Miller v Police
[2017] NZHC 1994
•21 August 2017
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 RespondentJudgment:
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 of leave to appeal out of time
[5] The appellant applies for leave to appeal 37 years out of time on the following basis:
(a) Section 123 of the Summary Proceedings Act 1957 at the time of offending allowed an intending appellant to apply to a judge to extend the prescribed time for filing of appeals. This power has been preserved in s 248(4) of the Criminal Procedure Act 2011. There is thus no statutory time limit on the bringing of an appeal.
(b)It is in the interests of justice that the appeal be heard for the following reasons:
(i) the strength of the proposed appeal;
(ii) the practical utility of the remedy sought;
(iii) the length of delay is explicable in the circumstances;
(iv) the impact upon the appellant’s family has been
disproportionately severe;
(v)the proposed appeal if granted will not open the floodgates on out of time appeals; and
(vi)the administration of justice is served by allowing leave to appeal.
(c) The above factors in combination form special circumstances which outweigh the principle of finality in litigation.
Grounds of substantive appeal
[6] Should leave to appeal be granted, the appellant applies for a general appeal against sentence under s 115 of the Summary Proceedings Act 1957, on the grounds that a miscarriage of justice has occurred by virtue of what could be described as a failure of due process at the time of the plea of guilty as a result of:
(a) the appellant receiving inadequate and incorrect legal advice at the time regarding the impact of the conviction upon her ability to travel to the U.S. and her immigration status;
(b)the appellant receiving no advice regarding her right to apply for a discharge without conviction;
(c) the appellant receiving incorrect legal advice that a guilty plea would have no impact on her life other than a fine; and
(d)the conviction and sentence imposed have had a disproportionately harsh and delayed impact upon the appellant’s ability to visit and live in the U.S., where her now adult children reside as citizens. As the correct implications for the appellant - given her status as permanent resident of the U.S. – were not considered by the Court at the time of sentencing this has resulted in a miscarriage of justice.
The District Court decision
[7] The Nelson District Court convicted the appellant on 11 December 1979 and fined her $200. The Court file, including the Judge’s decision and police summary of facts, have been destroyed in the intervening period. The Magistrate who presided over the hearing died in 1992. However, the local newspaper, the Nelson Mail (then known as the Nelson Evening Mail), reported the Court proceedings reasonably fully after both the initial plea and the sentencing decision. The reports state:
Guilty of Drug Charge – A woman who had sent a small amount of cannabis through the mail from the United States was charged with importing the drug in New Zealand. Lindsey [sic] Kay Miller, 27, fruit worker, pleaded guilty to the charge and was convicted and remanded for a probation officer’s report and sentence by Mr Headifen. Sgt D. Allen said that on October 19 a letter addressed to Andrea Swan was posted in the United States. On October 25
Customs officers intercepted it at Auckland Central Post Office and opened it. Inside was 5 grams of cannabis leaf. The letter had a sender’s name on it. A search warrant was later executed on a house at Ruby Bay and resulted in Miller being interviewed. She said she and her husband usually worked in the United States during the summer and when he returned to New Zealand she was left behind and tended to a small crop of cannabis. She admitted sending the cannabis using a false name and said that it had been meant for a friend in Ngatimoti. – The Nelson Evening Mail, 5 December 1979.
A woman who imported cannabis into New Zealand by sending it through the mail was fined $200 when she appeared for sentence. Lindsey [sic] Kay Miller, 29, [sic] fruit worker, had previously pleaded guilty to the charge. Counsel, Mr C N Tuohy said Miller was married to an American and they had lived in California for five years. Her husband was a commercial salmon fisherman and in the closed season they had come to New Zealand to visit Miller’s family. Their neighbours in California also had ties with New Zealand and they had come to New Zealand before Miller and her husband and she had been asked to look after their neighbour’s few cannabis plants. On her own initiative she had sent a small amount of the cannabis leaf to the plants’ owner. Mr Tuohy emphasised that Miller’s husband had had nothing to do with the offence and the police accepted this. He said there had been no arrangement or scheme of any sort regarding sending the cannabis into New Zealand and this, also, was accepted by police, as the addressee had not been
charged with the offence. Only a small amount of cannabis was involved and Mr Tuohy said Miller had no involvement with the drug in New Zealand. – The Nelson Evening Mail, 12 December 1979.
Submissions
[8] Ms Stanley on behalf of the appellant submitted that:
(a) A general right to appeal against sentence, including out of time, existed under the Summary Proceedings Act 1957 which has been carried through to the Criminal Procedure Act 2011.1
(b) The considerations set out in the applicable case law have been met:2
(i)While the elapse of 37 years since conviction is extraordinary, the delay is explicable as the severe impacts of the conviction did not fully materialise until 2015 when the U.S. Immigration department refused the appellant a visitor’s visa to see her children and grandchildren. It was bureaucratic oversight and chance that this issue was not raised by the U.S. Immigration department earlier, when the relevant documentation of the conviction still existed.
(ii)The specific facts of this case, including the hardship of her children, will preclude a general flood of appeals out of time, should leave be granted.
(iii)The Crown is not prejudiced by the granting of leave. There are no victims in relation to this conviction for whom an appeal will re-open wounds.
(iv)It is not in the interests of justice for the consequences of conviction to fall so harshly and permanently on the appellant
37 years after the date of conviction, and for her to have no
1 Summary Proceedings Act 1957, s 115(1); Criminal Procedure Act 2011, s 229(1).
2 The tests are set out in R v Knight [1998] 1 NZLR 583 (CA) at 388 and Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984.
recourse to appeal. This is particularly when there were alleged procedural and substantive flaws in the conviction.
(c) The appellant submitted that this is not an appeal against conviction as this would be difficult to justify and retry without any of the original evidence or documentation. I do not agree with this submission, for the reasons set out below.
(d)A miscarriage of justice occurred in the original conviction on the following grounds:
(i)Inadequate legal advice as to the serious nature of the offence and the impact of the conviction and sentence upon her ability to travel to America.3
(ii)Inadequate consideration given by the Court to the impact of the conviction upon her ability to travel to and live in the US with her husband.4
[9] Ms Bell, on behalf of the respondent submitted that the appellant entered a guilty plea early in the proceedings and was summarily convicted. On the law as it existed then, this meant the maximum penalty for conviction under s 6(3) of the Misuse of Drugs Act 1975 was imprisonment for a term not exceeding 1 year or a fine not exceeding $1000 or both in any other case.5 The respondent agrees with the applicable legal standard for granting leave to appeal out of time but disagrees with the appellant’s weighing of those considerations. Ms Bell on behalf of the respondent further submitted:
(a) The lack of documentation from the time of conviction, including sentencing notes, or notes of the appellant’s counsel are prejudicial to
the respondent.
3 Submissions for the appellant, 18 July 2017 at [29].
4 At [30].
5 Submissions for the respondent, 25 July 2017 at [1].
(b) Appeals under the relevant part of the Summary Proceedings Act
1957 were conducted by way of rehearing.6 Such rehearing is not possible in the circumstances.
(c) The offending of importing a class C drug was serious at the time, as was the fine imposed (although it may appear nominal by today’s standards) which the respondent submits indicates the Court’s view of the seriousness of the offence. The lack of sentencing notes means any reassessment today will carry a level of prejudice as historical context is absent.
(d)Any fresh assessment of a discharge without conviction under s 106 of the Sentencing Act is going to have a humanitarian approach factored in which will not achieve the outcome desired by the appellant with US immigration. Thus the proposed appeal is without utility.
Relevant law
[10] The relevant power to grant leave out of time is in s 123 of the Summary
Proceedings Act 1957 and reads:
(1) Any judge of the [High] Court may, on the application of the appellant or the intending appellant, extend any time prescribed or allowed under this part … for the filing of any notice or the stating of any case or the doing of any other things in respect of any appeal or proposed appeal to the [High Court].
[11] The parties agreed the two key authorities regarding leave to appeal out of time are R v Knight and Cleggs Ltd v Department of Internal Affairs.7 Knight sets out the following considerations for the granting of leave:8
(a) the strength of the proposed appeal;
6 Summary Proceedings Act 1957, s 19(1).
7 R v Knight [1998] 1 NZLR 583 (CA); Cleggs Ltd v Department of Internal Affairs HC Auckland
M1032/84, 5 September 1984.
8 R v Knight above n 7 at 388.
(b) the practical utility of the remedy sought;
(c) the length of delay and the reason for it; and
(d)the extent of impact on others similarly affected and on the administration of justice (a floodgates assessment).
[12] In Cleggs, criteria for granting leave out of time were summarised as:9
(a) the onus is on the applicant to show special circumstances why the decision and sentence should not stand;
(b)the discretion is given essentially for purposes of avoiding miscarriages of justice;
(c) that all the circumstances of the particular case should be considered;
and
(d)that one of the matters which must be established is that there is a real likelihood of the appeal succeeding if leave is granted.
[13] In considering the strength of the proposed appeal, the law around appealing against a sentencing discretion has been described thus: 10
The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”. … It follows that to establish that an error was involved in the imposition of the sentence it must be shown that in sentencing the trial Judge has indeed made an error, whether intrinsically, or as a result of additional material submitted to the Court of Appeal on the appeal. (Emphasis added)
[14] This gives the Court what have been described as ‘fix it’ not ‘redo it all’
powers.11
9 Cleggs Ltd v Department of Internal Affairs above n 7 at 2116.
10 R v Shipton [2007] 2 NZLR 218 (CA) at [138] and [139].
11 Houston v R [2013] NZCA 581 at [12].
Analysis
[15] The issue here requires the Court to venture into the misty depths of history. There is little in terms of substantive evidence to light the way. The passing of time and loss of documents makes the circumstances of the conviction and sentencing difficult to reconstruct. However this absence does not preclude an analysis of the circumstances. Although the Court record no longer exists, the appellant has testified under oath that she was not advised on either her right to apply for a discharge without conviction, nor of the impact that conviction would have upon her
ability to travel to and from and reside in the U.S.12
[16] The primary source of information as to the charges is the two newspaper articles in the Nelson Evening Mail dated 5 and 12 December 1979. These primary sources are comprehensive accounts. They detail the name of the appellant, her counsel, the details of the offending, the charge and sentence, the submissions of defence counsel regarding the involvement of her husband, the police perspective on the involvement of other parties, and the amount of cannabis involved. I am persuaded that had a discharge without conviction been applied for or considered and rejected by the Magistrate at the time this would have been reported at the time.
[17] The appellant testified under oath that she was not informed by her lawyer at the time of the negative impact of a conviction of “drug trafficking” upon her ability to travel to the U.S.13 She affirms that she specifically asked as to the effect on her immigration status and was advised the effect of conviction would be minimal. This legal advice was relied upon by the appellant, and was incorrect.
[18] The combination of this primary source evidence and the sworn evidence of the appellant are sufficient to persuade me that there was inadequate legal advice provided to the appellant at the time of her offending and that this amounted to a failure of due process. I thus believe, on the facts before me, that should I grant the application for leave to appeal out of time, as the proposed appeal has strong prospects of success.
[19] As to the other factors listed in R v Knight, the delay in applying for leave to appeal is explicable, as the full consequences of the incorrect or inadequate legal advice the appellant received did not start to crystallise until the rejection of the appellant’s visitor’s visa application in July 2015. The full consequence crystallised in March 2017 after the appellant exhausted her appeal rights within the U.S. Immigration department. The appellant ought to be allowed to challenge the late arrival of serious, and potentially disproportionate consequences of conviction. Had she been rejected by the U.S. Immigration department earlier, she would have brought her appeal earlier, perhaps when the records were still available. The situation leading to this out of time application is not one of her own making, beyond her culpability for the initial conviction.
[20] Further, I anticipate that the effects of granting leave to appeal out of time will have a minimal impact on the public, and potentially positive impacts on the appellant and her family. There are no victims in this offending to whom I need to give consideration.
Remedy sought
[21] I do not consider counsel for the appellant’s submissions helpful as to whether this is an appeal against sentence or conviction. I disagree with counsel’s assertion that the remedy sought is an overturning of sentence, and that this will provide an adequate remedy. The remedy sought is a “conviction vacated because of
a procedural or substantive defect”.14 An appeal against sentence will not achieve
this outcome. The appellant must challenge both conviction and sentence.15 The appellant’s grounds of appeal relate to alleged inadequate legal advice and the alleged failure of counsel at the time to turn his mind to, or apply for, a discharge without conviction under s 42 of the Criminal Justice Act 1954. These alleged inadequacies go the heart of the conviction, not just to the sentence of a fine of $200 which was imposed.
[22] The remedy sought (a vacation of the conviction due to a procedural or substantive defect) is potentially available to the appellant and will be of practical assistance in her efforts to visit her family.
[23] Overall I am satisfied that the facts are such that conviction and the sentence imposed in 1979 might have given rise to a miscarriage in justice.16 I therefore grant the appellant leave to appeal out of time as to both conviction and sentence.
[24] Having been persuaded that leave should be granted I direct counsel to file written legal submissions. I note that the majority of the case law on this point states that seeking a discharge without conviction is an appeal against conviction and sentence.17 Counsels’ submissions should address why an appeal against conviction and sentence is warranted in this case. I direct that the appellant file such submissions within fourteen days, with the respondent having fourteen days to reply,
and the appellant to have a further five days in reply.
Churchman J
Solicitors:
Thomas Dewar Sziranyi Letts, Wellington for Appellant
Crown Solicitor, Nelson
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