Shepherd v The Queen
[2011] NZCA 487
•26 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA698/2010 [2011] NZCA 487 |
| BETWEEN DEAN JOSEPH SHEPHERD |
| AND THE QUEEN |
| Hearing: 13 September 2011 |
| Court: Randerson, MacKenzie and Asher JJ |
| Counsel: Appellant in person |
| Judgment: 26 September 2011 at 9.30 a.m. |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
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REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
On 10 December 2007, inside Paremoremo Maximum Security Prison, the appellant was on cleaning duties. Another inmate, William Bell, was in the telephone room. The appellant went into the room carrying a bucket. He removed two metal implements, made from the workings of a lever arch file, sharpened at one end and wrapped in bandages to form a handle at the other, from the bucket. He approached Mr Bell who was sitting on a chair talking on the telephone. He stopped and stood next to him, then lunged at him and stabbed him in the left eye. This forced the victim down to the floor. The appellant jumped on top of him and hit him on the back of the head with the metal implement and with his fists, attempting to get to his eyes. Prison guards arrived and they had to pull the appellant forcefully off the victim to stop the attack. The incident was captured on CCTV.
On 13 July 2009, the appellant pleaded guilty in the District Court at Auckland to a charge of wounding with intent to cause grievous bodily harm. By an application dated 12 March 2010, he applied to vacate the guilty plea. That application was heard by Judge Harvey. It was dismissed in a ruling delivered on 29 June 2010.[1] The appellant was committed to the High Court for sentence, and on 19 October 2010 Andrews J sentenced him to ten years imprisonment, to be served concurrently with a sentence of life imprisonment already being served.[2] The appellant gave notice of appeal against his conviction on 19 October 2010.
[1] R v Shepherd (Ruling 1) DC Auckland CRI-2007-044-9145, 29 June 2010.
[2] R v Shepherd HC Auckland CRI-2007-044-9145, 19 October 2010.
Up to the entry of the guilty plea, the appellant was represented by Mr Cassidy. On the application to vacate his guilty plea and at sentencing, he was represented by Mr Heaslip. The appellant represented himself at the hearing before us.
The appeal is, in effect, an application to change plea. As Mr Tantrum pointed out, any appeal against Judge Harvey’s ruling refusing the application to vacate the plea would be well out of time. That however does not prevent the matter being raised on a general appeal against conviction. That appeal is within time. The approach to be applied in such a case is set out in R v Le Page:[3]
… 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. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.
Grounds for appeal
[3] R v Le Page [2005] 2 NZLR 845 (CA) at [16].
The ground advanced in support of the application to vacate the guilty plea, on Mr Heaslip’s advice, was that, on the basis of the decision of this Court in R v Nazif,[4] the appellant had a clear defence based on a mistaken belief in the existence of circumstances which would justify or excuse an intentional actus reus. The appellant contended that he was of a firm belief, based on actual events, that he was in imminent danger of maiming or death at the hands of the victim and that if he did not act as he did, then the victim had a real and present ability to carry out threats that he had made against the appellant.
[4] R v Nazif [1987] 2 NZLR 122.
Mr Cassidy swore an affidavit in relation to the application to vacate the guilty plea, following a waiver of privilege. Mr Cassidy’s view was that in the light of the CCTV evidence, a jury would have no difficulty in forming the view that when the appellant wounded Mr Bell he intended grievous bodily harm. He advised that a defence of necessity was not available. Mr Cassidy advised that the only options available were self defence and non insane automatism. Mr Cassidy ruled out self defence as a realistic option and the psychiatric evidence did not support a defence of non insane automatism.
In his decision, Judge Harvey said:[5]
The Crown considered whether or not a defence of self-defence or mistake of fact was the real position. Mr Heaslip has made it clear in his submissions in reply he says that he is not relying upon s 48 of the Crimes Act, he is not arguing self-defence. He is arguing that Mr Sheppard was acting under a mistaken belief about the reality of the situation in believing that he was justified taking the steps that he did for his own self-preservation and to prevent harm occurring to him.
That assumes, of course, that that is what R v Nazif actually says. With the greatest of respect to Mr Heaslip I do not believe that it does. That particular case should, in my view, be restricted to its facts dealing with issues of whether or not there was an honest but mistaken belief that there was a consent that existed insofar as sexual offending where consent was an element of defence, or where consent to an assault may be available.
I do not believe that it states quite the broad proposition that Mr Heaslip has suggested. I do not believe that it offers a form of umbrella or overlay to the defence of self-defence that is contained in s 48 of the Crimes Act, because s 48 itself contains that subjective element of circumstances as he believes them to be which clearly allows for issues of potential mistake.
I cannot be satisfied that there is in fact any defence that is available to this particular person. All of the factors that go to the elements of the offence are clear. He himself at least has acknowledged the elements of the actus reus. He was represented by experienced counsel who has given an affidavit. It set out clearly the issues that he discussed with him and the advice that he gave. I do not believe, therefore, that the application should be granted and the application will be dismissed.
[5] R v Shepherd (Ruling 1) DC Auckland CRI-2007-044-9145, 29 June 2010 at [15]–[18].
In support of his appeal, Mr Shepherd has filed an unsworn statement in which he says that he can now reveal what actually happened to him, because he has been moved within the prison and now feels safe. He says that nine days before the incident he was visited in his cell by Mr Bell and another prisoner. They gave him the implements used in the offending, and he agreed to hold them as he felt intimidated by them. He says that Mr Bell told him he was planning to escape, and asked him to obtain the Principal Corrections Officer’s overalls. He further says that two days before the incident he was sexually violated by Mr Bell and the other prisoner. Mr Bell then asked him to give the weapons back to him, which the appellant said that he would do on the Monday, the day of the incident. He says that he did then hand the weapon back earlier on the Monday, but Mr Bell put them in the appellant’s cleaning bucket, where they were at the time of the incident. The appellant says he picked the weapon from out of the bucket and lunged forward, stabbing Mr Bell in the eye. He says this was self defence as he feared for his life. He knew from past experience that Mr Bell would have attacked him and he would not have seen it coming. The appellant says that he felt in imminent danger which led him to believe that his actions were justified and necessary in the circumstances.
Discussion
The proposition apparently advanced by Mr Heaslip on the change of plea application was that a mistaken belief that the appellant was in imminent danger from the victim might provide a defence, in circumstances where s 48 of the Crimes Act 1961 is not engaged. That submission was rightly rejected by Judge Harvey. His decision, that R v Nazif did not provide the basis for a viable defence, was clearly correct. That case was concerned with a defence of consent to a charge of indecent assault. This Court noted that belief by an accused that a complainant consented is a defence to a charge of indecent assault, and that where there is evidence of such a belief it is for the Crown to negative it. That principle has no possible application in this case. Consent of the victim would not have provided a defence to the charge of wounding with intent to cause grievous bodily harm, and there was no evidence from which the victim’s consent might be inferred.
Even if the appellant’s latest explanation (as summarised at [8]) were accepted (and Mr Tantrum submits that it is clearly a fabrication), then it would not provide any basis for suggesting that a miscarriage of justice may have resulted from the appellant’s conviction. We accept Mr Tantrum’s submission that the appellant’s reaction to any perceived threat was gross and unreasonable. It could not provide him with any arguable defence.
The appellant was represented by competent counsel at the time when the guilty plea was entered. Counsel’s advice that there was no defence, based on the CCTV evidence, was realistic and appropriate. There is no risk that a miscarriage of justice may have occurred.
Result
For these reasons the appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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