Hooper v Police
[2015] NZHC 122
•10 February 2015
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI-2015-483-000004 [2015] NZHC 122
BETWEEN PAUL HOOPER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 5 February 2015 Appearances:
Appellant in person
N A Refoy-Butler for the RespondentJudgment:
10 February 2015
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Tuesday, 10 February 2015 at 2.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Counsel/Solicitors:
J H Waugh, Barrister, Wanganui
Crown Solicitor, Wanganui
PAUL HOOPER v NEW ZEALAND POLICE [2015] NZHC 122 [10 February 2015]
Introduction
[1] On 10 November 2014, following a guilty plea, Mr Hooper was convicted on one charge of careless driving.1 He was disqualified from holding or obtaining a drivers licence for three months. No other sentence was imposed. Mr Hooper now appeals against the conviction and sentence, although his disqualification expired on
10 February 2015.
[2] The appellant’s arguments draw on a broad sense of grievance relating to his treatment at the Marton District Court. The main thrust of his argument was that his conviction should be quashed because he did not receive the disclosure to which he was entitled. He also claims that he was not careless because he did not feel himself becoming drowsy before he fell asleep. His crash was, therefore, just an accident.
Background
[3] At about 8.30am on Wednesday 22 October 2014, the appellant was driving a motor vehicle east on State Highway 3 near Sanson. The weather and road conditions were good, with a relatively heavy flow of traffic.
[4] The appellant veered across the centreline of the road into the path of an oncoming van. The appellant’s vehicle collided with the van, causing moderate to extensive damage to the van. The appellant’s vehicle then continued on the same trajectory, causing another van to veer off the road to avoid a collision. The appellant’s vehicle then left the road and collided with a farm fence.
[5] The appellant has a number of previous convictions for driving offences, including driving while impaired by alcohol and disqualified driving.
District Court decision
[6] The hearing was very brief. The duty solicitor appeared for the appellant and advised the Court that the charge could be taken as read and that the appellant
pleaded guilty. A guilty plea was therefore entered on the record. After hearing the
1 Land Transport Act 1998, s 37(1). Maximum penalty of a $3000 fine and disqualification for such period as the court thinks fit.
agreed facts and submissions from the duty solicitor on behalf of the appellant, Judge Cameron asked the prosecutor whether he sought a sentence of disqualification in addition to a fine. The prosecutor responded that a sentence of disqualification on its own would be sufficient. The appellant was then sentenced by Judge Cameron to three months disqualification from driving, on the basis that he had been a danger to other people on the road.
Appellant’s submissions
[7] The appellant says that when he appeared in the Marton District Court on 10
November 2014 he only had a copy of the charging document. He saw the duty solicitor, who did not provide him with a copy of the summary of facts, the maximum penalty (normally set out at the beginning of the summary of facts), a summary of his right to ask for further information and a list of his previous convictions. He says the solicitor told him that he had no defence and that a guilty plea was the only plea available. He says he accepted the solicitor’s advice that it was best to get it over and done with.
[8] While making his plea in mitigation, the solicitor referred to the appellant’s last conviction as being in 2003, which the appellant says is incorrect. He acknowledges that his criminal history shows a conviction for driving while disqualified in 2003, for which he was fined $650 and disqualified from driving for one year, but says it was not him and it must have been another Paul Hooper or someone else using his name.
[9] When he raised the issue of the lack of disclosure afterwards with the solicitor, he was told not to worry about it, as it would not have made any difference.
[10] The appellant submits that because he did not receive the documents to which he was entitled, his conviction should be quashed. He says “The way I look at it, it is like the Police having to tell people their ‘Miranda rights’ when they are arrested or the case has to be dismissed”.
[11] The appellant also submits that the sentence was obviously decided
beforehand because the Judge asked the prosecutor “Now sergeant, it is fine only,
but you are seeking disqualification as well, yes?” The appellant also complains that Judge Cameron did not ask him if he had anything to add. He says “I’ve NEVER experienced that before. Judges ALWAYS ask if you have anything to say”.
[12] Finally, the appellant submits that he found out afterwards that he had a defence to the charge. Judges in previous cases have referred to the fact that drivers charged with careless use have felt drowsy before falling asleep at the wheel and that their carelessness consisted of them continuing to drive when they felt drowsy. The appellant says he never felt drowsy before the crash and therefore he was not careless.
Discussion
[13] Section 232 of the Criminal Procedure Act 2011 provides that an appeal court must allow an appeal if satisfied that a miscarriage of justice has occurred for any reason. Otherwise an appeal court must dismiss an appeal. A miscarriage of justice is defined as any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity. Trial includes a proceeding in which a defendant pleaded guilty.
[14] I accept the submissions of counsel for the respondent that it is only in exceptional circumstances that an appeal against conviction will be allowed after a plea of guilty has been entered. The appellant must demonstrate that a miscarriage of justice will result if the conviction is not overturned.
[15] Counsel for the respondent cites the Court of Appeal decision in R v Merrilees2 in which the Court referred to an earlier decision of R v Le Page in which the Court set out the circumstances in which an appeal against conviction following a guilty plea may be allowed:
[33] It has to be shown a miscarriage of justice will result if a conviction is not overturned, and where an appellant fully appreciates the merits of his position and makes an informed decision to plead guilty, a conviction cannot
2 R v Merrilees [2009] NZCA 59 at [33] – [35].
be impugned. It was said that a miscarriage will be indicated in three broad situations, namely:
(17) The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element …”
(18) A further category is where on the admitted facts the
appellant could not in law be convicted of the offence charged …”
(19) The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law …
[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
[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 through withdrawal of other counts in an indictment, discounts on sentencing, or because the 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 he or 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 very rare circumstances.
[16] The Court of Appeal has also indicated that in determining whether an appellant understood the charge and the consequences of pleading guilty, the court on appeal can consider any prior experience the appellant has with the justice system.3
[17] The appellant submits that he was told by the duty solicitor that he had no defence. In effect, he says that the advice he received was wrong and that he did have a defence available. The difficulty with his submission is that it is just a submission and has not been confirmed by evidence. Recognising that it is all too easy to say that a lawyer gave wrong advice, the Criminal Procedure Rules 2012 set out what an appellant is required to do if an assertion is made that there is a
miscarriage of justice because of the conduct of the appellant’s lawyer at trial or
3 R v Roycroft CA312/01, 4 September 2002.
sentencing. Rule 8.7 states that if a ground of appeal is that there was a miscarriage of justice because of the conduct of the appellant’s lawyer at the trial or sentencing, particulars of the conduct concerned must be given in the notice of appeal or a memorandum to be filed and served by the appellant not later than 30 working days after filing the notice of appeal. The appellant is also required, not later than 30 working days after filing the notice of appeal, to file and serve on the prosecutor any affidavits that relate to the ground of appeal. There is then the opportunity for the respondent to cross-examine any deponent at the hearing of appeal.
[18] In this case, the appellant did not give notice of the complaint about the duty solicitor in the notice of appeal or in a memorandum filed and served by the appellant not later than 30 working days after filing the notice of appeal. The grounds of appeal set out in the notice of general appeal dated 12 December 2014 are:
Prosecution disclosure duties not met. Law states prosecution disclosure duties MUST be made, however this was not done. Judge simply asks Police if they wanted disqualification and that was done. However I heard false information regarding previous conviction and was not shown anything in that regard or other necessary disclosure.
[19] On receipt of the notice of appeal the High Court set down the appeal for hearing at 10.00 a.m. on 4 February 2015. In an e-mail to the appellant dated
23 January 2015, the appellant was advised to file and serve his submissions by Wednesday, 28 January 2015. This is what he did. It was in these submissions for the very first time that the appellant submitted that he had a defence. He stated:
On 10/11/14 I appeared in the Marton District Court on a charge of careless use of a motor vehicle. It was actually an accident. I had had a really bad night, but felt okay in the morning. Unfortunately I must have been more tired than I thought, and fell asleep. Therefore an accident, and not careless use as such.
However this appeal has been lodged because of the Marton Court not abiding by the law.
The appellant then went on to set out his submissions on the lack of disclosure by the
Police.
[20] In response, counsel for the respondent wrote to the appellant advising him that to answer his submissions she needed to know what information was disclosed to the duty solicitor, what he discussed with the appellant and what instructions the appellant gave him. She correctly pointed out to the appellant that the duty solicitor was not permitted to disclose this information without a waiver of privilege from him, pursuant to s 65(2) of the Evidence Act 2006. She attached a form to that effect, which she requested that the appellant sign and return.
[21] The appellant refused to provide a waiver of privilege and consequently there is no evidence before the Court of what advice the duty solicitor gave to the appellant. The appellant orally advised me what he had been told by the duty solicitor, but that is not evidence. He has chosen not to swear an affidavit, which would have made him available for cross-examination by counsel for the respondent, and he has also not provided a waiver of privilege, which would have enabled counsel for the respondent to speak with and file evidence from the duty solicitor.
[22] In those circumstances, I am not satisfied that a miscarriage of justice has occurred through advice given by the duty solicitor. The summary of facts is not disputed by the appellant. He did veer right towards the centre line of the road. He did continue veering to the right, crossing the centre line into the path of an on- coming van. The driver of the van had to take evasive action by veering to the left hand side of the road to attempt to avoid a collision. The appellant’s vehicle collided with the back driver’s side of the van causing the driver to lose control and spin. The collision caused moderate to extensive damage to the van. After colliding with the van, the appellant has continued on the same trajectory crossing the on-coming lane causing another van to take evasive action driving off the left side of the road and onto the grass verge to avoid a collision. The appellant had then left the road travelling for some distance on the grass verge before colliding with a farm fence.
[23] In explanation, the appellant said, he would not have had a clue what happened. He said that he really could not remember anything except for the big bang. The appellant admitted that he had had trouble sleeping the previous night and had not had much sleep. In fact, in his written submissions the appellant
acknowledges that, unfortunately, he must have been more tired than he thought and fell asleep.
[24] In those circumstances, the Police case of careless use was a strong one and even if the appellant gave evidence to say that he did not feel drowsy, the fact of the matter is that he had had a very bad night’s sleep and woke exceptionally tired. He knew was extremely tired, but drove nonetheless in the knowledge of his tiredness. It is highly likely that a Court would have found him guilty of careless driving, following a defended hearing. In those circumstances, I am not persuaded that there has been a miscarriage of justice.
[25] Turning now to the lack of disclosure, the appellant submits that it is his understanding that before, when, or as soon after you appear in Court, the prosecution must provide:
(a) A copy of the charge document; (b) A summary of facts;
(c) A summary of your right to ask for further information; (d) The maximum penalty for the offence; and
(e) A list of any previous convictions the prosecution knows you have.
He says that he had a copy of the charging document, but everything else on the above list was not given to him.
[26] The appellant is quite right as to the scope of the initial disclosure. Section
12 of the Criminal Disclosure Act provides:
12 Initial disclosure
(1) At the commencement of criminal proceedings, or as soon as practicable after that time, and in any event not later than the applicable date, the prosecutor must disclose the following information to the defendant:
(aa) a copy of the charging document; and
(a) a summary that is sufficient to fairly inform the defendant of the facts on which it is alleged that an offence has been committed and the facts alleged against the defendant; and
(b) a summary of the defendant's right to apply for further information under subsection (2); and
(c) the maximum penalty, and the minimum penalty (if one is
provided for), for the offence; and
(d) a list of the defendant's previous convictions that are known to the prosecutor; and
(e) a list of any previous offences proved to have been committed by the defendant and of a kind to which section
284(1)(g) of the Children, Young Persons, and Their
Families Act 1989 applies, that are known to the prosecutor.
…
[27] The first thing to note is that the initial disclosure has to be provided as soon as practicable after commencement of criminal proceedings and, in any event, not later than the applicable date. The applicable date is 15 working days after commencement of the criminal proceedings. The appellant was charged on 26
October 2014. He pleaded guilty on 10 November 2014, before the prosecutor was obliged to provide initial disclosure. The second thing to note is that service of initial disclosure can be made on a defendant’s lawyer. Section 10 of the Criminal Disclosure Act provides:
10 Service
(1) Information required to be disclosed to, and any notice or application required to be given to or served on, any person under this Act may be given to or served on the person—
(a) by personal delivery to that person or, if the person refuses to accept the document or notice, by bringing the document
or notice to that person's attention; or
(b) by post or facsimile addressed to that person, or by electronic means, at an address nominated by the person or,
if no such address has been nominated, at the person's last
known postal address or place of residence or business.
(2) Information required to be disclosed to, and any notice or application required to be given to or served on, a defendant under this Act may,
if the defendant is represented by counsel, be given by any of the methods described in subsection (1) to the defendant's counsel.
(3) If information or a notice or application is posted to any person
(whether physically or by electronic means), it will be treated as having been received by that person not later than 3 working days
after the date on which it was posted, unless the person proves that,
otherwise than through fault on the person's part, it was not so received.
(4) Information required to be disclosed under this Act may be disclosed
in whatever form (including electronically) that the person disclosing the information holds it in at the time the obligation to disclose arises and that is readily accessible to the defendant.
[28] In that regard, the respondent has filed an affidavit from, Stephen David Butler, the Police prosecutor who was responsible for the sentencing of the appellant on 10 November 2014 at Marton District Court on the charge of careless driving. Mr Butler notes that the duty solicitor on the day was Mr Scott Oliver. The standard practice when a duty solicitor represents a defendant is that they are given initial disclosure which consists of:
(a) Summary of facts;
(b) Previous convictions;
(c) Copy of the charging document.
[29] Mr Butler states, that while I cannot remember all of the details of this case, there is nothing about it to suggest that the usual practice was not followed. In addition, the initial disclosure pack is not on the Police file, suggesting it was handed to the duty solicitor as usual. The transcript of the Court hearing records Mr Oliver as referring to the appellant’s conviction history when he was making his plea on mitigation, so he must have had a copy of that.
[30] The appellant submits that, even if this was the case, the duty solicitor did not provide him with a copy of the summary of facts or a list of his previous convictions. Again, there is no evidence on this point as the appellant has not filed an affidavit himself, nor has he waived privilege to enable counsel for the respondent to talk with the duty solicitor, Mr Oliver. Again, the test to be applied on appeal is whether a miscarriage of justice will result if the conviction is not overturned.
[31] Assuming the appellant’s submissions are correct and that he did not receive a copy of any documents, other than the charging document, it is my view that he has not demonstrated that a miscarriage of justice will occur if the conviction is not quashed. The summary of facts is not disputed. In any event, it was read to the Court by the prosecutor and the appellant had the opportunity at that stage to object if he disputed any of the facts described by the prosecutor.
[32] Furthermore, even if the latest conviction shown on the appellant’s criminal history was not his, but another person named Paul Hooper or somebody using his name, the appellant has a substantial number of driving offences, including six of driving with excess blood or breath alcohol or refusing an officer’s request for a blood specimen. In respect of these offences, he has been disqualified on each occasion. On the last three occasions, he was disqualified indefinitely as well as being sentenced to imprisonment for three months. In addition, he has been convicted of driving while disqualified on eight separate occasions. Again, all of these convictions led to further periods of disqualification as well as sentences of imprisonment on four occasions.
[33] In those circumstances, the Judge was entitled to consider that the appellant did pose a danger to others on the road. A sentence of three months disqualification without any further penalty was therefore within the range of sentencing options available to the Judge, even if the last conviction on the appellant’s criminal history has been incorrectly added.
Result
[34] In all the circumstances, the appeal is dismissed. There is no evidence before this Court as the appellant has chosen not to file an affidavit, nor has he waived privilege to enable the duty solicitor to give evidence. Notwithstanding the lack of evidence, the matters raised by the appellant do not lead me to conclude that a miscarriage of justice will occur if the conviction was not quashed. There are no exceptional circumstances described by the appellant which would enable the appellant’s plea of guilty to be put to one side and a re-trial ordered.
……………………………….
Woolford J
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