Parker v Police
[2016] NZHC 1567
•12 July 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-000092 [2016] NZHC 1567
BETWEEN DAVID PARKER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 June 2016 Appearances:
D Parker Appellant in person
B Adrian (McKenzie Friend)
K Lummis and T R Bellingham for RespondentJudgment:
12 July 2016
JUDGMENT OF GILBERT J
This judgment is delivered by me on 12 July 2016 at 11 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors:
Merediths, Auckland
And to:
Appellant
PARKER v NEW ZEALAND POLICE [2016] NZHC 1567 [12 July 2016]
Introduction
[1] Mr Parker pleaded guilty in the North Shore District Court to one charge of disorderly behaviour and one charge of resisting Police. Judge P Sinclair convicted and discharged Mr Parker on the disorderly behaviour charge and sentenced him to one month’s imprisonment on the charge of resisting Police. Mr Parker now appeals against his conviction contending that he pleaded guilty under duress and the summary of facts was fraudulent.
[2] Mr Parker made it clear that he does not want the Court to allow his appeal and set aside the convictions so that the matter can be remitted to the District Court for hearing. Nor does Mr Parker want his appeal dismissed. His preference is for the matter to be transferred directly to the Supreme Court. Alternatively, he would like the matter to be adjourned for a further hearing so that he can spend more time addressing the Court about his case.
[3] There is no basis on which Mr Parker’s appeal can be transferred to the Supreme Court for hearing. This Court is the appropriate forum for determining the present appeal.
[4] I allowed Mr Parker considerable latitude during the hearing of his appeal. His father appeared as a McKenzie friend and addressed the Court first at Mr Parker’s request. Mr Parker then addressed me separately and at length with the result that the appeal occupied most of the morning. I am satisfied that Mr Parker has had ample opportunity to ventilate his complaints. There is no justification for adjourning the hearing to allow Mr Parker further time to address the Court. Accordingly, I confine myself to the usual options of either allowing the appeal or dismissing it.
Background
Summary of facts
[5] The summary of facts read as follows:
At around 1.39 pm on the 28th of November 2015, the Defendant David
PARKER was at the Red Beach Surf Beach, Red Beach.
Also at the beach were approximately 200 beach goers that included a number of children and young persons with disabilities enjoying a day out paddle boarding.
Also at the beach was Marcus LAURIE who is the victim in this matter.
The Defendant placed a white cloth onto the sand with a statement painted
on [it] “Wearing BP Is Tat’s Rapeing Small Baby Dolphins”.
The Defendant entered the water numerous times pretending to be needing rescuing only to yell at the surf life savers attempting to talk to him.
The Victim who is the owner of a foundation that helps with disabled young persons and children, approached the Defendant as the children were becoming distressed due to his actions.
The Defendant marched close to the face of the Victim and said “Yo bro, whats up nigger” and began to swear causing offence to the Victim.
One of the disabled children nearby began to panic and went into a fit.
Police were called to the beach which at this time the Defendant was surrounded by beach goers due to his attitude and actions.
Police arrived to which the Defendant began to yell at the top of his voice and became aggressive swearing and using obscenities towards Police.
The Defendant was arrested and told to put his hands behind his back.
The Defendant immediately linked his arms in front of his chest preventing
Police to put the handcuffs on.
Police attempted to take the Defendant away to the awaiting patrol car
50 metres from the arrest location when he attempted to push against Police numerous times making it difficult for them to control him.
The Defendant continued to scream and shout obscenities towards Police.
At the patrol vehicle the Defendant’s hands were pried open and the
handcuffs were placed behind his back.
The Defendant refused to go into the Police car and tensed his body straight still defiant towards Police.
[6] Mr Parker has a number of previous convictions, including 21 for disorderly behaviour and five for resisting Police.
Procedure followed in the District Court
[7] Mr Parker’s principal ground of appeal is that his convictions should be set aside because he pleaded guilty under duress. It is therefore necessary to review in some detail the circumstances in which the guilty pleas were entered in the District Court. A full transcript of the relevant exchanges in the District Court has been made available for the purposes of this appeal.
[8] On 1 December 2015, Mr Parker applied for bail in the North Shore District Court. At that time, he was facing five sets of charges for offences allegedly committed on 15 July, 1 September, 9 September, 24 October and 28 November
2015. The alleged offences included disorderly behaviour (x 4), resisting Police (x 4), failing to stop, breach of a protection order, assaulting Police (x 2) and possession of a weapon. Judge Swaran Singh declined Mr Parker’s application for bail and he was accordingly remanded in custody.1
[9] The two charges giving rise to the present appeal were dealt with at a case review hearing before Judge P Sinclair in the North Shore District Court on
11 February 2016. Mr Mather, a senior and experienced lawyer, appeared as counsel for Mr Parker. Mr Mather advised the Court at the outset that Mr Parker wanted him to remain as counsel but did not want to be represented by him:
Mr Parker draws a distinction between having counsel and being represented. Legal Aid has given notice of intention to withdraw his grant of aid because they have difficulty working with that concept as does counsel. So if Mr Parker wishes to represent himself, he needs to advise all of us of that and if he does wish to do that, I have an application to make.
[10] Following further discussion, the Judge asked Mr Parker to advise whether he wished Mr Mather to continue to represent him or whether he would prefer to represent himself. Mr Parker responded:
Yeah I’d like to represent myself and just be noted that due process hasn’t been followed and that counsel has not been assigned which I am legally obliged under the Bill of Rights and [International] Declaration of Rights.
[11] The Judge noted that Mr Mather had been assigned to act for Mr Parker. However, Mr Parker insisted that the Legal Aid documents referred to him as “counsel” not “representation”. After further discussion, the Judge again sought Mr Parker’s decision on whether he wanted Mr Mather to act for him:
THE COURT:
Well look Mr Parker we need to move on this matter and I need to clarify whether you want Mr Mather to represent you in Court today or whether you
1 New Zealand Police v Parker [2015] NZDC 23676. Mr Parker’s appeal against the refusal to grant bail was dismissed by Wylie J on 15 February 2016 (Parker v New Zealand Police [2016] NZHC 163).
want me to deal with you directly. You have that choice and I need to have your decision on that.
MR PARKER:
Deal with me directly because I haven’t had any conversation so I haven’t been able to instruct him anyway so probably nice to like clarify why I’m actually here. Because I don’t even know that.
[12] Mr Mather firmly rejected that suggestion:
MR MATHER:
We’re not having that accusation made Ma’am… counsel has gone to
considerable lengths with Mr Parker. MR PARKER:
Oh yeah I agree with that. MR MATHER:
I have an instruction from Mr Parker to deal with his parents and to communicate with him through them. Mr Parker has once phoned my office. Mr Parker has had service. So I am not having that [inaudible].
MR PARKER:
Yeah, yeah … I’m not saying that.
THE COURT:
… I’m satisfied from what Mr Mather’s said that he has been duly
representing you.
MR PARKER:
Yeah, yeah totally, yeah.
[13] Mr Parker maintained his position that he wanted Mr Mather to remain as his counsel but not to represent him. The Judge accordingly granted Mr Mather’s application for leave to withdraw.
[14] The Judge then explained to Mr Parker that he was before the Court on two charges and what those charges were. She reminded him that he had pleaded not guilty to these charges on 1 December 2015. The Judge explained that the matter was before the Court for a case review hearing to see whether it could be resolved or whether it would need to proceed to a defended hearing.
[15] The prosecutor advised that the Police were seeking to downgrade the charge of behaving in an insulting manner likely to cause violence under s 3 of the Summary of Offences Act to a charge of disorderly behaviour under s 4 of the Act.
The Judge allowed that amendment and explained to Mr Parker the consequences of it and the reduction in the maximum penalty on that charge. The Judge asked Mr Parker what he wanted to do about the two charges. This led to the following exchange with Mr Parker suggesting that if he pleaded guilty he would be released immediately from prison and the prosecutor responding that this was not correct because of the other charges:
MR PARKER:
Well, I’ve already spent – so if the maximum is three months then the maximum amount of time I can spend in here is a month and a half, eh?
THE COURT:
Well, on that particular charge but as I understand – I’ll just check with
Mr Coleman but I think, as I understand, you’re in custody on other charges?
MR PARKER: Nah, nah. PROSECUTOR:
Yes, Ma’am. There’s three dates in Wellington and one date in Nelson for a
total of 12 charges -
MR PARKER: Yeah. PROSECUTOR:
- and they include assaulting police under the Crimes Act and breaching a protection order which would carry greater penalties than the charges before Your Honour today. My understanding, bail was declined on all charges by Judge Singh.
THE COURT:
Mr Parker, so just –
MR PARKER:
No, it wasn’t. It wasn’t. He wasn’t – I’ve been to Court in Wellington, went down there and back, got concussion like twice because of the journey. It was stipulated in Court in Wellington which my father can testify which he’s in the back there, he should be up a little bit closer because he’s my McKenzie friend. That bail still stands on those charges and this was –
THE COURT:
Just pause there, Mr Parker. I’m satisfied, at this stage, that your bail you are on in custody on all charges because I have seen His Honour Judge Singh’s decision. I hear from Mr Mather that your bail appeal has been heard in the High Court and that decision is [reserved]. So at this stage you’re in custody on all charges and I just need to know what you want to do about these charges today.
My father’s got the document which shows that I’m only in custody on the two charges which my father should be able to bring forward. Also, John Mather has a copy of it which shows that I’m only in custody on the two charges.
PROSECUTOR:
Ma’am, police records indicate custody on all and I know Judge Singh dealt with s 12 in his decision which could’ve only applied to charges but these ones.
THE COURT: Thank you.
MR PARKER:
Now this is the argument which they’re putting forth which is liable and fraudulent because if you look at the section of that, of section 12, it says, “For what’s been charged” in the present tense, not in the past tense. Once you’ve been charged –
THE COURT:
What would you like to do about these charges, Mr Parker, I need to know what you want to do about these charges? These two charges before me today.
MR PARKER:
Well if I plead guilty I’ve had time served and I’d like to be let out. But that’s under duress, like I’d like to be like not guilty with time served.
[16] The Judge asked Mr Parker if he would like a sentencing indication and he replied that he would:
THE COURT:
Would you like a sentencing indication on the two charges as to what the
Court would impose if you pleaded guilty to the charges?
MR PARKER:
Yeah, right now would be nice.
[17] The prosecutor again made the point that if the Police were correct about Mr Parker’s remand status, he would have to apply for bail in Wellington or in Nelson on the other matters. Mr Parker claimed that this was not correct and asked to speak to his father as his McKenzie friend. The Judge allowed this.
[18] The Judge then gave Mr Parker a sentencing indication in response to his request:
All right, Mr Parker, you’ve sought a sentencing indication with respect to the two charges. I’ve reviewed the summary of facts and also your previous
conviction list. Given the nature of the offending and your previous conviction list I would convict and discharge you on the disorderly behaviour, as that is a fineable only matter, and given your present status that would be appropriate. On the resisting charge I would convict and sentence you to one month’s imprisonment. Now you have the option of accepting that indication if you wish to, today, or you have the option of seeking five days to consider that sentencing indication.
[19] Mr Parker invited the Judge to find him not guilty on the basis of time served. The Judge explained to Mr Parker that there was no such thing:
MR PARKER:
Can you go – with my research onto the case, and this is a little bit of an aside, can you go not guilty of the time served because there’s nothing that states in the law that you can’t actually rule that.
THE COURT:
Well, there’s no such thing as not guilty on time served, Mr Parker. You can either plead guilty and then I sentence you and that is worked out by the custodial authorities as to how much time you serve or, otherwise, you can maintain your plea of not guilty and a Judge-alone trial will be convened. So you need to decide. You’re certainly entitled to five days to consider your options.
[20] Mr Parker again raised the prospect of him pleading guilty and being released on bail. The Judge made it clear to Mr Parker that she was only dealing with the two charges before her and whether he would be released from prison was not something she had jurisdiction to determine:
MR PARKER:
Oh no, like, I’ve spent my time so like the only sensible option is for me to go guilty on the charge and then my bail kicks in from the – ‘cos – could my doctor, could Bernard produce the warrant and then my lawyer can like get on with my appeal of this.
THE COURT:
Well that’s up to you and your lawyer and your McKenzie friend but I’m just dealing with these two charges today and I need to know what you want to do with them – whether you want to accept that sentencing indication or seek some more time?
MR PARKER:
My question for you, before, is could my father bring forward my or the registrar show you my current bail on the – the registrar should be able to show you my current bail for the Wellington matters because that will –
THE COURT:
That’s nothing that I’m dealing with today, Mr Parker, and I can’t alter that, I
cannot alter that.
Well, no, my question for you is that if I plead guilty will I be released from custody?
THE COURT:
That’s something that will have to be worked out by the receiving officer at prison, that’s something that’s not in my jurisdiction to indicate today. I can only pass sentence.
[21] Mr Parker then indicated that he would like to plead guilty under duress. The Judge stated that there was no such thing as guilty under duress and that Mr Parker needed to decide whether he wanted to plead guilty or not guilty.
MR PARKER:
So under duress I am going to go guilty. THE COURT:
No, Mr Parker. You have to either plead guilty or not guilty – there’s no
such thing as guilty under duress.
MR PARKER:
I’m pleading guilty.
THE COURT:
You’d like to plead guilty?
MR PARKER: Yeah.
[22] The Judge then asked the registrar to put the charges to Mr Parker. However, before the registrar could do so, Mr Parker asked again about bail and whether the amendment to the charge might have a bearing on this:
MR PARKER:
One question before I do that, Madam. Since I like, since there’s been a change in circumstances which is the dropping of the charge to the lesser charge don’t I have the right to bail, a new bail application?
THE COURT:
No, because that’s a fineable only matter that’s been amended so bail is not
an issue on that matter, in any event. MR PARKER:
No, but if you look at the issue of why the, the summary that Judge Singh put in, the reason why I was put in was because of that matter, because of the fit. So therefore, like if I’m actually put in because of it I’m not put in because of the resisting arrest, that never comes up in this summary.
THE COURT:
Well, look, Mr Parker, what I need to do today is to determine what you want to do about these charges. I’m going to ask the registrar if she would put the charges to you and then you could decide what plea you wish to enter.
[23] The registrar put the charge of resisting Police to Mr Parker and asked him how he wished to plead, guilty or not guilty. Mr Parker then asked if he could speak again to his McKenzie friend and with his counsel. The Judge pointed out that counsel had been given leave to withdraw but she allowed him a further opportunity to speak with his McKenzie friend. Following this discussion, the Judge asked Mr Parker what he wanted to do about the two charges and Mr Parker replied that he wanted to plead guilty.
[24] The Judge then asked the registrar to put the charges. After the resisting charge was again put to Mr Parker, he replied “um, the point is – ”. The Judge again explained that Mr Parker needed to decide whether he wished to plead guilty or not guilty to the charges:
THE COURT:
Mr Parker, you either need to plead guilty or not guilty to the charges. If you don’t wish to plead guilty we will remand these matters off to a Judge-alone trial but we need to move on with other business in the Court. There are a number of other defendants and counsel waiting. Could you please indicate whether you’d like to maintain your plea of not guilty or plead guilty to the charge?
[25] Mr Parker then sought clarification of the meaning of the word “guilty”:
MR PARKER:
Um, what does the word “guilty” mean, Ma’am, because I haven’t –
[26] The Judge responded that she would set the matter down for a Judge-alone trial. Mr Parker said that he did not want this and would plead guilty:
THE COURT:
All right. We’ll remand the matter off for a Judge-alone trial, Mr Parker. MR PARKER:
Well, no, I’ll plead guilty – Ma’am, can I just plead guilty? I’ll plead guilty because that means I get out.
THE COURT:
You’d like to plead guilty?
Yes.
THE COURT:
I’m going to record a plea of guilty to that charge of resisting. Madam
Registrar, if you would like to put the charge of disorderly behaviour. REGISTRAR:
David Parker, you’re charged that on the 28th day of November 2015 at
Auckland in a public place, namely Red Beach surf beach, behaved in a disorderly manner. How do you wish to plead? Guilty or not guilty?
MR PARKER: Guilty.
Legal principles
[27] This appeal is governed by s 232 of the Criminal Procedure Act 2011:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that, -
(a) in the case of a jury trial, having regard to the evidence, the
jury’s verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that –
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
(5) In subsection(4), trial includes a proceeding in which the appellant pleaded guilty.
[28] The appeal against conviction can only be allowed in the present case if there was an error, irregularity, or occurrence in relation to or affecting the hearing that has created a real risk that the outcome was affected or that resulted in the hearing being unfair or a nullity.
[29] An appeal against conviction will only be allowed in exceptional circumstances in cases where the appellant has pleaded guilty freely and on an informed basis:2
[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 there broad situations namely:
[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.
Submissions
[30] Mr Parker submitted that a sentence indication could not be given because he did not request one and he did not agree with the summary of facts.
[31] Next, Mr Parker submitted that the Judge should not have accepted his guilty pleas and should have entered not guilty pleas on his behalf. He claims that it was not in the interests of justice to accept guilty pleas in circumstances where it was clear that Mr Parker was only pleading guilty in order to be released from custody.
[32] Mr Parker senior amplified these submissions in the course of his oral presentation in Court. He stated that there are significant errors in the summary of
facts and that a private prosecution is being pursued against the Police constable who
2 R v Merrilees [2009] NZCA 59.
prepared it. He emphasised that his son pleaded guilty because he wanted to be released from prison and he said that the Court was aware that the summary of facts was disputed.
[33] When asked to explain why the Judge was wrong to accept his pleas of guilty, Mr Parker replied that this was because the Judge should have read his body language and paid greater attention to the intonation in his voice. In any event, he questioned the meaning of the word ‘guilty’ and said that he “never proffered guilty”.
Has there been a miscarriage of justice?
[34] Mr Parker submission that he did not request a sentence indication can be disposed of shortly. The transcript shows that he did:
THE COURT:
Would you like a sentencing indication on the two charges as to what the
Court would impose if you pleaded guilty to the charges? MR PARKER:
Yeah, right now would be nice.
[35] Whether or not Mr Parker agreed with the summary of facts, is irrelevant. The charges were read to Mr Parker and he pleaded guilty to them. The facts stated in the summary of facts are relevant to the sentence but Mr Parker has no quarrel with the sentence. He accepted the sentence indication and the Judge imposed the indicated sentence.
[36] Mr Parker’s claim that he only pleaded guilty because he mistakenly assumed that this would enable him to be released from custody must also be rejected. It is clear from the transcript quoted above that the Judge and the prosecutor both warned Mr Parker that the entry of guilty pleas to the two charges before the Court might not result in him being released from custody because he had been declined bail in relation to the other charges that were pending in the Wellington and Nelson District Courts. Moreover, any misapprehension that Mr Parker may have had about his custodial status does not qualify as an exceptional circumstance that could justify allowing his appeal against conviction. The fact that Mr Parker may now regret his
guilty pleas because the tactical reasoning that lay behind them has turned out to be flawed is not a proper basis for allowing him to retract his guilty pleas.
[37] It is clear that Mr Parker did appreciate the nature of the charges and made a conscious choice to plead guilty to them. He was placed under no pressure to do so. His submission that he only pleaded guilty under duress is nonsense. There is no basis for the suggestion that his will was in any way overborne. On the contrary, the Judge took considerable care to ensure that Mr Parker had a full opportunity to consider his position and decide whether he wanted to plead guilty or not guilty to the charges. Mr Parker made his choice and freely entered guilty pleas to both.
[38] I can see no error in the approach adopted by the Judge. There is nothing to indicate that there was any unfairness in the hearing or that there is any real risk that there has been a miscarriage of justice. Even now, Mr Parker does not want the Court to allow his appeal so that there can be a defended hearing in the District Court to determine these two charges.
[39] For the reasons given, the appeal must be dismissed.
Result
[40] The appeal is dismissed.
M A Gilbert J
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