R v Police HC Rotorua CRI 2006-063-3699

[2007] NZHC 1813

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-063-3699

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 June 2007

Appearances: W Lawson for Appellant

J D Munro for Respondent

Judgment:      8 June 2007

JUDGMENT OF KEANE J

Solicitors:

Lance, Lawson, Rotorua

Crown Solicitor, Rotorua

R V POLICE HC ROT CRI 2006-063-3699  8 June 2007

[1]      On 19 March 2007 R   appeared in this Court for sentence  for possession, on 21 September 2006, of methamphetamine for supply. On his plea, entered in the District Court under s 153A, he did not contest the narrative of fact on which the Crown relied. He did, as became apparent from his pre-sentence report, contest that he had possessed for supply. His stance was that he possessed for his own use.

[2]      Immediately that became apparent, Venning J, noting the fatal incongruity, confirmed that, despite his plea under s 153A, Mr R   did not admit the offence for sentence.  Mr R   then confirmed that he wished his conviction vacated and wished also to seek leave to withdraw the plea on which it was founded. That is the issue today.

Context

[3]      The charge rested on the uncontested result of a search that the police made of Mr R  ’s home on 21 September 2006 on warrant at 7.35 am. He is a tetraplegic who is wheelchair bound. At that hour he was found asleep in his bed. Located in a snaplock bag beside his bed was 12.9 grams of methamphetamine. Next to that in a black velvet jeweller’s bag  were two smaller snaplock bags containing 2.5 grams of methamphetamine. In total just by the bed was 15.4 grams of methamphetamine with a value on the street of about $15,400.

[4]      Two sets of electronic scales were located. One did not work.  The other did and was brand new. It  had been purchased on 6 September 2006. There  was a residue of methamphetamine on the weighing surface of both. No instruments or utensils to use or consume were located. There was a camera linked to a monitor in the bedroom allowing Mr R   to see anyone approaching.

[5]      Mr R   admitted that the methamphetamine was his. He said it was for his personal use.  It  was  the  only  ‘buzz’  he  got  and  it  made  his  life  easier  When questioned  about  the  lack  of  any  anything  to  smoke  methamphetamine  at  the address, he said he was going to buy a pipe that day.

[6]      Mr R   first appeared on the day of the search and was remanded without plea. The charge, of course, was indictable in character. On 25 October depositions on a hand-out basis were set down for 4 December . On 4 December he entered his plea under s 153A, endorsed by his counsel.

Principles

[7]      Once a guilty plea was entered after advice from and in the presence of counsel and a conviction is entered, only exceptionally will that able to be set aside. In R v Le Page (CA 297/04, CA 411/04 & 495/04, 28 April 2005) at para [16] 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.

[8]      A miscarriage of justice, the Court said at para [17], will most usually arise when there is a misunderstanding as to the plea:

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.

[9]      The miscarriage of justice asserted in this case rests on a different possibility. It is that, though Mr R   was accurately advised as to the onus resting on him to demonstrate to the balance  of probabilities  that  he  did  not  have  possession  for supply, that advice was couched negatively. He was left understanding, and incorrectly, that a guilty plea was his only choice.

[10]     To assess that, one must turn to the advice given and, though Mr R   was subject to a reverse onus, with an accent on those aspects of the possible evidence that a jury, properly directed, might  conclude point  towards acquittal: Bain v R [2007] UKPC 33, para [115].

Evidence

[11]     In his affidavit  given  in support of his application Mr  R    says  that  he understood from the letter, dated 7 December 2006, in which his then counsel set out his advice, that he had no defence.

[12]     Mr R   says that he did not then have any opportunity to see his counsel. He lives in Opotiki and his counsel is in Rotorua. He himself became unwell and he was evicted from his home. At depositions he had a limited opportunity to speak to his counsel. When he entered his plea, he continued to assume that he had no other choice.

[13]   Mr R   maintained then, and maintains now, that he did not supply methamphetamine or possess it for supply. Nor did he ever admit that. He admitted only that he intended to use the methamphetamine himself. It alleviates some of the problems that he has had since his car accident.

[14]     His counsel then, who has since withdrawn, has also given an affidavit in which he confirms that, had he known all that could be said on Mr R  ’s behalf at the time when he gave his advice on 7 December, he would have advised him not to plead guilty. Everything turns on the letter dated 7 December 2006.

Letter of advice

[15]     In that letter Mr R  ’s then counsel advised him accurately that if, as was then the case, he did not dispute possession of methamphetamine, the only issue at trial would be whether he possessed it for his own use or for supply. As to that, his counsel said accurately he was under an onus to satisfy the jury to the balance of probabilities that it was for his own personal use.

[16]     Mr R  ’s counsel then advised Mr R   that, given that to be so, the case against  him was  very strong.  There  was  evidence  consistent  with  dealing.  The quantity of methamphetamine found in his possession, that methamphetamine had been weighed on scales, the surveillance equipment hooked up to his television in

the bedroom, all pointed that way. Conversely, there was no evidence methamphetamine had ever been consumed in the house. Indeed he had seemed to say when interviewed that he had not tried it and intended to buy a pipe.

[17]     Mr R  ’s chances of getting off, his then counsel said, were very slim. He might therefore well consider pleading early to obtain the greatest possible credit on sentence.  His counsel indicated the range of sentence open and said that a credit of up to one-third for an early plea was not unknown.

Submissions

[18]     Mr R  ’s present counsel contends that this letter, though it may be accurate as to the reverse onus, is not  accurate in a more fundamental way.  It  does not identify, as it should have, the basis on which Mr R  , whether or not he elected to give evidence, could discharge that onus.

[19]     Mr R   had held from the first, during a sustained video interview, that the methamphetamine  was  his  own  and  not  for  anybody  else.  To  that,  his  present counsel says, he could bring the undeniable fact that he is tetraplegic and confined to a   wheelchair,   that   his   health   is   fragile,   that   he   suffers   pain   and   that methamphetamine for him was one way to cope. That could explain, his counsel says also, why he had the methamphetamine in such quantity.

[20]     The scales, his counsel says, could be accounted for as Mr R  ’s means of identifying a dose of methamphetamine sufficient to alleviate his discomfort  - a larger than usual dose per day, his counsel says, 1 gram on occasions - but not a dangerous dose. He could account also  for the surveillance camera linked to his bedroom. Confined largely as he is to the house, it was his way of identifying who was coming to the house.

[21]     These considerations, his present counsel says, go a large way to offset the case for the Crown as it was and left Mr R   with a genuine choice that he did not know he had when he entered his plea. Despite the careful submissions of counsel for the Crown, I have to agree.

Conclusions

[22]     The letter of advice, though accurate as to the law, unfortunately, as Mr R  ’s then counsel now accepts, lacked the balancing factors that gave Mr R   a choice as to plea. In entering the plea he did, therefore, I accept, Mr R   acted on a real misunderstanding. To hold him to his plea now would constitute a miscarriage of justice.

[23]     The conviction resting on that plea will be vacated and Mr R   will have leave to withdraw his plea. He will necessarily be remanded to a call-over on 29 June

2007 at 9 am for a date for his trial to be fixed.

P.J. Keane  J