R v Ratu Ca22/06

[2006] NZCA 431

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 22/06

THE QUEEN

v

DAMION RAY RATU

Hearing:         22 June 2006

Court:            Hammond, Chisholm and Cooper JJ Counsel:  P T R Heaslip for Appellant

H D M Lawry for Crown

Judgment:      19 July 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Cooper J)

[1]      The  appellant,  Damion  Ray  Ratu,  appeals  against  his  conviction  in  the Auckland  District  Court  on  one  count  of  sexual  violation  and  one  count  of threatening to kill.  Those convictions were the result of guilty pleas.

R V RATU CA CA 22/06  19 July 2006

[2]      On 6 October 2005 Kerr DCJ declined an application made by the appellant for leave to withdraw his guilty pleas.  That application had been advanced on the bases that the appellant had not been thinking rationally when he entered the pleas and that  he was not  guilty of the crimes.    He maintained that  the complainant consented to the sexual acts and that there was no threat to kill.

[3]      His  appeal  raises  important  issues  concerning  the  scope  of  and  inter- relationship between ss 321 and 356 of the Crimes Act 1961, in relation to the taking of guilty pleas.

Background

[4]      The procedures that were followed in the District Court were summarised in the judgment under appeal.  The guilty pleas were entered at a “call-over” held in the Auckland District Court on 23 February 2005.   The circumstances in which that occurred were addressed in an affidavit by a barrister, Mr Hirschfeld.  He had been acting  for  the  appellant  at  the  time,  and  swore  his  affidavit  after  professional privilege had been waived.

[5]      According  to  Mr  Hirschfeld  the  appellant  had  originally  faced  only  the charge of sexual violation.   His defence was that sexual contact between the complainant  and  him  was  consensual,  and  he  decided  to  go  to  trial.     After depositions and committal for trial, a High Court Judge directed under s 168AA of the Summary Proceedings Act 1957 that the trial should take place in the Auckland District Court.

[6]      There was a call-over in that Court on 8 July 2004.   The indictment then presented contained two counts, adding the charge of threatening to kill to the charge of sexual violation.  It is unclear on the material that was before us for the purposes of the appeal whether or not pleas of not guilty were entered at that stage.  It appears nevertheless that the appellant was then remanded to 10 February 2005 for a trial date to be fixed.

[7]      Neither Mr Hirschfeld in his affidavit nor Kerr DCJ in his judgment dealt with what  happened on 10 February.   However, on 23 February 2005 Mr Ratu appeared in another call-over, was arraigned and pleaded guilty.   Mr Hirschfeld explained  in  his affidavit  that  he had  seen  the  appellant,  who  had  remained  in custody throughout, on that day.  To counsel’s surprise the appellant indicated that he wanted to plead guilty.

[8]      Mr Hirschfeld stated in his affidavit (we adopt his numbering):

[39]      I was  surprised because I had  expected Mr Ratu to  confirm  his instructions based on the defence he had originally disclosed (consent).

[40]     He had not previously indicated to me any desire to plead guilty. [41]      I had Mr Ratu’s case stood down.

[42]     I had a summary of facts on my court file.

[43]     This was the original police caption summary.

[44]     I advised Mr Ratu of the consequences of pleading guilty which included the imposition of a lengthy term of imprisonment.

[45]     I asked Mr Ratu why he wanted to plead guilty.

[46]      He said words to this effect:  ‘I want to get on and start serving my sentence’.

[47]      Mr Ratu appeared to understand the consequences of his decision to plead guilty.

[48]     I had Mr Ratu initial the summary of facts and I initialled the same. [49]  The purpose for initialling was so that Mr Ratu acknowledged to me

that I had read the summary and that he agreed to its content.

[50]     Produced  as  Exhibit  A  in  the  affidavit  of  Nisha  Kettles  dated

20th April 2005 is the original of the summary of facts initialled by

Mr Ratu and by me.

[51]     Mr Ratu’s case was called.

[52]     Ms Sue Gray appeared as Crown Counsel. [53]   She presented the indictment.

[54]     Mr Ratu was arraigned.

[55]     He pleaded guilty to the counts on the indictment.

[56]     He did so without hesitation.

[57]     His demeanour in court seemed consistent with his instructions. [58]       Judge Lance took the pleas.

[59]     His Honour remanded Mr Ratu in custody for sentence to 21 April

2005.

[60]     At the conclusion of the case I confirmed to Ms Gray that Mr Ratu had signed the summary of facts.

[9]      As  will  later  be  discussed,  the  summary  of  facts  that  was  initialled  by Mr Ratu (mentioned in paragraph [50] of Mr Hirschfeld’s affidavit) was a summary that  made no  reference to the charge of threatening  to  kill,  and  it  was  not  the summary on which he was sentenced.

[10]     The appellant also swore an affidavit, for the purposes of the application for leave to withdraw his guilty pleas.   In that affidavit he deposed that he had been suffering from various ailments, that made him fear that his life would end prematurely.  He stated that taking into account the “blitz” (a reference to the fact that there was a call-over so described on that day), and his medical condition, he had elected to ignore Mr Hirschfeld’s advice, his own instructions to Mr Hirschfeld, and the fact that he was not guilty, so pleading guilty to the Court.  He stated that:

I was not thinking rationally at the time I stated a guilty plea to the Court.  I

am not guilty and now cannot understand why I did what I did.

Apparently over a two day period in February 2005 numerous prosecutions were mentioned and the epithet “blitz”, mentioned in the appellant’s affidavit, was applied for that reason.   We do not think that anything turns on that fact.   There is no suggestion that the appellant was pressured in any way by the Judge who conducted the call-over.

[11]     The appellant also deposed that at no time had he made a written application to the Court to plead guilty, and that he had not instructed Mr Hirschfeld to do so.

The District Court decision

[12]     The  Judge  recorded  that  Mr  Heaslip,  who  appeared  in  support  of  the application for leave to withdraw the guilty pleas, had submitted that the guilty pleas entered by Mr Ratu were a nullity.  That submission was evidently advanced on the basis that the appellant had not signed a request to plead guilty as envisaged by s 321 of the Crimes Act.

[13]     Section 321 provides (omitting subss (7) and (8)):

321      Person committed for trial may plead guilty before trial

(1)       Where any person charged with any crime has been committed for trial, and, at any time before the commencement of the sittings to which he is committed for trial, desires to plead guilty to the crime,  he shall sign a request in that behalf in form 3 in the Second Schedule to this Act.

(2)       The request shall be sent to the Registrar of the Court in the place to which  the  accused  was  committed  for  trial,  and  he  shall  as  soon  as practicable be brought before a Judge sitting in open Court to be dealt with under this section.

(3)       If the accused is not in custody, notice shall be given to him of the time and place for attendance before the Judge.

(4)       On his attendance the accused shall be called upon to plead either guilty or not guilty to the crime for which he was committed for trial or, if the Judge so directs, to any other crime for which an indictment could have been filed against him following his committal for trial.

(5)       Before the accused is called upon to plead, the charge to which he is required to plead shall be read over to him.

(6)       If the accused then pleads  guilty, the Judge shall have the same powers of sentencing or otherwise dealing with him, and of finally disposing of the charge to which the accused has pleaded guilty and of all incidental matters, as the Judge would have had if the accused on arraignment at any criminal sittings of the Court had pleaded guilty to the charge on an indictment duly presented.

[14]     The  Judge  took the  view  that  a  plea  of guilty could  validly  be  entered, notwithstanding that no written request to do so had been made by the appellant under s 321(1).  He referred to ss 355 and 356 of the Crimes Act.  Under the former, an accused person who is called upon to plead is entitled to have the indictment read out if he or she so requires.  Then, under s 356(1), when the accused is called upon to

plead, he or she may plead either guilty or not guilty.  The Judge held that under that provision, no written request is necessary.  He observed at [28]:

Provided an accused appears in Court, is arraigned and pleads guilty to the charge or charges put to him or her, then s 355 and s 356 of the Crimes Act are complied with and a lawful plea of guilty is entered.

The appellant’s first contention was rejected accordingly.

[15]     The second argument advanced to the District Court was that if the pleas were not nullities the Judge should grant leave for them to be withdrawn.  The Judge referred to this Court’s decision in R v Le Page [2005] 2 NZLR 845. He held that, contrary to Mr Heaslip’s submission to him, the appellant could not argue that his pleas had been vitiated by genuine misunderstanding or mistake. This was a reference to the first of the three situations contemplated in the summary given in R v Le Page, explained at [17]:

A miscarriage of justice will be indicated in at least three broad situations which are identified and discussed in Adams on Criminal Law, para CA385.21.  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.

[16]     The Judge decided that the appellant  could  not  bring himself within that category of case.  His reasoning is set out at [40 – 42]:

[40]     Mr Heaslip submits that Ratu’s statement that “I was not thinking rationally at the time that I stated the guilty plea to the Court.  I am not guilty and now cannot understand why I did what I did”, brings him within the first category identified in Le Page.

[41]      The difficulty with that submission is that Ratu does not say why he was not thinking rationally at the time and the statement does not accord with what Mr Hirschfeld said in his affidavit.  Mr Hirschfeld was not cross examined, and therefore, his affidavit remain[sic] unchallenged.

[42]     Although what Ratu said to the Probation Officer would indicate as Mr Heaslip submits, that he did not understand and approve the charges and pertinent facts, that is a comment made, a deal after the pleas of guilty had been entered.   Accordingly, it does not seem to me that Ratu has brought himself within category one of Le Page, particularly as he was receiving advice and had received advice from a well qualified and experienced barrister.

[17]     Neither of the other situations recognised in R v Le Page as leading to a miscarriage of justice so as to justify an appeal against conviction following entry of a guilty plea applied, and the appellant apparently did not purport to rely on them. Consequently, the appellant’s second argument also failed in the District Court and his application for leave to withdraw his guilty pleas was rejected.

The appeal

[18]     In his argument before this Court Mr Heaslip again contended that the guilty plea was a nullity on the basis that the procedure set out in s 321 of the Crimes Act had not been followed.   Secondly, in case that submission failed, he again argued that the appellant should have been granted leave to withdraw his guilty pleas to avoid a miscarriage of justice.

Nullity

[19]     We have earlier set out the relevant provisions of s 321 of the Crimes Act. Mr Heaslip argued that the section is the only provision of the Act which empowers a Court to take a guilty plea before trial.  He contended that it is to be contrasted with s 356 of the Act, because that section and the others under the sub-heading “Trial and Sentence” in Part XII of the Act are about the practice and procedure to be adopted at the trial.   There had not, of course, been a trial in the present  case. Mr Heaslip submitted that s 356 provided a procedure whereby, in the presence of the Judge and jury at the trial, an accused might plead guilty.

[20]     Section 356 of the Crimes Act provides as follows:

356      Plea

(1)       When the accused is called upon to plead he may plead either guilty or not guilty, or such special pleas as are hereinafter provided for.

(2)       If the accused wilfully refuses to plead, or will not answer directly, the Court may, if it thinks fit, order the Registrar to enter a plea of not guilty.

(3)       If the accused pleads not guilty, or specially pleads, or if the Court has ordered the entry of a plea of not guilty, the accused may, if he expressly declares his desire to do so, alter his plea to one of guilty, notwithstanding

that he may have been given in charge to the jury; and if he does so the

Court shall discharge the jury from giving a verdict.

(4)       If pursuant to subsection (3) of this section the accused pleads guilty, the Judge shall have the same powers of sentencing or otherwise dealing with him, and of finally disposing of the charge to which the accused has pleaded guilty and of all incidental matters, as the Judge would have had if on arraignment the accused had pleaded guilty to the charge.

[21]     Mr Heaslip  emphasised  the  reference  to  the  jury  in  subs (3)  and  also submitted that an accused person is only given in charge to the jury at the point where the jury retires to consider the verdict.   By contrast, he argued, s 321(1) is expressed in clear and unequivocal language.  Its reference to the accused desiring to plead guilty “at any time before the commencement of the sittings to which he is committed for trial” is to be understood as embracing the period before a jury trial commences.  During that period, s 321(1) will apply, effectively to the exclusion of s 356(1).

[22]     Further, Mr Heaslip submitted that as s 321 was intended to be the provision that applied before the trial, a failure to comply with its terms meant that there had been insurmountable prejudice to the accused.  He drew an analogy to s 153A of the Summary Proceedings Act 1957, which provides for requests to plead guilty before or during the depositions hearing. Section 153A(1) commences with the words “if a defendant is represented by a barrister or solicitor”.  It was held in R v Blackmore [1994] 1 NZLR 268 that a plea entered by an unrepresented defendant would be a nullity. Mr Heaslip contended that, by analogy, a failure to comply with the requirements of s 321 should have the same consequence here.

[23]     We do not consider that Mr Heaslip’s arguments are correct.   We do not agree that s 321 is intended to be the only means by which a guilty plea may be entered prior to an accused person being given in charge of the jury.  We observe in passing that the latter event occurs, not immediately prior to the jury retiring to deliberate, as Mr Heaslip submitted, but at the outset of the trial, after the jury has been empanelled and sworn, and has chosen its foreman.   Regardless of that correction, however, we consider that s 356 will operate so as to make a plea of guilty effective at any point where the accused is properly called on to plead to the indictment.

[24]     The distinction between s 321(1) and s 356 is that in order for the latter to be applied the accused must be before the Court for the purpose of being arraigned. Where an accused person has been committed for trial and “wishes to plead guilty before the commencement of the sittings for which he is committed for trial” then s 321(1) enables the accused to sign the appropriate request in form 3 in the Second Schedule to the Act.  The form records the accused’s desire to plead guilty and sets out the request that he or she be brought before the Court as soon as practicable for that purpose.  Were there not an ability for an accused person to make such a request then, in the absence of a Court-directed appearance, the accused would have to await the trial date before next having an opportunity to enter a guilty plea.

[25]     If, however, the accused is brought before the Court for the purposes of a call-over, at which an arraignment takes place, there is no need for a request under s 321.  In this circumstance, the guilty plea can simply be entered on the arraignment as envisaged by ss 355 and 356.

[26]   Section 321(1) of the Crimes Act, as has been seen, refers to the “commencement of the sittings to which” a person has been committed for trial. Where,  following depositions,  an  accused  is  committed  for  trial,  s 168A  of the Summary Proceedings  Act  deals  with  the  Court  to  which  the  accused  is  to  be committed  for  trial.    In  some  cases,  where  the  offence  is  listed  in  Part  II  of Schedule 1A  to  the  District  Courts  Act  1947,  a  Judge  of  the  High  Court  is empowered by s 168AA of the Summary Proceedings Act to transfer the case to the District Court (sometimes referred to as the “middle banding” power).  It is only in the latter case that there is a statutory provision dealing with the date on which the accused must then appear:  s 168AB requires the Registrar of the High Court to give to the defendant notice of the date and time at which the defendant must report to the District Court.   But there is no statutory provision which in any case requires a committing Court to use the words “commencement of the sittings”.  It appears that the practice is now, as it always has been, simply to nominate a date on which the accused must appear in the Court where he or she is to be tried.

[27]     Section 321(1) has been broadly in its present form since the enactment of s 41 of the Statutes Amendment Act 1936.  The language used may have been more

appropriate in days gone by when Courts were not continually sitting, as they now do in the larger cities.  But in practical terms, we consider that any date on which a person is required to attend at the Court to which he or she is committed for trial ought to be regarded as a sitting of that Court.

[28]     Kerr DCJ  quoted  from the  decision  of the  Supreme  Court  of  Canada  in

Paul v R [1982] 1 SCR 621 in which Lamer J said at 631-632:

The word sitting or sittings takes on slightly different meanings dependent upon the context in which it is used.  Its meaning is also somewhat different when relating to courts in general than when relating to superior courts of first instance or of appellate jurisdiction;  again, “next sittings” of a court has been said to refer to the opening day of a sittings[sic] (R v Tronson, [1932] 1

WWR 537), to a sitting actually held and not to a sitting appointed to be held but adjourned, (McLeod v Waterman (1903), 9 BCR 370), to the nearest sittings and not just a subsequent sitting[sic] (Hogaboom v Lunt (1892), 14
PR 480).  Generally speaking a sitting of a court is said to refer to a time during which judicial business is transacted before that court;  in that sense, it could mean a day, a succession of uninterrupted days or again different days within a given time span for transacting that court’s business.

[29]     The Judge thought that the latter part of that passage accorded with what occurs in this country, “where sittings are not designated for any specific periods during a year, beyond making provision for holidays”.   We are not sure that that statement is universally correct because there are some District Courts which do not sit continuously, but in respect of which the days or weeks when they are to sit during the year are published in advance.  However, we think the statement is true of the District Courts in the main cities and we also agree with the Judge’s further observation that if a person is committed for trial and directed to appear in the trial Court at a call-over on a certain day, then that day will be a sitting.

[30]     This is in accordance with the relevant definition of “sitting” in the Oxford

English Dictionary (2nd ed, 1989) which gives the following meaning:

The fact of being engaged in the exercise of judicial, legislative, or deliberative functions;   an instance or occasion of this;   a meeting of a legislative or other body;  the period of time occupied by this.

[31]     Plainly, any day on which a Court sits may be a sitting for the purposes of that definition.  We mention too the declaration in s 6 of the Interpretation Act 1999 that enactments apply to circumstances as they arise;  there can be no real difficulty

in modern times with treating a “sitting” as synonymous with a day on which a Court sits.

[32]     It is in this context that we refer to the call-over system which, as noted in the judgment under appeal, has developed over the years in District Courts throughout New Zealand.  As the judgment acknowledges, the Crimes Act makes no reference to call-overs, and such call-overs have developed simply as a practical way of case managing trials.  At [12] and [13] Kerr DCJ said:

[12]     When a trial reaches call-over at Auckland District Court, counsel discuss with the presiding Judge whether there are any pre-trial applications and if there are, timetable orders are generally made so that they may be disposed of as soon as possible.  If there are no pre-trial applications then a trial date is give[sic] after a discussion as to the time it will take for the trial to be disposed of.

[13]     If an accused wishes to plead guilty to the charges shown on the indictment which is presented at call-over, then the accused is arraigned and a plea is taken.  That is what occurred as far as Ratu is concerned.

[33]     The judgment also referred to the Practice Note “Criminal Jury Trials Case Flow Management:   District Court” (reproduced in Garrow and Turkington, “Criminal Law” at CRI 345.9) which appears to be the basis of the District Court’s practice.   Paragraph [8] of the Practice Notes provides, so far as is relevant  for present purposes that:

At the first call-over, which shall take place within 49 days of committal, there will be a formal arraignment in open Court and a plea will be entered.

[34]     The same words also appeared in a Practice Note issued by the then Chief Justice in December 1995 with respect to case flow management of jury trials in the High Court.  The Practice Note was revoked by a memorandum issued by Elias CJ on 2 September 2002.

[35]     We do not consider that there can be any suggestion that the process of taking a plea at a call-over is unlawful.   If the date upon which a person is required to appear is a call-over date, we see no difficulty in describing such a call-over as a sitting of the Court.  This would mean that, if prior to the call-over a person who had been committed for trial wished to plead guilty to the crime, he or she would need to make a request to do so under s 321(1).   If, however, the person was prepared to

await the call-over date, we see nothing wrong with the plea being taken at the call- over, as occurred in this case.  We add that the call-over at which Mr Ratu pleaded guilty was not the first call-over (it was part of the special “blitz” to which reference has already been made) but it was not suggested that that fact had any significance.

[36]     For these reasons, the appellant’s argument on the first ground of appeal must fail.

Leave to withdraw guilty plea

[37]     We have earlier set out the reasoning that led Kerr DCJ to conclude that leave should not be granted to the appellant to withdraw his guilty pleas.   Insofar as the charge of sexual violation is concerned, we are in no  doubt that the Judge was correct.   This was not a case where it  could be said that the appellant  had not appreciated the nature of the charge or had not intended to plead guilty to it.  Rather, as he himself put it in the affidavit that he swore in support of the application, he decided to act contrary to the advice that he received, although he now says that he was not thinking rationally at the time.   It is not possible to describe these circumstances as disclosing a “genuine misunderstanding or mistake” so as to bring the case within the ambit of the first situation described in R v Le Page.

[38]     More problematic is the guilty plea that was entered in respect of the charge of threatening to kill.  As we have earlier explained, the summary of facts that the appellant initialled did not mention that charge.   That is because, as is plain from Mr Hirschfeld’s affidavit, the summary that he asked the appellant to initial was the original police caption summary.   Not only did it not mention the charge of threatening to kill, but there was an omission of the part of the summary that referred to the threat itself.  Thus, the relevant paragraph in the version of the summary that Mr Hirschfeld procured the appellant to sign read at the relevant point:

The Accused hopped back on the complainant and forced his penis into the complainant’s mouth.

[39]     The summary on which the guilty plea was taken read:

The Accused hopped back on the complainant and forced his penis into the complainant’s mouth, telling him to suck it and threatening that if he didn’t the Accused would kill him.

[40]     On the other hand, there is no suggestion that the summary on which the Crown proceeded was not available to the appellant at the time that the guilty pleas were entered.   Moreover, as was recorded by the Judge, the indictment that was presented at the first call-over on 8 July 2004 contained both counts and it must have been plain that the prosecution was proceeding on the basis that both crimes had been committed by the appellant.  We add to those considerations the fact that in the affidavit that he swore in support of his application for leave to withdraw the guilty plea, Mr Ratu did not depose to having been unaware that he faced a charge of threatening to kill.  Rather, in that affidavit he referred to both counts in the same way.  Thus his guilty plea was entered on both counts on the basis of ignoring advice from his lawyer Mr Hirschfeld.

[41]     Given that the indictment had since 8 July 2004 alleged the threat to kill, we have concluded that on that count also it is not possible on the present facts to say that the appellant did not appreciate the nature of the charge alleging the threat to kill, and that he did not intend to plead guilty to it.

[42]     For the reasons that we have given, the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington