Surman v Police
[2023] NZHC 933
•26 April 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2022-463-67
[2023] NZHC 933
BETWEEN RUBY SURMAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 April 2023 Appearances:
T Conder and S Hartley for Appellant R Jenson for Respondent
Judgment:
26 April 2023
(ORAL) JUDGMENT OF LANG J
[on appeal against conviction]
Solicitors:
Crown Solicitor, Tauranga
SURMAN v NEW ZEALAND POLICE [2023] NZHC 933 [26 April 2023]
[1] Ms Surman pleaded guilty in the District Court to several charges. These included assaulting a constable in the execution of her duty, threatening to injure the same constable with intent to frighten her and being in possession of, and cultivating, cannabis. The most serious charge was a charge of being in unlawful possession of a
.410 calibre shotgun.
[2] On 6 April 2021 Judge T R Ingram sentenced Ms Surman to seven months home detention on all charges.1
[3] Ms Surman has served her sentence but now seeks to appeal against conviction on the charge of being in unlawful possession of the shotgun. She says a miscarriage of justice has occurred in relation to that charge because she never committed the offence. She says she only entered a guilty plea because of threats made to her by her then partner. She says this robbed her of the ability to reach a free and informed decision to enter a guilty plea to the charge.
The charges
[4] The charges were laid after the police visited Ms Surman’s address on an unrelated matter on the evening of 3 September 2020. They searched the address after they smelled cannabis. They say they found a .410 calibre shotgun in Ms Surman’s bedroom along with a quantity of cannabis head material and methamphetamine. In addition, they found a budding cannabis plant at the address.
[5] Ms Surman became extremely uncooperative after the police found these items. It is alleged that she deliberately coughed in the direction of a female constable and told the constable “Now you have COVID”. In addition, she said to the same constable “I should have fucking shot you in the head bitch with that firearm. You watch out when I get out. I know your name”.
[6] Ms Surman was arrested and initially charged with aggravated assault on a police officer, threatening to kill or do grievous bodily harm to a police officer,
1 New Zealand Police v Surman [2021] NZDC 6314.
cultivating cannabis, being in possession of methamphetamine, cultivating and being in possession of cannabis and being in unlawful possession of the firearm.
Relevant principles
[7] Ms Surman brings her appeal under s 229 of the Criminal Procedure Act 2011 (the Act). The appeal must be allowed if the Court concludes a miscarriage of justice has occurred for any reason, including if the trial was unfair.2 A proceeding in which the appellant has pleaded guilty constitutes a trial for the purposes of the section.3
[8] It is now well established that an appellant who challenges a conviction following the entry of a guilty plea must demonstrate that exceptional circumstances exist so that a miscarriage of justice will result if the conviction is not overturned.4 In R v Le Page, the Court of Appeal identified three situations in which an appeal against conviction following a guilty plea may be allowed.5 The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. This type of situation may arise, for example, where the plea is shown to be vitiated by genuine misunderstanding or mistake. An appeal under this ground may be difficult to establish where the appellant was represented by counsel at the time the plea was entered.
[9] The second category is where, on the admitted facts, the appellant could not in law have been convicted of the offence charged. This may occur, for example, where a charge was laid out of time or where, as a matter of law, the facts are insufficient to establish an ingredient of the offence. The third category is where it can be shown that the plea was induced by a ruling that embodied a wrong decision on a question of law. One example of this is where a trial judge wrongly concludes the evidence is insufficient to justify a defence being left to the jury, leaving the defendant with no option but to plead guilty.
2 Criminal Procedure Act 2011, s 232.
3 Section 232(5).
4 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
5 R v Le Page [2005] 2 NZLR 845 (CA) at [17]-[19].
[10] In Wilson v R, the Supreme Court confirmed in effect that the categories in which it may be permissible to overturn a conviction following a guilty plea are not closed.6 In that case the appellant had pleaded guilty to charges laid after the police terminated a lengthy police operation. He did so notwithstanding the fact that he had filed an application for stay of the charges and this had not yet been heard. Other defendants who faced more serious charges arising out of the same operation subsequently obtained a stay of the charges against them on the basis of gross misconduct by the police during their investigation. The Supreme Court held that in those circumstances it would be unfair and a miscarriage of justice for the appellant’s convictions to remain in place when the charges against the remaining defendants had been stayed.7
[11] I agree that the categories in which conviction may be overturned following a guilty plea are not closed. Nevertheless, the fact that the principles in Le Page have endured for such a lengthy period suggests that an appellant seeking to overturn convictions following a guilty plea must still establish that the circumstances are exceptional.
The appeal
[12]In an affidavit filed in support of the appeal, Ms Surman deposes:
1.I am appealing my conviction for unlawfully possessing a firearm. I pleaded guilty to that charge.
2.I did that even though the gun belonged to my then-partner, [J], and I didn’t want it there. He brought it into the house that we were sharing, where the gun was found by the Police on 3 September 2022. The Police were there because I had called them to come because a mobster had been trying to break in. [J] got angry – as angry as I’d ever seen him – that I’d called the Police. He told me that I needed to take the blame for the gun, “or else”. So I did that. Because I was frightened of what he’d do to me if I told the truth, I pleaded guilty and did my time for the gun. I truly feared for my life. I was stuck between a rock and a hard place. I was scared of what he would do if I didn’t do as he said.
3.I started talking to lawyers about appealing the conviction at the start of this year, pretty much straight away after finishing my time on home detention and shortly after I managed to end my relationship
6 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].
7 At [108].
with [J] in late 2021. This was as soon as it was safe for me to tell the truth. The conviction is heavily affecting me emotionally and mentally. I can’t get a job or go study. I made a huge mistake in pleading guilty. I was put in a situation in which I had no control over. I want to have a chance to get rid of the guilty plea and conviction and be able to tell the truth to defend myself if the Police want to do a retrial.
…
[13] An affidavit filed by a registered social worker in support of the appeal provides a great deal of information about the relationship between Ms Surman and her partner at the time of, and following, the offending. This reveals that Ms Surman was living in an abusive relationship in which she was regularly subject not only to psychological control by her partner but also physical violence at his hands. She lived continually in fear of physical and psychological harm from him.
[14]The report goes on to state:
106. Legal Ms Surman told me she did not feel her lawyer who represented her for the firearm charge “supported me whatsoever.” She told me she let the lawyer know the situation she was in, which was that [J] was threatening her that she had to say the firearm belonged to her or he was going to harm her and her family. She said the advice she received from her lawyer was that all she could do was plead guilty. She told me her lawyer said, “If you plead not guilty you will get a worse sentence.” When Ms Surman pleaded guilty to the charge of possession of a firearm Ms Surman believed she and her family were going to become seriously hurt by [J]. She said the situation left her with a feeling of “no control”. Ms Surman said she felt very let down by the lawyer and the legal advice given.
107 Ms Surman said she tried writing a letter to the Judge of her case explaining her situation and the danger she was in. She said “I don’t even know if he read it”. Ms Handley (Probation Officer) also said she was aware of the letter but noted it did not appear to have been acknowledged.
[15]The report concludes as follows:
150. Ms Surman is the victim of prolonged, dangerous, and lingering domestic violence which has been aggravated by institutional ineffectiveness and structural inequalities. At the time of the incident, she was very vulnerable, her isolation was complete, and she was living in an unsafe environment. …
151. If her account is correct, when she sought help from the Police she was degraded and humiliated. She was unable to honestly represent the ownership of the gun to the Police due to the presence of the perpetrator of the Domestic Violence. She was charged although Police were aware that her
confession was false, and she pleaded guilty due to the advice and cavalier attitude of her first lawyer.
152. Currently, she is showing signs of continuing to be adversely affected by the trauma of the relationship and this along with psychological damage as a result of her conviction for a crime she did not commit is significantly impacting on her life and future. She will need active multi-agency support and wrap-around services to help her to recover from the damage caused by her by this violence.
The events that led to the guilty plea
[16] Despite the comments Ms Surman made to the social worker she now acknowledges she received full and correct legal advice from her first counsel, Ms Catherine Harold. However, she nevertheless claims she was not free to make a decision to enter a guilty plea because of the pressure of the threats of physical violence that her partner was exerting upon her.
[17] This proposition needs to be viewed in light of the events that followed Ms Surman’s arrest. These are outlined in considerable detail by Ms Harold in an affidavit filed by the respondent in opposition to the appeal.
[18] At the time of her assignment as Ms Surman’s counsel, Ms Harold was the Public Defender at the Public Defence Service’s office in Tauranga. Prior to that she had worked for the Crown Solicitor’s office in Tauranga and had several years experience acting for both the Crown and defence.
[19] The Legal Services Agency assigned Ms Harold to act as Ms Surman’s counsel on 11 September 2020. She immediately wrote to Ms Surman advising that the Public Defender would be acting on her behalf and seeking, at that stage unsuccessfully, to make contact with Ms Surman. Thereafter, however, Ms Harold and/or one of her associates, met with Ms Surman on no less than eight occasions to discuss the charges against her. Counsel for Ms Surman do not challenge Ms Harold’s recollection of her meetings with Ms Surman. This is not surprising given the fact that contemporaneous records of each meeting were kept in the form of file notes made either by Ms Harold or one of the solicitors in her office.
[20] Ms Harold says that from the outset Ms Surman accepted that the shotgun found at her address belonged to her. This reflected what Ms Surman had told the police when they found the shotgun at the address. She told the police that the shotgun was hers and did not belong to her partner.
[21] Ms Harold also says that the charge relating to the shotgun was not a major issue for Ms Surman during the early stages of their relationship. At that stage Ms Surman was more concerned about the charge relating to the methamphetamine the police had found at her address. She was adamant that this belonged to her sister, who had stayed there recently. Ms Harold also says that Ms Surman was concerned about the charges relating to her abusive conduct towards the female police officer. These three charges formed the greatest causes for concern for Ms Surman from the outset.
[22] Ms Harold says that on her first meeting with Ms Surman she went through the summary of facts with her. This included the following sentence: “A .410 calibre shotgun was located in the defendant’s bedroom”. Ms Harold noted beside this sentence “That’s mine. Safety. Sister affiliated with MM.” Ms Harold explains that Ms Surman told her that her sister was affiliated with the Mongrel Mob and had been threatening her recently. This was why she had obtained the shotgun that the police found at her address.
[23] Ms Harold met with Ms Surman again when the charges were next called in the Tauranga District Court on 24 September 2020. By that stage Ms Surman had provided a typewritten account about what had occurred on the day in question. This dealt with all the charges other than that relating to the firearm. When Ms Harold met with Ms Surman on 24 September 2020 she suggested that the charges be adjourned without plea to enable Ms Harold to review the material to be disclosed by the police before entering pleas. Ms Surman agreed with this proposal. The Registrar therefore adjourned the charges to 23 October 2020.
[24] Ms Harold was unavailable on that date and a senior lawyer from her office, Mr William McNichol, met with Ms Surman on her behalf at the courthouse together with Mr Pukepuke. Notes taken by Mr Pukepuke show that Ms Surman’s instructions
at that stage were to enter not guilty pleas to all charges and elect trial by jury. This was duly done before the Community Magistrate, and the proceeding was adjourned to a case review hearing on 7 December 2020.
[25] On 1 December 2020 Ms Harold fulfilled her obligation under the Act to engage in case management discussions with the prosecutor. She took to the meeting a summary of charges setting out Ms Surman’s position in relation to each. By the conclusion of this meeting the prosecutor had agreed to amend the charge of aggravated assault to one of assaulting a police officer in the execution of her duty under the Summary Offences Act 1981 (SOA). The prosecutor also agreed to reduce the charge of threatening to kill or do grievous bodily harm to a police officer to one of using threatening language under the SOA. In addition, the prosecutor (reluctantly) agreed to withdraw the charge of being in possession of methamphetamine on the basis of Ms Surman’s insistence that the drug found at her address belonged to her sister.
[26] There appears to have been no discussion during this meeting of the charge relating to the firearm. This is not surprising because the schedule that Ms Harold took to the meeting contained the following notation:
Surman admits that it was hers but maintains that she had it for protection as her sister is affiliated with the Mongrel Mob. Her sister had told the Mongrel Mob that Surman owed her sister. She feared for her life.
[27] Ms Harold met with Ms Surman to discuss the proposed resolution on 4 December 2020. At this meeting Ms Surman mentioned for the first time that the shotgun was from her partner. She also said that she and her partner were no longer together. She reiterated that her sister was associated with the Mongrel Mob and had sent people around because Ms Surman owed her. Ms Harold recorded in her notes:
Firearm from partner. Not together anymore. He is not associated with any gangs.
[28] Ms Harold says that Ms Surman was keen to take the deal offered by the police, including the entry of a guilty plea to the charge of being in unlawful possession of a firearm. Ms Harold said she spoke to Ms Surman about options available to her in relation to defending the charges. She recollects discussing credibility issues about the firearm given what Ms Surman had told the police on the day of her arrest. At the
end of this discussion Ms Surman remained keen to resolve matters on the basis agreed to by the police. Ms Harold says she advised Ms Surman that the likely outcome was an electronically monitored sentence, most probably home detention.
[29] Ms Harold met with Ms Surman at the courthouse on 7 December 2020 before the charges were called. On this occasion she went through the amended summary of facts and Ms Surman signed this as being true and correct. Ms Harold also obtained written instructions from Ms Surman that she wished to plead guilty to the charges on the basis of the summary of facts. Ms Surman then entered guilty pleas to the charges as amended. Sentencing was scheduled for 12 February 2021. A pre-sentence report was ordered together with an electronic monitoring appendix.
[30] One of Ms Harold’s colleagues met Ms Surman by chance at the courthouse on 14 January 2021. On this occasion she expressed concerns about the charge relating to the firearm. Ms Harold’s office contacted Ms Surman to discuss her concerns and this resulted in a meeting that was held on 12 February 2021. By that stage the pre-sentence report had been received. This contained the following passage:
Ms Surman expressed deep regret in claiming the firearm found in the search was hers. She explained that due to increasing concerns about her sister’s associates visiting the home her partner had obtained the firearm for protection. Ms Surman states she only found out about the firearm a few days prior to her offending and felt uncomfortable with it in the house as [her partner] has a criminal history Ms Surman knew he was likely to be taken into custody if he was to reoffend. Therefore she “took the [rap] for him”. She stated that if she had known the serious consequences of the offence she would never have said that it was hers.
[31] Ms Harold discussed this passage at her meeting with Ms Surman on 12 February 2021. She says she explained to Ms Surman the concept of being in joint possession of an item. Ms Harold is sure, however, that throughout these discussions Ms Surman maintained she was in possession of the firearm even though her partner had brought the firearm to the address. During this meeting Ms Harold also asked Ms Surman whether she wished to vacate her guilty plea. She explained that if Ms Surman wished to do this she would need to consult another lawyer and matters would be delayed. Ms Harold says Ms Surman did not wish to investigate this option and wanted matters “sorted”.
[32] The charges were called later the same day before His Honour Judge T R Ingram. The Judge expressed concerns about the passage in the pre-sentence report set out above. He stood the charges down so that enquiries could be made as to whether Ms Surman’s partner had been charged in relation to the firearm. During the discussions in Court the Judge also indicated that the statement Ms Surman had made to the writer of the pre-sentence report could not be reconciled with what she had told the police on her arrest. His view was that Ms Surman was either lying to him or to the police. The Judge also indicated that he did not wish to sentence Ms Surman to imprisonment but was of the view that he would “require more” to reduce the sentence to a level at which a sentence of home detention was an option.
[33] At that stage the charges were stood down again to enable Ms Harold to speak to Ms Surman. Ms Surman again confirmed that the firearm belonged to both her and her partner. She acknowledged she should have told the police the full story but did not wish to give a further statement to the police confirming that her partner had brought the firearm to the house. This issue appears to have been arisen because the Judge suggested it may be in Ms Surman’s interests to provide the police with a statement outlining her partner’s involvement in the procurement of the firearm. The Judge evidently considered this may affect his view regarding the appropriate starting point for the offending. The Judge had indicated that he would probably adopt a starting point of 18 months imprisonment on the firearms charge if he was sentencing Ms Surman on the basis of the information then before him.
[34] Whilst Ms Harold was talking to Ms Surman in an interview room the prosecutor asked to speak with her. The prosecutor told Ms Harold that if Ms Surman was prepared to give a statement to the police implicating her partner the Crown would amend the summary to reflect the fact that she was in joint possession of the firearm with him. Sentencing could then proceed on that day.
[35] Ms Harold was concerned that Ms Surman was upset and needed time to consider her options. She therefore advised Ms Surman to seek a further adjournment for this purpose. The Judge then adjourned sentencing until 6 April 2021.
[36] On 27 March 2021 Ms Harold and one of her colleagues met with Ms Surman again. On this occasion Ms Surman told Ms Harold that she wanted the Judge to know that she was living in fear and that a person associated with the Mongrel Mob had been at her address earlier on the evening of the offending. However, Ms Surman said she did not wish to give a further statement to the police because of concerns for her safety. She said she had not lied either to the police or to the writer of the pre-sentence report. She said her partner had brought the firearm to the house, but she accepted that she was at least in joint possession of it. She made it clear that she wished sentencing to proceed on 6 April 2021.
[37] On 30 March 2021 Ms Harold discussed matters again with Ms Surman. Ms Surman reiterated that she did not wish to make a further statement to the police due to safety concerns. Ms Harold took this to refer to a concern for her safety because of the issues involving her sister and the Mongrel Mob.
[38] Ms Harold met Ms Surman again on 6 April 2021 at the courthouse. On this occasion Ms Surman had provided a letter of remorse that she wished Ms Harold to tender to the Judge. This contained the following statement:
I stated at the time to the police that the firearm was mine as I was afraid that my partner may hurt me.
[39] Ms Harold was concerned that this may raise concerns for the Judge given the earlier discussion regarding the statements Ms Surman had made to the writer of the pre-sentence report. Ms Harold says that during this meeting she again discussed with Ms Surman the concept of joint possession and explained that she could apply to vacate her guilty plea. She says Ms Surman expressed concerns about doing this given her previous statement to the police about her ownership of the firearm. She was also adamant that she wished sentencing to proceed that day. She therefore re-wrote her letter of remorse omitting the sentence about the firearm. It was against that background that Judge Ingram imposed the sentence of seven months home detention.
Decision
[40] The starting point must be whether the events I have described and in particular the prospect of physical violence at the hands of her former partner were sufficient to
rob Ms Surman of her free will so as to effectively vitiate her decision to enter the guilty plea. That issue must be viewed against the fact that Ms Surman dealt with Ms Harold and her associates on numerous occasions over a period of approximately eight months. Throughout this period she was insistent that she was in possession of the shotgun, even though she explained at a relatively late stage that the firearm had been brought to the address by her partner. Ms Harold believed this was an elaboration of her earlier statement to the police rather than a new version of events. Ms Harold said that Ms Surman never attempted to place responsibility for possession of the firearm on her partner alone.
[41] In addition, Ms Surman takes no issue with the advice given by Ms Harold and her associates throughout the period during which they represented her. This included an explanation regarding the elements of the charge of being in unlawful possession of the firearm, and also the option of applying to vacate the guilty plea. So far as the latter is concerned, I accept that this may have related more to the procedural issues that would follow rather than an explanation of what Ms Surman would need to establish if the application was to succeed. Nevertheless, I am satisfied that Ms Surman had ample opportunity to consider her position and to apply to vacate her guilty plea if she wished to do so.
[42] I accept that Ms Surman may have bene fearful of her partner and that the abusive nature of their relationship may well have had ramifications for a considerable period after it ended. However, in light of the advice given to her repeatedly by Ms Harold and her associates, I do not consider Ms Surman was so compromised in the exercise of her free will that her decision to enter a guilty plea was effectively vitiated.
[43] During her evidence Ms Surman said that she believed Ms Harold had told her that she would need to give a further statement to the police if she was to apply successfully to vacate her guilty plea. Ms Harold said this was not correct, and that the issue about the need to provide a further statement to the police arose during discussions about the concept of joint possession and the fact that Ms Surman’s partner had brought the firearm to the address. I have no doubt Ms Harold is correct about this issue and that Ms Surman would have understood the correct position at the time.
It is only later that she has associated the requirement to give a further statement to the police with the application to vacate the guilty plea.
[44] I am therefore satisfied Ms Surman has not satisfied the threshold necessary to justify the Court setting aside the conviction.
[45] Furthermore, I have considerable misgivings about the defence Ms Surman would run if the charge was remitted to the District Court. The summary of facts makes it clear that the police found the firearm in the bedroom occupied by Ms Surman and her then partner. Notebook entries made by a police officer at the time confirm this was the case. However, Ms Surman said in evidence today that the police found the firearm in a shed at the rear of the address. This coincides to some extent with a statement Ms Surman made to the social worker.
[46] The evidence Ms Surman would give at any re-trial of the charge in the District Court would therefore be to the effect that she did not know of the existence of the firearm until the evening when the police arrived at her address. Shortly before their arrival her partner told her he had a gun. This occurred when they considered they were in physical danger from a person who had arrived at their address. Ms Surman says she then told her partner to go and get the gun. This evidence would obviously enable Ms Surman to argue that she had no knowledge of the firearm up until shortly before the police arrived, let alone any intention to exercise control over it. Both of those factors are elements of the charge of being in unlawful possession of a firearm.
[47] I consider Ms Surman has now constructed a sequence of events to enable her to raise doubt as to lack of knowledge and/or intention on her part at the time of the alleged offending. However, this version of events is completely at odds with the evidence that the firearm was found in her bedroom. It is also at variance with the statement Ms Surman gave to the writer of the pre-sentence report that her partner had brought the firearm to the address a few days before the police arrived and that she felt uncomfortable with it being in the house.
[48] I therefore do not consider a miscarriage of justice will occur if the conviction is not set aside.
Result
[49]The appeal against conviction is dismissed.
Lang J