Menzies v R HC Hamilton CRI 2008-019-8012
[2010] NZHC 518
•22 April 2010
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
CRI-2008-019-8012
BETWEEN SHANE WALTER BLAIR MENZIES
Applicant
ANDTHE QUEEN Respondent
Hearing: 22 April 2010
Appearances: Patrick O'Sullivan for Applicant
Philip Crayton for Respondent
Judgment: 22 April 2010
JUDGMENT OF HARRISON J
SOLICITORS
Patrick O'Sullivan (Taupiri) for Applicant
Almao Douch (Hamilton) for Respondent
MENZIES V R HC HAM CRI-2008-019-8012 22 April 2010
Introduction
[1] Mr Shane Menzies pleaded guilty in the High Court at Hamilton to one count
of rape and one of blackmail. He was represented then and subsequently by Mr Michael Robb. He was remanded for sentence. However, when he appeared for that purpose his new counsel, Mr Patrick O'Sullivan, advised that Mr Menzies sought an order granting leave to vacate his plea of guilty to the charge of rape. He does not apply to change his plea on the blackmail charge.
[2] This case has had an unnecessarily protracted history since Mr Menzies' committal for trial. The delay between his plea of guilty and sentencing was unacceptable. This present application must be determined immediately. Having heard oral argument of high quality from both Mr O'Sullivan and Mr Philip Crayton
for the Crown this morning, I am in a position now to deliver judgment orally.
Background
[3] Mr Menzies was charged in September 2008 with the offences of rape and blackmail. The charges followed his provision of a full statement to police officers.
He was committed for trial in this Court on 9 April 2009. Mr Menzies appeared for trial on 16 November 2009. On that occasion he entered pleas of guilty to charges of sexual violation by rape of the named complainant on 25 June 2008 and the blackmail of A subsequently on or about 30 June.
[4] Mr Menzies was remanded for sentence in this Court on 9 February 2010. However, on that date a pre-sentence report was not available. He was further remanded for sentence to 16 March 2010. Again no pre-sentence report was available. He was remanded further for sentence on 20 April. Shortly beforehand Mr Robb filed a memorandum. He advised that Mr Menzies had now given him instructions to apply to vacate his plea of guilty to the rape charge. As Mr Crayton points out, this notice was some four-and-a-half months after Mr Menzies entered his pleas. Mr O'Sullivan was instructed at short notice. He filed an application for leave
to vacate the guilty plea to the rape charge on 19 April together with supporting affidavits.
Jurisdiction
[5] Mr Crayton accepts that this Court may in the exercise of its inherent jurisdiction allow an accused person to withdraw a guilty plea at any time up to sentencing. The power is of a discretionary nature and must be exercised in accordance with settled principles. The Court of Appeal has held the grounds on which an accused person may be allowed to change a plea are not as restricted as those applying after sentencing. The application must be decided on the broad principles of whether a change is required in the interests of justice because of a mistake or misunderstanding or for some other reason. It is particularly material that the accused person has received competent legal advice before entering a plea. It is not enough to justify a change of plea that the accused person has changed his mind and believes based on further or independent legal advice that he ought to be allowed
to take his chance before a jury.[1]
[1] R v Ripia [1985] 1 NZLR 122 (CA).
[6] The Court of Appeal has recently considered these principles, albeit the more limited context of an appeal against conviction which includes an application for leave to vacate a plea.[2] The Court has again emphasised the importance of the question of whether the accused person fully appreciated the merits of his position before entering a plea. It has identified three particular categories where leave may
be granted: first, where the accused person did not appreciate the nature of or intend
to plead guilty to a particular charge; second, where on the admitted facts the person could not have been convicted in law of the offence charged; and, third, where the plea was induced by a ruling which embodied a wrong decision on a question of law.
[2] R v Le Page [2005] 2 NZLR 845 (CA).
[7] There is another critical jurisdictional point. The principal offender on the rape charge, Mr David Malone, pleaded guilty and was convicted. A summary of
the facts which he accepted is helpfully set out in the sentencing notes of Potter J as follows:[3]
[3] R v Malone, HC Hamilton, CRI-2007-019-9642, 30 October 2009.
[46] ... the prisoner obtained the telephone number for F from the victim
H’s telephone. The prisoner was unknown to F. Initially the prisoner sent F
a series of text messages implying that he would like to have a relationship with her. She responded that she was not interested. Between 20 June and
26 June 2008 the prisoner sent F a series of text messages portraying himself
as a member of the Black Power gang. These messages were sent from a telephone number unknown to the victim. The text messages represented to
F that her friend, the victim H, was being held captive against his will by the
Mongrel Mob gang. They advised F that she had to have sexual intercourse with the prisoner to obtain information that would help her release H from
captivity. The messages threatened that if she failed to comply with the
instructions both she and H would be killed. She believed that the lives of herself and H were in danger if she did not comply with the instructions or if
she went to the Police.
[47] She agreed to travel from Tauranga to Hamilton with a friend to meet up with the prisoner to have sexual intercourse with him. She met him and some associates outside his parents’ address. He took her to a garage at his parents’ home which was used as a bedroom. He told her that he would protect her and could help her and H get out of trouble. F advised the prisoner that she did not want to have sex and she was only doing it because she had to. The prisoner proceeded to have sexual intercourse with her.
[48] When spoken to by the Police in August 2008, the prisoner admitted sending the messages to F and having sexual intercourse with her. He said that he and his associates had planned to video the sexual intercourse and had intended to use it for commercial purposes.
[8] Mr Malone's plea of guilty conveyed his admission of the key elements of the offence of rape; that is, first, the act of sexual intercourse; second, the absence of consent; and, third, the absence of reasonable grounds for believing that the complainant consented. It is the second of these three elements which Mr O'Sullivan has succinctly identified as being at issue on this application.
[9] The significance of Mr Malone's conviction is this. It constitutes conclusive proof that he committed the offence: s 49(1) Evidence Act 2006. A certificate of conviction may be relied on to prove not only the fact of conviction but also the commission of the offence to which the conviction relates.
[10] The thrust of Mr O'Sullivan's submission this morning is that there is evidence upon which a jury reasonably directed might have concluded that
Mr Malone was not guilty because the complainant consented. In the event that Mr Menzies' plea was vacated, he would have to advance such a defence at trial. Whatever is the case, I am satisfied that today on this application Mr Menzies must cross the threshold of showing that exceptional circumstances exist permitting him to "offer evidence tending to prove that [Mr Malone] did not commit the offence for which [he] was convicted": s 49(2)(a).
Decision
[11] Mr O'Sullivan has identified the issue for argument with commendable clarity. He accepts that Mr Menzies intended to assist Mr Malone to commit the crime of rape. On this basis he was charged as a secondary offender: s 66(2) Crimes Act 1961.
[12] The evidential foundation for the charge of rape against Mr Menzies is found
in this extract from his statement to the police:
Q.Were you aware of any threatening texts to F prior to her arriving that first time?
A.No I didn’t know. I was talking with her during that night. I remember commenting about her tits - they were almost falling out - just a male comment. F told me that she had been receiving threatening texts, that those texts related to A, that she had to come and have sex with [Mr Malone] to save A's life, and to have video footage of it as well.
When I heard that I realised that [Mr Malone] must have sent her threatening texts from his other phone as this sounded just like what he had done to A. I picked up on it and said to F that 'the texts she was receiving about A were true, and that whatever she had to do she would have to do to cover her arse as well as A's'. I tried to make her take the threats seriously and not as a joke.
Significantly, Mr Menzies does not challenge the admissibility of his statement at trial.
[13] In elaboration of his submission, Mr O'Sullivan accepts that if the Crown's case was simply that the complainant travelled from Papamoa to have sex with Mr Malone in Hamilton in response to threatening texts from him and on arrival had
a conversation with Mr Menzies in the terms set out in the statement followed by the
act of sexual intercourse with Mr Malone, then Mr Menzies would be guilty as a party to the crime of rape because his participation was designed to add to or confirm the threatening message negating the element of consent which was inherent in Mr Malone's text messages.
[14] However, Mr O'Sullivan draws an important factual distinction. He relies on
a statement made by the complainant to the police. He says that it has the following effect Mr Malone sent the complainant threatening texts. In response she phoned him. However, before deciding to travel from Papamoa the complainant reached agreement with Mr Malone that he would pay her $100 for sexual services and $80
to her female driver friend for travelling expenses. He says that the evidence is consistent with the complainant travelling from Papamoa to Hamilton in accordance with this agreement and that, as he undertook, Mr Malone not only paid these sums
to the complainant at the time of sexual intercourse but negotiated and paid her a further sum of $100 in exchange for her participation in a second sexual act.
[15] On this basis, Mr O'Sullivan submits, there is evidence upon which a jury could properly conclude that the complainant's consent to sexual intercourse with Mr Malone was freely given pursuant to a financial arrangement. In causative terms, Mr O'Sullivan says, Mr Menzies' statements did not in fact provide any assistance to the subsequent act of sexual intercourse. What he said did not overbear the complainant's consent; in other words, he says, the financial arrangement negotiated earlier that evening broke the chain of causation. Mr O'Sullivan submits there is thus the possibility that Mr Malone pleaded guilty to an offence of which he was not guilty.
[16] However, Mr Crayton points out that Mr O'Sullivan's recital of the facts is not necessarily accurate. The existence of a payment emerged when the complainant confirmed to a police officer that Mr Malone paid her $100 after the first act of sexual intercourse. When asked by the detective whether this payment was the subject of an earlier agreement she said "when me and [G] were in Papamoa ... when he had texted us ... that he would give us money for gas but I don’t recall him mentioning anything about giving me money for having sex with him".
Mr O'Sullivan has referred to evidence from the complainant's companion that she in fact negotiated an earlier arrangement with Mr Malone for payment of at least $80
for travelling money.
[17] Whatever is the case, I agree with Mr Crayton. It is not in dispute that the relevant events were generated by Mr Malone's texts to the complainant. They were
of a threatening nature of the type outlined by Potter J. In particular, Mr Malone threatened the complainant and her boyfriend with the prospect of death if she did not agree to have sexual intercourse with him, thereby assisting in her boyfriend's release from captivity. However bizarre these circumstances may sound, there is no dispute that Mr Malone's communications started the critical chain leading to his offending. Nor is there any dispute that the complainant acted in response.
[18] As Mr Crayton submits, consent requires a full and freely given agreement to participate; that is, it must be voluntary and fully informed. To be effective in law consent requires that the complainant fully understood the situation and the options available to her before agreeing to have sexual intercourse. Once seen in that context, I am satisfied that no jury could possibly conclude on the evidence that any arrangement for payment negotiated between Mr Malone and the complainant or her friend broke the chain of causation. Mr Malone's threats remained operative throughout. And Mr Menzies' words spoken during the factual continuum were designed to and did assist in persuading the complainant to have sexual intercourse with Mr Malone without her consent.
[19] In slightly colourful terms, Mr Crayton submits that Mr O'Sullivan's argument does not "peep above the parapet" necessary to establish extraordinary circumstances. His statement adequately conveys the point that Mr Menzies does not even approach the threshold necessary to justify a Court in permitting him to offer evidence on this application or at trial tending to prove that Mr Malone was not guilty of raping the complainant. I repeat that Mr Malone entered a plea of guilty. He accepted all the elements of the offence of rape including the absence of the complainant's consent.
[20] Despite Mr O'Sullivan's careful argument, I am not satisfied that the interests
of justice require that leave be granted to Mr Menzies to vacate his plea. In essence
his argument is nothing more than a proposition that on reflection and with the benefit of different legal advice he might have had a chance before a jury. I repeat that he had the earlier benefit of competent legal advice on which he decided to enter his plea. It is now too late to seek to vacate it.
[21] The application is dismissed.
Rhys Harrison J
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