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

[2007] NZHC 1400

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2007-412-61

V

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 December 2007

Counsel:         Appellant in person

M J Grills for Respondent

Judgment:      6 December 2007

ORAL JUDGMENT OF BARAGWANATH J

Solicitors:

Wilkinson Adams, Dunedin

Copy to:

Mr T L V

V V NEW ZEALAND POLICE HC DUN CRI-2007-412-61 6 December 2007

[1]      Mr V    pleaded  guilty  in  the  District Court  to  three  summary charges, one of fighting in a public place, a second of attempting to escape custody, and a third of failure to answer District Court bail.

[2]      At the time of his plea of guilty Mr V   was in receipt of the advice of  Mr Westgate of  counsel  who,  Mr  V   says,  had  sought  to  withdraw because up to that point Mr V   had refused to plead guilty.  Mr V   then changed his plea to guilty, was convicted and discharged.  Mr V   then applied for a rehearing to vacate his guilty plea.  That application was declined on

19 September 2007 by Judge O’Driscoll on the grounds that Mr V   was represented by counsel, there was no miscarriage of justice, and the interests of justice did not require a rehearing.  There had been no affidavit from Mr V   or counsel in support of the application.

[3]      By letter received in this Court on 20 November 2007 Mr V   stated that he sought to appeal against Judge O’Driscoll’s decision.  The letter asserted:

a)       that Mr V   had been caught by surprise by what he described as a sudden change in Mr Westgate’s position in relation to the advice to plead guilty and that doubted his personal ability to defend himself effectively;

b)that Mr V   was defending himself against an intoxicated, aggressive male who advanced upon him with fists flying and that he has a witness to the whole incident and strong evidence in his favour;

c)       that  the  reason  that  an  affidavit  was  not  filed  that  he  was  now representing himself and had the understanding that a letter with his signature was sufficient to present before the Court.

[4]      In her submissions in opposition Ms Grills for the Crown cited the decision of the Court of Appeal in Police v Norman [1975] 1 NZLR 391. That decision upheld the leading judgment of Turner J in Tuohy v Police [1959] NZLR 865 which

had been argued by Messrs Chilwell for the appellant and Speight for the Crown and is a decision of high authority.   The law as settled in Tuohy and confirmed in Norman is that no appeal lies from a refusal to grant a rehearing.   The argument articulated by Sir Alexander Turner is that to have access to the right of general appeal given by s 115 of the Summary Proceedings Act 1957 the appellant must show that the order he complains of was made “on the determination of any information or complaint”.   That determination had been made at an earlier point when the conviction was entered following the plea of guilty.  As Turner J observed s 115 gave the appellant a right of appeal against that determination.  A refusal of an application does not entail any “determination of the information”, but rather making a decision upon a new substantive application (for a rehearing).

[5]      It follows that the present application must be and is dismissed.

[6]      But as Crown counsel fairly acknowledged in her written submissions and is mentioned in passing in Tuohy, and spelt out by the Court of Appeal in R v Stretch [1982] 1 NZLR 225 at 229, there is the logical possibility of applying for leave to appeal out of time. Mr V had been given advice conveyed from another High Court registry that an appeal is not the appropriate avenue to vacate a guilty plea. There is much common-sense in that observation. But the true position is that stated by Cooke J in Stretch at 229:

…in very exceptional cases, and only in such cases, an appeal against conviction can succeed after a plea of guilty.  The authorities were collected in an article by Alec Samuels in [1962] Crim LR 806 (which includes the statement “a defendant who was represented is  virtually precluded from advancing such a contention”) and by T. A. Gresson J in Udy v Police [1964] NZLR 235...

After considering a good deal of authority Lord Cooke concluded:

There may be cases where a line of defence is sufficiently tenable to call for a fuller and more explicit explanation to the accused by counsel than seems to have occurred in the present case.  We do not say that a miscarriage of justice can never be established on such a ground.  But when the accused has the advice of experienced counsel, such cases will be rare.  We are satisfied that  the  present is  not  one  of  those  rare  cases.    In  deciding  whether  a miscarriage of justice has been shown the Court should, in our view, look at all  the  circumstances.     Here  these  include  the  accused’s  own  strong inclination to plead guilty and the unanimous opinion of his professional advisers that the murder charge was unlikely to be successfully defended.

[7]      The appellant in that case had pleaded  guilty to a particularly gruesome murder and later sought to withdraw the plea on which his conviction had been based.  His submission followed the acquittal of one co-accused completely and of another  of  the  murder,  he  being  found  guilty  only  of  aggravated  robbery. The defence sought to be advanced was that the appellant was so intoxicated that he lacked  the  capacity to  form  an  intent  to  kill.    In accordance  with  the  common expectation in such cases, the appellant’s attempt in Stretch to reopen the matter was unsuccessful.

[8]      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.

[9]      A matter requiring particular thought is whether upon any such application Mr V   would elect to waive the privilege to which he is entitled in relation to withhold any evidence from his former counsel, Mr Westgate.  The Court has no authority to direct Mr V   to waive privilege.   Whether he does so is a matter purely for him to decide.  If he does waive privilege the Crown will be able to interview Mr Westgate and secure an affidavit from him as to the circumstances in which Mr V   came to plead guilty.  If Mr V   elects not to waive privilege it may be expected that the Crown will comment upon the fact that the privilege could have been waived and that by the decision of the appellant that information has been withheld from the Court.

[10]     That may present something of a dilemma but is a state of affairs requiring careful  consideration  if  an  application  for  leave  to  appeal  out  of  time  is contemplated.   It is not practicable to entertain any oral application for leave to appeal out of time today.  It is important that Mr V   have the opportunity to see the present remarks in type and be able to reflect upon them and conceivably take advice.

[11]     Today’s business is therefore concluded by the simple determination that, this

Court having no jurisdiction to entertain the appeal against the refusal to rehear the case, the appeal is dismissed.

W D Baragwanath J