W v Police HC Auckland CRI 2007-404-342

[2008] NZHC 373

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-000342

W

Appellant

v

NEW ZEALAND  POLICE

Respondent

Hearing:         18 March 2008

Appearances: P Eastwood for the Appellant

E Harrison for the Respondent

Judgment:      20 March 2008 at 10:00AM

(RESERVED) JUDGMENT OF ANDREWS J [Appeal against Conviction]

This judgment was delivered by me on 20 March 2008 at 10am

pursuant to r 540(4) of the High Court Rules.

………………………………………..

Registrar/Deputy Registrar

Date:   ………………………………

Counsel:            P T Eastwood, PO Bo 4362, Shortland Street Auckland

Meredith Connell, PO Box 2213 Auckland

W V NZ POLICE HC AK CRI 2007-404-000342  20 March 2008

[1]      On  11  October  2007  the  appellant  was  convicted  and  discharged  in  the

District Court at Auckland on a charge of theft.  The circumstances were that on 3

June 2007 the appellant put petrol to the value of $73.62 into her car at a Gull Service Station in Wanganui.   The appellant accepts that she left without paying. She says this was inadvertent.

[2]      The following day the appellant was stopped just out of Taumarunui.   She was subsequently charged with theft and appeared in the Taumarunui District Court on 5 June 2007.  The Court record shows that she entered a plea of guilty.  She was remanded to appear in Auckland on 8 June 2007.

[3]      The appellant was further remanded on five occasions before being sentenced on 11 October 2007.  In an affidavit filed in support of the appeal the appellant says that on one of those occasions, on 31 July 2007, the presiding Judge, Judge Mathers, said that if confirmation were received that reparation had been paid, then the Police would withdraw the prosecution.  The appellant’s counsel put it a little differently in his written submissions, saying that the Judge said there would be a discharge, and the matter withdrawn, if payment of reparation were confirmed.

[4]      The  appellant  says  that  the  Police  Prosecutor  tried  that  day  to  get confirmation from the service station as to payment of reparation, but was not able to make contact.  Accordingly, the matter was remanded again.

[5]      The  appellant  appeared  before  Judge  Burns  in  the  District  Court  on  11

October 2007.  A letter was put before him to confirm payment of reparation.  The Judge noted that the letter was unsigned and contained spelling errors.  However, he went on to record that the appellant’s counsel subsequently confirmed that reparation had been paid.  The Judge accepted that advice.   Noting that the appellant had made a number of appearances, the Judge “in all the circumstances” entered a conviction and discharge.

[6]      In support of the appeal, Mr Eastwood argued that the appellant’s guilty plea was entered in the Taumarunui District Court simply to enable the matter to be transferred to Auckland, rather than as a genuine admission of guilt.  He submitted that the appellant should have applied to vacate the guilty plea once the matter was in Auckland, but did not do so because of the indication that the charge would be withdrawn.  I note that the appellant does not say this in her affidavit.

[7]      Mr  Eastwood  also  submitted  that  once  confirmation  of  the  reparation payment was given to the Judge on 11 October 2007, the appellant should have been discharged, without conviction.     He based this argument on his submission that there had been a sentencing indication, and once an indication is given it must be followed  by  the  sentencing  Judge,  or  the  defendant  given  an  opportunity  to

reconsider the position and withdraw or confirm the guilty plea.   See R v Gemmell1

and R v Edwards2.

Was there an indication of a discharge without conviction, or withdrawal of charge?

[8]      In order to decide this appeal I must first consider what, if anything, was said to the appellant when she appeared on 31 July 2007, so as to lead her to believe that if she paid reparation she would escape a conviction – whether by the Prosecution withdrawing the charge or by the sentencing Judge discharging her without conviction.

[9]      The Court records make no reference either to a sentence indication, or to the Prosecution indicating a readiness to withdraw the charge on proof of payment of reparation.  Judge Mathers’ record for 31 July 2007 is:

RBTC [remanded bail to continue] 14.8.07 10.00 for Police to ascertain if reparation paid.

1   R v Gemmell [2000] 1 NZLR 695 (CA)

2   R v Edwards (2000) 17 CRNZ 604 (CA)

[10]     A transcript of the sentencing hearing on 11 October 2007 is on the Court’s file.  The following exchanges are included in the transcript:

Mr Eastwood:  Well her position is that she was optimistic that the charge would be withdrawn if she made reparation, she says that was suggested.

The Court:  It certainly is noted on the same date that it was put off until 26

June at 2.15 for her to pay reparation.   There appears to be no indication recorded.

Mr Eastwood:   I do have a letter which she says comes from the service station,  it’s  unsigned.    …  [the  appellant’s]  adamant  she  would  like  a discharge without conviction in relation to this theft matter.  I don’t know what the position of the Police is.

Sgt. Kitto:  She has four pages of history Sir, it’s not one of those things that

I would even entertain for this sort of charge.

…

Mr Eastwood:  I don’t want to be difficult but she’s now unhappy with this guilty plea.  I mean –

The Court:    You’ll have to make a written application for a re-hearing in that case.

[11]     Sentencing was stood down to 2:15pm on 11 October, to enable the appellant to obtain proof of reparation.  The following response from the appellant is recorded, following a question from the Judge as to whether or not she had any explanation as to why the letter she had produced was not signed:

Defendant:  No I don’t, but I just want to tell you how it happened, how I entered a guilty plea when I was first apprehended in Taumarunui … I was first apprehended on that charge for the drive-off and this was an honest mistake and I pled guilty down Taumarunui because otherwise I’d have to go back to Wanganui Court so I pled guilty with the intention to revoke it back in Auckland.  Soon as I got back to Auckland I write an apology letter which I gave the Judge a copy of and my lawyer a copy of and I sent reparation a cheque from my Mum straightaway.  I come into court and I ask to revoke the guilty plea the Judge said bring us proof of evidence that you paid and the prosecution who was a lady at the time, wouldn’t consider withdrawing it.  …

[12]     In her affidavit sworn on 14 March l2008 the appellant said:

6.I appeared on 31 July 2007 and I was represented by counsel, Peter Eastwood in relation to this matter at the Auckland District Court before a lady Judge … and a woman prosecutor whom I am advised by my lawyer was a Miss Fulton representing the Police.

7.The theft matter was raised and it was my recollection that the Judge said if she was to receive confirmation that reparation had been paid then the Police would withdraw the matter.  It is my recollection that this met with the approval of the woman prosecutor.  …

[13]     A draft affidavit by the Police Prosecutor, Ms Fulton, was before me at the appeal hearing.  I was advised that it had been prepared by Ms Fulton after receiving the appellant’s affidavit of 14 March, but Ms Fulton had been unwell and unable to swear it in time for the appeal hearing.  The draft was accepted on Ms Harrison’s undertaking to file and serve the sworn affidavit by Wednesday 19 March.   Mr Eastwood was content with that course of action.  Ms Fulton’s affidavit sworn on 18

March 2008 was filed.

[14]      Ms Fulton says:

1.I was the Police Prosecutor in this matter when it was called before Her Honour Judge Mathers in the Auckland District Court on the morning of 31 July 2007.

2.I  do  not  recall  agreeing  to  withdraw  the  matter  upon  proof  of reparation.

3.Nor do I recall that Her Honour Judge Mathers gave a sentence indication in this matter.

4.It  is  my  usual  practice  to  record  on  the  Police  Prosecutor’s prosecution cover sheet when a sentence indication is given.  I have not made such a record on the prosecution cover sheet, which is annexed hereto and marked “A”.

5.I do recall that the matter was stood down to 2:15pm on 31 July 207 in order for me to ascertain if reparation had been paid.

6.I was not able to ascertain if reparation had been paid by 2:15pm that day.  Accordingly the matter was remanded in order for proof of reparation to be obtained.

7.Given Ms W  ’s criminal history, which is annexed hereto and marked “B”, I do not think that I would have agreed to withdraw the theft   charge   or   supported   an   indication   that   Ms   W     be discharged without conviction upon proof of reparation.

[15]     On the evidence before me, I am not satisfied either that Judge Mathers gave an indication of a discharge without conviction on 31 July 2007, or that the Police Prosecutor indicated that the prosecution would be withdrawn, in both cases, on proof of a reparation payment.  Accordingly, I am not required to consider whether

the conviction and discharge imposed by Judge Burns on 11 October 2007 amounted to a miscarriage of justice.

[16]     Nor am I required to consider whether, had the Prosecutor indicated that the charge would be withdrawn, then failed to withdraw the charge on proof of a reparation payment, that would constitute a miscarriage of justice that would require the conviction to be quashed.   The Court of Appeal in Gemmell3 and Edwards4 was considering only judicial sentence indications.    Mr Eastwood did not point to any other authority for his submission that the Court could intervene in the prosecutorial discretion in such a manner.

[17]     Mr Eastwood then submitted that even if I were to find that there was no sentence indication and no indication that the charge would be withdrawn, I should nonetheless quash the conviction on the basis that the appellant genuinely believed that the outcome, if she produced proof of a reparation payment, would be that she would not be convicted.   He submitted that in the light of the appellant’s misapprehension, it would be unfair for the conviction to stand.

[18]     Mr  Eastwood  did  not  produce  any authority  for  his  submission  that  the appellant’s misapprehension constituted a miscarriage of justice, that would justify quashing the conviction.

[19]     In the present case, I am in no doubt that it could not.   As stated by the appellant in her affidavit, she was represented by counsel both before Judge Mathers and before Judge Burns.   The appellant’s understanding of the situation was something for counsel to clarify at the time.  It is evident from the transcript of the sentencing hearing that the appellant’s understanding was before the Court, and the option of seeking to vacate the guilty plea was raised by the sentencing Judge.  That option was not taken.  The Judge went on, after being satisfied that reparation had been paid, to impose a conviction and discharge.

3   See fn 1

4   See fn 2

Result

[20]     The appeal against conviction is dismissed.

Andrews   J