The Queen v Brian Ivan Agnew
[2000] NZCA 211
•21 September 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 179/00 |
THE QUEEN
V
BRIAN IVAN AGNEW
| Hearing: | 20 September 2000 |
| Coram: | Keith J Robertson J Baragwanath J |
| Appearances: | Appellant in Person |
| J M Jelas for the Crown | |
Judgment: | 21 September 2000 |
| JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J |
This is an appeal against conviction. Mr Agnew pleaded guilty in the District Court at Christchurch to one charge of theft of a Gallagher B160 Energiser Fence Unit.
The charge related to the removal from Wrightson’s store at Darfield of the fence unit on 4 August 1999. The evidence available from the depositions was that on 3 August there were two such units on display in the store. At approximately 5 o’clock on that date the last customer in the shop bought one of them and took it away. On 4 August there were two staff in attendance during the day and six customers came into the premises together with another man who was a friend of a staff member. Mr Chapman and Ms Scott (the staff members) gave evidence as to what various customers had purchased from which it could be deduced that nobody had purchased the second unit or taken it away.
There was evidence that Mr Agnew was in the shop and that he was near the stand on which the remaining unit was situated. The fact is not in dispute. The Crown contended that he was seen appearing to be concealing something down his clothing in a somewhat stooped position as he left the shop. Immediately after this the remaining unit was seen to be missing.
Mr Agnew was interviewed by the police later on the day of the alleged offence. He denied any knowledge. The stolen unit has not been recovered.
There was a deposition hearing before Justices. Mr Agnew was committed for trial. On 30 March 2000 there was a series of pre-trial applications heard by Erber DCJ including three different applications under s 347 of the Crimes Act, an application for discovery and an application for adjournment of the trial which had been set for 10 April.
On the first 347 the Judge concluded that by a process of elimination it would be open to a jury properly directed to conclude that the unit must have been stolen by Mr Agnew.
The two other 347 applications related to matters which are not relevant to the appeal, nor are the issues agitated in respect of discovery and or adjournment. It is to be noted that a critical factor in the refusal to grant an adjournment was the fact that an important Crown witness, Mr Chapman, was about to leave New Zealand for 12 months. The Judge indicated that if there was consent to Mr Chapman’s evidence being read then that could alter the position. As Mr Agnew indicated that he wished to cross-examine Mr Chapman that was not then a possibility.
There was discussion on that occasion about the possibility of Mr Agnew engaging counsel. The Judge expressed the view that it was a simple case in which there would be no difficulty in competent counsel being up to speed within ten days and that many of the matters which Mr Agnew suggested required time would not be relevant in any event.
On the trial date of 10 April Mr Agnew did not appear. Apparently he had telephoned the Court the previous Friday seeking an adjournment on medical grounds. The Judge eventually saw a medical certificate from Dr Doreen Pae of the Christchurch South Health Centre dated 7 April 2000 which recited :
Re: Mr Brian Agnew
The above named patient is unfit for normal work or involvement in Court appearances for a period of two months from 7.4.00.
On dealing with the non appearance on 10 April, Noble DCJ recorded :
... I have had some recent experience of the accused in his capacity as the plaintiff in a defamation action wherein at the defendant’s request I struck out the accused’s statement of claim. The accused represented himself during the course of the hearing which occupied a full day, I think just before Christmas 1999. To my observation Mr Agnew demonstrates many of what I understand to be the symptoms of an obsessive compulsive personality and is of manipulative disposition.
Against that overall background where no reasons are given by the doctor for his unfitness to appear in Court I am left with more than a suspicion, and without any disrespect to her, that she may have been used by the accused in order to effectively obtain the adjournment which he had been refused.
In those circumstances I direct that following arrest the Crown should be represented and consideration given to the accused being remanded in custody pending hearing of the trial.
In the circumstances and in order to preserve the integrity of the trial, there will be an order prohibiting publication of the contents of this Minute.
Mr Agnew was as a result of the issue of a warrant for arrest before the District Court in Christchurch on 16 May. He appeared before Erber DCJ on a bail application. The Judge recited the background facts and his own involvement with the case on 30 March. He referred to what had taken place before Noble DCJ on 10 April. There was a tentative trial date of 6 June and a certain trial date of 3 July set.
Mr Agnew asserted that Mr Lascelles had agreed to appear for him but it transpired that there was some uncertainty about that and the Judge said :
Accordingly he is remanded in custody until Friday 19 May at 9.15 when if Mr Lascelles is in fact prepared to act for him no doubt Mr Lascelles will appear and renew an application for bail.
The Judge’s note of 16 May further records :
Mr Agnew has announced to me that he desires to plead guilty. Mr Lange is reluctant to accept an immediate plea of guilty because of later problems which may arise having regard to the track record of this matter. This matter can be revisited on Friday when Mr Agnew will appear at the pre-trial hearing. If Mr Agnew then wishes to plead guilty the court will permit him to do so. He must have time to reflect upon the matter.
The Judge also directed on that day that the Crown should make an inquiry of Dr Pae about the certificate which she had provided in April.
When the matter came before Erber DCJ again on 19 May there were again issues about reading of the evidence of Mr Chapman who by then had gone overseas. Mr Lascelles appeared on a temporary basis in respect of the hearing that day. Counsel urged the Court to grant bail on the basis of cash sureties being available. Erber DCJ noted that this was not possible in the jurisdiction of the District Court and concluded :
Be that as it may, I am by no means inclined to the view that Mr Agnew is to be granted bail because he is thoroughly unreliable. He has told me over the course of various applications, a number of untruths and they have been discovered to be untruths. I do not think that Mr Newbold or anybody else should risk their hard earned money by putting it up as surety for Mr Agnew because there is a reasonable prospect that they would lose it. My view is that he should be remanded in custody and he is remanded in custody until 29 May.
At that same hearing Mr Agnew in person, and through his then lawyer Mr Lascelles, consented to an application for the evidence of Mr Chapman (who by then had gone overseas) to be read.
On 26 May Mr Agnew appeared in Court before Judge Abbott who recorded :
Mr Agnew, you have just pleaded guilty on arraignment to a charge of theft. ...
It appears that on that day he had been advised that the trial could not proceed on 29 May but in any event Mr Agnew wanted an adjournment to enable two witnesses to appear at his trial. The Judge was prepared to grant that application and indicated that there would be an adjournment to 12 June but that it would again be in custody.
The record indicates that there had been a conferring between Mr Agnew and a lawyer who was in the Court awaiting a verdict on another matter. After Mr Agnew asked for and was given an indication as to likely sentence, he pleaded guilty. The Judge proceeded to impose sentence in accordance with the indication. There is no appeal in respect of the sentence.
Mr Agnew submitted in his written material that the conviction should be quashed because :
[a]There was a consistent and perceivable bias by the Court and that became more apparent as the trickle down effect took momentum;
[b]the remarks of Erber DCJ at the bail hearing demonstrated clear or at least apparent bias;
[c]that there had been a denial of his rights under s 25(a) and 27 of the New Zealand Bill of Rights Act 1990.
Mr Agnew also particularly referred to some previous comments made by Noble DCJ in respect of other litigation which is noted above. At the hearing of the appeal the position became rather more expansive and traversed a substantial number of issues.
Mr Agnew took us in some detail through the history including his views as to the strength of the Crown case, his apprehension that there were misstatements of fact or perception by some of the Judges who had considered issues and his background including his involvement in unrelated civil and criminal cases in the Christchurch district.
Mr Agnew is an articulate middle-aged man who was well able to express himself and to understand the problems associated with some of his contentions.
This is an appeal against conviction following a guilty plea. In R v Claridge 3 CRNZ 337, this Court stated :
The principles which apply in the case of an application for leave to appeal against conviction following a plea of guilty were discussed in R v Stretch [1982] 1 NZLR 225 and mentioned in R v Ripia (1984) 1 CRNZ 145. Only in exceptional cases can an appeal succeed following such a plea. If the conviction cannot be sufficiently linked with a wrong decision of the Court on a question of law the appellant cannot succeed unless he can show that on some ground there was a miscarriage of justice.
Mr Agnew eventually agreed that at its heart his position boiled down to the fact that on 26 May he first told a lawyer (he now says untruthfully) that he had stolen the item and insisted on pleading guilty because he did not want to be further remanded in custody. He says he was influenced by the fact that in light of the period he had already spent in prison when bail was refused, he would be released during the following week on the basis of the sentencing indication which was given to him.
We understand what Mr Agnew is now saying but we are not persuaded that he reaches the high standard necessary to go behind his plea of guilty. First, it is to be noted that on 16 May he indicated a desire to plead guilty. It is not open to him to suggest that his decision was a response to the sentencing indication because that arose only on 26 May. He had made his position clear ten days earlier.
Secondly, he had on 19 May contact (albeit relatively brief) with a very senior criminal counsel with whom he told us he had had a professional relationship for more than 30 years.
Thirdly, on the day in question he again conferred with a lawyer before he entered his plea.
In the total circumstances, and notwithstanding the long chronology of other events about which we heard a good deal, we are not satisfied that this is an exceptional case. The appeal is accordingly dismissed.
The sentence of periodic detention which was suspended by operation of law is now reactivated. Mr Agnew will report to the Periodic Detention Centre in Christchurch on Friday 29 September to resume this sentence and thereafter as directed by the Warden in terms of the initial order made in the District Court.
SOLICITORS
Crown Law Office, Wellington
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