Hussein v R [2011] NZCA 58 (9 March 2011)

Last Updated: 15 March 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA477/2010 [2011] NZCA 58

BETWEEN ABDUL SALEEM HUSSEIN Appellant

AND THE QUEEN Respondent

Hearing: 2 March 2011

Court: Chambers, Chisholm and Venning JJ

Counsel: P T Eastwood for Appellant S B Edwards for Respondent

Judgment: 9 March 2011 at 9.45 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] Mr Hussein appeals against his convictions of six counts of receiving stolen property. The convictions followed the decision of Judge Blackie in the District Court at Manukau to refuse the appellant’s application to set aside his guilty pleas.
[2] The appellant also appealed against the sentence of six months’ community detention, 300 hours community work and $18,500 by way of reparation, but during the course of submissions Mr Eastwood confirmed the sentence appeal was no longer pursued.

Background

[3] On 21 September 2009 a Toyota Hi-Ace van valued at $35,000 was stolen from Great South Road, Papatoetoe.
[4] The police located the stolen van at the address of Auto Ace New and Used Parts Limited, a business operated by the appellant in Otara. The police executed a search warrant and, in addition to the Toyota Hi-Ace, found another five stolen vehicles as well as the registration plates relating to a further stolen vehicle. The combined value of the vehicles was $104,000.
[5] The appellant was spoken to. He admitted he was the business owner. He said he bought cars from two males who he only knew by their first name. He said he did not do the required checks or record the transactions and had paid cash for the cars. He accepted that some of the cars he had bought had their ignitions damaged. He admitted being careless.
[6] The appellant was charged with seven counts of receiving stolen vehicles. On 18 February 2010 he pleaded guilty to counts 2 – 7 of the indictment. By agreement the Crown did not offer any evidence in relation to the first count involving the Toyota Hi-Ace. The appellant was discharged on that count.
[7] The appellant was then remanded for sentence. However, before sentence he applied to vacate the guilty pleas. He supported the application with an affidavit in which he criticised the attention his former counsel, Mr Singh, had given the matter and the advice he had received from him. The appellant also set out the defences he had in relation to the charges. Mr Singh provided an affidavit in response.

The District Court decision

[8] Judge Blackie heard the application on 23 July. The appellant did not give evidence. Mr Singh confirmed his affidavit and was cross-examined. After hearing the evidence Judge Blackie declined the application to set aside the guilty pleas and proceeded to sentence the appellant.
[9] In declining to set aside the guilty pleas, the Judge directed himself to the authorities of R v Stretch[1] and Hau v Rotorua District Court.[2] As to the evidence, he was quite satisfied Mr Singh had a firm grip of the case, had discussed the facts with the appellant, had advised the appellant in relation to the possible benefits of pleading guilty and had advised of the dangers that existed if the prosecution had gone ahead. The Judge also referred to a transcript of the evidence of a person by the name of Shankar, who was involved in the appellant’s operation. Mr Shankar’s evidence would certainly not have been in the appellant’s favour if the matter had proceeded to trial.
[10] The Judge also considered the defences the appellant wished to raise. He described them as “possible” defences and noted the material the appellant had raised to support them was vague. The Judge found the appellant did not have tenable defences and further, had received competent advice at the time he entered the guilty pleas.

Principles

[11] An accused in the appellant’s position can only succeed on appeal if he can show that, in terms of s 385(1)(c) of the Crimes Act 1961, there has been a miscarriage of justice.[3]
[12] In the case of R v Merrilees[4] this Court restated the relevant considerations, after referring to the case of R v Le Page:[5]

[33] The exceptional circumstances in which an appeal against conviction may be pursued after entry of a plea of guilty are described by this Court in R v Le Page (above) at [16]-[19]. It has to be shown a miscarriage of justice will result if a conviction is not overturned, and where an appellant fully appreciates the merits of his position and makes an informed decision to plead guilty, a conviction cannot be impugned. It was said that a miscarriage will be indicated in three broad situations, namely:

[17] ....The first is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element....

[18] A further category is where on the admitted facts the appellant could not in law have been convicted of the offence charged....

[19] The third category is where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law....

[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.

Application of the principles – the appellant’s case

[13] During the course of submissions Mr Eastwood conceded that the appellant appreciated the nature of the charges he faced. There had been no misunderstanding or mistake.
[14] He also accepted that this was not a case where, on the admitted facts, the appellant could not in law have been convicted of the offence. Nor was the plea induced by a ruling which embodied a wrong decision on a question of law.
[15] The appellant’s case to set aside the convictions was advanced on the basis that his former counsel Mr Singh had erred in his advice as to the non-availability of certain defences or had acted wrongly and perhaps negligently to induce the appellant to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced. Mr Eastwood submitted that the Judge had erred in his findings on those issues and that a miscarriage had ensued.

Evidential issues

[16] Two evidentiary matters arose during the course of the hearing. Mr Eastwood invited the Court to listen to a recording of the appellant’s evidential statement to the police. He submitted it showed that the accused denied the charges. Apparently no transcript was made of the recording. Certainly, there was no transcript before the Judge. The appellant had the opportunity to put whatever evidence he wanted to advance before the District Court in support of his application. No application has been made to this Court for leave to adduce further evidence on the hearing of this appeal. We declined Mr Eastwood’s informal invitation to take the recording in and listen to it.
[17] Next, Mr Eastwood submitted that the Judge had been wrong to take account of the transcript of Mr Shankar’s evidence. It is not clear from the record how the transcript of Mr Shankar’s evidential statement was before the Court. However, it was before the Judge as he referred to it in his decision. There is no record of any objection being taken to the Judge considering it.
[18] Mr Eastwood submitted that Mr Shankar’s evidence should not have been considered as he would not have been available as a witness for the Crown at trial. But, although Mr Shankar was initially charged with the appellant, he pleaded guilty at an early stage. Given the guilty plea he would have been available to the Crown as a witness against the appellant. His evidence was damaging to the appellant’s case. The Judge was entitled to consider it.
[19] But, even if Mr Shankar’s evidence was put to one side, it was only one of a number of factors the Judge relied on in declining to set aside the guilty pleas.

Decision

[20] The issue underlying the argument for a miscarriage of justice in this case is whether the appellant has been denied the right to present a defence to the charges. What then was the defence Mr Hussein says he has been denied the opportunity to put before the Court? In his affidavit Mr Hussein said:

14. To review my defence in relation to Count 2 Nissan Navara I paid two thousand dollars for part of the vehicle not the complete vehicle.
15. In relation to Count 3 and Count 5 the Honda Odyssey and the Nissan van the arrangement was that if I removed the engine and gearbox my payment would be the shells of the vehicles. I was told that the vehicles had been deregistered.
16. In relation to Count 4 the Toyota Estima I paid $400.00 for the shell. This vehicle did not have an engine or transmission.
17. On Count 5 another Toyota Estima, this was just half of a shell and I was given it when I purchased the Nissan Navara for $2000.00
18. Count 7 was receiving a Nissan Terrano. I have never had possession of this vehicle but I am advised a number plate was found on my premises.
19. In relation to some of these vehicles I told the Police I had purchased them from a Tongan person called Kenny and I had purchased vehicles from him in the past and I had no reason to believe that they were stolen vehicles.

[21] The affidavit is in very general terms. It provides very limited support for any sort of defence, but Mr Eastwood submitted the proposed defence was that the appellant did not know the vehicles were stolen. Mr Eastwood argued there had been a miscarriage because the appellant’s explanation provided an arguable defence and it was a matter for the jury to determine whether they believed the appellant or not. The fact the appellant may have paid something for the vehicles does not provide a defence. Receivers often pay something for the stolen property. The appellant gave no evidence as to the steps he took to check the vehicles/parts were not stolen. Further, the test for miscarriage is somewhat more rigorous than that suggested by Mr Eastwood.
[22] Even if the offender has an arguable defence, if he or she freely pleads guilty after proper advice about the charges and the quality of the defence then it will be difficult to establish a miscarriage based on a lack of understanding of the possible defences unless the appellant can show the advice was deficient.[6]
[23] Mr Singh gave evidence that he told the appellant wilful blindness was not a defence to the charges of receiving. He said he also gave the appellant some examples. For instance if a car was brought to the appellant’s workshop with the ignition missing then one should become cautious whether the vehicle was stolen or not. As noted, the appellant was silent as to the steps he took to check the history of the vehicles/parts when purchasing them. Mr Singh advised him of the difficulty he faced in that there was no proof the cars he received were purchased legitimately. The appellant kept no records and had paid cash for the cars. While the appellant says that he told Mr Singh he was not responsible for receiving the Nissan Terrano nor the Toyota Estima (counts 7 and 6) Mr Singh deposed otherwise and was cross-examined on it. The Judge accepted Mr Singh’s evidence on this and the other relevant points. Mr Eastwood was unable to direct us to any particular error in the advice Mr Singh had given the appellant.
[24] There is a further matter. The appellant did not plead guilty to all charges. On the charge he did not accept liability on, count one, Mr Singh was able to negotiate with the Crown to offer no evidence. The appellant was discharged on that count. That supports the Judge’s conclusion that proper consideration was given to the remaining pleas.
[25] The appellant’s position is really summed up in his affidavit, when he says that now, he is not happy about the guilty pleas he entered. But that is not sufficient. As this Court observed in Merrilees:[7]

[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.

[26] This is not one of those rare cases. The Judge was correct to refuse the application to set aside the guilty pleas. There has been no miscarriage in this case.

Appeal against sentence

[27] As noted Mr Eastwood confirmed that the appellant did not wish to pursue the appeal against sentence. He did suggest somewhat faintly that the appellant was unhappy about the reparation order. On our review of the sentence we are satisfied it was an appropriate response to the offending in this case.

Result

[28] The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent

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[1] R v Stretch [1982] 1 NZLR 225.
[2] Hau v Rotorua District Court [2009] NZAR 35 (HC).
[3] R v Stretch [1982] 2 NZLR 225.
[4] R v Merrilees [2009] NZCA 59.
[5] R v Le Page [2005] 2 NZLR 845 (CA).
[6] R v Stretch [1982] 1 NZLR 225 (CA).
[7] At [35].