Whyte v Police
[2024] NZHC 3712
•6 December 2024
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 and ordered her to pay
$787 reparation for the damage to the windscreen.
Principles on appeal
[7] Section 232 of the Act provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.4 A trial includes a proceeding in which the appellant pleaded guilty.5
[8] The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.6 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.7 The onus is on the appellant to show that an error occurred.
[9] Appeals against sentence are allowed as of right by s 244 of the Act and must be determined in accordance with s 250 of the Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal observed in Tutakangahau v R, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing
4 Criminal Procedure Act 2011, s 232(4).
5 Section 232(5).
6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
7 At [38].
8 Criminal Procedure Act, ss 250(2) and 250(3).
principles”.9 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
The appeal
[10] Trial counsel acting for Ms Whyte in the District Court filed the notice of appeal on 4 August and supporting written submissions on 10 September 2024. Mr Lange was then assigned as counsel on appeal. He filed fresh submissions on 6 November raising two grounds of appeal. First, that the Judge erred in requiring Ms Whyte to enter guilty pleas and secondly, that counsel appearing at sentencing for Ms Whyte (an agent) erred as to the basis on which the application for a discharge without conviction was advanced.
[11] At the heart of this appeal are the events that led to Ms Whyte entering guilty pleas and the interface between the Act and the diversion scheme. Trial counsel has filed two affidavits addressing the events relevant to the entry of pleas.
Trial counsel’s first affidavit
[12] Trial counsel was assigned to represent Ms Whyte shortly after her first appearance on 10 January 2024. In her first affidavit trial counsel deposes that prior to Ms Whyte’s second appearance on 7 February 2024, Ms Whyte instructed her to enter not guilty pleas to both charges. Another lawyer (the agent) appeared on behalf of Ms Whyte and not guilty pleas were entered. A case review hearing was scheduled for 16 April.
[13] In the interim, trial counsel confirms she engaged in discussions with police seeking to have the assault charge withdrawn and the intentional damage charge resolved under the diversion scheme. On 16 April, Ms Whyte was further remanded to 15 May for consideration of diversion. The police then agreed that Ms Whyte could be diverted on both charges subject to an acceptance of guilt. Ms Whyte agreed on the basis this would allow her to remain conviction-free. To complete diversion
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
Ms Whyte was required to write a letter of apology to the victim and pay full reparation.
[14] Ms Whyte completed the apology letter but because her partner had lost his job, could not make the reparation payment before the next court appearance on 15 May. On that date trial counsel deposes:
…I explained to the Judge that Ms Whyte was part way through the diversion process, and needed to save up to pay the reparation for the window. Despite confirmation that Ms Whyte was in the process of completing diversion, the Judge required guilty pleas to be entered. I felt pressured to enter the guilty pleas.
(emphasis added)
[15] Trial counsel vacated the not guilty pleas and entered guilty pleas on behalf of Ms Whyte. Ms Whyte was remanded to 10 July.
[16] Trial counsel was unwell on 10 July and deposes that she instructed the agent who had entered the not guilty pleas for Ms Whyte to again appear. The agent was told that Ms Whyte was partway through the diversion process and that an adjournment was required to allow time for the reparation to be paid, a process trial counsel described as “common practice” in the Greymouth District Court. The agent suggested an on-the-spot application for a discharge without conviction could be a better approach as Ms Whyte would then have more time to pay the reparation. Trial counsel considered the discharge application would be granted or, in the alternative, she:
…envisaged that if his Honour did not agree to the discharge without conviction, he would simply allow further time for Ms Whyte to complete Diversion.
I did not actually discuss this with [the agent] as I thought it was an obvious discussion for the Court to have following opening submissions from [the agent], that would be had between His Honour and [the agent] about the efficacy of whether such an application was appropriate, and it if was not, Diversion would simply continue.
Court enquiries and the 15 May transcript
[17] Having reviewed counsel’s written submissions and having identified that the central issue raised on appeal appeared to be that the Judge had required Ms Whyte to
enter guilty pleas before allowing an adjournment for diversion, I was concerned to ensure that all relevant material required for the appeal to proceed was available. I issued a minute to counsel on 20 November inquiring:
(a)What was said by the Judge that “required” guilty pleas?
(b)What are the standard practices of the police and District Court Judges in relation to plea when diversion is being considered/completed.
(c)Whether s 148 of the Act is utilised by prosecutors to discharge defendants under s 147 and if not, what process is adopted when diversion is completed.
(d)Whether counsel competency might be raised as a ground of appeal if counsel entered guilty pleas on behalf of Ms Whyte because of “pressure” from a judge?
[18] Following a telephone conference with counsel on 22 November, counsel agreed to file further memoranda having reviewed a transcript of the 15 May hearing.
[19]The transcript reads:
[TRIAL COUNSEL]:
Tēnei e te Kōti. Ms Whyte. Seeking two months adjournment Sir. She has signed a diversion form this morning. And she has completed one part of the diversion already, but she needs to amass $787 -
THE COURT TO [TRIAL COUNSEL]:
Q. Right, so is she entering a guilty plea to the charge?
A.In theory yes, but in practice what we’re hoping for was just, she’ll finish the diversion and the charges will be withdrawn rather than officially recording guilty on the court documents.
Q. Well, she’s got not guilty on there at the moment.
A. She—I know it has not guilty at the moment Sir.
Q. Yes. Well I’m not setting it down for a diversion if she’s got a not guilty on it.
A. Enter guilty pleas through counsel.
Q. Right and the next date will be?
A. Two months’ time Sir.
REGISTRAR:
Two weeks or two months?
[TRIAL COUNSEL]:
Two months.
THE COURT:
Two months yes.
REGISTRAR:
10 July, 10 in the morning.
THE COURT:
Alrighty thanks Ms Whyte that’s good news that diversion is available cause the ultimate outcome hopefully will be that the charges get withdrawn and that will be it. You’ve got to make all the play though so don’t sit and wait for phone calls from the police. If they need chasing up chase them up and nail this diversion agreement. So the remand will be 10 July at 10 o’clock. Thank you.
(emphasis added)
Trial counsel’s second affidavit
[20] In a second affidavit, filed at the hearing on 28 November, trial counsel confirms the transcript accords with her recollection of her exchange with the Judge. Counsel concedes that she did not ask for the appellant to be stood down before entering guilty pleas on behalf of the appellant. Counsel deposes that she immediately regretted doing so. Trial counsel says she felt pressured by the Judge to enter the pleas and believed that if guilty pleas were not entered, diversion would not be available. Counsel deposes:
I took [sic] Judge’s comments that his Honour was insistent the guilty pleas had to be entered for diversion to be available. I had never before been asked to enter guilty pleas for a diversion matter, and I was quite taken aback by this request coming out of the blue.
The end goal for Ms Whyte was to complete diversion and that she would not have [sic] criminal record. At that time I considered the entry of pleas was required to achieve the end goal.
Submissions
Appellant’s submissions
[21] Mr Lange, for Ms Whyte, submitted that the Judge erred by requiring the appellant to enter guilty pleas for diversion to be considered. He submits a guilty plea was neither a prerequisite nor appropriate. Mr Lange refers to the Police Adult Diversion Scheme Policy (the policy) that records “…a guilty plea (either entered or intimated) in court must not be a prerequisite nor a bar for diversion….”. He also refers to ss 147 and 148 of the Act in support of the submission that when a defendant has successfully completed diversion the charge/s must be dismissed and a dismissal under s 147 must predate a guilty plea.
[22] The second ground of appeal alleges errors in the application for a discharge without conviction. Mr Lange points to the sentencing notes that record the agent having advanced the application “on the basis the police aren’t really in a position to keep adjourning these matters in the hope that somebody could come up with reparation.” Mr Lange submits that, given the application was not opposed, the agent had elected to take a very pragmatic approach and in doing so failed to advance a principled basis for an order under s 106 of the Sentencing Act 2002. The agent further failed to advance an alternative application, namely, to seek an adjournment for diversion to be completed.
[23] Mr Lange advised that Ms Whyte has now paid reparation in full. Counsel proposed that the appeal be allowed, leave be granted to Ms Whyte to vacate her guilty plea, and that she be discharged under s 147.
Respondent’s submissions
[24] Mr Alexander, for the Crown, had filed submissions opposing the appeal. However, having reviewed the transcript of the 15 May hearing (when the guilty pleas were entered), Mr Alexander accepted that the proceeding may have miscarried as a consequence of the compounding effect of trial counsel error in: (1) the entering of
guilty pleas without instructions; and (2) the decision to advance a discharge without conviction application rather than seeking an adjournment for diversion to be completed.
[25] Mr Alexander disputes that the Judge required Ms Whyte to enter guilty pleas. He submitted that in the face of not guilty pleas the Judge was obliged to progress the case to a case review hearing.
[26] Mr Alexander confirmed that diversion remains available to Ms Whyte. He did not oppose the orders proposed by Mr Lange.
The police adult diversion scheme
[27] The policy (an internal document used by police) and the Police Adult Diversion Scheme Guidelines (the guidelines) (for the public) record that the diversion scheme is managed by the Police Prosecution Service at its discretion.
[28]I briefly summarise the key components of diversion relevant to the appeal.
[29] Diversion is available to an adult defendant charged with an eligible offence and who meets certain offender-based and offence-based criteria. Relevantly, within the offender-based criteria, the offender must accept full responsibility for the offence.
[30]The guidelines record the purpose of diversion is to:
(a)Hold an offender accountable.
(b)Provide an opportunity for restorative activity/making amends to victims and/or communities.
(c)Provide an opportunity to address the underlying drivers of offending, through access to support services.
(d)Provide a post-charge pathway to avoiding a criminal conviction, in cases where it has been determined that the public interest requires
charges to be laid and a prosecution initiated but where an alternative to a full prosecution may be a suitable way to resolve the matter.
[31]The policy states the scheme’s objective is to enable:
…eligible offenders to complete diversion activities within a given timeframe to avoid both a full prosecution and the possibility of receiving a conviction. This means that judicial time is able to be reserved for more serious offences and offenders.
(emphasis added)
[32] The policy records that it is preferable that diversion is considered before a plea is entered but that defendants who have entered a plea may still be considered for diversion. The policy states that if a defendant has entered a not guilty plea but has subsequently acknowledged guilt they can still be considered for diversion. The guidelines explain that:
…because diversion is a restorative-approach, it can only be considered when an individual accepts full responsibility for the offending in question (as outlined in the Police Summary of Facts). Diversion is therefore unavailable to those who plead not guilty. However, an initial plea of not guilty does not necessarily bar an individual from diversion if that individual subsequently acknowledges responsibility.
(emphasis added)
[33] The policy records that diversion can be considered if a guilty plea is entered or if no plea is entered and that an intimated guilty plea in court must not be a prerequisite for diversion.
[34] If the defendant has not completed the conditions of diversion, and the Diversion Officer considers more time is reasonably required, the defendant may apply for an adjournment of the prosecution. Alternatively, the diversion process can end, and the charges return to the court process.
[35]If the defendant cannot pay reparation in full, the policy states:
…the general rule is that the case is referred back for the prosecution to continue. In certain circumstances, if the victim agrees, an offender without financial liability can:
-‘work off’ the amount owed, or
-be given time to pay (in very rare circumstances).
All reparation must be paid before the prosecution agree to withdraw a charge. If this is not done, and an extension to the adjournment is not considered appropriate, prosecution against the offender will continue.
[36] The policy records that once the defendant completes the requirements of diversion, the court is notified by way of s 148 of the Act and the charge is then dismissed under s 147. The charge cannot be dismissed until the diversion process is successfully completed.
Analysis
[37] Although Ms Whyte’s appeal notice focuses on the process that led the Judge to decline Ms Whyte’s application to be discharged without conviction, the case engages broader issues of miscarriage of justice that both counsel agree are appropriately considered by this Court.
[38] The essential context in which the question of miscarriage must be considered is that Ms Whyte had no prior experience with the criminal justice system. She had not previously been charged let alone convicted of a criminal offence. At police interview she denied assaulting the complainant. She had instructed her counsel to enter not guilty pleas to both charges but did not deny she had damaged the windscreen of the complainant’s car. The police assessed the appellant as eligible for diversion. I accept that at all times Ms Whyte was understandably focused on preserving her unblemished record. Following a successful meeting with the diversion’s officer, diversion had been offered on the conditions the appellant write a letter of apology and paid $787 in reparation. The apology letter was completed and accepted but due to her pressing financial circumstances the appellant needed time to make reparation.
[39] The police position never shifted that, provided reparation was paid, the appellant should avoid a criminal conviction. The police proposed achieving that outcome through diversion but did not oppose the alternative mechanism of a discharge without conviction. The police had not opposed a further adjournment for diversion to be completed.
[40] Playing what I would describe as little more than a bystander role, Ms Whyte now stands convicted of both offences, assault with a weapon, a charge she has always denied, and a much lesser intentional damage charge that she did not deny, in circumstances where the prosecution had agreed a process whereby she should not be convicted of either charge. Plainly something has gone amiss.
[41] In my view three issues require consideration. First, alleged error by trial counsel in entering the guilty pleas. Secondly, alleged error by the trial Judge in “requiring” guilty pleas. Finally, alleged error by counsel appearing as agent in advancing the s 106 application and not in failing to seek an adjournment. Before turning to the alleged errors, I make some observations about the diversion scheme and its relationship with the Act.
The diversion scheme and the Criminal Procedure Act 2011
[42]It is for the police and the police alone to administer the diversion scheme.
Decisions made by the police are final. There is no right of appeal or review.11
[43] A defendant is eligible to be considered for diversion if they admit responsibility for the alleged offending. But an admission of responsibility should not be conflated with a plea of guilty or an admission of guilt of the charge. A defendant’s request or agreement to be considered or diversion is not an admission of guilt.12 The process of diversion encourages defendants to accept responsibility for their conduct and to agree to make good harm that has been caused. That is commonly in the form of an apology, the payment of moneys, participation in some form of rehabilitative scheme or community work. But that process does not require a defendant to admit the elements of the offending with which that defendant is charged. A defendant may well admit responsibility for conduct that has given rise to offending whilst having a legal defence to the particular charges preferred by the police. As the guidelines recognise, a guilty plea is not a prerequisite for eligibility for diversion.
11 Thompson v Attorney-General HC Christchurch CP5100, 16 June 2000.
12 Burns v Police HC Auckland A87/00 28 July 2000 at [14]; and Hore v Police [2015] NZHC 2313 at [20].
[44] There may be occasions where a defendant has entered a guilty plea before learning of their eligibility for diversion. A person who has entered a guilty plea is still eligible to be considered for diversion. But, on my reading of ss 147 and 148 of the Act, that guilty plea must be vacated in order to implement the statutory process following the successful completion of diversion. Section 148 provides:
148Prosecutor must notify court if defendant completes programme of diversion
(1)The prosecutor must ensure that the court is notified if a defendant has successfully completed a programme of diversion (being a programme conducted in relation to any public prosecution) in respect of the offence charged.
(2)If notification is given under subsection (1), the court or the Registrar must dismiss the charge under section 147.
[45] If notification under s 148(1) is given then, the court or registrar must dismiss the charge under s 147. A discharge under that section is a deemed acquittal.13 Section 147(1) provides:
147 Dismissal of charge generally
(1)The court may dismiss a charge at any time before or during the trial, but before the defendant is found guilty or not guilty, or enters a plea of guilty.
[46] A charge can only be dismissed under s 147 before a guilty plea is entered. The Act does not anticipate that defendants being considered for diversion will enter guilty pleas. If diversion is successfully completed, an application to vacate that plea under s 115 of the Act will be necessary.
[47] I observe that the transcript of the 15 May hearing records both trial counsel and the Judge referring to the charges being “withdrawn” following the successful completion of diversion. Similarly, the diversion policy refers to charges being withdrawn. Prior to the Act coming into effect, it was standard practice for charges to be withdrawn following the successful completion of diversion.
13 Criminal Procedure Act, s 147(6).
[48] It is possible, perhaps likely within some registries, that process is still in place. In my view that process is at odds with the clear intent of Parliament and operates unfairly to a defendant who is entitled, by reference to s 148, to a deemed acquittal. But even if the charge is withdrawn, the obstacle presented by a guilty plea remains. Section 146(1) applies and provides that, with the leave of the court the prosecutor may withdraw a charge before the trial. Once a guilty plea is entered there is no trial and the plea cannot be withdrawn. Again, the plea would have to be formally vacated. In my view, and while there is no statutory impediment to charges being withdrawn, to do so denies a defendant the benefit of a deemed acquittal, a benefit that is of real significance. The appropriate process following the successful completion of diversion is for notice to be given under s 148 and the charge/s dismissed under s 147.
[49] As I have recognised, the policy acknowledges that a defendant who has entered a guilty plea is eligible for diversion. It also acknowledges that “generally” charges, where a guilty plea has been entered, cannot be dismissed under s 147, but goes on to imply that the mandatory language of s 148 might override the timing issue that arises in s 147(1).
[50] Neither Mr Lange nor Mr Alexander sought to argue that this analysis is correct. Section 147(1) is clear. A charge may only be dismissed before a guilty plea is entered. That does not create an immutable obstacle to diversion being considered when a guilty plea has been entered. Rather, it means that following a guilty plea and the successful completion of diversion, the guilty plea will have to be vacated in order for the defendant to be discharged under s 147(1).
[51] If, like Ms Whyte, a defendant has entered a not guilty plea before being offered diversion, it seems appropriate that plea is vacated. First, although not a barrier, it likely sends the wrong message to the Diversion Officer as to whether the defendant admits responsibility for the offending (notwithstanding my view that an admission of responsibility might well engage different considerations to an admission of guilt). Secondly, it will only need to be vacated if diversion is successfully completed, adding another layer of process.
[52] Finally, in reviewing the interaction between the diversion scheme and the Act, I observe that s 147(5) provides that a decision to dismiss a charge must be given in open court. That provision is consistent with the principle of open justice. Both counsel share my experience that it is doubtful discharges granted as a consequence of defendants completing diversion are routinely being given in open court. I have not heard evidence or argument in relation to that particular issue and resist expressing any view as regards the consequences of non-compliance. It may however be advisable for registrars to pronounce in open court the formal dismissal of charges under s 147 when the s 148 process has been adopted. The appearance of a defendant and/or counsel would not be required.
[53]I turn to the three events relevant to consideration of miscarriage.
Judge ‘required” a guilty plea
[54] Mr Lange submits that, in effect, the Judge required Ms Whyte to enter guilty pleas. There could be no doubt that for a judge to require a defendant to enter a guilty plea would be a serious error and that any conviction entered following a guilty plea entered in such circumstances would be a miscarriage of justice. A defendant may be required to enter a plea,14 but the plea itself is solely for determination by the defendant,15 and if no plea is entered, the defendant is deemed to have pleaded not guilty.16 A judge cannot require a defendant to enter a particular plea to a charge.
[55] However, I am not satisfied it is clear that the Judge did require guilty pleas. Rather, in indicating that he would not adjourn the case for diversion to be considered while there was a not guilty plea, the Judge required the appellant to vacate her not guilty pleas. The distinction is important. A judge is entitled to require charges to which a defendant has pleaded not guilty to be processed in accordance with the Act and to progress the charge to a case review hearing and ultimately a trial.
[56] I nevertheless think it is clear the Judge implied that he expected guilty pleas to be entered if the case was to be adjourned for consideration of diversion. The very
14 Criminal Procedure Act, s 39(1).
15 Section 37.
16 Section 41.
first question the Judge asked when trial counsel asked for a two-month adjournment for diversion to be completed, was “…so is she entering a guilty plea to the charge?” In my view, what was missing from the interaction between the Judge and counsel was a submission on behalf of the appellant that guilty pleas were not appropriate nor necessary given the operation of ss 147 and 148 of the Act. It seems clear trial counsel was not aware of those provisions, and I can understand why she felt the Judge required guilty pleas.
[57] Guilty pleas were not required, nor, having regard to ss 147 and 148, appropriate. I am aware of the practice of “intimated guilty pleas” being flagged on behalf of defendants. The Act does recognise a defendant giving notice of an “intention to plead guilty”,17 but that arises in different circumstances to an intimated guilty plea. That plea is not recognised in the Act. The intimated plea operates as no more than a non-binding indication to the Court that the defendant does not intend defending a charge in the event diversion is refused.
[58] From the bar, counsel advises some judges do require guilty pleas to be entered if a defendant is seeking diversion. I can understand why a judge is reluctant to engage in a process whereby a defendant makes admissions of responsibility for the purpose of successful participation in a diversion process but, if that process is not completed, then reverts to a plea of not guilty. At first blush, to maintain a plea of not guilty whilst engaging in a process that is dependent on admission of responsibility strike as incongruous. But for the reasons I have set out, a judge should not require a defendant to enter a guilty plea under any circumstances, and not to allow diversion to be considered.
[59] I agree the Judge was wrong to suggest that Ms Whyte should enter guilty pleas, but I am not persuaded the Judge required her to do so. The more fundamental error was counsel then entering guilty pleas on behalf of the appellant without taking instructions, an issue I now turn to discuss.
17 Criminal Procedure Act, ss 37(6), 39(5), 42(1) and 43.
Trial counsel error
[60] Trial counsel has deposed that she felt pressured to enter guilty pleas on behalf of Ms Whyte. It is clear that trial counsel inferred from her exchange with the Judge that the entry of guilty pleas was a prerequisite to an adjournment for diversion to be completed. But, as I have found, that is not what the Judge said.
[61] Trial counsel did not engage with her client or address the Judge on the law, rather she promptly vacated the not guilty pleas and entered guilty pleas on behalf of the appellant. It is clear from the audio of the hearing and acknowledged by trial counsel that in doing so she acted not only without instructions, but contrary to the appellant’s instructions. Trial counsel has deposed to her knowledge the appellant had denied assaulting the complainant.
[62] The Court of Appeal in R v Hall referred to three fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage.18 Those fundamental decisions relate to plea; electing whether to give evidence; and advancing a defence based on an accused person’s version of events. 19
[63] The plea to a charge is a fundamental decision reserved to the defendant alone. If a plea is entered by counsel both without and contrary to instructions, it is inevitable that a miscarriage of justice will result. In those circumstances, there will be no need for the court to inquire further.
[64]I am satisfied that this case falls within that category.
[65] I have no doubt that trial counsel made an instinctive decision to vacate the not guilty pleas and enter the guilty pleas in the heat of the moment. She was surprised by and unprepared to respond to the position taken by the Judge. I accept she felt pressured but, at all times, had the appellant’s best interests at heart. If trial counsel had taken instructions and vacated the not guilty pleas, the Judge should then have granted the adjournment for diversion to be completed. If the Judge had then further inquired about guilty pleas, it would have been appropriate for counsel (and the police
18 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.
19 At [65].
prosecutor) to refer to ss 147 and 148 and the diversion policy to satisfy the Judge that it was not necessary or appropriate for guilty pleas to be entered.
Agent error
[66] The final ground of ground of appeal alleges error by the agent who appeared on behalf of Ms Whyte on 10 July. Mr Lange submitted that the agent advanced an application for a discharge without conviction on flawed grounds. The sentencing notes record the agent’s submission:
She’s applying for a discharge without conviction on the basis the police aren’t really in a position to keep adjourning these matters in the hope that somebody could come up with the reparation.
[67] Mr Lange submits that was not a proper basis upon which to advance the application. I have reviewed the transcript of the sentencing. It does not record any position having been taken by the police other than confirmation the application was not opposed.
[68] Mr Alexander acknowledges material error by the agent, but for a different reason, the failure to apply for an adjournment for diversion to be completed in the event the discharge application was unsuccessful.
[69] I am satisfied there are a number of shortcomings in the s 106 application. The application was made orally and without any supporting material. It was made without notice. Rule 2.12(2)(p) of the Criminal Procedure Rules 2012 provides that an application under s 106 of the Sentencing Act must be made in writing unless the judge directs that it may be made orally.20 Usually, it should be supported by written material addressing the consequences of a conviction.
[70] As for the merits, counsel referred briefly to the facts but did not address the gravity of the offence. The consequences of convictions were described by counsel as “she doesn’t have any previous convictions…she would be unable to find housing, look after her child and potential employment”. No supporting evidence was filed. Otherwise, counsel referred to her financial difficulties.
20 Criminal Procedure Rules 2012, r 2.12(4)(a).
[71] The informality and absence of legal analysis that define the discharge application strongly indicate it was made on a pragmatic and not a principled basis. Pragmatically a discharge would have avoided any possibility of the case having to be recalled in the event reparation was not paid. In discharging the appellant, the Judge could have made an order Ms Whyte pay full reparation, and she could then have arranged to pay by instalments.
[72] I agree that the s 106 application had no realistic prospect of success unless the Judge was prepared to ignore the statutory threshold and adopt a purely pragmatic approach to sentencing. To do so would have been unprincipled and wrong.
[73] In those circumstances, counsel should have had an alternative course of action. That leads to the second failing of the agent. Trial counsel deposes that she had in mind that if the discharge application was unsuccessful, the case would be adjourned to allow Ms Whyte further time to accumulate savings and complete diversion. Mr Lange refers to trial counsel’s affidavit that adjournments to allow time to make reparation payments in order to complete diversion is a common practice in the Greymouth District Court. Following the decision to refuse the discharge application, the agent did not apply for an adjournment for diversion to be completed.
[74]In my view that failure has contributed to a miscarriage of justice.
Conclusion
[75] For those reasons I was satisfied that a miscarriage of justice had occurred. I allowed Ms Whyte’s appeal against conviction, set aside her convictions, vacated her guilty pleas and remitted the proceeding to the District Court at Greymouth for Ms Whyte’s to be discharged under s 147(1) of the Act.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Greymouth
Everist Gilchrist Lawyers Limited, Ashburton
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