Methven v Police

[2012] NZHC 625

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000006 [2012] NZHC 625

BETWEEN  STUART SIMON BRYCE METHVEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 April 2012

Counsel:         J C Hannam for Appellant

J M Marinovich for Respondent

Judgment:      2 April 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      The appellant appeals:

(1)a decision of the District Court in which the District Court Judge declined the appellant’s  application for leave to vacate his  earlier pleas of guilty to two charges of burglary;  and

(2)       the sentence of two years and ten months’ imprisonment imposed

upon the appellant on the two burglary charges.

Background

[2]      Two burglaries were committed in New Plymouth in October 2011.  The first burglary was committed at a residential address in the early afternoon.  Items taken

included I-pods, a laptop, a mobile phone, computer games, jewellery and a Rolex

METHVEN V NEW ZEALAND POLICE HC NWP CRI-2012-443-000006 [2 April 2012]

watch.   The value of the items  taken  exceeded  $21,000.   The second  burglary occurred approximately three weeks later.   On this occasion a residential property that  was  under  construction  was  broken  into.    Some  minor  damage  was  done. Nothing was taken from this house.

[3]      The appellant was arrested on 27 October 2011.  When he was searched the appellant was found to be wearing the Rolex watch which had been stolen during the first burglary.  When the appellant was arrested he was wearing a pair of shoes, the tread pattern of which coincided with the shoe tread patterns at the point of entry of the home which was the subject of the second burglary.

[4]      The appellant was initially charged with receiving stolen property (the Rolex watch).  He provided instructions to his then lawyer to plead guilty to that charge. However, before the appellant could pursue that course of action the police withdrew the receiving charge and laid the two burglary charges.   Pleas of not guilty were entered  to  the  two  burglary  charges  on  15  December  2011  and  the  case  was remanded for a status hearing scheduled for 25 January 2012 in the New Plymouth District Court.

[5]      Before the status hearing took place, the appellant’s then lawyer visited him at New Plymouth prison.   The appellant’s lawyer made this visit in response to indications from the appellant that he wanted to plead guilty to the two burglary charges.  In an affidavit sworn on 3 February 2012 the lawyer said:

I did attend upon [the appellant] at New Plymouth Prison on 10 January.  I discussed with him the fact that the consequences of pleading guilty were that  he  would  be sentenced  to  a lengthy term of imprisonment.    I also discussed with him the fact that he continued to maintain his innocence but that  he wished to  plead guilty as  he  would rather have  been held  as  a sentenced prisoner as opposed to on remand.

[6]      After receiving this advice the appellant instructed his lawyer that he wished to  enter  guilty  pleas  to  the  two  charges  of  burglary.    Those  instructions  were provided in writing and reiterated the appellant’s concern that he did not wish to be held in prison on remand.

[7]      On 12 January 2012 the appellant appeared in the New Plymouth District Court.  On that day he advised his lawyer that he had changed his mind and that he did not wish to plead guilty to the two burglary charges.  He sought bail, but that was declined.

[8]      The appellant then provided further instructions, in writing, to his lawyer that he wished to plead guilty to the three matters before the Court, including the two burglary charges. The appellant was remanded to 20 January 2012.

[9]      On 20 January 2012 the appellant told his lawyer that he wished to enter guilty pleas to the two burglary charges.  Those guilty pleas were entered.  The case was remanded to 10 February 2012.

[10]     On 10 February 2012 the appellant applied to vacate his guilty pleas to the two burglary charges.  His application was supported by three affidavits:

(1)The first affidavit was from the appellant’s former lawyer who set out the chronology of events and the appellant’s explanation as to how he came to be in possession of the Rolex watch and the shoes that were responsible  for  the  tread  patterns  seen  at  the  site  of  the  second burglary.

(2)      The second affidavit was from the appellant.  The key points in the

appellant’s affidavit are:

(a)    he says that he obtained the Rolex watch in exchange for a small quantity of cannabis;

(b)he says he was given the pair of shoes that formed the tread pattern  observed  at  the  site  of  the  second  burglary.    The appellant says those shoes were given to him from someone he had met in prison;  and

(c)    he pleaded guilty to the burglary charges because he did not want to be a remand prisoner.  The appellant says that from his

past experience he knows he does not cope well with being a remand prisoner.

(3)The third affidavit is from the appellant’s former partner.  She swears that on 27 October 2011 she saw the appellant receive from an associate, the shoes which are linked with the second burglary.  She also swears that on a later occasion the associate who gave the shoes to the appellant said that he would sort the matter out and that he had committed a series of burglaries while wearing the shoes in question.

[11]     On 10 February 2012 the District Court declined the appellant’s application to vacate his guilty pleas to the burglary charges.  The key reasons for declining the appellant’s application were:

(1)The District Court Judge was not satisfied that a defence had been made out.  The District Court Judge noted that a defence “had been hinted [at]” but that the defence which had been “hinted [at]” was of a poor quality.

(2)No other grounds for granting leave to vacate a not guilty plea had been made out.

(3)       The District Court Judge was satisfied that when the appellant entered

his guilty pleas he did so “intentionally and deliberately”.

After declining the appellant’s application to vacate his guilty pleas the District

Court Judge then imposed the prison sentence which the appellant now also appeals.

Legal principles governing vacating of a guilty plea

[12]     The overriding consideration when determining an application to vacate a guilty plea is whether it is in the interests of justice for the application to be granted. There  are  a  myriad  of  factors  which  may  impact  upon  this  assessment.    The

following factors are some of the matters that have been considered relevant in determining applications of this kind in the past:

(1)whether the applicant was suffering from some form of disability which prevented them from making a rational decision when pleading guilty;[1]

[1] Leeder v Christchurch District Court [2005] NZAR 18 (HC).

(2)whether the applicant had received competent and correct legal advice before entering the guilty plea;[2]

[2] R v Stretch [1982] 1 NZLR 225 (CA) and R v Merrilees [2009] NZCA 59 at [34].

(3)whether or not the applicant has a defence, and the quality of that defence.[3]    The proposed defence must be reasonably credible.[4]     A mere denial of guilt will not suffice.[5]   While clearly an untenable and unrealistic proposed defence counts against the granting of an application  to  vacate  a  guilty  plea,  care  has  to  be  taken  not  to

[3] Hussein v R [2011] NZCA 58 at [22] and R v Le Comte [1952] NZLR 564 (CA).

[4] R v Otton HC Auckland CRI-2005-092-1612, 26 August 2005; Smith v Police HC Hamilton AP3/92, 14 April 1992 and Tihi v R HC Auckland T991578, 1 September 1999

[5] May v R HC Auckland T215/90, 10 September 1991.

prejudge an applicant’s guilt. An application to vacate a guilty plea is

not a trial.

Analysis

Were the guilty pleas rational and informed?

[13]     There is nothing to suggest the appellant was suffering from any form of disability that could have affected his ability to make a rational decision.

[14]     The appellant was informed of all the evidence available to the prosecution. He had every opportunity to assess and evaluate the strength of that evidence.

[15]     There is nothing to suggest that the appellant was pressured into entering his guilty pleas.

[16]     There is one matter that indicates the appellant’s decision was made as a matter of expediency.  That matter concerns the appellant’s desire to avoid serving time in prison on remand.  However, I do not consider that this factor comes close to indicating that the appellant’s decision to plead guilty was either irrational or uninformed.

Did the appellant receive competent legal advice?

[17]     The evidence establishes very clearly that the appellant had the benefit of full and responsible legal advice.   His former lawyer went to considerable lengths to ensure that the appellant knew what he was doing and what the likely consequences of his guilty pleas would be.

Does the appellant have a defence?

[18]     The District Court Judge was firmly of the view that the appellant had no viable defence.   It is necessary to examine the District Court Judge’s reasoning in more depth on this issue.

[19]     After setting out a chronology of the events and the basic legal principles, the District Court Judge then proceeded to assess the quality of the appellant’s proposed defence.  In undertaking this assessment the District Court Judge:

(1)       placed considerable weight on the appellant’s previous convictions

for dishonesty;

(2)       decided  the  appellant’s  former  partner  would  not  be  a  credible

witness;  and

(3)decided that another potential witness would also not give credible evidence.

[20]     The  District  Court  Judge  then  concluded  that  while  a  defence  had  been

“hinted [at]”, no defence had in fact been made out.

[21]     I  have  given  very  careful  consideration  to  the  approach  taken  by  the District Court  Judge.    I can  fully sympathise  with  the Judge  who has  seen  the appellant and his potential witnesses in his Court on previous occasions.  However, my concern is that the District Court Judge has in effect conducted a trial and determined the appellant’s guilt when assessing the merits of an application to vacate guilty pleas.

[22]     The appellant’s defence is that he received the Rolex watch and was provided with the shoes which were linked to the second burglary.   Whether that defence succeeds is for another Court to determine after adhering to all the processes and safeguards associated with a criminal trial.  The District Court Judge’s assessment of the appellant’s guilt may prove to be correct.   However, it is for another Court to make that determination.

[23]     I  am  mindful  of  the  fact  that  the  judgment  appealed  from  involved  the exercise of a discretion by the District Court Judge.  However, for the reasons I have explained, I believe the District Court Judge misdirected himself on the approach he was required to take.   Accordingly, I have concluded that the interests of justice require that the application to vacate the guilty pleas to the two charges of burglary should be allowed.

Conclusion

[24]     The  appellant’s  appeal  against  the  decision  of  the  District  Court  Judge

refusing his application to vacate guilty pleas to the two charges of burglary is allowed.

Solicitors:

Crown Solicitor, New Plymouth

D B Collins J