R v Ericson

[2007] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 356/05
[2007] NZCA 18

THE QUEEN

v

JOHN FREDERICK ERICSON

Hearing:15 February 2007

Court:Robertson, Ronald Young and Venning JJ

Counsel:N Levy for Applicant

A M Powell for Crown

Judgment:21 February 2007 at 3 pm

JUDGMENT OF THE COURT

APPLICATION FOR SPECIAL LEAVE TO APPEAL DISMISSED.

REASONS OF THE COURT

(Given by Ronald Young J)

[1]       This is an application for special leave to appeal Mr Ericson’s conviction for the murder of his wife on 19 April 2000 following his guilty plea.  The application was filed on 22 September 2005.  It is based on Mr Ericson’s claim that his decision to plead guilty was made when he wrongly believed he had no choice about his plea.

[2]       The applicant, his counsel at the time of conviction Mr P H Hall, and then Crown counsel Ms K B F Hastie, have filed affidavits.  Mr Hall and Mr Ericson gave evidence before us.

Background facts

[3]       The Crown alleged that on 31 July 1999 the applicant struck his sleeping wife on the head with a tomahawk causing her death.  The applicant, in a statement to the police, admitted killing her.  He was arrested and charged with murder.  The applicant was initially remanded to Sunnyside Hospital in Christchurch for a report pursuant to s 121 of the Criminal Justice Act 1985.  On 8 November 1999 he was committed for trial at the High Court at Blenheim with the trial due to commence on 7 February 2000.  That trial date was adjourned at the request of counsel for the applicant with a further tentative trial date set for 8 May.  On 19 April 2000, at the applicant’s request, he was arraigned and pleaded guilty to murder.  The Crown did not seek a minimum non-parole period and he was accordingly sentenced to life imprisonment by Panckhurst J.

[4]       This application for special leave to appeal is necessary because time to appeal as of right expired on 17 May 2000.

Special leave

[5]       Section 388(2) of the Crimes Act provides:

388     Time for appealing

. . .

(2)The time within which notice of appeal or notice of application for leave to appeal may be given may be extended at any time by the Court of Appeal.

[6]       This Court discussed the proper approach to such applications in R v Knight [1998] 1 NZLR 583 at 587 when the Court said:

Section 388 does not specify the principles or criteria to be applied in determining applications for extension of time for appeal. The time “may be extended” and “at any time” by the Court. But the discretion is not unfettered. The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual appellant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject” (R v Hawkins [1997] 1 Cr App R 234 at p 239).

Submissions

[7]       The applicant, if his evidence as to the circumstances of his plea of guilty is accepted, submits that by entering his plea in this way he lost rights given to him by virtue of s 25(c) of the New Zealand Bill of Rights Act 1990 (the right to be presumed innocent until proven guilty) and s 25(d)  (the right not to be compelled to admit guilt).

[8]       The applicant submitted that the Court should conclude that his guilty plea was made when he wrongly believed he had no choice in the matter.  Counsel for the applicant accepted that if that proposition could not be established this application for special leave would inevitably fail. 

[9]       Counsel said that the claim that he had no choice in his plea was based on the applicant’s evidence that he was told by Mr Hall on 10 April 2000 that if he would not plead guilty, then he would have to instruct another lawyer.  This, counsel said, together with pressure from his family to take Mr Hall’s advice and plead guilty meant his guilty plea was not his own, freely given plea.  The applicant submitted that, if the Court reached the conclusion this plea was not freely given then leave should be granted for special leave to appeal irrespective of any delay in filing such an appeal and irrespective of the merits of any defence the applicant might have.

Discussion

[10]     We are satisfied that the facts of this case and an examination of the chronology of events illustrate that Mr Ericson’s plea was knowingly and properly entered on 19 April 2000.  From the laying of the charge in July 1999 through to late March 2000 Mr Hall and the Crown engaged a range of forensic psychiatrists, psychologists and neurologists to examine Mr Ericson.  Mr Hall took every possible step to ascertain whether any defence could be mounted based on lack of mens rea, including insanity or automatism (in whatever form).  Mr Ericson was seen by Dr Gordon at Sunnyside Hospital, Craig Pinnel, a senior psychologist, Dr Anderson, a consultant neurologist, Dr Brinded a forensic psychiatrist, Mr Mossman, a neurologist, and Dr Chaplow also a forensic psychiatrist.

[11]     Mr Ericson was due to stand trial on 7 February 2000 in the Blenheim High Court.  Mr Hall sought an adjournment because he had not completed all possible lines of enquiry.  A trial date of 8 May in the Blenheim Court was then proposed. 

[12]     On 30 March 2000 Mr Hall received a final report from Dr Brinded which clearly ruled out any defence based on psychological, psychiatric or neurological evidence of lack of mens rea.  On that same day, 30 March, Mr Hall wrote to Mr Ericson enclosing a copy of an analysis of Mr Ericson’s ECG when sleep deprived.  He told Mr Ericson about Dr Brinded’s report and he said:

I believe that you are aware of most of these developments and I think that we ought to have a serious discussion about whether this matter ought to go to trial or not.  I will endeavour to see you on Monday 10 April if not earlier.

[13]     We note Mr Ericson claimed not to have received this letter.  However, on 10 April 2000 Mr Hall went to see Mr Ericson in prison to discuss the plea.  He told Mr Ericson that he had no obvious defence to the charge of murder and said his advice was to plead guilty to the charge.  In the meantime, Mr Hall had informally discussed with the Crown whether they would seek a minimum non-parole period and had received an indication that this would not be sought in the event of a guilty plea. 

[14]     In his affidavit, Mr Ericson said that when he discussed his plea with Mr Hall in April, Mr Hall “told me that I didn’t have a defence and if I didn’t plea guilty I would have to get myself another lawyer”.  Mr Hall denied ever saying this.  Mr Hall said that when Mr Ericson expressed concern about his plea he advised Mr Ericson he could get a second opinion from another lawyer.

[15]     Although not mentioned in Mr Ericson’s affidavit, in re-examination Mr Ericson revealed that he had contacted and spoke to another lawyer about this time who “sent an opinion but it was very, very close, I had about four or five days left until I had to plead and Mr Tait [the lawyer] said Pip’s [Mr Hall] a very good lawyer.  He’d take his advice”. 

[16]     On 10 April 2000 Mr Ericson signed, in front of Mr Hall, the following document:

I John Ericson hereby instruct you that I wish to plead guilty to the charge of murder.

[Signed J Ericson]

[17]     Mr Ericson claimed he could not recall ever signing this document.  He accepted that he had written, some time later, on that particular document the words, “This is not my signature” with an arrow pointing towards his signature.  However, in cross‑examination he accepted it was “possibly” his signature.  We accept Mr Hall’s evidence that this was Mr Ericson’s signature and that he did sign the instruction to Mr Hall that he wished to plead guilty to the charge of murder.

[18]     On 12 April Mr Ericson wrote to Mr Hall saying he had changed his mind and now wished to plead not guilty to murder.  Mr Hall immediately rang Mr Ericson to discuss the change.  Mr Hall made notes of that discussion.  His notes make it clear that he told Mr Ericson that he had discussed with the Crown their attitude to a minimum non-parole period. Mr Hall’s notes on this point match Ms Hastie’s recollection.  Mr Ericson denied this was ever discussed.  We prefer to rely upon Mr Hall’s notes made on the day of the discussion rather than Mr Ericson’s recollection now almost seven years later. 

[19]     Mr Hall’s notes reveal that he told Mr Ericson that there was “only one sentence known to law – life...”.  Mr Hall offered to say something on Mr Ericson’s behalf in mitigation but said it would be of “little or no moment”.  Mr Ericson denied in evidence before us that he knew he would be sentenced to life imprisonment after the guilty plea.  We are satisfied Mr Hall explained to Mr Ericson the inevitable sentence the Court would impose on him prior to his entry of a guilty plea.  Mr Hall’s notes also record that Mr Ericson wanted to know “if 100% no chance”.  Mr Hall’s notes revealed that he replied to Mr Ericson’s enquiry “almost” and that only a perverse verdict could result in a manslaughter conviction. 

[20]     Throughout these proceedings Mr Ericson’s family played a significant part in discussions about his defence and plea.  On 14 April Mr Ericson received a telephone call from his family supporting Mr Hall’s advice to plead guilty.  On 15 April when he again spoke to Mr Ericson, Mr Hall advised him he had spoken to Mr Ericson’s family who thought he should plead guilty.  On 15 April Mr Hall recorded in a note that Mr Ericson had agreed to plead guilty. 

[21]     Although not mentioned in his affidavit, and as far as we are able to tell, never previously mentioned, Mr Ericson claimed in cross‑examination before us that when he decided to plead guilty on 15 April he told Mr Hall that he wanted a proviso put on the plea that he was about to enter.  He said:

I wanted Mr Hall at the time of my plea to make it known to the Court that I was doing this under duress, that I didn’t support the guilty plea and that I had no alternative left open to me, he couldn’t defend me.

[22]     Mr Ericson accepted that he had not mentioned this “proviso” to the Judge when he entered his plea, nor had he objected to Mr Hall’s failure to mention it to the Judge at the time that he entered his plea and when he was sentenced.  Mr Hall in cross-examination denied Mr Ericson ever made any such proviso to his plea. 

[23]     We prefer the evidence of Mr Hall on this point of conflict with Mr Ericson.  Mr Hall’s evidence was impressively given, calm, careful and straightforward, compared with Mr Ericson’s evidence.  Given the potentially crucial importance of this “evidence” and given Mr Ericson has had almost seven years within which to identify important features of his case, it seems extraordinary that he would mention this for the first time before us.  It would also be remarkable for any counsel to accept a plea on the basis asserted by Mr Ericson without informing the presiding Judge.  We are satisfied that no such proviso was imposed by Mr Ericson on entering his plea of guilty. 

[24]     Mr Ericson claimed that leading up to the plea he felt he had no alternative and he was being forced to plead guilty.  However, it is clear there was no particular pressure on Mr Ericson.  His trial was due to commence on 8 May.  Mr Ericson claims he was told by Mr Hall on 10 April 2000 that either he pleaded guilty or he got another lawyer.  Even if we accept, which we do not, that this claim was true at this stage the only relevant date was the trial date of 8 May, four weeks away.  Mr Ericson’s claim that in the time available he would be unable to obtain the services of another lawyer was on his own evidence inaccurate.  He found and obtained a lawyer who gave an opinion about Mr Hall’s conduct of the case.  The applicant had previously changed lawyers from Mr Taylor to Mr Hall so could hardly have been unaware of the process.  Nor were there further discussions regarding plea between 15 and 19 April.  Mr Ericson was not under any particular time constraint or pressure.  The trial date was still several weeks away.  The 19 April date was obtained for the entry of a plea of guilty and could have been abandoned had Mr Ericson changed his mind again. 

[25]     We accept Mr Ericson felt the pressure of Mr Hall’s advice that there was no discernable defence, and the pressure of his family supporting Mr Hall’s view that he should plead guilty.  This was the pressure, however, of an unattractive choice Mr Ericson had to make.

[26]     Given this background, we are satisfied that Mr Ericson was not forced to plead guilty or placed under any improper duress and therefore there is no factual basis upon which the application for special leave can be made given the way it was framed by counsel.

[27]     The application is therefore dismissed.

Solicitors:
Crown Law Office, Wellington