Lockett v Police
[2017] NZHC 88
•7 February 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2016-488-000042
CRI-2016-488-000044 [2017] NZHC 88
IN THE MATTER OF an appeal against conviction BETWEEN
JAMIE BEATTIE LOCKETT Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 12 December 2016
[Further evidence filed 27 January 2017]
Appearances:
J B Lockett (Self-represented Appellant) in Person
M B Smith for the RespondentJudgment:
7 February 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 7 February 2017 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Marsden Woods Inskip Smith, Whangarei
Copy To: J B Lockett, Opua
LOCKETT v POLICE [2017] NZHC 88 [7 February 2017]
Introduction
[1] Mr Lockett pleaded guilty to three charges of “speaks threateningly” and one charge of assault on 16 December 2014. Mr Lockett now appeals his convictions on the grounds he pleaded guilty “under duress”; he has a defence to the charges; and he has fresh evidence to present on appeal.
The offending
[2] Mr Lockett acts as an informal property manager for Mr Phillips, the owner of eight properties in English Bay, Opua.
[3] The assault and one of the “speaks threateningly” charges arises out of events on 27 August 2014. The complainant (Mr Helps) had visited the tenant of a property owned by Mr Phillips and had stayed the night. Mr Helps was still present at the address the next morning and was seated at the kitchen table.
[4] Mr Lockett and Mr Helps were known to each other. Mr Lockett was convicted of common assault against Mr Helps in May 2014. He was sentenced to come up for sentence if called upon for a period of six months. The subject offending was within that six month period.
[5] Mr Lockett arrived at the house and, without announcing himself, opened the ranch slider, pulled open the curtains, and entered the dwelling. He walked directly to Mr Helps and thrust a sheet of paper at him which purported to be a trespass notice. He then took hold of Mr Helps by the collar of his shirt and pulled him backwards. This forms the basis of the assault charge.
[6] Mr Helps got up and left the house. Mr Lockett followed him out on to the road. The summary of facts records Mr Lockett saying: “Get out of here, don’t come back. If you come back I’ll manhandle you. You won’t know what hit you”.
[7] Mr Lockett became aware that the police had been called to the property and got into an associate’s vehicle to leave. Mr Lockett was discovered in the boot of that car when it was subsequently stopped. Mr Lockett says that the reason he was
in the boot of the car was that he urgently needed to complete a job at the
Oyster Factory.
[8] The remaining charges relate to another victim, Mr Shepherd. Mr Shepherd had recently moved into one of the dwellings managed by Mr Lockett. One evening between 18 and 22 August 2014, Mr Shepherd and Mr Lockett were at a party on the beach at English Bay. Mr Lockett approached Mr Shepherd and said to him: “I will kill you, I will fucking kill you if you ever cause trouble around here”. Mr Lockett continued to make threats as Mr Shepherd turned and walked away.
[9] On 19 August 2014, Mr Shepherd was at his place when Mr Lockett arrived. Mr Lockett indicated to Mr Shepherd that he did not like dogs. Mr Shepherd’s dog was tied up at the time and the summary of facts records that there had not been any previous complaints of the dog being unrestrained. Mr Lockett told Mr Shepherd that he was going to pour petrol over the dog and set it alight. Mr Shepherd did not respond and Mr Lockett eventually left.
Entry of guilty pleas
[10] When Mr Lockett first appeared in court, he was charged with assault, threatening to kill, and speaks threateningly. He also faced an alternate charge of burglary for the offending against Mr Helps. Mr Lockett was refused bail on
2 September 2014. He elected trial by jury on 22 September 2014.
[11] Mr Lockett came back to court on 16 December 2014. On that day he was seen by Ms Murray in her capacity as Duty Solicitor. Ms Murray is an experienced lawyer who practices as a criminal defence barrister. Ms Murray has sworn an affidavit setting out her recollection of events that day. Mr Lockett provided a written waiver of privilege to allow that to occur.
[12] On 16 December 2014, Ms Murray was in court when Mr Lockett appeared for himself. Although she was not scheduled to be a Duty Solicitor that day, the presiding Judge nevertheless asked her to speak to Mr Lockett and offer advice on the charges he faced.
[13] Ms Murray recalls speaking to Mr Lockett for approximately six to 10 minutes in the court cells. She recalls giving advice to Mr Lockett as to the rights of landowners and their agents to evict people from their property. She says she explained to Mr Lockett that if he was appointed an agent by a landlord then he had the right to evict someone on their behalf, as long as he followed the law applicable to tenancies.
[14] Ms Murray also advised Mr Lockett that bail would be opposed. Ms Murray says that Mr Lockett was very upset at the time and was anxious to get out of jail. The police prosecutor had offered a plea resolution whereby Mr Lockett would plead guilty to the speaks threateningly charges and the assault charge; the threatening to kill charge would be amended to a third speaks threateningly charge to which he would also plead guilty; and the alternate burglary charge would be withdrawn.
[15] Ms Murray explained that offer to Mr Lockett. She advised him that if he pleaded guilty to those reduced charges he could be dealt with immediately. If he maintained his guilty pleas, he might still be denied bail, and would be remanded in custody. Ms Murray’s view was that the compromise was the best avenue for Mr Lockett and she advised him accordingly. He ultimately accepted her advice and decided to plead guilty to the reduced charges.
[16] Ms Murray then requested that Mr Lockett sign the summary of facts and the charge sheets. Ms Murray said she noticed Mr Lockett had added the words “under duress” next to his signature. She says she looked over at Mr Lockett, who simply smiled, and handed her back the papers.
[17] When Mr Lockett’s case was called again, he entered guilty pleas to the amended charges. Mr Lockett was sentenced by Judge Davis in the District Court immediately. He received one month imprisonment for each of the three speaks threateningly charges, and two months on the assault charge. Due to the time already spent in custody, Mr Lockett was immediately released upon sentence.
[18] On 29 June 2015, Mr Lockett made an application for a retrial of the convictions that are the subject of this appeal. Mr Lockett argued that the guilty pleas that he had entered on 16 December 2014 were entered under duress.
[19] Judge Davis considered the affidavit evidence filed in support of the application for the retrial. He took the view that all of the matters canvassed in that evidence would have been considered during the discussion on the resolution of the charges. This suggested to the Judge that Mr Lockett was not under duress at the time he entered his pleas. He therefore concluded that it was not in the interests of justice that a retrial be ordered by the Court and it was accordingly declined.
[20] On 13 September 2016, Mr Lockett filed a notice of general appeal against the convictions. The grounds of appeal are:
(a) that he pleaded guilty under duress;
(b) that he has a defence to all charges; and
(c) he has fresh evidence to present on appeal.
Extension of time
[21] Mr Lockett’s appeal is filed well outside the 20 working days’ timeframe, and an extension of time is therefore required.1 Some of the delay is explained by the pursuit of a retrial application rather than an appeal against conviction in the first instance. Further delay was incurred between Mr Lockett’s filing of the application and the hearing of that application before Judge Davis. Efforts to locate and retrieve the documents which Mr Lockett says he signed “under duress” also explain some of
the delay. The police do not oppose an extension of time in the circumstances, and I
grant it accordingly.
1 Criminal Procedure Act 2011, s 231(2).
[22] In the case of a Judge-alone trial, an appeal court must allow an appeal against conviction if satisfied that the 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.2
[23] It is only in exceptional circumstances that an appeal against conviction will be entertained following the entry of a guilty plea. An appellant must show that a miscarriage of justice will result if the conviction is not overturned.3 Further, where an appellant has fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot be impugned.4
[24] In R v Le Page, the Court of Appeal identified three broad categories of cases where a miscarriage of justice may arise notwithstanding a guilty plea: (a) where the appellant did not appreciate the nature of the guilty plea, or did not intend to plead guilty; (b) where on the admitted facts the appellant could not in law be convicted of the offence charged; or (c) where it can be shown that the plea was induced by a
ruling which embodied a wrong decision on a question of law.5 A further category
was identified in R v Merrilees: (d) where trial counsel errs in the advice given as to the non-availability of certain defences or potential outcomes.6
[25] The fourth category will apply where counsel has acted wrongly or negligently to induce a defendant to plead guilty on the mistaken belief that no tenable defence exists or can be advanced. However, mere assertions of a possible defence are not enough; a real case for the defence must be established on appeal.7
In addition, where an appellant, knowing the existence of possible defences, makes
an informed decision to plead guilty, no miscarriage will have occurred.8
2 Criminal Procedure Act 2011, s 232(2)(b)–(c).
3 R v Merrilees [2009] NZCA 59 at [33]; R v Proctor [2007] NZCA 289 at [4]; and R v Le Page
[2005] NZLR 845 (CA) at [16].
4 R v Proctor, above n 3, at [7].
5 R v Le Page, above n 3, at [17]–[19].
6 R v Merrilees, above n 3, at [34].
7 Nixon v R [2016] NZCA 589 at [9] and [11].
8 Penniket v R [2016] NZCA 154 at [8].
[26] Mr Lockett’s primary ground of appeal is that he was acting under duress when he entered his guilty pleas. Mr Lockett says he understood that he was facing another 12 months in prison before trial. He argues that he had no real choice but to plead guilty in order to get out of prison in time for Christmas.
[27] Mr Lockett was clearly under some pressure in deciding whether to plead guilty to the reduced charges, or maintain his not guilty pleas. Such pressure is not unusual in the circumstances. I do not consider the pressure to be improper or excessive or of a nature which might suggest that a miscarriage of justice has occurred. Ms Murray properly advised Mr Lockett of his available options before he decided to plead guilty. He was fully informed of the consequences of each of those options. There was no undue pressure brought to bear on him by Ms Murray or anyone else to enter the guilty pleas. Despite writing the words “under duress” on the summary of facts and charges sheet, it was clear that the decision to plead guilty was made freely and with the benefit of advice from highly experienced and competent counsel.
[28] Mr Lockett’s second ground of appeal is that he has a defence to all charges. His focus in submissions was on the availability of s 56(1) of the Crimes Act 1961 as a defence to the assault charge. Although Mr Lockett admits to using force on Mr Helps, he says his actions were authorised by Mr Phillips and the force used was reasonable in the circumstances.
[29] Section 56(1) of the Crimes Act 1961 provides:
56 Defence of land or building
(1) Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.
[30] It is far from clear on the evidence before me that s 56(1) would provide
Mr Lockett with a real defence. Although Mr Lockett appears to have been acting
under the authority of Mr Phillips, it is not clear whether Mr Phillips was in “peaceable possession” for the purposes of s 56(1) given that the tenant was in fact in possession of the property.
[31] But even if “peaceable possession” could be established, it is doubtful that the force used by Mr Lockett to remove Mr Helps was “reasonable” in the circumstances. In Taueki v R, the Supreme Court held that in order for force to be considered “reasonable”, it will normally be necessary for the trespasser to have been given both notice, and the opportunity to leave.9 There is no evidence at all that Mr Lockett gave Mr Helps any opportunity to leave before grabbing him by the collar.
[32] At most, s 56(1) gives rise to a possible defence to the assault charge. That falls far short of the threshold required to establish that a miscarriage of justice has occurred.10 Further, Mr Lockett has not persuaded me that there are any real defences to the other charges, or that a miscarriage will result if the convictions are not overturned.
[33] The third ground of appeal advanced by Mr Lockett concerns alleged “fresh evidence”. That evidence is said to arise out of Mr Lockett’s cross-examination of Mr Shepherd during a Judge-alone trial on 2 June 2015. That trial concerned a charge against Mr Lockett of being in a building without reasonable excuse on
23 January 2015. It was alleged that Mr Lockett and Mr Phillips had gone on to the property tenanted by Mr Shepherd for the purpose of looking for items which Mr Lockett believed had been stolen from him. Although the Judge found the elements of the charge proved, he nevertheless held that Mr Lockett had successfully raised a defence of not intending to commit any offence whilst in the house. The charge was accordingly dismissed on 4 June 2015.
[34] Mr Lockett was unable to identify or describe the nature of the “fresh evidence” or how it related to the convictions the subject of appeal. Mr Lockett
submitted that the transcript of his cross-examination does not accord with his
9 Taueki v R [2013] NZSC 146 at [69].
10 Nixon v R, above n 7.
recollection of what was said. He has sought the audio of the proceeding. However, he was unable to point to differences between the transcript and his recollection of the cross-examination which would concern the convictions the subject of this appeal. In those circumstances I do not consider there to be any basis to retrieve the audio (even if it is still available). Mr Lockett has failed to persuade me that there is any fresh evidence which would suggest that a miscarriage of justice has occurred.
[35] Overall, I am not persuaded that Mr Lockett’s case is one of those exceptional cases where an appeal against conviction following the entry of a guilty plea should be entertained. A miscarriage of justice has not occurred. The appeal must accordingly be dismissed.
Result
[36] An extension of time to bring the appeal is granted. The appeal is dismissed.
Edwards J
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