Methven v Police
[2019] NZCA 292
•8 July 2019 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA145/2019 [2019] NZCA 292 |
| BETWEEN | STUART SIMON BRYCE METHVEN |
| AND | NEW ZEALAND POLICE |
| Court: | Courtney, Venning and Dunningham JJ |
Counsel: | J C Hannam for Applicant |
Judgment: | 8 July 2019 at 11.30 am |
JUDGMENT OF THE COURT
The application for leave for a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Stuart Methven pleaded guilty in the District Court at New Plymouth to one charge of contravening a protection order and one of failing to supply identifying particulars to the police. He applied unsuccessfully to vacate the guilty pleas.[1] He then appealed that decision unsuccessfully.[2] He now seeks leave for a second appeal.[3]
[1]Police v Methven [2019] NZDC 1340.
[2]Methven v Police [2019] NZHC 357.
[3]The application is determined on the papers in accordance with a Minute of Courtney J: Methven v Police CA145/2019, 30 May 2019.
The application falls to be determined under s 237(2) of the Criminal Procedure Act 2011 which provides that a Court must not grant leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard. This is a high threshold.[4]
Background
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].
In July 2017 Mr Methven was subject to a final protection order in respect of his former partner. On 1 June 2018 the police gave Mr Methven a letter advising him that he could no longer go to the complainant’s address and that their relationship was over. The following week Mr Methven went to the complainant’s address, knocked on the door and asked to come in. He claimed that he had done so in response to a text message from the complainant inviting him to retrieve his clothes from the address.
The complainant refused to let Mr Methven in. She told him to leave. He did not. He remained on the property for a further 15 minutes despite being told by the complainant to leave. He only left when the complainant finally called the police. This incident formed the basis for the charge of contravening a protection order.
When Mr Methven was arrested the following day he twice refused to allow the police to take his fingerprints or photograph. His refusals led to the charge of failing to supply identifying particulars to the police.
The guilty pleas and application to vacate the pleas
Mr Methven sought a sentencing indication in respect of both charges. Judge L Harrison gave a sentencing indication on 26 July 2018 of 15 and a half months’ imprisonment. Mr Methven entered guilty pleas following the sentence indication.
On 24 August 2018 Mr Methven applied to vacate the guilty pleas. The application was not heard until 18 January 2019. The matter came before the same Judge. Mr Methven provided an unsworn affidavit in support of his application, which the Judge appears to have accepted. He also provided a statement by his former counsel, Mr Bourke.
Mr Methven raised two grounds in support of the application. The first was that he had decided during the sentencing indication that he no longer wanted to plead guilty but was not given the opportunity to say so before entering his plea. The Judge did not accept that this ground had any substance. The audio record of the 26 July 2018 hearing was played during the hearing of the application and the Judge was satisfied that Mr Methven had been represented throughout by competent counsel and had the opportunity to consult counsel after the sentencing indication had been given and before the pleas were entered.[5]
[5]Police v Methven, above n 1, at [6].
Mr Methven’s second ground was that, having sought legal advice, he had become aware that he may have had a defence available to him. This defence was, evidently, based on Mr Methven’s claim that the complainant had invited him to go to the property. However, the Judge was satisfied from Mr Bourke’s statement that Mr Methven had been properly advised that the charge was based on Mr Methven remaining at the property after being asked to leave so that it was irrelevant whether Mr Methven had been invited.[6]
Leave to appeal
[6]At [14]–[15].
In the High Court Mr Methven raised two grounds of appeal. The first was that there was new evidence in the form of medical records indicating that he was in an “unfit state of mind” when he entered the guilty pleas. This ground was supported by the production of medical notes kept by Wanganui Prison detailing 30-minute observations on 4–9 July 2018 said to confirm that Mr Methven was reporting thoughts of self-harm and depression. The second ground was a variation on one of the grounds advanced in the District Court; Mr Methven asserted that he had a reasonably arguable defence to the charge, namely that he had been invited onto the property and did not hear the complainant tell him to leave.
Cooke J began his consideration of the appeal by identifying the recognised circumstances that might be regarded as giving rise to a miscarriage of justice for a defendant who wishes to challenge a conviction entered after a guilty plea.[7] This included where an appellant did not intend to plead guilty or did not appreciate the nature of the charge or where a guilty plea was entered because of trial counsel error or where the defendant had demonstrated a tenable defence. The Judge particularly noted in relation to the last that it was not sufficient for an appellant to simply assert innocence; credible evidence was needed to justify the rare step of vacating a guilty plea.[8]
[7]Methven v Police, above n 2, at [15] citing Halpin v R [2018] NZCA 477.
[8]Halpin v R, above n 7, at [20].
The Judge then turned to consider each of the grounds. He regarded the evidence about Mr Methven’s state of mind as “very thin comprising only the notes available at the time. There is no other evidence of impairment.”[9] He did not consider that the medical evidence tendered demonstrated that Mr Methven was not able to fully understand the charges, the advice he had received or the significance of entering a guilty plea.
[9]Methven v Police, above n 2, at [17].
In his memorandum in support of the application for leave in this Court, Mr Methven’s counsel, Mr Hannam, accepted that there was no detailed forensic medical evidence to support the ground but submitted that the records nevertheless presented Mr Methven as a troubled person suffering from a disordered mental state. We are not satisfied that evidence of the nature relied on either raises an issue of public or general importance or could provide a reasonably arguable basis to assert a miscarriage of justice.
In relation to the second ground the Judge noted the two different aspects of the proposed defence. The first, that Mr Methven had been invited onto the property (and which had been raised in the District Court), did not constitute a tenable defence.[10] The charge was contravening the protection order by remaining on land or building where the protected person is in circumstances that constitute a trespass.[11] The fact that Mr Methven may have been asked to the property in the first place was not relevant to proof of the charge, given that he had remained on the property for some 15 minutes after being asked to leave (this aspect was apparently unchallenged).
[10]At [21].
[11]Domestic Violence Act 1995, s 19(2)(d).
In relation to the new assertion, that Mr Methven did not hear the complainant asking him to leave, the Judge noted that there was no credible evidence that he had not heard the complainant.[12] This was the first time Mr Methven had suggested that he had not heard the complainant’s repeated requests. The summary of facts on which Mr Methven sought a sentencing indication and pleaded guilty simply referred to the complainant repeatedly telling Mr Methven to leave. He had not raised the issue in his application to vacate the guilty pleas. In these circumstances, it is not tenable to assert that the High Court erred in finding that there was no credible evidence to support this claim.
Result
[12]Methven v Police, above n 2, at [22]–[23].
Mr Methven has not shown that the proposed second appeal raises any matter of general or public importance, nor that a miscarriage of justice may have occurred or may occur unless the appeal is heard. Leave to appeal is accordingly declined.
Solicitors:
Hannam & Co Lawyers, New Plymouth for Appellant
Crown Law Office, Wellington for Respondent