Police v Nicholas [2017] NZDC 4700 (3 March 2017)

Last Updated: 2 February 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT NEW PLYMOUTH

CRI-2016-043-000912 [2017] NZDC 4700

NEW ZEALAND POLICE

Prosecutor

v

MARK GREGORY NICHOLAS

_Defendant

Hearing:	3 March 2017
Appearances:	J Bourke for the Prosecutor S Hurley for the Defendant
Judgment:	3 March 2017

_{ORAL JUDGMENT OF JUDGE C D SYGROVE﷢}

[1] This is an application by Mr Nicholas to change his plea from one of guilty to not guilty. His application was filed on 17 January and it is a notice of interlocutory application pursuant to s 115 Criminal Procedure Act. The grounds are that he pleaded guilty on the basis that he could not establish who was driving the motor vehicle, that he does not believe he was the driver of the motor vehicle and that he has given the name of [his friend] as the driver of the motor vehicle who was involved in the two accidents. He has also filed an affidavit in support of that application in which he repeats that he is very suspicious that [his friend] was the driver because he has spoken to him and when he confronted him his behaviour was evasive and he initially denied

_{that he was the driver but Mr Nicholas is of the opinion that his evasive behaviour and}

NEW ZEALAND POLICE v MARK GREGORY NICHOLAS [2017] NZDC 4700 [3 March 2017]

knowing him as he does that he was not prepared to accept he was the driver when in fact he was.

[2] He says that the evening in question was somewhat of a blur. He was clearly intoxicated. He believes that he could well have been drugged as well and his recovery from that evening took several days which is unusual for him. He quite frankly admits that he was given legal advice prior to entering his plea of guilty but he is firmly of the belief that [his friend] was the driver.

[3] Ms Hurley has filed submissions dated 28 February. She refers me to s 115

Criminal Procedure Act which states a plea of guilty may by leave of the Court be withdrawn at any time before a defendant has been sentenced or otherwise dealt with. She refers to the history of the matter and to various cases relating to when such leave is given and she says in paragraph 9 that it is accepted that leave will rarely be given when the defendant has been given legal advice before the plea. She refers me to R v Stretch1 and says it is in rare circumstances. Apparently this includes even if the the defendant has an arguable defence which he or she chose not to advance after proper advice about the charges and the quality of the defence and she refers me to Hussein v R2. She repeats what Mr Nicholas has said that he believes [his friend] is the driver and she confirms as did Mr Bourke today that they have not yet interviewed [his friend], they are waiting to see if this application is successful.

[4] Ms Hurley goes onto say that the two witnesses for the police say they saw Mr Nicholas climbing over the driver’s seat but they did not see the accident as it happened. She says that they both heard a loud bang and then went outside after they had heard the bang and she says it is possible that a person could have exited the car and run or walked away. Certainly in those circumstances if [his friend] was the driver one could understand why he might do that to avoid apprehension.

[5] The police submissions are quite clear, they oppose this application and they say a guilty plea was entered following legal advice from a competent and experienced

_{lawyer. There is no information before the Court from Ms Hurley concerning that}

1 R v Stretch [1982] 1 NZLR 225

2 Hussein v R [2011] NZCA 58

advice and it can only be presumed that discussions occurred and a decision was made based on the evidence available.

[6] They say that the defendant’s affidavit is alarming and it shows he has no recollection of the night and a very high breath alcohol reading and that would be consistent with his memory loss and they refer me to various cases including R v Merrilees3, R v Stretch which Ms Hurley referred me to and again R v Hussein. They say that they have made some efforts already to speak to [his friend]. They can confirm he is a real person from Waitara. He works in the oil industry and has spent a lot of time outside of New Zealand. In addition, they have confirmed by enquiries with customs that he was in New Zealand on 4 June which was the morning of the crash and the flight he was on arrived at 6.05 am. This offending occurred at 11.32 pm on that day so it certainly is possible that [his friend] could have travelled from Auckland to New Plymouth and been the driver of the motor vehicle.

[7] Although this application comes very late in the day so to speak, I am concerned that potentially Mr Nicholas was not the driver. Until the police are able to conduct enquiries of [his friend] to see if he is prepared to admit he was the driver, the matter may need to go to a defended hearing with [his friend] called to give evidence.

[8] Accordingly, the application is granted and the pleas of guilty are vacated. Mr Nicholas, you are remanded to a case review on 13 April for police to interview [his friend].

C D Sygrove

_{District Court Judge}

3 R v Merrilees [2009] NZCA 59