McLeavey v New Zealand Police HC Wellington AP 107/01

[2001] NZHC 455

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON
REGISTRY AP 107/01

BETWEEN CATHERINE MCLEAVEY
Applicant

AND NEW ZEALAND POLICE
Respondent

Hearing: 6 June 2001

Appearances: D Benson for applicant A M McClintock for respondent

Judgment: 6 June 2001

JUDGMENT OF DOOGUE J

[1] This is an application for leave to appeal out of time against a conviction entered as long ago as 30 July 1996 upon the applicant’s plea of guilty to an offence of contrary to the fact and without a belief in the truth of the statement made a written statement to a constable that an offence of male assaults female had been committed.

[2] The false statement to which the applicant pleaded guilty was made on 23 June 1996. Preceding that false statement the applicant had orally complained to the police that her then partner had assaulted her. As a result, the written statement was taken. The next day the applicant went to the police and made a voluntary statement that her statement as to her partner’s assault upon her was incorrect. It was on the basis of that voluntary statement to the police that she was charged with the offence in question. She first appeared on 23 July 1996, when a not guilty plea was indicated. She was remanded at large to enable her to see a solicitor. The next day she appeared again, with a guilty plea then being indicated, and was further remanded at large until 30 July 1996. On 30 July 1996 she was represented by the duty solicitor. She pleaded guilty to the offence. A conviction was entered. The applicant was ordered to come up for sentence if called upon within six months.

[3] The applicant now applies for leave to appeal out of time upon the grounds:

1. The circumstances that have ensued since sentencing now make it necessary to appeal sentence.

2. That the merits of the appeal in this case warrant an extension of time.

3. That she would be unduly prejudiced if an appeal is not allowed.

4. That the Crown will not suffer any undue hardship if the appeal is allowed.

5. It is in the interests of justice in this case to allow an extension of time.
[4] In support of the application reliance is made on the grounds advanced for alleging that the conviction resulting from the guilty plea has given rise to a miscarriage of justice. In particular it is submitted:

1. On the admitted facts the appellant could not in law have been convicted of the offence charged;

2. The appellant had a tenable line of defence at the time of entering her plea.

3. The appellant did not receive adequate legal advice about her defence prior to entering her guilty plea.

[5] It is accepted for the applicant that for her application for leave to appeal out of time to succeed the Court has to in effect be satisfied that there are grounds for the conviction appeal.

[6] It is submitted on behalf of the applicant that on the facts admitted by her she could not have been convicted of the offence against s 24(a) of the Summary Offences Act 1981. That section states:

“24. False allegation or report to police -

Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who,

(a) Contrary to the fact and without a belief in the truth of the statement, makes or causes to be made to any constable any written or verbal statement alleging that an offence has been committed;

[7] It is submitted for the applicant that in order to establish that offence it is not sufficient to show that the applicant made a false statement to the police but that, in addition, in particular, she must have alleged that an offence had been committed. It is submitted for the applicant that all the applicant has done is to allege that certain facts occurred and not that an offence has been committed. For the applicant it is said that that was a police conclusion from the facts alleged.

[8] With all respect to the submission, if it were correct, the offence could never be made out except in the most unusual of circumstances. It is entirely clear from the statements contained within the applicant’s statement asserting that her partner had assaulted her that she is alleging assault. There are a number of statements within her statement which can be read in no other way. There was no ambiguity about her statement in respect of the allegations of assault. There is no possible basis for reaching the conclusion that the applicant had not alleged an assault by her partner.

[9] It is further submitted that the plea of guilty does not automatically preclude an appeal against the conviction and that there were two tenable defences.

[10] First it is submitted that there is a tenable defence to establish that the applicant had not made a false statement that an offence had been committed. This relies upon photographic evidence which shows apparent bruising to the applicant’s neck. It is submitted that there was clear evidence that the applicant’s partner had assaulted the applicant. At the moment that evidence is no more than the assertion of the applicant combined with the photographs, which of course are consistent with much else other than an assault. It is not at all clear that there is clear evidence available that the applicant’s partner had assaulted her apart from the applicant’s original statement which she retracted and subsequently said was false.

[11] It is submitted on behalf of the applicant that she was under a misapprehension about her options and pleaded guilty because she felt she had no other option. However, it is clear from the information before the Court that she pleaded guilty not on her first appearance but on her third, having first indicated that she intended to plead not guilty and having changed that plea after there had been a remand to enable her to take legal advice. The applicant says that she received no legal advice, but it is clear that her memory is faulty about events at the time because she is in the same affidavit unaware that she had appeared not twice but three times in the District Court.

[12] The second possible defence put up on behalf of the applicant is a challenge to the admissibility of her second statement retracting the allegations of assault. It is alleged that the police did not advise the applicant of what are said to be her rights under s 23(1)(b) of the New Zealand Bill of Rights Act 1990. Again, apart from her assertion, we have no knowledge of what advice she was given by the police at the time. Understandably after this period of time there is no record of what occurred. In any event there is no evidence before the Court that could possibly bring into play the provisions of s 23 of the New Zealand Bill of Rights Act 1990. There is no suggestion that the applicant was under arrest at the tune that she made her voluntary statement retracting her earlier statement. There is no basis upon which the Court could possibly conclude that she was detained in any way by the police at the time that she was making her voluntary statement of retraction.

[13] It is further submitted on behalf of the applicant that she does not recall receiving any legal advice whatever. As already noted, that is in conflict with the record on the court information that there was a first remand for the purpose of her taking legal advice and then an indication of a proposed change of plea, with her appearing on the third occasion with the duty solicitor.

[14] It is easy to say now that the applicant cannot recall what occurred in the period in question. It is understandable that the duty solicitor should have no recollection of what passed on the day. It is, however, impossible for me to conclude that the applicant did not have the benefit of legal advice prior to pleading guilty, having regard to the factors already mentioned.

[15] It is also submitted that complainants in respect of domestic assaults are peculiarly vulnerable and that there is a matter of public policy involved once they had made a complaint. It is submitted that because of the vulnerability of such a complainant the police should be particularly careful in taking retractions from such complainants. However, there is no suggestion here that the police did other than that. It was plainly a voluntary retraction. It was equally plainly a voluntary retraction followed by a guilty plea. The applicant was aged 24 at the time. It is not as if she was very young and is only now aware of the circumstances relating to her situation. Almost five years have gone by. She says that in 1999 she made some enquiries about her position, but that was some three years after the events in question and even then she did not pursue the issue.

[16] With all respect to the submissions for the applicant, there is nothing whatever to show that a miscarriage of justice has occurred in the present case. As is noted in Butterworths District Courts Practice (Criminal) at para S 115.7:

“It is only in exceptional cases that an appeal against conviction should be entertained after a plea of guilty. Examples of cases where such an appeal should be entertained are where the plea is no plea at all, where the plea has been entered under some obvious mistake, misunderstanding, or misapprehension, or where the defendant may not have appreciated the nature of the charge, or may not have intended to admit his or her guilt. The suggestion that a plea of guilty should not have been entered is more readily heeded when made by an appellant who was unrepresented at the trial: Udy v Police [1964] NZLR 235; see also R v Claridge (1987) 3 CRNZ 337 (CA), and R v Stretch [1982] 1 NZLR 225 (CA).

[17] In the present case the applicant gets nowhere near satisfying the Court that there has been some obvious mistake, misunderstanding or misapprehension about the plea or that she did not appreciate the nature of the charge against her or that she did not intend to admit her guilt. There is nothing before the Court whatever to substantiate the suggestion that leave should be granted at this time to appeal. There is no possible basis upon which leave could be granted at this time, particularly given the circumstances already traversed.

[18] The application for leave to appeal out of time is dismissed.