Witehira v The Queen
[2013] NZCA 58
•15 March 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA402/2012 [2013] NZCA 58 |
| BETWEEN ROBERT WILLIAM WITEHIRA |
| AND THE QUEEN |
| Hearing: 4 March 2013 |
| Court: White, MacKenzie and Mallon JJ |
| Counsel: B P Henry and P J Knapp for Appellant |
| Judgment: 15 March 2013 at 10.30am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe appellant’s pleas of guilty in the District Court are vacated and the convictions based on them are quashed.
CThe charges are remitted to the District Court at Hamilton for the appellant to replead and for a trial date to be set.
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Witehira appeals against the decision of the District Court to dismiss his application to vacate his guilty pleas on charges of assault with a weapon and reckless driving. The appeal is brought as an appeal against conviction although Mr Witehira is yet to be sentenced. This is said to be an exceptional case such that it is appropriate for the Court to deal with this appeal prior to sentencing.
Background
The charges
The charges against Mr Witehira arose out of a driving incident involving his former partner (the complainant) and her children (a daughter aged 11 years old and a son aged three years old). It was alleged that Mr Witehira had intentionally driven his car so as to hit the car in which the complainant and her children were travelling. Following the incident he was charged with assault with a weapon and reckless driving.
Mr Witehira intended to defend the charges. He was remanded in custody for a period. He was later granted bail, initially on an electronically monitored basis and then ordinary bail with residential and non-contact conditions. He was committed for trial in February 2011 on the assault with a weapon charge (reckless driving being a summary offence). The indictment on which he was to be tried contained three charges of assault with a weapon (one for each person in the complainant’s car). They were each representative charges because the Crown alleged that Mr Witehira had rammed the complainant’s car more than once in the course of the incident. The allocated trial date was 21 July 2011. Both parties were ready to proceed that day.
The Crown case
The Crown case, as set out in the police summary of facts, was as follows. At about 10.50 am on 6 October 2010, the complainant was driving her car towards Hamilton. She had her daughter in the front passenger seat and her son in the back seat. Mr Witehira drove past her in the opposite direction. When he saw the complainant, he turned his car around, caught up with her and immediately drove into the back of her car. At this time the complainant had entered a 100 km/h zone. The blow to the car was significant and caused the complainant to swerve dramatically to the left. The complainant was too scared to stop. She continued driving, at a reduced speed because of the speed at which the car in front of her was travelling, while Mr Witehira drove his car into the back of her car another three times. As the complainant was approaching Hamilton, Mr Witehira drove alongside the complainant’s car and hit her car twice. On the second hit, the bumper on Mr Witehira’s car fell off. This forced him to pull over. The complainant alerted the police whereupon Mr Witehira was later located and charged.
In support of its case the Crown intended to call evidence from the complainant, the complainant’s daughter (whose evidence was to be given by way of an evidential video), the evidential interviewer, a police photographer (who took photographs of the complainant’s car on the day of the incident), a police officer (who inspected Mr Witehira’s car at 11.00 pm on the night of the incident and took photographs of the car using a torch for lighting) and the officer in charge (who interviewed Mr Witehira about the incident).
The intended defence
Mr Witehira’s defence was that contact between the two cars was accidental and minimal. A brief of evidence had been prepared for him. His proposed evidence was that it was a coincidence that he drove past the complainant. He was to say that the complainant braked suddenly and he tried to avoid her. He was to say that he did end up driving beside the complainant at one point but at no time did he ram her car as alleged.
A brief of evidence of Mr Bydder had also been prepared for the defence. His proposed evidence concerned the damage done to Mr Witehira’s car. He examined the car twice in the daylight around 10 days after the incident. His brief of evidence expressed the view that Mr Witehira’s vehicle had never been in a collision “where the front has contacted another vehicle or other object with noticeable forces as could be sensed by occupants of the vehicles”. He also expressed the view that there was no evidence that the complainant’s car had any front or rear collisions.
Crown proposal is made
On the morning of the trial, the Crown (Mr Crayton) approached Mr Witehira’s counsel (Mr Barnsdale) suggesting that Mr Witehira’s level of culpability would adequately be reflected by one charge of assault with a weapon. The Crown proposed that if Mr Witehira pleaded guilty to that charge and the summary charge of reckless driving then it would offer no evidence on the other two counts in the indictment. The Crown also indicated that it would only seek a sentence of home or community detention in the event of a guilty plea. There seems to have been no discussion at this time as to the facts on which a guilty plea would be entered. Mr Barnsdale briefly discussed this offer with Mr Witehira who said that he wanted to proceed with the trial.
Judge informed of proposal
After this discussion, counsel informed the Judge that there was a matter to be discussed with the Judge before the jury was empanelled. Mr Crayton first advised the Judge about the scope of the evidence to be given by Mr Bydder, that is that it would be confined to evidence as to what Mr Bydder saw. This had been agreed with Mr Barnsdale because Mr Bydder had ties with the Witehira family so he was not independent.
Mr Crayton then informed the Judge of the Crown view that, although there were three counts on the indictment, the culpability would be reflected “by a single count and any guilty plea to that”. He noted that the appropriate penalty on conviction would depend on aggravating features “when the evidence comes out”. He submitted that “the starting point for sentence may be imprisonment but quite clearly on a guilty plea the Court would have available to it both home detention and community detention options”. He said that he was placing that before the Judge so that the accused could hear what was proposed and so that the Judge could “demur” if he disagreed with the stance the Crown proposed to take.
Mr Barnsdale was asked for his comments. The following exchange then took place:
MR BARNSDALE:
No, I have put this to Mr Witehira and told him, he’s indicated he wishes to – he wished me to proceed with the, with that it be heard and the Crown put their case. I would’ve, if the end-sentence is likely to be home detention it really is up to Mr Witehira. He’s been quite, shall we say, determined up until now, but he hasn’t been – but he hasn’t been offered something like this before and he’s never asked me to chase up a sentencing indication –
THE COURT:
Well, Mr Crayton has been quite clear this morning as to the Crown’s position. I suppose the only slight hesitation, Mr Crayton, on my part is on the very limited material I have, I don’t have such material as might be relevant to sentence relating to previous incidences or the state of the relationship between the parties, as it were.
MR CRAYTON:
The relationship has ended.
THE COURT:
Yes.
MR CRAYTON:
Once [sic] incidence of assault upon the complainant six months before; sentenced two months before and he was fined $110.
THE COURT:
Right.
MR CRAYTON:
And that’s the only incident of violence in the past, and Your Honour, the Crown make it clear that obviously the evidence may change with regards if this case goes to trial, as regard to the effect upon the complainant and the like.
THE COURT:
Mmm, yes,
MR CRAYTON:
But I address it as this stage on the face of the depositions which would prevail.
THE COURT:
All right. Mr Barnsdale, the Crown’s made its position quite clear. I agree with it. Do you want five minutes to –
Mr Barnsdale responded by informing the Judge that there had been a few problems while Mr Witehira was on electronically monitored bail. He informed the Judge that when electronically monitored bail was removed there had not been any problems between Mr Witehira and the complainant and that the relationship between them was “well and truly over”. The Court was adjourned (at 10.07 am) to provide Mr Barnsdale with an opportunity to discuss what was proposed.
Discussions with Mr Witehira and his father
During this adjournment Mr Barnsdale spoke with Mr Witehira. Mr Witehira also spoke with his father on the telephone who told him to plead not guilty. Mr Barnsdale in turn spoke with Mr Witehira’s father. There is no material dispute about what Mr Witehira’s father said to Mr Barnsdale, which was to the effect that he did not want Mr Witehira to plead guilty and that too many Māori pleaded guilty when they were innocent. There is conflicting evidence about the content of the discussion between Mr Witehira and Mr Barnsdale at this point.
When considering the evidence as to this discussion on the subsequent application to vacate the guilty pleas (discussed further below), the Judge preferred Mr Barnsdale’s evidence as to that discussion. In particular he accepted that Mr Barnsdale properly conveyed the substance of the Crown’s offer. He did not accept Mr Witehira’s evidence that Mr Barnsdale told him that if he proceeded to trial then he would be going to jail and that, if he maintained his guilty plea, Mr Barnsdale would have “thrown” the case. The Judge did accept, however, that Mr Witehira would have been under stress and may not have heard correctly what Mr Barnsdale said to him. There is no dispute that Mr Witehira wanted to defend the charges but did not want to go to prison.
There is more detail about the discussions at this point set out in Mr Barnsdale’s subsequent reporting letter to Mr Witehira on 26 July 2011. (Mr Witehira’s counsel did not suggest that this reporting letter was an inaccurate account.) In that letter Mr Barnsdale said that during the court adjournment they discussed the evidence and that there was a risk that the jury would return a guilty verdict if they believed the complainant and her daughter, and not Mr Witehira. Mr Barnsdale further advised that assault does not require proof of actual force. This meant that there was a risk of conviction despite the technical evidence. Mr Barnsdale’s reporting letter then recorded the following:
I.You had indicated that you wanted this matter over so you could finish your electrical degree. I told you that home or community detention can be flexible to allow this.
II.You told me you were innocent. I replied the Law is not really interested in the ultimate truth of any person and does not take account of pragmatism by accused. If you felt yourself bound by the principle that you could not plead guilty to a charge about which you thought you were innocent, you had at least two chances to state this by continuing with the trial. You had to be the judge of that.[1]
III.I told you that if the Judge indicates he would accept a sentence of home detention or community and it were supported by the crown, as it was, it was really the case of bird in hand is certainly worth two in a trial.
IV.I had spoken to your father before you pleaded. He made it clear that you should continue to defend the matter partly because you were innocent and too many people tend to give in defending matters. I spoke in support of a guilty plea now, but as time went on, I knew a decision had to be made. I then asked you to make [a] decision. We had spent approximately one hour discussing this. At this point, you [sic] options were:
I.Continue with the defence. If you could persuade the jury there was a reasonable doubt, you would be acquitted.
II. Continue with the defence. If you were found guilty, you would lose your credit for a guilty plea under Hessell, and reduce the chances of obtaining a sentence of home or community detention.
III.Pleaded guilty to the amended indictment of one count and get the credit for a guilty plea and allow the sentence indication of home detention to be imposed which would allow you [to] complete your degree.
Guilty pleas entered
[1]This sentence was not included in the copy of the letter included in the materials before us, but counsel are agreed that this was included in the version of the letter as received by Mr Witehira.
After the discussions between Mr Barnsdale, Mr Witehira and Mr Witehira’s father, Court resumed (at 10.58am). At this time Mr Barnsdale informed the Judge as follows:
Your Honour, had long discussions and I think he has agreed, it is agreed that he be arraigned on count 1, and there’s a summary charge of reckless driving which relates to exactly the same incident, it’s the same factual matters and we’ll be seeking a probation report, no doubt?
Mr Witehira was then arraigned and entered guilty pleas on one assault with a weapon charge and the reckless driving charge. He was convicted on those charges and remanded for sentencing.
Application to vacate guilty pleas
After this, on 3 August 2011, Mr Witehira applied to vacate his guilty pleas. That application was heard by the District Court Judge on 22 March 2012. Both Mr Witehira and Mr Barnsdale gave evidence and were cross-examined on that application. The Judge dismissed the application in a reserved decision given on 24 May 2012[2] because:
(a)the guilty pleas were not entered in circumstances where Mr Witehira did not appreciate the nature of the charges and nor were they entered in error;
(b)Mr Witehira failed to establish a “clear defence”, being one that went beyond demonstrating that he could defend the allegations; and
(c)Mr Witehira failed to establish that he had received deficient advice or that he had been misled prior to entering his pleas.
[2] Witehira v R DC Hamilton CRI-2010-019-8267, 24 May 2012.
On 3 July 2012 Mr Witehira lodged his appeal to this Court. The appeal was brought on the basis that the Judge erred in refusing to permit him to vacate his guilty pleas which gave rise to a miscarriage of justice.
Jurisdiction
Ordinarily an appeal against conviction is brought after sentencing. This reflects that until sentence has been passed, the processes in the trial court are not spent and that allowing successive appeals is generally undesirable. However neither the appeal right[3] nor the time for filing an appeal[4] preclude an appeal against conviction prior to sentencing.[5] In an exceptional case the Court will entertain an appeal against conviction prior to sentencing.[6]
[3] Crimes Act 1961, s 383.
[4] Crimes Act, s 388.
[5] A point accepted in R v Rata [2007] NZCA 431 at [19] and [23].
[6] At [23].
Counsel are agreed that this is an exceptional case. That is because Mr Witehira disputes the summary of facts and therefore intends to seek a disputed facts hearing prior to being sentenced. That raises the prospect of the complainant and her daughter having to give evidence twice: once at a disputed facts hearing and again at trial if the conviction appeal was successful. That risk, and the potential for unnecessary delay if the appeal is not considered now, make it pragmatically desirable to hear the appeal now.
We accept it is inevitable that there will be a disputed facts hearing involving the complainant and her daughter if sentencing is to proceed and that an appeal will be lodged after sentencing. We accept also that there will be some difficulties in confining the scope of the disputed facts hearing to aggravating and mitigating factors of the offending, when Mr Witehira continues to deny there was any intentional force or threat of force from his car. We are therefore prepared to accept this as an exceptional case and to entertain the appeal at this stage of the proceedings.
Was there a miscarriage of justice?
A guilty plea may be vacated in exceptional circumstances, where a miscarriage of justice will result if the conviction is not overturned.[7] A material mistake or misapprehension on the part of the appellant affecting the guilty plea is an accepted category of case where a miscarriage of justice arises.[8] One of the situations where that may arise is where counsel errs in his or her advice as to the non-availability of defences or outcomes.[9] Although the written submissions for Mr Witehira included other grounds on which the District Court Judge was said to have erred, the focus in the hearing before us narrowed to this ground.
[7] R v Le Page [2005] 2 NZLR 845 (CA) at [16].
[8] At [17].
[9] R v Merrilees [2009] NZCA 59 at [34].
The submission for Mr Witehira was this. Mr Witehira had consistently denied the charges and was intending to defend them. There was then an unexpected sentencing indication which arose as a result of a “concession” proposed by the Crown, which was not a concession at all. The sentencing indication was given without any agreement on the summary of facts. There was no real prospect of imprisonment on the charges, yet Mr Witehira was led to believe that there was. Mr Witehira was rushed into changing his plea, but as soon as he was away from that pressure he recanted. The position was therefore similar to Hancock v R where a guilty plea was vacated on appeal.[10]
[10] Hancock v R [2012] NZCA 292 at [32].
We agree. The culpability of the offending if proven was the same regardless of whether there were three charges or one. The proposal did not involve any concession in that regard. The proposal that on a guilty plea the Court could consider home detention or community detention was only material to Mr Witehira’s decision making if those options were unlikely or less likely without a guilty plea. A proper assessment about that depended upon the facts on which Mr Witehira was to be sentenced and Mr Witehira’s personal circumstances.
The Crown submits that, because the summary of facts remained consistent throughout the proceeding, Mr Witehira was aware of and accepted the facts he was pleading to. It submits that, crucially, Mr Witehira’s guilty plea meant that he accepted that he drove his vehicle into the complainant’s vehicle with the intention of using it as a weapon. We agree that by the guilty plea Mr Witehira must be taken to accept as proved all facts that are essential to a plea of guilty.[11] In this case that meant that he must be taken to have accepted that there was at least one intentional touching of his car with the complainant’s car or at least one intentional threat of that. It does not follow that he accepted the other details, which would be aggravating, in the summary of facts.
[11] Sentencing Act 2002, s 24(1)(b).
Had there been a discussion between counsel on the facts on which a plea might be entered, and a discussion between Mr Barnsdale and Mr Witehira about that, it seems quite likely that Mr Witehira would not have agreed to the Crown’s summary of facts. In that case, either the summary of facts upon which the Judge gave his informal sentencing indication would have been different to that which was before him, or Mr Witehira may have decided to proceed to trial. The Judge gave his indication without knowing what was agreed.
These events preceded the new statutory provisions on sentence indications.[12] Under those provisions, before giving an indication that a sentence will be of a particular type, the Court must be satisfied that it has information available to it that is sufficient for that purpose.[13] However District Court practice guidelines in place prior to those provisions were similar.[14] A fundamental divergence as to culpability needs to be resolved before a sentencing indication properly can be given.[15]
[12] Criminal Procedure Act 2011, pt 3, Sub-pt 4.
[13] Criminal Procedure Act, s 61(2).
[14]The Practice Note says that sentence indications will only be given if there is sufficient information, which should include a summary of facts, a victim impact statement, a list of the defendant’s previous convictions and submissions from both the prosecutor and defence counsel: Practice Note on Committal Procedure in the District Court (June 2009) at [16].
[15] R v Palmer [2007] NZCA 167, [2007] 3 NZLR 313 at [26] and [30].
In this case it seems that the Crown was saying that, whatever the aggravating features of the offending, it would only be seeking home detention or community detention on a guilty plea. However, before Mr Witehira was asked to consider the advantages of that proposal, consideration needed to be given to whether he was at risk of imprisonment if the facts were found to be as the complainant alleged them to be and Mr Witehira needed to be advised about that. His present counsel says there was no real prospect of that. That was in light of Mr Witehira’s history,[16] that he had spent time in custody on remand which would have been a significant wake up call for him, and that there was no prospect of him reoffending in the same manner when he had moved on from his relationship with the complainant.
[16]We do not have any detail about this except that which is referred to in the discussions with the Judge, namely that there was one previous incident of violence which involved an assault on the complainant for which Mr Witehira was fined $110.
As it was, Mr Witehira was understandably anxious to avoid prison. He did not want to put at risk completing his electrical qualification. He says he was, and he may well have been, concerned about whether his lawyer had carried out sufficient preparation for his case. He always intended to defend the charges. At the time his trial was to commence, at which time we accept he must have been feeling under pressure, it was suddenly proposed that he plead guilty. His lawyer “spoke in support” of that, over the view expressed by his father. Less than two weeks later, when he was outside that stressful situation, he filed his application to vacate his guilty plea.
We are satisfied in these circumstances that the guilty plea was entered without a proper understanding of whether imprisonment was ever a prospect, and following a Crown proposal that potentially offered no advantage to Mr Witehira. The conviction on a guilty plea given in those circumstances gives rise to a miscarriage of justice.
It is not necessary to discuss the other grounds on which this appeal was brought. However we can say that we would not have allowed the appeal on those bases. As a matter of law, Mr Witehira was capable of being convicted of the offences to which he pleaded guilty.[17] We agree with the Judge that the result of the trial would have depended on the jury’s assessment of competing versions of the facts. Nor were we persuaded that Mr Barnsdale’s trial preparation was deficient as was contended. The case was a relatively straightforward one with a small number of witnesses and a confined issue where extensive preparation would not have been expected.
The other charges
[17] R v Le Page, above n 7, at [18].
For completeness we note that the other two charges of assault with a weapon in the indictment remain extant. When Mr Witehira entered his guilty pleas the Judge noted that “no evidence will be offered at sentence on counts 2 and 3 in the
indictment” rather than discharging Mr Witehira on those counts.[18] However it does appear to us that one charge of assault with a weapon is sufficient to cover the one incident.
Result
[18]Where a discharge is ordered it must stand unless it can be set aside as a nullity: R v Holt [2008] NZCA 388, [2008] 1 NZLR 325 at [58].
The appeal is allowed. Mr Witehira’s guilty pleas on the charges of assault with a weapon and reckless driving are vacated and his convictions on the basis of those pleas are quashed. The charges are remitted to the District Court at Hamilton for Mr Witehira to replead and for a trial date to be set.
Solicitors:
Murray Roberts, Whangaparaoa for Appellant
Crown Law Office, Wellington for Respondent
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