The Queen v Jones

[2006] NZCA 176

IN THE COURT OF APPEAL OF NEW ZEALAND

CA27/06

THE QUEEN

v

MICHAEL JOHN JONES

Hearing:17 July 2006

Court:William Young  P, Williams and Venning JJ

Appearances:  Appellant in Person

M T Davies for Crown

Judgment:25 July 2006 

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]       On 23 June 2005 the appellant pleaded guilty on arraignment to counts of assault with a weapon and threatening to kill.  He was subsequently sentenced to 150 hours community service and 12 months supervision and ordered to pay reparation of $650.

[2]       He now appeals against his conviction, in effect seeking to set aside his pleas of guilty.

The alleged incident

[3]       The Crown case was that on 27 June 2003 the appellant attacked the complainant and that, in the course of this attack, he struck him with a piece of wood, kicked him repeatedly and threatened to kill him.

[4]       When interviewed by the police in relation to the incident on 27 June 2003, the appellant appeared to deny that such an incident occurred.

QWhat can you tell be about the assault on [the complainant].

AI cannot tell you anything about the assault.

QWhy is that?

AI did not do it.  [The complainant] has fabricated this.  He has done this in the past and he and his brother have assaulted me.  We have had wheel nuts taken off and had the wheels fall off.  He has stolen numerous times from the factory even though I can prove that I bought them from him. The list would go on too long.  I thought the Police would have the nous to see straight through him.

…

[5]       By way of explanation for what the appellant told the police, we should note that there is a history of ill will between the appellant and his partner on the one hand and the complainant and his brother on the other.  As a result of an incident in 2001 the complainant faced serious charges associated with an alleged assault on the appellant.  In the end, however, the complainant was not convicted of any offence but was rather bound over to keep the peace, a point to which we will revert later.

Relevant procedural history

[6]       The appellant was committed for trial on 11 May 2004.

[7]       The case was originally set down for trial (on a stand-by basis) in the week of 16 August 2004.  The case was unable to proceed that week.  The reason is that on 8 August 2004, the appellant, by his then counsel, had given a late alibi notice naming eight witnesses and an adjournment was required to enable those witnesses to be interviewed by the police.

[8]       The case was set down for trial in the week of 1 November 2004 but again the trial was unable to proceed.  There had been a disclosure request made by the appellant’s then counsel on 16 October 2004 which focused primarily on the police interviews of the alibi witnesses.  Disclosure was completed by 28 October.  The outstanding issue which led to the adjournment was that the appellant’s then counsel wished to obtain access to Family Court records which were relevant (by way of background) to the relationship between the appellant and the complainant.

[9]       On 11 November 2004, the case was stood over to 25 May 2005 for trial.

[10]     On 21 April 2005, Judge Hubble gave a sentence indication which suggested that a non-custodial sentence would be imposed on conviction.

[11]     On 11 May 2004, the appellant was arraigned and pleaded not guilty.  He did, however, say, when pleading, that “there was no weapon”, thus, apparently conceding that there had been some incident between him and the complainant.  The significance of the remark (and in particular the incongruity between it and his alibi defence) struck the prosecutor who asked that it be noted.

[12]     The trial scheduled for 17 May 2005 was vacated as the appellant’s counsel sought leave to withdraw.  The case was, instead, set down for trial, on a stand-by basis, on 23 June 2005. 

[13]     This resulted in the appellant writing to the Legal Services Agency on 23 May 2005.  In this letter the appellant, inter alia, said he would:

like to take the plea option offered by Judge Hubble.

[14]     Mr Peter Brock became involved in the case in late May or early June 2005.

[15]     A call over was scheduled for the case on 23 June 2005 on which day the appellant pleaded guilty to the charges against him.  He also signed the summary of facts.  He was remanded for sentence on 11 August 2005.

[16]     Despite a pre-sentence report having been directed, no report was available on the morning of 11 August.  So when the appellant’s case was called on the morning of 11 August, the Judge stood it down until the afternoon (so that a short form pre‑sentence report could be obtained).

[17] In the course of that day, the appellant and Mr Brock discussed the victim impact report and later, when it became available, the pre-sentence report. The appellant was unhappy about aspects of both documents. The related discussions extended to the possibility of the appellant seeking to vacate his plea of guilty. In the end, however, the appellant elected to proceed with the sentencing which resulted in the orders being made which are referred to at [1] above.

Grounds of appeal

[18]     The appellant’s primary complaint involves the difference in the official responses (involving both the police and the court system) to the 2001 and 2003 incidents between the appellant and the complainant.  The appellant maintained that if he and the complainant are to receive equal treatment under the law, this must involve the setting aside of his convictions. 

[19]     He also maintained that he was not afforded justice during the District Court proceedings and in effect ground down into pleading guilty.

[20]     We note that other complaints have, from time to time, been made by the appellant but these are the only complaints which he articulated in support of his appeal when the case was heard and they are the ones which we will focus on. 

The difference in official responses (involving both the police and the court system) to the 2001 and 2003 incidents between the appellant and the complainant

[21]     Because it is clear that this aspect of the case has given rise to a major sense of grievance on the part of the appellant, we asked Mr Davies for the Crown to make available to us information in relation to the 2001 incident between the complainant and the appellant. 

[22]     Unfortunately the primary police file is missing.  A certain amount of information was made available to us by Mr Davies which tends to suggest that the incident in 2001 did bear a surprising resemblance to the June 2003 incident, save that the roles were reversed.  The upshot of those proceedings was that the complainant was not convicted but rather required to enter into a bond to keep the peace, under ss 186 and 188 of the Summary Proceedings Act 1957. 

[23]     This issue was fully ventilated in the District Court.  It seems to us that the appellant’s understandable sense of grievance was the primary reason for the sentence indication given by Judge Hubble and indeed for the non-custodial sentence which was eventually imposed by the sentencing Judge. 

[24]     The 2001 incident did not, however, give the appellant either a licence to assault the complainant two years later, or an immunity from the consequences of that assault. We accordingly do not see this ground of appeal as giving rise to a miscarriage of justice. 

The appellant’s contention that he was ground down into pleading guilty

[25]     The appellant’s primary position was that, if we are not prepared to allow his appeal on the grounds just discussed, we should adjourn the case for further evidence. 

[26]     We told the appellant at the hearing that we were not prepared to adjourn the proceedings given that the incident in question occurred over three years ago and the principle that parties to litigation are expected to present their entire case at the hearing and not engage in an iterative process with the Court.  We did, however, stand the case down until the afternoon to permit Mr Brock, who had previously sworn an affidavit, to give evidence as to the relevant circumstances and also to allow the appellant to give evidence.

[27]     The appellant is an intense man with, as we have indicated, a genuine sense of grievance.  Further, as he said when he was giving evidence, at the time his “mind was filled with conspiracy theories”.  He is an intelligent man and we imagine that he will, with the benefit of hindsight, recognise that he was perhaps not an entirely easy client to represent.  His sense of grievance over the events of 2001 was never going to be able to be addressed to his satisfaction in the course of the District Court prosecution against him in respect of the June 2003 incident.  Further, the more he made of the 2001 incident, the more difficult it would make his own position in relation to the charges against him, if he continued to deny his guilt.

[28]     The case certainly took a long time in the District Court.  But the reasons for the adjournments have been adequately explained in an affidavit filed by the prosecutor primarily responsible for the case.  In the course of his evidence (and indeed in earlier affidavits) the appellant complained that on one appearance (in May 2004) he was remanded in custody in Mt Eden prison overnight, which he saw as being part of a softening up process.  The affidavit from the prosecutor indicates that there were two occasions on which warrants for arrest were issued for non‑appearance and, further, by implication, that on the second of those occasions the appellant was taken into custody before being bailed the next day. 

[29]     In the end, however, all of this is of limited relevance.  It is clear that the appellant entered pleas of guilty having received competent advice from Mr Brock and indeed a favourable sentencing indication from Judge Hubble.  His pleas of guilty were not rushed.  The sentence indication was given on 21 April.  In his letter to the Legal Services Agency on 23 May 2005, the appellant indicated a desire to plead guilty.  It was another month before the pleas of guilty were entered.  There was no relevant misunderstanding on his part.  As well, the circumstances do not amount to the coercion of a plea of guilty.  No doubt the appellant was, to some extent, disheartened by the process particularly as that process was not going to result in his grievance over the 2001 incident being resolved. But there were, in the end, realities which had to be faced. 

[30]     There was some focus in the evidence on the events which occurred on 11 August 2005, when the appellant was sentenced.  Given the view we take of the case, this evidence is of no particular relevance.  It is sufficient to say that the appellant was again advised by Mr Brock, and we have no doubt competently, as to his options and he made the decision (unpalatable though it no doubt was to him) to proceed to sentencing.

Conclusion

[31]     The appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington