Mu v Police
[2015] NZHC 19
•22 January 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000336 [2015] NZHC 19
BETWEEN DANNI MU
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 January 2015 Appearances:
D Mu (self-represented Appellant) in Person
(Mr Bioletti granted leave to withdraw) K R A Muirhead for the Respondent
Judgment:
22 January 2015
JUDGMENT OF VENNING J
This judgment was delivered by Justice Duffy on 22 January 2015 at 11.30 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Meredith Connell, Auckland
Copy To: D Mu, Auckland
MU v NEW ZEALAND POLICE [2015] NZHC 19 [22 January 2015]
[1] Ms Danni Mu appeals to this Court against conviction in the District Court on:
· Three charges of criminal harassment;
· Three charges of intimidation; and
· One charge of threatening to kill, or do grievous bodily harm.
[2] On 23 September 2014, Judge David Sharp in the District Court at Auckland sentenced her on the above charges to come up if called upon within 12 months.1
Procedural background
[3] On 25 February 2014, Ms Mu pleaded guilty to the above charges, together with a charge of common assault. Some of the offending dated back to incidents that occurred as long ago as January 2010.
[4] On 30 June 2014, Judge Wilson QC in the District Court declined Ms Mu’s
application for a discharge without conviction.2
[5] Ms Mu then applied to vacate her guilty pleas. On 21 August 2014, Judge Sharp set aside the conviction for common assault, it being a nullity as it was laid out of time. At the same time, the Judge declined Ms Mu’s application to vacate the guilty pleas in respect of the remaining seven charges.3
[6] Then on 23 September 2014, Judge Sharp declined Ms Mu’s second application for discharge without conviction and sentenced her to come up if called upon within 12 months.
[7] On 4 November 2014, Ms Mu filed a notice of appeal with this Court. The appeal was out of time. The 20 working days for appealing from Judge Sharp’s
1 NZ Police v Mu CRI 2013-004-4575, 23 September 2014.
2 NZ Police v Mu CRI 2013-004-4575, 30 June 2014.
3 NZ Police v Mu CRI-2013-004-4575, 21 August 2014.
decision expired on 21 October 2014. As it transpires, Ms Mu’s major issue appears
to be with the earlier decision of Judge Sharp declining to set aside her guilty pleas.
[8] On the same date of 4 November 2014, Mr Heaslip filed a memorandum
seeking leave to withdraw as Ms Mu’s counsel. That application was granted on
6 November 2014. On 14 November 2014, alternative counsel, Mr Withers, sought an adjournment of the hearing allocated for 20 November 2014 as he was unable to confirm Ms Mu’s instructions. On 18 November 2014, Mr Withers filed a medical certificate from a doctor confirming Ms Mu was medically unfit for one week. On
18 November 2014, following a telephone conference, Lang J vacated the fixture scheduled for 20 November 2014 and allocated a fixture for 15 December 2014 for the appeal. The Judge directed Ms Mu to file and serve her written submissions by
1 December 2014.
[9] On 2 December 2014, Mr Withers filed and served a memorandum seeking leave to withdraw on the basis that he was unable to take meaningful instructions from Ms Mu. On 5 December 2014, the matter was called to review the position. Thomas J directed the matter be called on 15 December 2014. Ms Mu was required to attend and advise the Court whether she intended to continue with the appeal. The Judge had noted that Ms Mu apparently no longer wished Mr Withers to act for her, and wished counsel of her choice, Mr Kan, to be appointed by Legal Services, which was not an option.
[10] Ms Mu appeared on 15 December 2014 and produced a letter from
Legal Services confirming legal aid had been withdrawn.
[11] On 15 December 2014, Ms Mu advised she would like Mr Kan to represent her. On that basis, the Court adjourned the matter until 18 December 2014. Mr Kan, in the meantime, filed a memorandum with the Court advising that he was not able to accept instructions.
[12] When the matter was before the Court on 18 December 2014, Mr Bioletti appeared on behalf of Ms Mu. He indicated to the Court that he had acted for Ms Mu in the past. Mr Bioletti accepted that legal aid had been withdrawn and
indicated that he would act for Ms Mu, notwithstanding that legal aid had been
withdrawn. In the circumstances, the appeal was adjourned to today’s date,
21 January 2015 at 2.15 pm. Directions were made for Mr Bioletti to file and serve grounds of appeal. That did not occur. Instead, Ms Mu advised the Court by email on 19 December 2014 that she did not want Mr Bioletti to act for her and that she would represent herself. Mr Bioletti appeared on 21 January 2015 as a courtesy to the Court and was granted leave to withdraw. Ms Mu has filed an affidavit and has confirmed to the Court that she will represent herself. As the Court has observed on a previous occasions, the procedural background to that case is entirely unsatisfactory.
[13] The factual background to all of this is that Ms Mu owns a property at Mount Eden, which is a leaky building. The victims of her offending were all associated with the body corporate, or were other owners. Ms Mu has confused the relationship between the civil proceedings involving the leaky building and these criminal proceedings.
[14] Ms Mu is an older Chinese woman with no previous convictions. She was previously a real estate agent but has not practised as such since 2010. Ms Mu still maintains that she wants to set aside her guilty pleas and have a trial. She also considers that she should have been discharged without conviction.
[15] The summary of facts relating to the offending discloses serious harassment of members of the body corporate between 1 January 2010 and 24 April 2014. Ms Mu’s actions hindered the work of the members of the body corporate and in relation to one of the male members of the body corporate, extended to a threat to kill. The harassment extended to hundreds of email communications. It is clear that Ms Mu’s behaviour had a major impact on her victims. Importantly for present purposes, at the time Ms Mu pleaded guilty, she was represented by experienced counsel, and Ms Mu herself signed the summary of facts.
[16] Judge Sharp was quite correct to decline Ms Mu’s application to set aside her
guilty pleas. As the Judge noted, Ms Mu was represented by yet another experienced
counsel on her application to set aside the pleas. The Judge had a full affidavit from
Ms Mu’s previous counsel, who was cross-examined on it.
[17] The reasoning of Judge Wilson QC and Judge Sharp declining the applications for discharge without conviction is also unassailable. Judge Sharp, in particular, noted that the gravity of the offending was mitigated by the fact Ms Mu had pleaded guilty and accepted responsibility (subject to her applications to withdraw the guilty pleas), and Ms Mu had also undertaken courses in relation to anger management. The Judge also noted that at the age of 60, Ms Mu had no previous convictions. However, the Judge properly noted the seriousness of the threat to kill and the victim impact statements. The Judge was aware of the potential consequences of conviction. Ms Mu was previously a licensed real estate agent, but her licence had been suspended in 2010. She also suggested before Judge Sharp that she wished to immigrate to the United States. The Judge, following the orthodox approach, noted that her ability to work as a real estate agent and to travel would best be determined by the appropriate bodies at the time of any such application. Balancing the consequences of conviction against the gravity of the offending, the Judge was not satisfied that the consequences of conviction wholly outweighed the gravity of the offending. I agree.
[18] Despite everything that Ms Mu has sought to advance before the Court, Judge Sharp was undoubtedly correct to decline her application to vacate her guilty pleas and to later decline her application for discharge without conviction. The
appeal is dismissed.
Venning J
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