Fahey v R [2014] NZCA 465 (24 September 2014)

Last Updated: 29 September 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA177/2014 [2014] NZCA 465
BETWEEN	GRENVILLE KOOKIE FAHEY Appellant
AND	THE QUEEN Respondent

Hearing:	2 September 2014
Court:	Ellen France P, Asher and Clifford JJ
Counsel:	Appellant in person H W Ebersohn for Respondent
Judgment:	24 September 2014 at 4.30 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

[1] Grenville Kookie Fahey pleaded guilty in the District Court at Auckland on 25 July 2013 to one count of assault with a weapon and one count of threatening to kill. On 2 April 2014, some seven months out of time, Mr Fahey filed a notice of appeal against his conviction and sentence. On this appeal, he appears for himself. He has filed a long, handwritten submission in support of granting an extension of time and his appeal in general.
[2] In his application for an extension of time for filing the appeal, Mr Fahey stated:

I always intended to appeal the conviction. I had taken steps to prepare an appeal. I was arrested on 4 September 2013 and have been in custody since.

[3] We are prepared to consider this appeal on the merits and grant an extension.
[4] His notice of appeal sets out the following ground supporting the appeal against his conviction:

I pleaded guilty without legal representation. I wished to defend the charge but I was put under pressure to plead guilty.

[5] The situations in which appeals against conviction may be pursued after entry of a guilty plea are circumscribed. This Court in R v Merrilees described those situations as exceptional stating:^[1]

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.

[6] The Court cited from R v Le Page where it was said a miscarriage will be indicated in three broad situations, namely:^[2]

[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.

[7] The Court in Merrilees indicated that there would be a fourth situation, that is:^[3]

... where trial counsel errs in his or her advice to an accused as to the nonavailability 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.

[8] The Court stressed that this fourth situation is restricted. It was recognised that an offender may plead guilty reluctantly, but nevertheless chose to do so for various reasons including the withdrawal of other charges, discounts on sentencing, or because a defence is futile.^[4] Later regret over the entry of a plea does not count. If that plea is made freely where the offender knows what is happening and the likely consequence, and there is no procedural unfairness, a later retraction will be permitted in only very rare circumstances.^[5]

Background

[9] It is the Crown case that on the afternoon of 31 December 2011 Mr Fahey was in Myers Park in central Auckland. The two complainants were walking through the park and were approached by Mr Fahey. They did not know him. They were of Asian ethnicity and Mr Fahey proceeded to racially abuse them. The situation developed into a heated argument. Mr Fahey then pulled out a rock which was inserted inside a sock. He held it in his hands and swung it repeatedly over his head. He then propelled the rock towards the head of one of the complainants hitting him on the back of the head and causing him to fall on the ground.
[10] Mr Fahey’s actions were witnessed by the second complainant, who was the first complainant’s girlfriend. She called the police. Mr Fahey approached her and said to her in an aggressive manner: “I fucken hate you Asians, I’m going to fucken kill you.” He then began to walk away from the area when he was apprehended by the police in an intoxicated state. The first complainant suffered a gash to the back of his head, bruising and slight concussion and required hospital treatment. At the time Mr Fahey gave no explanation for his actions.
[11] Mr Fahey was denied bail and detained in custody. A trial date was set down for 19 November 2012 but did not proceed. There was a hearing of an application by the Crown to adduce propensity evidence of earlier convictions for possession of an offensive weapon and threatening to kill with racist overtones. Mr Fahey successfully opposed the admission of the evidence. Mr Fahey made numerous requests for disclosure, a number of which involved the most detailed information such as the originals of police notebooks and medical receipts. Mr Fahey insisted that one of the complainant’s mothers, who had been one of the group at the time, be called, which the Crown was prepared to do.
[12] On 25 July 2013 the matter came before Judge Rea in the District Court at Auckland on a callover to discuss trial dates. At this point Mr Fahey had been in custody since December 2011, nearly 20 months. There was an exchange then between Mr Fahey and Judge Rea, where the Judge raised with Mr Fahey the sense of him staying on in custody awaiting a trial when he had already been in custody for the approximate time that he might serve if convicted. This exchange culminated in him giving an informal sentence indication and Mr Fahey then pleading guilty. Following the entry of a guilty plea, Judge Rea convicted Mr Fahey and sentenced him to 15 months’ imprisonment.^[6] This meant that he was released that day as he had served that time in custody.
[13] Mr Fahey was arrested approximately six weeks later on a new count and has been in custody since. He filed a notice of appeal against his conviction on 2 April 2014.
[14] Mr Fahey has filed a document which he describes as an affidavit and is dated 13 May 2014, although it does not appear to be sworn and appears to be largely submissions. He also filed separate submissions.
[15] In his written submissions, Mr Fahey did not set out what his defence to the charges would have been had he not pleaded guilty. In oral submissions he referred to having been knocked unconscious by the complainant on a number of occasions. This is unsupported by any factual material and we place no weight on it. We have no doubt that Mr Fahey could in law have been convicted of the offence, and that there was no wrong decision on a question of law. The real issue comes down to the procedural fairness of the events as they transpired, and in particular the fact that Mr Fahey was not legally represented at the time he was given the option of pleading guilty, and elected to plead guilty and was convicted and sentenced.

The hearing

[16] When the matter came before Judge Rea on 25 July 2013, Mr Fahey was unrepresented. This, however, was by his own choice. In October 2012, counsel assisting the Court had been appointed but Mr Fahey refused to speak to him and he was discharged.
[17] The Court still had to deal with a considerable number of issues that had been raised by Mr Fahey in a recent letter to the Court. The Judge made some inquiries about the history and expressed his willingness to allocate a trial date. When the Judge raised the issue Mr Fahey expressed interest in a quick resolution of the matter, and the Judge informed him that he would provide a sentencing range and, if he wished, could sentence him and he could be released quickly. He indicated a sentence of a year to 18 months and that this would be time served.
[18] Mr Fahey then said that he could “go with that”. He repeated this. The Judge asked him whether he wanted time to think about it but Mr Fahey declined. The Judge, however, said that he did not wish him to say later that he was “bulldozed” into pleading guilty. Mr Fahey observed that it would be pointless “hanging around” for a trial in the next year. The Judge said that there would be a short break so that Mr Fahey could think about matters.
[19] The Judge said that if Mr Fahey wanted to speak to a duty solicitor that could be organised and stood the matter down. The Court adjourned and then resumed some 39 minutes later. The Judge asked Mr Fahey what he would like to do and Mr Fahey advised that he would like to plead guilty, but inquired as to whether the sentence was a first strike offence. He was informed that it was not. He also asked if his fines could be remitted. The Judge said that the fines would be remitted.
[20] The Judge then put the two counts to Mr Fahey who pleaded guilty to both of them. Mr Fahey did not wish to be heard on penalty. The Judge fixed a starting point of 15 months’ imprisonment. He increased it to two years to reflect Mr Fahey’s previous convictions. He then reduced it to 15 months to reflect the fact that once the reality of the situation was pointed out he pleaded guilty. Therefore, on each of the two charges he was given a concurrent sentence of 15 months’ imprisonment.

Legal representation

[21] Sections 30(1)–30(3) of the Sentencing Act 2002 provide:

30. No sentence of imprisonment to be imposed without opportunity for legal representation

(1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).

(2) Subsection (1) does not apply if the court is satisfied that the offender—

(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and

(b) fully understood those rights; and

(c) had the opportunity to exercise those rights; and

(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

(3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—

(a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or

(b) quash the conviction and direct a new trial, or make any other order that justice requires.

[22] The purpose of the section is to ensure that a sentence of imprisonment is only imposed on a person who is legally represented at the time he or she is at risk of conviction, unless, having been informed of and understood his or her rights to legal representation and having been given the opportunity to have exercised them, that person fails or refuses to do so.
[23] There is no doubt that on 25 July 2013 Mr Fahey was not represented when he was at risk of conviction, and he was convicted and sentenced.
[24] Mr Fahey has accepted in submissions that he had refused legal representation. Indeed, he had opposed the appointment of counsel assisting stating in a memorandum of 5 June 2012:

The defendant does not require [counsel assisting]. Section 354 of the Crimes Act 1961 stipulates that all accused persons have the right to conduct their own defence. The appointment [counsel assisting] can only be justified where R v Cumming [2006] is applied. Section 25(c) of the New Zealand Bill of Rights Act 1990 further confirms this fact.

He went on to state that he “rejected” the appointment of counsel assisting.

[25] In the months prior to 25 July 2013 Mr Fahey assiduously conducted his own defence. He sought documents and information and opposed the admission of evidence relying on the New Zealand Bill of Rights Act 1990, the Official Information Act 1982 and the Privacy Act 1993. His written material shows that he was keenly aware of court processes. So does his conduct before Judge Rea, where he ensured that the three strikes procedure did not apply, and required remission of his fines.
[26] We are satisfied that prior to 25 July 2013 he had clearly understood his right to be represented by counsel, initially for himself and then for that counsel to be counsel assisting the Court, and that he had firmly rejected the notion of any such assistance. In this regard the facts of this case are quite different from those that arose in the Supreme Court decision of R v Condon.^[7] In that case, in which the Supreme Court emphasised the right to legal representation, Mr Condon was still prepared to entertain the possibility of representation at the time of his conviction. The fact that he was unrepresented led to the quashing of his convictions. However, it was stated in that case that there is no absolute right to legal representation, so where an accused makes an informed choice to go to trial without a lawyer there is no breach of the accused’s rights.^[8] We are satisfied that Mr Fahey made an informed choice to proceed without a lawyer.
[27] Mr Fahey’s case is not within the four categories identified in Merrilees. He has not shown there was a miscarriage of justice. In reaching that conclusion we have considered the overall fairness of Mr Fahey’s position, given his submission that he felt pressured because of the time that would otherwise elapse until trial.
[28] In considering his position the following factors emerge:

• (a) Mr Fahey clearly understood his right to legal representation, and had rejected counsel to assist.
• (b) Mr Fahey had a remarkably long history of court appearances and experience in the court process. He was 47 years old at the time of the offending, and his list of previous convictions covered 21 typed pages. He had been sentenced to prison many times. His handwritten submissions leading up to his convictions show that he was well aware of his right to legal representation and had set his face firmly against it and was conducting his own defence astutely and with vigour (although his demands appear to have been at times excessive and pedantic).
• (c) In his writings and his appearance before us he showed himself to be well able to express himself clearly and sensibly, and he displayed a good level of intelligence and understanding of his legal position.
• (d) When he appeared before Judge Rea the possibility of counsel assisting being appointed in the future was again mentioned by the Crown, and the Judge raised with him the possibility of speaking to a duty solicitor. The Judge gave him time to consider his position. He chose to proceed.

[29] As an additional factor, we record that Mr Fahey provided the Court with no information that might lead to the conclusion that he had any sustainable defence. The Crown case turned on the evidence of witnesses who were actually a party to or witnessed the assault and threat. In the absence of any tangible evidence of a defence we consider that Mr Fahey’s conviction was inevitable. He would have remained in custody while he continued his interlocutory warfare, and we are unable to see how ultimately he could have avoided conviction. The Judge’s actions were patently in Mr Fahey’s interests. Through pleading guilty Mr Fahey was spared many months in prison. The Judge’s intervention was in our view both sensible and fair.
[30] Mr Fahey knew of, understood and opted not to exercise his right to legal representation, having had ample opportunity to do so. We are also satisfied that Mr Fahey fully appreciated the nature of pleading guilty and made a deliberate and informed decision to take that step. We are satisfied that despite the lack of legal representation, s 30(1) of the Sentencing Act does not apply because the factors in s 30(2) apply. Therefore, this appeal has no merit.
[31] Mr Fahey has also raised a number of other grounds of appeal which appear to relate to pre-trial procedures. We agree with Mr Ebersohn for the Crown that these issues have been overtaken by the guilty plea and have no continued relevance.
[32] Mr Fahey’s notice of appeal was against conviction and sentence, although it was in substance a conviction appeal. Mr Fahey touched on his sentence in the course of submissions. We record that the end sentence of 15 months’ imprisonment was within the range, taking into account prior convictions and the guilty plea.

Result

[33] The application for an extension of time to appeal is granted.
[34] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Merrilees [2009] NZCA 59 at [33].

^[2] R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA).

^[3] At [34].

^[4] At [35].

^[5] At [35].

^[6] R v Fahey DC Auckland CRI-2011-004-23797, 25 July 2013.

^[7] R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.

^[8] At [76] and [80].