Oakes v Police

[2024] NZHC 1930

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000202

[2024] NZHC 1930

BETWEEN

JULIET DORA OAKES

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Counsel:	Applicant self-represented M C M Nash for Respondent
Judgment:	15 July 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 15 July 2024 at 3.00 pm

pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date…………………………..

OAKES v NZ POLICE [2024] NZHC 1930 [15 July 2024]

Introduction

[1]        The applicant, Ms Juliet Oakes, seeks to  appeal  her  conviction  for theft. Ms Oakes was convicted on 19 January 1977 and sentenced to pay a fine of $30. She filed her notice of appeal on 13 May 2024. That is 47 years out of time.

[2]        Ms Oakes submits that she intends to pursue two grounds of appeal, were the application for an extension of time granted. First, she says that although a guilty plea was entered, she did not agree to that decision, and so the conviction should be overturned. Second, she refers to adverse consequences of the conviction, namely her inability to run a childcare business, and seeks a discharge without conviction, even were that guilty plea properly made.

[3]        The respondent, the New Zealand Police, opposes the application for extension of time. The Police say that the 47-year delay is extraordinary and largely unexplained; given the lapse of time, the prosecution is significantly prejudiced in responding to any appeal.

[4]        In accordance with my minute of 30 May 2024, the application is being determined on the papers.1

The statutory framework

[5]        Ms Oakes’ conviction was entered before the enactment of the Criminal Procedure Act 2011. In accordance with s 397(2) of that Act, her appeal must be heard and determined as if the Summary Proceedings Act 1957 was still in force.

[6]        Under s 115 of the Summary Proceedings Act, Ms Oakes had a general right of appeal to this Court against her conviction. Section 116 of that Act required that any appeal be lodged within 28 days of sentence. As noted above, Ms Oakes’ appeal is some 47 years out of time.

1      In response to my minute, I received submissions from the parties.

[7]        Section 123 of the Summary Proceedings Act allows the Court to extend the time for filing an appeal. In R v Slavic,2 the Court of Appeal held that the key questions are:

(a)Why was the appeal filed late?

(b)What merit does the prospective appeal have?

[8]The Court of Appeal held:3

[13]      It is for the appellant to provide sufficient information for the Court to determine whether it is in the interests of justice for leave to be granted… Where the appellant fails to provide a satisfactory explanation for the delay, “the only ground … on which the delay could be overlooked is if the proposed appeal is overwhelming on the merits.”

[14]      In the simplest terms, extension of time applications will routinely reduce to two heads. Firstly, why was the appeal filed late?  Secondly, what, if any merit, does the prospective appeal appear to have?

[9]        It is also relevant to address any prejudice to the respondent caused by the delay and the wider interests of society in the finality of decisions.4

Analysis and decision

The reason for the delay in filing the appeal

[10]      As the respondent submits, the triggering events of Ms Oakes’ application appears to be that she now wants to take on some childcare responsibilities and understands that this requires a clean criminal history.5

[11]      I accept that reason provides some explanation why Ms Oakes might now be seeking a discharge without conviction. However, it does not explain why she would

2      R v Slavich [2008] NZCA 116 at [14].

3      R v Slavich, above n 2, at [13] and [14] (citations omitted).

4      Brown v New Zealand Police [2018] NZHC 1083.

5      In her submission of 14 June 2024, Ms Oakes states: “Nearing 70 years of age, living alone with lifelong permanent health disabilities, my own children in heaven, I have the opportunity to run a childcare business, take care of little children in my area, this requires ‘no criminal convictions’ clean slate irrelevant in this case”.

not have earlier appealed against the finding of guilt. She did, of course, originally plead guilty.

[12]      Ms Oakes says that she did not know about appeal rights when she was convicted. However, that does not explain the very lengthy delay of 47 years that have passed since that time.

The merits of the appeal

[13]      There are contradictions in Ms Oakes’ account of the circumstances in which her guilty plea was entered. She submits that the guilty plea was made without her consent. However, she also explains that the lawyer “convinced [her that] this was the best possible outcome under the circumstances at the time”. That clearly suggests there were discussions about what to do, with the applicant having accepted, on legal advice, that this was the right outcome – only to regret it later.

[14]      In relation to the discharge without conviction, the respondent accepts that there is an exception in the Criminal Records (Clean Slate) Act 2004 in relation to a person who has “made an application to act in a role predominantly involving the care and protection of … a child or young person”.6  However, that simply means that   Ms Oakes cannot state that she has no criminal record in that context. I agree with the submission of the respondent that it seems inherently implausible that the historical theft conviction would result in Ms Oakes being entirely ruled out of working in childcare. The conviction is a property crime, not one of violence, and the fine imposed suggests the offending was not particularly serious.   Ms Oakes is now     70 years old and it is very hard to see how the now very historic conviction could, absent other factors, be at all relevant. In any event, the absence of any further explanation leaves the Court unable to conclude that the appeal has any real merit.

Prejudice to the respondent

[15]      The significant prejudice to the respondent due to the delay, is by itself, sufficient reason to decline the application. It is clear that the Police simply have no

6      Criminal Records (Clean Slate) Act 2004, s 19(3)(e).

way of accessing the information necessary properly to assess the merits of Ms Oakes’ position. Neither does the Court.

[16]      The Police advise that their file appears to have been destroyed. That is in accordance with standard document management protocol. The District Court has apparently responded to an inquiry, noting “Despite the efforts of our archival team, we are not able to locate any part of the file at this time.” It seems that the only source that the Police has of critical information such as when the offence took place, the amount of property taken, and potential witnesses to the event, is the account that  Ms Oakes provided in her submission to the Court.

[17]      Ms Oakes has, of course, placed some blame on her lawyer at the time. However, no name of that lawyer has been provided and it is simply unclear whether or not he/she is still practicing.

[18]      In Djilali v R,7 the Court of Appeal declined an application for an extension of time to appeal in circumstances where there was a 21-year delay. The Court described the circumstances as “extreme”.8 In that case, the applicant wished to argue that both of the videos of his Police interview should have been ruled inadmissible and that his trial counsel failed adequately to cross-examine on important points. However, the tape had since been destroyed and the lawyer had died. The Court held that:9

The prejudice to the Crown both on appeal and on any retrial, that might result is insurmountable in this case.

Interests of justice

[19]      I agree with the submission of the respondent that the wider interests of society and the finality of decisions weighs against Ms Oakes’ application. As van Bohemen J held in Brown v New Zealand Police:10

Appeal periods are set for a purpose: to ensure finality in decision-making and

… the orderly administration of justice.

7      Djilali v R [2017] NZCA 515.

8      Djilali v R, above n 7, at [19].

9      Djilali v R, above n 7, at [32].

10     Brown v New Zealand Police, above n 4, at [30].

[20]For all these reasons, I decline to grant the extension of time.

Result

[21]      The application by Ms Oakes for an extension of time to appeal against her conviction for theft from 1977 is dismissed. The conviction stands.

Andrew J