W v Police HC New Plymouth CRI 2010-443-18

[2010] NZHC 1966

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2010-443-000018

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         11 November 2010

Appearances: No appearance by or on behalf of Appellant

A W M Britton for Respondent

Judgment:      11 November 2010

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, New Plymouth

W V POLICE HC NWP CRI 2010-443-000018  11 November 2010

[1]      On 16 July 2010 W  , after taking advice from the duty solicitor, entered  a  guilty plea  to  possessing  a  knife  on  7  March  2010  in  circumstances showing, on the face of it, an intent to commit an offence involving a threat of violence.

[2]      The Chief District Court Judge, as invited, convicted him and ordered him to come up for sentence if called upon within six months. The police withdrew, by leave, a related charge of threatening behaviour. Earlier, it appears, Mr W   had also been charged with yet other offences that by then had ceased to figure.

[3]      Mr W  , who represents himself, has appealed his conviction on the basis that he was entitled at common law to possess the knife to defend himself and his children in the face of an attempted aggravated robbery; that he was not given full disclosure; and that he was misled by the prosecution and pressured into entering a plea to a lesser possession offence to which he had a complete answer.

[4]      On 29 October 2010 the Registrar advised Mr W   of today's fixture. On 3

November 2010 she sent to him a formal notice of hearing. He has not appeared today. The Registrar contacted him after 10 am. He said he wished to abandon his appeal.

[5]      Ordinarily that would be an end of the matter. The appeal would be dismissed without more. However, Mr W   was right, I consider, to abandon his appeal and he should know the reasons why.

Context

[6]      On 16 July 2010, the day Mr W   entered his plea and was convicted of and sentenced for the possession offence, there was to be a hearing at which the police were to advance their case on both charges then extant. Mr Hannam, the duty solicitor, told the Chief District Court Judge he had seen Mr W   in that capacity, and an accommodation had been reached between Mr W   and the prosecuting sergeant.

[7]      Mr Hannam, on Mr W  's behalf, sought leave to vacate his plea of not guilty to the possession offence and the prosecuting sergeant sought leave to withdraw the threatening offence. Mr Hannam then advised the Judge that a suitable sanction on conviction had also been agreed in principle.

[8]      Mr Hannam invited the Judge to make an order requiring Mr W   to come up for sentence if called upon. The circumstances, he said, were not straight forward. The co-complainants had come to Mr W  's house to discuss a transaction the day before that had gone sour. No resolution was reached. Mr W   had demanded that they leave. They came further into the property. Mr W  , Mr Hannam said, then acted as alleged.

[9]      The statement of facts, as to which there was apparently no dispute, narrated that Mr W   removed from the back pocket of his pants a 12 inch knife, held it by his side, and said he was not afraid to use it. The statement also said that, when spoken to by the police, he admitted to taking out the knife but denied any threat. He did say that he and his family felt threatened.

[10]     The Chief Judge, relying on that narrative as he was entitled to do, entered the conviction appealed, granted leave for the threatening charge to be withdrawn, and imposed the sentence invited. The result was, he said, that if within the next six months Mr W   committed no further offence attracting more than three months imprisonment, that would be an end to it. If he did commit such an offence he might be re-sentenced.

Threshold issue

[11]     On this appeal the difficulty Mr W   faces is that he was convicted on his own plea, not as a result of any finding by the Chief District Court Judge that is open to be impugned on its merits, and it is only in very exceptional circumstances that an appeal against conviction after plea can succeed. As is shortly stated in Adams on

Criminal Law:[1]

[1] Adams on Criminal Law 385.17; see also Udy v Police [1964] NZLR 235 (CA) at 237, R v

Stretch [1982] 1 NZLR 225 (CA) at 229.

The general rule is that the Court will entertain an appeal from conviction following a plea of guilty only where there is evidence of a miscarriage of justice. Provided that the defendant fully appreciated his position and made an informed plea of guilty, the consequent conviction cannot be impugned.

Conclusions

[12]     Mr W   cannot have been, I consider, under any misapprehension when he entered his plea as to the nature of the offence he was admitting, or as to the basis in fact on which he was contended to have committed it, or as to the consequence if he changed his plea. On the face of the record he was aware of all three, following a discussion with the prosecuting sergeant, in which he had the benefit of the advice of the duty solicitor.

[13]     Nor can there be any question that on the face of the statement of facts, which Mr W   did not then dispute, the offence to which he pleaded had a complete foundation. Even on this appeal he has accepted, as the papers stand, that he had a knife in his possession and that he did remove it from his pocket. Whether he now resumes his denial that he made the threat he first denied, he seeks to contend he had a complete right to act as he did.

[14]     Mr  W    did  not  have  any  such  complete  right.  Self  defence  and  the defence of another does not, whether it is under s 48 of the Crimes Act 1961 or at common law, justify every use or threat of force. Issues of reasonableness arise and necessarily proportion. Mr W  's assertion that he was completely entitled to act as he did is unlikely to have been vindicated at any hearing.

[15]     I see no miscarriage of justice arising from the conviction entered on Mr W  's plea, nor do I see any disproportion in the sentence imposed. Indeed quite the contrary. For those reasons, as well as because Mr W   abandons it, his appeal

will be dismissed.

P.J. Keane J