THOMPSON-MORGAN V NEW ZEALAND POLICE HC AK CRI-2009-404-000185 [2009] NZHC 1229 (10 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                     CRI-2009-404-000185



                      CHASE JARROD DAVID THOMPSON-MORGAN
                                     Appellant



                  
                               v



                                    NEW ZEALAND POLICE
                                     
   Respondent



Hearing:              8 September 2009

Appearances: P Heaslip for Appellant
             E Wilson for Crown

Judgment:
            10 September 2009 at 4.00 p.m.


                                  JUDGMENT OF VENNING J




This judgment was delivered
by me on 10 September 2009 at 4.00 pm, pursuant to Rule 11.5 of the
High Court Rules.


Registrar/Deputy Registrar

Date...............




Solicitors:           Crown Solicitor, Auckland
Copy to:              P Heaslip, Auckland




THOMPSON-MORGAN V NEW ZEALAND POLICE
HC AK CRI-2009-404-000185 10 September 2009

Introduction


[1]    On 29 January 2009 the appellant pleaded guilty to a charge of
driving while
his licence was suspended. Judge Hinton disqualified him from driving for six
months from 7 March 2009 and fined him
$200. On 2 June the appellant pleaded
guilty to a number of charges arising out of his driving on 17 March 2009 including
one of
driving whilst disqualified. He was sentenced to community work for 125
hours and disqualified for a further period.


[2]    The
appellant now seeks leave to appeal the conviction and consequent
sentence of disqualification entered on 29 January 2009 and appeals
the conviction
and disqualification entered on 2 June 2009.


Background


[3]    The appellant is 18 years old. He has a bad driving
record. On 8 December
2008 he was served with a notice of suspension of licence under s 90 of the Land
Transport Act 1998. The notice
confirmed that his driver's licence was suspended
for a period of three months from the date the notice was served. The suspension
ended on 7 March 2009.


[4]    Despite the suspension, on 25 January 2009 the appellant was driving a car.
When stopped by the police
he admitted his licence had been suspended in
December but said he thought the suspension had finished. The appellant was
charged
with driving while his licence was suspended. He came before the District
Court on 29 January. He saw the duty solicitor before pleading
guilty to the offence.
Judge Hinton dealt with him as noted above.


[5]    The appellant has committed a number of other driving
offences during the
period of disqualification imposed by the Judge. On 17 March 2009 he was driving
a car at Waiake Beach. His driving
was so bad the police were called. He was
spoken to by the police. The police noted he was affected by alcohol. A breath test
confirmed
that his level of alcohol exceeded the breath alcohol limit permitted for an
under 20 year old. The appellant initially denied that
he was driving but admitted

that he was disqualified. The appellant came before the Court on those charges on 2
June 2009. Again
he was seen by a duty solicitor. After taking advice from the duty
solicitor he entered pleas of guilty to driving while disqualified,
and two other
charges arising from his driving on 17 March 2009. On all charges he was convicted
and sentenced to 125 hours of community
work and disqualified from driving for six
months.


[6]    Shortly before his appearance on 2 June 2009 the appellant was yet again
stopped while driving on the North Shore on 28 May. When stopped he gave a false
name to the police. He appeared in the District
Court on those charges on 8 June.
On that day he discussed the charges he faced with Mr Heaslip. It was the first time
Mr Heaslip
had represented the appellant. Given that the appellant was facing a
charge of driving whilst disqualified for a possible third time,
Mr Heaslip went
through the appellant's history. When counsel considered the summary of facts
relating to the driving whilst suspended
on 29 January he noted the appellant had
said to the police that he thought the suspension had finished. Mr Heaslip advised
the appellant
that might have provided a defence to the charge because mens rea is
required for a charge of driving whilst disqualified or whilst
the licence is suspended.


[7]    The appellant therefore filed the application for leave to appeal out of time in
relation to the
conviction entered on 29 January 2009 and filed an appeal against the
conviction entered on 2 June 2009 for driving whilst disqualified.


Procedural matters


[8]    The appeal against the conviction entered on 29 January is well out of time.
Leave is required. Although
the Crown formally oppose leave this is one of those
cases where it is necessary to consider the merits of the appeal to determine
whether
leave ought to be granted.


[9]    Mr Heaslip's focus in submission was on the conviction entered on 29
January. He accepted
that the appeal against the conviction entered on 2 June 2009
was dependent upon the outcome of the appeal in relation to the 29
January

conviction. If that conviction stood then he accepted there was no basis for the
appeal in relation to the conviction on
2 June.


Challenge to a guilty plea


[10]   Both the District Court and High Court may grant leave to a defendant to
vacate a guilty
plea at any time prior to sentence.


[11]   Where an application is made to withdraw a guilty plea before sentence, the
applicant
must satisfy the Court the interests of justice require leave to vacate the
plea be granted: R v Ripia  (1984) 1 CRNZ 145, 150; R v Turrall  [1968] NZLR 312,
313. Further, although the discretion is not lightly exercised, several grounds have
been recognised as justifying the grant of
leave, including where there is a clear
defence to the charge: R v Le Comte  [1952] NZLR 564.


[12]   But it is more difficult to challenge a guilty plea once sentence has been
imposed. There is no inherent jurisdiction to
set aside a conviction or vacate a guilty
plea following sentence: R v Draper  [1985] 1 NZLR 129 (CA). The appropriate
procedure is to appeal: R v Le Page  [2005] 2 NZLR 845 (CA) paras [14] and [15].


[13]   Only in exceptional circumstances will an appeal against conviction be
entertained after sentence
following a guilty plea. An appellant must show that a
miscarriage of justice will result if the conviction is not overturned: R
v Le Page and
R v Stretch  [1982] 1 NZLR 225, 299.


[14]   Whether the appeal is to the Court of Appeal following a plea of guilty on a
charge laid indictably or to this Court
following conviction on a summary matter the
applicable principles should be the same: R v Kihi CRI-2006-409-161 HC CHCH
Panckhurst
J.


[15]   In a number of cases the Court has considered what might amount to the
exceptional circumstances required to set aside
a guilty plea following sentence. In
R v Stretch, Cooke J noted that:

        A dictum often quoted is that of Avory J delivering
the judgment of the
        Court of Criminal Appeal in R v Forde  [1923] 2 KB 400, 403:

              "A plea of Guilty having been recorded, this Court can only entertain
              an appeal against conviction
if it appears (1) that the appellant did not
              appreciate the nature of the charge or did not intend to admit he was
              guilty of it, or (2) that upon the admitted facts he could not in law
              have been convicted of the offence
charged."


In Adams on Criminal Law at para CA385.17 at least three broad situations are
identified:


        ·     If the plea
was induced by a ruling which embodied a wrong decision on
              a question of law;


        ·     Where the appellant did
not appreciate the nature of the charge or did not
              intend to admit guilt on the charge to which he pleaded guilty;


        ·     Where on the admitted facts the appellant could not in law have been
              convicted of the offence charged,
either because there is evidence to show
              the accused is not guilty or because there was a legal bar, or because the
              necessary requisites for bringing of a prosecution had not been met or
              because the form of the indictment
was fundamentally flawed.


[16]    As Cooke J noted in R v Stretch, the examples are not exhaustive. There may
be other cases where
a plea of guilty will be treated as a nullity. The examples do,
however,      emphasise       that   following      conviction  
    and    sentence      exceptional
circumstances are required. The applicant must show there will be a miscarriage of
justice if
the guilty plea is not set aside.


The conviction of 29 January 2009


[17]    The appellant's case is that he has a defence to
the charge he pleaded guilty
to, that of driving whilst his licence was suspended.

[18]       That requires consideration of whether
there is evidence of such a defence
and, if there is, whether there would be a miscarriage of justice if, in all the
circumstances
of the case, the guilty plea was not set aside.


[19]       The basis for the application for leave to appeal and the substantive
appeal
itself is that the Court of Appeal decision in Millar v Ministry of Transport  [1986] 1
NZLR 660 confirmed mens rea is a required element of a charge of driving whilst
disqualified (or, in this case, driving whilst the licence
is suspended).


[20]       In Millar the Court reviewed what it considered to be the unsatisfactory state
of the law at that stage
and concluded that driving while disqualified is an offence
involving mens rea. Cooke P, in delivering the decision of himself and
Richardson
J, said:

           In other words mens rea, in the sense of guilty knowledge, should be
           understood to be
an ingredient of the offence. But, on proof that a
           disqualification order still in force was duly made against the defendant,
his
           knowledge of the disqualification is naturally to be assumed in the absence
           of evidence suggesting otherwise.
If there is such evidence, the prosecution
           must affirmatively prove knowledge beyond reasonable doubt.

           (p
669)

[21]       McMullin J put it this way:

           It would be unreasonable to regard a disqualified driver as having no defence
           to the charge when he had an honest belief that the disqualification period
           had expired or that none had ever
been imposed.

And later:

           Mens rea in this context is the absence of an honest belief in the existence of
          
facts (the expiry of the disqualification period) which, if true, would make
           the act innocent.

           (both at p
673)

[22]       At this stage, as the appellant pleaded guilty, the only evidence before the
Court is the evidence filed in relation
to this appeal. The appellant has filed an
affidavit and Mr Heaslip has arranged for affidavits to be filed from the duty
solicitors
who acted for the appellant on earlier occasions. The Crown have filed an
affidavit confirming service of the notice of suspension.

[23]   Mr Heaslip submitted that on the basis the appellant had told the officer on
25 January that he thought the suspension had
finished, there was evidence the
appellant did not have mens rea and was thus not guilty. The appellant is recorded
in the summary
of facts relating to the driving on 25 January as giving that
explanation.


[24]   But as Millar makes clear, where the disqualification
or suspension is still in
force, and was duly made, (and in this case served), the appellant's knowledge of it
is to be assumed in
the absence of evidence suggesting otherwise. For a defence of
lack of mens rea in the present case what is required is evidence
of an honest belief
that the suspension period had finished.


[25]   The appellant's initial exculpatory response to the police
when spoken to on
25 January is not evidence of such an honest belief. There is nothing of particular
significance in that initial
response, which he did not maintain when he entered his
guilty plea. The appellant has given and retracted explanations to the police
for his
behaviour on other occasions. When spoken to in relation to the later offending on
17 March he initially denied he was driving
at all. But he subsequently pleaded
guilty to driving with excess breath and operating a motor vehicle with sustained loss
of traction
and thereby accepted he was driving. He does not seek to appeal those
convictions.


[26]   Further evidence than the initial response
to the police is required to raise the
defence of lack of mens rea through honest belief the suspension was no longer
operative.


[27]   Having had the significance of the issue drawn to his attention by counsel,
the appellant had the opportunity to put such
further evidence before this Court in
support of his application for leave to appeal.         Despite that opportunity, the
appellant's
evidence on the point is limited. In his affidavit he says:

       [Counsel] asked me about the conviction on 29 January 2009. I
explained to
       [him] that I had miscalculated the dates. ...

And later:

        I confirm that I would have asked for a hearing
on the 29 January 2009 had I
        been given an opportunity to do so. My miscalculation was just a matter of
        days and it depressed me greatly when
I was told I had got it wrong.

[28]    The appellant's evidence is plainly wrong. The suspension notice served on
him on 8 December
2008 recorded, in bold, that:

        In accordance with subsection 90(4) of the Act, you are unable to drive
        or obtain
a driver licence (including endorsements) for the 3-month
        duration that this notice remains in effect (other than a limited
licence
        that has been issued by the Agency under the authority of a Court
        Order).     Driving while suspended, disqualified,
or outside the
        restrictions of a limited licence, is a serious offence carrying substantial
        penalties. Conviction
for a first or second offence carries a penalty of
        imprisonment for a term not exceeding three months or a fine not
    
   exceeding $4,500 and a mandatory six (6) month driver licence
        disqualification.

[29]    The driving incident occurred
on 25 January 2009, six weeks after service of
the notice and only halfway through the suspension notice. The suspension was not
due to end for another six weeks.          That is not a matter of a few days or a
"miscalculation" of a few days as the appellant
seeks to suggest. The evidence of the
appellant that he miscalculated the dates and was only a few days out is
disingenuous. It does
not provide any basis to support an ultimate finding that he
had an honest belief the suspension had expired when he was driving
on 25 January
2009.


[30]    Mr Heaslip submitted that the Crown should have called for the appellant to
be cross-examined if they
did not accept his evidence. But there was no need for the
Crown to call for his cross-examination. The appellant's own evidence,
as it stands,
is insufficient to make out the requirement for an honest belief that his suspension
had finished. The appellant's
situation can be contrasted with the findings of the
District Court Judge in Millar and the example discussed by McMullin J in that
case.
The appellant falls at the first hurdle.


[31]    But there is an additional hurdle for the appellant in this case. It is
that he
must show exceptional circumstances and that a miscarriage of justice would result if
the conviction is not overturned. The
appellant also fails to satisfy the Court that
such is the case.

[32]   At its highest, if it was accepted, the appellant's evidence
could possibly
provide the basis for an arguable defence to the charge. But even prior to conviction
and sentence, a clear defence
is required. The appellant's evidence hardly provides a
clear defence. After conviction and sentence even more is required. There
must be
evidence to show the appellant is not guilty or that to maintain the conviction would
be a miscarriage of justice.


[33]
  As the Court of Appeal held in the case of Stretch:

       In deciding whether a miscarriage of justice has been shown the Court
       should, in our view, look at all the circumstances.

       (p 229).

[34]   After considering all the circumstances in this
case I am satisfied there is no
miscarriage of justice in the maintenance of the guilty plea in this case. On the
admitted facts
the appellant was properly convicted of the offence of driving while
his licence was suspended. The appellant's case can be contrasted
with the cases of
R v Turrall  [1968] NZLR 312 and R v Foster  [1984] 2 All ER 679, cases cited in
Adams as supporting an appeal where there was evidence to show the accused was
not guilty. In Turrall it was accepted
the appellant had pleaded guilty to save his
wife from charge even though he may not have committed the offence, and in
Foster, a
recidivist offender admitted to sexual offences that an intellectually
handicapped person had earlier admitted to and been sentenced
for.


[35]   In both cases there was evidence the appellant was not guilty. That is not the
situation in the present case. I also
note that in Turrall the application was brought
before sentence so that the threshold would have been lower in any event. The
argument
that the appellant could not in law have been convicted might, for
example, have application in the present case if there was evidence
someone other
than the appellant was the driver on 25 January, but there is no suggestion of that.


[36]   During the course of
submission Mr Heaslip also suggested that there was a
miscarriage of justice in maintaining the conviction on the ground that the
appellant
did not receive any appropriate advice on 29 January so that he was not provided his
rights under the New Zealand Bill
of Rights Act 1990. However, the appellant was

provided legal counsel before pleading guilty. Ms Savea was recorded as the duty
solicitor representing him in Court on 29 January. She has sworn an affidavit
confirming that given the number of duty solicitor
matters progressed she does not
specifically recall the appellant. She said that if she did not see him prior to
appearing for him
in Court another duty solicitor would have seen him and presented
her with a sheet regarding his case but she has no recollection
of his case. That is
completely understandable given the volume of work undertaken by duty solicitors
in busy District Courts. Importantly
the appellant accepts that he was seen by a duty
solicitor. There has been no breach of his right to counsel nor any other breach
of
his rights under the Bill of Rights.


[37]     I conclude that was no miscarriage of justice in the entry of the guilty plea
on
29 January and there will be no miscarriage in maintaining the conviction and
sentence. This is not an exceptional case which
requires the conviction entered that
day to be set aside.


The 2 June conviction


[38]     As Mr Heaslip conceded, the appeal in
relation to the conviction for 2 June
rested entirely on the first appeal.


[39]     For the sake of completeness, I note the notice
of appeal raises a second
ground, that the appellant was not driving on a road as he was driving on a beach.
There is no merit in
that ground. Section 2 of the Land Transport Act 1998 defines
road as including a beach.


Result


[40]     The application for
leave to appeal out of time is granted but the appeals are
dismissed.

                                               __________________________
                                               Venning J