Whyte v Police - [2024] NZHC 3712

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2024-418-08

[2024] NZHC 3712

BETWEEN
RUTH NAOMI WHYTE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 November 2024

Appearances:

C J Lange for Appellant

B W D Alexander for Respondent

Judgment:

6 December 2024

REASONS JUDGMENT OF EATON J

(appeal against conviction)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WHYTE v POLICE [2024] NZHC 3712 [6 December 2024]

Introduction

[1] Ms Whyte faced charges of assault with a weapon1 and intentional damage.2 After initially pleading not guilty and having partly completed the Police Adult Diversion Scheme (diversion scheme), on 15 May 2024 her trial counsel sought an adjournment to allow Ms Whyte time to pay the $787 reparation required in order to complete the diversion process. Counsel vacated the not guilty pleas and entered guilty pleas on behalf of Ms Whyte. The adjournment was granted.

[2] On 10 July 2024, counsel then appearing for Ms Whyte (on agency instructions) made an oral application for a discharge without conviction. Judge Kellar declined the application, convicted Ms Whyte on both charges and ordered her to pay
$787 reparation.3 Ms Whyte appeals that decision.

[3] The appeal was heard on 28 November 2024. Mr Alexander for the Police acknowledged that a miscarriage of justice had occurred. He confirmed that the appellant remained eligible for diversion. I delivered a results decision allowing the appeal, setting aside the convictions, vacating Ms Whyte’s guilty pleas and remitting the proceeding to the District Court for Ms Whyte to be discharged under s 147 of the Criminal Procedure Act 2011 (the Act) following her successful completion of diversion. My reasons follow.

Allegations

[4] Ms Whyte and the complainant were known to each other through Ms Whyte’s partner. On 22 December 2023, Ms Whyte’s partner and child arrived at the family address. The complainant also arrived at the address. It is alleged that Ms Whyte became upset, picked up a metal bar and walked towards the complainant at the end of the driveway. After a brief exchange, Ms Whyte smashed the complainant’s car windscreen with the metal bar, before swinging it once at the complainant who raised her arm in defence. The complainant was hit on the arm and top of her head and suffered bruising. Ms Whyte left the address.

1      Crimes Act 1961, s 202C; maximum penalty five years’ imprisonment.
2      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment or a
$2,000 fine.
3      Police v Whyte [2024] NZDC 19364.

[5] When spoken to by police, Ms Whyte admitted breaking the car windscreen but denied hitting the victim with the bar.

District Court decision

[6] Judge Kellar was not satisfied the consequences of conviction would be out of all proportion to the gravity of the offending but did not consider anything more than a conviction was required. The Judge convicted Ms Whyte…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whyte v Police

Details

AGLC: Whyte v Police [2024] NZHC 3712
Case: [2024] NZHC 3712
Decision Date: 6 December 2024

CaseChat Overview and Summary

In Whyte v Police, the High Court considered an appeal against conviction brought by Ms Whyte. Ms Whyte was convicted of assault with a weapon and intentional damage in the District Court following her guilty pleas being entered by her trial counsel. The appeal to the High Court concerned the circumstances in which Ms Whyte entered her pleas and the subsequent application for discharge without conviction. The central issue was whether a miscarriage of justice had occurred.

The court examined the interaction between the Police Adult Diversion Scheme and the Criminal Procedure Act 2011. It found that a guilty plea was neither a prerequisite nor appropriate for diversion to be considered. The court concluded that while the District Court Judge did not explicitly require Ms Whyte to enter guilty pleas, he implied it by not allowing an adjournment for diversion while not guilty pleas were on the record. Trial counsel, feeling pressured, entered the pleas without instructions, resulting in a miscarriage of justice. The agent who appeared at sentencing also erred by not applying for an adjournment if the discharge application was unsuccessful.

The High Court allowed the appeal, set aside the convictions, vacated the guilty pleas, and remitted the matter to the District Court for Ms Whyte to be discharged under s 147 of the Act following her successful completion of diversion.

Orders