Johnson v Police - [2018] NZHC 430

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…

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 430
Case: [2018] NZHC 430
Decision Date: 14 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Johnson v Police was heard and decided on 14 March 2018. Michelle Annette Johnson, the appellant, contested her conviction and sentence imposed by Judge Brandts-Giesen in the District Court at Christchurch on 23 September 2016. The appellant had pleaded guilty to using a document for pecuniary advantage and was sentenced to 50 hours of community work and ordered to pay $730 in reparation at the rate of $20 per week. The appeal raised several grounds, primarily concerning the conduct of her lawyer in the District Court, the pressure the appellant felt to enter a guilty plea, and the judge's refusal to grant an adjournment. The appellant maintained that she had a possible defence to the charge, which was not properly considered due to the pressure she felt and the alleged inadequate advice from her trial counsel.

The primary legal issue before the court was whether to grant leave for the appellant to proceed with her appeal, which had been filed 10 months out of time, contrary to the 20 working days prescribed by section 231(2) of the Criminal Procedure Act 2011. The appellant's counsel argued that the interests of justice outweighed any further delays and costs involved in taking evidence from London via audio-visual link (AVL). The respondent opposed the application, contending that the appeal had no merit and that the appellant had made an informed decision to plead guilty.

The court considered the delay in filing the appeal and the appellant's explanation that she believed the appeal had been filed in time. The court accepted that the appellant had dealt effectively as an unrepresented appellant during the delay and that she had a reasonable belief that her appeal had been filed by counsel. Regarding the merit of the appeal, the court acknowledged that it was difficult to comment on the merits at that point but decided that the interests of justice required allowing the appellant to advance her appeal, particularly to explore and test the advice she received.

The court granted leave for the appeal to proceed out of time, directing the Registrar to list the appeal for call in three weeks' time to check progress.

Orders