W v R HC Whangarei CRI 2007-488-8

[2007] NZHC 421

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-488-8

W

Applicant

v

THE QUEEN

Respondent

Hearing:         2 May 2007

Appearances: R Bowden for applicant

M Smith & A L Hyndman for respondent

Judgment:      2 May 2007

Reasons:        3 May 2007

JUDGMENT OF WINKELMANN J

R Bowden, Barrister, Whangarei

Crown Solicitor, Whangarei

W V R HC WHA CRI 2007-488-8  2 May 2007

[1]      Mr W   makes application for leave pursuant to s 169 of the Summary proceedings Act 1957 to vacate guilty pleas in respect of the following charges:

06011004244            Assault Edward Waetford with weapon

06011004245            Assault Louisa Spraggon

06011004247            Assault Louisa Spraggon with weapon

06011004252            Intentional damage with television

06011004256            Male assault female, Roanna Isaacs

06011004257            Burglary

[2]      Mr W   pleaded guilty during the course of a depositions hearing in respect of the charges against himself and other co-accused arising out of the same incident.  The grounds upon which he makes application for leave to vacate guilty pleas are:

(1) That he has a defence to the charges to which he has pleaded guilty.

(2) At the time he entered his plea, he was subject to pressure to plead guilty by reason of an opportunity being  offered  to  the  group  of defendants  that  they  could  plead  guilty  to  reduced  and  altered charges.

[3]      Mr W   has filed an affidavit setting out his account of the incident which forms the basis of the charges.    He says  in very  broad terms that  when walking along Cranley Street, Dargaville he saw a crowd of people on the porch of a house.   He recognised his brother there and saw an object come out of the crowd which hit his brother on the head.  His brother fell and rolled down the steps.   He rushed into the property to assist his brother and a scuffle ensued.  It is his account that he was rendered temporarily unconscious and when he came to he was inside the house, under attack from the occupants of the house.  He then took steps to defend himself.

[4]      Mr  W   says that  the actions he took which  form the  basis  of the informations were taken in self-defence and in defence of his brother.  He therefore has defences under s 48 of the Crimes Act 1961.

[5]      The  summary  of  facts  in  respect  of  which  he  entered  his  guilty  pleas describes Mr W   attacking the complainants Spraggon, Waetford and Isaacs, and doing considerable damage to the house in Cranley Street before stealing beer as he exited the house.

[6]      It is accepted that in general Mr W  ’s account does not match that of the complainants who gave evidence at depositions.  However, his counsel submits that there was evidence at depositions that prior to the entry of Mr W   into the altercation, his brother Matiu was kneed in the head and fell down in the area of the steps.   It is submitted that this at least tends to support Mr W  ’s account of events.

[7]      It is argued for Mr W   that the application should be allowed because there is a good defence to the charges, and Mr W   has provided an explanation for  why  the  plea  was  entered.    It  is  submitted  that  during  the  course  of  the depositions hearing a difficult situation arose and one which would have placed pressure on the applicant, namely the opportunity for the defendants to take a “bulk plea”.  Although there were undoubtedly advantages for some defendants in such an approach, it is submitted that Mr W  , in the face of this opportunity, simply put his head down in the light of the pleas of his co-defendants.   No criticism is made of the counsel representing Mr W   at the depositions hearing.

[8]      Counsel for the Crown does not oppose the application, but makes clear that this lack of opposition is in the light of the authorities to the effect that prior to sentence the Courts are more willing to entertain applications to vacate pleas.  The Crown does not challenge Mr W  ’s account that he felt pressured to enter the plea, because the opportunity of reduced charges was offered to the group of defendants and had to be taken by all of them.

Relevant principles

[9]      Section 169 of the Summary Proceedings provides:

No objection on any ground whatever shall be taken to any information to which  the  defendant  has  pleaded  guilty,  and  the  defendant  shall  not afterwards be allowed to withdraw the plea except with the leave of a Judge of the [High Court].

[10]     In  R  v  Ripia  [1985] 1 NZLR 122, the Court of Appeal discussed the jurisdiction of the Court to permit the withdrawal of a guilty plea. At [126] the Court endorsed the statement of Hardie Boys J in R v Turrall [1968] NZLR 312, in which case a change of plea was allowed in the High Court on the broad footing that the ends of justice required it. The Court of Appeal quoted the comments of Hardie Boys J at [313] (at 127 in the Court of Appeal decision):

This Court should be the fountain  of justice and ensure that  no  man is wrongfully convicted even if it is his own foolish act that has brought the situation about.

[11]     In Kihi v R (CA393/03, 19 April 2004) the Court of Appeal said:

In R v Ripia (1984) 1 CRNZ 145, 150, this court confirmed that an appeal against conviction after a guilty plea would only be permitted in exceptional circumstances but observed that where there is an appeal based on a refusal in the High Court to allow a change of plea, the grounds upon the which the court proceeds are not so restricted.

Where application is  made in the High Court  to withdraw a  guilty plea before sentence, the touchstone is whether the interests of justice require leave to be granted:  Ripia at 150 and R v Turrall [1968] NZLR 312, 313. Although the discretion is not lightly exercised, several particular grounds (not intended to be exhaustive) have been recognised at least since R v Le Comte [1952] NZLR 564 as justifying the grant of leave:

[12]     Where the accused has been represented by experienced counsel it is difficult for him to discharge the burden on him to make out grounds for leave (R v Stretch [1982] 1 NZLR 225.

[13]     Mr W   was represented by experienced counsel.  His counsel has filed an affidavit  in which he makes clear that  he was not  aware of any pressure on

Mr W   to plead guilty, and Mr W   concedes that no pressure came from his counsel.  That does not contradict Mr W  ’s account that he felt pressure to plead guilty because that would be advantageous to other defendants.

[14]     Pressure created by a desire to assist others, which leads to a guilty plea, can form the basis for the grant of leave to vacate a guilty plea (R v Turrall [1968] NZLR

312).

[15]     On the unchallenged evidence of Mr W  , I am satisfied that there was pressure on Mr W   to plead guilty, created by the particular circumstances.  I am also satisfied that the applicant has some basis for a defence.   Leave to vacate guilty pleas should be granted to avoid the risk of a wrongful conviction.

[16]     Accordingly,  the  application  for  leave  to  vacate  guilty  pleas  is  granted. Mr W   is later appearing today before this court, and will be remanded to the Dargaville District Court at that time.

Winkelmann J