O v Police HC Wellington CRI-2007-485-70

[2007] NZHC 1038

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-70

O

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 October 2007

Appearances: B Crowley for Appellant

M J Inwood for Respondent

Judgment:      10 October 2007 at 10.00am

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 10 am on the 10th day of October 2007.

JUDGMENT OF CLIFFORD J

[1]      In the very early hours of 2 June 2007 the appellant was charged by the police with a breach of a liquor ban contrary to s 239 of the Local Government Act

2002.  Later that morning at the Police Station the appellant signed a notice to the Registrar  stating that  he pleaded  guilty to  that  offence  pursuant  to  s  41  of  the Summary Proceedings Act 1957.  That notice empowered the Court to deal with the

appellant as if he had appeared before it and pleaded guilty.

O V NEW ZEALAND POLICE HC WN CRI-2007-485-70  10 October 2007

[2]      Pursuant to that notice, and without any appearance by him or on his behalf, the appellant was on 15 June 2007 convicted of breach of a liquor ban, fined $150 and ordered to pay $130 Court costs.

[3]      The appellant now seeks to appeal his conviction and sentence on the basis that it was entered on the incorrect understanding that he would be granted diversion and was accordingly denied the opportunity to present a defence.

[4]      Mr O   swore an affidavit in support of his appeal.   In it he set out his recollection of events, including signing the “Notice to Registrar of guilty plea”.  His recollection was that, if he signed that document, it would be the same as pleading guilty and getting diversion.  He could make a donation to charity.  Whilst he did not recall exactly what was said to him by the police, his impression was that he would not get a conviction.

[5]      Mr O   referred to dealings with two police officers at the Police Station.

[6]      According to Mr O  , the first officer told him there would be a piece of paper for him to sign, and that he would not have to go to Court if he signed the paper, but could make a donation to charity.  Mr O   said that that police officer told him it would be the same as pleading guilty and getting diversion.

[7]      Mr O   referred to another policeman with whom he spoke at the time of signing the guilty plea notice.  Whilst Mr O   could not exactly recall what that policeman had said to him, his understanding was that the form was equivalent to turning up to Court and pleading guilty, that he would be given a fine, but that he would not get a conviction.

[8]      Two police officers also swore affidavits.

[9]      One of the officers, who understood he was the first officer to whom Mr O   referred as having advised him that signing the piece of paper would be the same as pleading guilty and getting diversion, thought it was very unlikely he would have said words to that effect, although he could not recall dealing with Mr O  .

[10]     The second officer, who understood he was the officer referred to by Mr O   as having dealt with him at the time Mr O   signed the guilty plea notice, also said he did not specifically remember the incident.   Nevertheless he was watchhouse officer on that night and would have processed any individuals who were brought to the station.   His standard practice was to distinguish between the possibility of  diversion,  and  the  signing  of  a  guilty  plea  letter.    He  thought  it unlikely, where someone signed a guilty plea letter, that he would have said anything about diversion.

[11]     Mr Crowley’s submissions were that Mr O  , in terms of his affidavit, had been left with an incorrect understanding that he would be granted diversion and receive no conviction.  The police affidavit evidence did not establish that Mr O   had not been left with that impression.

[12]     Moreover, Mr O   had not been advised of the Court hearing date, or the exact nature of the allegations to be made in Court.

[13]     In respect to that latter matter, Mr Crowley referred to the decision of Rodney Hansen J in Beeston v Police HC NWP CRI 2004-443-1 26 February 2004 where His Honour noted:

A procedure which simplifies the criminal justice process to the advantage of both the offender and the community is to be encouraged but it must not come at the cost of fair treatment of the offender.   It is important that the procedure adopted should contain safeguards which minimise the risk of injustice.  It seems to me that those safeguards should include providing the offender with a copy of the summary of facts which will be tendered for sentencing purposes and advising him or her of the date of hearing so that any challenge to the summary of facts can be mounted or plea in mitigation made.

[14]     It was therefore Mr Crowley’s submission that a miscarriage of justice had occurred in this case because Mr O   had signed the guilty plea letter under a mistaken impression and, furthermore, by not being advised of the hearing date, had missed the opportunity to attend (notwithstanding his guilty plea letter), and to have had the diversion process made available to him.   Mr Crowley submitted, and the Crown acknowledged, that in these circumstances police diversion would almost

inevitably have been made available to Mr O  .  Ms Inwood for the Crown also confirmed that the police file recorded that Mr O   was eligible for diversion.

[15]     For the Crown, Ms Inwood accepted that she could not resist the proposition that a miscarriage of justice may have occurred here.  She said the affidavits from the two officers established that the misunderstanding Mr O   averred to was unlikely to have been caused by anything the police may have said.  At the same time she acknowledged, however, that given:

•   the circumstances relating to Mr O  ’s offending  were  ones with respect to which diversion could have been offered by the police;

•   if Mr O   had attended at his sentencing, diversion may well have been offered; and

•    he was not advised of his hearing date,

she could not resist the proposition that a miscarriage of justice may well have occurred.

[16]     She therefore accepted that an appropriate response from this Court would be to allow the appeal and remit the matter to the District Court for the charge against Mr O   to be dealt with afresh.

[17]     On that basis, this appeal is allowed.  Mr O  ’s conviction is quashed and the question of his prosecution is remitted to the District Court.

[18]     My understanding, from counsel, is that offences of this nature are normally dealt with by the District Court in Wellington on a Friday, when the formal diversion procedures are available at the District Court.   It would seem appropriate for the charge against Mr O   to be heard on a Friday so that, if considered appropriate by the police, those procedures can be offered to him.

“Clifford J”

Solicitors:         Brett Crowley, P O Box 10-483, Wellington for Appellant

Crown Solicitor, Wellington for Police