Malster v Police
[2020] NZHC 1444
•24 June 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-000043
[2020] NZHC 1444
BETWEEN REBEKKA JOANNE MALSTER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 June 2020 (at Rotorua) Appearances:
A A R Pell for the Appellant
A S Alcock for the Respondent
Judgment:
24 June 2020
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 24 June 2020 at 4.00 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
A A R Pell, Hamilton Crown Solicitor, Hamilton
MALSTER v R [2020] NZHC 1444 [24 June 2020]
Introduction
[1] On 16 March 2020, the appellant, Ms Malster, was convicted of one charge of common assault in the Hamilton District Court by Judge Marshall. She was discharged on another charge – also of common assault.1 On the same day, Judge Marshall entered a conviction against Ms Malster, and sentenced her to 80 hours’ community work.2
[2] Ms Malster has filed a notice of appeal against both conviction and sentence. The appeal was filed out of time, through no fault of Ms Malster or her counsel, but rather because of the lockdown due to the COVID-19 crisis. Ms Alcock, for the Crown, did not oppose an extension of time, and the same is granted.
[3] Ms Malster asserts that trial counsel erred by failing to advance an application for a discharge without conviction on her behalf. It is said that had such application been made, it would likely have succeeded, because the entry of a conviction impacts significantly upon Ms Malster’s ability to earn an income from operating a passenger vehicle service and providing driver training services.
[4] It was argued on behalf of the Crown that there was no trial counsel error, that a discharge without conviction was, in effect, sought, and that there has been no miscarriage of justice because a discharge without conviction would not have been granted in any event.
Background facts
[5] Ms Malster was contracted to an entity known as the Settlement Centre, Waikato, which is based in Hamilton. It assists refugees and migrants coming into New Zealand to settle in the Waikato region. Ms Malster was contracted as a driving instructor. She assisted the refugees and migrants to obtain drivers licences. She was paid a fee for this work. In addition, Ms Malster works as a bus driver and in the provision of other transport related services.
1 Police v Malster [2020] NZDC 8316.
2 Police v Malster [2020] NZDC 8302.
[6] There were concerns about Ms Malster’s services and in March 2019, the Settlement Centre sought to terminate her contract. Representatives of the Centre discussed the matter with Ms Malster. The situation became tense. Ms Malster decided to leave and she went into an open plan area and gathered up her belongings. She then attempted to leave the building.
[7] Staff at the Settlement Centre believed that Ms Malster was taking files that belonged to the Centre. A door was closed by someone. Ms Malster thought that the door was being closed to prevent her leaving. Other staff said that the door was closed to keep the noise down so those in the reception area would not hear what was going on. The first complainant stood in front of the closed door. She said that Ms Malster came towards her carrying a cardboard box with various items in it and pushed her in the stomach with the cardboard box. Ms Malster denied this. She said that someone opened the door and that she tripped going out of the room, spilling the items in the box into the reception area.
[8] After the spilled items had been picked up, Ms Malster went out to her car. Various staff members followed her. Ms Malster put the cardboard box in her boot. The second complainant grabbed some of the items out of the box. There were conflicting allegations about what happened next. The police alleged that Ms Malster became angry and that she briefly pinned the second complainant up against the outside wall of the building with her forearm. Ms Malster said that she did not assault anyone. In any event, the altercation died down and Ms Malster drove off.
[9]As a result of these events, Ms Malster faced two charges of common assault
– one relating to the incident with the cardboard box in the office, and the other relating to the incident in the carpark.
[10] Judge Marshall was not satisfied beyond reasonable doubt that the charge in relation to the first incident was made out. He considered that it was a reasonable possibility, given the shock and confusion that everybody was experiencing, that Ms Malster could have tripped whilst carrying the box, and that the box could inadvertently have come into contact with the first complainant. In relation to the incident in the carpark, the Judge preferred the evidence of the three witnesses called
by the police. He considered that Ms Malster had intentionally used her forearm to pin the second complainant to the wall and he found the second charge proved beyond reasonable doubt.
[11] There was then a brief discussion between counsel, David Venter, and the Judge about sentencing. The Judge indicated that he was looking at an emotional harm payment. Counsel asked if that implied “a possible 106”. The Judge responded as follows:
No, I would not be contemplating that on a not guilty basis. That would be a very hard hurdle to overcome Mr Venter. The – I would think that remorse and acceptance of responsibility and accountability would be one of the important things when considering that.
Counsel then requested a brief adjournment so he could discuss the issue with Ms Malster. The Judge responded:
Yes, you can and I mean there is no bar to you bringing one before me. But the reality is on a 106 that accountability and acceptance of responsibility are one of the more important aspects I think, okay?
The Court then adjourned and counsel had a brief discussion with Ms Malster. I turn to the detail of that discussion shortly.
[12] When the hearing resumed, the Judge proceeded to sentence Ms Malster. He entered the conviction. He recorded that his preference would have been to order an emotional harm payment in favour of the second complainant, but that because Ms Malster could not afford to make such a payment, this was not appropriate. He considered that a suitable alternative sentence was one of community work. He recorded that he was keeping the hours down to “a reasonably modest number”, because Ms Malster had little by way of previous convictions and nothing relevant to the conviction for common assault. He sentenced her to 80 hours’ community work.
The appeal
[13] As noted, the appeal is against conviction and sentence. It was brought pursuant to ss 232 and 244 of the Criminal Procedure Act 2011. Section 232 deals with appeals against conviction. It provides that the first appeal court must allow the
appeal if it is satisfied, inter alia, that a miscarriage of justice has occurred for any reason.3
[14] Mr Pell, for Ms Malster, discussed whether an appeal against a refusal to grant a discharge without conviction under s 106 of the Sentencing Act 2002 is an appeal against conviction or sentence. This issue has been resolved by the Court of Appeal. An appeal against a refusal to discharge a defendant without conviction is properly characterised as an appeal against both conviction and sentence.4 I do not however consider that this matters in the present case. The Judge did not refuse to discharge Ms Malster without conviction, because no application for a discharge without conviction was made. All the Judge did was signal his preliminary view that any application might face difficulties.
[15] Ms Malster appeals her conviction on the ground of trial counsel error. She says that counsel failed to seek a discharge without conviction, notwithstanding that he knew that she considered that the consequences of a conviction would be very significant for her. She says that as a result the conviction was entered in error, as was the subsequent sentence imposed.
[16] Where trial counsel error is alleged, two issues arise – first, did trial counsel err, and secondly, if an error was made, is there is a real risk that it affected the outcome. If there is a real risk that an error affected the outcome, then there will have been a miscarriage of justice, and that is the statutory ground of appeal.5
[17] If there is a real risk that the error affected the outcome, the appeal will be allowed, with the result that the sentence appeal will not require consideration.6 If the conviction appeal fails, then there is no independent challenge to the sentence imposed and the sentence appeal again does not require separate consideration.
3 Criminal Procedure Act 2011, s 232(2)(c).
4 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]; Ovtcharenko v Police [2017] NZCA 65 at [5].
5 Criminal Procedure Act 2011, s 232 (4)(a). R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [7]-[9] per Elias CJ, [45], [49], [58], [64]-[66], [69]-[70] per Gault, Keith and Blanchard JJ, and [110]-[112], [115] and [118] per Tipping J; R v Scurrah CA159/06, 12 September 2006 at [17]; In the context of a failure by counsel to apply for or properly advise about a discharge without conviction, see Chand v Police [2017] NZHC 2188; Carroll v Police [2018] NZHC 2930.
6 Jackson v R, above n 4, at [13]-[15].
Counsel error?
[18] Ms Malster filed an affidavit making various allegations about the way in which Mr Venter handled her case. By way of example, she said that the only time she spoke to him was about 20 minutes before the trial was due to start. She referred to the trial and said that, after the Judge found her guilty of one charge, she and Mr Venter were allowed time to discuss matters. She said that she told Mr Venter that she did not want a criminal record because she was concerned that it would affect her accreditation as a driving instructor, and affect endorsements she had on her licence permitting her to drive passenger vehicles. She said that Mr Venter told her that, in his view, the offending was too serious and that any application for a discharge without conviction would not succeed. She said that Mr Venter made it “absolutely clear” that he was not going to ask for a discharge without conviction.
[19] Ms Malster did not initially grant a waiver permitting Mr Venter to speak to the Crown. It was however granted on 1 June 2020, and Mr Venter filed an affidavit. He said that he had numerous discussions with Ms Malster prior to the trial to discuss the charges. He also said that she attended at his office, sometimes without an appointment, to discuss matters. He accepted that he was aware of her concern that a conviction might impact on her ability to work as a driving instructor. He said that, for this reason, he asked for a sentence indication. He noted that Ms Malster did not take the sentence offered, and the matter went to trial. He said that, after the trial, he sought an adjournment before any sentence was imposed to discuss with her the Judge’s finding and its consequences.
[20] Given the conflicting evidence, I heard viva voce evidence from Ms Malster, her support person, Stuart Tomuri and Mr Venter.
[21] Mr Malster largely repeated her initial version of events. She initially asserted that Mr Venter never sat her down and discussed with her the consequences of a conviction. However, she accepted, in cross-examination, that there had been a discussion or discussions, but “not in a way that I understood”. Despite what she had said in her initial affidavit, she also accepted that she had phone discussions with Mr Venter about the charges, and that she had dropped paperwork prepared by her
into his office. She accepted that she heard the discussion between Judge Marshall and Mr Venter which I have set out above. When it was put to her that Mr Venter sought a brief adjournment so that he could take her instructions, she said “well, he didn’t take instructions. He forcefully told me what he wasn’t going to do and … applying for it was something he was not going to do”. When it was put to her that she did not provide Mr Venter with instructions to make application for a discharge without conviction, she responded “I am not of the law. I don’t understand what is required for these things”.
[22] Mr Tomuri was both in Court and in the interview room with Mr Venter and Ms Malster during the adjournment. He admitted that he wasn’t really focusing on what was being said, but he remembered Ms Malster saying, “I cannot afford to have a conviction” and Mr Venter banging his hand on the table and saying, “I’m not applying for one”.
[23] Mr Venter said that he had numerous discussions with Ms Malster, both in person and by phone prior to the hearing. He said that he understood, from May 2019 at the latest, that she was worried about the impact of a conviction. He said that it was however difficult dealing with her because she strongly denied the offending. A sentence indication was sought but it was not taken up. Mr Venter accepted in cross- examination that he did not make application for a discharge without conviction at this stage. He said, “my position is that at that point, counsel don’t apply for – make those applications”. He said that, following the trial, he raised the possibility of a s 106 application with the Judge because he was aware that Ms Malster had concerns about a conviction. He said that he raised it to “get a steer on whether it was something he [the Judge] would consider”. He said that in the interview room during the adjournment, Ms Malster reiterated that she couldn’t afford to have a conviction and that he told her that it was unlikely that any application would succeed. He denied saying that he told he wouldn’t make an application. Rather, he said that he told her any application was unlikely to be granted and that he couldn’t see the point in making one. He said that Ms Malster did not instruct him to make an application. He accepted in cross-examination that he could have sought to adjourn the sentencing to give him time to file an application for a discharge without conviction. He said that he didn’t do so because of the view expressed by the Judge.
[24] In response to questions from me, Mr Venter accepted that the position could be summarised as follows – Ms Malster didn’t give him instructions to make application for a discharge without conviction; nor did she give him instructions not to do so, but she did reiterate the importance to her of not having a conviction entered against her.
[25]I turn to assess this evidence.
[26] In my view, Ms Malster tended to exaggerate matters. I accept counsel’s evidence that Ms Malster did contact him on more than one occasion prior to the trial. I note that Mr Venter annexed to his affidavit extensive typed notes prepared by Ms Malster referring to the evidence which had been disclosed in some detail. While she initially asserted that she was not advised about the consequences of a conviction, she later resiled from this assertion.
[27] I do not consider that counsel erred by not making application for a discharge without conviction prior to the sentence indication. Indeed, I doubt that he could have done so. Section 106 of the Sentencing Act provides that if a person charged with an offence is found guilty or pleads guilty, then the Court can discharge the offender without conviction. In my view, counsel cannot be criticised for not making application prior to his client either being found guilty or pleading guilty. The sentence indication given was however significant. Judge Connell indicated that Ms Malster could deal with the matter by making a donation to the Settlement Centre.7 It is, in my view, strongly arguable that counsel should then have raised the possibility of a discharge without conviction, because the sentence indication given could have readily been dovetailed with a discharge without conviction accompanied by an order for the payment of compensation under s 106(3). The Judge may or may not have been prepared to give an indication as to how any such application might have been received but there was nothing to be lost by raising the possibility. It may have advanced Ms Malster’s position. Further, counsel should have expressly discussed with Ms Malster the fact that she could have made application for a discharge without
7 R v Malster, DC Hamilton, CRI-2019-019-001726, 7 May 2019.
conviction if she accepted the indication and entered a guilty plea or pleas to one or other or both of the charges. There is no evidence suggesting that this occurred.
[28] Further, I am not persuaded that counsel dealt with matters properly following the trial and after the Judge had found that one of the charges was proved beyond reasonable doubt. I accept that Ms Malster did not instruct counsel to make application for a discharge without conviction. But nor did she instruct him not to do so. Counsel well knew that, in Ms Malster’s view, a discharge would have a significant impact on her and that she could not afford to have a conviction on her record. It was open to counsel to make application for a discharge without conviction, notwithstanding the Judge’s preliminary view. Indeed, the Judge was careful to point this out to counsel. In my judgment, Mr Venter should have better appreciated Ms Malster’s position, carefully discussed the issue with her, explained to her the pros and cons of making application, and then obtained her firm and preferably written instructions, either to make application or not to do so. Again, there is no evidence that any such careful discussion took place. I consider that counsel erred in failing to fully discuss the matter with his client, and in failing to obtain her informed instructions.
Is there a risk that the errors affected the outcome?
[29] Section 106 of the Sentencing Act provides that a person who is charged with an offence, and who is found guilty or who pleads guilty, may apply for a discharge without conviction, as long as no minimum sentence is required. Section 107 states as follows:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[30] In Z v R,8 the Court of Appeal held that s 107 requires an assessment, first, of all aggravating and mitigating factors of both the offender and the offending, and secondly, of whether the consequences, both direct and indirect, of a conviction are out of all proportion to the gravity of the offence. If the Court considers that the
8 Z(CA447/2012) v R [2002] NZCA 599, [2013] NZAR 142 at [27].
consequences of conviction are out of all proportion to outweigh the gravity of the offence, the final step is to consider whether the Court should, in the exercise of its discretion, grant a discharge without conviction under s 106.9
Gravity of the offending
[31] In my judgment, the offending at issue in this case was at a low level. The assault followed a verbal altercation where tempers became raised. Undoubtedly Ms Malster overreacted, but in the circumstances, where her employment was being terminated, her overreaction is understandable. The assault was at the low end of the spectrum. The application of force was relatively minimal; while the evidence was that Ms Malster had to be pulled off the second complainant, there was no serious resulting injury. Further, there were some mitigating factors. Ms Malster has two prior convictions – both for relatively minor offending and more than 20 years earlier. She had not otherwise been in trouble with the law. She is entitled to credit for her relatively unblemished record. It is also arguable that the second complainant provoked Ms Malster, by taking items out of her car, when she had no authority to do so and when she knew that Ms Malster considered that the items were hers.
Consequences of the conviction
[32] I turn to the consequences of the entry of the conviction. Had a discharge without conviction been sought, Ms Malster would not have been required to establish that the consequences would inevitably or even probably have occurred. It would have sufficed if the Court has been satisfied that there was a real and appreciable risk of such consequences.10
[33] Here, the claimed consequences were two-fold – Ms Malster says that if the conviction stands, the New Zealand Transport Agency (the Agency) will not consider her to be a fit and proper person for the provision of transport services. Further, if she is considered unfit, she says that she is likely to lose her accreditation as a registered driving assessor.
9 Edwards v R [2015] NZCA 583 at [6].
10 DC(CA47/13) v R [2013] NZCA 225 at [43]; Waine v R [2017] NZCA 287 at [29].
[34] The evidence was that up until 16 March 2020, Ms Malster held a driver’s licence and that she had various endorsements permitting her to operate different types of motor vehicles; “classes 1, 2, 4, I1, [and a] passenger endorsement large and small passenger service, wheels, tracks, rollers, forklift, dangerous goods and vehicle recovery”. She was also a registered driving assessor recognised by the Motor Industry Training Organisation (MITO). She had held that position for some two years. As a registered assessor, she could assess drivers against New Zealand Qualifications Authority standards for work place assessments. She was also working towards obtaining a National Certificate in Driver Education, and she operated a business known as Achieve Driver Training.
[35] Ms Malster gave evidence that when she was charged, the Agency revoked her endorsements, “except for class 1, wheels, tracks rollers and forklifts”. She said that she contacted the Agency and asked why her licences and endorsements had been revoked when the charges had not been proved. She was told that it was because she had been charged. She said that subsequent to the trial, she was granted class 2 and class 4 endorsements, but that she has not had her passenger or instructor’s endorsements reinstated, because of the conviction. She said that she has applied to the Agency for reinstatement of her various licence classes and endorsements so that she can continue to teach, train and carry passengers, but that the conviction will likely result in her being found not to meet the fit and proper person test required for the purposes of training and assessing drivers, as well as carrying passengers. She said that the impact of the conviction is such that it is unlikely that she will be able to hold any endorsement for passenger vehicles, that she will be unable to drive buses or taxis or undertake vehicle recovery, or do anything driving related in which the public is involved. She also said that MITO has verbally advised her that, even if she gets the endorsements reinstated, she will not be approved to teach or train pursuant to their code of conduct.
[36] Mr Tomuri, who was previously employed as a driver trainer and independent work place assessor for driving ability, asserted in his affidavit that unless Ms Malster can overturn the conviction, she has no future in the transport industry. He says that MITO will not reinstate her training ability under instructor endorsement if she has a conviction.
Proportionality
[37] On the face of it, these consequences would seem to be disproportionate to the gravity of the offending. However, I note that, relevantly, s 30C of the Land Transport Act 1998 provides as follows:
30C General safety criteria
(1)When assessing whether or not a person is a fit and proper person in relation to any transport service, the Agency must consider, in particular, any matter that the Agency considers should be taken into account—
(a)in the interests of public safety; or
…
(2)For the purpose of determining whether or not a person is a fit and proper person for any of the purposes of this Part, the Agency may consider, and may give any relative weight that the Agency thinks fit having regard to the degree and nature of the person’s involvement in any transport service, to the following matters:
(a)the person’s criminal history (if any):
…
(f)any other matter that the Agency considers it is appropriate in the public interest to take into account.
(3)In determining whether or not a person is a fit and proper person for any of the purposes of this Part, the Agency may consider—
(a) any conviction for an offence, … and
(b)the fact that the person has been charged with any offence that is of such a nature that the public interest would seem to require that a person convicted of committing such an offence not be considered to be fit and proper for the purposes of this section.
(4)Despite subsection (3), the Agency may take into account any other matters and evidence as the Agency considers relevant.
(emphasis added)
[38] Similarly, MITO’s Code of Conduct for registered assessors requires that an approved assessor must let MITO know about anything which may affect the person’s role as an independent assessor, and, by way of example, it records an assessor should
let MITO know if he or she is awaiting the hearing of charges in a civil or criminal court. It then provides that MITO may deregister a person if the person has been convicted of a criminal offence.
[39] In the present case, I do not consider that it can properly be said that the consequences of the conviction were out of all proportion to the gravity of the offence. I have reached this conclusion for the following reasons:
(a)The Government has set up a statutory body – the Agency – to consider whether or not a person seeking to become involved in the provision of transport services is a fit and proper person to hold the various licences and endorsements required. The Courts should not generally usurp the right of such a body to decide the significance of any particular conviction. It is not the function of the Courts to preempt such decisions.11
(b)A number of the transport services that Ms Malster used to (and now seeks afresh to) provide, required her to have regular contact with members of the public. A conviction for assault may arguably bear on her suitability for such a role.
(c)Importantly, s 30C of the Land Transport Act goes beyond convictions. Section 30C(3)(b) permits the Agency to consider the fact that a person has been charged, if the offence is of such a nature that the public interest would seem to require that a person convicted of such an offence not be considered to be a fit and proper person for the purposes of the section. Whether the assault here in issue, even though low level, goes to the relevant public interest, is a matter for the Agency to consider as the statutory body entrusted with that task.
(d)Similarly, MITO’s Code of Practice for independent registered assessors, requires independent assessors to disclose anything which
11 Maraj v Police [2016] NZCA 279 at [36]; Graham v Police [2018] NZCA 172 at [29]; Police v Roberts [1991] 1 NZLR 205 (CA).
could affect their role, including the fact that they are waiting a hearing of a charge against them in a civil or criminal court of law.
(e)Neither the Land Transport Act nor MITO’s Code of Practice suggest that a conviction is an absolute bar to a person being recognised as fit and proper and being given the appropriate accreditation. Both confer a discretion and both the Agency and MITO can be expected to exercise that discretion responsibly and in a lawful way. Given the events here in issue, it is in the public interest that the Agency, as the statutory body, knows what happened and then exercises the discretion conferred on it pursuant to s 30C of the Land Transport Act according to law.12
[40] In this case, it is not the conviction which imperils Ms Malster’s recognition as a fit and proper person, or her accreditation. It is the fact that she became involved in an altercation which resulted in the charges being laid. Ms Malster’s history, the fact of the recent charges and the result, whether it be a conviction or a discharge without conviction, will be open for consideration by the Agency and MITO. It seems to me that in the circumstances, the conviction cannot properly be said to have resulted in a disproportionate consequence.13
[41] In my judgement, even if an application for a discharge without conviction had been filed, the same would not have succeeded.
[42] Accordingly, I do not consider that justice has miscarried as a result of trial counsel’s error. The appeal is dismissed.
Wylie J
12 R v Foox [2000] 1 NZLR 641 (CA) at 619 to 650.
13 Parker v Police [2016] NZHC 2524 at [22] and [29]; Graves v Police, HC Rotorua, CRI-2010- 463-57, 28 February 2011; Backhouse v Police [2015] NZHC 1178.
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