Johnson v Police - [2018] NZHC 1790

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000108

[2018] NZHC 1790

BETWEEN
MICHELLE ANNETTE JOHNSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 July 2018

Appearances:

E C Bulger for Appellant

S Bicknell-Young for Respondent

Judgment:

19 July 2018

ORAL JUDGMENT OF VENNING J

Solicitors/Counsel: E C Bulger, Christchurch
Crown Solicitor, Christchurch

JOHNSON v NEW ZEALAND POLICE [2018] NZHC 1790 [19 July 2018]

[1] On 23 September 2016 Michelle Johnson pleaded guilty to a charge of dishonestly using a document. She was sentenced to 50 hours community work and ordered to pay reparation of $730 by Judge J J Brandts-Giesen.1

[2] Ms Johnson appeals against conviction. She says that the Judge was wrong to decline to grant an adjournment of her case and she felt pressured by the Judge and her then solicitor to enter the guilty plea.

[3] The procedural history to this file does not read well. I make it clear I make no criticism of present counsel, Ms Bulger, in relation to the file.

[4] Ms Johnson was first before the District Court on the charge on 12 February 2016. The matter was adjourned three times until on 23 September 2016 the not guilty plea was vacated and the guilty plea entered. Ms Johnson then apparently failed to comply with the sentence which led to an application to cancel the sentence of community work and a charge of failing to report to a probation officer. That charge was filed on 2 June 2017 with Ms Johnson’s first appearance scheduled for 5 July 2017. She failed to appear at Court that day. She then appeared on 2 August 2017. It was only after that date, on 9 August 2017, that she filed the appeal. As noted the grounds of appeal are:

Fair hearing was prejudiced by Judge when he refused to grant an adjournment for compassionate reasons, resulting in me feeling pressured to vacate my not guilty plea and enter a guilty plea when I had a defence to the charge.

[5] As the appeal was filed almost 11 months out of date Ms Johnson had to seek leave to pursue the appeal.

[6] The application for leave was before this Court on two occasions before it was substantively dealt with. On the first occasion on 26 October 2017 Mander J noted:

[1] This appeal was set down to be heard this morning. However, no submissions were filed in support of the appeal, and Ms Bulger had earlier advised of difficulties in obtaining instructions from her client.

[2] This morning Ms Bulger appeared, as did the appellant Ms Johnson. Ms Bulger advised that as a result of discussions she has recently had with Ms

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

Johnson she is willing to continue to act. She sought the opportunity to have further discussions with Ms Johnson regarding the appeal.

[7] Accordingly the Judge adjourned the matter to 7 December 2017. However, before…

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 [2018] NZHC 1790
Case: [2018] NZHC 1790
Decision Date: 19 July 2018

CaseChat Overview and Summary

Michelle Annette Johnson appealed her conviction for dishonestly using a document, arguing that the judge was wrong to decline an adjournment of her case and that she felt pressured by the judge and her then solicitor to enter a guilty plea. The appeal was filed almost 11 months after the sentence was imposed, and the appellant failed to provide instructions to her counsel. The court considered whether the appellant was abusing the process of the court, and if so, whether dismissing the appeal would be appropriate. The court found that the appellant had little interest in pursuing the appeal and had failed to comply with procedural orders, and thus dismissed the appeal with no further appearances required unless the appellant complied with the court's orders. The court also asked the Legal Aid authorities to take into account the steps that the appellant's counsel had taken on the file and to compensate her appropriately if possible.

The court had to decide whether the appellant was abusing the process of the court and, if so, whether dismissing the appeal would be appropriate. The court found that the appellant had little interest in pursuing the appeal and had failed to comply with procedural orders. The court considered the history of the file, which disclosed that the appellant apparently had little interest in pursuing this appeal and had failed to take steps to provide the waiver sought by counsel and had not provided proper instructions to her counsel. The court also noted that the appellant had failed to file an affidavit setting out her position in support of the appeal and had not provided a written waiver of privilege in relation to her dealings with her former counsel. The court considered the prospect of a discharge without conviction, given the appellant's previous record and the offending in this case, to be an unrealistic prospect. The court found that the appellant was abusing the process of the court and that dismissing the appeal would be appropriate.

Orders