T v Police CRI-2009-485-149 HC Wellington

[2010] NZHC 319

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-149

T

v

NEW ZEALAND POLICE

Hearing:         9 March 2010

Appearances: Mr T   appears in person

Mr Snape appears for New Zealand Police

Judgment:      15 March 2010         at 2.30 pm

JUDGMENT OF MALLON J

Introduction

[1]      Mr T   appeals against his conviction in the District Court on a charge of failing, without reasonable excuse, to file a candidate’s election expenses return as required by s 86 of the Electoral Finance Act 2007.  Mr T   pleaded guilty to this charge  but  says  that  he  did  so  because  he  wanted  to  prove  a  point.    Having apparently made his point he now appeals against his conviction, entered in accordance with his plea, because he says that he was not guilty of the charge and

that his right to adequate facilities to prepare his defence was infringed.

T V NEW ZEALAND POLICE HC WN CRI-2009-485-149  15 March 2010

Background

[2] Mr T stood in the 2008 general election as a candidate for the Aotearoa NZ Youth Party. Pursuant to s 86 of the Electoral Finance Act 2007 he was required to file a return of his election expenses by 10 March 2009. The Electoral Finance Act 2007 was repealed on 1 March 2009 by the Electoral Amendment Act 2009. However s 17 of the 2009 Act provided that obligations arising under the 2007 Act in respect of the 2008 general election continued. Mr T accepts that he did not file a return by 10 March 2009.

[3]      Mr T   advises that when he travelled to Wellington to attend the District Court he had intended to defend the charge.  It seems he envisaged being able to do so from the body of the courtroom at the tables provided for counsel.  Instead he was called into the dock, a police officer asked him to leave his briefcase outside the dock and he was asked how he pleaded.  At this point he decided to plead guilty.

[4]      There is a transcript of what then transpired.  It records as follows:

The Court:            Have you got a lawyer?

Mr T  :                  I represent myself, Your Honour.

The Court:              All right.  You know there’s a duty solicitor available that you can see?

Mr T  :                  I wish to plead guilty, Your Honour.

The Court:              All right, well, I’ll ask the registrar to read the charge to you and you can enter a plea.

Registrar:               Robert Frank T  , you are charged on 10 March 2009 in  Wellington  that  without  reasonable  excuse,  you failed to file a candidate’s election expenses return for the 2008 General Election with the Chief Electoral Office  within  70  working  days  of  polling  day  as required  by  section  86  of  the  Electoral  Finance  Act

2007.  Do you plead guilty or not guilty? Mr T  :  Guilty.

[5]      The transcript then records that the police officer needed to time to get his file and so the matter was adjourned at 10.48 am.  Court resumed again at 11.25 am.

At this point the police confirmed that he had his file and read out a summary of the events giving rise to the charge.  After that the following discussion took place:

The Court:            Mr  T  ,  I  see  the  maximum  penalty  is  a  fine  of

$40,000 for this offence.  What do you want to tell me about it?

MrT  :               Well,   Your   Honour,  the  Government   of   the   day abolished  the  Act  and  not  knowing  the  law  is  no defence in a Court of Law but I’m quite prepared to pay a small fine.

The Court:            You’re in a position to pay a fine? Mr T  :     Yes.

Unknown speaker:   Ma’am  I  can  tell  you  that  this  defendant  has  other outstanding fines that he’s paying $10 per week.

The Court:            What’s the total outstanding? Unknown speaker:   $1278.68.

The Court:              All right, thank you.  On this charge you are convicted and fined $400.  You are ordered to pay court costs of

$130.

Vacation of guilty plea

[6]      Exceptional circumstances are required to appeal against a conviction after the entry of a guilty plea.   It is necessary to show a miscarriage of justice if the conviction is not overturned.  A miscarriage of justice does not arise if the appellant “fully appreciates the merits of his position and makes an informed decision to plead

guilty”.1

[7]      In this case Mr T   says that he decided to plead guilty because he wanted to prove a point.  The point he wanted to make was that had the Judge read the file she would have seen that he was not guilty.  I understand that Mr T   considers that Judges should read the files that are before them and be able to determine whether there is a defence to a charge from so doing, irrespective of whether they are alerted to a possible defence by the parties or their counsel.

1 R v Merrilees [2009] NZCA 59 at [33], discussing R v Le Page [2005] 2 NZLR 845.

[8]      Mr T   has made an assumption that the file was not read by the Judge and he is incorrect that a reading of it would have disclosed a defence (for reasons I will shortly come to).   But regardless of that, Mr T   is entitled to plead guilty for whatever reason he wishes.  And having done so here deliberately so as to make a point, that does not give rise to a miscarriage of justice such that he should now be entitled to vacate his plea and bring this appeal against his conviction.

[9]      On this basis alone I would not allow the appeal.  Nevertheless I will go on to consider Mr T  ’s grounds of appeal.

Defence to the charge

[10]     Mr T   contends that he was not guilty because he was charged under the

2007 Act.  He says that this Act was repealed before the last date for filing his return. He recognises that the 2009 Act continued the obligations under the 2007 Act.  His point is that he should have been charged under the 2009 Act and not the 2007 Act.

[11]     I do not agree that he should have been charged under the 2009 Act rather than the 2007 Act.  Section 17 of the 2009 Act provides:

(1)    This section applies where, in respect of the 2008 general election, a person would, but for the repeal of the Electoral Finance Act 2007 by section 15 of this Act,—

(a) be  subject to  a  duty, liability, or  restriction under any of  the  following provisions of the Electoral Finance Act 2007:

(i)       sections 82 and 85 to 92 (which relate to candidates' election expenses): (ii)       sections 102 and 105 to 112 (which relate to parties' election expenses): (iii)  sections  123  and  126 to 133  (which  relate  to  third  parties'  election expenses); or

(b) be entitled to seek relief under sections 83, 84, 103, 104, 124, and 125 of the Electoral  Finance   Act   2007   (which  provide  for   the   commencement  of proceedings in respect of unpaid election expenses); or

(c) be entitled to inspect a copy of a return under sections 92, 112, and 133 of the Electoral Finance Act 2007 (which provide for the publication and inspection of returns of election expenses filed for candidates, parties, and third parties).

(2)      The  duty,  liability,  restriction,  or  entitlement  must  be  complied  with  or recognised, as the case may be, and for that purpose the Electoral Finance Act

2007 continues in force as if it had not been repealed. (3)    This section has effect despite section 15 of this Act.

[12]     Section 86 of the 2007 Act contained the requirement to file the return. Section 88 of the 2007 Act created the offence for failing to comply with this requirement.   As per s 17(1) of the 2009 Act, but for the repeal of the 2007 Act

Mr T   would be liable to the penalty in s 88 of the 2007 Act.  As per s 17(2) of the 2009 Act, the liability is recognised and for this purpose the 2007 Act “continues in force as if it had not been repealed”.

[13]     It can be seen that, although it is the 2009 Act that provides that the liability remains,  it  does  so  by  providing  that  the  2007  Act  continues  in  force  for  this purpose.  Thus the liability continues to arise under the 2007 Act.

Adequate facilities

[14]     Everyone  charged with  an  offence has  the  right  to  adequate facilities  to prepare  a  defence  (s  24(d)  New  Zealand  Bill  of  Rights  Act  1990).    Mr  T   contends that his right to adequate facilities was infringed for two reasons.   First, because he was required to conduct his defence from the dock rather than “the debating  chamber”  (ie  the  body of  the  courtroom).    Secondly,  because  he  was required to hand over his briefcase which contained his papers.

[15]     It can be seen from the transcript of what occurred in the District Court that on entering the dock he was asked if he had a lawyer and advised that he could see the duty solicitor.  His response was that he wished to plead guilty.  Mr T   did not ask the Judge if he could conduct his defence from the body of the court.  Nor did he say that he needed access to his briefcase.  Having entered his guilty plea the court was adjourned.  I presume that he had access to his briefcase after this and before the court reconvened.  But in any case, when the court was reconvened Mr T   did not ask if he could make his submissions from counsels’ tables nor advise that he needed his briefcase.   The Judge informed Mr T   of the maximum penalty and asked Mr T   what he wished to say.  Mr T  ’s response was that the 2007 Act had been repealed, that not knowing the law was not a defence, and that he was quite prepared to pay a fine.

[16]     Had Mr T   taken the opportunity given to him to see the duty solicitor, that would have occurred out of the dock and in private and with access to his briefcase.   There is no reason to think that had he asked the Judge if he could conduct his defence or make submissions on penalty out of the dock and from

counsels’ tables and with access to his briefcase that this request would have been declined.

[17]     Mr T   is an experienced litigant.  He advises me that he has won his last six cases.  He does not appear to be someone who is overwhelmed by the courtroom such  that  he  would  be  unable  to  raise  these  matters  with  the  Judge  if  he  was concerned that he was being denied a fair trial.  Indeed it appears that Mr T   made a tactical decision not to raise them because he says that he pleaded guilty to make a point (refer above).  Having decided to plead guilty and submitting that he could pay a fine no unfairness could have arisen (and nor has any unfairness been identified) because Mr T   was in the dock and did not have his briefcase.   In these circumstances it cannot be said that his right to adequate facilities was infringed such that he was denied a fair hearing.

Timing of Crown’s submissions

[18]     Mr T   noted that he had received the Crown’s submissions late.   The Crown advised that they were sent to Mr T   on time but because Mr T   does not have a facsimile or email address it is necessary to post them to him.  Mr T   does not suggest that this gives rise to any appeal ground.

Result

[19]     The appeal is dismissed.

Solicitors:

Mallon J

M Snape, Luke Cunningham & Clere, Wellington, ph: 04 472 1050, fax: [phone], email: [email protected]

Copy to:
Mr T  , Wellington