Prasad v District Court at Papakura
[2017] NZHC 1920
•14 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2017-404-000455 [2017] NZHC 1920
BETWEEN VINEY PRASAD
Plaintiff
AND
DISTRICT COURT AT PAPAKURA First Respondent
THE ATTORNEY-GENERAL Second Respondent
Hearing: 27 July 2017 Appearances:
Bennet Castelino for the Plaintiff
First Respondent abides the decision of the Court
Gareth Kayes for the Second RespondentJudgment:
14 August 2017
JUDGMENT OF MOORE J
This judgment was delivered by me on 14 August 2017 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
PRASAD v DISTRICT COURT AT PAPAKURA & ANOR [2017] NZHC 1920 [14 August 2017]
Introduction
[1] The plaintiff, Viney Prasad, is charged in the District Court at Papakura that he drove whilst disqualified (third or subsequent) and refused to provide a blood specimen (third or subsequent).
[2] Fourteen months later Mr Prasad pleaded guilty immediately before his Judge-alone trial was scheduled to start. At that time he was represented by a senior lawyer, Mr S, on a private retainer.
[3] Fourteen months after pleading guilty Mr Prasad brought an application seeking to vacate his pleas of guilty primarily, he claims, because he could not afford counsel’s fees.
[4] That application was dismissed by the District Court. Mr Prasad now challenges that decision by way of judicial review.
Background
[5] The Police case is that in the early hours of Sunday, 17 August 2014
Mr Prasad was found asleep in the front seat of a car which had its engine running, headlights on and was parked in the middle of a traffic lane.
[6] The Police woke Mr Prasad up. He showed signs of recent alcohol intake and so a breath screening test was administered. This returned a result of “over 400” and as a consequence Mr Prasad was required to accompany the Police to the Papakura Police Station for the purposes of undertaking an evidential breath test. When they got to the Police station Mr Prasad refused to undergo the test. A doctor was called in to take a blood sample but, again, Mr Prasad was uncooperative and refused to allow the doctor to take a sample.
[7] By way of explanation Mr Prasad told the Police he accepted he was a disqualified driver but he denied driving. He said he had just gone to sleep in the car outside his home.
[8] The following day because of his extensive history of both driving while intoxicated he was charged with refusing to supply a blood sample. Mr Castelino acted for him on a legal aid assignment. Mr Prasad entered a plea of not guilty.
[9] While on bail for this charge, Mr Prasad was charged with a new offence of driving while suspended (third or subsequent). This charge arose out of events on
15 April 2015.
[10] The progress of the case through the Papakura District Court was languorous. [11] On 17 June 2015 Mr Prasad was sentenced in the Manukau District Court to
six months’ imprisonment. This appears to have been an unrelated driving matter.
[12] In the affidavit sworn in support of Mr Prasad’s application to vacate his guilty pleas (the first affidavit) he said that in August 2015, while he was still in prison, he was served with a deportation order. Mr Castelino was unable to assist him. He said his mother panicked and privately engaged a barrister, Mr S, to assist.
[13] The defended hearing on the present charges was scheduled for 10 October
2015. Mr Prasad said that his mother paid Mr S $6,000 to defend her son. He said he intended to defend the charges because he had a good defence. He said he was not driving the car nor had he been driving the car. He claimed the car belonged to a relative and was parked outside his home where a party had been taking place. He was drunk and had an argument with his girlfriend. He claims that members of his family took him away from the house and placed him in the car. He denied that the car lights were on or that the engine was running.
[14] Mr Prasad said that despite paying $6,000 his trial had not started when he was told by Mr S that a fully defended trial might cost up to $15,000. He said:
“… and with this frame of mind I pled guilty as I had no funds to pay any further. Had I known in the very beginning while engaging [Mr S] that this was going to be his cost of services I would have not engaged such an expensive lawyer.”
[15] On the morning of the scheduled defended hearing Mr Prasad pleaded guilty to both charges and was remanded for sentence to 11 November 2016. In the meantime Mr S was appointed to the District Court bench. Mr Prasad re-engaged Mr Castelino on legal aid.
[16] In his first affidavit Mr Prasad said that he was awaiting a response from Mr S because he had been unable to contact him directly. He said that once he had a response from Mr S he would file “an additional response”.
[17] For reasons which are not apparent on the material before me Mr Prasad’s
sentencing did not take place as scheduled. However, on 11 December 2016
Mr Castelino advised the District Court that Mr Prasad intended to bring an application to vacate his pleas of guilty. The presiding Judge made timetabling orders which, it seems, were not complied with by Mr Prasad. In any event, Mr Prasad filed his application and supporting affidavit on 21 December 2016. The Police filed no evidence.
[18] The application came before Judge P R Connell on 22 February 2017. It appears that Judge Connell, who normally sits in the Waikato region, was brought in to hear this matter because Mr S had been appointed to a District Court in the Auckland region.
District Court decision
[19] After reviewing the protracted background to the proceedings the Judge turned to consider the circumstances surrounding Mr Prasad’s entry of pleas of guilty. He observed that it was plain Mr Prasad accepted that he had no ability to meet the cost of a full trial and that he made his mind up to plead guilty. This, the Judge observed, was a decision made by Mr Prasad. It was not made as a consequence of any pressure, improper or not, imposed by Mr S.
[20] The Judge then turned to consider s 115 of the Criminal Procedure Act 2011 (“the Act”). He observed that the discretionary power under s 115 should only be exercised when it is in the interests of justice to do so. He said that when assessing the interests of justice the object is to avoid a miscarriage of justice having regard to
the interests of the defendant as well as those of victims and witnesses. He noted that the case law has consistently adopted a restrictive approach to determining when a plea of guilty may be vacated in the interests of justice. He considered the cases of Hussein v R1, R v Merrilees2 and R v Le Page.3
[21] The Judge said that an application to vacate will be granted if a miscarriage of justice will result if a conviction is not overturned. However, where an applicant fully understands the merits of their position and makes an informed decision to plead guilty, the conviction cannot be impugned.
[22] In declining the application Judge Connell noted that at the time the pleas were entered Mr Prasad was represented by counsel. Mr Prasad accepted he had discussed the case with Mr S. In the absence of any evidence that Mr Prasad was improperly persuaded by Mr S to plead guilty, combined with the fact that Mr Prasad accepted he pleaded guilty because neither he nor his mother could afford to retain Mr S, no miscarriage of justice resulted.
The pleadings
[23] The statement of claim is abbreviated. The introduction states:
“1.This is an application for Judicial Review of the decision of the decision maker of the first defendant dated 22 February 2017 declining the plaintiff’s application to vacate the guilty plea entered into by the plaintiff which according to the plaintiff was entered into under peculiar circumstances with his trial lawyer and under financial and mental duress. The trial lawyer is now a sitting Judge of the [District] Court.”
[24] The cause of action is contained in three paragraphs:
“Cause of action
5.The first defendant has in exercise of a judicial power declined the application of the plaintiff to vacate the guilty plea entered into by the plaintiff. The said decision was made on the 22nd of February
2017.
1 Hussein v R [2011] NZCA 58.
2 R v Merrilees [2009] NZCA 59.
3 R v Le Page [2005] 2 NZLR 845.
6.The second defendant opposed the vacation of the guilty pleas entered into by the plaintiff.
7.The plaintiff states that this act of the first defendant is unreasonable, illegal and in error of law, and of failure to take into account the relevant considerations.”
[25] The claim goes on to refer to:
“Breach of bill of rights, legality/error of law/ mistake of fact, procedural impropriety, Wednesbury – failure to take into account relevant considerstions, Wednesbury – taking into account irrelevant considerations/ no evidence, Wednesbury – unreasonableness.”
[26] Under the heading, “Particulars” there is a long list of complaints which include:
(a) breach of natural justice because the plaintiff was waiting for Mr S to disclose his instructions to defend his charges;
(b)undue weight given to the fact that the plaintiff was subject to a pending deportation order;
(c) undue weight was given to the availability of an out of town Judge to hear and decide the matter because previous counsel was a sitting Judge;
(d)Judge Connell failed to appreciate there would be a gross miscarriage of justice if the conviction was not overturned;
(e) the plaintiff’s decision to plead guilty was made under duress and was tainted by duress, financial and mental distress;
(f) the plaintiff had given clear instructions to Mr S that he did not intend to plead guilty;
(g)on the facts the plaintiff could not in law have been convicted of the offences;
(h) Mr S’s conduct was negligent and induced the plaintiff to plead guilty
despite a tenable defence existing; and
(i)given the plaintiff’s financial distress Mr S should have recused himself and directed the plaintiff to instruct alternative counsel rather than cause the plaintiff to plead guilty contrary to his instructions.
[27] By way of relief, the plaintiff seeks a declaration that Judge Connell’s decision is invalid, a declaration that the Judge breached the plaintiff ’s civil rights under the New Zealand Bill of Rights Act 1990, a direction that the District Court reconsider and determine the application on such terms and conditions as the High Court deems fit and proper, a ruling that any such consideration be in accordance with law (in a manner not inconsistent with the opinion of the High Court) and costs.
[28] The first defendant, the District Court, has given notice it abides the decision of this Court. The claim is defended by the Attorney-General, sued on behalf of the New Zealand Police.4
[29] The Attorney-General defends the claim on the following grounds:
(a) the more appropriate alternative remedy available to the plaintiff is an appeal against conviction; and
(b)in any event the District Court Judge applied the appropriate test for vacating a guilty plea.
Analysis
[30] An examination of the statement of claim suggests that the primary, if not exclusive, basis of the judicial review is that Judge Connell was wrong in law to decline Mr Prasad’s application to vacate his guilty pleas and failed to take into account relevant considerations. The error of law complained of is not identified with any level of precision or particularity. Nor do the very abbreviated submissions
filed by Mr Castelino, for Mr Prasad, assist in that understanding. The claim does,
4 Minute of Peters J dated 7 April 2017.
however, appear to be that Mr Prasad has a good defence to these charges but was, essentially, forced into pleading guilty because he or his mother had insufficient funds to defend the charges.
[31] In response, the second respondent submits:
(a) the grounds of the judicial review have not been adequately articulated;
(b)where there is an alternative remedy or right of appeal the Court will be reluctant to order discretionary relief on the basis of judicial review; and
(c) in any event there is no identifiable error in the Judge’s decision.
[32] In my view the resolution of these proceedings is through the answers to the following two questions:
(a) Is judicial review the appropriate vehicle for challenging the District
Court’s decision such that discretionary relief should be ordered?; and
(b) In any event, was the District Court wrong to decline the application? [33] I now turn to consider each of those questions.
Is judicial review the appropriate vehicle for challenging the District Court’s
decision such that discretionary relief should be ordered?
[34] Before the passing of the Act this Court held that there was jurisdiction to judicially review the refusal by the District Court to grant leave to vacate a guilty plea but only up to sentencing.5 The rationale was that until a case had been finalised by the completion of the sentencing process there was no opportunity to appeal against conviction because the processes of the Court had not been spent. Thus in the absence of a right of appeal the decision was open to judicial review.
[35] However, this position changed with the passing of the Act. Now a defendant has a defined right of appeal against conviction following a plea of guilty.6
[36] Section 232 deals with appeals to the first appeal Court. It provides:
“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.”
[37] It is plain that pursuant to s 232(4)(a) or (b) it would be open to Mr Prasad to argue that a miscarriage of justice occurred through Judge Connell’s decision refusing to vacate the guilty pleas. The definition of “trial” in s 232(5) makes it clear that this includes a proceeding in which the defendant has pleaded guilty.
[38] It is well settled that where alternative remedies, particularly a right of appeal, exist judicial review is an inappropriate remedy.7 In Wislang v Medical Council of New Zealand the Court of Appeal and the Privy Council held that where the grounds in the application for judicial review are “the stuff of general appeals”, the appeal route should precede judicial review.8 It will only be in rare cases that the Courts will allow the collateral process of judicial review to be used to attack the decision.
[39] This principle assumes particular significance in the criminal context. In support of that proposition I adopt and agree with the reasoning of Wylie J in Taikato v District Court of Tauranga.9 That case involved an application to judicially review a District Court Judge’s refusal to order a home detention annexure to a pre-sentence report. Wylie J said:
“[45] Finally, I consider whether judicial review would in any event, be a suitable remedy in the present case, even if I were persuaded by that there were a reviewable error.
[46] The application challenges a step taken by a Judge in the course of criminal proceedings. Criminal proceedings should not generally be subject to collateral challenge by way of judicial review. Still less should preliminary steps of limited import take in as part of those proceedings. Entertaining challenges by way of review outside the trial an appeal process is likely to seriously disrupt the criminal justice system.10 The context warrants a restrained approach to judicial review.
[47] I also bear in mind that there is a comprehensive appellate process open to the applicants once they have been sentenced. Any residual complaint the applicants may have can be considered on appeal under the Summary Proceedings Act 1957. Where the District Court has acted in the exercise of its criminal jurisdiction and there is an appeal readily available, the Court’s decision-making processes should but rarely be disturbed by review proceedings.11
7 R v Huntington District Counsel [1984] 1 All ER 58 at [63]; Russell v District Court at Manukau (2002) 20 NZTC 17,704 at [48]; New Zealand Police v North Shore District Court HC Auckland M752-SW01, 3 December 2001 at [14].
8 Wislang v Medical Council of New Zealand [2002] NZAR 573 (CA) upheld by the Privy
Council in Wislang v Medical Council of New Zealand [2004] UKPC 59, [2005] NZAR 670.
9 Taikato v District Court of Tauranga [2012] NZHC 560, [2012] NZAR 471.
10 Polynesian Spa v Osborne [2005] NZAR 408 (HC) at [62].
11 C v District Court at Wellington [1996] 1 NZLR 668 (HC) at 674.
[48] I accept that it is open for applicants to seek judicial review without having exhausted other remedies open to them but generally, the Courts are reluctant to review decisions where an alternative remedy provides a more appropriate method of redress.12”
[40] In my view this clear statement of principle is unimpeachable and of direct application and relevant to the present case for the reasons which follow.
[41] First, it remains unclear to me why this matter has proceeded by way of judicial review rather than appeal. When I sought an explanation from Mr Castelino he advised me that the “pleadings” in the District Court were incomplete. By this I understood him to mean that the evidence before Judge Connell (and possibly in the present proceedings) is incomplete in the sense that it was always anticipated that Mr S, notwithstanding his appointment to the District Court bench, would file an affidavit setting out his dealings with Mr Prasad. Once that document had been filed Mr Castelino expected Mr Prasad would file further evidence. In the absence of an affidavit from Mr S, Mr Castelino submitted that Mr Prasad had not been given the opportunity to explain why he pleaded guilty in more detail; his lack of funds led to “duress” forcing him to plead guilty in circumstances which he would not have otherwise. Mr Castelino submitted that Mr Prasad was very vulnerable by reason of the deportation order.
[42] I cannot see how this explanation assists. It has always been open to Mr Prasad to file further evidence if he wishes. His affidavit filed in support of these proceedings (the second affidavit) is not materially different from his first affidavit, at least in respect of his description of the circumstances surrounding the entry of his pleas of guilty and yet by the time he filed his second affidavit he knew Mr S’s evidence would not be part of the record. As such, there is no tenable explanation for why Mr Prasad has elected to proceed by way of judicial review rather than
appeal.
12 Judicature Amendment Act 1972, s 4(1); GDS Taylor Judicial Review – A New New Zealand Perspective (2nd ed, NexisLexus, Wellington, 2010) at [5.28]; Matthew Smith The New Zealand Judicial Review Handbook (Thomson Reuters, Wellington, 2011) at [33.7].
[43] This view is reinforced by reference to the statement of claim which raises the very same issues as those which would normally be considered on appeal. Examples are set out earlier in this judgment when the particulars were set out.
[44] Secondly, given the limited nature of the inquiry in judicial review and the traditional reluctance of the Courts to permit cross-examination, the more appropriate and orthodox forum within which to explore Mr Prasad’s claims would be in the context of a conviction appeal.
[45] Thirdly, I agree with Mr Kayes, for the second respondent, that a conviction appeal allows a broader analysis of the substantive merits of the decision refusing to vacate guilty pleas rather than the limited process-based scrutiny of judicial review.
[46] Finally, the claimed grounds set out in the statement of claim, albeit couched in terms and language associated with judicial review, engage the well settled legal principles discussed in Hussein,13 Le Page14 and Merrilees.15 Thus any examination of the correctness of the Judge’s decision under the “illegality/error of law/mistake of fact” grounds, which in fact underpins the essence of the plaintiff’s challenge, will require the Court to consider the legal tests set out in those cases.
[47] For these reasons I agree with Mr Kayes that I should decline to exercise my discretion to grant a remedy through the mechanism of judicial review. This is not the sort of exceptional case where the Court should permit a collateral attack. The subject matter is very much “the stuff of general appeals”. The focus of the present proceedings, no matter how the pleadings may be couched, is on the correctness of Judge Connell’s decision. The proper course is for Mr Prasad to appeal Judge Connell’s decision.
[48] For these reasons I am not satisfied judicial review is the appropriate vehicle to challenge the District Court’s decision and it thus follows I determine that the
application should be declined.
13 Hussein v R, above n 1
14 R v Le Page [2005] 2 NZLR 845.
15 R v Merrilees above n 2.
[49] However, if I am wrong, I turn to consider the substantive issue raised on this review and that is whether the Judge was wrong to decline the application to vacate the pleas of guilty.
In any event, was the District Court wrong to decline the application?
[50] As already noted the principles applicable in applications to vacate guilty pleas are well settled. These are set out in the Court of Appeal cases of Le Page and Merrilees.
[51] Le Page is authority for the proposition that there is a very high threshold to be overcome before the Court should vacate a plea of guilty. The Court of Appeal said:
“… It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court of which R v Stretch [1982] 1 NZLR 225 (CA) and R v Ripia [1985] 1
NZLR 122 (CA) are examples.”
[52] This principle was complemented in Merrilees where the Court stated:
“[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 carefully 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.”
[53] The circumstances in which guilty pleas entered may be reversed include:
(a) where the appellant did not appreciate the nature of a guilty plea and did not intend to plead guilty to a particular charge;
(b)where the appellant could not in law have been convicted of the offence charged;
(c) where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law; and
(d)where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences 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 exists.
[54] None of these grounds is made out on the evidence. I am satisfied that Judge
Connell was correct to refuse the application for reasons which follow.
[55] First, Mr Castelino accepted that Mr Prasad appreciated the nature of the charges. There is no suggestion he pleaded accidently or through any misunderstanding or accident. Mr Prasad’s affidavits reveal that he intended to plead guilty.
[56] Secondly, this is not a case where Mr Prasad could not, in law, have been convicted of the offence charged.
[57] Thirdly, Mr Prasad was represented by counsel at the time he pleaded guilty. It is apparent from his evidence that he discussed his proposed defence with Mr S. He pleaded guilty on the day his Judge-alone trial was scheduled to start.
[58] Fourthly, Mr Prasad does not point to any particular advice given by Mr S which wrongly induced him to plead guilty. Instead, he said he pleaded guilty because neither he nor his mother could afford Mr S’s fee to conduct his defence. There is no evidence he told the presiding Judge this or attempted to seek an adjournment to re-engage Mr Castelino, as he later did.
[59] Fifthly, Mr Prasad pleaded guilty on 9 October 2015. And yet more than 13 months passed before Mr Prasad first gave notice of his intention to apply to vacate his pleas on 11 November 2016 with the application not being filed for more than
another month, on 21 December 2016. Mr Prasad gives no explanation as to why it took that long for him to make the application.
[60] Having regard to all these matters it is apparent that Mr Prasad fully appreciated the merits of his position and made an informed decision to plead guilty. He may have done so reluctantly and he may now regret doing so. However, on the evidence before me, which is materially the same as that which was before Judge Connell, I am not satisfied that the circumstances meet the level of exceptionality the authorities require.
[61] I am satisfied that Judge Connell did not err and that the pleas entered by
Mr Prasad cannot be impugned.
[62] Thus it follows that even if I was of the view that judicial review is an appropriate vehicle to challenge the District Court’s decision I am not satisfied that the decision was wrong or should be set aside on any of the grounds advanced by the plaintiff.
Result
[63] The application for judicial relief is declined.
Costs
[64] Mr Kayes has given notice that the second respondent will, pursuant to r 14.6 of the High Court Rules, seek increased or indemnity costs. The grounds are set out in the second respondent’s submissions.
[65] Before I am prepared to fix costs I wish to hear further from counsel. I invite counsel to confer with a view to reaching agreement in which event a joint memorandum should be filed.
[66] In the event counsel are unable to agree they are to file memoranda of no
more than five pages within 25 working days of the date of this judgment.
Moore J
Solicitors/Counsel:
Mr Castelino, Auckland
Kayes Fletcher Walker, Manukau
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