Murdoch v Police
[2019] NZCA 366
•16 August 2019 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA712/2018 [2019] NZCA 366 |
| BETWEEN | JOSHUA STEPHEN MURDOCH |
| AND | NEW ZEALAND POLICE |
| Hearing: | 1 August 2019 |
Court: | French, Mallon and Moore JJ |
Counsel: | Applicant in Person |
Judgment: | 16 August 2019 at 10 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Introduction
On 21 August 2018 Mr Murdoch pleaded guilty in the Christchurch District Court to a charge of threatening to cause grievous bodily harm. He was convicted and sentenced to nine months’ supervision.[1]
[1]Police v Murdoch [2018] NZDC 19256.
He appealed that conviction and sentence to the High Court. The appeal was dismissed by Gendall J on 2 November 2018.[2]
[2]Murdoch v Police [2018] NZHC 2849.
He now seeks leave to bring a second appeal against his conviction and sentence. The application is opposed.
Factual and procedural background
The charge related to a threat Mr Murdoch made on 25 May 2018. The complainant was a woman who worked at the Ministry of Social Development (MSD). Mr Murdoch had telephoned the MSD to arrange emergency housing. In the course of his discussions with the complainant, Mr Murdoch became verbally aggressive. He shouted at the complainant and said “I’m gonna fucking come down there and smash your face in! I’m gonna tear the place apart and rip your face off.”
Upset by these threats the MSD worker complained to the Police and Mr Murdoch was charged with threatening to cause grievous bodily harm.
On 21 August 2018 Mr Murdoch appeared before Judge T J Gilbert. A transcript of the exchange between Mr Murdoch and the bench has been obtained. This reveals that Mr Murdoch’s counsel, Mr Dickson, sought leave to withdraw on the basis that Mr Murdoch had made it plain he no longer wished Mr Dickson to act for him. It is not clear from the transcript whether the Judge granted leave although nothing in this appeal turns on that.
There then followed a discussion between the Judge and Mr Murdoch about the alleged offending and what the sentence might be if he pleaded guilty. In the course of those discussions Mr Murdoch described the circumstances surrounding his call to MSD. At no time did he challenge the correctness of the allegations made against him. Instead he requested regular counselling to assist him with his mental health issues. The Judge carefully explained what a sentence of supervision would involve before asking Mr Murdoch whether he wished to plead guilty to the charge. Mr Murdoch said he did. The charge was then put to him by the Judge who asked him how he wished to plead. Mr Murdoch responded, “Guilty”. The Judge then entered a conviction and sentenced Mr Murdoch to nine months’ supervision.
Notwithstanding his plea of guilty Mr Murdoch appealed his conviction and sentence to the High Court. He said he did so on the basis that “he felt pressured to plead guilty by his lawyer and the Judge.” [3]
[3]At [1].
On appeal before Gendall J, Mr Murdoch apparently expressed uncertainty around his reasons for bringing the appeal. He observed he was trying to get his life back on track and had been in a “bad headspace”.[4] He explained that the offending was borne of frustration in his dealings with MSD.[5] He made no endeavour to deny he had made the threats in question, adding that he “did not know or understand 100 per cent sure what was happening” during the District Court hearing.[6]
[4]At [15(a) and (b)].
[5]At [15(d)].
[6]At [15(e) and (f)].
Gendall J, who had the benefit of the District Court transcript, determined there was no merit in Mr Murdoch’s claim he did not understand the significance of his guilty plea or that it was entered as a consequence of improper pressure.[7] He concluded that Mr Murdoch had not satisfied him that any grounds existed to vacate his plea of guilty and dismissed the conviction appeal.[8]
[7]At [25].
[8]At [23]–[26] and [34] citing R v Merrilees [2009] NZCA 59 at [35].
On the sentence appeal Gendall J observed, after reviewing comparable authority, that the sentence imposed was lenient.[9] It focused very much on Mr Murdoch’s rehabilitative and reintegrative needs in terms of s 7(1)(h) of the Sentencing Act 2002. It could not be said to be manifestly excessive. He dismissed the sentence appeal.[10]
Application for leave for second appeal
[9]At [29] and 31] citing Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011 (22 months’ imprisonment for threatening to kill his de facto partner, presenting a firearm at a person in that same incident and being in possession of a firearm after the licence was revoked); Simon v R [2014] NZCA 207 (six years’ imprisonment for threatening to kill, assault and drug related offences); Lawrence v Police [2015] NZHC 1122 (11 months’ imprisonment for four charges of threatening to kill three politicians via email); and Annas v R [2011] NZCA 49 (sentence of nine months’ imprisonment on a charge of threatening to kill a WINZ manager by telephone following hard on the heels of the appellant being trespassed from the branch premises and while on bail for other charges).
[10]At [34].
Section 237(2) of the Criminal Procedure Act 2011 (the CPA) provides that this Court must not grant leave unless it is satisfied the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard. The statutory test sets a high threshold.[11]
Has a miscarriage of justice occurred or may occur?
[11]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
Mr Murdoch’s application for leave to bring a second appeal is handwritten. It is very difficult to decipher but appears to request recordings not only of his telephone call to MSD on 25 May 2018, but also of the hearings in the District Court and the High Court. Mr Murdoch provides his account of the background and circumstances of the telephone call to MSD. Before us, Mr Murdoch essentially repeated what is recorded in his leave application; he cannot remember what happened or what he said to the complainant. He explained that his personal circumstances are very difficult and at the present time he feels he is “going backwards”.
However, it is clear from the transcript of Mr Murdoch’s discussions with Judge Gilbert that on 21 August 2018 he fully understood the significance of his guilty plea and the consequences of pleading guilty to the charge. It is also plain from the transcript that he was under no pressure, from any quarter, to plead guilty. He did so fully cognisant of the consequences.
Notably in neither his application for leave, nor in his submissions to us, does he deny making the telephone call or using the words complained of.
It is well settled that exceptional circumstances are necessary before an appeal against conviction will be entertained after a guilty plea.[12] There are no exceptional circumstances present here. No question of miscarriage of justice arises.
Does the appeal involve a matter of general or public importance?
[12]R v Le Page [2005] 2 NZLR 845 (CA) at [16]; and Richmond v R [2016] NZCA 41 at [16]–[19].
No matter of general or public importance is engaged in the proposed appeal.
Result
For these reasons we are satisfied no grounds have been made out to grant leave to bring a second appeal.
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent