N v Police HC Wellington CRI-2009-485-49

[2009] NZHC 1766

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-49

N 

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 June 2009

Appearances: M J Lillico for Applicant

D R La Hood for Respondent

Judgment:      5 June 2009

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an  application  to  vacate  a  guilty plea.    The  applicant  faced  two burglary changes for incidents which were unrelated in circumstance but relatively close in time.  She was charged with a burglary that occurred in Taupo on 11 June

2007 where she had made an confession to police her involvement.  About a week later, the applicant and her partner were in Wellington when a property in Seatoun was burgled on 18 June.  The applicant wrote a confession to police when her partner was charged with that burglary and she subsequently, in a video interview, stated her

involvement in terms that it was she who was the offender and not her partner.

N   V POLICE HC WN CRI-2009-485-49  5 June 2009

[2]      To both of those burglary charges guilty pleas were entered.  For the first, the Taupo burglary, application was made to the District Court to vacate the plea.  That application was heard in November 2008 and the application was granted.   The second burglary charge was laid indictably and so under s 169 of the Summary Proceedings Act 1957 the application for a vacation of the plea must be dealt with in this Court.

[3]      The  essential  basis  for  the  application  is  that  the  confession  and  the statements at the interview were made under pressure which Mr Lillico submits came from two sources.  The first was direct pressure from the applicant’s partner. Mr Falwasser has subsequently been convicted for his involvement in the burglary. The second source of pressure is related, but separate, in that Mr Lillico submits that the applicant was under emotional pressure arising from the fact that her partner had been charged with the burglary, that she was 17 years of age at the time and she was some seven months pregnant, and that those circumstances constituted emotional pressure on her.

[4]      Mr Lillico  submits  that  it  is  not  a  pre-condition  of  the  success  of  the application that inadequate legal advice has been obtained.  In this case the applicant did receive legal advice before the plea was entered, although it may well be that in giving that advice counsel was, at least to some extent, reliant upon information which the applicant now says is false in terms of her confession.

[5]      Mr Lillico also submits that it is not a pre-requisite of the success of the application that the applicant be able to demonstrate an arguable defence to the charge, but submits that to the extent that that is relevant is an arguable defence and that at least her involvement in the matter may not go beyond receiving rather than burglary.

[6]      It is appropriate to describe the circumstances in a little more detail.  These circumstances are available from the materials available and also from the evidence which the applicant gave in her affidavit on which she was cross-examined at this hearing.  The circumstances are that it is not in issue that the applicant went to the address of the property concerned on the day prior to the burglary and at the request

of her partner knocked at the door to see whether anyone was home.  It is also not in dispute that about a week later the police searched the address which the applicant and her partner were sharing and located items stolen from the address and that in the car items taken were also found.  Amongst the items found was a driver’s licence and a credit card in the name of another person who, when she was asked about it, the applicant said was her aunt.  That was untrue.

[7]      The applicant under went a full video interview on 11 July 2007 in which she took full responsibility for the burglary and described her involvement in terms which would have, if believed, made her responsible and exonerated her partner.

[8]      The test to be applied on this application is whether it is in the interests of justice that the plea be vacated.  The discretion of the Court to allow an application to vacate a plea of guilty is unfettered whenever the interests of justice demand it.  It is however not to be lightly exercised.

[9]      The essential question on this application is whether the pressure to which the applicant says that she was subjected is such that it should lead to the conclusion that her plea was not a voluntary plea, so that it would not be in the interests of justice to allow that plea to stand.  I accept, on the evidence, that the applicant may have felt under some pressure – either direct pressure from her partner or the indirect pressure arising from the relationship for which Mr Lillico contends.   The real question is whether the extent of that pressure may have been such as to render her plea not voluntary.

[10]     I do not think that it reaches that level.  One view of the matter is that this was a cynical attempt to exonerate the applicant’s partner and an attempt which was joined in voluntarily by the applicant.  It would not be in the interests of justice to allow vacation of a plea where an applicant has knowingly sought to assist in the exoneration of a guilty party to offending and then, if that attempt proves unsuccessful, to seek to resile from the statements made or from the plea entered as a consequence.

[11]     I do not consider, that there is here, evidence of pressure which rendered the applicant’s plea involuntary so as to render it contrary to justice for the plea to stand.

[12]     In reaching that conclusion I bear in mind that the applicant had legal advice at the time when the plea was entered.   That is not a bar to the granting of the application but it is a factor which I am able to take into account in deciding whether the plea should be vacated or not.

[13]     Another factor that I take into account is the strength or otherwise of the Crown’s case and whether there might be a defence.  On the largely uncontroverted evidence that I have described the Crown would appear to have a quite strong case for liability as a party to the offending though not as the principal offender.  The full extent of the applicant’s involvement in the offending is a matter to be taken into account by the Court on sentencing and the circumstances are not such as to demonstrate such a strong defence that it could be said that it would be contrary to justice to allow the plea to stand.

[14]     For   these   reasons   I  consider   that,   taking   all   of   those   matters   into consideration, this is not a case where the plea should not stand, and the application is accordingly dismissed.

“A D MacKenzie J”

Solicitors:         Mark Lillico Lawyers, Wellington

Luke, Cunningham & Clere, Wellington