Ritchie v Police
[2022] NZHC 494
•18 March 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-000047
[2022] NZHC 494
BETWEEN NICOLE RACHAEL RITCHIE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2022 Appearances:
N M Laws for the Appellant R P Bates for the Respondent
Judgment:
18 March 2022
JUDGMENT OF NATION J
Introduction
[1] The appellant (Ms Ritchie) was one of two people in a vehicle that collided with a power pole. She pleaded guilty to an excess breath alcohol charge and a charge of careless use. She subsequently sought, but was refused, leave to withdraw her guilty pleas. She was convicted and sentenced. She appeals her convictions.
Background
[2] Ms Ritchie was 25. She borrowed her uncle’s vehicle on a day she was socialising with friends and drinking heavily. On 26 May 2019 around 11.20 pm, the vehicle collided with a power pole located on the footpath on Kenmure Road, Dunedin damaging the mains cable and power pole. Ms Ritchie and another person (Ms H) had been in the vehicle. They decamped from the scene but were located by the Police a short time later.
RITCHIE v POLICE [2022] NZHC 494 [18 March 2022]
[3] Ms Ritchie was charged with careless use and driving with excess breath alcohol of 876 micrograms of alcohol per litre of breath. She first appeared in Court on those charges on 13 June 2019. She denied she was the driver and pleaded not guilty.
[4] On 19 July 2019 with the Duty Solicitor, Ms Ritchie entered pleas of not guilty and was remanded for a Judge-alone trial.
[5] On 30 August 2019, Ms Ritchie appeared with counsel, Ms Turner. On a second appearance of 20 September 2019, the Judge noted that a case management memorandum had been filed. In that memorandum, counsel indicated the only issue was as to whether Ms Ritchie was the driver. The Court noted that a not guilty plea was maintained.
[6] Ms Ritchie was remanded to a nominal date for a Judge-alone trial. COVID- 19 restrictions led to further remands.
[7] On 8 May 2020, after being given a sentence indication, Ms Ritchie pleaded guilty to both charges. She was remanded for sentencing and for a reparation report to be obtained. The Court did not enter a conviction at that time because her counsel, Ms Turner, indicated that an application was to be made for a discharge without conviction.
[8] On 18 June 2020, Ms Turner advised the Court that Ms Ritchie wished to vacate her guilty pleas. An application for leave to withdraw her guilty pleas was made through new counsel on 24 June 2020.
[9] The application was refused in a decision of Judge Large of 17 August 2020. Fundamental to the Judge’s decision was his noting that an affidavit sworn by Ms Turner was very limited in its scope, and no affidavit had been sworn by Ms Ritchie to provide an evidential basis to support the grounds on which she was arguing.
[10]Ms Ritchie filed a second application.
[11] In a minute of 24 February 2021, Judge Turner agreed to rehear the application on the basis further evidence would be provided by Ms Ritchie and Ms Turner. He noted that privilege appeared to have been waived regarding Ms Turner.
[12] There was a hearing of the application before Judge Turner on 17 June and 10 September 2021. By then, both Ms Ritchie and Ms Turner had sworn two affidavits. They both gave evidence at the hearing. Other documents, including witness statements and the summary of facts, were before the Judge, having been annexed to Ms Turner’s first affidavit.
[13]In a judgment of 13 September 2021, Judge Turner declined the application.1
[14] On 2 November 2021, Ms Ritchie was convicted on the excess breath alcohol charge, sentenced to 100 hours’ community work, and disqualified from driving for seven months. The Judge also made a zero alcohol licence order and ordered her to pay reparation of $2,000. On the careless use charge, she was convicted and discharged. Ms Ritchie appeals those convictions.
Principles on appeal
[15] Section 232 of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason”. Miscarriage of justice is defined in s 232(4) as follows:
(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.
[16]A trial includes a proceeding in which the appellant pleaded guilty.2
1 Police v Ritchie [2021] NZDC 18479.
2 Criminal Procedure Act 2011, s 232(5).
[17] The relevant principles for an appeal against conviction following a guilty plea are well established. As stated by the Court of Appeal in R v Le Page, an appeal against conviction will only be allowed in exceptional circumstances following the entry of a guilty plea.3 What constitutes an “exceptional circumstance” was set out by the Court of Appeal in Whichman v R as follows:4
[35] Three broad categories of relevant exceptional circumstance were identified by this Court in R v Le Page to which a fourth was added in Merrilees v R:5
(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b) where on the admitted facts the appellant could not in law have been convicted of the offence charged;
(c) where the plea was induced by a ruling which embodied a wrong decision on a question of law; and
(d) where trial counsel erred in advising as to the non-availability of certain defences or potential outcomes, or where counsel wrongly induces a decision to plead guilty under a mistaken belief or assumption that no tenable defence existed or could be advanced.
[36] The overriding consideration whether the plea has produced a miscarriage of justice. This protean juristic concept is given modest definition in s 232(4) of the Criminal Justice Act. It is not to be thrust into an over- defined straightjacket. The categories of exceptional circumstance justifying a vacation of plea after entry of a guilty plea are neither closed nor complete.
The Supreme Court recognised that reality in Wilson v R.6
[18] In this instance, Ms Ritchie’s guilty pleas were entered before sentence. Section 115(1) of the Criminal Procedure Act states:
115 Plea of guilty may be withdrawn by leave of court
(1) A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
(2) The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—
3 R v Le Page [2005] 2 NZLR 845 (CA).
4 Whichman v R [2018] NZCA 519.
5 R v Le Page, above n 3; and Merrilees v R [2009] NZCA 59 at [35].
6 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].
(a)the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or
(b)the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.7
[19]As stated in Adams on Criminal Law:8
The decision to allow a guilty plea to be withdrawn is a discretionary one. The court should only grant leave if it is in the interests of justice to do so. In determining the interests of justice, the court should have regard to the interests of the defendant as well as victims and witnesses.
[20] In Popata v R, the Court of Appeal referred, with approval, to statements from the decision of R v Kihi:9
[17] Where application is made in the High Court to withdraw a guilty plea before sentence, the touchstone is whether the interests of justice require leave to be granted: Ripia at 150 and R v Turrall [1968] NZLR 312, 313. Although the discretion is not lightly exercised, several particular grounds (not intended to be exhaustive) have been recognised at least since R v Le Comte [1952] NZLR 564 as justifying the grant of leave:
a) Where the accused has “not really” pleaded guilty;
b) Where in entering the plea the accused acted upon a material mistake;
c) Where the proceedings were defective or irregular;
d) Where there is a clear defence to the charge.
[18] The onus of making out the relevant grounds rests upon the accused but where the accused has merely repented of the plea, without more, the application will not be granted.
7 Ms Ritchie had entered pleas of guilty to the two charges she had faced after a sentence indication where she had been told she would be disqualified from driving for nine months, fined and would be required to pay reparation. She was ultimately sentenced to 100 hours’ community work and disqualified from driving for seven months. Following the hearing of the appeal, Ms Ritchie’s counsel acknowledged that while a sentence of community work is more restrictive than a fine, she had sought to be dealt with by way of community work. She accepts that there was not a significant disparity between the sentence ultimately imposed and that referred to in the sentence indication. Ms Ritchie’s counsel accordingly accepted that s 115(2) was irrelevant to the appeal.
8 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [CPA115.02] (citations omitted).
9 Popata v R [2021] NZCA 222 at [17], citing R v Kihi CA395/03, 19 April 2004.
[21] In Popata, the District Court Judge had referred to the need for exceptional circumstances. The Court of Appeal left for determination in another case whether that was a principle to be considered on a s 115 application. The Court however noted that, relevant to this case, Mr Popata had accepted the Judge’s findings that:10
(a) he had been made fully aware of the case against him in relation to the trial issue, which was identification;
(b) he appreciated and understood the nature of the charge;
(c) he had been made aware of possible defences;
(d) he understood counsel’s advice that the guilty plea would be admissible against him at trial on the first and second charges, and so understood the implications of his guilty plea; and
(e) he nonetheless insisted on pleading because he wanted the benefits of an early guilty plea.
[22] In his submissions, Mr Laws said, in this case, it is not necessary for the Court to consider whether the test for setting aside a guilty plea under s 115 of the Criminal Procedure Act was different to that under s 232. He submitted:
[T]his case does not require the Court to answer that question, because it was in the interests of justice for [Ms Ritchie] to be allowed to change her pleas, and the failure to vacate her plea has resulted in a miscarriage of justice.
[23] I approach matters on the basis set out in Adams and by the Court of Appeal in Popata v R as referred to earlier but also on the basis it would not be in the interests of justice for Ms Ritchie’s convictions to stand if the failure to allow her to vacate her pleas has resulted in a miscarriage of justice.11
[24] Although a decision on an application under s 115(1) is discretionary, I have not dealt with the matter as if it has to be considered within the constraints that normally apply to an appeal against a decision made in the exercise of a discretion. I consider s 232 of the Criminal Procedure Act 2011 also applies to this appeal so that,
10 Popata v R, above n 9, at [16].
11 At [20]-[21].
in terms of s 232, I must allow the appeal if satisfied that a miscarriage of justice resulted from the refusal to allow Ms Ritchie to withdraw her guilty pleas.
Decision of Judge Turner
[25] In determining whether there would be a miscarriage of justice or whether it would otherwise not be in the interests of justice for the convictions to be upheld, it is the decision of Judge Turner which is at issue on appeal. I discuss matters accordingly.
[26] Judge Turner considered the issue before him was whether Ms Ritchie should be permitted to vacate her guilty pleas on the grounds that she had a defence to the charges, she was given inadequate legal advice by counsel which resulted in her pleading guilty, or that it was in the interest of justice that leave be granted.
[27] The Judge summarised the applicable law under s 115 of the Criminal Procedure Act. He then summarised the Police case and the history of proceedings.
[28] As to whether Ms Ritchie had a defence to the charges, the Judge considered evidence from Ms Ritchie’s affidavit and the evidence given by both Ms Ritchie and Ms Turner before him in court. After canvassing this evidence, the Judge considered there was a strong circumstantial case pointing to Ms Ritchie being the driver at the time of the collision with the power pole. This was based on independent witness statements, the police dog tracking from the driver’s door to Ms Ritchie, and the discovery of blood on the driver’s seat and exterior of the driver’s door (with Police observing that Ms Ritchie had blood on her clothes and hands, whereas the passenger had no visible injuries or signs of blood). The Judge also noted Ms Ritchie’s conflicting versions of events and potential issues in terms of reconciling these with the evidence. He determined that Ms Ritchie did not have a clear defence.
[29] The Judge then considered whether inadequate advice was given to Ms Ritchie by her counsel at the time. He first rejected the proposition that Ms Turner had not advised Ms Ritchie that the burden of proof was on the prosecution, as both Ms Turner and Ms Ritchie had given evidence that Ms Turner had told Ms Ritchie the Police had to prove that she was the driver. Secondly, the Judge found that Ms Turner did not “brush off” potential inconsistencies in the prosecution case, but rather reflected on
these matters and discussed them in the context of all the evidence, as would be expected from counsel. Lastly, the Judge considered whether undue pressure had been put on Ms Ritchie to plead guilty. He noted there was no judicial pressure despite the busy court day. On the evidence before him, he referred to Ms Turner’s 12 years of post-admission experience and the police case. The Judge found no pressure had been exerted on Ms Ritchie by counsel.
Submissions
[30] For Ms Ritchie, Mr Laws submitted that Judge Turner erred by applying the wrong legal test. He submitted the Judge approached the issue of whether Ms Ritchie had a defence by considering whether she could prove her innocence instead of assessing whether there was a tenable defence.
[31] Mr Laws submitted that the Judge’s finding, that there was a strong circumstantial case against Ms Ritchie, was not supported by any evidence.
[32] In relation to trial counsel error, Mr Laws submitted the standard of the advice that the Court found was given by counsel was overstated and contrary to the evidence. This submission was made on the basis that counsel:
(a) did not provide advice about admissibility of evidence;
(b) did not provide written advice to Ms Ritchie;
(c) did not take written instructions from Ms Ritchie;
(d) kept only some brief file notes;
(e) erred in advising Ms Ritchie that the Police had a strong case and that the evidence against her was “overwhelming”;
(f) did not advise Ms Ritchie that identity could not be proven to the required standard;
(g) did not provide advice about the burden of proof;
(h) did not provide adequate advice about making an application under s 106 of the Sentencing Act, and the role of pleas if such an application fails; and
(i) did not advise Ms Ritchie about the difficulties in changing guilty pleas once they are entered.
[33] Lastly, Mr Laws submitted it is the Court’s role to ensure that justice is done. He contended that upholding the convictions would perpetuate a miscarriage of justice as there was no evidence identifying Ms Ritchie as the driver.
[34]I refer to his submissions in more detail in the analysis that follows.
[35] Mr Laws submitted that, following the setting aside of the convictions, this Court may remit the matter back to the District Court for a hearing of the charges or form a view that the case against Ms Ritchie is so incapable of proof that an acquittal should be entered on both charges.
[36] The submissions of Mr Bates for the respondent are reflected in the analysis that now follows.
Analysis
[37] The Police case was that, around 11.00 pm on 26 May 2019, the Police received a complaint from the public about a collision between a white van and a stationary vehicle on Henderson Street, Dunedin. The Police were advised that the van had backed into a car and had driven off. Both the van and the car it collided with were damaged. The Police were advised that the rear bumper of the van was hanging off as the vehicle left the scene. The informant, a Police witness, believed there were two females in the van. Shortly afterwards, and only a few hundred metres away in Kenmure Road, a white van was involved in another collision. The vehicle had travelled backwards down Kenmure Road and collided with a power pole.12
12 After Ms Ritchie’s first application for leave to withdraw her guilty pleas had been declined, Ms Ritchie’s counsel indicated to the Court that Ms Ritchie wanted to have a disputed facts hearing as to Ms Ritchie’s involvement in the van’s collision with a parked vehicle on Henderson Street. Ultimately, sentencing proceeded with a deletion of those parts of the summary of facts which referred to the collision on Henderson Street. Ms Ritchie had pleaded guilty to the charge of careless use. She was ultimately convicted and discharged on that charge but that offence related
[38] A resident, Police witness L, heard the crash with the power pole which resulted in an immediate loss of power. He went outside to investigate and saw a female move from the passenger side of the van towards the driver’s side, asking if the driver was alright. He then saw the driver’s door open and a small person he believed to be a female fall out of the car onto the ground. He asked this person if they were alright but received no answer. About 30 seconds later, the person on the ground got up and both females ran off.
[39] Another resident, Police witness M, also heard the crash, prompting him to get out of bed and look out a window. He saw one person, wearing a black hoodie, by Pitcairn Street. He went to the intersection of Kenmure Road and Pitcairn Street and noted that the person had gone down Pitcairn Street. He followed and saw a second person who was smaller in build. He believed this person was a female because of her build. This person was also wearing a hoodie which had something on the back of it. He observed the person running, weaving to the left and the right. This witness did not pursue these people but returned to the van to see if he could assist.
[40] The Police had been called. One of the attending Police officers was Constable Saunders, a Police dog handler. On his way to the scene, Constable Saunders stopped on Stone Street. There, he encountered Ms Ritchie and another female (who, in an affidavit supporting her application, Ms Ritchie said had been the driver). The Police dog handler spoke with Ms Ritchie and noted she had blood on her hands and clothing. The dog handler left both women there and travelled to Kenmure Road. His dog then tracked from the van driver’s door, along Kenmure Road, down Pitcairn Street, through a residential property, onto Stone Street and directly up to Ms Ritchie.
[41] Constable Lang dealt with Ms Ritchie at Stone Street. He noted she had small cuts to her hands, although they were no longer bleeding when he spoke to her.
to her driving a vehicle at the time it collided with a power pole on Kenmure Road. It is not suggested that the Police willingness to accept that amendment to the summary of facts was a matter which this Court needed to consider in deciding whether there had been a miscarriage of justice in relation to Ms Ritchie’s conviction on the two charges relating to her driving a vehicle on Kenmure Road.
[42] Constable Davidson spoke with the other woman Ms H at Stone Street. She told him she was an occupant in the van. He saw no signs of blood on her after looking specifically for this because he was aware there was blood at the scene. She appeared to be uninjured. She was required to undergo alcohol testing procedures. She told Police that the van had been driven by a male.
[43] Two Constables attended and took photographs of the scene at Henderson Street and Kenmure Road. At Kenmure Road, blood was found on the driver’s seat of the van, on the outside of the driver’s door, and possibly on the road surface.
[44] Ms Ritchie was arrested at Stone Street for obstruction. This related to her behaviour in communicating with or attempting to communicate with Ms H.
[45] Ms Ritchie was required to undergo breath testing procedures. A breath screening test at Kenmure Road showed a result over 400 micrograms of alcohol per litre of breath. She agreed to accompany the Police back to the station for an evidential breath test. It showed an alcohol level of 876 micrograms of alcohol per litre of breath. After that, she was warned for obstruction, summonsed to appear in Court on 13 June 2019 and forbidden to drive.
[46] According to the statements from Police officers, throughout her interaction with the Police, both at the scene and at the Police station, Ms Ritchie made no comment about who was driving the van. She simply repeated her name, address and date of birth.
[47] The Judge noted there were obvious discrepancies between Ms Ritchie’s version of events in her affidavit and evidence, and Ms Turner’s evidence as to the instructions Ms Ritchie gave Ms Turner at an early stage in the proceedings.
[48] The Judge noted that, although best practice would have involved the completion of full file notes, signed written instructions, and perhaps a letter of advice to the applicant, he did not consider the absence of such detailed written information detracted from Ms Turner’s reliability or credibility. He said Ms Turner made concessions where they were due and, overall, appeared to have a very good
recollection of her dealings with Ms Ritchie. Although the events had occurred in May 2019 and Ms Turner had ceased acting for the applicant in June 2020, the Judge accepted Ms Turner’s evidence that the matter had consciously been on her mind since. This led him to accept her evidence where it conflicted with Ms Ritchie’s.
[49] Having read the affidavits, the documents before the Judge through the disclosure that had been made, and the transcript of evidence, I agree with the assessment the Judge made as to the credibility of both Ms Turner and Ms Ritchie.
[50] There were significant inconsistencies in Ms Ritchie’s evidence, in her affidavits and what emerged during the hearing. In her second affidavit, she said at no time was she advised that the Police had to prove the case beyond reasonable doubt and that she only had to raise doubt to be found not guilty.
[51] The Judge asked questions as to whether there had been any discussion with Ms Turner as to the strength of the case and Ms Ritchie’s argument. Ms Ritchie said there had not been but then said Ms Turner had told her at one point that “it might be hard for somebody to identify you”. She said Ms Turner told her that the Police had to prove the case against her.
[52] Ms Ritchie referred to them discussing the potential difficulties in the Police identifying her as the driver because of similarities in “height, weight, everything like that, it was dark”.
[53] In response to questions from the Judge, Ms Ritchie said she and Ms Turner had discussed her giving evidence. They discussed how she would need to give evidence as to who the driver was and Ms Ritchie had said she was not prepared to say it was Ms H. Ms Ritchie and Ms Turner had also discussed the possibility of Ms H being called as a witness and the possibility that Ms H would give evidence that Ms Ritchie was the driver.
[54] Ms Ritchie also said in evidence that Ms Turner had talked to her about the possibility of her facing a big fine or a longer period of disqualification if she defended
the charge. Ms Ritchie said Ms Turner had said that was a possibility, but another possibility was that she would be found not guilty and it would all be over with.
[55] In her first affidavit, Ms Ritchie referred to the Police notes that indicated her hands were bleeding. In her affidavit, Ms Ritchie said she did not have any blood or cuts on her hands when she was stopped by the Police. Ms Turner referred to their discussing blood found in or around the driver’s seat and it being identified as Ms Ritchie’s. Ms Turner said Mr Ritchie did not definitively indicate it was hers but “[w]e inferred that it was likely to be hers cos it was her vehicle”.
[56] The Judge referred to Mr Ritchie’s differing accounts of what happened. The first contained in her first affidavit and in her evidence in Court involved her, as the passenger, having an argument with Ms H who she said was driving, with Ms Ritchie looking out the passenger window at the time, then turning to look at the driver when there was no response to a comment, only to discover there was no one in the driver’s seat of the van which was moving backwards. Ms Ritchie then got into the driver’s seat to reach for the gear lever to stop the van and discovered the top of the gear lever was missing. Having heard the crash, Ms Ritchie said she may have been knocked unconscious because her next recollection was of being outside the van with the other woman standing over her and yelling “we need to leave”. The Judge referred to Ms H’s denials to the Police of being the driver but also of Ms Ritchie’s narrative lacking plausibility:13
… involving, as it must, the van travelling uphill on Kenmure Road and, somehow and at some time … the driver getting out of the van (either while it was moving or not) without [Ms Ritchie’s] knowledge and with part of the gear lever.
[57] The Judge noted this version of events could not be reconciled with the evidence of the witness who saw a female come from the passenger side of the van asking if the driver was okay and subsequently the driver’s door opening and the driver falling to the ground.
13 Police v Ritchie, above n 1, at [50].
[58] The Judge also accepted as accurate and reliable Ms Turner’s evidence as to what Ms Ritchie had told her, that:14
… on Kenmure Road, during the course of the argument, [Ms H] stopped the van and told [Ms Ritchie] “you deal with this then” before putting the vehicle in reverse and accelerating backwards into the power pole and remaining in the driver’s seat until after impact.
At that point, [Ms H] said “get out of the vehicle and run” and so [Ms Ritchie] did.
[59] Judge Turner accepted Ms Turner’s evidence that Ms Ritchie told her that at no time was she sitting in the driver’s seat before the van struck the power pole. The Judge noted this narrative could not be reconciled with her affidavit and evidence in Court.
[60] The Judge also took into account, in assessing Ms Ritchie’s credibility and whether she had a tenable or seriously arguable defence, that there had been a considerable delay before Ms Ritchie revealed the version of events she sought to rely on.15
[61] In response to questions from the Judge, Ms Turner said Ms Ritchie told her she had told the Police she was not driving on that night but Ms Turner acknowledged there was no indication of that in the documents disclosed by the Police.
[62]Judge Turner said:16
[47] In my assessment there is a strong circumstantial case pointing to the applicant being the driver at the time of the collision with the power pole. A female was seen by an independent witness to fall out of the driver’s door, face first, onto the ground. Another female, who it appeared had approached from the passenger side of the van was asking if this person was all right. The female on the ground got up and ran down Kenmure Road, along Pitcairn Street. Two witnesses observed that. A police dog tracked from the driver’s door, along Kenmure Road, down Pitcairn Street and into Stone Street and directly to the applicant. What appears to be blood was found inside the vehicle on the driver’s seat and outside the vehicle on the driver’s door and potentially on the ground. The applicant was observed to have blood on her clothes and hands and showed signs of injury. These were observed by two police officers. The other person with her on Stone Street, [Ms H], had no
14 At [52].
15 At [54].
16 Police v Ritchie, above n 1.
visible injuries nor signs of blood. Detective Davidson had specifically looked for such signs as he was aware that blood had been found at the scene.
[48] Although the applicant was not required to give a statement to the police, either at Stone Street or subsequently at the police station either when breath testing procedures were undertaken or when she was charged with driving with an excess breath alcohol level and careless driving, at no time did she assert that she was not the driver or that someone else was. Plainly the applicant appreciated she was in serious trouble. In such circumstances it might have been expected that she would say something to police.
[49] Overall, I consider the prosecution evidence to be strong and capable of proving the elements of the charges beyond reasonable doubt.
[63] For Ms Ritchie, Mr Laws suggested the witness who said he saw a female fall out of the driver’s door face first and another female approach from the passenger’s side had, in an original statement, referred to this witness possibly coming from the passenger’s side and that not being evidence that Ms Ritchie was driving the car. He said Ms Ritchie did not accept that the Police dog had tracked from the driver’s door to Stone Street and to Ms Ritchie. In any event, that evidence only connected Ms Ritchie to the vehicle. He suggested that the statements from the Police indicating blood was located in the vehicle and on Ms Ritchie was not evidence of her driving and, at most, only connected her with the vehicle. He suggested that, on the Police case, a sober person had to have agreed to be driven by a very intoxicated person. He argued the breath levels suggest the other woman was the likely driver.
[64] For the reasons referred to by the Judge, I agree with the Judge’s assessment that there was a strong circumstantial case that Ms Ritchie was the driver of the vehicle when it was on Kenmure Road.
[65] In her evidence, Ms Ritchie said she had been with the Police when the Police dog arrived. She said that Police had led the dog to her and let it sniff her and she had patted the dog “and then it just carried on down the road”.
[66] A Police dog had sniffed the blood and then tracked the scent down Kenmure Road to Pitcairn Street, the route which a witness said he saw the woman who fell from the driver’s seat take when running away from the scene. The evidence of Constable Saunders, the dog handler, was that the dog tracked the scent along Pitcairn
Street and into Stone Street, and then indicated on Ms Ritchie. The Constable had cast the Police dog past Ms Ritchie but “[t]he track did not continue”.
[67] On the Police case and consistent with Ms Ritchie’s evidence, Ms H was relatively sober or at least much less intoxicated than Ms Ritchie. This did not make it more likely Ms H was the driver of the vehicle at this time. The undisputed evidence was the vehicle had reversed into a power pole on Kenmure Road and a woman, generally of Ms Ritchie’s stature, had fallen from the driver’s seat. What happened was consistent with the driver at the time being seriously intoxicated, as Ms Ritchie was.
[68] In evidence, Ms Turner was asked if she could recall what the evidence against Ms Ritchie had been. She said:
A. Well, yeah, there was the blood and if that turned out to be her blood, that, and that could be shown it had been deposited at the time of the impact, that was going to be difficult. There was the dog handler and the dog tracking her from the vehicle from the driver’s side seat to her on the street and that was going to be difficult. There was her level of intoxication, which meant that her recall of events wasn’t 100% and that posed some difficulties and there was the difficulty of the other woman being unco-operative and having said one thing at the scene that wasn’t helpful at all really.
Q. Did you convey that to Ms Ritchie?
A. Yes.
Q. Your concerns?
A. I did.
Q. Yeah, how often?
A: Well, we’d discussed it leading up to the call on the 8th of May before Judge Crosbie. We certainly discussed it during the stand down period after he gave his indication.
[69] Ms Ritchie was not willing to give evidence that the driver was Ms H because she did not want to “nark” on Ms H. She had also discussed with Ms Turner that they could not be confident that Ms H would not identify Ms Ritchie as the driver. In her evidence, Ms Ritchie had acknowledged she was extremely intoxicated that night. There was no dispute that, because of her degree of intoxication, it would be difficult
for her to give evidence in her own defence. Given the strength of the circumstantial case against Ms Ritchie, it was reasonable for Ms Turner to consider that Ms Ritchie’s inability to call or give evidence in her own defence would make it more difficult to obtain an acquittal.
[70] Consistent with the view of the District Court Judge, I consider Ms Turner’s assessment of the strength of the Police case was reasonably based and certainly not misleading. It was based on all the material disclosed by the Police to the defence. The Police summary, police notes and witness statements had been provided by disclosure early in the proceedings. They had been provided to Ms Ritchie. There was no suggestion from Ms Ritchie that she did not understand what the documents disclosed.
[71] Mr Laws suggested there was some inadequacy in counsel’s advice because she had not disclosed all the elements of what the Police had to prove. Ms Turner had however indicated in a memorandum for the Court that the only issue at trial was as to the identity of the driver. Ms Ritchie clearly understood this. She denied she was the driver throughout the time she was engaging with Ms Turner and the Court, right up to the point she decided to plead guilty. She had entered pleas of not guilty on 19 July 2019 with the duty solicitor and had maintained not guilty pleas in a subsequent appearance on 20 September 2019. During the discussion with Judge Crosbie on 8 May 2020, Ms Ritchie would have heard Ms Turner say that the defence was that Ms Ritchie was not the driver.
[72] Although Ms Turner’s notes were sparse, there was a note indicating that on 9 October 2019, Ms Turner had discussed with Ms Ritchie her defence and the strengths and issues with it. In her evidence, Ms Ritchie had said that, in meetings with her lawyer, they had discussed inconsistencies Ms Ritchie found in the statements and that, at one point, they had talked about what would happen if she pleaded guilty. She said they had discussed whether she was going to plead guilty or not guilty before not guilty pleas were entered.
[73] The case was scheduled for a Judge-alone trial on 24 March 2020. On 23 March 2020 in chambers, Ms Ritchie was remanded to a nominal date, that remand
was required because of the COVID-19 lockdown. There were further remands until a number of cases were called for review on 8 May 2020. Ms Turner said it was a busy day because all outstanding Judge-alone trial matters were called that day for review.
[74] Ms Ritchie said she spoke to Ms Turner before Court that day and Ms Turner had said the best option would be to plead guilty. She said it was during the discussion about whether she was going to plead guilty or not that Ms Turner said at one point that it might be hard for somebody to identify her. Ms Ritchie said she was aware that, if she pleaded not guilty, she would have a trial. She understood then that she knew the Police had to prove she was the driver.
[75] Ms Ritchie’s recollection was that her case was called in the morning. Ms Ritchie was then shown a transcript of what was said between the Judge and Ms Turner a short time before the Court adjourned at 3.45 pm. Ms Ritchie did not say that altered her recollection of when the case was first called before Judge Crosbie. Ms Turner’s evidence also was that the matter was called initially in the morning before lunch but, on being shown the transcript, said it must have been called first in the afternoon.
[76] The transcript shows there was a discussion with the Judge. It is not clear from the transcript when the discussion began but it begins as if the case had been called earlier and there might have been some initial discussion about the case.
[77]The transcript began with Ms Turner saying:
We’re moving forward I think slowly. Ms Ritchie is interested to hear what your Honour might impose if she changed her pleas today, Sir. She has – what I can tell you about her is she has no history whatsoever and she has no demerit points on her licence at all. She’s otherwise of extremely good character and this was, I can paraphrase what she said: “one crazy night”, Sir.
[78] There was then a brief discussion with the Judge with it being accepted the reading was quite high. The Judge enquired as to Ms Ritchie’s defence and was told that Ms Ritchie maintained she was not driving the vehicle. That led to the Judge looking at the summary of facts. He referred to her high reading, the fact she had lost control twice, and reparation being an issue. The Judge enquired as to whether
reparation was an issue and was told by Ms Turner that $7,937.57 was being sought. The Judge then said:
Well, I think that, what have we got? 26 year old, no previous convictions, stupid night, very high reading. I would, if she’s prepared to plead rather than go off to a hearing, assuming you guys are saying identification is not an issue, Sergeant, I would limit her disqualification to nine months, otherwise it’s going to be at least a year if she goes to a hearing and then we’d have to be – I can’t do anything about the reparation.
[79] The Judge said the fine would be about the same as the reading, that the loss of licence “should be higher” but he would keep it at nine months because there would be a penalty in the reparation. The transcript shows the Court then adjourned at 3.45 pm.
[80] The Court resumed at 4.45 pm. On returning to Court, Ms Turner said she had instructions to vacate the pleas of not guilty and enter pleas of guilty but that she did not want the Court to enter convictions, as there was potentially going to be a s 106 application because of the impact convictions might have on Ms Ritchie’s future career as a social worker.
[81] There was some discussion about the s 106 application and how it would proceed. Judge Crosbie made timetabling directions for such a s 106 application if it was to be pursued.
[82] Ms Turner’s evidence was that, during the stand down, there was a lot of discussion in one of the interview rooms. Present during the discussion were Ms Ritchie and her father. Ms Turner said she discussed the indication given by Judge Crosbie and advised that, in the circumstances, that would be a good outcome. She said they discussed the difficulties with her defence that they had discussed previously, focusing around her intoxication level and therefore her ability to recall the night clearly, the difficulties posed by the dog tracking from the vehicle to her on the street and the difficulty of not having anyone else to back up her version of events. Ms Turner said Ms Ritchie understood all those difficulties but initially said she still intended to defend the charge. But:
[S]lowly and somewhat reluctantly she formed the view that it wasn’t going to be a good option for her and her best option was to take that indication from Judge Crosbie in terms of the outcome.
[83] She said Ms Ritchie’s father was very supportive of Ms Ritchie and was advocating for her to maintain her not guilty pleas. She said, before they went back into the courtroom, Ms Ritchie instructed her to vacate the not guilty pleas but also to ask for the conviction not to be entered so as to explore the s 106 application. Ms Turner said they had talked about that application in discussing what the change of plea would mean for her and her worry the consequences of a conviction might have on her social work career aspirations.
[84] In her evidence, Ms Ritchie said, immediately on leaving Court, she told Ms Turner that she wanted to plead not guilty. There was no mention of this in Ms Turner’s evidence and that possibility was not put to Ms Turner. Ms Turner’s evidence was that she had been unable to get hold of Ms Ritchie after the hearing before Judge Crosbie and the next contact was at Ms Ritchie’s next Court appearance. Ms Ritchie then told Ms Turner that she wanted to go back to her not guilty pleas because she was not driving on the night. Ms Turner told her it was her right to make that application and Ms Turner would facilitate that, but Ms Ritchie would need to engage another lawyer to pursue that.
[85] With her pleas of guilty, through her counsel and in her presence, Ms Ritchie was admitting she was the driver of the vehicle at the time of the Kenmure Road collision. At that point, this was all that had been at issue as far as proof of the charges was concerned. The issue for Judge Turner was whether there would be a miscarriage of justice if she was not allowed to effectively withdraw the guilty pleas and the admissions associated with them.
[86]I consider that, on the evidence, it was clear:
(a) there was a strong case against Ms Ritchie that she was driving the vehicle before it came to a stop on Kenmure Road;
(b) the evidential breath test proved that her breath alcohol reading was 876 micrograms of alcohol per litre of breath;
(c) Ms Ritchie understood that, to prove the charges, the Police had to prove she was the driver;
(d) Ms Ritchie was aware of and understood the evidence the Police would be relying on to prove she was driver;
(e) she was advised, reasonably and correctly, by the solicitor representing her that the Police case against her was strong;
(f) she was advised responsibly and reasonably that, if she pleaded guilty, particularly in terms of disqualification, her sentence would be less than it would be if she pleaded not guilty but was found guilty at trial;
(g) the option of pleading not guilty was available to her and, if she pleaded not guilty and the Police were unable to prove she was the driver, that would be the end of the matter; and
(h) after a discussion with her counsel over much of an hour and with her father present and encouraging her to maintain pleas of not guilty, Ms Ritchie chose to plead guilty, knowing what she was doing and knowing that, in doing so, she was admitting to having been the driver at the relevant time.
[87] Ms Turner was undoubtedly pessimistic as to the prospects of an acquittal if Ms Ritchie defended the charges against her in a Judge alone trial. Ms Turner’s pessimism was undoubtedly conveyed to Ms Ritchie before Ms Ritchie decided to plead guilty. In considering whether this resulted in a miscarriage of justice, as it was in Kissling v R, the question on appeal is whether there was any error in counsel’s pessimism.17 As in Kissling, for the reasons referred to in this judgment, I consider there was none.
[88] I accept Ms Ritchie was under pressure when deciding whether she would accept the sentence indication of Judge Crosbie. As the Court of Appeal have said, anyone facing serious charges will inevitably be under pressure, but the fact a
17 Kissling v R [2021] NZCA 6.
defendant may be stressed and feel under pressure when making a decision to plead guilty is not ordinarily sufficient to amount to a miscarriage of justice.18
[89] In Methven v Police, Cooke J referred to the judgment of the Court of Appeal in Halpin v R as providing a helpful review of the circumstances giving rise to a miscarriage of justice for a defendant who wishes to challenge a conviction entered after a guilty plea.19 This included an appeal where it was asserted a defendant had demonstrated a tenable defence. As to that, the Court of Appeal had said:20
It is not sufficient for an appellant to simply assert his or her innocence. Credible evidence must be presented to justify a court taking the rare step of vacating a guilty plea.
[90] Here, there was a compelling case that Ms Ritchie was the driver. She would not have been able to give credible evidence that someone else was the driver because of the degree to which she was intoxicated and the fact she had not denied being the driver to the Police at the time of the crash or when she was being breath tested at the Police station. She had not demonstrated to Judge Turner there would be credible evidence that she was not the driver.
[91] In addition to the matters I have already considered, it was argued for Ms Ritchie that there were grounds to hold that the evidential breath test should be ruled inadmissible. Ms Turner acknowledged she had not considered this issue. Ms Ritchie had not been given any advice as to that issue before she pleaded guilty.
[92] Counsel for Ms Ritchie had raised this as an issue in written submissions for the hearing of the first application but had not referred to it again in further brief submissions for the hearing of the second application. It was not referred to in Judge Turner’s decision. It was raised again on appeal and responded to by the Crown solicitor.
[93] Ms Ritchie’s counsel submitted that evidence (from the evidential breath testing) was obtained following Ms Ritchie’s arbitrary detention in contravention of
18 K v R [2010] NZCA 247 at [60]; and Barakat v R [2020] NZCA 440 at [54].
19 Methven v Police [2019] NZHC 357 at [15], citing Halpin v R [2018] NZCA 477.
20 Halpin v R, above n 19, at [20].
the New Zealand Bill of Rights Act 1990. He submitted there was a causative link between the impropriety and the obtaining of evidence. Mr Laws submitted a court would be likely to determine that the exclusion of evidence was proportionate to the impropriety.
[94] I consider the issue in light of the evidence that the District Court Judge would also have had to consider.
[95]In her affidavit in support of the application, Ms Ritchie said:
14. By the time I was stopped by Police, I was almost at the bottom of Stone Street. The police officer I spoke with told me to stay where I was. The officers kept [Ms H] and I apart. I remember that [Ms H] was still trying to speak to me. I don’t know what she was saying.
15. I gave the police officer I spoke to my name, address and date of birth. I did not answer any other questions. I asked the officer if I was under arrest. He said no. I said I was going to leave. He said I had to stay. I asked again if I was under arrest. He said I was not, but he would not let me leave. I was not talking to [Ms H]. When I went to leave anyway, the officer arrested me for obstruction. I was cuffed and put in the police car.
[96] In her evidence at the hearing, Ms Ritchie said she ran from Kenmure Road and stopped when she got to Stone Street. She said she thought Ms H had already been picked up by the Police at that time. They were not together. A little later she said the Police brought Ms H to her. She said she did not speak with Ms H.
[97] The Court had a statement taken from Police Constable Lang on 5 August 2019. In that statement he said, after arriving at the scene on Kenmure Road, he was directed to make his way to the bottom of Stone Street. He was advised that a Police unit had stopped with two females suspected of being drivers of the vehicle involved in the crash on Kenmure Road. He said in his statement:
Upon arrival at the bottom on Stone Street I saw that three women were being spoken to by the Police Dog Sergeant Michael CALVERTT and PST Sergeant Mathew DAVIDSON, there was one vehicle that had been stopped.
I began gathering the details of a female I now know to be […], she stated she had come to pick up the other two females and take them home.
A approximately [sic] 2346 hours a female I now know to be Nicole RITCHIE began to walk down the road towards Kaikorai Valley Road and talk to the
other female I now know to be [Ms H]. RITCHIE was told multiple times to stay where she was and she cannot speak with the [sic] [Ms H].
At 2347 hours I arrested RITCHIE for obstruction and read her the caution rights and confirmed she understood them.
[98] He said it was after this he attempted to gather her details and a description of events. He said Ms Ritchie gave just her details of name, date of birth and address, and refused to provide any further information. During this time, he noticed small cuts on her hand. It was also after this time that the Police dog came up to her.
[99] In his statement, Constable Lang said, during the evidential breath testing procedure:
RITCHIE continually asked if she was arrested and free to go, she was told every time that she was arrested for obstruction and was now detained for the purposes of the evidential breath testing procedure and that she was not free to go until it was complete.
[100] Section 315 of the Crimes Act 1961 allows the arrest without a warrant of any person who the Constable has good cause to suspect of having committed any offence punishable by imprisonment.
[101] The offence of obstruction is found at s 23 of the Summary Offences Act 1981. This relevantly provides:
23 Resisting Police, prison, or traffic officer
Every person is liable to imprisonment for a term not exceeding 3 months or a fine … who resists or intentionally obstructs, or incites or encourages any other person to resist or obstruct,—
(a) any constable … acting in the execution of his duty;
...
[102]In Brechelt v Police, this Court endorsed an earlier statement that:21
… it will always be a matter of degree whether there was hindering or obstructing. The refusal to comply with reasonable requests made in the course of the lawful exercise of powers may amount to obstruction or hindering. I do not accept the submission of counsel that some action rather
21 Brechelt v Police [2017] NZHC 2955 at [8], citing Smith v Police HC Wellington CRI-2006-485- 23, 23 June 2006 at [14].
than refusal or inaction was required. Words may in certain circumstances amount to obstruction or hindering. Likewise, standing mute or refusing to comply with reasonable directions, which are necessary in order that the lawful power of search be exercised, may suffice.
[103] I infer from Constable Lang’s statement that, because there were multiple directions to Ms Ritchie not to speak with Ms H, Ms Ritchie was refusing to comply with that request. Constable Lang was obviously endeavouring to speak to the other person who had been in the car to try to find out who was driving. He did not want Ms Ritchie to interfere with his enquiries. The directions to Ms Ritchie, for her not to try to talk to Ms H, were reasonable requests for him to make in the course of his enquiries as a Police constable.
[104]On the hearing of the first application, Judge Large had concluded:22
[65] The arrest for obstruction related to a direction to Ms Ritchie not to speak to the other female but that is what was occurring, and it seems, from the material supplied to me, that the police did not act improperly in respect of that nor was the arrest for obstruction unlawful.
[105] Had Ms Ritchie, through her counsel, made an issue as to the admissibility of the evidential breath test that ultimately ensued after her initial arrest, I do not consider a Judge would have found the evidence from the evidential breath testing to be inadmissible on the ground that it resulted from an unlawful detainment for obstruction.
[106] Even if a Judge had found the initial arrest for obstruction was unlawful, I am satisfied the evidence obtained from the evidential breath test would have been ruled admissible on the s 30 balancing exercise under the Evidence Act 2006. The Police would have been entitled to require Ms Ritchie to submit to the initial breath screening test as she was reasonably suspected of having been a driver of the vehicle. She underwent such a test which showed a result of over 400 micrograms of alcohol per litre of breath. The Police could legally require her to go with them to the Dunedin Central Police Station for the purpose of an evidential breath test, blood test, or both, without delay.23 She agreed to accompany them. At the Police station she was told
22 Police v Ritchie [2020] NZDC 16658.
23 Land Transport Act 1998, ss 68 and 69.
she had been detained there for the purpose of an evidential breath test. Her detention for that purpose was therefore permitted independently of her initial arrest for obstruction. The evidence obtained from that test did not therefore result from her initial arrest for obstruction.
[107] Accordingly, I do not consider there was such potential for evidence from the evidential breath test to be ruled inadmissible that this should have been brought to the attention of Ms Ritchie as an issue for her to take into account before she decided to plead guilty. I do not consider there was such a prospect of the evidence being ruled inadmissible that there was a risk of a miscarriage of justice in Ms Ritchie pleading guilty based on that evidence.
[108] On that basis, Ms Ritchie did not establish that, in the interests of justice, she should have been allowed to withdraw her guilty pleas. She has not established there would be a miscarriage of justice if, on her guilty pleas, she remains convicted on the charges she faced.
[109]Ms Ritchie’s appeal is accordingly dismissed.
Solicitors:
Ross Dowling Marquet Griffin, Dunedin RPB Law, Dunedin.
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