Murdoch v Police - [2018] NZHC 2849

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000091

[2018] NZHC 2849

BETWEEN
JOSHUA STEPHEN MURDOCH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 November 2018

Appearances:

Appellant in person

P A Norman for Respondent

Judgment:

2 November 2018

JUDGMENT OF GENDALL J

MURDOCH v NEW ZEALAND POLICE [2018] NZHC 2849 [2 November 2018]

Introduction

[1] On 21 August 2018, the appellant, Mr Murdoch pleaded guilty in the District Court to a charge of threatening to cause grievous bodily harm. Judge Gilbert convicted and sentenced him to nine months’ supervision. Mr Murdoch now appeals his conviction and sentence on the basis that “he felt pressured to plead guilty by his lawyer and the Judge”.

[2] Mr Murdoch appeared before me in person in support of his appeal. Ms Norman, appeared as counsel for the respondent.

Factual background

[3] The charge to which Mr Murdoch pleaded guilty was one of threatening to cause grievous bodily harm to a woman who worked at the Ministry of Social Development. On 25 May 2018, Mr Murdoch had telephoned the Ministry to arrange emergency housing. His telephone call was transferred from the contact centre to the victim in this matter. During the discussion, Mr Murdoch became verbally aggressive and began shouting at the victim. He stated “I’m gonna fucking come down there and smash your face in! I’m gonna tear the place apart and rip your face off”. Mr Murdoch had previously been trespassed from that particular office of the Ministry of Social Development for assaulting a security guard.

District Court decision

[4] Before the Court is a transcript of the hearing discussion before Judge Gilbert, between the Judge, Mr Murdoch, his counsel at the time Mr Dickson, and Sergeant Kay for the Police. Mr Dickson at the outset notes that Mr Murdoch no longer wants Mr Dickson to act for him. The Judge addresses Mr Murdoch, who began recounting his version of events and his frustration with Mr Dickson. All parties present discussed supervision as an appropriate sentence, and Mr Murdoch requested counselling. The Judge explained to Mr Murdoch what a sentence of supervision would entail, and that he would get that should he choose to plead guilty. Mr Murdoch it seems, agreed with that, and then pleaded guilty.

[5] In his formal sentencing judgment, Judge Gilbert outlined the offending and the plea, and sentenced Mr Murdoch to nine months’ supervision.

Principles on appeal

[6] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Section 232 of that Act, provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has…

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.

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Details

Case: [2018] NZHC 2849
Decision Date: 2 November 2018

CaseChat Overview and Summary

Joshua Stephen Murdoch appealed against his conviction and sentence for threatening to cause grievous bodily harm to a woman who worked at the Ministry of Social Development. The appeal was heard by Gendall J in the High Court of New Zealand. Murdoch argued that he felt pressured to plead guilty by his lawyer and the Judge, and that he did not fully understand the implications of his plea. The legal issues before the court were whether there was a miscarriage of justice in the conviction, and whether the sentence was appropriate.

The court found that Murdoch's claim that he did not understand the significance of his guilty plea and that it was made under pressure from Judge Gilbert or his counsel was not supported by the transcript of the legal discussion before Judge Gilbert. The court found that there was no indication of any pressure being imparted on Murdoch, and that his responses in the transcript showed that he did understand the implications of his plea. The court also found that later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned.

In terms of the sentence appeal, the court found that the sentence of nine months' supervision imposed by Judge Gilbert was a lenient one that focused on Murdoch's rehabilitative and re-integrative needs. The court found that the sentence was appropriate in all the circumstances and that Murdoch had not provided any evidence or material to support his appeal.

The court dismissed Murdoch's appeal against both conviction and sentence.

Orders