Methven v Police

[2019] NZHC 357

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-443-1

[2019] NZHC 357

BETWEEN

STUART METHVEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 March 2019
Appearances:	J C Hannam for the Appellant G N Milne for the Respondent
Judgment:	6 March 2019

JUDGMENT OF COOKE J

[1]    Mr Methven appeals a decision of Judge Harrison delivered in the District Court at New Plymouth on 26 July 2018, in which the Judge declined Mr Methven’s application to vacate his guilty plea in relation to one charge of contravening a protection order and one charge of failing to supply identifying particulars to Police.1

[2]    Mr Methven appeals his conviction on the grounds that first, there is new evidence, namely medical records, which indicate he was in an “unfit state of mind” when he entered his plea on 26 July 2018. Second, the District Court erred by giving insufficient weight to the availability of an arguable defence to the charge.

1      Police v Methven [2019] NZDC 1340; Domestic Violence Act 1995, s 19(2)(d), s 49(1)(b) and   s 49(3), maximum penalty 3 years’ imprisonment; and Policing Act 2008, s 32(4), maximum penalty 6 months’ imprisonment or $5,000 fine.

METHVEN v NEW ZEALAND POLICE [2019] NZHC 357 [6 March 2019]

Factual background

[3]    On 25 July 2017 a final protection order was issued in the New Plymouth District Court in relation to Mr Methven’s prior dealings with Ms  A.  Police sent  Mr Methven a letter on 1 June 2018 stating Mr Methven was no longer allowed at the Ms A’s address and their relationship was over. The letter also explained the consequences of breaching the letter and the protection order.

[4]    At approximately 8.20 pm on 7 June 2018 Mr Methven entered Ms A’s address and knocked on the front door. She stood on the other side of the door. Mr Methven asked to come into the house. She refused to allow entry and told Mr Methven to leave. Mr Methven stayed on the property for around 15 minutes, entering into the garage and moving around the front of the property. During this period Ms A repeatedly told Mr Methven to leave. She told Mr Methven she had called the Police and only then did he finally leave the address.

[5]    The following day Police arrested Mr Methven for breaching the protection order. He admitted to being at Ms A’s address and explained that she had invited him to the address to collect his clothing the previous day.

[6]    Mr Methven was charged with contravening a protection order. Mr Methven sought a sentencing indication. On 26 July 2018 Judge Harrison indicated a sentence of sentence of 15 and a half months’ imprisonment if Mr Methven pleaded guilty to both charges. As to suitability for home detention, “that remains to be seen but my view at the moment is that this man is not a candidate”.2 Mr Methven entered his guilty pleas following the sentencing indication.

[7]    On 24 August 2018, Mr Methven applied to vacate the guilty pleas. That application was heard by Judge Harrison on 18 January 2019.3

2 Sentencing indication at [9].

3      Police v Methven, above n 1.

District Court decision

[8]    Judge Harrison first noted she had been invited to deal with the application on the papers without evidence or cross-examination of Mr Methven, before turning to a discussion of the relevant law. The Judge indicated that for Mr Methven’s application to succeed “the conviction must be shown to be unsafe, or for there to have been a miscarriage of justice”.4 The real issue, as articulated by Mr Hannam for Mr Methven, was whether Mr Methven’s change of position during the hearing and his inability to express it justify a change of plea to not guilty.

[9]    Mr Methven’s first ground for wanting to vacate the guilty plea was he did not clearly instruct his lawyer at the time, Mr Bourke, to enter pleas of guilty on the charges.5 Mr Methven said he was struggling to hear everything said during the hearing and he did not accept the sentencing indication. He said he wanted to say to the Court during the sentencing indication that he no longer wanted to plead guilty, and he was not given the opportunity to confirm his guilty plea.

[10]   The Judge then played the audio of the sentencing indication appearance of 26 July 2018. She held:

[6]        During this hearing today the audio of the Court appearance of 26 July 2018 has been played. It is at odds with what Mr Methven recalls. I am satisfied that there has been no miscarriage of justice and that the convictions are safe for the following reasons.

[7]        He was represented by competent counsel, guilty pleas were entered after having obtained legal advice. Even before the sentencing indication had been given he wanted to plead guilty, and articulated that to me. After the sentencing indication was given he still wanted to plead guilty. He was given the opportunity to consult with Mr Bourke about his plea after the indication had been given. He declined that. He was insistent he wanted to plead guilty.

[8]        I asked Mr Bourke if he wanted to put sentencing off for a week. And again an indication from Mr Methven was given that he wanted to plead guilty. Mr Bourke said that he ·had discussed the matter with him already and had instructions to plead guilty.

[9]        During the hearing I did mute Mr Methven because he was argumentative and interruptive, but I did bring him back into the courtroom so audio was available so he could speak with Mr Bourke, and again he confirmed the guilty plea.

4 At [4].

5 At [5].

[10]      He was insistent he wanted to tell me something and I gave him that opportunity. He said what he wanted to say was that “she text me first.” I certainly gave him a chance to have his say. At no time during that did he say that he wanted to change his plea.

[11]      In my view he was given more than adequate opportunities to confirm his position on pleading guilty.

[11]   The reference to the Judge muting Mr Methven arises because he was appearing by video link, and during the course of giving the sentencing indication he was interrupting the Judge by making comments. This is recorded in the transcript of the sentencing indication. In the circumstances the Judge put the connection on mute so that she could continue to deliver the sentencing indication.

[12]   The Judge then addressed Mr Methven’s argument that, having sought legal advice, he was now aware of an available defence. She acknowledged “this is also a ground that may justify a change of plea”.6 Mr Methven was charged with contravening a protection order by remaining in a building occupied by the protected person. But Mr Bourke confirmed “legal advice was given to Mr Methven about [the charge] and in the context of wanting to plead not guilty because he did remain on the property and that was in fact the nature of the charge. It was not to do with who contacted who or why he was on the property”. Judge Harrison accordingly dismissed the application to vacate guilty pleas.

Relevant law

[13]   An application to withdraw a guilty plea is an appeal against conviction. For the appeal to succeed, Mr Methven must demonstrate a miscarriage of justice has arisen through the decision to decline his application to vacate the guilty plea.7

[14]   The Court of Appeal in R v Merrilees emphasised the very rare circumstances in which a later retraction of guilty plea is permitted, and that “later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned”.8

6 At [13].

7      Criminal Procedure Act 2011, s 232(2); and R v Kihi CA395-03, 19 April 2004 at [14].

8      R v Merrilees [2009] NZCA 59 at [35].

[15]   The recent Court of Appeal decision Halpin v R provides a helpful overview of the circumstances giving rise to a miscarriage of justice for a defendant who wishes to challenge a conviction entered after a guilty plea.9 This includes where an appellant did not intend to plead guilty to a particular charge, or did not appreciate the nature of the charge; where the guilty plea was entered because of trial counsel error; and where the defendant has demonstrated a tenable defence.10 On this last circumstance, “it is not sufficient for an appellant to simply assert his or her innocence. Credible evidence must be presented to justify a court taking the rare step of vacating a guilty plea”.11

Unfit state of mind

[16]   Mr Hannam for Mr Methven argues that new evidence is available in the form of medical records recording he was in an unfit state of mind at the time the guilty plea was entered. He argued that this state of mind impaired his decision making. The records are contained in  the  medical  notes  kept  by  Wanganui  Prison  detailing  30 minute observations on 4–9 July  2018.  Mr  Hannam says these notes confirm  Mr Methven was reporting thoughts of self-harm and depression.

[17]   The fact that a defendant is depressed to the point of him reporting that he is considering self-harm does not demonstrate that he was not in a fit state of mind to enter a guilty plea. The evidence for suggesting that Mr Methven was not in a fit state of mind is very thin, comprising only the notes available at the time. There is no other evidence of impairment. They do not demonstrate that Mr Methven was not able to fully understand the charges, the advice given to him, or the significance of entering a guilty plea. Many defendants before the Court will suffer from issues of anxiety and depression. But in order to demonstrate that a guilty plea is to be vacated much more powerful evidence will be needed to demonstrate the defendant was not fully able to fully appreciate the significance of the guilty plea.

[18]   Mr Hannam made reference to the decision of the High Court in Gardiner v Levin District Court where low intellect was accepted as a legitimate concern when

9      Halpin v R [2018] NZCA 477.

10 At [18].

11 At [20].

determining whether a guilty plea should be vacated.12 But such circumstances are distinguishable. Here there is no basis for saying that Mr Methven’s depression meant that he was not able to properly appreciate the significance of the guilty plea.

[19]This ground of appeal therefore fails.

Availability of a reasonably arguable defence

[20]   Mr Hannam argues a miscarriage of justice will occur if the guilty plea is not withdrawn because Mr Methven has an arguable defence to the charge. The proposed defence is that Mr Methven says he was invited onto the property, and did not hear the direction to leave from the protected person.13

[21]   I  am  not  satisfied  Mr  Methven  has  demonstrated  a  tenable  defence.   Mr Methven was charged with contravention of a protection order under s 49 of the Domestic Violence Act 1995. Mr Methven contravened the protection order by remaining on land or building where the protected person is present in circumstances that constitute a trespass.14 Mr Methven remained on the property for a further 15 minutes after the protected person had repeatedly asked him to leave.15 It is no defence to this charge that Mr Methven was asked to the property in the first place. The fact is he did remain on the property after being asked to leave.

[22]   Mr Methven says he did not hear the protected person when she asked him to leave. But there must be credible evidence to demonstrate a tenable defence for a miscarriage of justice to occur.16     There is no credible evidence to demonstrate     Mr Methven did not hear Ms A. The statement of facts says she asked him to leave repeatedly, and only when she told Mr Methven she had called Police did he then leave the property.

[23]   Mr Hannam argues there are “credibility issues” in respect of the protected person because her statements in her letter to the court are “substantially different” to

12     Gardiner v Levin District Court HC Palmerston North CIV-2006-454-630, 24 November 2006.

13 At [16].

14     Domestic Violence Act 1995, s 19(2)(d).

15     Methven v Police, above n 1, at [2].

16     Halpin v R [2018], above n 9, at [20].

the facts in the Summary of Facts. She says in her letter that she asked Mr Methven to leave when he arrived. Her letter is consistent with the Statement of Facts. I am not persuaded there is credible evidence of a tenable defence. The Crown’s evidence suggests that Mr Methven was well advised to plead guilty.

[24]For these reasons the appeal is dismissed.

Cooke J

Solicitors:

Hannam & Co. Lawyers, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent