[17] On 12 July 2016, Mr Enoka appeared before me. I gave his former counsel, Mr Shamy, leave to withdraw.10 I set a timetable for Mr Enoka to file an affidavit in support of his application and with it a waiver of any privilege in respect of communications which he had with Mr Shamy before entering his pleas of guilty.
[18] In a telephone conference of 26 August 2016, Mr Bamford advised me of difficulties he was facing in complying with the timetable and of the possibility he would need to withdraw his counsel. Following further conferences, Mr Bamford ultimately remained as counsel for Mr Enoka. The application to withdraw a guilty plea was limited to the guilty plea in respect of the kidnapping charge. Mr Enoka swore an affidavit of 3 October 2016 in support of the application and waived privilege with regard to Mr Shamy. Mr Shamy swore an affidavit in response for the Crown on 21 November 2016.
[19] The application was heard on 5 December 2016. There was extensive cross- examination of both Mr Shamy and Mr Enoka.
Principles to be applied
[20] Section 115 of the Criminal Procedure Act states:
(1) A plea of guilty may by leave of the Court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
[21] Mr Bamford and Mr Zarifeh for the Crown accepted the principles to be applied in determining this application were summarised by Mander J in Foley v R. The Crown rendered these as follows:11
a. Where a defendant has “not really” pleaded guilty. If the defendant did not appreciate the nature of the charge or did not intend to admit his or her guilt or on the facts could not have been guilty of the offence charged;
10 Enoka v R HC Christchurch CRI-2015-009-001603, 12 July 2016.
b. If there is a defence to the charge of which the defendant was unaware when he pleaded guilty whether because of incompetent legal advice or otherwise;
c. Where the proceedings were defective or irregular or there was some impropriety of the contract of the proceedings or of the prosecution;
d. Where the defendant’s ability to determine whether or not to plead guilty was affected by some temporary or permanent impairment or lack of capacity, or by ill health or other circumstances …;
e. Where in entering the plea the defendant acted upon a material mistake
…;
f. The Court should only grant leave to vacate a plea of guilty if it is in the interests of justice to do so. When determining interests of justice the Court is to have regard to the interests of the defendant as well as that of the victims and witnesses;
g. The onus of making out a relevant ground is on the applicant;
h. Where a defendant is represented by experienced counsel and has made a considered decision to plead guilty he or she will be rarely permitted to withdraw that plea.
Submissions for Mr Enoka
[22] In written submissions, Mr Bamford submitted that Mr Enoka had not decided finally to plead guilty to the kidnapping charge until immediately prior to the Court hearing on 3 June 2016. The discussion he had immediately before the hearing with Mr Shamy precipitated “a hasty and ill-considered decision to plead guilty to all charges, including the [kidnapping] charge”. Mr Bamford submitted it was not a situation where Mr Enoka had decided to “maintain” a plea of guilty to all charges, rather “it was a spur of the moment decision made after a brief discussion with his counsel in the corridor between the Court cells and the Court itself”. It was submitted that the decision was made only after Mr Shamy had indicated Mr Enoka would have to engage new counsel. There had been no opportunity to obtain independent advice about this and Mr Enoka did not discuss with Mr Shamy the issue of whether or not he might maintain his not guilty plea in respect of the unlawful detainment charge. Generally, Mr Bamford submitted Mr Enoka did not have adequate opportunity to consider whether he could plead guilty to two of the three charges but maintain a not guilty plea on the charge of unlawful detention.
[23] After the witnesses had given their oral evidence, Mr Bamford acknowledged that the outcome of the decision on the application would ultimately require a largely factual determination. He suggested that, crucial to this would be my determination as to the extent to which Mr Enoka may have reasonably thought his reasons for not wanting to plead guilty to the kidnapping charge could be achieved through a disputed facts hearing. This would be despite his guilty plea. Also crucial would be my findings as to the extent to which he was under pressure as a result of Mr Shamy advising that, if he pleaded not guilty, Mr Shamy would have to withdraw his counsel because of a potential conflict. Mr Bamford also advised me that, if leave were to be given to withdraw the guilty plea, Mr Enoka would be seeking to have a Judge-alone trial on this charge. A trial in relation to that charge would probably take no more than two days. He suggested this could be relevant to the exercise of the Court’s discretion.
Mr Enoka’s affidavit
[24] In his affidavit in support of his application, Mr Enoka said:
11. In the months leading up to what was to be the trial I had been in the pound at Christchurch Mens Prison. We were locked in our cells 23 hours per day and I had virtually no contact with anyone.
12. Prior to going into Court, on the day I pleaded guilty, I had a brief meeting with my lawyer Mr Shamy. This was in the corridor leading from the Court holding cells to the Court and the dock. He advised me that I should seriously consider pleading guilty as the evidence was strong and given that my co-defendant Lindsay Francis would be a witness for the Crown I was at risk of being found guilty by a jury. Prior to that he had consistently advised me that I had a good defence. He told me about the different approach the Court would take to sentencing if I pleaded guilty compared with the outcome likely if I were to be found guilty by a jury after a trial.
13. I told him that I did not want to plead guilty to all the charges, particularly the charge of kidnapping, and that I wanted to at least take that charge to trial. When I told him that he advised me that he might have to withdraw as my lawyer as there would be a conflict on the basis of some of the information I had previously told him. That may well be in relation to the aggravated burglary charge and the wounding charge but at no stage in my discussions with Mr Shamy had I ever admitted to the kidnapping.
14. I went into Court and when the charges were read to me I pleaded guilty. I was comfortable with acknowledging the burglary and wounding charges but I was not happy about pleading guilty to the
kidnapping charges. I was so angry over this that when I left the Court I struck the door accessing the corridor to the cells hard with my elbow. My anger was about the fact that I was pleading guilty to something that I did not do.
Crown submissions
[25] The Crown submitted that it was apparent from Mr Shamy’s evidence and his detailed file notes that the potential strength of the Crown evidence, including the evidence of Mr Francis, and the potential issues over that evidence had been extensively discussed with Mr Enoka long before he pleaded guilty. Mr Enoka had decided to plead guilty well in advance of his attendance at Court on 3 June 2016 and, in particular, after a lengthy meeting with counsel on 31 May 2016. The Crown case was strong with direct evidence from the victim of the kidnapping Ms Neho, and the co-offender, Mr Francis. The Crown submitted there was also circumstantial support of independent evidence from a Crown witness who worked at a bakery and described the highly distressed state of Ms Neho when she ran there for help. They Crown also suggested its case was strengthened by Mr Enoka’s belated acceptance that he was at Kibblewhite Street and committed the aggravated burglary and wounding with intent offences that were committed there.
[26] Mr Zarifeh submitted Mr Enoka pleaded guilty on an informed basis after careful and proper advice from experienced counsel where he knew what he was doing. The guilty plea may have been entered reluctantly but that does not provide a basis on which, in all the circumstances that applied here, Mr Enoka should be allowed to withdraw that guilty plea. The grounds to vacate the guilty plea have thus not been established and it would not be in the interests of justice to allow him to do so.
Discussion
[27] It is clear from the evidence of Mr Shamy and Mr Enoka that, until he pleaded guilty, Mr Enoka was denying any involvement in the events at Kibblewhite Street. The occupants of that address, including Ms Neho, had not identified him as being present. Nevertheless, it was clear from Mr Enoka’s evidence that he always considered he had a defence to the kidnapping charge on the basis Ms Neho had
been with him and Mr Francis willingly. As confirmed by the judgment of Dunningham J, this was the basis on which Mr Enoka was defending that charge. It is also apparent from his affidavit of 3 October 2016 that it is still the basis on which he says he had and has a defence to the charge.
[28] It was also clear from Mr Enoka’s evidence that he understood that the Crown would be required to prove that Ms Neho had not consented to being with him. Long before he pleaded guilty, there had been an issue with the Crown over whether the Police would be calling evidence from a witness, Mr Lawson, who claimed to have seen Ms Neho kissing Mr Francis at some point over the period she was allegedly detained. Mr Enoka said under cross-examination that he regarded
this as evidence proving that she had not been detained against her will.12 Mr Enoka
was, however, informed well before he decided to plead guilty that the Crown was not going to call this particular person as a witness but it would ensure he was available for the defence to call as a witness if it chose to do so.
[29] Mr Shamy made detailed notes of a telephone call he had from Mr Enoka on
29 March 2016. During that call, Mr Enoka repeatedly said to Mr Shamy that he did not want to go to jail for something he did not do. Mr Shamy also recorded Mr Enoka saying “if he had done, if he had been there he would have pleaded out and that he was not a fool and he knew the system”.
[30] On that occasion, they discussed the charges and the fact Lawson would no longer be a witness for the Police. In that context, they discussed the importance of this witness to the kidnapping charge and what he would otherwise have been saying about Ms Neho kissing Mr Francis.
[31] Mr Shamy said he discussed the availability of Mr Lawson with Mr Enoka again before the second scheduled trial date, the fact Mr Lawson was in custody on
other matters and would be available to the defence to call as a witness.
12 While I observe such evidence might have been relevant, it would not necessarily have been determinative. Ms Neho could still have been forcibly taken from Kibblewhite Street and detained before those things happened, if they did in fact happen.
[32] The Crown filed formal statements from all Crown witnesses with the High Court on 3 July 2015. Mr Enoka was supplied with copies. After he told Mr Shamy on 31 May 2016 he was going to plead guilty, he asked Mr Shamy to take these statements back as he no longer wanted them. With those statements, there were three made by Ms Neho, one on 17 February 2015 and two on 13 May 2015. The former is a detailed statement of events beginning when she was at Kibblewhite Street with other flatmates including Mr Kovacs. In it, Ms Neho recounts their being visited by a person who, on her evidence, would have been Mr Enoka’s girlfriend.
[33] Ms Neho described in detail communications that occurred between the girlfriend and a person who was clearly Mr Enoka, leading to her going with the girlfriend to meet the person she referred to as “the boyfriend”, now admitted to be Mr Enoka. She described how Mr Enoka made her lead him and two others back to the Kibblewhite Street house, the serious assaults and thefts that occurred there and then how she was forced to get into their car. She described in detail how she was kept in the car and was driven around Christchurch and its rural environs and how eventually, in the early hours of the next morning, she was taken to a house in Addington. She described certain events that occurred there, until she found herself left alone and ran from the house to the Tower Junction carpark and Bakers Delight. She referred to specific conversations where it was made clear that, over that time, she was not free to go, of her fear and her subjection to various threats.
[34] In her statement of 13 March 2015 Ms Neho denied kissing Mr Francis over the time she was with him.
[35] Mr Shamy said that, once Mr Francis was sentenced in April 2016, the Crown had provided Mr Shamy with a redacted version of the sentencing remarks and he, in turn, provided them to Mr Enoka. Mr Enoka must therefore have known for several months before he pleaded guilty that the Crown case potentially could be significantly strengthened through his co-offender giving evidence against him.
[36] Mr Enoka’s defence to the charges relating to what happened at Kibblewhite Street was that he was not there. That required the defence to attack the credibility of Crown witnesses including Ms Neho. Nevertheless, I am satisfied that Mr Enoka
knew long before he pleaded guilty that, if he admitted Ms Neho was with him and Mr Francis after they left Kibblewhite Street, the crucial element of the charge which the Crown would have to prove was that she was with him without consent or, as it was referred to in the charge, “with consent obtained by duress”.
[37] Mr Shamy, in his affidavit and under cross-examination, gave evidence of a lengthy discussion he had with Mr Enoka at Christchurch Prison on 31 May 2016, eight days before his trial was due to start and four days before he pleaded guilty. Mr Shamy made detailed notes as to what was discussed. He dictated those notes in the presence of Mr Enoka. Under cross-examination, Mr Enoka did not challenge the accuracy of those notes.
[38] It is apparent from those notes that Mr Shamy had a general discussion with Mr Enoka as to the nature of the Crown case against him and the potential outcome on the charges he faced. Mr Shamy expressed the view that, if a jury accepted the evidence of Mr Francis and Ms Neho, he would be found guilty. Mr Shamy pointed out a particular difficulty that would be posed by the calling of the witness, Mr Lawson, to give evidence about the kissing between Mr Francis and Ms Neho. This difficulty was that Mr Lawson would also have to give evidence that Mr Enoka was at the Kibblewhite Street address which was something Mr Enoka denied. Mr Shamy and Mr Enoka discussed potential penalties. Mr Shamy said the sentence could be around 10 years but there could be no guarantee over that, something which Mr Enoka accepted.
[39] I am satisfied that on 31 May 2016, when Mr Shamy discussed with Mr Enoka the possibility of his pleading guilty to the charges, including kidnapping, Mr Enoka was well aware the crucial issue on that charge was whether the Crown would be able to prove that Ms Neho had been forced to leave the Kibblewhite Street address with him and Mr Francis.
[40] Mr Shamy records in his notes, consistent with his evidence, that before they discussed possible sentences Mr Enoka instructed him to tell the Crown that he would plead guilty to the charges but to see if charge three (the aggravated burglary for theft) and charge five (interfering with a motor vehicle) could be withdrawn. It is
significant that, in contemplating pleading guilty to all charges at that stage, Mr Enoka wanted Mr Shamy to discuss with the Crown the possible withdrawal of two charges, neither of which related to the kidnapping.
[41] Mr Enoka instructed Mr Shamy to speak to his partner to tell her that he was only pleading guilty so he could get home earlier to be with his son. Mr Shamy told Mr Enoka that he would be speaking to the Crown after 12.00 pm so, if Mr Enoka changed his mind or wanted to discuss anything further with him, he should call Mr Shamy before 12.00 noon.
[42] Consistent with detailed file notes he made, Mr Shamy at 12.40 pm spoke to a solicitor with the Crown and advised of the opportunity for matters to be concluded. There was a discussion over the two charges which he suggested could be dropped. Mr Shamy also noted that he spoke to Mr Enoka’s partner at 12.50 pm to advise her that Mr Enoka would be pleading guilty. He also recorded that she was to speak to Mr Enoka about 1.15 pm that day. The Crown contacted Mr Shamy again at 1.15 pm confirming it would accept guilty pleas to charges as ultimately occurred.
[43] At 1.30 pm on 31 May 2016, Mr Shamy spoke by telephone to Mr Enoka. Mr Shamy again made a detailed file note as to the discussion they had.
[44] I accept, consistent with Mr Shamy’s notes, that Mr Enoka considered and discussed with Mr Shamy the risks he faced in relation to the charges, including the kidnapping charge. They also discussed the potential benefits of guilty pleas including the credit that might be available in pleading guilty at a late stage and saving the state the burden of a two week trial.
[45] I accept the evidence of Mr Shamy that on 31 May 2016:
41. Mr Enoka and I discussed the case, and he told me that he wished to plead guilty to all charges. I had gone through with him the elements of each of the charges that he was facing, and he said to me that he wished to plead guilty to each of the charges including the kidnapping charge.
42. The fact that the co-offender was giving evidence against him appeared to be relevant to his decision, and also that he wanted to get the matter
over and done with so that he could return to his wife and son. He also looked at the sentence that the co-offender had received, and the fact that the co-offender had pleaded guilty to all of the charges.
[46] Mr Enoka accepted that, in that conversation, Mr Enoka asked Mr Shamy whether Mr Shamy thought Mr Enoka was doing the right thing or the best thing. He accepted Mr Shamy said it was up to him but, on the face of the evidence as it now sat, if he was going to get any credit then he had to do it now. Mr Shamy’s notes record that Mr Enoka was advised that, if the crucial witnesses were believed or even a portion of their evidence was believed, then he ran a significant risk of being convicted of all charges. Mr Shamy recorded in his notes that, at this point, Mr Enoka said that, of all the charges, he disagreed with the kidnapping charge but Mr Enoka said he might as well plead guilty to that charge because Mr Francis had. Mr Enoka recalls Mr Shamy again discussing with him the value to the Crown of the witness from the bakery as to Ms Neho’s distress when seeking help. Mr Enoka accepted that, at the end of that discussion, Mr Shamy said he would be fully arraigned the next week and agreed he would plead on that day.
[47] It is apparent from Mr Shamy’s notes and evidence that the detailed discussions on 31 May 2016 occurred against a background of regular contact between Mr Enoka and Mr Shamy over the proceedings and the issues which had to be addressed. Mr Shamy said this regular contact occurred sometimes two or three times a week by telephone. Mr Enoka did not suggest there was any lack of communication in a general sense or that he was not adequately advised over the issues he had to deal with.
[48] It is thus clear from Mr Shamy’s evidence, in the end largely undisputed, that after two detailed discussions with counsel on 31 May 2016 and time allowed to reflect on what he was doing, Mr Enoka on 31 May 2016 decided to plead guilty to those charges which the Crown proceeded with. It is also apparent that at that time he had seen the briefed evidence of Crown witnesses. Mr Shamy had arranged for various enquiries to be made by a private investigator and had discussed with Mr Enoka the information that had been obtained as a result. Mr Enoka was aware of the particular risks he faced in relation to the proceedings and the evidence which the Crown was relying on. Although he was clearly distressed at being in prison and
spending considerable time on his own in J-Block, there was no suggestion that at that time he did not understand the issues that were being discussed. There was no suggestion that he was unaware of particular issues that might be raised in his defence over the Crown evidence.
[49] It is significant that in his affidavit Mr Enoka made no mention of the discussions that took place with his counsel on 31 May 2016. It was misleading of Mr Enoka to suggest in his affidavit that his guilty pleas had been entered after only a brief meeting in the corridor outside Court before he was arraigned and against the background as he described it.
[50] I am satisfied Mr Enoka decided to plead guilty to the three charges after the extensive discussions that occurred on 31 May 2016. He did “maintain” the decision he had come to when he pleaded guilty on 3 June 2016.
[51] On 3 June 2016, Mr Shamy met with Mr Enoka before Mr Enoka went into Court to be arraigned and to plead guilty as arranged. The meeting was in the corridor between the Court and the cells. Mr Enoka was clearly under stress with the whole situation. It is difficult for me to be precise about how long they discussed matters but, from the topics covered and Mr Shamy’s notes, it would appear the discussion lasted at least 10 minutes. Mr Shamy made notes as to the discussions when he was in another Court immediately afterwards.
[52] The notes record Mr Enoka as saying “this is bullshit and they’re all lying” and he was “not pleading guilty to what didn’t do”. Mr Enoka accepted that Mr Shamy’s notes correctly record Mr Shamy as saying to him “then don’t”. Mr Shamy’s notes also refer to Mr Shamy advising that they could have a disputed facts hearing but Mr Enoka had to understand that, if he pleaded guilty to the elements in the charge, he could not dispute those elements later on “i.e. in kidnapping”. Mr Shamy told Mr Enoka he would not argue that it did not happen as a disputed fact. Under cross-examination, Mr Enoka said he was not 100 per cent sure if Mr Shamy had said this. He also said Mr Shamy had not told him about the elements of the charges earlier.
[53] Mr Shamy’s notes record Mr Enoka saying he felt under pressure and Mr Shamy saying again, in relation to that, “then don’t”. Under cross-examination, Mr Enoka said he felt under pressure because he could not compete with what other people were saying and that he felt doomed because of his history, but he also accepted that he pleaded guilty to get lesser time.
[54] Mr Shamy’s notes record him discussing the basis on which he would seek to get a lesser sentence and making it clear to Mr Enoka that he should not feel pressured to plead guilty and he must not plead to matters he did not do. Mr Enoka recalled, as recorded in Mr Shamy’s notes, there was a discussion about the potential use of restorative justice to reduce the sentence. The note also records Mr Shamy telling Mr Enoka that, if he did want to go to trial, Mr Shamy would be unable to act given what Mr Enoka had told him. The notes record Mr Enoka as saying “that’s ok” and their discussing the potential for Mr Bamford to represent Mr Enoka, in which case Mr Shamy would give him the full file. The notes record a further brief discussion about key Crown witnesses. Mr Shamy’s notes record and Mr Enoka accepts that, at the end of that discussion, Mr Enoka would plead guilty as had earlier been agreed and Mr Enoka was sure of this. The notes record, and Mr Enoka accepts, that Mr Shamy then mentioned a discussion they could have over the summary of facts and the sentencing and Mr Shamy reiterating that the pleas were up to him and they were serious charges.
[55] Mr Enoka pleaded guilty to the three charges on 3 June 2016 at the pre-trial callover. The charges were read to him. He pleaded guilty personally and not through counsel. On 8 June 2016, Mr Shamy sent a letter to Mr Enoka confirming what had happened and preparing him for the sentencing. He also summarised the background to Mr Enoka pleading guilty in a way which was consistent with the evidence Mr Shamy gave and also the notes he made at the time of key discussions.
[56] Mr Shamy had a telephone discussion with Mr Enoka on 15 June 2016. In that conversation Mr Enoka said he wanted to change his plea in relation to the kidnapping charge. They again discussed the risks he had faced in relation to Crown evidence on that charge. Mr Shamy’s notes record Mr Enoka as saying that he felt under pressure to plead guilty to the kidnapping from the point of view that he
wanted to do the right thing and to minimise the sentence that he would get. Mr Shamy’s notes record that Mr Enoka confirmed that he had not felt under pressure from Mr Shamy to plead guilty but that he felt it had all come to a head effectively very quickly.
[57] Mr Shamy wrote to Mr Enoka on 15 June 2016 again setting out some of the background to the situation that had developed and the risks he had faced in relation to Crown evidence. The letter concluded with advice that, if Mr Enoka wished to vacate his plea, he would need to engage another lawyer but it was completely up to Mr Enoka to decide what he wanted to do.
[58] I accept that Mr Shamy’s notes accurately summarise the immediate background to the entering of pleas. I am satisfied Mr Shamy had discussed the elements of the kidnapping charge with Mr Enoka on numerous occasions before Mr Enoka decided to plead guilty. Mr Enoka knew the Crown had to prove Ms Neho had been detained by him and Mr Francis without her consent and had not gone with them willingly.
[59] I am sure that Mr Shamy had made it clear to him that, if he pleaded guilty to the kidnapping charge, Mr Enoka had to accept that Ms Neho had been detained without her consent and, in that sense, he had “done” what he was charged with. I am satisfied Mr Enoka knew that if he pleaded guilty he would not, through a disputed facts hearing, be able to argue that Ms Neho had willingly left the Kibblewhite Street address with him and Mr Francis.
[60] I accept that immediately after he had pleaded guilty, Mr Enoka was angry and frustrated and he struck the door with his elbow but I do not consider this was because he had pleaded guilty to the kidnapping charge in particular. The most serious charges related to the wounding with intent and aggravated burglary. With his guilty pleas, Mr Enoka was having to accept the consequences that would follow conviction for all the offending which was the subject of the charges he had pleaded guilty to. That reality must have been stressful for him. The anger he exhibited was typical of the way he had responded previously to the stress he was under in relation to these proceedings, issues that had arisen for him while he was in prison and the
circumstances that led to the offending which he had admitted. I do not accept his anger related to the fact he had pleaded guilty to just the kidnapping charge. At that stage, he was stressed at the fact he was pleading guilty to all three charges. That anger was reflected in his later application to withdraw guilty pleas to all three charges.
Conclusion
[61] The Court of Appeal observed in R v Merrilees:13
[35] It is often the case that an offender pleads guilty reluctantly but nevertheless does so for various reasons. They may include the securing of advantages for withdrawal of other counts in the indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in rare circumstances.
[62] I am satisfied Mr Enoka entered his plea of guilty to the kidnapping charge in almost precisely the circumstances referred to by the Court of Appeal. Mr Enoka pleaded guilty to kidnapping fully informed as to relevant issues with the benefit of advice from careful and experienced counsel. He knew what he was doing. The Crown’s evidence against him was potentially strong. This is not one of those “rare circumstances” where retraction of his guilty plea can be permitted.
[63] On the basis of those guilty pleas, all the arrangements that had been put in place by the Police, the Crown and the High Court for a two week trial were abandoned. Particular witnesses who were anticipating the ordeal of giving evidence were told they no longer had to do so. The Crown did not offer evidence on two charges and Mr Enoka was effectively acquitted on those charges. It is not in the interests of justice for Mr Enoka to be able to change his plea and for the prosecution and all those who would be involved in a trial, the Police witnesses and others, to have to now assume all the significant expense and burden of even a Judge-alone
trial in relation to the kidnapping charge.
13 R v Merrilees [2009] NZCA 59.
[64] Mr Enoka’s application to withdraw his guilty plea is declined. Mr Enoka
has already been remanded in custody for sentencing to proceed at 2.15 pm on 16
February 2017. That remains the situation.
Solicitors:
Raymond Donnelly & Co., Christchurch
Bamford Law, Nelson.
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