Noble v The Queen
[2019] NZHC 1011
•9 May 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2019-463-28
[2019] NZHC 1011
BETWEEN HIRA NOBLE
Appellant
AND
THE QUEEN
Respondent
Hearing: 8 May 2019 Appearances:
Appellant in person
O M Salt & J M Sutton for Respondent
Judgment:
9 May 2019
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 9 May 2019 at 4:30 pm Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Tauranga
NOBLE v R [2019] NZHC 1011 [9 May 2019]
[1] Mr Noble appeals from a decision by Judge Cameron made on 6 March 2019 declining an application by Mr Noble for leave to vacate his guilty pleas to two charges.1
[2] At the Tauranga District Court on 24 October 2018 Mr Noble entered guilty pleas to two charges. He was represented and advised by counsel at the hearing when he entered the guilty pleas. The two charges being:
(a)possession of a psychoactive substance with intent to sell2; and
(b)selling a psychoactive substance.3
[3] On 15 January 2019, prior to his sentencing on the charges, Mr Noble provided Community Probation Services with a letter in which he purported to rescind his guilty pleas, and which was thereafter treated by the Crown and the District Court as being an application to vacate his guilty pleas.
[4] Mr Noble is also facing a number of other drug related charges in respect of which he has pleaded not guilty.
[5] The application to vacate the guilty pleas was heard before Judge Cameron on 22 February 2019. Prior to the hearing Mr Noble’s counsel had been granted leave to withdraw and Mr Noble was thereafter self-represented.
[6] In support of his application Mr Noble provided the District Court with a written memorandum entitled, “Breach Of Te Tiriti O Waitangi Trust 1840 Article I, II, III, and IV”, and stating: “Subject Matters: Special appearance to rescind plea pursuant to Sections 247/253/271/2/5 Te Ture Whenua Maori Incorporations Constitution Regulations 1995.” Although the contents of the document are somewhat difficult to follow it purports to be a special resolution of the Nga Uri Whakatupuranga O Maukoro Maori Incorporation requiring a stay of the proceedings brought against Mr Noble for up to 63 days to allow the matter to be “resolved through te kooti marae
1 R v Noble [2019] NZDC 3790.
2 Psychoactive Substances Act 2013, s 70(1)(c).
3 Psychoactive Substances Act 2013, s 70(1)(a).
processes by May 2, 2019, such te kooti marae being a court of competent jurisdiction…”
[7] After noting the Crown’s opposition to Mr Noble’s application on the basis that he did not have a tenable defence, and the Crown’s submission that Mr Noble’s former counsel had not erred in advising him regarding the entering of his guilty pleas, Judge Cameron said:
[6] At the hearing of the application it became clear that the defendant’s only defence was that he was not subject to the legislation under which the defendant has been charged. That is, that he is not bound by such legislation. However, the Courts have made it quite clear that Acts of Parliament are binding on all persons within the territory of New Zealand, including Pakeha and Maori – see, for example R v Knowles.4
[7] The Courts have made it clear that exceptional circumstances need to be established for there to be a vacation of not guilty (sic) pleas. In R v Merrilees, the Court identified that trial counsel error as to the non-availability of a defence could constitute an exceptional circumstance. However in this case the defence advanced by the defendant is not available. Therefore, the fact that the defendant[‘s] counsel is not likely to have raised this as a possible defence is completely understandable.
[8] I note that the evidence against the defendant is strong and was gathered by police through phone recordings, analysis of text messages, surveillance and the execution of a search warrant at the defendant’s address.
[9] In conclusion the defendant does not claim that he acted upon any material mistake. He has not identified any tenable defence to evidence which is strong and as such it is not in the interests of justice to vacate the two guilty pleas.
Submissions
[8] Mr Noble presented and relied on his written submissions. He says in his submissions that he entered the pleas of guilty because of “off-the-record deals via the crown.” He says that he was pressured into quickly making the deal and had done so under duress. Although also stating that he has further evidence, no details or particulars of any further evidence were provided. Mr Noble did not have anything to add orally to his written submissions.
[9] The remainder of his written submissions, although discursive, essentially appear to mount a challenge to the jurisdiction of the District Court to hear and
4 R v Knowles CA146/98, 12 October 1998.
determine the charges brought against Mr Noble, and propose that the matter be conferred “to a more competent jurisdiction that being one of Tikanga/Kawa; Customs and Usages.” Mr Noble says that the Judge failed to take his submissions into account when deciding to decline his application to vacate his pleas.
[10] Mr Salt for the Crown submits that the appellant’s appeal is governed by s 296(2) of the Criminal Procedure Act 2011, which provides for an appeal, with leave of the first appeal court, on a question of law against the ruling by the trial court. He submits that Judge Cameron made no error of law in his decision declining Mr Noble’s application and accordingly the Court should not grant him leave to appeal.
[11] The respondent says that during the hearing before Judge Cameron, the appellant did not raise any matters or make submissions other than those relating to sovereignty issues, as was noted by the Judge.
Relevant law and principles
[12] Section 296(2) of the Criminal Procedure Act 2011 (the CP Act) provides for an appeal on a question of law against a ruling by the trial court, with leave of the appeal court.
[13]Section 115(1) of the CP Act provides:
(1)A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
[14] The approach to the exercise of the court’s power to grant leave to vacate or withdraw a guilty plea was addressed by the Court of Appeal in R v Merrilees.5 The Court said:
[33] The exceptional circumstances in which an appeal against conviction may be pursued after entry of a plea of guilty are described by this Court in R v Le Page (above) at [16]-[19]. It has to be shown a miscarriage of justice will result if a conviction is not overturned, and where an appellant fully appreciates the merits of his position and makes an informed decision to plead guilty, a conviction cannot be impugned. It was said that a miscarriage will be indicated in three broad situations, namely:
5 R v Merrilees [2009] NZCA 59 at [33] to [35].
[17] ….The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element….
[18] A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged….
[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law….
[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[15] Something more than a defendant having second thoughts or misgivings about having entered a guilty plea is necessary to establish that a miscarriage of justice has occurred.6
[16] In Foley v R, Mander J summarised the principles to be applied in determining an application to vacate or withdraw a guilty plea as follows:7
(a)Where a defendant has “not really” pleaded guilty. If the defendant did not appreciate the nature of the charge, or did not intend to admit his or her guilt, or on the facts could not have been guilty of the offence charged. …
(b)If there is a defence to the charge of which the defendant was unaware when he or she pleaded guilty, whether because of incompetent legal advice or otherwise. …
6 R v Merrilees at [38].
7 Foley v R [2015] NZHC 829 at [4] – [5]; applied in Enoka v R [ 2017] NZHC 8.
(c)Where the proceedings were defective or irregular; or there was some impropriety in the conduct of the proceedings, or of the prosecution.
…
(d)Where the defendant’s ability to determine whether or not to plead guilty was affected by some temporary or permanent impairment or lack of capacity, by ill health, or other circumstances. …
(e)Where in entering the plea the defendant acted upon a material mistake. …
[footnotes omitted].
Discussion
[17] Although in his written submissions Mr Noble says that he entered his guilty plea because of off-the-record deals “via the crown”, and says that he feels that he was “pressured into quickly making this deal”, and did so “under duress”, he has provided no details of what he is referring to, nor any evidence as to what those assertions are based on.
[18] The preponderance of his written submissions relate to his submission that the prosecution of the charges should be referred to and dealt with by the competent jurisdiction of “Tikanga/Kawa; Customs and Usages.”
[19] A similar challenge to the jurisdiction of the Courts of New Zealand was considered by the Court of Appeal in Phillips v R in which the Court observed:8
[9] It is unnecessary to rehearse the numerous decisions of this Court in which similar challenges have been made and failed. Examples include R v Miru, R v Mitchell, R v Takao, R v Toia, Nga Uri O Te Ngahue v Wellington City Council, R v Waetford and R v Knowles.
[10] The New Zealand Parliament has the sovereign power to legislate for criminal offending such as that disclosed in the present appeals. None of the legislation cited by the appellants provides a separate justice system for Maori offenders. While some legislation in New Zealand expressly recognises the customary rights of Maori, the legislation at issue in these appeals does not do so. We also note that the Supreme Court has recently declined leave to an appellant to advance similar Maori sovereignty arguments on the basis that they were “plainly unsound legally”.
8 Phillips v R [2011] NZCA 225.
[11] We conclude that the District Court had jurisdiction to deal with the charges at issue and that there was no jurisdiction to transfer the proceedings in the manner sought by the appellants.
[20] Mr Noble has failed to show that any of the circumstances that would warrant or require the court to grant him leave to vacate his pleas are present in his case. He was represented by counsel at the time that he entered the guilty pleas, and there is nothing to suggest, let alone establish, that the legal advice he received from his former counsel was other than correct in terms of the consequences to him of entering guilty pleas. Moreover, there is nothing to establish that Mr Noble did not appreciate the nature of the charges or that he did not intend to plead guilty, and the guilty pleas were entered as a result of some mistake.
[21] Apart from his challenge to the court’s jurisdiction, Mr Noble has not identified or shown that he has any defence to the charges. The Crown Summary of Facts states that during March 2018 the Police carried out an investigation into the activities of Mr Noble, his wife, other family members and his associates. The Police investigation involved the interception of telephone and text communications and surveillance of the appellant and others. The evidence obtained by the Police described in the Crown summary includes evidence of Mr Noble supplying quantities of non- approved psychoactive products to others at a wholesale price for on-sale. When the Police executed search warrants at the appellant’s residence in April 2018, they located self-sealing plastic bags containing plant material, and barrels buried in an adjoining area of public land containing a large quantity of psychoactive plant material. The Police also located a firearm and ammunition in one of the buried barrels. The Crown summary alleges that the Police investigation established that the selling of psychoactive substances by Mr Noble and his associates had been on-going since 2013.
[22] Referring to the prosecution evidence, Judge Cameron described the case against Mr Noble as being strong. I agree. There being no tenable defence; no basis upon which the pleas could be said to have been entered upon the basis of a misunderstanding or mistake; no evidence that the guilty pleas were entered as a result of duress or pressure; or entered in any other circumstance that would vitiate the guilty pleas; coupled with a strong prosecution case, leads me to conclude that no miscarriage
of justice would occur if the application to vacate or withdraw the guilty pleas was declined.
[23] Accordingly, I find that the appellant has failed to establish that the District Court Judge erred in his decision declining Mr Noble’s application to vacate his guilty pleas.
Result
[24] For these reasons, the application for leave to appeal is declined and Mr Noble’s appeal is dismissed.
Paul Davison J
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