The Queen v Forrest

[2007] NZCA 77

IN THE COURT OF APPEAL OF NEW ZEALAND

CA460/06
[2007] NZCA 77

THE QUEEN

v

BRENDON DOUGLAS FORREST

Hearing:15 March 2007

Court:Robertson, Baragwanath and Venning JJ

Counsel:Appellant in person

E M Thomas for Crown

Judgment:19 March 2007 at 3.30 pm

JUDGMENT OF THE COURT

THE APPEALS ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       When this matter was called, and Mr Forrest (who represented himself) was brought into Court to be advised of the time of day when he would be heard, he indicated that he wished to withdraw the appeal.

[2]       We took time to discuss this with him.  Mr Thomas (for the Crown) indicated that there was no objection and proffered the view that the appeal was without merit in any event.

[3]       We asked Mr Forrest if he wanted the matter stood down until the afternoon so that he could consider his position further, but he was adamant that he did not wish to do so.  He understood that if he abandoned the appeal and it was accordingly dismissed, he could not bring the appeal again.

[4]       Notwithstanding he held firm in his request and the appeal was accordingly dismissed.  For the sake of completeness, however, we refer briefly to the merits of the appeal.

The background

[5]       Mr Forrest appealed against conviction in respect of various charges upon which he was sentenced in February 2006 after he had entered pleas of guilty.  He filed an appeal against conviction on 7 December 2006.

[6]       On 23 February 2007, he filed an application for bail pending appeal.

[7]       As a result, the Presiding Judge directed that the substantive appeal be bought forward for urgent hearing.

[8]       There were initially threatening to kill offences which arose from actions on 24 February 2005.  Mr Forrest was spoken to at the Nelson Police Station on 11 March 2005.  He made a comprehensive and unequivocal admission of the essential elements of the charges.

[9]       Mr J C S Sandston began acting for Mr Forrest on that date and also acted when additional charges were laid.

[10]     Mr Forrest elected trial by jury.  When it came to a depositions hearing he agreed that the evidence of six witnesses could be tendered in the form of a written statement under s 173A of the Summary Proceedings Act 1957.

[11]     Mr Sandston obtained written instructions from Mr Forrest as to this course of action.  The depositions hearing proceeded accordingly and he was committed for trial on 9 August 2005. 

[12]     The police also advised that at his jury trial they would lead evidence from Ian Graham Harrison, a fingerprint expert.  It was never their intention to call this evidence at depositions.  It was not necessary to do so as a prima facie case existed in the evidence of the other six witnesses: Auckland City Council v Jenkins [1981] 2 NZLR 363 (HC).

[13]     Following committal, Mr Sandston spoke to his client about the additional evidence that would be led at trial.  He provided Mr Forrest with a brief of that additional evidence.

[14]     On 7 October 2005, in writing, Mr Forrest indicated a desire of his own free will to plead guilty to all the charges set out in the indictment having first advised Mr Sandston in writing of that request.  He entered pleas accordingly and in due course was sentenced.

The appeal

[15]     Mr Forrest’s case on appeal seemed to be that he had only consented to the evidence of six witnesses and that therefore something had gone wrong with the committal process when he found out there could be a seventh witness called at trial.

[16]     Mr Forrest’s appeal was misconceived.  We fully understand why he pleaded guilty on the basis of the evidence of the six witnesses from whom the deposition evidence was available.  Mr Forrest mistakenly thought that there were seven deposition witnesses and that therefore he had been misled as in fact there were only six and the signalling of another.

[17]     There was no malpractice, mistake or error.  Mr Forrest was properly convicted on the basis of his pleas.  The evidence was overwhelming.  If he had gone to trial he would have been convicted whether the evidence came from six or seven witnesses.

[18]     According to the record, Mr Forrest did not consent to evidence from Mr Harrison.  He was not required to.  There was a proper committal on the basis of the evidence of the six witnesses that he agreed to being received by way of hand-up depositions.  Mr Forrest might have believed that there was a hand-up deposition from Mr Harrison as well, although we find Mr Sandston’s evidence on this point quite persuasive.  However that is immaterial as, with or without Mr Harrison’s evidence, the case was overwhelming.  The prima facie case was established (as it could be) on part of the evidence: R v Haig [1996] 1 NZLR 184 (HC).

[19]     The video interview of Mr Forrest’s discussion with Constable Sally McBride on 11 March 2005 includes the most clear and unequivocal admissions that he was the writer of the relevant letter.  The fingerprint evidence was not needed.

[20]     In written submissions Mr Forrest referred to his mental condition.  There is nothing in the factual scenario which suggests that anything about the process or its operation could, in the circumstances, have been affected by ill health and the contemporaneous video interview suggests he knew precisely what he was doing.

[21]     In October 2005, Mr Forrest told his lawyer, Mr Sandston, that he was going to plead guilty.  On the basis of the available evidence (with or without the evidence of Mr Harrison) that was a sensible decision.  Mr Forrest obtained the benefit of that decision because he was sentenced on the basis of a plea of guilty.

[22]     There was no neglect of duty by trial counsel and nothing improper by the police or the Crown using information to Mr Forrest’s disadvantage or of anyone exploiting the ill-health of Mr Forrest.

[23]     Pleas were sensibly, responsibly and properly entered.  There was no basis to go behind Mr Forrest’s action at the time he chose to take it. The appeal had no merit and would have been dismissed even without his clearly articulated advice of abandonment.

Solicitors:
Crown Law Office, Wellington