Stephens v The Queen

[2017] NZHC 2341

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2017-442-17 [2017] NZHC 2341

BETWEEN

DYLAN GLEN STEPHENS

Appellant

AND

THE QUEEN Respondent

Hearing:	26 September 2017
Appearances:	A Goodison for the Appellant J Webber for the Respondent
Judgment:	26 September 2017

JUDGMENT OF CULL J

Introduction and background

[1]      Mr Stephens pleaded guilty and was convicted on 1 December 2011 of two charges of selling a Class C drug, 14 charges of supplying, offering or conspiracy to supply a Class B drug and one charge of possession of a Class B drug.   He was sentenced by Judge Zohrab to two years and three months’ imprisonment.1    He has served this sentence without incident but now appeals, out of time, to have his conviction quashed.

[2]      Mr Stephens’ prosecution was part of a police investigation into the Red

Devils gang, known as Operation Explorer.  This investigation has been the subject of numerous cases before this Court, Court of Appeal and Supreme Court.2    The

1      R v Stephens DC Nelson CRI-2011-042-906, 1 December 2011.

2      R v Antonievic [2012] NZHC 2686; R v Antonievic (No 1) [2015] NZHC 230; R v Antonievic (No

2) [2015] NZHC 439; R v Antonievic [2015] NZHC 1096; R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806; Wilson v R [2014] NZCA 584; and Wilson v R [2015] NZSC 189, [2016] 1

NZLR 705.

STEPHENS v THE QUEEN [2017] NZHC 2341 [26 September 2017]

Supreme Court found serious police misconduct during the investigation, including using bogus search warrants and bringing bogus prosecutions in the courts.3    As a result of the abuse of process committed by police and following these cases, the prosecution was stayed against a number of the defendants and many of the existing convictions were quashed.

[3]      Mr Stephens’ entered a guilty plea at an early stage of the prosecution.  This was prior to the application by other co-defendants for a stay of the criminal proceedings and the subsequent appeals that arose from this litigation.  The Crown accepts that if Mr Stephens’ convictions stand, he will be the only person convicted as a result of Operation Explorer, in circumstances where others who were convicted have had their convictions quashed.   The Crown does not oppose Mr Stephens’ appeal and accepts it would be a miscarriage of justice to allow his convictions to stand in the circumstances.

Leave to appeal

[4]      Mr Stephens’ appeal is out of time.  At the time he entered his guilty plea, Mr Stephens  was  not  aware  of  any  police  misconduct  in  obtaining  evidence. Mr Stephens submits that in light of what has happened to his co-defendants, he should benefit from the same treatment as them.

[5]      As the charges against Mr Stephens were entered in October and November

2010, leave to appeal out of time is determined in this case under s 123 of the Summary Proceedings Act 1957.4     Section 123 provides a broad discretion for a Judge to extend any time prescribed for an appeal.   The principles  guiding the exercise of that discretion were identified in R v Knight.5    In assessing whether to grant leave, the overall consideration is the interests of justice of a particular case.6

There are a variety of considerations relevant to the interests of justice, including the

3      Wilson (SC), above n 2.

4      The current provision applying to out of time appeals, s 231 of the Criminal Procedure Act 2011, only came into force on 1 July 2013, by the Criminal Procedure Act Commencement Order

2013.

5      R v Knight [1998] 1 NZLR 583 (CA), which was confirmed in R v Lee [2006] 3 NZLR 42 (CA)

at [95]–[107].

6      At 587.

length and reason for the delay, the strength of the proposed appeal and the public interest in the finality of decisions.7

[6]      In the present case, Mr Stephens advises that he was not aware of any police misconduct at the time he entered  his guilty plea.   The litigation in relation to Operation Explorer has only come to a clear conclusion with the Supreme Court’s decision in 2015.8   The reason for delay in appealing Mr Stephens’ conviction does not point against granting leave to appeal.  The strength of the appeal is obvious, as the Crown does not oppose it.   It is  clearly in the interests of justice to grant

Mr Stephens’ leave to appeal his conviction.

Analysis

[7]      It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a guilty plea.9   The Court of Appeal in R v Le Page held that in these circumstances an appellant must show that a miscarriage of justice will result if his conviction is not overturned.10   In Wilson, one of the cases to come out of Operation Explorer, a majority of the Supreme Court held that a conviction following a guilty plea may be quashed on appeal (and no retrial ordered) “where there is an abuse of process of a type that would justify the granting of a stay in order to preserve the integrity of the justice system.”11

[8]      In   light   of   the   authorities   concerning   Operation   Explorer   and   the circumstances of the other defendants, Mr Stephens’ case is clearly one where a miscarriage of justice will result if his conviction is not overturned.   The serious police misconduct identified by the Supreme Court, which formed the basis of the charges against Mr Stephens, means that Mr Stephens’ conviction is unsafe.   Had

Mr Stephens not pleaded guilty, he would not have been convicted.

7      Isherwood v R [2010] NZCA 347 at [16].

8      Wilson (SC), above n 2.

9      R v Le Page [2005] 2 NZLR 845 (CA) at [16].

10 At [16].

11     Wilson (SC), above n 2, at [104].

Result

[9]      As all parties are in agreement, Mr Stephens’ convictions are quashed and no

order for a retrial is made.

Cull J

Solicitors:

S J Zindel, Zindels, Nelson

M A O’Donoghue, Crown Solicitor