M v Police HC Auckland CRI 2005-404-396

[2006] NZHC 1278

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-396

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 August & 18 October 2006

Appearances: P T R Heaslip for Appellant

J L S Shaw for Respondent

Judgment:      24 October 2006

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 24 October 2006 at 1 pm pursuant to Rule540(4) of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

P T R Heaslip, Auckland

M V POLICE HC AK CRI 2005-404-396  24 October 2006

[1]      On 23 November 2005, on a plea of guilty, M  , a student from China, was convicted of assaulting in the early hours of 26 October 2005 the young woman with whom he was then living, Bei Hun Wang, also a student from China, using a kitchen knife as a weapon. He was sentenced that day to 80 hours community work and ordered to pay $250 reparation.

[2]      M   appeals both his conviction and sentence. Handicapped by a poor command  of  English,  he  says,  he  entered  his  plea,  not  understanding  that  a conviction would follow, or what that  meant. He was told, he says, that he might merely have to pay a cash sum. Compounding that, he says also, he was not accorded his right to trial by jury and was dealt with summarily by default. His answer to the charge would have been, and is still, that he acted in self defence.

[3]      Complicating    M  ’s appeal is that before his counsel entered his plea she had his authority in writing to do so. On the caption sheet setting out the facts on which he was charged he signed, by a Chinese character, this instruction in his counsel’s handwriting:

I    M  , instruct my counsel … to enter guilty plea to the charge assault with weapon. I do this in the knowledge that I have a defence available to me and have been advised by my counsel of the penalties facing me today.

The eventual issue is then whether he understood, in a literal sense, what he was acceding to or its significance.

[4]      If the appeal is granted and    M   is allowed to vacate his plea and defend the charge, that will likely be an end to it. Bei Han Wang has returned to China. She has also, so it is said, sent a faxed letter to a friend of    M  , Yue Zhang, in which she confirms that she and    M   quarrelled on 26 October 2005 but that her complaint of assault was false or exaggerated.

Context

[5]      The assault with which    M   was charged is said to have occurred in the early hours of 26 October 2005 at the flat he and Bei Han Wang were then sharing.

Her complaint is set out in the statement of facts on the basis of which    M   was sentenced. It was this:

On Wednesday the 26th of October 2005 at approximately 3.30am the Defendant    MA was in his apartment of 1207, level 12, 135 Hobson Street, Auckland City.

The Defendant began to have a verbal argument with his girlfriend Bei Han

WANG who is the victim in this matter.

MA Snatched the cellphone out of her hand and threw it on the floor and stood on it with his foot.

The argument got worse and the victim wanted to leave the apartment but

CHAO would not let her leave and pushed her on the bed.

When the victim WANG stood up the Defendant slapped her with an open palm to her face about five times.

The Defendant pushed her to the ground and ripped two necklaces off her neck before jumping on top of her and placing two hands on her face.

The Defendant has then said [sic] ‘shut up or I will kill you’ and then he placed a pillow over her face.

The victim lashed out with her foot in an attempt to escape, the Defendant got off the victim and went to the kitchen and uplifted two kitchen knives.

The Defendant once again pushed her back down on the bed with his elbows because he was holding the knives.

During this movement he was saying ‘I am going to kill you’, and he placed one of the knives to the victims neck.

The Defendant repeatedly said he was going to kill her before throwing the knives on the ground and getting off the victim.

The Defendant sat in front of the door and prevented the victim from leaving but eventually the victim escaped and went to a friend’s house and called the Police.

Police located the Defendant and arrested him and in explanation for his actions (he) stated that they had both been fighting.

The  victim  did  not  require  medical  attention  as  a  result  and  suffered scratches to her neck and upper chest area.

The Defendant is a 22 year old male employed as a Student. He has not previous appeared before the Court.

[6]      Relying on Bei Han Wang’s complaint made immediately after, the police charged    M   and he appeared in the Auckland District Court that morning

represented by the duty solicitor. He was remanded without plea to 9 November to take advice and to enter his plea. He was released on bail on condition that he not have any contact with Bei Han Wang.

[7]      On 9 November    M  ’s counsel, whom he had by then instructed, quite when  and  how  is  unclear,  obtained  a  second  remand  for  plea,  this  time  to  23

November. On 15 November, however, when it had become apparent that he and Bei Han Wang had been in contact, as he says because she wanted that, he appeared for breach of bail and his counsel obtained a renewed remand on bail. On 23 November his counsel, acting on his ostensible instructions in writing, entered his plea for him without electing, though it was implicit, the Court’s summary jurisdiction. The Judge in recording the plea did not elicit or record any election either.

[8]      The facts were then read out by the police prosecutor. Before that happened the Judge noted that an interpreter was present. The record is silent but    M   has confirmed  in  evidence  that,  though  he  could  not  hear  the  summary  in  English because it was read quietly, the interpreter did translate it for him. The Judge was then given a copy of Bei Han Wang’s victim impact statement the essence of which is this:

As a result from (sic) this assault I have several scratches on my neck and face. I also feel very dizzy and have a severe headache due to being slapped around my head.

I am  very  scared  as  I thought  he  was  going  to  kill  me.  We  have  had arguments previously but it has never been like this one.

I am very upset about everything that has happened tonight as I do not have my family here to support me.

I tried to leave for him to cool down but he would not let go.

He has damaged various items of clothing, shoes and accessories which will have to be replaced.

[9]      The Judge said that she would sentence    M   that day if she could obtain a stand-down report and that proved to be possible. The interpreter assisted    M   when he was interviewed.

[10]     The pre-sentence report confirmed that    M  , a student from Shanghai, China, had come to New Zealand at the beginning of 2005 (in fact towards the end of 2002) to complete a Diploma of Business Studies, and intended to complete a degree, that he had known Bei Han Wang for about six months before the incident on 26 October 2005, and that since the incident she had continued to contact him. He did not know where she was living; he regarded their relationship as over.

[11]     The report recorded that    M   accepted the statement of facts in main part. Ben Han Wang, according to the report, had come home at 3 am without saying why she was so late. When her cellphone rang and    M   answered the caller claimed also to be in a relationship with her. When Bei Han Wang returned the call and reassured the caller that she and    M   were not in a relationship,    M   became upset. He had been meeting her rent and living expenses and had paid for some of her clothes. He did not deny that he had assaulted her. But, he said, she had assaulted him first breaking a metal chain around his neck. Nor, he said, was that the first time she had done so. It was the first time that he had responded.

[12]        M  , the report confirmed, had no convictions in New Zealand. He was at low risk of further offending. He was not thought violent. Nor had alcohol or drugs been a factor. The pressure of end of year exams could have contributed. He was remorseful. But he had described earlier seemingly close to violent incidents and appeared unwilling to face up to the underlying issues. To mark the gravity of the offence community work was recommended as the least proper penalty.    M   had said also that he was willing to pay a small sum to Bei Han Wang as an earnest of remorse. He had no funds but such a payment was still recommended. Supervision was not.

[13]      M  ’s counsel asked the Judge whether she accepted the sentence recommended. When the Judge said that she did his counsel made no submission. The Judge, after adverting to the report, but also without saying more imposed the sentence recommended.

Appeal after plea

[14]     Once  a  guilty plea  is  entered,  after  advice  from  and  in  the  presence  of counsel, and a conviction is entered and sentence imposed, only exceptionally will an appeal against conviction or sentence have any prospect of success: R v Stretch [1982] 1 NZLR 225 (CA), R v Ripia [1985] 1 NZLR 122 (CA); R v Le Page (CA

297/04, 411/04, 495/04, 28 April 2005).   In that last case, at para [16], the Court said:

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.

[15]     A miscarriage of justice, the Court said at para [17], will most usually arise when there is a misunderstanding as to the plea:

… where the appellant did not appreciate the nature of , or did not intend to plead guilty to, a particular charge.  These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake.

But where the  appellant  was  represented  any such  radical  misapprehension,  the

Court added, will be hard to sustain.

Grounds of appeal

[16]     On this appeal    M   contends, firstly, that his plea was no plea at all, because he was not given the opportunity to make an election as to jurisdiction. His plea was a nullity incapable of being cured under s 204 of the Summary Proceedings Act 1957. In failing to elicit and record an election as to jurisdiction, the Court could also be understood, he contends, to have erred in law in accepting the plea.

[17]     Secondly,    M   contends, if the plea was not a nullity, he entered it under a fundamental misunderstanding and had no intention of admitting guilt. Correlatively, had the matter gone to hearing he would have been entitled to rely on self-defence and on that distinct basis his conviction is also unsound. And that is primary.

[18]     What significance the want of an election of jurisdiction on the plea has necessarily depends on how that issue is resolved. If    M   entered his plea intending to do so and without any misunderstanding he has suffered no prejudice by the election implicitly taken for him by his counsel and the Judge. That will be a

‘defect, irregularity, omission or want of form’, not leading to a ‘miscarriage of justice’, and capable of cure under s 204 of the Summary Proceedings Act 1957.

[19]     If, on the other hand, the plea was entered on a misunderstanding the want of election could be seen to have contributed to a miscarriage. But that adds nothing. Whether there was any want of understanding, and why that was, is the essential issue.

Advice before plea

[20]        M   contends that before he entered his plea on 23 November 2005, his counsel told him that if he pleaded guilty he might have to pay some money but there would be no conviction. She did not explain to him that he had a right to elect trial by jury or what that connoted. He was very surprised when he was sentenced as he was after being convicted. Only then, he says, did he find out from the interpreter what the significance of his conviction was, and he then became concerned also that it might jeopardise his visa.

[21]        M  ’s counsel, who recalls acting for him only with difficulty and kept no filenote on which she could rely, recalls nevertheless that his command of English was good. She was confident that he understood her and that he did not need the services of an interpreter. Had he asked for one she would have arranged for one.

[22]     She recalls going through with him the summary of facts. He was, she recalls, concerned that Bei Han Wang had assaulted him but he did not otherwise question what was said. He could enter a not guilty plea, she told him, and defend the charge on the basis that he had acted in self defence. Or, if he wished to enter a guilty plea, he could still enter a not guilty plea and obtain a status hearing, undergo an anger management programme beforehand, receive a sentence indication and then vacate

the plea. She recalls explains to him the likely sentencing options, including reparation for medical expenses incurred, but not that he could avoid a conviction.

[23]     He wished, she said, to maintain his relationship with Bei Han Wang and wanted to resolve the charge by guilty plea on 23 November. She advised him that he would be better to do an anger management course beforehand but he was adamant. So she asked him to sign the summary of facts confirming her instructions. She accepts that she did not elect summary jurisdiction and cannot recall whether she explained to    M   his choice of jurisdiction beforehand. She may not have, her evidence is, because he intended to plead guilty.

[24]     After sentence, when    M   was in custody to complete the papers setting out his work order, his counsel, concerned about his continuing status in New Zealand, recommended that he see a particular lawyer who specialises in that area of law. The day following sentence, his counsel recalls,    M   telephoned her. He had spoken, he said, to Bei Han Wang who now wished to retract her complaint. His counsel explained that she could not then act for him as she might herself be a witness.

Conclusions

[25]     On the face of the record    M   may appear to have no recourse on this appeal. On his then counsel’s evidence he was advised as to what his options were and, it is undeniable, he confirmed in writing to her what his plea was to be. I am left, however, in a state of disquiet.

[26]     Even though    M   has lived in New Zealand since the end of 2002, English is not his first language, and his command of the language and the concepts inherent in it is not to be assumed. This, moreover, was his first appearance before any Court, certainly any Court in New Zealand, and our system of justice must be assumed to be one with which he is not in any intimate sense familiar. Nor can the options as to plea his counsel then put to him have been easy to assimilate.

[27]     There was first this complexity, that he admitted to assaulting Bei Han Wang, but only after she had assaulted him, and not with a weapon, though knives had played some part in the incident. Whether the charge was apt was an issue in itself. Then there were the options which his counsel put to him as to plea which ranged from defending the charge outright, to entering a not guilty plea to obtain a status hearing and a sentence indication, to the plea he made. These choices too have their subtleties.

[28]     Finally, the time within which    M   had to consider what his plea was to be  was  compressed  and  the  circumstances  less  than  ideal.  His  counsel  recalls speaking to him twice, once for ten minutes at her office and then for perhaps 20 minutes at court, in an interview room, the day he entered his plea. He recalls shorter spans  and  the  critical  discussion  happening in  the  foyer  outside  the  courtroom. Whichever account one prefers the time was just too short, and if    M   is to be preferred, in a highly distracting context.

[29]     I cannot escape the conclusion that    M  ’s counsel, speaking easily of choices with which she was familiar, and    M  , struggling to come to terms with choices with which he was not, may well have misunderstood each other. I accept then his evidence that he did not understand the significance of his plea to the charge as it was, or the consequences of conviction, until he spoke to the interpreter afterwards.

[30]        M  ’s appeal is allowed, his conviction and sentence are set aside, he is given leave to vacate his guilty plea and substitute a plea of not guilty and the case is

remitted to the District Court for rehearing on a defended basis.

P.J. Keane  J