Warren v R
[2016] NZCA 108
•11 April 2016 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA125/2015 CA312/2015 [2016] NZCA 108 |
| BETWEEN | VINCENT KERRY WARREN |
| AND | THE QUEEN |
| Hearing: | 16 February 2016 |
Court: | Stevens, Ellis and Simon France JJ |
Counsel: | Applicant in Person |
Judgment: | 11 April 2016 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application in CA312/2015 to appeal a decision of the High Court confirming the abandonment by Mr Warren of his High Court appeal is dismissed for lack of jurisdiction.
BThe application in CA125/2015 for leave to bring a second appeal is dismissed.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
This judgment addresses two separate applications by Mr Warren for leave to further appeal convictions. Both sets of convictions involve the same complainant with the core allegation that Mr Warren had been harassing her, and more latterly, making threats against her.
In 2010 Mr Warren was charged with harassment and misuse of a telephone. He pleaded guilty and was sentenced but since then has been seeking to re-litigate the matter. He initially appealed both conviction and sentence, but then abandoned the conviction appeal. That was in 2012. In 2015 he unsuccessfully sought to have the abandoned appeal reinstated. The first application relates to that refusal.
In 2014 Mr Warren defended two new charges of harassment, and one of threatening to kill. He was convicted after a Judge‑alone trial and appealed in the normal way to the High Court. Although successful in relation to a sentence appeal, Mr Warren was unsuccessful on his conviction appeal. He now seeks leave under s 237 of the Criminal Procedure Act 2011 to bring a second appeal.
We address each application in turn.
Application arising from the 2010 convictions
Background
On 3 August 2010 Mr Warren pleaded guilty in the Christchurch District Court to two charges – one of harassment contrary to s 8(1)(b) of the Harassment Act 1997, and one of misusing a telephone contrary to s 112(1) of the Telecommunications Act 2001.
In late 2009 and the early part of 2010, Mr Warren attended a commercial driving course. He became infatuated with the female driving instructor and began contacting her via text message. He then moved on to intercepting the complainant outside her place of work, and following her to various locations around town. Mr Warren obtained her home telephone number and sought to contact her there and left messages. On one occasion eggs were thrown at her property.
Although he initially denied the charges, Mr Warren entered guilty pleas after taking legal advice. The following day he also agreed to the issuing of a restraining order. Mr Warren was represented by counsel at the District Court sentencing before Judge MacAskill. Although the Judge had some misgivings about the leniency of the sentence, he accepted counsel’s submissions and imposed a sentence of 250 hours’ community work.[1]
[1]New Zealand Police v Warren DC Christchurch CRI‑2010‑009‑10821, 20 October 2010.
The Judge was also concerned about protection of the victim but gave Mr Warren credit for his guilty pleas. The Judge said:
[4] I have seriously considered whether a more serious sentence should be imposed. I think that such a sentence might be justified and certainly sentences of imprisonment have been imposed for offending of this kind. However, you have been compliant with a restraining order and have indicated that you intend to continue doing so. Despite your fixation with the victim in the past, I am prepared to accept that you now seem to have reached the point where you are unlikely to be of further trouble to her.
Mr Warren afterwards decided that he wished to appeal. His dissatisfaction seems to have been sourced in what he believed were errors in the summary of facts, and errors and deliberate omissions in the victim impact statement and affidavits sworn by the complainant in support of the restraining order. He also considered there had been non-disclosure by the Police.
For reasons that are not clear at this stage, Mr Warren’s appeal took a long time to file and was only lodged on 10 September 2012. The appeal was against both conviction and sentence and came before Chisholm J in the High Court. His Honour’s judgment records that Mr Warren advised he wanted to appeal the sentence, being concerned about the weight attached to what he says was a flawed victim impact statement. He also took issue with some aspects of the statement of facts. Chisholm J dismissed the sentence appeal noting that none of the matters raised established the possibility that the sentence was manifestly excessive. The conviction appeal was formally abandoned.[2]
[2]Warren v New Zealand Police [2012] NZHC 2656.
Mr Warren continued to be dissatisfied about the outcome of his case. He applied for the Royal Prerogative of Mercy claiming to have suffered a miscarriage of justice but was unsuccessful, in part because he was considered not to have exhausted all legal options. Mr Warren therefore returned to the District Court and sought a rehearing. The application was declined on the papers by the original sentencing Judge.[3]
[3]New Zealand Police v Warren [2015] NZDC 1666.
Seemingly concurrently with this application for a rehearing, Mr Warren applied to the High Court for reinstatement of the conviction appeal he had abandoned before Chisholm J. Gendall J accepted there was inherent jurisdiction to allow such an application but declined it. No basis had been made out to justify reinstatement of the appeal.[4]
[4]Warren v New Zealand Police [2015] NZHC 251.
For completeness, Gendall J went on to consider the merits of any appeal if it were reinstated. Noting it would be an appeal against a conviction entered following a guilty plea, his Honour considered none of the recognised bases were made out.[5] Accordingly any appeal would fail. When making these decisions, Gendall J had available to him Mr Warren’s letter seeking to have the appeal reinstated and the original file. He did not have all the further material Mr Warren wished to file in support of his application, which have now been lodged in this Court.
[5]At [16].
The next proceeding to occur was an appeal to the High Court against the refusal by the District Court to direct a rehearing of the original District Court matter. Gendall J declined this appeal for the same reasons as expressed in his judgment declining reinstatement of the abandoned appeal.[6] Undeterred, Mr Warren filed a further appeal in the High Court. Gendall J treated this as an application for leave to appeal to the Court of Appeal against his Honour’s two previous decisions. The application was declined on the basis that there was no merit in it.[7]
[6]Warren v New Zealand Police [2015] NZHC 665.
[7]Warren v New Zealand Police [2015] NZHC 1003.
Mr Warren now applies to this Court for leave to pursue the question of reinstating the abandoned appeal.
Analysis
The law is clear that no jurisdiction exists to entertain this application. The same situation arose Palmer v R, although there the abandoned appeal was in this Court and Mr Palmer was seeking leave of the Supreme Court.[8] The Supreme Court observed:[9]
… When the Court of Appeal refused to permit [the appellant] to withdraw his abandonment or, more accurately, refused to regard the abandonment as a nullity, it was not making a decision on appeal under s 383 of the Crimes Act. It was determining that no such appeal was extant. Unless the abandonment had been found to be a nullity, there was no appeal under s 383 in respect of which the Court of Appeal could have made a decision under that section.
[8]Palmer v R SC CRI 13/2004, 12 October 2004.
[9]At [3].
It follows that s 144 of the Summary Proceedings Act 1957 cannot be invoked because there is no relevant decision by the High Court on appeal. Rather, there is simply confirmation that no appeal exists.
Mr Warren’s complaint concerning the lack of information available to the High Court when making its decision does not alter the situation. The High Court can be asked to look again at the matter with the advantage of all the material. In saying that we should not be taken as encouraging such an application. Nor do we comment on what response the High Court should make. Rather, we are observing that this concern of Mr Warren cannot alter the fact that the Court of Appeal does not have jurisdiction to hear any appeal from the decision that the abandonment is operative. It is not a decision that is susceptible to appeal. That is the effect of the decision of the Supreme Court in Palmer.
For completeness we record that the High Court ruling of Gendall J also considered whether Mr Warren might be allowed to appeal the District Court decision to refuse a rehearing. It was settled in Tuohy v Police, and has been consistently applied since, that no appeal lies from a decision to decline a rehearing.[10] It follows that there was no jurisdiction in the High Court to consider the matter, and nor can there be any in this Court.
[10]Tuohy v Police [1959] NZLR 865; and R v Kerr CA486/05, 11 July 2006.
Mr Warren’s application for leave to appeal the decision of the High Court declining to treat his abandonment of the conviction appeal as a nullity must therefore be dismissed for lack of jurisdiction.
However, because of the considerable time and effort Mr Warren has invested in the matter, we consider it proper to observe that from our consideration of all material, there is no legal merit in his efforts to challenge the conviction based on his guilty plea. It is apparent that Mr Warren had legal advice five days prior to pleading guilty, and that his lawyers attended with him when he entered the pleas.[11]
[11]Applying R v Merrilees [2009] NZCA 59 at [34].
Mr Warren’s claim of non‑disclosure prior to pleading guilty is, contrary to his submission, not established by a letter sent to him by his lawyers. That letter, which was written after the plea, provides Mr Warren with copies of certain documents – the summary of facts, the victim impact statement, and what is described as “full disclosure” of the police file. The letter does not support the inference that Mr Warren had not seen or had access to this material beforehand. It is inconceivable that his legal advisers would advise him about the plea and his options without access to the summary of facts. We also record that his lawyers state in the letter:
We acknowledge your advice that you wished to enter guilty pleas to the charges because you did not want to go through the Court system or to cause [the complainant] any grief as a result of the charges being defended.
A conclusion that it was an informed decision to plead guilty is irresistible.
The other alleged instances of non‑disclosure, and the alleged errors in the victim impact statement, could only go to sentence. On the basis of the material filed in this Court, Mr Warren’s situation falls well short of coming within any of the bases on which an appellant would be allowed to withdraw a guilty plea.[12] As for sentence, Chisholm J’s decision on the appeal explains why any such appeal could not succeed. It was a lenient sentence, and debates about minor peripheral points do not avoid that characterisation.
Application concerning 2014 convictions
Background
[12]See R v Le Page [2005] 2 NZLR 845 (CA) at [16]-[19]; and Watts v R [2011] NZCA 41 at [20]-[22].
On 23 June 2014 Mr Warren stood trial in the Christchurch District Court on two further charges of harassment, and one of threatening to kill. The charges involved the same complainant. Mr Warren represented himself. An amicus curiae was appointed.
One of the prosecution witnesses was a man who had shared a cell with Mr Warren when Mr Warren was on remand in relation to the harassment charges. This witness gave evidence of conversations he had in jail with Mr Warren during which Mr Warren said he would do various things to the complainant upon his release. It was this evidence that the threatening to kill charge was based on.
Judge Garland gave judgment on 27 June 2014 convicting Mr Warren on all three charges.[13] Considerable time was spent in the judgment on the evidence of the former inmate, with full reasons given as to why the Judge accepted the credibility and reliability of the evidence.
[13]New Zealand Police v Warren DC Christchurch CRI‑2013‑009‑6828, 27 June 2014.
Mr Warren appealed his conviction and sentence. He was represented on the appeal by counsel. The sentence appeal was allowed, with a reduction in sentence from five years’ imprisonment to three years, six months’ imprisonment. The minimum period of imprisonment aspect was adjusted proportionately. The conviction appeal was dismissed.[14]
[14]Warren v New Zealand Police [2015] NZHC 136.
The focus of the conviction appeal was on the reliability of the inmate witness. The appeal effectively sought a different assessment of the witness from that reached in the District Court. The High Court reviewed the evidence at some length but saw no basis to differ.
Mr Warren now seeks leave to further appeal the matter to this Court pursuant to s 237 of the Criminal Procedure Act 2011. The appropriate approach to such applications has been outlined by this Court in McAllister v R[15] and Hohipa v R,[16] and need not be repeated here.
Analysis
[15]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
[16]Hohipa v R [2015] NZCA 73.
There is no question of general or public importance arising. The application invites this court to revisit concurrent findings of fact and in circumstances where the advantages of the trial Judge are manifest. Nor does there emerge any concern that a miscarriage of justice may have occurred. Mr Warren is concerned about the dates on which the exchanges between he and the inmate were said to have occurred, and says that in fact he and the witness were not together at that time. There is no proper evidence before the Court concerning this, but in any event there is no dispute the two men did share a cell at various points. The issue was raised at trial and does not merit further inquiry.
Mr Warren also wants to put in issue the lack of disclosure he received about the cellmate witness prior to the witness testifying. He says he only knew what he knew from sharing a cell with him and was given no background information such as his criminal record. There are difficulties with advancing this proposition at this stage of the proceeding. First, there is no evidence advanced to suggest disclosure would have made any difference. Second, it was not a matter raised on the appeal. In those circumstances there is no basis on which the Court could grant leave for a further appeal. We finally observe we see no suggestion of a miscarriage of justice having occurred such as might necessitate a further appeal.
Conclusion
The application in CA312/2015 to appeal a decision of the High Court confirming the abandonment by Mr Warren of his High Court appeal is dismissed for lack of jurisdiction.
The application in CA125/2015 for leave to bring a second appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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