Nuttall v R HC Rotorua CRI-2009-063-005375 [2011] NZHC 1922 (29 November 2011)

Last Updated: 2 February 2012

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI-2009-063-005375}

TAIOPERUA NUTTALL

Applicant

v

THE QUEEN

Respondent

Hearing: 29 November 2011

Counsel: CR Horsley for Applicant

A Gordon for Respondent

Judgment: 29 November 2011

_{JUDGMENT OF ASHER J}

Solicitors/Counsel:

Adams & Horsley, DX HP40012, Tauranga. Email: [e-mail]

Gordon & Pilditch, PO Box 740, Rotorua 3040. Email: [e-mail]

NUTTALL V R HC ROT CRI-2009-063-005375 29 November 2011

Introduction

[1] Taioperua Nuttall has made application to vacate guilty pleas entered by him on 3 May 2011. The counts to which he pleaded guilty are as follows:

Seven charges of possession of methamphetamine for the purpose of supply, pursuant to s 6(1)(f) of the Misuse of Drugs Act 1975 – the maximum penalty for which is life imprisonment (counts 1, 5, 6, 7, 9,

_{11 and 25);}

Three charges of conspiring to supply methamphetamine, pursuant to s 6(2A)(a) of the Misuse of Drugs Act – the maximum penalty for

_{which is 14 years‟ imprisonment (counts 2, 13 and 23);}

Four charges of supplying methamphetamine, pursuant to s 6(1)(c) of the Misuse of Drugs Act – the maximum penalty for which is life

_{imprisonment (counts 16, 17, 18 and 19);}

One charge of offering to supply methamphetamine, pursuant to s 6(1)(c) of the Misuse of Drugs Act – the maximum penalty for

_{which is life imprisonment (count 21); and}

One charge of possession of cannabis for the purpose of supply, pursuant to s 6(1)(f) of the Misuse of Drugs Act – the maximum

_{penalty for which is eight years‟ imprisonment (count 26).}

[2] The guilty pleas were entered on the second day of the trial after the jury had been empanelled and the Crown had opened its case and begun to call evidence.

Background

[3] On 19 September 2009 a motor vehicle driven by Mr Nuttall was stopped by the Police and searched under a search warrant. In the vehicle with Mr Nuttall was the co-accused Tina Jessica Turner. The Police located a number of bags in the car.

Amongst the bags was a handbag that appeared to belong to Ms Turner which contained a tick list, a set of silver scales, $1,940.70 in cash and a glass „P‟ pipe. There were no drugs found in the bag that appeared to belong to Mr Nuttall. However, it contained a mobile phone which was ultimately shown to have the number 022 609 8272. The Police later assigned the names of rivers to various relevant telephone numbers. They assigned the name “Rio Grande” to that number.

[4] There were no drugs on Mr Nuttall‟s person or in the bag. However, a total of 26 grams of methamphetamine was located in the vehicle in various bags. A total of $12,721.40 in cash was located.

[5] The search warrant had been issued under the Misuse of Drugs Act. The Police for some time had been carrying out surveillance of the telephones of Mr Nuttall. The charges that were ultimately laid did not just relate to what was found in the motor vehicle. The ultimate indictment alleged one count of possession of methamphetamine for the purpose of supply in respect of Mr Nuttall between

1 March 2009 and 14 July 2009, and all the other counts against him related to a timeframe later in the year. Ultimately I am informed that the other relevant telephone number of Mr Nuttall that was subject to surveillance was 021 148 0446, which was assigned the name “Mississippi” by the Police.

[6] The Police allege, primarily on the basis of text messages to and from Mr Nuttall on these telephones that were subject to surveillance and recorded, that Mr Nuttall was selling methamphetamine in the Bay of Plenty area. Following the execution of the search warrant both Mr Nuttall and Ms Turner were charged on a number of different counts relating to the sale or supply of methamphetamine, together with a charge relating to possession of cannabis for supply.

Procedural history

[7] In due course Mr Nuttall obtained legal aid and instructed a barrister of Tauranga, Craig Tuck, to act for him. The trial of both Mr Nuttall and Ms Turner commenced on 2 May 2011. On the second day of the trial Mr Nuttall changed his plea to a plea of guilty. That change of plea was recorded and the trial against

Mr Nuttall ceased at that point although it continued in relation to Ms Turner. Ms Turner was ultimately convicted and sentenced.

[8] The case was set down for sentencing by the trial Judge, Duffy J, for 24 June

2011. On that day Mr Nuttall indicated to the Judge through Mr Tuck that he sought a disputed facts hearing. The sentencing was then adjourned. Following that adjournment, on 31 August 2011 the application for leave to vacate his guilty pleas was filed.

The grounds of the application for leave

[9] Two substantive grounds are set out in the application. First, that the guilty pleas were entered without proper and/or competent legal advice, and, second, that Mr Nuttall has a defence to the charges which ought to be heard. It is stated that to refuse the application will result in a miscarriage of justice.

[10] Mr Nuttall filed an affidavit in support of the application. Essentially he states that he was poorly advised through the lead up to the trial and in the first two days of the trial. He expressed dissatisfaction with the performance of his counsel and asserts that after the hearing began he formed the view that he was not getting a fair trial and that his instructions were not being taken seriously.

[11] Mr Tuck had recommended to him that he should plead guilty to the charges. He was unhappy but felt ultimately that he had no choice but to enter pleas of guilty. He maintained that in the circumstances he felt there was no other option. In his evidence he waived privilege and his right to silence and asserted that he had a defence to the charges. He stated that he was not responsible for text messages and that the two relevant telephones, being the Rio Grande line and the Mississippi line, were not his. He developed this under cross-examination asserting that while he was guilty of possession of methamphetamine he was not a seller.

[12] The Crown filed three affidavits: one from Mr Tuck and one from each of two detectives who had been involved in the investigation. Mr Tuck set out the details of his advice and the relevant sequence of events. Detective Leonie Smith in

a lengthy affidavit discussed text messages and records of telephone conversations giving her view that the evidence clearly pointed to Mr Nuttall being the owner of the Rio Grande and Mississippi lines and the person who was sending and receiving the relevant text messages. Detective Mahara Alcock filed an affidavit setting out the details of her discussion with Mr Nuttall following arrest about the telephones and the text messages and his denials of involvement.

[13] Both Mr Tuck and Detective Alcock were cross-examined by Mr Nuttall‟s counsel Mr Horsley and Mr Nuttall was cross-examined by Ms Tahana for the Crown.

The principles to be applied

[14] The Court has an inherent jurisdiction prior to sentencing to accept a change of plea from guilty to not guilty. Hardie Boys J in R v Turrall[1] is often quoted:

This Court should be the fountain of justice and ensure that no man is wrongfully convicted even if it is his own foolish act that has brought the situation about.

[15] The following passage from the judgment of the Court of Appeal in

R v Clark[2] summarises the approach to be taken:

Prior to sentencing leave to vacate a plea of guilty is a matter for the discretion of the Judge in the exercise of the court‟s inherent jurisdiction (Adams on Criminal Law, CA356.04). It Is a broad discretion. While the most common circumstances which warrant leave are that the accused has not really pleaded guilty, that there has been some critical mistake, or there is a clear defence to the charge, these are no more than examples (see R v Le Comte [1952] NZLR 564, 574; R v Turrall [1968] NZLR 312, 313; R v Ripia [[1985] 1 NZLR 122]; Faulkner v Crown Solicitor at Auckland (Auckland High Court, T116/94, 27 July 1995). The underlying object is to avoid a miscarriage of justice, or, perhaps in the prospective context is better viewed from the opposite end, to consider the interests of justice. Such a test incorporates not only the interests of the accused but also the interests of victims or witnesses as well (R v Ripia at p4).

[16] Although the discretion is unfettered it would not be lightly exercised, particularly where the accused is legally represented at the time the plea is made. In

Sharp v District Court at Whangarei[3] Randerson J set out four particular grounds that have been recognised since R v Le Comte[4] as justifying the setting aside of a plea:

(a) That the accused has “not really” pleaded guilty;

(b) that in entering the plea the accused acted upon a material mistake;

(c) that the proceedings were defective or irregular (for example, where the requirement for legal representation under s 153A Summary Proceedings Act is not complied with);

(d) that there was a clear defence to the charge. This does not mean that it must be established beyond reasonable doubt but the defence must at least be reasonably arguable such that a jury could be left in a state of reasonable doubt: R v Pira (High Court, Rotorua, S 3/90, 11 April 1990, Anderson J).

[17] The onus of making out the relevant grounds rests on the applicant. The Court may not be concerned with the merits of a defence if there has been some significant defect in terms of legal representation or advice which has clearly prevented an applicant from making an informed decision. Where, however, no defect in the entry of the plea can be pointed to and the applicant has in essence changed his or her mind, the Court must scrutinise the merits of the defence more closely.

Events leading to the guilty plea and thereafter

[18] It is necessary to consider the general lead up to the trial. The indication by Mr Nuttall was that the preparation for the trial by Mr Tuck was cursory and not to his satisfaction. Both Mr Nuttall and Mr Tuck have been cross-examined. I accept Mr Tuck‟s evidence that he would have had approximately five meetings with Mr Nuttall prior to trial and approximately 30 telephone calls. I do this not only because Mr Tuck‟s evidence appeared to me to be truthful and accurate, but also because such material as has been made available indicates that Mr Tuck has followed good practice and been careful.

[19] Mr Tuck was engaged in telephone and written correspondence with counsel for Ms Turner prior to trial. There was a problem because as things developed Mr Nuttall and Ms Turner began to run cut-throat defences where each denied that the methamphetamine belonged to them.

[20] On 12 April 2011 Mr Tuck took a detailed file note of his discussions with Mr Nuttall and progress towards trial. He clearly had also been in discussion with Crown counsel. He was working on the preparation of a brief of evidence. By the start of the trial I am satisfied he had prepared a brief of evidence for Mr Nuttall. It was a relatively short brief of evidence because Mr Nuttall‟s position was simple: the voice was not his and he did not send the text messages. It was Ms Turner who had asked him to get involved in the drug world and he was helping her out. He was effectively acting as the driver at the time of the arrest and no more.

[21] Mr Tuck accepted that he had advised Mr Nuttall of the difficulties that he considered he faced in defending the charges. However, I accept his evidence that when the trial commenced it was on the basis that the charges were being defended and that was the basis on which he was proceeding. He stated, and I accept this, that it was Mr Nuttall who initiated the discussion about him changing his plea on the morning of the second day of the trial. Mr Tuck was asked to visit Mr Nuttall which he did. Mr Tuck expressed surprise that there would be a change of plea at that point because he had cleared his diary for the next days. However, having received instructions, and moving towards a change of plea, he spoke with the Crown. Ultimately there was a hearing in chambers, but with Mr Nuttall present, where matters were discussed. I have a transcript of that discussion before Duffy J. In it Mr Tuck records that Mr Nuttall had raised the possibility of a change of plea. There was a discussion about the difficulties of cut-throat defences.

[22] Ms Gordon for the Crown is recorded as setting out the Crown‟s position that Mr Nuttall was involved in sales of about 100 grams of methamphetamine. The Judge suggested that there could be a summary of facts finalised which Mr Nuttall would accept. The Court adjourned and Mr Tuck met with Mr Nuttall. Mr Nuttall then signed the bottom of his brief of evidence that had been prepared by Mr Tuck. The note which is in Mr Tuck‟s handwriting stated that Mr Nuttall had listened in

open court to the Crown‟s position should he plead guilty and that he had read and agreed the summary of facts as amended. He stated that the contentious parts had been explained. He stated that he wanted to plead guilty and wanted to be re- arraigned that day. Although this is in Mr Tuck‟s handwriting, Mr Nuttall has signed that statement.

[23] Mr Tuck records Mr Nuttall as saying the decision was his and it was his alone. Mr Tuck considered that Mr Nuttall clearly understood his choices and what he was doing.

[24] The matter came up for sentencing in the Auckland High Court on 24 June

2011. These events are of less relevance as the change of plea has already taken place, but they nevertheless are of significance.

[25] There was a note in Mr Tuck‟s handwriting dated 10.30am on that day which is set out as a statement by Mr Nuttall in which he records that he was involved in offending “on a busy street level basis” with Ms Turner providing most of the cash. He stated that he wished to be sentenced today and realised that he faced a sentence of imprisonment of some length. He stated that he acknowledged that there may have been approximately 100 grams of methamphetamine involved, although he did not really know.

[26] Mr Nuttall did not sign this handwritten statement. At 10.55am he did sign another statement in Mr Tuck‟s handwriting in which he stated that he had reflected on the sales and did not now accept the earlier amount based on his memory. He stated that he considered there would have been 40 grams of methamphetamine involved. He stated that he wished to go to a disputed facts hearing before sentencing and this was the only dispute that he had.

[27] Mr Nuttall also at some stage during that day signed and initialled the summary of facts saying that the summary was agreed. He would refer to his own use as part of the pre-sentence report process and he would take responsibility. He stated that at 45 years of age he had a new vision for his life and wanted to move on.

Was there proper and competent legal advice, and a free choice?

[28] Mr Nuttall has approximately 70 convictions. He is no stranger to the Court process. Having heard him give evidence I consider him to be astute and streetwise. Having heard the evidence and considered the documents I consider that Mr Tuck, while responsibly pointing out to Mr Nuttall the difficulties in his defence, did all he could to adequately represent him and fully met his professional duties.

[29] On the second day of trial, for whatever reason, Mr Nuttall decided that a change of plea would be in his best interests. I do not accept his assertions that he felt he had no choice. The only thing that might have led him to a feeling of little choice was the strength of the Crown case against him, but that in itself cannot in any way derogate from his ability to make his own decision.

[30] I therefore do not accept the claim that he entered the guilty plea without proper and competent legal advice. To the contrary, I consider the legal advice he received both proper and competent. He made a fully informed decision. His decision now to seek to vacate the guilty plea, his third change of mind, is in my assessment just a change of heart. For whatever reason he has decided that his interests are now better served by pursuing this change of plea.

The defence

[31] It is said that for there to be a clear defence to the charge so as to justify the setting aside of a plea it must at least be “reasonably arguable”.[5] There is no need to analyse this test further. It is necessary to consider the merits of the defence raised by Mr Nuttall.

[32] The defence essentially turns on whether Mr Nuttall was the author of the texts. If he was the author of the texts then the Crown case is very strong indeed. I do not propose reviewing the contents of the texts and indeed they are of considerable bulk. However, I have seen sufficient texts which appear on their face

_{to clearly show approaches to Mr Nuttall for particular quantities of}

methamphetamine and his positive responses to be satisfied that they show methamphetamine dealing. However, if they were not his texts he would have a good defence.

[33] The position this morning before Mr Nuttall gave evidence was that he flatly denied having sent the relevant texts and denied that either the Rio Grande line or the Mississippi line were lines operated by him. He was carefully cross-examined by Ms Gordon on this topic. She took him through a number of texts where he is communicating with a Debbie Maney, his partner, and to a lesser extent communications from his children, all on these phone numbers. Mr Nuttall could offer no explanation as to who else might have been engaged in these text exchanges but him. She took him through references in the texts by him to Ms Maney of an unmistakeably domestic nature. She took him to texts to his children from the unmistakeable position of fatherhood. He could offer no explanation as to who but himself would be so communicating with his partner and children.

[34] Ms Gordon referred him to an exchange where he texted about being in court, and in fact there was evidence that he was in court on that day. She put to him communications from him when he got his new Rio Grande line to various persons where it was unmistakeably him telling them that this was his new telephone number.

[35] While there may have been other persons occasionally using the telephones to send texts, it was clear when that had happened. In these circumstances it became quite impossible for Mr Nuttall to maintain his position that neither of these lines were operated by him and under some pressure he effectively conceded that he was operating those lines.

[36] Thus, it is quite implausible for Mr Nuttall to maintain the position that these telephones were not his and operated by him. Evidence that he gave along those lines at any trial would with certainty be rejected by the jury. There is therefore no reasonably arguable defence that the texts were not sent by him. As I have said this is the only substantive ground of defence that he puts forward.

[37] His denials of dealing must also be seen in the context that he is now on record about selling methamphetamine. In the communication he gave to his lawyer in respect of which he has waived privilege of 24 June 2011, he states that the amount of methamphetamine he would have sold would have been 40 grams. This will prove an impossible impediment to any assertions of innocence of selling on his part at trial.

[38] I conclude therefore that his assertions that he did not send the texts are entirely implausible, and there is direct evidence that he was selling methamphetamine. There is no clear defence.

Conclusion

[39] In the end it is necessary to stand back and ask whether the interests of justice require that Mr Nuttall be permitted to change his plea and run his defences at trial. The interests of justice do not require this. There was nothing unfair or irregular about his original plea of guilty. Mr Nuttall does not appear to have any defence to the Crown case.

Result

[40] The application to vacate guilty pleas is dismissed.

[41] It is necessary to set a sentence date. However, Mr Horsley reasonably asks for a short period in which to obtain instructions in relation to the summary of facts. I therefore remand Mr Nuttall for sentencing with a date at this point of 9am, Thursday 8 December 2011.

[42] At this stage Mr Nuttall and counsel will have to appear. However, Ms Gordon and Mr Horsley hope that they will be able to work out an appropriate procedure and an appropriate date in time for sentence over the next week. If a

consent memorandum is filed and I am able to do so I will be prepared to vacate that call on the papers and remand Mr Nuttall further to the agreed sentencing date.

...................................

Asher J

---

[1] R v Turrall [1968] NZLR 312 (SC) at 313.
[2] R v Clark CA59/02, 28 May 2002 at [14].

[3] Sharp v District Court at Whangarei [1999] NZAR 221 (HC) at 224.

[4] R v Le Comte [1952] NZLR 564 (CA).

[5] Sharp v District Court at Whangarei at 224.