Sullivan-Paul v Police

[2017] NZHC 760

IN THE HIGH COURT OF NEW ZEALAND QUEENSTOWN REGISTRY

CRI-2017-425-10 [2017] NZHC 760

SINEAD SULLIVAN-PAUL

v

NEW ZEALAND POLICE

Hearing:

24 April 2017

(On the papers)

Counsel:

L Denton for Appellant
R Donnelly for Respondent

Judgment:

24 April 2017

JUDGMENT OF MANDER J

[1]      On 11 July 2016 the appellant, Ms Sullivan-Paul, pleaded guilty to a charge of shoplifting after stealing $117.85 worth of goods from a Queenstown pharmacy. She was fined $100, and ordered to pay $130 in costs and reparation of $117.85.

[2]      Ms Sullivan-Paul is a Canadian national and is in New Zealand on a working visa. Prior to appearing in the District Court, she was advised by the police officer in charge that she would be recommended for diversion.   Ms Sullivan-Paul assumed nothing further was required.  She did not obtain legal representation and did not see the duty lawyer.  She did not know she needed to consult with the prosecutor about diversion on the day of her court appearance and failed to do so.  As a result, the Court being none the wiser, Ms Sullivan-Paul was convicted and fined.

[3]      Ms  Sullivan-Paul  has  now  appealed.     She  submits  diversion  was  the appropriate outcome and one she had been led to believe she was eligible.   As a

SULLIVAN-PAUL v NEW ZEALAND POLICE [2017] NZHC 760 [24 April 2017]

result of her own ignorance of the process she has been denied the opportunity to avoid a conviction.

Discussion

[4]      The Crown do not oppose the appeal.   It is agreed the appeal should be allowed and the matter remitted back to the District Court to allow Ms Sullivan-Paul the opportunity to complete diversion.

[5]      An appeal can be allowed if a “miscarriage of justice” has occurred for “any reason”.1   The appellant’s lack of understanding of the process and her lack of legal representation meant she was convicted despite her eligibility for diversion.   That was accepted by the Police at the time and later confirmed by the Crown on this appeal. That constitutes a miscarriage of justice.

Disposition

[6]      The appeal is allowed, the conviction is set aside, and the matter remitted to the District Court to allow the diversion process to proceed.

Solicitors:

Macalister Todd Phillips, Queenstown

Preston Russell Law, Invercargill

1      Criminal Procedure Act 2011, s 232.