The Queen v Le Page

[2005] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA297/04
CA411/04
CA495/04

THE QUEEN

v

ANTON MARK LE PAGE

Hearing:13 April 2005

Court:McGrath, Williams and Panckhurst JJ

Counsel:P S Neutze for Appellant

K J Glubb for Crown

Judgment:28 April 2005 

JUDGMENT OF THE COURT

A     Leave to appeal against conviction (following entry of pleas of guilty) is

refused.

BThe appeal is dismissed.

REASONS

(Given by Panckhurst J)

INTRODUCTION

[1]       The appellant seeks to appeal against his conviction upon a number of drugs charges, despite the circumstance that he entered pleas of guilty to those charges on arraignment in the High Court and has been sentenced to three and a half years imprisonment in relation to them.  The first question is whether an appeal against conviction can lie in these circumstances.  That question may be of some practical moment since it is apparent from the history of this case that the pleas of guilty were entered by the appellant when he and his advisors laboured under the misapprehension that thereby he would not be inhibited in pursuing an appeal against conviction to this Court.

[2]       The genesis of the guilty pleas was a s344A ruling of Priestley J in which he ruled admissible evidence of a search of a vehicle driven by the appellant.  Such search led to the discovery of controlled drugs and, ultimately, to the preferment of an indictment containing the seven counts to which Mr Le Page pleaded guilty.  He desired to challenge the s344A ruling, but an appeal was not pursued before trial pursuant to s379A(aa), nor was application made to reserve a question of law pursuant to s380, before entry of the pleas.  The most which can be said is that the record confirms Mr Le Page entered the guilty pleas under the misapprehension that he still enjoyed an unqualified right of appeal against conviction.

The history of the case

[3]       On 4 July 2003 at Auckland Mr Le Page was stopped by police officers and his vehicle was searched pursuant to s202B of the Crimes Act 1961 on the basis reasonable grounds existed for the belief that his vehicle contained an offensive weapon.  The discovery of ecstasy tablets and methamphetamine in a bag in the vehicle stimulated further police inquiries.  In the end result Mr Le Page was charged with possession of methamphetamine and MDMA (ecstasy) for the purpose of supply, supplying controlled drugs to persons unknown, using a vehicle for the purposes of the commission of a drug offence, possession of a methamphetamine pipe, and two charges of possession of offensive weapons.

[4]       Over four days in June 2004 Priestley J heard a s344A application in which the Crown sought a ruling as to the admissibility of evidence of the initial search for offensive weapons at the roadside on 4 July 2003.  Three police officers involved in the search gave evidence and were extensively cross-examined.  Mr Le Page did likewise.  On 30 June 2004 Priestley J delivered a decision in which he concluded that the search was neither unlawful nor unreasonable.  Nonetheless the Judge carried out a Shaheed balancing exercise, the result of which was that even if the search was assumed to be unreasonable, exclusion of the resulting evidence would be a disproportionate response to the breach.

[5]       Counsel who represented Mr Le Page at the hearing of the admissibility application sought, and obtained, leave to withdraw as counsel at trial.  This occasioned delay in scheduling a trial date.  However, the case was set down for trial before a jury on 16 August 2004.  On 4 August Mr Le Page made application for an adjournment of the trial.  This was refused.

[6]       On 2 August 2004 an appeal was apparently filed in this Court against the admissibility ruling.  Such appeal, in terms of s379A(1) had to be prosecuted before trial : R v Watson [1999] 3 NZLR 257 (CA).

[7]       On 12 August (the Thursday before the scheduled Monday trial date) Mr Le Page was arraigned and entered the pleas of guilty.  He was granted bail pending sentencing, in part because the Judge understood that an appeal to this Court was pending with reference to the s344A ruling. 

[8]       On 12 October 2004 Mr Le Page was sentenced to an effective term of three and a half years imprisonment.  Keane J noted in the course of his sentencing remarks that:

The plea you have entered is unusual in the sense that you have preserved, at the same time, a right of appeal.  That is perfectly open to you, I am told. 

[9]       On 26 October 2004 the present appeal against conviction was filed.  In form the appeal was pursuant to s385 (the general appeal section) although the grounds of appeal identified the s344A ruling as the sole basis of the appeal. 

[10]     On 10 March 2005 the appeal was called before this Court and a minute was issued which recorded that the case was to be rescheduled on 13 April 2005, with consequential time-tabling directions made to that end.  On one reading of it the minute may be taken as inviting Mr Le Page to consider an application in the High Court to vacate the guilty pleas. 

[11]     Such was done and the application was heard by Potter J on 12 April 2005 (the day before the scheduled hearing in this Court).  The Judge concluded after extensive reference to relevant authorities that:

Given the doubt that surrounds the jurisdiction of the High Court to grant leave to change a guilty plea after sentence, I consider that the issue is better addressed in this case by the Court of Appeal, so that the appeal Court may take the opportunity, if it thinks fit, to consider and clarify the issue.  The Judges of the Court of Appeal are of course also Judges of the High Court.  If the Court of Appeal considers that leave to change plea should properly be dealt with by the High Court in its inherent jurisdiction, then they may attend to that. 

Potter J also noted that there were situations in which an appeal against conviction would be considered in this Court, albeit the appellant had pleaded guilty to the relevant charges.

[12]     Against the background of this somewhat tortured history we turn to the question of jurisdiction. 

May a guilty plea be vacated in the High Court after sentence?

[13]     There is no relevant statutory provision in the Crimes Act.  Section 356(3) enables an applicant to alter a not guilty plea to one of guilty.  The reverse situation, however, falls to the inherent jurisdiction of the High Court.

[14]     As Potter J observed in the course of her decision, neither counsel nor her own researches had revealed any case in which the High Court had granted leave to vacate a guilty plea after the applicant had been sentenced.  The Judge cited a passage from R v K, CA395/03, 19 April 2004, in which this Court said:

Once sentence is passed the long-standing practice of the (High) Court is not to entertain an application for leave to withdraw a guilty plea.  The remedy is an appeal against conviction.  The appellant is entitled to raise as a ground of appeal that a miscarriage of justice has occurred through the Judge wrongly refusing to grant leave to withdraw the guilty plea or wrongly declining to consider the application.

[15]     No argument was put to us, or authority referred to, which called in question this analysis of the position.  It accords with the practice in England: S (an infant) v Manchester City Recorder [1971] AC, 481 (HL), Archbold, 2005, para 4-187 and in Australia: Chow v DPP (1992) 28 NSWLR 539 and R v Douglas [2004] VSC 376. Although the question is not formally before us we concur in the view which Potter J tentatively formed, namely that the inherent jurisdiction of a High Court Judge to grant leave to vacate a guilty plea does not enure after sentence.

The jurisdiction of this Court

[16]     Despite the understanding which Mr Le Page and his counsel (not Mr Neutze) had at the time the pleas were entered and at the time of sentencing, it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.  An appellant must show that a miscarriage of justice will result if his conviction is not overturned.  Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned.  These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.

[17]     A miscarriage of justice will be indicated in at least three broad situations which are identified and discussed in Adams on Criminal Law at para CA385.21.  The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge.  These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake.  Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element.  It is not suggested the present case is in this category.

[18]     A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged.  Examples are where a charge required special leave and such was not obtained, a charge was out of time or where as a matter of law the facts are insufficient to establish an essential ingredient of the offence.  R v Mohammed CA415/96, 13 November 1996, is a relevant example.  Following an unsuccessful s347 application, in which Mr Mohammed challenged whether the facts were capable of supporting charges of forgery, he entered pleas of guilty to the charges.  On appeal against conviction this Court was satisfied that as a matter of law forgery could not lie on the basis of the facts alleged.  Accordingly, the Judge below was wrong to have refused the s347 application.  This Court intervened and quashed the convictions.  Again, the present case is not suggested to be in that category, although it is based upon a challenge to a pre-trial ruling which the appellant contends was wrongly decided.  That circumstance indicates that there may be scope for overlap between the categories to which we are referring.

[19]     The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.  That description is of course apt to describe the situation in Mohammed, which type of case may also be seen as a subset of the third category.  Examples are where a trial Judge wrongly concludes that there is no evidence sufficient to justify a defence being left to the jury (say provocation or self defence) leaving the accused with no option but to plead guilty.  In such cases, which will admittedly be rare, this Court would intervene to cure a miscarriage of justice which plainly flowed from the erroneous ruling.  The present appellant contends that his pleas were entered in the face of an erroneous legal ruling.

[20]     Is that so?  It is notorious that legal rulings vary greatly as to their impact.  Where for example an accused is reliant upon a single defence, and the Judge considers that such defence does not lie, then the ruling may necessarily be decisive.  But where, as in the present case, a ruling concerns the admissibility of evidence it does not ordinarily follow that an accused thereby had no option but to alter his plea.

[21]     This distinction is discussed in R v Chalkley [1998] QB 848. At 864 Auld LJ in delivering the judgment of the Court of Appeal said this:

… a conviction would be unsafe where the effect of an incorrect ruling of law on admitted facts was to leave an accused with no legal escape from a verdict of guilty on those facts.  But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of a ruling to admit strong evidence against him, his case on the facts is hopeless.  A change of plea to guilty in such circumstances would normally be regarded as an acknowledgement of the truth of the facts constituting the offence charged.

Earlier in the judgment the Judge made observations in a similar vein, namely that where a ruling renders a case “factually overwhelming” or “makes it harder” for an accused to mount a defence, such difficulty is insufficient to establish the necessary nexus between the ruling and the change of plea. 

[22]     In R Zhang CA153/04, 13 July 2004 Hammond J spoke of the situation where a change of plea gave rise to an acknowledgement of the truth of the facts constituting the relevant offence when he said at para [16]:

… it is incontrovertible that the entry of a plea of guilty admits the validity of the offence;  and all the necessary elements of that offence.

But the decision in Zhang is not to be read as denying the existence of any effective right of appeal against conviction following a plea of guilty.  Rather as the subsequent discussion of the merits in Zhang demonstrates, it was a case where the challenged legal ruling (to permit the filing of an amended indictment) was unimpeachable anyway.  Hence, absent an erroneous ruling by the trial Judge, the door was not ajar to establish the existence of exceptional circumstances within one of the three categories where an appeal against conviction following a plea of guilty will lie.

[23]     In our view the present case is not within the third category, where a legal ruling left Mr Le Page with no legal escape from guilty verdicts.  By Priestley J’s ruling no legal impediment was raised to his defending the charges, although of course his chances of successfully doing so were greatly diminished.  That change of fortune, as the passage we have quoted from Chalkley demonstrates, is not enough.  The test requires that there be no legal avenue left to an accused, not just that his chances at trial have suffered a body blow.

[24]     Despite our conclusion that this is not an occasion where an appeal against conviction is available following entry of pleas of guilty, we will nonetheless briefly consider the correctness of the s344A ruling, as if there was a sufficient nexus between it and the change of pleas to enable an appeal against conviction to be entertained.

The s344A Ruling

[25]     At about 2.30 pm on 4 July 2003 Mr Le Page was observed by police officers as he drove onto the north-western motorway, Auckland.  The three officers, who were in plain clothes and were members of a stolen car squad, stopped Mr Le Page’s vehicle.  He parked on the grass verge. 

[26]     At that point one of the officers asked the appellant to alight from his vehicle and to supply his personal particulars.  These were given.  Meanwhile one of the other officers made radio contact with a control centre and obtained details relevant to the Subaru car which Mr Le Page was driving. 

[27]     While the appellant was still in conversation with one officer Detective McNeill entered the Subaru and sat briefly in the driver’s seat.  The Judge found he did this in an endeavour to release the bonnet catch.  Then, Detective McNeill said that he observed through a window on the passenger’s side of the vehicle “a baton” which was positioned between the passenger’s seat and the door.  The detective drew this item to the attention of another officer.  The two then spoke to the appellant, the constable administering a caution while the detective advised that a search would be conducted of the vehicle for further weapons.

[28]     Detective McNeill then returned to the Subaru, lent across from the driver’s side to unlock the passenger’s side door, in order to uplift the baton.  In fact, the item was the heavier end of a dismantled billiard cue with insulation tape wrapped around the narrower end as if to form a handle.  The entire cue, we understand, comprised two parts which could be screwed together.  The so-called baton was the unscrewed handle section.

[29]     A search of the car for further weapons ensued.  None were found.  However Detective McNeill opened a bag on the back seat and found drugs.  He advised one of the constables of the find, and that constable invoked s18(2) of the Misuse of Drugs Act which led to the discovery of further incriminating items.

[30]     In the course of the s344A hearing numerous disputed questions of fact were explored.  In many respects the evidence of Mr Le Page differed from that of the police officers.  Priestley J expressed himself satisfied that, particularly in relation to the “core areas”, he preferred the evidence of the officers over that of the appellant, where there was conflict.  Three broad issues fell for determination:

•Why was the Subaru stopped in the first place?

•Was reasonable cause for the belief Mr Le Page was in possession of an offensive weapon established?

•If so, was the baton an offensive weapon in any event?

We shall mention each issue in turn.

Why was the car stopped?

[31]     Pursuant to s114(2) of the Land Transport Act 1998 police may stop a vehicle “by displaying flashing … lights or sounding a siren”, as occurred in this case.  However, the purpose for which the vehicle is stopped must be one recognised in the Act, the section does not authorise random or capricious vehicle stopping:  R v Jefferies [1994] 1 NZLR 290 (CA).

[32]     Here, then counsel contended Mr Le Page was not stopped for any purpose recognised in the Land Transport Act, but rather at random because the officers wished to check the vehicle in order to ascertain whether it was stolen (Subaru cars apparently being a make of vehicle frequently taken by car thieves).  In support of this thesis the officers were extensively cross-examined concerning the radio inquiry made as soon as the Subaru was stopped and concerning the circumstance that the vehicle was subsequently checked to verify the integrity of the numbers on various of its components.

[33]     Priestley J, however, made an express finding that the vehicle was stopped on account of its speed and for weaving in and out of other traffic, and because the driver changed lanes unnecessarily.  The Judge characterised the driving as erratic.  We have considered the evidence relevant to this aspect.  In our view the finding was one which was open on the evidence.  We cannot possibly disagree with it in an appellate setting.

Reasonable cause for belief

[34]     The Land Transport Act did not empower a search of a vehicle.  If authority existed for the search, it was in s202B of the Crimes Act whereby a constable may search a vehicle if he has reasonable grounds for believing that it contains an offensive weapon : s202B(1)(b).  Before such power of search is exercised the constable must identify himself and advise of his intention to conduct the search.

[35]     As to this aspect a two-fold challenge was mounted.  The Judge accepted that before s202B was invoked, Detective McNeill briefly sat in the passenger’s seat of the Subaru.  This was without lawful authority.  Counsel contended that it was at this point that the detective saw the baton and acquired good cause.  Hence, it was submitted, the manner in which good cause was obtained was tainted.

[36]     Again, however, the Judge did not accept this.  Priestley J made a finding that the detective first saw the baton from outside the vehicle while peering through a window to check the registration sticker.  Indeed, the challenge on this aspect extended the distance of the Judge being asked to inspect the vehicle with the baton in situ, in order to ascertain whether it could be seen from an external examination.  Priestley J found that it could and, moreover, concluded after detailed reference to the evidence that reasonable cause for belief was established.  The Judge was satisfied that while the detective unlawfully entered the Subaru on the driver’s side for a short time, he did not see the baton until later when he was outside the vehicle.

[37]     A second challenge was based on the proposition that s202B(2) was not complied with, in that Mr Le Page was not told that the search was being made before it was undertaken.  This point, in common with many others, was the subject of conflicting evidence.

[38]     Again, we have considered the findings of Priestley J.  We are not persuaded that the factual conclusions he reached were unavailable on the evidence or were plainly wrong.  To the contrary it is apparent to us that the Judge considered the evidence, which was often hotly disputed, with considerable care and reached factual conclusions supported by adequate reasons contained in the ruling. 

Was the baton an offensive weapon?

[39]     The above discussion concerning reasonable cause for belief, assumed that the part billiard cue was within the definition of an offensive weapon.  Section 202A(1) provides that an article made, or altered for use for causing bodily injury, or intended by the person having it for such use, is an offensive weapon.  In this instance the baton was neither made nor altered for use as a weapon.  The issue was whether in all the circumstances the presence of the baton in the vehicle invited the conclusion that it was an offensive weapon.

[40]     Like Priestley J we are satisfied that such conclusion was open.  The article was disassembled.  Mr Le Page remained in possession of the heavy end of the cue.  It was both at hand (within reach from the driver’s seat) and yet concealed from immediate view, unless one made a reasonably close inspection from outside the vehicle.  These circumstances, in combination, invited the belief that the article was one intended for use as an offensive weapon.

[41]     For these reasons we agree with Priestley J’s conclusions that the search was neither unlawful nor unreasonable.  We need not, therefore, undertake a Shaheed balancing exercise.

Result

[42]     Given our conclusion that the grounds required to entertain an appeal against conviction following guilty pleas do not exist, leave to appeal is refused and the appeal is dismissed.  But in any event we are not persuaded that there is any substance to the underlying challenge to the s344A ruling.  The appeal against sentence was abandoned at the hearing.

Solicitors:
Crown Law Office, Wellington