Harding v R - [2019] NZCA 259

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA241/2017
[2019] NZCA 259

BETWEEN	BROWNIE JOSEPH HARDING Appellant
AND	THE QUEEN Respondent

Hearing:	6 May 2019
Court:	Courtney, Venning and Lang JJ
Counsel:	P T Eastwood for Appellant K S Grau for Respondent
Judgment:	26 June 2019 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Brownie Harding pleaded guilty to 11 charges relating to the manufacture and distribution of methamphetamine in Northland. He applied unsuccessfully to vacate his guilty pleas to four of those charges.[1] After a disputed facts hearing, Moore J imposed a sentence of 28 and a half years’ imprisonment with a 10 year minimum period of imprisonment.[2]
[1]Harding v Police [2017] NZHC 1188 at [92] (Decision declining application to vacate pleas of guilty).
[2]R v Harding [2017] NZHC 675 at [97] and [102] (Sentencing Notes).
Mr Harding appeals his conviction on the ground that leave should have been granted to vacate his guilty pleas and that a miscarriage of justice will occur if he is held to them.[3] The specific grounds of appeal overlap somewhat and are best summarised as follows (which is not in the order counsel argued them):
(a)There was pressure from the Judge to plead.
(b)There was pressure to plead from counsel, who was in a position of conflict because she was also acting for members of Mr Harding’s family.
(c)Counsel gave misleading advice about the evidence required to prove the charges of manufacturing methamphetamine.
(d)The evidence that methamphetamine (as opposed to ephedrine) was being manufactured was weak.[4]
(e)Mr Harding did not receive the audio transcript books before entering the guilty pleas.
[3]Mr Harding also appeals his sentence, but the sentence appeal has been severed and will be heard at a later date. Harding v R CA241/2017, 15 April 2019 at [3].
[4]The terms pseudoephedrine and ephedrine were both used in evidence. Pseudoephedrine is a subset of ephedrine. For consistency, we refer only to ephedrine in this judgment.
In addition, Mr Eastwood, for Mr Harding, suggested that a breach of s 25(b) and (f) of the New Zealand Bill of Rights Act 1990 (BORA) occurred as a result of Mr Harding not having the charges determined at trial. However, this ground adds nothing. If there are circumstances that justify quashing Mr Harding’s conviction, then he will be able to exercise his BORA right; if not, there will not have been any breach of a BORA right. We therefore do not deal with this ground further.

Background

Mr Harding was arrested in December 2014 along with several others. These included his partner, Casey Rewha, his sons, Evanda Harding and Tyson Harding, and his father, Joseph Harding. The arrests were the culmination of an investigation by the Organised and Financial Crime Agency of New Zealand (OFCANZ) into the manufacture of distribution of methamphetamine in Northland, which focused on members and associates of the Headhunters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harding v R

Details

AGLC: Harding v R [2019] NZCA 259
Case: [2019] NZCA 259
Decision Date: 26 June 2019 at 3 pm

CaseChat Overview and Summary

Brownie Joseph Harding appeals against his conviction for manufacturing and distributing methamphetamine in Northland. The appeal was heard on 6 May 2019 before Courtney, Venning and Lang JJ. Harding pleaded guilty to 11 charges and his appeal is twofold. First, he argues that he should have been granted leave to vacate his guilty pleas and that a miscarriage of justice will occur if he is held to them. Secondly, he appeals his sentence, although that appeal has been severed and will be heard at a later date. The appeal against conviction has been dismissed by the Court. The appeal against sentence will be heard at a later date.

The grounds of appeal against conviction overlap and can be summarised as follows: (a) there was pressure from the Judge to plead; (b) there was pressure to plead from counsel, who was in a position of conflict because she was also acting for members of Mr Harding’s family; (c) counsel gave misleading advice about the evidence required to prove the charges of manufacturing methamphetamine; (d) the evidence that methamphetamine (as opposed to ephedrine) was being manufactured was weak; and (e) Mr Harding did not receive the audio transcript booklets before entering the guilty pleas. The appeal against conviction was dismissed on the basis that there was no miscarriage of justice. The appeal against sentence will be heard at a later date.

Orders