Johnson v Police
[2018] NZHC 430
•14 March 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-409-000108
[2018] NZHC 430
BETWEEN MICHELLE ANNETTE JOHNSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 March 2018 Appearances:
E C Bulger for Appellant S J Mallett for Respondent
Judgment:
14 March 2018
JUDGMENT OF GENDALL J
Introduction
[1] On 23 September 2016 Judge Brandts-Giesen in the District Court at Christchurch convicted the appellant on one charge of using a document for pecuniary advantage and sentenced her to 50 hours’ community work and $730 reparation to be paid at the rate of $20 per week.1 The appellant had pleaded guilty to the charge.
[2] Now, however, she appeals conviction on a number of grounds. These essentially relate to the conduct of her lawyer in the District Court and the pressure she says she felt to enter a guilty plea. In the appeal the appellant maintains, too, that Judge Brandts-Giesen erred in refusing to grant her an adjournment of her hearing at the time which she said was necessary on a number of grounds, including for compassionate reasons. This, the appellant, alleges left her feeling pressured into
1 NZ Police v Johnson [2016] NZDC 20247.
JOHNSON v NZ POLICE [2018] NZHC 430 [14 March 2018]
vacating her not guilty plea and pleading guilty despite the fact she says she had a possible defence to the charge.
[3] The present appeal was filed some 10 months out of time. Section 231(2) of the Criminal Procedure Act 2011 provides:
231 How to commence first appeal
…
(2) A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of sentence for the conviction appealed against.
…
[4] The appeal here was filed on 9 August 2017. This was substantially out of time, as I have noted, amounting to some 10 months late. The 20 working day period under s 231(2) expired on 21 October 2016.
[5] Initially, here, Ms Bulger for the appellant sought leave of the Court to grant an extension of time for bringing this appeal.
[6] In doing so Ms Bulger indicated that a major plank of this appeal relates to the appellant’s contentions relating to trial counsel error. The appellant contends that her counsel at the time, Mr Smedley of the Public Defence Service, provided inadequate advice to her, did not follow her instructions to pursue a discharge without conviction and pressured her improperly throughout to enter a guilty plea.
[7] Ms Bulger confirms that she has made considerable efforts to make contact with Mr Smedley to discuss with him the allegations the appellant makes. It seems Mr Smedley some time ago resigned from the Public Defence Service and Ms Bulger confirms he is now working and living in London. She says that, as yet, she has been unable to contact him in London and, if this Court grants leave for the appeal to continue, she will need some time for this contact to be made. Ms Bulger notes that this will also entail the Public Defence Service file being provided to Mr Smedley so she can hear his views on matters the appellant raises and then for arrangements to be made for him to give evidence from London by AVL if this appeal is to continue.
[8] On all of this, Ms Bulger contends that the interests of justice in this case and the need for the appellant’s appeal to be properly heard and considered outweigh any further delays which may occur in this matter and the costs involved in taking AVL evidence from London.
[9] Matters therefore proceeded before me yesterday on the basis that I was to consider as a preliminary matter the appellant’s application for leave to bring this appeal out of time.
[10]I now do so, noting that this application is opposed by the respondent.
Factual background
[11] Some brief background facts relating to the appellant’s alleged offending are useful here.
[12] Between 2 April 2015 and 26 April 2015 the appellant used a fuel card belonging to a business named Concrete4U Limited 10 times, obtaining $730 worth of 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 the card was unavailable to her or stolen.
[13] 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 Concrete4U Limited. This issue, however, was not further explored in the District Court, presumably because of the appellant’s guilty plea. It was also not a matter raised in the appellant’s submissions.
[14] As I have noted above, at the District Court hearing Mr Smedley of the Public Defence Service appeared on behalf of the appellant and entered her guilty plea.
Appeal filed out of time?
[15]I repeat that, this appeal was filed very late, some 10 months out of time.
[16] The appeal in R v Slavich2 discussed the principles which apply when considering whether to grant an extension of time. In doing so the Court of Appeal concluded at [14]:
In the simplest terms, extension of time applications will routinely reduce to two heads. Firstly, why was the appeal filed late? Secondly, what, if any merit, does the prospective appeal appear to have?
[17] It is clear too that the onus is on the appellant to provide sufficient information for the Court to determine whether it is in the interests of justice for leave to be granted.3
[18] The appellant submits in the present case that there is good reason why this appeal had been filed late and that in any event, when matters unfold in the future, it will be found that this appeal has merit. Accordingly, she maintains that the interests of justice require that she must be entitled to advance this appeal and have matters properly considered.
[19] The respondent’s position is that this is not the case and the appeal should be dismissed at this point.
Delay
[20] Turning first to consider the delay in filing this appeal, the 10 month period is obviously significant.
[21] Before me, Ms Bulger indicated that from her perusal of the documentation it seems that Mr Smedley may have assisted the appellant in completing her Notice of Appeal soon after her conviction. It is not clear, however, why this appeal was not filed at the time.
[22] It appears then that another counsel, Mr Watts, became involved. But, again, why the Notice of Appeal was not filed later is also unclear.
2 R v Slavich [2008] NZCA 116.
3 Above n 2, at [13].
[23] The appellant’s current counsel, Ms Bulger, then became involved and confirmed filing of the appeal.
[24] Before me, Ms Bulger contended that throughout it was not apparent to the appellant that her appeal had not been filed. Over this 10 month period of delay she had been dealing effectively as an unrepresented appellant, initially from time to time with some help from two separate counsel, before Ms Bulger became involved. Ms Bulger understands that the appellant believed throughout that her appeal had been filed in time.
[25] On this matter, although the 10 month delay in filing this appeal was a lengthy period, in all the circumstances here, and, given the appellant’s explanation and her insistence that it was her understanding that the appeal had been filed by counsel in time, to some degree the reason why this appeal was filed so late has been addressed. In these circumstances, I am prepared to give the appellant some benefit of the doubt here.
Merit
[26] Turning now to the issue of what, if any, merit does this prospective appeal have, before me Ms Bulger made clear that this appeal was of some moment to the appellant who strongly contests the conviction which has been entered against her. According to Ms Bulger, the appellant maintains she has a proper defence to the charge and this should have been before the District Court if she had been allowed to run it. Ms Bulger confirms, however, that at this stage she personally has been unable to get to the bottom of all this. To do so, Ms Bulger says she will need an opportunity to discuss matters with counsel who appeared at the time, Mr Smedley. And, this requirement to speak with Mr Smedley would take a short while given, as I have noted, that he works and lives in London now.
[27] Overall, Ms Bulger contends that it is in the interests of justice for leave to be granted here and for this appeal to be adjourned today. This will give her an opportunity to contact Mr Smedley to test the advice which the appellant says she received in September 2016 and to discuss the way matters unfolded in the District Court on the day. Ms Bulger has properly acknowledged to the Court that there may
turn out to be contrasting views between Mr Smedley and the appellant as to what may have happened at the time, but this needs to be investigated further.
[28] In response, Mr Mallett for the respondent contends that this appeal has no merit and that no grounds exist here for establishing that a miscarriage of justice may have occurred in this case. He suggests there is nothing on the District Court file to suggest that Judge Brandts-Giesen made an error in principle, considered irrelevant matters, or failed to take into account relevant matters. He notes that, indeed, the only relevant matter appears to have been the fact that the appellant’s brother (who it is presumed the appellant might have wished to call as a witness) at the time was ill, a fact of which Judge Brandts-Giesen was well aware when refusing the adjournment the appellant had sought.
[29] The respondent maintains that the appellant would have fully appreciated the merits of her position in pleading guilty to the charge she faced, and would have made an informed decision as to this plea.
[30] In response, Ms Bulger noted, however, that she was unable to make any comment at this point. The contentions advanced for the respondent, she said were really unable to be properly tested unless she, as counsel for the appellant, at least had some opportunity to make contact with previous counsel, Mr Smedley. If appropriate then, the appeal could be advanced to hearing.
[31] It is true that a consequence of granting leave for this appeal to be brought out of time will involve further delay and the possibility of additional cost, particularly if the appeal hearing proceeds and AVL evidence from London is required. And, given all the circumstances I have outlined above, it is very difficult at this point to comment on the merits of this appeal. Notwithstanding this, the overall interests of justice, in my view, suggest that the appellant should be allowed to advance her appeal here. It is appropriate, in my view, that some additional time should be allowed here for, amongst other things, the advice the appellant received to be explored and tested. This is also particularly the case given that the appellant says, through a combination of circumstances involving changed counsel and the like, she was under the clear impression that the appeal had been filed in time.
Result
[32] Although it is by a somewhat fine margin, I am of the view that the interests of justice here require that leave should be granted to this appeal proceeding out of time.
[33]An order is made granting leave accordingly.
[34] The Registrar is directed to list this appeal for call in three weeks’ time to check progress.
...................................................
Gendall J
Solicitors:
Elizabeth Bulger, Barrister, Christchurch Raymond Donnelly & Co, Christchurch