Johnson v Police - [2019] NZHC 695

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-108

[2019] NZHC 695

BETWEEN
MICHELLE ANNETTE JOHNSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 April 2019

Appearances:

No appearance for Appellant C C White for Respondent

Judgment:

4 April 2019

JUDGMENT OF COOKE J

[1] On 23 September 2016, Judge Brandts-Giesen convicted the appellant of using a document for pecuniary advantage and sentenced her to 50 hours’ community work and $730 reparation to be paid at $20 per week.1 The appellant had pleaded guilty to the charge, but now appeals her conviction. Leave to appeal out of time was given on 14 March 2018 “by a somewhat fine margin”.

Facts

[2] The appellant used a fuel card belonging to a business named Concrete 4 U Ltd 10 times between 2 April 2015 and 26 April 2015, obtaining $730 worth of Unleaded 91 petrol. The appellant is not an employee of the company, and was not authorised to use the card. The appellant claims she did not know it was stolen.

1 New Zealand Police v Johnson [2016] NZDC 20247.

JOHNSON v NEW ZEALAND POLICE [2019] NZHC 695 [4 April 2019]

[3] It is somewhat unclear how the appellant came to have the fuel card in her possession. On her account, a friend named Dylan gave it to her as payment for some upholstery work. The victim impact statement however shows that the appellant’s son is a former employee of Concrete 4 U Ltd. This issue was not explored in the District Court given the appellant’s guilty plea.

[4] This appeal was set down for hearing on 7 December 2017. It was adjourned, unopposed at that stage. It has subsequently had a protracted history. This included the Court granting leave to appeal out of time. On 13 December 2018 the appeal was further adjourned until 28 February 2019 to enable the appellant to approach Legal Services to obtain substitute counsel to appear on the appeal. It was last before the Court on 28 February 2019 when it was reported that legal aid had been declined. A further adjournment was sought. Gendall J granted the adjournment on the basis that the appeal was set down for hearing today. It was made clear that the appeal would proceed today.

District Court decision

[5] As the appellant pleaded guilty, there is no formal decision considering the appellant’s guilt or otherwise. In sentencing, Judge Brandts-Giesen noted the appellant’s prior convictions, but recognised that this was her first dishonesty offence. His Honour made reference to the poor health of the appellant’s brother and deaths in her family, but did not consider that justified the offending in any way. The Judge convicted the appellant and sentenced her to 50 hours of community work and $730 in reparation, to be paid at $20 per week.

Principles on appeal

[6] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction…

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 Johnson v Police

Details

AGLC: Johnson v Police [2019] NZHC 695
Case: [2019] NZHC 695
Decision Date: 4 April 2019

CaseChat Overview and Summary

Michelle Annette Johnson appealed against her conviction for using a document for pecuniary advantage, following her guilty plea. The conviction was upheld by the High Court of New Zealand. The appellant had used a fuel card belonging to a business, Concrete 4 U Ltd, without authorization, obtaining $730 worth of petrol. The appellant did not know the card was stolen and claimed she received it from a friend as payment for some work. The District Court sentenced the appellant to 50 hours of community work and reparation of $730, payable at $20 per week. The appellant argued that the District Court erred in refusing to grant an adjournment for compassionate reasons, leaving her pressured to plead guilty despite having a possible defense. The appellant also claimed her lawyer did not follow her instructions to pursue a discharge without conviction.

The High Court considered the principles for allowing an appeal against conviction. The Court held that an appeal against conviction will only be entertained following a guilty plea in exceptional circumstances. These include where the appellant did not appreciate the nature of the charge, where the appellant could not in law be convicted, or where the plea was induced by a wrong decision on a question of law. The Court found that none of these circumstances applied in this case. The appellant did not demonstrate that she did not intend to plead guilty, or that on the admitted facts she could not in law be convicted. The Court also found that there was no improper pressure that warranted the conviction to be set aside as a miscarriage of justice. The appeal was dismissed.

Orders