Miller v Police - [2017] NZHC 1994

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2017-442-11 [2017] NZHC 1994

BETWEEN
LYNDSEY KAY MILLER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 August 2017

Appearances:

C Stanley and R M A Purchas for the Appellant
K B Bell for the Respondent

Judgment:

21 August 2017

JUDGMENT OF CHURCHMAN J

Introduction

[1] This case involves an application for leave to appeal 37 years out of time and bring a general appeal against sentence.

Facts

[2] Lyndsey Kay Miller (the appellant) posted two marijuana cigarettes containing approximately five grams of cannabis leaf from her home in California to a friend in New Zealand between 19 and 25 October 1979. She is a New Zealand citizen. At the time of the offending she was residing in the U.S. as a permanent resident by virtue of her marriage to a U.S. citizen. When she arrived in New Zealand approximately a month later for a visit to her parents she was charged with importing a controlled drug under s 6(1)(a) and 6(3)(c) of the Misuse of Drugs Act
1975, namely the class C controlled drug cannabis leaf. She pleaded guilty and was convicted on 11 December 1979 and sentenced to pay a $200 fine by Judge Headifen
in the Nelson District Court (then known as the Nelson Magistrate’s Court).

MILLER v NEW ZEALAND POLICE [2017] NZHC 1994 [21 August 2017]

[3] At the time of her plea, the appellant’s evidence is that she was not informed of her right to apply for a discharge without conviction. She testifies that she questioned her counsel as to the effect of a conviction under s 6(3) of the Misuse of Drugs Act 1975 and was told it would not affect her ability to return to the U.S. and reside there as a permanent resident. Post-conviction the appellant returned to the U.S. with her husband and two young children.

[4] The appellant’s marriage ended in 1986. She returned to New Zealand permanently around 1996 after her youngest child left home for university. In or around 2004 her conviction became covered by the Clean Slate scheme. The appellant incorrectly assumed this meant she was not required to declare it in her applications for a visitor’s visa in relation to her visits to the U.S. between 2005 and
2015. In 2015 in a personal interview at the U.S Consulate in Auckland, relating to her application for a visitor’s visa and a green card, she disclosed her sole conviction had been wiped by the Clean Slate scheme. This scheme is not recognised by the United States government and her application for a visitor’s visa was refused on the basis of her conviction. All her subsequent appeals against this refusal to the U.S. Citizenship and Immigration Services (U.S. Immigration Department) have been unsuccessful. Unless the 1979 conviction is quashed by a New Zealand court on the basis that there was an underlying flaw in the legal process in 1979 the appellant will remain ineligible to enter the U.S.

Grounds…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Miller v Police

Details

AGLC: Miller v Police [2017] NZHC 1994
Case: [2017] NZHC 1994
Decision Date: 21 August 2017

CaseChat Overview and Summary

The case of Miller v Police involves an application for leave to appeal 37 years after the conviction for importing a controlled drug. The appellant, Lyndsey Kay Miller, a New Zealand citizen, posted marijuana cigarettes from California to New Zealand in 1979 and was convicted and fined $200 in the Nelson District Court. The appeal concerns the adequacy of legal advice she received at the time, the impact of the conviction on her ability to travel to the U.S., and the potential for a miscarriage of justice. The primary legal issue before the court was whether to grant leave to appeal out of time, considering the absence of substantive evidence due to the loss of documents and the passage of time.

The court considered the relevant statutory provisions and case law, including R v Knight and Cleggs Ltd v Department of Internal Affairs, which outline the considerations for granting leave to appeal out of time. The appellant argued that she received inadequate legal advice, which amounted to a failure of due process, and that the consequences of this advice only became apparent when her U.S. visa application was refused in 2015. The respondent argued that the appeal was without utility and that the lack of documentation prejudiced their position.

The court found that the appellant's sworn testimony, combined with the newspaper reports, provided sufficient evidence to conclude that she did not receive adequate legal advice about the impact of the conviction on her ability to travel to the U.S. The court also found that the delay in applying for leave to appeal was explicable, as the appellant was unaware of the full consequences of the conviction until her U.S. visa application was refused. The court concluded that the proposed appeal had strong prospects of success and that the delay did not prejudice the respondent. The court granted leave to appeal out of time as to both conviction and sentence and directed the parties to file written submissions on the substantive appeal.

Orders