Warren v Police

[2015] NZHC 251

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000060 [2015] NZHC 251

BETWEEN

VINCENT WARREN

Applicant

AND

NEW ZEALAND POLICE Respondent

Judgment:                23 February 2015

JUDGMENT OF GENDALL J (Dealt with on the papers)

[1]      On 20 October 2010,  having pleaded guilty to charges of harassment under the Harassment Act 1997 and using language with the intention of offending the recipient under the Telecommunications Act 2001, the applicant (Mr Warren) was sentenced in the District Court to 250 hours of community work.   At the time, Mr Warren was represented by counsel.

[2]      On 10 September 2012, Mr Warren gave notice that he wished to appeal his sentence. When queried as to why he wished to appeal a conviction to which he had pleaded guilty, he responded that “he had completed his community work sentence.”

[3]      On 11 October 2012, Mr Warren’s appeal against conviction was heard by Chisholm J.1  Mr Warren at that point explained that while the appeal before the Court was an appeal against conviction, he actually wished to pursue an appeal against sentence. Chisholm J dismissed the appeal against sentence and the appeal against conviction was subsequently abandoned.

[4]      On  18 August 2014, Mr Warren applied for the Royal Prerogative of Mercy in the belief that he had suffered a miscarriage of justice. However, it seems he was

informed by Mr Niels Holm, the Official Secretary to the Governor-General, that his

1      Warren v New Zealand Police [2012] NZHC 2656.

WARREN v NEW ZEALAND POLICE [2015] NZHC 251 [23 February 2015]

application did not meet the requirements for consideration by the Governor-General because he had not exhausted all of his appeal rights.

[5]      Mr Holm informed Mr Warren that if he wanted to challenge his conviction that he should first consider his legal options in the courts. Mr Holm also informed Mr Warren that in some circumstances, where a person has abandoned an appeal to the High Court, the Court will consider reinstating the appeal.

Reinstatement of Abandoned Appeal

[6]      Now  it  seems  that  Mr Warren  wishes  to  reinstate  his  abandoned  appeal against his earlier conviction.   His letter to this Court dated 26 January 2015 and received on 30 January 2015 appears to say as much.

[7]      An abandonment of appeal is usually the finally termination of an appeal. However, it has been held that jurisdiction to re-open does exist “provided that special reasons for the exercise of that jurisdiction can be identified.”2

[8]      In Eschbank v Police,3 Tipping J adopted the test articulated by Lawson J in giving judgment of a five judge Court of Criminal Appeal:4

In our judgement the kernel of what has been described as the ‘nullity test’ is that the Court is satisfied that the abandonment was not the result of a deliberate  and  informed  decision,  in  other  words  that  the  mind  of  the applicant did not go with his act of abandonment.

[9]      Tipping J found however that the appellant failed to qualify on the basis that he made a deliberate, although misinformed, decision to abandon the appeal.5

[10]     In R v Bridgeman, the Court of Appeal considered abandonment of appeals under  the  Court  of  Appeal  (Criminal)  Rules  2001.6    In  determining  whether

2      Brown v R HC Hamilton CRI-2010-419-45 at [12].

3      Eschbank v Police (1989) 5 CRNZ 157.

4      R v Medway [1976] 1 All ER 527.

5      Eschbank v Police, above n 2, at 158.

6      R v Bridgeman CA87/04, 10 November 2005.

“exceptional circumstances” existed in order for a reinstatement to take place, the

Court of Appeal considered that it would have regard to:7

… the importance of finality in criminal cases, the circumstances in which the Notice of Abandonment was given, and the necessity for an applicant for such an order to satisfy the Court that the reasons for the application are of an exceptional nature.

[11]     The  applicant  Mr  Warren  in  this  present  case,  does  not  appear  to  have referred to any special circumstances as to why the appeal should be reinstated nor has he provided any evidence that the abandonment was not the result of a deliberate and informed decision.

[12]     Therefore,  it  follows  that  Mr  Warren’s  “application”  to  reinstate  the abandoned appeal must be dismissed.

Appeal Following a Guilty Plea

[13]     For completeness, I now turn to consider this aspect, in the event that I may

be wrong in dismissing Mr Warren’s “application” to reinstate his abandoned appeal.

[14]     The  general  rule  is  that  the  Court  will  only  entertain  an  appeal  against conviction following a guilty plea where there is evidence of a miscarriage of justice. If  a  defendant  had  made  an  informed  decision  to  plead  guilty  whilst  fully appreciating the merits of his position, the conviction could not be impugned.8

[15]     The Courts have accepted that a case may be brought on  the basis of a miscarriage of justice in a number of circumstances:

(a)      The plea was induced by a ruling based on a wrong decision of law e.g. a particular defence was not open to the defendant or that certain evidence was not admissible;

(b)The appellant did not appreciate the nature of the charge or did not intend to admit guilt to that charge. It will not be enough that the

7 At [9].

8      Udy v Police [1964] NZLR 235; R v Stretch [1982] 1 NZLR 225 (CA); R v Ripia [1985] 1

NZLR 122; (1984) 1 CRNZ 145 (CA).

defendant has simply made an error as to the consequences that would follow a guilty plea; and

(c)      On the facts, the appellant could not, in law, have been convicted of the offence charged. This may be because there was a legal bar such as a lack of jurisdiction in the Court or there is evidence to show that the defendant is not guilty.

[16]     The  applicant  has  provided  no  evidence  of  any  kind  here  to  support  a suggestion that a miscarriage of justice has occurred. Therefore, his appeal must also fail in this respect.

Conclusion

[17]     For all the reasons outlined above, I conclude that the outcome of the matter has been finally determined and Mr Warren has not provided any reason why this should  be  disturbed.     His  “application”  to  reinstate  his  abandoned  appeal  is dismissed.

...................................................

Gendall J

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to Applicant