v v Police HC Dunedin Cri-2007-412-61

[2008] NZHC 653

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2007-412-000061

V

Appellant

v

POLICE

Respondent

Hearing:         7 May 2008

Appearances: Appellant in person

R D Smith for Respondent

Judgment:      7 May 2008

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction following a guilty plea together with an application for leave to file an appeal out of time.

[2]      From a procedural point of view the matter has a rather convoluted history.

[3]      The appellant was convicted in the District Court on 21 August 2007 of three summary charges: fighting in a public place, resisting arrest and failure to answer District Court bail.  Having pleaded guilty to all three charges, he was convicted and discharged.

[4]      The appellant had originally been charged with attempting to escape from lawful custody, but at the hearing following discussions between his legal counsel

and the police, that charge was reduced to one of resisting arrest.

V V POLICE HC DUN CRI-2007-412-000061  7 May 2008

[5]      According to the appellant’s notice of appeal, the reason he pleaded guilty was because his legal counsel, Mr Westgate, had threatened to withdraw if he did not plead guilty, and at such short notice the appellant felt unable to carry on with the defended hearing on his own.

[6]      The charges arose from an incident when the police came across the appellant trading blows with another person.  It is common ground the police did not see how the fight started and, according to the appellant, he had been acting in self-defence: something which he said would be corroborated by another eye-witness.

[7]      On 28 August 2007, the appellant filed a notice of appeal.  He then received a letter from the Court dated 29 August 2007, advising:

I received your notice of appeal.   Unfortunately, an appeal is not the appropriate avenue as an appeal cannot be entered against conviction where the plea is guilty.

The appropriate way is to apply for a rehearing and file an affidavit setting out the reasons why the guilty plea should be vacated and the matter reheard. I strongly suggest you seek legal advice, either from a lawyer of your choice or through the Community Law Centre.

I will hold the appeal documents with your attached document should you need them.

[8]      Mr V   followed the advice in the letter and applied for a rehearing in the District Court.  That application for a rehearing was declined by the District Court on 19 September 2007 on grounds that the appellant had been represented by counsel, there was no miscarriage of justice, it was not in the interests of justice to grant the rehearing and no affidavit had been filed.

[9]      Mr V   then appealed the rehearing decision.  However, this Court has no jurisdiction to hear an appeal from a rehearing decision, and in a judgment dated 6 December 2007 Baragwanath J dismissed the appeal for want of jurisdiction. In his decision, Baragwanath J records that the advice given to Mr V   in the letter from the Court was wrong and that an appeal against conviction had in fact been open to him, notwithstanding the guilty plea.   By that time, of course, the appeal was well out of time.

[10]     Paragraph [8] of Baragwanath J’s judgment states:

It will now be for Mr V   to consider whether, despite the height of the hurdles he must encounter, he will wish to apply for leave to appeal out of time.  Any such application must be supported by evidence which in the ordinary way would include an affidavit from Mr V   himself and any witness or witnesses upon whom he wishes to rely.

[11]     Mr V   then filed two notices of appeal: one against the conviction and the other seeking leave to appeal out of time.  He did not file an affidavit.

[12]     However notwithstanding the absence of an affidavit, I am prepared to grant leave to appeal out of time, and to consider the appeal on its merits.  In my view, it would be unjust were I not to do so, because Mr V   was misled about his rights by the Court registry.

[13]     I now turn to consider the appeal on its merits.

[14]     When Mr V   filed his second set of appeal notices, he also waived solicitor/client privilege so the Court now has the benefit of an affidavit from Mr Westgate.   It appears from Mr Westgate’s affidavit that by pleading guilty, the appellant received the benefit of a plea bargain.  Mr Westgate states:

2.        After taking instructions from Mr V   and considering the evidence against him it was my opinion that apart from any other charges Mr V   was very likely to be convicted of attempting to escape lawful custody.  That is of course a serious charge and was of primary concern to me.

3.        After discussing the matter further with Mr V   on the morning of the defended hearing I confirm my legal advice to him that he was highly likely to be convicted of the attempting to escape lawful custody charge.  At that time I also entered into without prejudice discussions with the Police Prosecutor, and determined that the matter could be resolved very favourably for Mr V  . Mr V   however refused to accept my legal advice, and after further discussions I informed him that I was not prepared to act for him any further in respect of this matter.

4.        Subsequently the matter was called before the District Court Judge, and the Judge was made aware of my position. Mr V   made it very clear that he would defend himself, however after further discussions with Mr V   myself, he agreed to guilty pleas being entered to a substantially reduced charge in place of the attempting to escape custody, together with other minor charges.

5.        Mr  V    has  said  that  he  was  caught  by  surprise,  and doubted his ability to effectively defend himself in the Dunedin District Court on such little notice.  There was no pressure put on Mr V  , and in the circumstances it was his decision to proceed as a result of discussions with myself and a District Court Judge.  If Mr V   had not wanted to plead guilty he could have requested a remand and that option was made available to him.

[15]    At the hearing before me, Mr V   did not take issue with Mr Westgate’s affidavit.   He told me Mr Westgate convinced him at the time that pleading guilty was the better option.  However, in hindsight, Mr V   said he came to regret that decision and hence the wish to file the appeal.

[16]     The principles which the Court must apply in considering an appeal against conviction following a guilty plea are conveniently summarised in the Court of Appeal decision of R v Le Page [2005] 2 NZLR 845. In that case, the Court stated at [16]:

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.

[17]     In the decision, the Court then goes on to identify three categories of cases where a miscarriage of justice will be indicated.

[18]     Having carefully considered all the circumstances in this case, including the transcript of what happened that day in the District Court, I am satisfied that this case is a situation where the appellant made an informed decision to plead guilty at the time, and that none of the three categories identified by the Court of Appeal are applicable.

[19]     The appeal is therefore dismissed, and the convictions confirmed.

Solicitors:

Copy to: Appellant

Crown Solicitor, Dunedin