H v Police HC Wellington CRI-2008-485-128

[2009] NZHC 588

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-128

H

v

NEW ZEALAND POLICE

Hearing:         19 May 2009

Appearances: Mr M Appleby for the appellant

Mr I Murray for the respondent

Judgment:      21 May 2009         at 4 pm

JUDGMENT OF MALLON J

Introduction

[1]      Mr H   has four convictions for minor matters that occurred 20 years ago.   He has recently succeeded in winning a green card for the United States of America in the Green Card Lottery and wishes to take up the opportunity to live and work there.  An immigration lawyer has advised him that his application for entry into the United States will be rejected on the basis of two of those convictions, because they relate to cannabis offending.   As a result of this advice, he seeks to appeal his convictions or the sentences on them.  He also seeks leave to bring this

appeal out of time.

H V NEW ZEALAND POLICE HC WN CRI-2008-485-128  21 May 2009

Background

[2]      Although I have the two informations that relate to the cannabis offending, the District Court files are no longer available due to the time that has elapsed.  The

Ministry of Justice holds a record of the convictions, which are as follows:

Date of offence	Offence	Date of Sentence	Sentence
2 October 1998	possession of cannabis seed (s 7(1)(a) and (2)(b) of the Misuse of Drugs Act 1975)	4 November 1998	$125 fine
2 October 1998	possession of pipe for commission of offence under Act (smoking cannabis) (s 13(1)(a) and (3) of the Misuse of Drugs Act 1975)	4 November 1998	$125 fine
16 December 1998	failed to stop on direction of officer (ss 66 and 30AA of the Transport Act 1962)	20 December 1998	$250 fine and six months’ disqualification
17 December 1998	false statement that an offence committed (s 24(a) of the Summary Offences Act 1981)	20 December 1998	$250 fine; six months’ disqualification

[3]      Mr H   has also submitted a declaration.  He says that the offending occurred when he was an “impressionable 19 year old going flatting for the first time”.   (Mr H  ’s counsel accepts that the age stated by Mr H   is incorrect – the informations record Mr H  ’s date of birth as 23 May 1967 which would put Mr H  ’s age at 21 at the time of the offending.  He says that the general point that Mr H   makes that he was an impressionable young man going flatting for the first time remains.)

[4]      Mr H   says that there was a party at his flat and several hours later he went to bed.  He says he was woken by the police because one of his flatmates was concerned that the party was getting out of control and had called the police.  He says that the police asked if they could search his room and he agreed to this.  He says that they found a small bag of low quality seeded cannabis and a pipe for smoking it.  He says his lawyer advised him to plead guilty and that, as this was his first offence, he should be able to get a discharge without conviction.  He says that

other members of his flat received discharges without convictions, but that he did not.

[5]      Mr H   says that soon after this he moved to Tauranga.  He says that the driving convictions occurred when he was driving and came across a police checkpoint.  He says that he had been drinking alcohol and, although he believed he was under the legal alcohol limit, he panicked.  He says he pulled into a driveway and ran.  He says he reported his car stolen and that when he came into the station to make his statement the police officer did not believe him and he then admitted he had been the driver.

Submissions

[6]      In the written submissions filed for Mr H   it was submitted that a discharge of conviction should be given.  At the hearing, counsel for Mr H   accepted that a difficulty with his appeal is that it might be seen as cutting across Parliament’s intention as set out in the Criminal Records (Clean Slate) Act 2004 (“the Clean Slate Act”).   To meet this concern, he proposed as an alternative that Mr H  ’s conviction remain but that he be discharged.  This would mean that the United States Immigration authorities would be aware of the conviction but also that he had been discharged.

[7]      Mr H   acknowledges that special circumstances are required to bring the appeal out of time.  He submits that it is in the interests of justice in this case to grant leave and that there are no floodgate considerations.   He submits that leave should be given and the appeal granted because of the length of time Mr H   has remained out of trouble, the consequences of his convictions on his plans to live and  work  in  the  United  States,  because  his  flatmates  were  apparently  given discharges and because, if the matter arose now, Mr H   would probably have been offered diversion.

[8]      The Crown opposes the granting of leave to appeal out of time because of the delay (which has meant there is no longer records of the nature of the offending) and because  the  Clean  Slate  Act  is  the  proper  vehicle  to  expunge  properly  entered

convictions. The Crown says there are no special circumstances which warrant leave being granted.  The Crown’s written submissions did not discuss the merits of the appeal if leave were to be granted.  However at the hearing, counsel indicated that, on the limited information available, the effect on Mr H  ’s travel plans that is now apparent may well have resulted in a discharge had it been known at the time.

Discussion

[9]      The parties agree on the legal test for whether leave should be granted.  Both parties referred to R v Knight [1998] 1 NZLR 583 (CA). That case concerned an appeal governed by the Crimes Act 1961, whereas here the appeal is governed by the Summary Proceedings Act 1957. But a similar approach is taken to the question of leave, with High Court decisions commonly referring to the discussion of the exercise of the Court’s discretion under the Summary Proceedings Act that is set out in Cleggs Ltd v Department of Internal Affairs HC AK M1032/84 5 September 1984.

[10]     Leave to appeal should only be granted where special circumstances justify a departure from the principle of finality.   I consider that there are no special circumstances here.  It is not said that there was an error in the decision made at the time.  Mr H   refers to his flatmates having been convicted and discharged. But his counsel acknowledges that there is insufficient information before the Court more than 20 years on as to what they were charged with and what their circumstances were so as to determine whether there was some unfair disparity as to how Mr H   was treated as compared with them.  There is no suggestion that Mr H   was unable to exercise his appeal rights at the time.

[11]     Mr H  ’s   appeal   has   been   brought   because   of   a   change   of circumstances occurring 20 years after his convictions.  In my view it is just too long after the event to now attempt to reconsider those convictions and the sentences because of that change.   Parliament has recognised that circumstances change and that a person in Mr H  ’s position should be deemed to have no criminal record, but it has specifically excluded from this regime questions asked about a person’s criminal record under the law of a foreign country or an application form by the immigration agency of a foreign country.  To grant a discharge, with or without

conviction, solely for the purpose of avoiding the specific exception under the Clean Slate  Act  does  not  seem  to  me  to  be  appropriate,  despite  the  minor  nature  of Mr H  ’s  convictions  and  that  they  occurred  so  long  ago.    There  is  no compelling “interest of justice” reason to grant leave to appeal.

[12]     Accordingly the application for leave to appeal is dismissed.

Mallon J

M Appleby, Barrister, Wellington, email: [email protected]

I Murray, Luke Cunningham Clere, Wellington, email: [email protected]