Vale v R [2011] NZCA 290 (22 June 2011)

Last Updated: 29 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA748/2010 [2011] NZCA 290

BETWEEN DANIEL VALE Appellant

AND THE QUEEN Respondent

Hearing: 15 June 2011

Court: Wild, Keane and Miller JJ

Counsel: No appearance for Appellant K Laurenson for Respondent

Judgment: 22 June 2011 at 12 noon

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] By notice of appeal received by the Court on 8 November 2010 Mr Vale appeals against his conviction on a charge of arson – intentionally setting fire to the Helensville Rugby Club premises.
[2] He pleaded guilty to that charge, and another charge of arson, upon arraignment in the Auckland District Court on 23 February 2010.
[3] The outcome of minutes issued by Harrison J and Wild J successively, and of communications between the case officer and Mr Vale was:

• (a) Mr Vale filed a one page handwritten submission.
• (b) He indicated that he was happy for his appeal to be heard on the basis of this submission and in his absence.

[4] Two aspects of Mr Vale’s notice of appeal are particularly relevant:

• (a) He advised that he wished to call four witnesses: Paul Daniels; Shilo Takamore; Abraham Swanson; Bubz Ryder.
• (b) He asserted that Paul Daniels was the one who had set fire to the Helensville Rugby Club premises, and that Mr Daniels had admitted that to Mr Vale, telling Mr Vale that he was going to make a statement to the police saying Mr Vale was the culprit.

[5] The relevant points in Mr Vale’s handwritten submission are that he again:

• (a) Denied guilt for the arson at the Helensville Rugby Club premises.
• (b) Blamed Paul Daniels, asserting that Paul Daniels had told him he had caused the fire.

[6] Three insuperable obstacles bar any prospect of Mr Vale succeeding with this appeal. First, when interviewed by Detective Palma on 11 September 2009, Mr Vale frankly admitted setting fire to the Helensville Rugby Clubrooms. The transcript of this videotaped interview includes the following:[1]

17. OK. Alright and so after that happened, what hap, what did, where did, where did you go?
1. Ah um I just um, I was really angry and down and out and I just um and I had a spray can on me, and I just went down to the um club rooms and um yeah, ... some um go and kick the window, yeah.
17. You kicked it?
1. Yeah I think I kicked it.
17. Yeah.
1. And then I um, went upstairs and um ... just um, ...um I just lit this piece of paper so I could see, and it kind of just spreaded, and I just took off.
17. Mmm.
1. Yeah and I, I took off. Yeah.
17. OK, so, so upstairs there were in the main room, there were two different places where fires have been lit.
1. Oh really, no I only lit one.
17. Mmm.
1. One, and it was, I think it was um like by a um, ah computer ... it was like paperwork that was by the fax.
17. Yeah.
1. or by a printer or something,
17. Mmm.
1. Yeah. ...
17. OK, and there was another, another table just very near by there.
1. No.
17. It had a little bit of paper burnt on the top of it.
1. No I just remember lighting a piece of paper so I could see.
17. Alright.
1. And it kind of just spreaded and got really big and out of control and I ... it.
17. So after that you went back out to the hall?
1. Um, no I went down the steps.

And:[2]

17. So what was the main reason that you set light to the, the rugby clubrooms or the school upstairs.
1. Oh cos I was um, just pissed off, because of um what Abraham and Damian done to me that night.
17. Yeah.
1. And I was really fucked off, you know I was really mad with them ...
17. Yeah.
1. ... you know.
17. Yeah.
1. They’d just given me a hiding you know, they’re like my only friends, and that’s another reason I wrote that Tori thing.
17. Yeah.
1. yeah. I didn’t mean for it to catch alight ... you know, that was a total accident. I was just trying to see, in the dark, by lighting a piece of paper and just ... got out of hand and
17. Mmm.
1. Yeah.

[7] Secondly, an appeal against conviction following a plea of guilty will only be entertained in exceptional circumstances.[3] Fundamental is that an appellant who pleaded guilty must show that a miscarriage of justice will result if the conviction is not set aside. Of the established circumstances (and they are not closed) that will result in a miscarriage of justice, only two could apply here. The first is where the appellant did not appreciate the nature of the charge he pleaded guilty to. Mr Vale is not suggesting that this was his position. It is just that he is now asserting that he did not do what he admitted to the police he had done and later pleaded guilty to doing. The second circumstance that might apply here is where counsel has fallen down on their task of advising an accused about available defences, and generally about likely outcomes at trial.
[8] Ms Laurenson makes the point that the Crown cannot take either of these circumstances further without the benefit of an affidavit from Mr Vale or a waiver (we think both) enabling the Crown to discuss the matter with counsel who appeared for Mr Vale when he pleaded guilty. Ms Laurenson notes this counsel confirmed to the Court, in his call-over memorandum, that he had advised Mr Vale about sentencing discounts for pleading guilty.
[9] There are steps Mr Vale needed to take if he really wanted to challenge on this appeal the adequacy of counsel’s advice at the time he pleaded guilty to this arson charge. The Court advised him about these steps, twice. The Court urged him to obtain legal advice. Ms Laurenson tells us that the Crown also told Mr Vale about those steps. He has not taken them.
[10] The third obstacle standing in Mr Vale’s way involves the evidence he indicated he wanted to call. This Court will not receive that evidence unless Mr Vale demonstrated that it was not available at the time of trial (or in this case at the time he pleaded guilty plea) and is “sufficiently credible”. All the proposed evidence was available to Mr Vale at the time he pleaded guilty. That is clear from the grounds set out in his notice, as well as his one page written submission. A further point is that Mr Paul Daniels, who Mr Vale says is the culprit, made a deposition statement dated 22 September 2009. In that statement Mr Daniels, who was a neighbour of Mr Vale at the time of the arson, stated that Mr Vale admitted to him that he had lit the fire at the Helensville Rugby Clubrooms:[4]

Oh yeah I think I did, it was me and Michael. I remember breaking the windows or the doors.

[11] Although implicit rather than explicit in the statement, is a denial by Mr Paul Daniels that he was the arsonist.
[12] For the reasons we have given, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Transcript at 17/2–30.
[2] Transcript 20/15-31.

[3] R v Stretch [1982] 1 NZLR 225; R v Le Page [2005] 2 NZLR 845 (CA) and R v Coutts [2009] NZCA 347.
[4] At 4 of the statement, and at 45 Case on Appeal.