Whichman v Police

[2012] NZHC 1164

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-424/425/427 [2012] NZHC 1164

GEORGE WHICHMAN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 May 2012

Appearances: P Eastwood for the appellant

W Fortherby for the respondent

Judgment:      28 May 2012

JUDGMENT OF CLIFFORD J

[1]      On 4 March 2011 Mr Whichman, having pleaded guilty, was sentenced by Judge Winter in the District Court at Manukau to a finite term of imprisonment of four years and three months on three “groups” of charges:

(a)      Group one - Charges of aggravated assault, driving while disqualified, unlawful possession of a firearm and unlawfully taking a motor vehicle.

(b)      Group two – possession of cannabis for supply and sale of cannabis.

(c)       Group three – two charges of burglary and one of theft.

WHICHMAN v POLICE HC AK CRI-2011-404-424/425/427 [28 May 2012]

[2]      Mr Whichman now applies for leave to appeal against both conviction and sentence.  In advancing this application, Mr Eastwood has indicated that the focus of an appeal, if leave is granted, is likely to be on sentence rather than on conviction. Be that as it may, leave is sought for both purposes.

[3]      Leave is required because a notice of appeal was not filed in the District Court at Manukau until either 21 June 2011 or 11 November 2011, in either case well out of time.

[4]      An  affidavit  provided  by  Mr Whichman’s  solicitor  at  the  time  of  his sentencing,  Mr  Clee,  confirms  that  before  the  28  day  period  had  expired Mr Whichman  left  instructions  on  Mr  Clee’s  telephone  to  appeal  his  sentence. Unfortunately, for a variety of reasons, Mr Clee did not action those instructions.  It would appear he may have been out of the country.   Mr Whichman subsequently endeavoured to file a notice of appeal directly in the Court of Appeal.  That was, as is clear, an ineffective exercise of any appeal right.  Ultimately, Mr Eastwood was assigned as legal aid counsel and by 11 November 2011, at the latest, had filed the necessary notice of appeal.

[5]      The  Crown  accepts  that  any  delay  in  this  matter  is  not  attributable  to Mr Whichman and that there is clear evidence of him having decided to appeal, at least his sentence, prior to the expiry of the statutory period, and having taken steps to instruct his lawyer to lodge that appeal.

[6]      In   these   circumstances,   and   although   I   acknowledge   Mr Fortherby’s submission for the Crown that the merits of Mr Whichman’s appeal do not look strong, I nevertheless consider it appropriate that leave be given to him.  I also grant leave as regards an appeal against both conviction and sentence.

[7]      As indicated by Brewer J in his minute of 4 May 2012, this appeal is now to be placed back in the call over list for management towards a hearing of the actual appeal.

“Clifford J”

Solicitors:

P Eastwood, Barrister, Auckland for the appellant ([email protected])
Meredith Connell, Auckland for the respondent ([email protected])