The Queen v Myles James De Montalk
[2000] NZCA 356
•28 November 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 297/00 |
THE QUEEN
V
MYLES JAMES DE MONTALK
| Hearing: | 20 November 2000 |
| Coram: | Richardson P Robertson J Goddard J |
| Appearances: | Applicant in person C H Toogood QC for Crown |
| Judgment: | 28 November 2000 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
This application under s144(3) of the Summary Proceedings Act 1957 is for special leave to appeal to this court against the determination by the High Court dismissing the applicant's general appeal against his conviction in the District Court. In terms of s144(1), jurisdiction for a second appeal is confined to a determination of the High Court "on a question of law arising in any general appeal" and subs (3) goes on to provide that where leave to appeal is refused by the High Court this court may grant special leave if in the opinion of this court "the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision".
History
The matter has its genesis in the break up of a domestic relationship. Aspects of various criminal proceedings have been considered by at least nine judicial officers, five in the High Court and four in the District Court.
On 9 February 1999 certain charges were withdrawn and Mr de Montalk pleaded guilty to two amended informations: one that being a male he assaulted a female, namely Valerie Linda Sinton (Crimes Act 1961 s194(b)), and one of wilful damage (Summary Offences Act 1981 s11(a)). On the assault charge he was sentenced to 9 months imprisonment suspended for 2 years. On that charge and on the wilful damage charge he was sentenced to 12 months supervision on the statutory conditions. An application for rehearing and leave to vacate the guilty pleas was declined by the District Court Judge but the sentence of supervision was cancelled. The Judge also declined an application for costs against the police in relation to all of the charges which were before him on 9 February.
The appeal to the High Court
On the appeal against conviction Randerson J summarised the central issues raised in the course of the hearing in the High Court in this way:
[4] In broad terms, the appellant contends that he was forced to enter the pleas of guilty by a combination of circumstances, that he had a proper defence which ought to have been heard, and that his convictions should be set aside on the grounds that there has been a miscarriage of justice. He also relies on alleged breaches of the New Zealand Bill of Rights Act 1990, including the right to a fair and public hearing by an independent and impartial court under s25(a). As well, I heard substantial evidence and argument about alleged deficiencies in the pre‑trial disclosure made by the police.
[5] It was evident at an early stage that the appellant was alleging certain improper pressure or conduct on behalf of the Judge and the prosecutor, Mr W R McKean. Chambers J therefore made orders on 23 November 1999 permitting further evidence to be heard on the appeal under s119(3) of the Summary Proceedings Act 1957. In the result, affidavits were filed by the appellant and Mr McKean. With the consent of both the appellant and the respondent, I permitted cross‑examination on those affidavits at the hearing before me. In addition, at the request of the appellant, I directed the police to file a further affidavit with regard to disclosure issues which arose during the hearing. In response, an affidavit by a Senior Sergeant Hall was filed. I permitted the appellant to cross‑examine him. Prior to the hearing, the appellant had filed extensive written submissions and he also made further lengthy oral submissions at the hearing. In all, the hearing of the appeal occupied some three and a half days.
The High Court hearing extended over 4 days. After reviewing the evidence at some length Randerson J made the following findings of fact regarding the events of 8 and 9 February:
[74] It is necessary for me to make some factual findings regarding the events on 8 and 9 February. In doing so, I have regard to the entire history of events and to the demeanour of the appellant and Mr McKean when cross‑examined. I can say without hesitation that I accept the evidence of Mr McKean wherever it differs from that of the appellant. Mr McKean gave his evidence in a straightforward fashion making concessions fairly as it was appropriate to do so. He impressed me as an honest witness and gave his evidence carefully and with precision. He was not shaken in cross‑examination which was lengthy and, at times, conducted with some vehemence. I also take into account the conclusions reached by Hobbs DCJ as already recorded in this decision. He is a Judge of long experience and it strains credibility to accept that he could have behaved in the way the appellant claims. Mr McKean's evidence, which I accept, is that he did not do so.
[75] In preferring the evidence of Mr McKean, I do not consider that the appellant has been deliberately untruthful. Rather, as he frankly acknowledged in cross‑examination, one of the results of a head injury suffered some years ago is that his memory fails him from time to time. As well, I am satisfied that his deep sense of bitterness about Miss Sinton has caused him to become obsessive in a way which has led him to a distorted recollection of the events.
[76] The appellant is no stranger to the criminal Courts and is a man of some intelligence. I am satisfied that he knew precisely what he was doing when he entered into the agreement on 9 February and pleaded guilty to the amended charges. As the history of events demonstrates, he was not unused to the process of compromise in relation to the disposal of criminal charges brought against him. Nor was it the first time he had entered into an agreement involving the withdrawal of proceedings against Miss Sinton. While it may be that he believed he would not get a fair trial and that this may have been a contributing factor to his decision to plead guilty, there was no objective justification for that belief. I am satisfied that the primary factor which persuaded the appellant to plead guilty was the prospect of a non‑custodial indicated by the Judge. This must have been a considerable incentive for him having regard to the seriousness of the charges he was facing.
Turning to the appeal against conviction, and applying R v Stretch [1982] 1 NZLR 225, 229, Randerson J held that where a person has pleaded guilty and been sentenced, an appeal against conviction is usually only allowed in exceptional circumstances and where the appellant is able to demonstrate a miscarriage of justice. However, in fairness to Mr de Montalk, and recognising that Mr de Montalk was not legally represented, the Judge went on to approach the appeal against conviction as if it were an application for change of plea before sentence. The Judge considered under six heads what he described as the principal grounds raised in the vast number of allegations and complaints the subject of argument: (a) that Mr de Montalk was forced into pleading guilty through the combined actions of the Judge and the prosecutor at Pukekohe on 8 and 9 February 1999; (b) that the conduct of the prosecutor was otherwise improper; (c) that there was a failure by the police to comply with pre‑trial disclosure obligations and court orders relating to the prosecution; (d) that there was other misconduct by the police; (e) that Mr de Montalk was denied a fair trial in terms of the New Zealand Bill of Rights Act 1990; and (f) that he had a proper defence which ought to have been tried.
For the reasons he gave on his assessment of the facts, Randerson J concluded:
hMr de Montalk was not subject to improper pressure to plead guilty, either by the prosecutor or the District Court Judge.
hThe prosecutor did not act improperly towards witnesses or in the conduct of proceedings.
hDisclosure was made progressively by the police over the period March to May 1998 and by June disclosure was made in full with three exceptions which could not have prejudiced Mr de Montalk in any way.
hThe police had not acted inappropriately in any other way, including alleged unauthorised searches of Mr de Montalk's premises, and alleged breaches of an agreement to withdraw the more serious charges in return for Mr de Montalk's guilty plea to a charge of breaching a protection order. Randerson J stated that there may have been a failure by the police to comply with the order made by Cartwright J to permit Mr de Montalk or his advisors to take photographs at Miss Sinton's house. However, the Judge was satisfied that Mr de Montalk's abusive correspondence probably led to a breakdown in relations between Mr de Montalk and Constable Yearbury and in the result the premises were not photographed. Randerson J concluded that the photographs were unlikely to have made any difference to the outcome of the prosecution.
hNone of the alleged various breaches by the police of the New Zealand Bill of Rights Act 1990, and in particular breaches of s25, were made out. These were based upon the factual claims by Mr de Montalk, that he was forced to plead guilty and was denied a fair trial, that he did not receive proper disclosure, that the police failed to comply with Court orders and his trial was unreasonably delayed. Randerson J dismissed these claims for the same reasons as set out above.
hMr de Montalk had little prospect of successfully defending the charges brought against him.
On the costs appeal the Judge concluded that there was no basis established for an order against the police.
Further appeal to this court: Anderson J's decision
On 12 July 2000 Anderson J refused leave to appeal to this court. The essential ground of appeal advanced was that the appellant had been coerced into pleading guilty when he had a proper defence which ought to have been tried. His conviction was therefore a miscarriage of justice and he had, moreover, the rights and protections of persons charged and stipulated as minimum standards of criminal procedure assured by the New Zealand Bill of Rights Act 1990.
The Judge noted that the High Court may grant such leave only if in its opinion there is a question of law involved which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision. He considered that no question of law, let alone one warranting reference to the Court of Appeal, could be found in the appellant's misconceptions, expressed by him in abusive terms, of what a court decision actually amounts to. That referred to the applicant's perception of the High Court's findings on appeal as if they were evidence by that Judge and of the Judge's determinations of law as conduct contrary to the Crimes Act 1961 and to ss24 and 25 of the Bill of Rights.
The various principles of law which were identified and formulated were, the Judge said, in general terms well established, not calling for reiteration by this court. He concluded that the requirements of s144 for granting leave to appeal had not been satisfied.
Further appeal: the application to this court
The written points on appeal extend over five single-spaced pages. They focus largely on allegations of criminal, illegal and unethical conduct on the part of certain Judges, Police, counsel and witnesses, and denial of various Bill of Rights provisions, as did Mr de Montalk's oral submissions which also traversed matters canvassed by Randerson J and Anderson J. Necessarily at the heart of the argument was his submission that Randerson J erred in refusing to set aside the pleas of guilty and allow the appeal against conviction.
Mr de Montalk's basic argument was that in a situation where there were a number of charges before the District Court and the focus at the time was on a charge of alleged breach of a protection order he was forced into agreeing on a plea of guilty to an assault charge under the pressure of having otherwise to face a period of years in prison on more serious charges if he failed to do so.
Discussion
It is not surprising that the legislation confines the right to a second appeal. The first appeal from a general jurisdiction court is ordinarily seen as providing appropriate opportunity for consideration and correction of material error at trial whether the material error is of law or fact. Thereafter considerations of finality and cost ordinarily require a more stringent test before leave may be given for a second appeal. In enacting s144 Parliament clearly intended that any such further appeal be directed to material questions of law and confined to cases where the conditions specified are met.
Having considered everything that Mr de Montalk has said, we are not persuaded that the statutory criteria for granting leave are met. In terms of s144(1) and (3) the focus must be on questions of law involved in the appeal to the High Court and the determination of the High Court on those questions of law. It is not suggested that Randerson J misdirected himself in stating the law relevant to the determination of appeals against conviction following a plea of guilty. The application of the relevant test and the application of well‑settled principles of law to associated questions turn essentially on Randerson J's conclusions as to the facts on his assessment of the evidence. We are not satisfied that there was any relevant question of law involved in the determination of the High Court which by reason of its general or public importance or for any other reason ought to be submitted to this court for decision.
Before ending this judgment we should note a number of specific matters raised by Mr de Montalk. First, he submitted both in his written points on appeal and orally that the matter was of such importance that it should be considered by a court of five Judges. As was stated at the hearing, in accordance with the governing legislative requirements, three Judges of the court had considered that request and concluded that the application for special leave to appeal was unsuitable for a Full Court hearing. Second, he submitted that the challenge being to High Court decisions and the conduct of High Court Judges, the coram should not include High Court Judges. The short answer is that the application was allocated to the Criminal Appeal Division which by s58A of the Judicature Act 1908 may consist of one permanent Court of Appeal Judge and two High Court Judges nominated in terms of the statute. Third, Mr de Montalk asked the court to make a complete record of his oral argument. He was advised orally at the hearing that the Judges would follow their usual practice and take such notes of the oral argument as they considered appropriate for their use.
Result
For the reasons given the application for special leave to appeal is dismissed.
Solicitors
Crown Solicitor, Auckland
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