Klyn v Police

[2015] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000299 [2015] NZHC 1128

BETWEEN

PATRICIA KLYN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 May 2015
Appearances:	J J Corby for Appellant L M Mills for Respondent
Judgment:	25 May 2015

JUDGMENT OF COURTNEY J [Appeal against conviction]

This judgment was delivered by Justice Courtney on 25 May 2015 at 4.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date..................................

KLYN v NZ POLICE [2015] NZHC 1128 [25 May 2015]

Introduction

[1]      Patricia Klyn seeks leave to appeal out of time against her 2008 convictions for shoplifting1 and common assault2.  The offending occurred in May 2007 and the convictions were entered following a guilty plea in January 2008.  She asserts that when she entered the guilty plea she was unaware that she had a defence to either or both of the charges.

[2]      The respondent opposes leave being granted and maintains that, in any event, there is no basis on which to bring the appeal.

Application for leave to bring appeal out of time

[3]      Ms Klyn has a long history of mental illness and has been under the care of mental health services on and off since 2003, having been diagnosed with schizophrenia.  In 2007, after the subject offending, she was admitted to a psychiatric unit.   She had follow-up care from a community health team in 2008.   She was admitted to hospital again in 2011, assessed twice by crisis staff in 2012 and discharged to her general practitioner in early 2013 due to a lack of engagement with mental health services.

[4]      In early 2014 Ms Klyn was found not guilty on a number of charges unrelated to the subject offending on the grounds of insanity.  The medical reports obtained at that point triggered consideration as to the safety of four previous convictions.  Two were quashed on the grounds of procedural unfairness and doubts over her fitness to plead at the time.  That left the convictions for shoplifting and assault that are the subject of the present appeal.

[5]      In these circumstances I am satisfied that there is a reasonable explanation for an appeal not having been advanced earlier and leave is granted to bring the appeal.

Appeal

Circumstances of the offending and guilty plea

1      Crimes Act 1961, s 219.

2      Summary Offences Act 1981, s 9.

[6]      The  offending  is  described  in  the  summary  of  facts  to  which  Ms  Klyn pleaded guilty.  Both offences occurred at a veterinary clinic to which Ms Klyn had taken her pet rabbit for treatment.  She was unhappy about the way the rabbit had been treated and became abusive towards the vet.  She left the premises when the vet called the Police but, before the Police arrived, returned and demanded a refund of the cost of the rabbit’s treatment.

[7]      The vet refused a refund and Ms Klyn refused to leave.  She sat down and continued to abuse the vet.  Then she got up, took two bags of kitty litter from the shelf in the clinic (value approximately $10) and tried to leave without paying, saying it was her right to do so.  The vet closed the door to prevent Ms Klyn leaving. Ms Klyn grabbed the vet’s wrist and threw her backwards against a window.  The vet suffered a minor strain to her wrist and mild swelling.

[8]      I note that Ms Klyn’s description of the events in her affidavit filed in support of the appeal is much less detailed.   In particular, the description of the assault is somewhat less serious.  However, the descriptions are not inconsistent and Ms Klyn does not dispute that summary of facts.

[9]      Consideration was given to diversion.   Ms Klyn explained in her affidavit that this was not implemented because she refused to apologise for her actions.  She says that she did not really understand the process and believed then, and now, that she was justified in the actions that she took.

[10]     Ms  Klyn  appeared  in  the  District  Court  five  times  in  2007  and  was represented by a duty solicitor each time.  There was a gap between her appearance in October and her guilty plea in January 2008, evidently as a result of her being unwell.  She was represented by a duty solicitor when she entered the guilty plea. She says that she was advised to plead guilty and that no one ever explained to her that she had a defence to the charges.

Principles relevant to appeal against conviction following a guilty plea

[11]     An appeal against conviction may be brought following the entry of a guilty plea.3     However, it is only in exceptional circumstances that such an appeal will succeed; the appellant must show that a miscarriage of justice will result if the conviction is not overturned.  In R v Le Page the Court of Appeal summarised the test:4

It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.  An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court of which R v Stretch [1982] 1 NZLR 255 and R v Ripia [1985] 1 NZLR 122 are examples.

[12]     It is generally recognised that a miscarriage of justice will be indicated in at least three broad situations.5  These are:

(a)      Where the appellant did not appreciate the nature of or did not intend to plead guilty to a particular charge.   In this situation the plea is regard as viciated by genuine misunderstanding or mistake.  However, where an accused is represented by counsel when the plea is entered it may be difficult to establish this element;

(b)Where, on the undisputed facts, the appellant could not in law have been convicted on the offence charged;

(c)      Where  the  plea  was  induced  by  a  ruling  that  embodied  a  wrong decision on a question of law;

(d)Where, as a result of counsel error, the appellant was induced to plead guilty in the mistaken belief that no tenable defence existed or could

be advanced.

3      Summary Proceedings Act 1957, s 115.

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

5      R v Le Page above at n 2; R v Merrilees [2009] NZCA 59 at [4]; T (CA246/2010) v R [2010] NZCA 486; Watts v R [2011] NZCA 41.

Did Ms Klyn have a defence to the charges?

[13]     Mr Corby advanced Ms Klyn’s appeal on the ground that she had a defence to the charges of claim of right.   He acknowledged that there was no evidence of what legal advice had in fact been given, though I accept that after so many years it is not practical to expect any of the duty solicitors, including the solicitor who advised Ms Klyn on the day she entered her guilty plea, to recall the advice that was given.   The appeal must turn on my assessment as to whether the defence that Ms Klyn now asserts has some substance; I do not need to be satisfied that it would

have had a good prospect of success.6

[14]     Under s 219 (1)(a) of the Crimes Act theft or stealing is the act of:

dishonestly and without claim of right, taking any property with intent to depive any owner permanently of that property or of any interest in that property …

[15]     In 2007 the expression “claim of right” was defined as:7

Claim of right, in relation to any act, means a belief that the act is lawful, although that belief may be based on ignorance or mistake of fact or of any matter of law other than the enactment against which the offence is alleged to have been committed.

[16]     An accused person asserting a claim of right must point to some evidential basis for that assertion before the Crown is obliged to exclude it beyond reasonable doubt.8   The belief referred to in the definition of claim of right is a subjective belief; it does not need to be reasonable nor be based on reasonable grounds.9    The reasonableness of the belief may, however, be a factor in determining whether the

asserted belief was, in fact, held.

[17]     I  consider  that  the  summary  of  facts  to  which  Ms  Klyn  pleaded  guilty discloses an evidential foundation for a claim of right defence.  She asserted at the time that she was entitled to take the kitty litter because she believed the vet owed

her $130.  I note that in a subsequent psychiatric report Ms Klyn is reported to have

6      Cooper v R [2013] NZCA 552 at [19]-[21].

7      Crimes Act 1961, s 2(1).

8      Brown & Edney v Police (1984) 1 CRNZ 576 (HC) at 578.

9      R v Hayes [2008] NZSC 3, [2008] 2 NZLR 321 at [35].

acknowledged that taking the kitty litter in lieu of the refund was probably “not right”.  However, it is difficult to know whether that is an acknowledgement made with the benefit of further reflection and, possibly, at a time when her mental state was rather different.  I am satisfied that on the facts that existed at the time she was charged there was an evidential foundation for that assertion.

[18]     I am not, however, satisfied that Ms Klyn had any defence available to the assault charge.  Section 53(1) does permit the use of reasonable force in the defence of possessions, including where the person is acting under claim of right to the possession,  but  the facts  of this  case would  not  support  the application  of that defence.  Section s 53(1) provides that:

Everyone in peaceable possession of any movable thing under a claim of right, and everyone acting under his authority, is protected from criminal responsibility for defending his possession by the use of reasonable force, even against a person entitled by law to possession, if he does not strike or do bodily harm to the other person …

[19]     In terms of striking within the meaning of s 53, a proportionate pushing, shoving, fending off or obstructing which results in bodily contact is permissible10 as long as the force is reasonable.  Injuries such as minor bruising will be acceptable.11

However, harm that is more than “merely transitory and trifling” will not be justified

under s 53.12

[20]     The summary of facts show that Ms Klyn was not attempting to protect the kitty litter.  She was trying to leave the clinic and her assault on the vet could hardly be described as reasonable for that purpose in any event.   Nor could Ms Klyn’s subsequent assertion that she was entitled to defend herself by pulling the vet out of the way have justified that assault on the vet because the force used would clearly

not have been justified.

10     Hastings v Police HC Whangarei AP24/01, 19 July 2001 at [30].

11     Ruwhiu v Police HC Auckland CRI-2008-404-259, 22 December 2008 at [18].

12     Kapene v Police [2014] NZHC 41.

Result

[21]     The appeal against conviction for shoplifting is allowed and that conviction is quashed.  I was not addressed on the issue of a retrial and, in the circumstances do not make an order that there be a retrial.

[22]     The appeal against conviction for assault is dismissed.

P Courtney J