Wayne Barry Church v Police

[2002] NZCA 163

IN THE COURT OF APPEAL OF NEW ZEALAND CA364/01

WAYNE BARRY CHURCH

V

POLICE

Coram:	Gault P Tipping J Anderson J
Counsel:	J W Watson for Appellant
A Markham for Crown
Judgment (on the papers):	15 July 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT P

1. This appeal against conviction has been heard on the papers at the request of counsel.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

History of the proceeding

1. This proceeding has had a rather tortuous history, which it is necessary to set out at some length.  The appellant was originally convicted and sentenced in the District Court at Whangerei on 2 May 2001 after pleading guilty to two charges of breaching a protection order, contrary to s49 Domestic Violence Act 1995.  On 16 May, the appellant appealed against both conviction and sentence.  On 28 August, however, counsel for the appellant wrote to the High Court in Whangarei, filing an application to vacate the appellant’s earlier guilty plea and indicating that the appeal would be abandoned.  In a minute of 5 September, Glazebrook J correctly identified that as the appellant had already been sentenced, the proper course was in fact to proceed by way of appeal.  There is no ability to vacate a plea of guilty after sentence under s42 Summary Proceedings Act 1957, which only applies before sentence.  The appellant could not rely on s169 of that Act either, as that section relates only to the preliminary hearing of indictable offences. Glazebrook J also recorded that counsel for the appellant, presumably informed of the statutory obstacles to his intended application, opted instead to continue with the appeal against conviction, to which Crown counsel had no objection.

2. The appeal was heard before Ronald Young J in the High Court.  The judgment prepared by Ronald Young J records that His Honour “took it that the Appellant did not wish to proceed with regard to the appeal against conviction”.  Whether the appeal was actually abandoned by the appellant is not clear.  The record shows that it was “formally dismiss[ed]”.  Ronald Young J did canvass the relevant law governing the appeal.  The Judge noted that the plea of guilty could not be withdrawn after conviction in the summary jurisdiction. At para [4] of his judgment, the learned Judge then observed that it was not possible to appeal against a conviction in these circumstances.  In dismissing the appeal, Ronald Young J observed that “as [he] understood it, counsel for the Appellant accepted that position”.  Unfortunately, notwithstanding any agreement between counsel and the bench to the contrary, the proposition is incorrect. Section 115 of the Summary Proceedings Act may support an appeal despite a plea of guilty in “exceptional circumstances”; see the situations discussed and authorities collected in Udy v Police [1964] NZLR 235. For other examples, see the decisions in Parlane v Police 15/6/98, Paterson J, HC Auckland AP274/97 and Lewitzki v Police 15/12/97, Penlington J, HC Hamilton AP117/97.

3. Having had the appeal against conviction dismissed by the High Court, the appellant applied in that Court for special leave to appeal to this Court under s144(1) Summary Proceedings Act.  Because the application was out of time, the appellant made a parallel application for an extension of time to make the special leave application.  The applications were heard by Harrison J. His Honour delivered a decision on 14 March 2002 that is problematic for its conflation of the appeal against conviction and the earlier attempt to vacate the plea of guilty.  The Judge recorded that he understood counsel for the appellant to accept that as Ronald Young J lacked jurisdiction to consider the application to vacate the plea, His Honour was “similarly disenfranchised”.  The problems of jurisdiction in entertaining an application to vacate the plea of guilty had already been canvassed by Glazebrook J and had convinced counsel for the appellant to drop such an application in September 2001, yet appeared to be treated by Harrison J as precluding the application for special leave to appeal.  Naturally, such problems had no relevance to the appeal proceedings then before the Court.

The present appeal

1. The appellant now applies to this Court for special leave to appeal under s144(3) of the Summary Proceedings Act.  In making this application, the appellant criticises both Ronald Young J and Harrison J for failing to deal with the appeal against conviction despite an intention to pursue the appeal being clear in written submissions to the High Court.  Ronald Young J is criticised for wrongly assuming that the appeal has been abandoned.  As the Crown points out, however, the appellant has not furnished this Court with any material that would shed light on the way the oral hearing proceeded, and accordingly whether the appeal was abandoned or not.  In the absence of such material, this Court cannot safely conclude that Ronald Young J was incorrect in disposing of the matter in the way he appeared to do.  If the appeal against conviction was thus never properly before Ronald Young J, he could not possibly have made any determination on it. His Honour’s remarks as to the availability of an appeal against conviction in the circumstances may have been in error, but they were superfluous to the proper disposition of an appeal if it had already been abandoned by counsel.  There is thus no identifiable “determination … on a question of law arising in any general appeal” made under s144 such as would found an application for leave to appeal to this Court.

2. It will be apparent from the foregoing discussion that despite the intercession of two different counsel for the appellant and three different judges of the High Court, the substance of the appellant’s complaint, namely that he felt he was forced by his original counsel into entering a plea of guilty to the two offences, has not yet been ventilated in a court of law. It will be equally apparent that in the present circumstances these concerns cannot be so ventilated in this Court.  The Crown submits that a “course remains open to the appellant” under s75 of the Summary Proceedings Act, which enables the making of applications for a rehearing in the District Court.  It may be thought, as the Crown appears to, that this is the most appropriate method of resolving the matter. Alternatively, if it is the case (despite Ronald Young J’s apparent indications to the contrary) that the appeal against conviction remains extant, it would be appropriate for that appeal now to be heard in the High Court.

Decision

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington