I v Police HC Auckland CRI-2008-404-239 [2009] NZHC 144 (17 February 2009)

Last Updated: 26 November 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2008-404-239}

I

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 17 February 2009

Appearances: Mr J Milo for Appellant

Ms S Buckley for Crown

Judgment: 17 February 2009

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

Solicitors:

Crown Solicitor, Auckland

_{Sapolu Law, Manurewa}

I V NEW ZEALAND POLICE HC AK CRI-2008-404-239 17 February 2009

[1] Mr I was charged in the District Court with an unusual form of theft. The charge was laid under ss 220 and 223(a) of the Crimes Act 1961 and was cast in the following terms:

That he having possession of property namely beans, apples, taro in circumstances that he knows requires him to account to any person, namely Maxco Labour Ltd for the property and intentionally dealt with the property otherwise than in accordance with those requirements and thereby committed theft.

[2] Mr I admitted the charge when he appeared in the District Court on 15

January 2008. At that time he was remanded at large on the basis that diversion was an option. Diversion was subsequently declined, however, and Mr I was ultimately convicted on the charge in accordance with his plea and was ordered to pay costs of $300.

[3] He now appeals to this Court against his conviction. He does so on the basis that the District Court wrongly declined an application that he made to vacate his guilty plea.

[4] Before dealing with the issues that the appeal raises I propose to set out the factual background to the alleged offending.

Factual background

[5] Mr I was employed by Maxco Labour Ltd in Mt Wellington as a storeperson. His duties required him to work in the store bay loading product, including fruit and vegetables, onto trucks.

[6] On Saturday 22 September 2007 Mr I was working a night shift at his employer’s premises in Carbine Road, Mt Wellington. At about 2.35 am he was recorded on a surveillance camera walking to a vehicle and placing a bag inside it. At about 3.15 am he was recorded, again on surveillance camera, this time placing another item into the side of the vehicle. He was then seen beside the vehicle at about 5.30 am. At that point he was approached by two other staff members who advised him that he had been observed on surveillance cameras acting suspiciously. They asked him for permission to check the inside of his vehicle for any produce that

might belong to his employer. Mr I denied having any produce in his vehicle and declined permission for the two staff members to look inside it. They then left the area.

[7] After the two staff members left the area Mr I got inside the vehicle and drove it to a rubbish bin. He then took the bags from the vehicle and placed them in the bin. He then got back into the vehicle and drove up to the entrance where the two staff members with whom he had dealt earlier were working. He invited them to look inside the vehicle but they declined to do so.

[8] After Mr I had left the area the two staff members inspected the rubbish bin. Inside the bin they saw various items of produce including beans, apples, pears and taro. The produce had a value of approximately $127,000 and was at all material times the property of Mr I ’s employer.

[9] Mr I was subsequently interviewed by the police and denied taking any produce. Notwithstanding his denial he was charged with the theft of the produce.

The proceedings in the District Court

[10] The proceedings in the District Court were not without some complications. Mr I appeared for the first time on 15 January 2008 when, as I have said, he was remanded at large to appear again on 14 March 2008. It is unclear whether he was actually offered diversion at this time or whether he was remanded to 14 March so that diversion could be considered. Given my overall conclusion in relation to the appeal it is not necessary for me to concern myself further with any confusion that may exist in relation to this issue.

[11] I am advised by counsel for the respondent that within a week of 15 January

2008 the police wrote to Mr I advising him that they were no longer prepared to offer diversion. The change of heart is said to arise from the fact that Mr I continued to deny the charges. Counsel for Mr I advised me that the police view regarding Mr I ’s continued denial of the offences is likely to have arisen as a

result of the interview that occurred before his arrest and not from any subsequent interview.

[12] When the matter came back before the Court on 14 March 2008 the presiding

Judge noted that diversion had been declined. Mr I was remanded at large to 10

April 2008 so that he could file an application for discharge under s 106 of the Criminal Justice Act. The Judge noted that that application was to be in writing and was to be accompanied by submissions and evidence in support. All of those documents were to be filed and served by 28 March 2008. The police were to file and serve any submissions in reply by 4 April 2008.

[13] The matter came before the Court again on 10 April 2008. By that date counsel for Mr I had filed an application for discharge and written submissions but no evidence had been filed in support of the application. At that point the proceeding was adjourned again until 24 April 2008.

[14] On 24 April 2008 the proceeding was called before His Honour Judge Moore. He dictated a minute in which he appropriately described the situation as being “chaotic”. He took the view, however, that Mr I should have one last opportunity to tidy matters up. He granted a final remand at large to 16 May 2008. He also gave further directions for the filing and service of affidavit evidence in support of the application.

[15] By this stage, counsel for Mr I had also filed an application seeking leave for Mr I to withdraw the guilty plea. The material that counsel had filed in support of the application did not, however, include affidavit evidence to support the application. The timetable orders that the Judge made on 24 April 2008 attended to that issue also.

[16] The proceeding appears to have meandered further through the District Court system with further remands in May, June and July 2008. Eventually it came on for hearing on 1 August 2008 before His Honour Judge Andrẻe Wiltens. Judge Andrẻe Wiltens accepted that Mr I may have been induced to enter a plea of guilty on the basis of the information that he would be a candidate for diversion. He noted,

however, that Mr I had filed no evidence to support his contention that he had a defence to the charge. He took the view that the Court needed to be satisfied that the plea was being vacated for a valid purpose. In the absence of any information as to the proposed defence, the Judge was not prepared to grant the application and he dismissed it.

[17] Judge Andrẻe Wiltens also declined to discharge Mr I without conviction. He said that the matter was serious because of the breach of trust involved and the fact that future employers had a right to know about the offending that Mr I had committed. For that reason he convicted Mr I and required him to pay costs towards the prosecution.

The appeal

[18] On appeal, counsel for Mr I contends that a miscarriage has occurred. He says that this flows from the fact that Mr I was not given an opportunity to withdraw his guilty plea after the police had advised him that diversion was no longer available. He submitted that, once the offer of diversion was withdrawn, Mr I ought to have had an unfettered right to withdraw his guilty plea and to defend the charge. For this reason he contends that it was not incumbent on Mr I to put forward details of the defence that he proposed to raise.

Decision

[19] It seems to me that the guiding principle is whether or not there has been a miscarriage of justice. If a defendant enters a guilty plea on the basis that he or she receives a firm offer of diversion, then it may be appropriate to give the defendant the opportunity to withdraw that plea in the event that the offer of diversion is withdrawn. There are some similarities between such a situation and the situation that arises when a Judge realises that he or she will be forced to depart from a sentence indication that has been given at an earlier hearing. In such circumstances the sentencing Judge is required to provide the defendant with an opportunity to vacate the guilty plea regardless of whether or not the defendant advises the Court that he or she has a defence to the charge.

[20] In the present case, however, I consider that that issue falls into the background. This is because counsel for Mr I , who is also counsel for Mr I on appeal, filed written submissions in support of the application for discharge without conviction. In those submissions he made it clear that he had given advice to Mr I as to the actus rea and mens rea of the offence with which he was charged. He also made it clear that Mr I agreed to enter a plea of guilty to the charge on the basis of that advice. He also advised the Court that Mr I expressed remorse for his actions and that he was willing to write a letter of apology to his employer for his actions.

[21] These submissions are completely at odds with the submission that is made to me on appeal. I have been asked today to accept that Mr I has a credible defence to the charge. The defence is that he did not take the items in question and, in particular, that he did not remove them from his employer’s premises.

[22] It seems to me that there is overwhelming evidence to confirm that Mr I did in fact take the items in question and place them in his vehicle. Once he became aware that his actions had been noticed, he then disposed of the items in a rubbish bin. In doing so he undoubtedly dealt with them otherwise than in accordance with the basis on which they came into his possession. His employer was not going to be able to deal with the goods further once Mr I had placed them in the rubbish bin.

[23] It therefore seems to me that the advice that counsel gave to Mr I earlier was undoubtedly correct, and that the prosecution would be able to establish the elements of the charge that he faced.

[24] For these reasons I do not consider that there has been a miscarriage of justice occasioned by the failure to offer Mr I the opportunity to vacate his plea. He had the benefit of full advice at the time that he sought a discharge without conviction. What has happened here is that Mr I accepted that his plea should stand. That can be the only basis on which he asked the Judge to consider a discharge without conviction.

[25] When the possibility arose that that application would not be granted, he took the added precaution of applying for leave to vacate his plea. It seems to me that, if the Court was to accede to his argument, it would run the very real risk of creating an abuse of its own process.

[26] Mr I confirmed his plea of guilty when he applied for discharge without conviction. Once he did so he effectively lost, in my view, the opportunity to vacate his guilty plea.

[27] I am therefore satisfied that no miscarriage of justice has occurred. The appeal against conviction is accordingly dismissed.

Lang J