H v Police HC Rotorua CRI-2009-463-9

[2009] NZHC 1576

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2009-463-9

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 March 2009

Appearances: Mr T Mounsey for Appellant

Mr R Bird for Respondent

Judgment:      24 March 2009

(ORAL) JUDGMENT OF LANG J

[on appeals against conviction and sentence]

Solicitors:

Crown Solicitor, Rotorua
Counsel:

Mr T Mounsey, Taupo

H V NEW ZEALAND POLICE HC ROT CRI-2009-463-9  24 March 2009

[1]      Mr H   faced four charges of breaching a protection order issued pursuant to the provisions of the Domestic Violence Act 1995.    He also faced a charge of disorderly behaviour laid under the provisions of the Summary Offences Act 1981.

[2]      When Mr H   appeared in the District Court on  27  January 2009,  he entered pleas of guilty to all of the charges that he faced.     His Honour Judge McGuire then sentenced Mr H   to 60 hours community service.

[3]      Mr H   now appeals to this Court against both conviction and sentence. He contends that he only entered the guilty pleas under pressure and in an effort to ensure that he was released from custody.     He also argues that he has a strong defence to each of the charges.    On that basis he contends that a miscarriage of justice has occurred and that the convictions and sentence should be quashed.

[4]      It is not open to Mr H   to apply to the District Court for an order granting him leave to vacate his guilty pleas.   This is because the ability of the District Court to make such an order expired once Judge McGuire sentenced Mr H  .   For this reason the only way in which the convictions can be attacked is by way of general appeal to this Court.

Factual background

[5]      The factual basis upon which the Judge sentenced Mr H   was derived from a summary of facts that the prosecutor presented to the Judge after Mr H   pleaded guilty.   It is clear, however, that the summary contains but part of a series of events that led to Mr H   facing the charges in the District Court.

[6]      When the hearing began before me,  I expressed concern at the fact that counsel for Mr H   was making submissions that amounted to giving evidence from the bar.   For that reason I directed that Mr H   was to give evidence on oath in relation to the factual matters upon which he  relied in  order  to  advance  his appeals.   The hearing was then adjourned for a short period whilst counsel for Mr H   prepared a brief of evidence and provided it to counsel for the respondent.

When the hearing, resumed Mr H   gave oral evidence in which he amplified and clarified the circumstances that gave rise to the charges.   These are as follows:

[7]      The incident that led to the charges occurred on the evening of 21 January

2009 and the early hours of the following morning.   On that evening a person by the name of Clint Healey had visited Mr H  ’ residential address in Taupö.   His wife and children also lived at the address and they were the persons in whose favour the Family Court had earlier issued protection orders.

[8]      Other people  were also at the address during the  course of the evening. Some form of disagreement arose and Mr H   says that he required all of those present at the address to leave the property immediately.    Most of those present complied  with  his  request,  but  Mr  Healey  refused  to  do  so.      This  led  to  an altercation that, in turn, led to the police being called to the address.    When the police arrived they found that both Mr Healey and Mr H   were non-co-operative. They then arrested Mr Healey but Mr H   decamped from the property before similar action could be taken against him.

[9]      Mr H   says that he stayed away from the property for a period before returning to it in the early hours of the morning.    When he did so, he found that some of the persons who had been at the address earlier in the evening had returned and were sleeping on the floor of the lounge.    He then entered the address and a further altercation occurred.   Fearing for his safety, he climbed up onto the roof of his house and from there he began banging on the roof with a bamboo chimney sweep.   He was also yelling for his neighbours to call the police.

[10]     This was the scene that the police encountered when they arrived at the property at about 2.20 am.   Their first concern was to persuade Mr H   to come down from the roof.    He was reluctant to do so given the fact that his attackers remained at the address.   Eventually, however, he climbed off the roof and escaped from the property through the back yard.   He says that he then stayed away from the property until later on the morning of 22 January.

[11]     Mr H   says that the police did not return to arrest him until that evening, when a police party led by a Sergeant Ross Humphries arrived and arrested him. Sergeant Humphries had also been involved in the incidents that had occurred at the address the previous evening.   Mr H   believes that Sergeant Humphries takes a personal  interest  in  him,  and  that  he  may  in  fact  be  involved  in  a  degree  of persecution of Mr H  .

[12]     Mr H   remained in police custody until he appeared before the Justices of the Peace on 23 January 2009.    He says that he did not apply for bail on that date because he did not believe that a Justice of the Peace had the power to grant him bail because of his previous history.    He says that he believed that only a Judge could grant him bail.    As a result, the Justices duly remanded Mr H   in custody to appear before a Judge on 27 January 2009.

[13]     Mr H   says that when he appeared before Judge McGuire on 27 January

2009 he was aware that the police were opposing bail.   He said that he also believed that if he pleaded not guilty to the charges, he would be remanded in custody until the defended hearing.   He says that it was for this reason, and this reason alone, that he elected to plead guilty to the charges.    He says that this was the only way in which he believed that he could be released from custody on 27 January 2009.

[14]     Mr H   also says that he believed that if he entered guilty pleas he would be able to persuade the Judge that the charges should be dismissed or that, at the very least, he would not have any penalty imposed upon him.    Unfortunately for him, however, the Judge entered convictions and sentenced him to the sentence of community work to which I have already referred.

[15]     Mr H   frankly acknowledges that he is familiar with the criminal justice system in this country, and with Court procedure generally.     He was obviously aware of his right to obtain legal advice and, in some senses, it must be said that he was the author of his own misfortune.   He also made a deliberate decision to plead guilty to the charges when he must have known that this would mean that he would have no opportunity to defend them.

[16]     That is not, however, the end of the argument on this point.    I am satisfied that Mr H   did enter the pleas on the basis that that was the only way in which he would be likely to be released from custody.     His previous convictions, and in particular a conviction for breaching a protection order in December 2008, were such that a remand in custody was likely in the event that he denied the charges.    I am therefore satisfied that Mr H   entered the pleas under the pressure caused by the fact that he knew he would be further remanded in custody if he did not do so.

[17]     The next issue is whether there is a likelihood of a miscarriage of justice occurring.    In this context I need to consider whether Mr H   may have had a defence to the charges that he faced.   I am left in little doubt on this score in relation to the charges of breaching the protection orders that had been issued in relation to his  wife  and  children.      The  charges  alleged  that  Mr  H    had  “engaged  in behaviour which amounted to psychological abuse of the protected person[s]”.  The police summary, however, makes no mention at all of the manner in which the conduct of Mr H   is said to have amounted to abuse of those parties.

[18]     Similarly, the evidence that Mr H   gave before me makes it clear that his family was not the focus of the events of the night in question.    Rather, the issues that arose between himself and the visitors to his address were the focal point.    It seems to me that all of Mr H  ’ actions on that night related to the visitors to his address and not to his family.   For that reason, I consider that it is highly likely that Mr H   had a strong defence to the charges brought under the provisions of the Domestic Violence Act 1995.

[19]     Moreover, conviction on those charges was a serious matter, because it may have consequences for Mr H   in the future.  Although he received a non-custodial sentence on this occasion, it is likely that future convictions for similar offending will result in a custodial sentence being imposed upon him.

[20]     These factors persuade me that a miscarriage of justice is likely to have occurred in relation to the convictions for breaching the protection orders.

[21]     I place the charge of disorderly behaviour in another category.     By any standards this was disorderly behaviour as that phrase has now been interpreted by the Supreme Court in Brooker v Police [2007] 3 NZLR 91. Mr H ’ actions in climbing on the roof of the address and banging loudly on it whilst he yelled for help, would have caused not only a disturbance, but also real concern for his neighbours given the hour at which the incident occurred. I do not consider that he would have had any realistic prospect of defending that charge.

[22]     I am satisfied, however, that the fact that Mr H   had spent three or four days in custody would have persuaded the Judge in the District Court to impose no further sanction in relation to that particular charge had it stood alone.

Disposition

[23]     I have discussed with counsel whether I should remit the charges to the District Court for re-hearing.   It seems to me, however, that little would be achieved by doing so.   Mr H   has now explained what happened and his version of events appears to largely mirror the summary of facts.   I am not sure that the prosecution would be able to advance its case any further if it was to have another opportunity to have the charges re-heard in the District Court.

[24]     For these reasons, both counsel agree that it is appropriate that I bring this matter to finality at this point and not require the District Court to consider it any further.

[25]     I therefore allow the appeal to the extent that I quash the convictions and sentence that Mr H   received in relation to the charges laid under the Domestic Violence Act 1995.

[26]     I dismiss the appeal so far as it relates to the conviction on the charge of disorderly behaviour.   I quash the sentence imposed on that charge, however.   Mr H   will be convicted and discharged on that charge.

Lang J