R v Palmer CA109/02

[2005] NZCA 350

IN THE COURT OF APPEAL OF NEW ZEALAND

CA109/02

THE QUEEN

v

GRAHAM ASHLEY ROBERT PALMER

Hearing:         14 June 2005

Court:            William Young, Chambers and Robertson JJ Counsel:           R M Lithgow and N Levy for Appellant

J C Pike for Crown

Judgment:      6 October 2005 at 10am

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

BThe appeal against all convictions is allowed and the convictions are quashed.

CAn  order  is  made  that  the  application  to  withdraw  guilty  pleas  be reheard in the High Court.

R V G A R PALMER CA CA109/02  6 October 2005

REASONS

(Given by Robertson J)

Table of Contents

Para No

History  [1] The appeal  [6] The appeal setting  [9] Mr Palmer’s condition on 30 March 1988  [12] Conclusion  [35]

History

[1]      This is an application for leave to appeal pursuant to s 383(1) of the Crimes Act 1961.   Mr Palmer seeks to challenge convictions on some 25 charges, which were entered as long ago as 1988.  It is the Crown case that Mr Palmer entered pleas of guilty with respect to all the charges in respect of which convictions were subsequently entered.  Mr Palmer disputes that.  He accepts that he entered pleas of guilty in respect of many of the charges, but in respect of these he argues that an application to vacate those pleas was wrongly refused, with the consequence that convictions were wrongly entered.  With respect to other charges, he claims now that he never entered any plea, with the consequence that the subsequent convictions on those charges were entered without jurisdiction.

[2]      Before turning to the issues arising on this application, we note what has happened to Mr Palmer’s case since he was charged with the offences on various dates up to early 1988.   The charges arose from allegations of GST fraud, theft, conspiracy  to  pervert  the  course  of  justice,  forgery,  and  commercial  fraud. Mr Palmer entered pleas of guilty on 18 December 1987 in the District Court at Auckland and in the following weeks.  In early 1988, he made an application to the High Court at Auckland to vacate the pleas of guilty.  Gault J heard the application. In a decision delivered on 30 March 1988, the Judge refused the application.  The following day Gault J sentenced Mr Palmer to an effective term of six years’ imprisonment.

[3]      On 7 April 1988 Mr Palmer filed an application for leave to appeal against both conviction and sentence in respect of those charges.   The issue of change of plea was at the forefront of the application together with questions about police misconduct, his health at the time of his  appearances  in  the  High  Court  and  a suggestion that new evidence from the Crown showed that no GST offences had been committed.

[4]      The application for leave to appeal was eventually heard by this Court on

10 August 1989.  In a judgment delivered on 22 August 1989, leave to appeal against conviction was dismissed.   The appeal against sentence was allowed to the extent that the Judge had not taken into account a period which had already been spent in custody under s 81(2) of the Criminal Justice Act 1985.   The concurrent six year sentences of imprisonment were quashed and Mr Palmer was sentenced to an effective term of five years and eight months’ imprisonment.

[5]      Some years later there was a further application for leave to appeal against conviction which was eventually heard and granted on 12 November 2003.   In reasons for judgment delivered on 13 November, it was noted that Mr Palmer’s application for leave to appear and prosecute his application on the first occasion had been declined by a single Judge of this Court.  Mr Palmer had not been informed of his statutory right to have that determination reconsidered by the Court i.e. by three Judges,  as  then  provided  for  under  ss 393  and  395  of  the  Crimes  Act  1961. Accordingly, as there may have been the appearance of a lack of due process, a further hearing on his application for leave to appeal was appropriate.

The appeal

[6]      In the application for leave to appeal now before the Court a multitude of issues were raised in voluminous documentation.   First, there is an assertion that Mr Palmer  was  convicted  of  four  charges  without  ever  entering  a  plea.    The submission is that those convictions were entered without jurisdiction.

[7]      Secondly, with respect to all other charges, it was contended that there had been a miscarriage of justice because:

(a)Mr Palmer did not know what he was doing on 30 March 1988 when he appeared before Gault J because he was unrepresented and because of his state of health which meant that the hearing of his application to vacate the guilty pleas had been compromised;

(b)Mr Palmer had been pressured, if not blackmailed, into entering guilty pleas in December 1987;

(c)On the charges under s 229A of the Crimes Act 1961, there was a factual defence because of the knowledge of the complainant as to what was happening;

(d)      Mr Palmer mistakenly thought when he entered pleas of guilty that the GST fraud charges had been brought under the Goods and Services Tax Act 1985, whereas in fact they had been brought under ss 229A and 266 of the Crimes Act.  If the charges had been brought under the Goods and Services Tax Act, he would not have been liable to imprisonment.

(e)      With respect to those same charges, although he had entered guilty pleas, he had a valid defence because the evidence on which they were based was tainted, as Inland Revenue had breached the Inland Revenue Department Act 1974 in giving information to the police.

[8]      Thirdly, Mr Palmer complained that a custodial sentence was imposed on him in breach of s 10 of the Criminal Justice Act 1985.  He said that he had “not been legally represented” at the relevant stage of the proceedings, namely when he was at risk of conviction.

The appeal setting

[9]      On many of the issues, Mr Lithgow frequently stressed that there was not a complete record available with regard to all that had transpired in 1987 and 1988.

Counsel submitted that any problem which arose therefrom should be determined in

Mr Palmer’s favour, if not treated as a miscarriage of justice in itself.

[10]     It is true that Mr Palmer is not to be disadvantaged because of the absence of material, but the Court must nonetheless make sensible assessments with regard to the position which must have existed on the basis of the material which is now available.  R v Taito [2005] 2 NZLR 815 (CA) at [29] and following makes clear the approach which is to apply in such circumstances.

[11]     We  have  been  persuaded  that  the  critical  issue  which  arises  on  this application for leave is the argument with regard to Mr Palmer’s health and general situation at the hearing before  Gault  J  to  vacate  the  pleas  of  guilty which  had previously been entered.

Mr Palmer’s condition on 30 March 1988

[12]     This issue needs to be seen within its total context.  There is a memorandum of Gault J of 24 March 1988.  That is a time when Mr Harder was still on the record as  counsel.    This  document  was  created  after  the  Court  received  advice  that Mr Palmer wished to have subpoenas issued for 20 odd people to give evidence at his sentencing which was scheduled for the following week.   The Judge recorded that he had instructed the Court staff that the subpoenas were not to be issued until the Court received a statement in writing setting out the reasons they were required and indicating in summary form what it was proposed to lead and how this was relevant to sentencing.  In the course of this memorandum the Judge made clear that he was not intending that there be any further adjournments of the sentencing, there already having been three adjournments over the previous six or eight weeks.

[13]     There was then the hearing on 30 March 1988 which was concerned only with a change of plea.  A resulting judgment sets out in some detail the history of events up until that point.  It is apparent from this decision of Gault J that Mr Palmer presented the Court with a handwritten application supported by a handwritten affidavit, a memorandum and subsequently a statement of further grounds in support of the application.

[14]     The Judge’s decision records that when the case was called that morning Mr Harder, who until that point had been counsel for Mr Palmer on the record, sought leave to withdraw and this was granted.

[15]     It is unfortunate that none of the documents or material which were presented by both sides at that hearing on 30 March are now available.

[16]     However,  for  this  preliminary  issue  the  critical  matter  upon  which  the applicant places particular reliance was his physical and mental condition at the hearing coupled with the absence of legal representation at the hearing.

[17]     These problems were first flagged in Mr Palmer’s Notice of Application for

Leave to Appeal dated 7 April 1988 which, inasmuch as it is relevant, says:

I was greatly inhibited in my application as I was knocked unconscious at

6am on 30 March, I passed out twice while making application and remained in hospital for 7 days after with concussion.

[18]     The   matter   was   returned   to   by   Mr   Palmer   in   an   affidavit   dated

10 August 1988 when he said:

Counsel Harder will say that he was acting under instructions from Mr P A Williams QC when he appeared in the High Court seeking an adjournment, as Mr Williams was engaged in other matters.  He will go on to say that he was aware that Mr Williams was under instructions and in funds to make an application for a change of plea.   The opportunity was lost as the court refused any further adjournments, consequently I appeared before the court without counsel of my choice.  And as such I was left with no alternative but to take the matter over myself.

Harder will also say that he visited me in the cells at the High Court in Auckland on the 30 March 1988 – the day that I made an application for a change of plea.  He will say that he found me in a badly injured condition after have been assaulted and knocked unconscious that morning, and that he did not consider that I was in any state to make an application for a change of plea.  Harder informed me that he relayed this to the Judge (Gault J), the matter of my health was disregarded and the case proceeded.   During the first day I past out twice in court.  On the 1 March I was confined to hospital suffering from concussion (for the following 7 days.).   The prison records show that my cell was opened up 20min before the other inmates and that I was assaulted by two cleaners, who are let out early.

[19]     Mr Palmer’s affidavits are frequently crafted in this somewhat quaint form of indicating what other people will say, but the thrust of Mr Palmer’s assertion is clear. We assume that the reference to 1 March was intended to be 1 April 1988.

[20]     The issue of his condition on 30 March 1988 is referred to in further detail in an affidavit sworn 22 March 1989 which, as much of it as is relevant, says:

[13]     Attached and marked with the letter “K” is a copy of a page from my medical file, at this institution.  The period covers 30/3/88 until 5/4/88.  At

5.40am on the morning of the 30 March 1988, my cell door was unlocked –

20 minutes before it was scheduled to be opened.  Two inmates entered and I

was assaulted until rendered unconscious.  As can be seen from my medical file,  I  received  8  stitches  and  was  then  taken  to  Court  suffering  from

concussion.

Gault J refused an adjournment so that my counsel Williams QC could be present.  With little or no knowledge of the law, no lawyer, 8 stitches in my head and one eye completely swollen over, concussion and an inability to read my notes, I then proceeded to make an application for a change of plea. The application failed.

The next time that I was examined by the nurse was on the 1/4/88, as can be seen from my medical report my blood pressure indicated that I was still suffering from concussion – I was confined to hospital to the next 7 days. When the prison doctor finally examined me, 7 days later, she stated that if she had examined me on the morning of the assault then I would have been confined to hospital until the concussion had subsided.

[21]     The annexed exhibit says:

30/3/88

C/o (complains of?): assault by inmates

HX (history): assaulted by inmates @ 5.30 today. Kicked in face by 3 others

O/E (on examination) 2 lacerations, one of forehead, one under R eye

Was KO’d (knocked out) 30 seconds

No other apparent injuries

TX (treatment) suture x 3 forehead x 4 under R eye 5.0 demalon. ROS (removal of sutures?) 5/7 (in 5 days)

Recording: BP = 140/75 P=72 PERL 4mm

Going  to  court  soon,  he  declined  any  further  neuro  obs  (neurological observation) against my advice.

Incident (form?)

31/3/88

Unable to see inmate gone to court

1/4/88

Feeling dizzy when he gets up quickly.  Nausea. Vomiting x 1

Severe pains in neck since assault Wednesday.

BP 120/400 (diagram resting) 110/65 (diagram standing) Pulse 80

Coordination seems effected

No loss of strength Pupils equal R.L.A. Headache for 2 days Dull Constant

Plan observe for day

5/4/88

Problems with occipital headaches, worse morning and late afternoon, since assault.  Has had headaches in past but not this bad.  Tenderness + pain R cervical muscles

[22]     There is no reference to any of these matters in the judgment refusing leave to vacate the pleas.

[23]     The records make clear, however, that immediately after the delivery of that judgment, the Judge turned to the sentencing exercise.  We have available a verbatim transcript of that which begins:

THE COURT: Before proceeding I want to ask you if it is your wish to lead evidence as to matters going to sentence?

PRISONER: I wish to call three witnesses, Bertrand, Simpson and Reed. THE COURT: Do you wish the assistance of counsel?

PRISONER: No Sir.

THE COURT: Do you wish to make any preliminary statement or merely call witnesses?

PRISONER: I wish to make a preliminary statement.  It should be recorded in the Court that, as a result of an article published in the Sun newspaper some eight days ago, I have been subjected to several threats.  Indeed this morning  at  quarter  to  six  I  was  quite  severely  beaten,  receiving  eight stitches.  My presentation of my case this morning, I have no doubt, could have been done far more adequately by fully briefed counsel and could have been done far more adequately had I not been under the pressure of threats to my  life  which  I have  been  over  the  last  few  days.    I  now  call  Victor Bertrand.

[24]     The transcript is dated 31 March 1988.  The document entitled “Sentence of

Gault J” has a hearing date of 30 and 31 March 1988 with the sentence as 31 March

1988.

[25]     After the most thorough examination of the records, we have concluded that hearing evidence relative to sentencing must at least have begun on 30 March.  That

is consistent with the dates mentioned above.   It is consistent with the comment attributed to Mr Palmer “My presentation of my case this morning …” (obviously a reference to the hearing of the application to withdraw the guilty pleas) and it is consistent with the medical records and the assertions which we have set out above.

[26]     Although the Court files prior to the earlier hearing of the Application for Leave to Appeal by this Court on 10 August 1989 were replete with allegations by Mr  Palmer  about  the  severe  disability  from  which  he  was  suffering  at  the

30 March 1988 hearing, that aspect of the case is not averted to in any way by the

Court when it dismissed his appeal against conviction.

[27]     The critical question now is whether, on the basis of the evidence which is currently available, we can be satisfied that Mr Palmer, when that application was heard and determined, was in a physical and mental condition to properly represent his position.

[28]     No evidence has ever been tendered by the Crown with regard to the issues which arise.  Affidavits from Crown counsel who was involved on 30 March 1988, or from Mr Harder (who was granted leave to withdraw that day), or from someone associated with the Prison Service could have cast light upon these matters.  Instead we have only uncontradicted affidavits from Mr Palmer sworn over a considerable period of time with contemporaneous medical records annexed to them.

[29]     We do not overlook the fact that none of these issues are averted to in any way by Gault J, but that does not assist in resolving the problem with which we are now confronted.

[30]     There is no doubt that on the morning of 30 March 1988 before the hearing of the application to vacate pleas, Mr Harder sought leave to withdraw as counsel and this was granted.  We know nothing about why that occurred.  Thereafter Mr Palmer, who was awaiting sentence on very serious criminal  charges,  had  to  pursue an application to withdraw his pleas of guilty on his own.

[31]     We note that the Judge himself recorded:

The applicant has argued in person in support of his application to change pleas.  He relied upon the affidavit that he had made, which was filed, but did not seek to give further evidence.  He did, however, ask to cross-examine two  police  officers  who  had  been  responsible  for  investigation  of  the charges.

[32]     Coupled with that, we have uncontradicted evidence that earlier that very day this man had been attacked at the prison, had sustained injuries, had required medical treatment, had been knocked out, had declined neurological observation against medical advice and continued to suffer medical difficulties for days thereafter.

[33]     When  faced  with  that  unchallenged  material,  we  have  no  option  but  to conclude that the hearing of the application to vacate the guilty pleas was fundamentally flawed and cannot be relied upon.

Conclusion

[34]     The 30 March 1988 hearing is at the very heart of the present application in respect of which Mr Palmer was given leave to appeal on 12 November 2003.  Much of the judicial reasoning on the crucial points depends on the factual findings of Gault J.    If those findings  were contaminated  by Mr  Palmer’s  inability (whilst unrepresented and physically and mentally injured) to properly put his case before the Court, then even after this length of time they cannot be maintained to his detriment.

[35]     We see no alternative but to turn the clock back to 30 March 1988 and to allow Mr Palmer to reargue the application to vacate his guilty pleas.   It is to be hoped this time round he will have the assistance of legal counsel.

[36]     We  quash  the  convictions  entered  the  next  day.    The  pleas  Mr  Palmer previously entered remain but, pursuant to s 385(2) of the Crimes Act 1961, we order that the application to withdraw the guilty pleas be reheard.   That is the order we consider “justice requires”.

[37]     Because of our finding on this preliminary issue, we do not need to consider the other grounds of appeal which Mr Lithgow advanced.  It will be appropriate to

consider those charges  which Mr Lithgow contends  were in the High Court for sentence without pleas having been entered at the re-hearing.  Similarly the issues with regard to representation and the provisions of s 10 of the Criminal Justice Act

1985 (in the form in which it existed in 1988) should also be considered at the same time.

[38]     We are mindful that Mr Palmer has already served the sentence imposed on the basis of the convictions we are quashing.  We have considered whether, in the circumstances, we should not only quash the convictions but also direct verdicts of acquittal to be entered.  In all the circumstances that would not be appropriate.  The fact is that Mr Palmer did plead guilty to these offences.  Whether he should now be permitted to vacate those pleas is an open question.    It  would  send  the  wrong message simply to direct acquittals because the sentence has been served.  How this case proceeds in future is a matter for the Crown Solicitor at Auckland and the High Court, not for us.

Solicitors:

Crown Law Office, Wellington