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 if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has

resulted in an unfair trial.2 In this section, a trial includes a proceeding in which the appellant pleaded guilty.3

Appellant’s submissions

[7]                  The appellant had pleaded guilty to the charge, but now appeals conviction. No written submissions were filed in advance of the hearing and she did not appear when the matter was called today.

[8]                  The following grounds have previously been referred to by the appellant in written submissions:

(a)The Judge erred in refusing to grant an adjournment for compassionate reasons;

(b)This left the appellant feeling pressured to vacate her not guilty plea and enter a guilty plea, despite having a possible defence to the charge;

(c)The appellant says her lawyer told her that she was at risk of being imprisoned if she did not change her plea to guilty; and

(d)The appellant says her lawyer did not follow her instructions to pursue a discharge without conviction.

[9]                  The first two grounds of appeal were advanced in the Notice of Appeal. The appellant later instructed her then lawyer to pursue the second two.

Respondent’s submissions

[10]              Mr White appeared and asked that the appeal be dismissed. The respondent has previously submitted that no miscarriage of justice has occurred to satisfy s 232. In R v Le Page the Court of Appeal has held that:4

2      Section 232(4).

3      Section 232(5).

4      R v Le Page [2005] 2 NZLR 845 (CA) at [16].

…it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty… Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.

[11]              In response to the first ground of appeal, the respondent has submitted that the District Court Judge was entitled not to adjourn the matter based on the appellant’s brother’s ill health. Three months had passed since the Case Review Hearing, and the appellant had had ample time to consider her position and prepare a defence. There is nothing on file to indicate Judge Brandts-Giesen deprived the appellant of a fair trial or made any factual or legal errors in the exercise of his discretion not to adjourn the matter.5

[12]              In response to the second ground of appeal, the respondent has submitted that there was no adverse pressure on the appellant to plead guilty. Had the appellant had a defence to the charge, as she states on the Notice of Appeal, the matter could have been defended.

Analysis

[13]              In the circumstances I will not simply dismiss the appeal for want of prosecution. I have considered the file to ensure there has been no miscarriage of justice.

[14]              As the Court of Appeal outlined in R v Le Page, it is only in exceptional circumstances that an appeal against conviction will be entertained following the entry of a guilty plea.6 The Court of Appeal described the relevant circumstances where this might arise in the following way:

[17]      A miscarriage of justice will be indicated in at least three broad situations which are identified and discussed in Adams on Criminal Law at para CA385.21. 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. It is not suggested the present case is in this category.

5      Mohammed v R [2016] NZCA 254 at [17]-[18].

6      R v Le Page, above n 4.

[18]      A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged. Examples are where a charge required special leave and such was not obtained, a charge was out of time or where as a matter of law the facts are insufficient to establish an essential ingredient of the offence. …

[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. … Examples are where a trial Judge wrongly concludes that there is no evidence sufficient to justify a defence being left to the jury (say provocation or self- defence) leaving the accused with no option but to plead guilty. In such cases, which will admittedly be rare, this Court would intervene to cure a miscarriage of justice which plainly flowed from the erroneous ruling. …

[15]              The categories are not necessarily closed, and there is potentially a fourth category. Illegitimate pressure to plead guilty when it arises from pressure from the police or prosecutors, may also give rise to an arguable case that the guilty plea has been improperly obtained such that the plea should be vacated, and the matter remitted for trial.7

[16]              None of the circumstances identified by these authorities arise in the present case. It cannot be said that the appellant did not intend to plead guilty, or did not understand the nature of the charge to which the guilty plea was entered. The appellant has not demonstrated that on the admitted facts the appellant could not in law be convicted. Neither did the appellant enter a guilty plea as a consequence on a wrong decision on the Court of matter of law. Finally there was no improper pressure that warrants the conviction on the guilty plea to be set aside as a miscarriage of justice.

Conclusion

[17]For these reasons, the appeal is dismissed.

Cooke J

7      See Marteley v Legal Services Commissioner [2015] NZSC 127, [2016] 1 NZLR 633 at [64]–[67]. In that case it was alleged that the police stated that the defendant’s partner would not face a charge of murder if he pleaded guilty.