Jackson v Housing New Zealand Corporation

[2012] NZHC 2951

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-75 [2012] NZHC 2951

BETWEEN  ANGELA JACKSON Appellant

ANDHOUSING NEW ZEALAND CORPORATION

Respondent

Hearing:         6 November 2012

Counsel:         B Yeoman for the Appellant

M Ferrier for the Respondent

Judgment:      7 November 2012

JUDGMENT OF MALLON J

Contents

Introduction ....................................................................................................................................... [1] The charges ........................................................................................................................................ [2]

The evidence ...................................................................................................................................... [5]

The instructions .............................................................................................................................. [5] The court hearing ......................................................................................................................... [13] Subsequent complaint ................................................................................................................... [18]

My assessment ................................................................................................................................. [21]

Result ................................................................................................................................................ [27]

JACKSON v HOUSING NEW ZEALAND CORPORATION HC WN CRI 2012-485-75 [7 November 2012]

Introduction

[1]      Ms Jackson pleaded guilty to two charges of using a document to obtain a pecuniary advantage.   The District Court sentenced her to 280 hours community work and reparation of $16,000 by instalments of $20 per week.  She now appeals her convictions.  Because Ms Jackson pleaded guilty she must point to evidence that a miscarriage of justice will result if the convictions stand.1    She contends that that she did not want to plead guilty to the charges, that counsel entered guilty pleas on her behalf without instructions from her, and that she did not understand what was happening when the guilty pleas were entered and she was sentenced.

The charges

[2]      Ms Jackson tenants a Housing New Zealand property at Lower Hutt.   On

3 July 2010 and 2 September 2011 she applied for a rental subsidy from Housing New Zealand.  The charges relate to these two applications.  The summary of facts on  which  the  guilty  pleas  were  entered  alleged  that  Ms Jackson  made  these applications without disclosing that a partner had been living with her throughout the relevant periods, and that she did so in order to obtain a greater subsidy than she was entitled to.  The summary of facts alleged that Ms Jackson obtained benefits in the amount of $16,001 as a result.

[3]      Ms Jackson accepts that a man was living in the house.  She wished to defend the charges because she says that the man at her house was a boarder, not her partner. If that were the position, it would not be a defence to the charges if that was not disclosed on the two applications.   That is because an applicant for rent subsidies must disclose their income and this would include any income from a boarder.  At best it would have been relevant to the calculation of the subsidy she may have been entitled to and therefore, potentially, relevant to the appropriate reparation payable

on conviction.

1      R v Le Page [2005] 2 NZLR 485 at [16].

[4]      If Ms Jackson wished to defend the charges and a guilty plea was entered contrary to her instructions that could give rise to a miscarriage of justice because the decision on plea is one for her to make, not her counsel, and because of its possible relevance in relation to reparation.  It is therefore necessary to consider the evidence.

The evidence

The instructions

[5]      The  informations  were  laid  in  May  2012.     Ms Jackson  was  initially represented by another lawyer, who received the informant’s disclosure.   Nathan Bourke of the Public Defence Service was assigned to Ms Jackson on 6 July 2012. From  this  point, the accounts  of Mr Bourke and  Ms Jackson  differ.    Both  filed affidavits and were cross-examined before me.   Also filed was an affidavit from Mr Bourke’s supervisor at the Public Defence Service, Louise Brown, who dealt with Ms Jackson when she complained shortly after sentencing.  She too was cross- examined.

[6]      Mr Bourke says he was not involved in filling out the legal aid application. He says that the Public Defence Service received advice of their appointment and he was assigned the file.  He wrote to Ms Jackson on 9 July 2012 inviting her to contact him  to  discuss  her  case  and  advising  her  that  the  next  court  appearance  was scheduled for 19 July 2012.  He says that he telephoned Ms Jackson on 12 July 2012 and confirmed that he would meet her before court on 19 July 2012.  Mr Bourke says that Ms Jackson told him that she was suffering from bipolar disorder.  He says that he therefore carefully went through the court process with her.

[7]      Mr Bourke says that he then met Ms Jackson and appeared for her on 19 July

2012, when not guilty pleas were entered and she was remanded to a status hearing on 10 August 2012. At this time Ms Jackson handed him a copy of the disclosure.  It included evidence from three neighbours that Ms Jackson had described the man as her partner, and evidence that the Police had several times been called to the address

to deal with her allegations that her partner, the same man, had been violent towards her.

[8]      Mr Bourke says that on 1 August 2012 he telephoned Ms Jackson to explain her options and discuss his review of the evidence.   He says that in that call she instructed him to seek a sentence indication.   Mr Bourke took a contemporaneous file  note  of  that  discussion.    That  file  note  is  consistent  with  his  evidence. Mr Bourke says that he received a number of other calls from Ms Jackson prior to the scheduled status hearing.  He did not make a file note of these because they were frequent and on unrelated topics.  He accepts that he may not have returned all the calls that she made during this period.

[9]      Mr Bourke says that before the status hearing on 10 August 2012 he met with Ms Jackson for about 20 minutes.   He says that he explained that the weight of evidence was against her, that it was her choice whether or not to defend the charges, but she would have to give evidence to contradict her previous statements made to the informant’s witnesses.  He explained that the sentence indication would be on the basis of the current summary of facts, which included that the man in question was her partner.

[10]     Mr Bourke says that he then had discussions with the informant’s counsel who agreed that the informant would seek community work and reparation should Ms  Jackson  plead  guilty.    Ms Jackson  confirmed  that  she  was  happy  with  this outcome as she had successfully completed a similar sentence in the past.   He prepared an instruction to plead guilty form.   Ms Jackson refused to sign it but instructed Mr Bourke to bring things to an end.  He explained that if she wanted to do that she would have to accept the summary of facts as written.  He says that he explained it as “gritting her teeth” and accepting the summary of facts and pleading guilty if she wanted the sentence discussed.

[11]     Mr Bourke   took   a   contemporaneous   note   of   these   discussions   with Ms Jackson on 10 August 2012.  That note is consistent with Mr Bourke’s evidence as outlined above.

[12]     Ms Jackson gives a very different account.  She says there were no meetings or discussions with counsel before 10 August 2012 other than a meeting of a few minutes at the court where she filled out a legal aid form and gave Mr Bourke the disclosure papers she had.  She says that Mr Bourke never gave her any advice.  She says her instructions to him were that she wanted to plead not guilty.  She says that she called Mr Bourke numerous times about the case but he did not answer his telephone or return her calls.  She says that she became concerned about the lack of communication  and  contacted  the  office  of  her  local  Member  of  Parliament. Ms Jackson says that on the morning of the status hearing there was no discussion with Mr Bourke.  She says that Mr Bourke just told her “we are going to be called soon”.  She maintained her version of events despite being shown Mr Bourke’s file notes recording a different account.

The court hearing

[13]     At the status hearing Mr Bourke advised the Judge that he had spoken to Ms Jackson  and  she  wished  to  receive  a  sentence  indication.    The  Judge  was informed that the informant would be seeking a sentence of community work and that Ms Jackson was interested in resolving the matter on this basis.   The Judge noted Ms Jackson’s history and sought information from the probation officer who advised that Ms Jackson had completed previous sentences satisfactorily.  Mr Bourke then informed the Judge that Ms Jackson suffered from bipolar disorder, was finding the whole proceeding very straining and tiring, wanted the Court to be told that the man was not her partner but that she was interested in resolving the matter by way of a sentence of community work.  The Judge indicated agreement with the approach and asked about reparation. The transcript of the status hearing confirms all of this.

[14]     Mr Bourke says that when this indication was given, Ms Jackson said “yes, yes”  from  the  dock.    This  comment  from  Ms Jackson  is  not  recorded  in  the transcript.  But the transcript does record that Mr Bourke informed the Judge that he had been advised that Ms Jackson was on a benefit but could offer $20 a week, and that he then asked to approach Ms Jackson for instructions.

[15]     Mr Bourke’s discussion with Ms Jackson at that point is not recorded in the transcript, but Mr Bourke says that she instructed him to change her pleas to guilty and that she could pay reparation at $20 a week.  He says that he had no reason to think that Ms Jackson did not understand what was happening.  He did not ask to have the matter stood down so that Ms Jackson had more time to consider the matter because the sentence indication had proceeded as they had hoped it would and as earlier discussed with Ms Jackson.   He said that he would have asked to have the matter stood down if there was any concern about whether Ms Jackson understood what was happening or any confusion from her about what she wanted to do.

[16]     The transcript records that having obtained instructions from Ms Jackson, Mr Bourke informed the Judge that guilty pleas were entered.   He also said that Ms Jackson  had  said  that  she  wanted  to  seek  work  and  she  would  then  offer additional  reparation.     The  indication  having  been  accepted  Ms Jackson  was sentenced immediately.  When sentence was passed, she interrupted the Judge to say that the man was not her partner, but the Judge observed that she had accepted the summary of facts and sentenced her accordingly.

[17]     Again Ms Jackson’s account of the hearing is very different.   She says she was shocked when she stood in the dock on 10 August 2012 and heard Mr Bourke enter guilty pleas.  She said she could not believe what was happening and stayed quiet.    Notwithstanding  being  shown  the  transcript  of  the  hearing,  Ms Jackson maintained that Mr Bourke did not approach her in the dock for instructions before informing the Judge that she would enter guilty pleas.   She says she wanted to defend the matter, thought that the matter was going to be put off for a few more weeks and there was no discussion with Mr Bourke about entering a plea.   She maintains that Mr Bourke only asked her about how much reparation she could pay

after he had already told the Judge she was pleading guilty.  She says that after the hearing, she asked Mr Bourke “why?” and he told her that he had read the statements from Ms Jackson’s neighbours.

Subsequent complaint

[18]     It is not in dispute that Ms Jackson swiftly complained to the Public Defence Service, where she spoke to Ms Brown.   She says that she told Ms Brown that Mr Bourke had said she was guilty when she was not and that she asked “How could Mr Bourke be my judge, jury and executioner?”  She says that Ms Brown said she would investigate but later told her that she could not assist.

[19]     Ms Brown  has  a  different  recollection.     She  accepts  that  Ms Jackson complained that she did not know what was happening.   Ms Brown contacted the prosecutor to see what had happened because Mr Bourke was away.  After this she telephoned Ms Jackson.  At this time Ms Brown says that Ms Jackson agreed that she had accepted the sentence indication for community work and reparation, although she thought this was on the basis that the man was her boarder.  Ms Jackson instructed  Ms  Brown  to  see  if  the  prosecution  would  discuss  the  amount  of reparation.   Ms  Brown  says that she then endeavoured to resolve this with the prosecution but without success.

[20]     Ms Brown’s recollection is consistent with her contemporaneous file note.  In that file note Ms Brown records Ms Jackson as telling her that she could “not remember [the] court appearance at all but [was] adamant that never want[ed] to plead guilty”.   It also records that Ms Jackson later accepted that she “understood sentence indication on basis was partner” but then the summary of facts was read out she took issue with the man being referred to as her partner.   The file note also records that Ms Jackson did not dispute that she had not disclosed in the applications to Housing New Zealand that she had a boarder and that Ms Brown would discuss the reparation amount with the prosecutor.

[21]     Having heard from Mr Bourke, Ms Brown and Ms Jackson, I do not accept that Ms Jackson misunderstood what was happening in the District Court.  Rather, I accept Mr Bourke’s evidence that Ms Jackson made an informed decision, on his advice, to first seek and then accept the sentence indication.   I also accept Mr Bourke’s evidence that she understood that she would have to enter a guilty plea on the basis of the allegation that the man was her partner and that she elected to do that.   Mr Bourke’s version of events is supported by his file notes, Ms Brown’s evidence, which in turn is supported by her file note, and by the transcript of the hearing.

[22]     In contrast, Ms Jackson’s evidence is not corroborated by other evidence and her account is implausible.  It requires me to accept that counsel would ignore his professional obligations to a vulnerable client, inform the District Court Judge in the presence of his client of matters that were not true, subsequently make up an account of his dealings with his client in his sworn affidavit and his oral evidence before me and create fictitious file notes of those dealings.  Not only that, but it also requires me to  accept  that  Ms  Brown  has  also  made  up  her account  of what  happened afterwards and that she also created a fictitious file note.  Lastly it requires me to find that the transcript has inaccurately recorded events.

[23]     Ms Jackson’s counsel submits that the process was rushed, citing Hancock v R.2  As in that case the sentence indication was given, accepted and acted upon at the one hearing.  However there were other factors which caused the Court of Appeal in that case to conclude that a miscarriage of justice had arisen.   In particular, the subject of possible pleas had not been broached with the defendant in that case before the morning of the trial, the advice on the strength of the case had been given

without seeking the defendant’s explanation of a statement she had made to a police officer which counsel viewed as very damaging to the defendant’s case, and counsel had given erroneous advice on sentence.

(a)      Mr  Bourke  had  given  careful  and  sound  advice  about  the  dim prospects of successfully defending the matter prior to seeking the sentence indication;

(b)During the 1 August and 10 August 2012 Ms Jackson gave provisional instructions to resolve the matter on the basis of community work;

(c)      The sentence indication that was given aligned with Mr Bourke and

Ms Jackson’s discussions; and

(d)Mr Bourke subsequently confirmed his instructions before the pleas were entered.

[25]     In R v Merrilees the Court of Appeal said this:3

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 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 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.

[26]     It does appear that Ms Jackson may have been reluctant to accept that she should plead guilty when the summary of facts said the man was her partner.  But she accepted that she should do so on proper advice which she understood at that time.  Whether she has now forgotten that advice or regrets her decision, this is not one of those rare situations where it is appropriate to allow her appeal despite her guilty plea.

Result

[27]     For these reasons I am not persuaded that a miscarriage of justice might result were the guilty pleas to stand. The appeal against conviction is dismissed.

Mallon J

Solicitors:

B S Yeoman Limited, Lower Hutt
Crown Solicitors Office, Wellington