The Queen v Martin

[2006] NZCA 188

IN THE COURT OF APPEAL OF NEW ZEALAND

CA501/05

THE QUEEN

v

SHANNON CHARLES MARTIN

Hearing:26 July 2006

Court:Robertson, Goddard and Gendall JJ

Counsel:C P Comesky and J Soondram for Appellant

K J Beaton for Crown

Judgment:26 July 2006 

Reasons:10 August 2006

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Mr Martin appealed against convictions which were entered after he pleaded guilty to charges of manufacturing the class A controlled drug methamphetamine, possession of methamphetamine and receiving. 

Factual background

[2]       Following a police search on 2 June 2005 of a property owned by the appellant, he appeared the next day in the District Court at Waitakere on a charge of possession of a precursor substance intending it to be used in the manufacture of a controlled drug, possession of equipment (glass) intended to be used in the manufacture of a controlled drug and unlawfully taking a motor vehicle.  He was remanded on bail to 21 June 2005.

[3]       At his next appearance, additional charges of possession of methamphetamine for the purposes of supply and receiving relating to a stolen motor vehicle were laid.  He was then remanded to 26 July 2005.  On that date he faced a further charge of manufacturing methamphetamine between 1 June 2004 and 3 June 2005.  At that appearance he was represented by Ms Karen Harding, his original counsel, Mr Cullen, having been given leave to withdraw.  He was remanded to 13 September 2005 for a pre-deposition conference.

[4]       At some stage during this period some of the original charges were withdrawn.

[5]       On 2 September 2005, Mr Martin met with Ms Harding and after discussing options he instructed her that he wished to plead guilty to the charges which were then active against him.  A written application was prepared under s 153(A) of the Summary Proceedings Act 1957. 

[6]       On 13 September 2005, Mr Martin appeared in the Court again represented by Ms Harding.  There was a further amendment to one of the charges and Mr Martin pleaded guilty to each matter, signed each information as did his counsel, and the pleas were witnessed by the presiding District Court Judge.   He was remanded for sentence in the High Court at Auckland on 1 November 2005.  By that time he had instructed Mr Comeskey to act on his behalf.

[7]       A Minute of 1 November 2005 records that a pre-sentence report was available which indicated that the appellant disputed the level of involvement in the manufacturing alleged in the statement of facts which had been presented.  Ellen France J adjourned sentencing for a disputed facts hearing to occur.  This took place on 25 November 2005 before Simon France J.  The Crown provided nine briefs of evidence, called the officer in charge (Detective Cox) for cross-examination and the appellant, together with his partner and father, gave evidence.

[8]       In a reserved decision delivered 5 December 2005, Simon France J made findings of fact which were adverse to the position advanced by Mr Martin.  The Judge accepted that he was not “the kingpin in the operation”, but Simon France J was satisfied beyond reasonable doubt that Mr Martin was fully involved in the manufacturing which had taken place at the Helensville address on 2 June 2005.

[9]       Sentencing was set down for hearing on Wednesday 14 December 2005.  At about 1.30pm on 13 December 2005, the Court received a fax from Mr Comeskey, as counsel for Mr Martin, indicating that he had instructions to apply to withdraw Mr Martin’s guilty pleas.  An affidavit in support of that application was filed.  Simon France J issued a Minute requesting, among other things, that counsel be prepared to address the Court on its jurisdiction to entertain such an application.

[10]     In his judgment of 14 December 2005, the Judge concluded at [17]:

In my view everything flows from the nature of the decision I was asked to give.  It is a finding of this Court, based on the evidence that the parties chose to put before the Court, that Mr Martin is guilty of the offence in the circumstances set out in the ruling.  Absent any suggestion that the decision is a nullity, I do not consider it is open to this Court to act inconsistently with that finding.  Challenges to my ruling are for an appeal where it can be argued that, on the basis of the evidence before me, I erred in my conclusion, or alternatively that there is now fresh evidence that suggests the conviction is a miscarriage.  Whether the evidence is fresh and cogent is a matter for an appellate court, so I do not comment on it.

[11]     The Judge proceeded to sentence Mr Martin to an effective term of five and a half years’ imprisonment.  He appealed to this Court against conviction.

[12]     An application was subsequently made for bail which was granted.  It has been varied on a number of occasions through until this hearing.  Having announced that the conviction appeal was dismissed, Mr Martin’s bail was extended until 9am on Friday 28 July when he must surrender to the Registrar of the High Court at Auckland to continue serving his sentence.

Grounds of appeal

[13]     These were described as:

(a)guilty pleas were wrongfully entered and if leave to appeal were not granted there would be a miscarriage of justice;

(b)it would be in the interests of justice for leave to be granted.

[14]     The argument before us did not address the legal principles governing a change of plea.  A Judge may allow an accused to withdraw a guilty plea prior to sentence if satisfied that it is required, in the interests of justice, because of a mistake or misunderstanding, or for some other reason:  R v Ripia [1985] 1 NZLR 122. The grounds for changing a plea are not as restricted as after sentencing.

[15]     The Ripia principles are in conformity with what had been said by Reginald Hardie-Boys J in R v Turrall [1968] NZLR 312, particularly at 313:

This Court should be the fountain of justice and ensure that no man is wrongly convicted even if it is his own foolish act that has brought the situation about.

[16]     There is earlier English and New Zealand authority to like effect: for example see R v Walsh [1948] NZLR 937 (CA).

[17]     In the situation where there may have been a defence of which an accused was unaware, as in R v Le Comte [1952] NZLR 564, there needs to be demonstrated some evidential basis for the defence to be advanced. The proposed defence must have an air of credibility and not simply be a denial of guilt. Where an accused person has repented their decision because of factors unrelated to guilt, then the approach has been quite different: Pierce v R HC AK CRI-2004-004-24268 21 June 2005; Alhosan v Police HC AK CRI-2004-404-511 10 August 2005.

[18]     Although it can be said that the sentencing process had commenced when the disputed fact hearing was ordered: R v Kerr (2005) 21 CRNZ 347, we have not adopted a strict post-sentence approach to the application for, in the final analysis, the jurisdiction is one rooted in the interests of justice.  Notwithstanding, we were left with no doubt that the application to vacate the pleas could not succeed.

[19]     As the Court noted as early as in R v Claridge (1987) 3 CRNZ 337 the possibility of leave being granted is exceptional.  Where an accused has had the advice of experienced counsel such cases would be rare.

[20]     A review of the factual position set out in [2]-[7] can leave no room for question that Mr Martin was, during this period of five months, represented by three counsel.  It is not cynicism, but sensible reality, which suggests that one must look with great care at the assertion now made that:

(a)the pleas of guilty were entered because he did not truly appreciate the nature of the charges;

(b)because he was mistaken; or 

(c)on the basis of the admitted facts he could not have been convicted on the offences. 

[21]     Mr Martin pleaded guilty to charges of manufacturing methamphetamine, possession of methamphetamine and receiving.  Having regard to s 66 of the Crimes Act 1961 it was only necessary for the Crown to prove beyond reasonable doubt that he was knowingly and actively involved in each of these offences.  Mr Comeskey at times conceded that, on the manufacture charge his client might have been guilty of permitting premises to be used, but submitted there was no foundation for anything further.

[22]     These submissions were made by arguing that, at the time of the police search on 2 June 2005, Mr Martin knew nothing at all as to what others were doing.  We find that this assertion lacks credibility.  If Mr Martin had knowledge of what his co-accused were doing and permitted them to use his premises, shared possession of the drugs and involved himself with the motor vehicle, then he undoubtedly was a party to the acts and omissions of others as a matter of law.

[23]     The thrust of Mr Comeskey’s factual challenge is that Mr Martin acted as he did in admitting complicity in the offending and entering pleas of guilty on the basis that he was pressured by the police who wanted him to implicate another person in the offending.

[24]     This generalised submission does not stand scrutiny.  According to the deposition evidence of Detective Cox given at the disputed facts hearing, Mr Martin referred to the other persons and talked quite openly of them.  Mr Martin admitted that “bits and pieces” of the lab which was found were his, that the lab was his, and that chemicals and glassware were his.  When he was asked why he was trying to make P he answered: “I guess I got a bad habit and I got a way out of all my financial problems.”  He was able to identify “Toluene” as one of the chemicals.  As to whether the lab had been operating on the day he said: “I had been given some tablets.  I was trying the separation thing but it didn’t work so I threw it out”.  When asked about the method he was using he said: “Just one off the internet I got and had a look at a couple of sites”.

[25]     Mr Martin now says this is all lies.  We do not find this a credible assertion given the other evidence available. 

[26]     With legal assistance he entered pleas of guilty.  A pre-sentence report was prepared.  It suggested that there was a dispute about the extent of his involvement, but the report included:

Shannon Martin reported that his involvement in the offending was limited to drug use and supplying his co-offenders a chemical from stock that he used for his signwriting business and rocket fuel that he used for his motorcross bike.

He acknowledged that he was aware there were illegal activities occurring on his property, that he was desperate for rent to meet his mortgage payments and chose to turn a blind eye.

[27]     The areas in which Mr Martin indicated dispute with the police summary did not go to the substance of the offending, but the degree of his involvement in it.

[28]     When there was a full hearing with substantial evidence before Simon France J on the facts, nothing emerged which even hinted that his pleas were improperly entered.

[29]     Mr Martin has filed an extensive affidavit before us.  Apart from saying that he was intimidated because of the gang connections of others and denying his guilt, he does not grapple in any way with the other matters which are consistent with guilt including the extraordinary incriminating matters which were found at the premises in a room which he used as an office.

[30]     We have no difficulty in understanding, on the basis of the available material, why Simon France J made the findings that he did as to Mr Martin’s involvement when he concluded at [18]:

Accordingly, Mr Martin will be sentenced on the basis that he was freely involved in the drug manufacturing operation.  He will be sentenced as a participant in the actual manufacture, neither as a peripheral player who simply made the operation possible, nor as the organiser or  king-pin or person most likely to profit.  Allowing the premises to be used in this way – he being the owner of the property – must be seen as an aggravating factor.

Conclusion

[31]     It may well be that this is yet another case of an otherwise decent young man who has got caught up in a drug network with others who were much more sophisticated and culpable than he.  However, from an early stage he properly acknowledged his own knowing involvement.  There is no credible narrative that there is available any defence now.  He undoubtedly was disaffected with the High Court’s assessment of the degree of his involvement, but that is not a ground to permit him to withdraw pleas of guilty which were entered on legal advice.

[32]     We accordingly dismissed the appeal against conviction.

[33]     There was not before us an appeal against sentence.  If that is an issue which requires attention, an application for leave to appeal out of time will need to be filed.  We would have thought it unlikely for the Crown to oppose on the basis of delay. This is explicable on the basis that the conviction issue on an unusual point was being addressed first.

Solicitors:
Crown Law Office, Wellington