E v Police HC Auckland CRI-2009-404-145 [2009] NZHC 2004 (27 October 2009)

Last Updated: 29 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2009-404-000145}

E

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 27 October 2009

Counsel: Appellant in person (A Sheriff as McKenzie friend) A R Longdill for the respondent

Judgment: 27 October 2009

_{(ORAL) JUDGMENT OF STEVENS J}

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

Copy to:

E O E , 76/744 Great North Road, Western Springs, Auckland 1022

E V NEW ZEALAND POLICE HC AK CRI-2009-404-000145 27 October 2009

Introduction

[1] The appellant, Mr E , appeals against convictions on two charges, namely, threatening to kill and wilful damage of a motor vehicle. Both of these offences were committed on 5 September 2008. The appellant pleaded guilty to both charges in the Manukau District Court on 17 February 2009. A third charge of assault with a weapon was withdrawn by the informant on that occasion. On 24 April 2009, the appellant was sentenced by Judge Blackie on both charges to come up for sentence if called upon.

[2] Subsequently, on 22 May 2009, the appellant filed a notice of appeal. Two grounds were advanced, namely, that the appellant had a full and complete defence to the charges and secondly, that he received inadequate advice from the lawyer who represented him about the consequences of entering pleas of guilty.

Applicable legal principles

[3] In the case of convictions following pleas of guilty it is only in exceptional circumstances that an appeal against conviction should be allowed: see R v Stretch [1982] 1 NZLR 225 (CA). The overriding consideration in such circumstances is whether there has been a miscarriage of justice. As to what might amount to exceptional circumstances, Cooke J at 229 noted as follows:

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."

[4] The authors Adams on Criminal Law at CA385.17 suggest that generally appeals from convictions following guilty pleas may be brought in three situations:

a) If the plea was induced by a ruling on a question of law which is wrong;

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

c) Where on the admitted facts the appellant could not in law have been convicted of the offence charged or there is a clear defence.

Factual background

[5] The incident giving rise to the charges occurred around midday on Friday,

5 September 2008. The appellant and the victim were at an address in Otahuhu. They engaged in a verbal disagreement concerning the appellant’s trailer which the victim had borrowed. During the argument, the appellant threatened the victim a number of times, including threatening to kill him. The words used were “I am gonna kill you mother f...ker”.

[6] The victim got inside his vehicle which was blocking the exit to the road. The appellant got into his vehicle and deliberately rammed the victim’s vehicle in an attempt to leave the scene before the Police arrived.

Delays with the appeal

[7] As noted, the appeal was filed on 22 May 2009 at a time when the appellant was represented by Mr Nigel Cooke, barrister. The Registry scheduled a fixture for

10 August 2009 for the hearing of this appeal.

[8] Before the fixture, Mr Cooke sent a memorandum to the Court, with a copy to counsel for the respondent. In it he indicated that the appellant was hoping to obtain information from someone who was present at the time when instructions were given to the lawyer acting for him in the District Court, but that the person was absent overseas. Mr Cooke, up until then, had not had an opportunity to interview

the person concerned in order to endeavour to obtain evidence in support of the grounds of appeal put forward. Mr Cooke advised the Court that he was not prepared to take the appeal forward without that evidence being secured. This was good advice because Mr Cooke would have been aware of the principles to which I have referred above, namely, that appeals against convictions following guilty pleas may only be entertained in exceptional circumstances. The circumstances in which the guilty pleas were entered would need to be spelled out very clearly and in affidavit form.

[9] As Mr Cooke did not have full and adequate instructions he therefore sought an adjournment of the appeal for a period of four weeks from 10 August 2009. As a result of this memorandum, the fixture of the appeal was adjourned at the request of the appellant.

[10] A new fixture for the appeal was set for 14 September 2009. Prior to this new fixture, Mr Cooke filed a second memorandum dated 3 September 2009. Mr Cooke referred to the earlier adjournment and to the possibility that the appellant might obtain a statement from a witness. But he added “no steps have been taken by the appellant despite that request and adequate time has expired for preparation to be completed and timely submissions to be filed with the Court”. He informed the Court that his instructions were incomplete and he sought leave to withdraw. It seems that counsel’s request was granted.

[11] The appeal came before Courtney J on 14 September 2009. Mr E appeared on that occasion representing himself. He informed the Court that he was still hoping to instruct a lawyer to argue the appeal on his behalf. As a result of such indication to the Court, the appellant was given a third date of hearing, namely,

27 October 2009. The appeal was set down for hearing at 2.15pm before me.

[12] On 21 October 2009, the appellant sent a letter to the Registrar with a copy to counsel for the respondent stating as follows:

I’d like to inform you that on 20 October 09 my new lawyer Mr Paul Heaslip ask me to relieve him from being my lawyer! And his not willing to do (sic).

[13] Today the appellant again appeared in person. He was assisted by a McKenzie friend, Mr Sheriff, who has provided the appellant with valuable assistance to explain the position to the Court. The short point is that there is no affidavit from the witness, no written submissions have been filed, no lawyer has been appointed and no case advanced or argument presented in support of the appeal. Rather, the appellant has requested a further adjournment in the hope that he might possibly find the witness and might possibly instruct a lawyer to represent him in the future.

Respondent’s submissions

[14] Ms Longdill for the respondent filed helpful written submissions. She submitted that, since filing the notice of appeal five months ago, the appellant has failed diligently to prosecute this appeal. She contended that the Court and the respondent had both been inconvenienced on two previous occasions with requests for adjournments by the appellant. She therefore submitted that, as the appeal had made no progress over recent months, that no further adjournment should be granted.

[15] Ms Longdill further submitted that the appeal should be struck out for want of prosecution: see s 133 of the Summary Proceedings Act 1957.

[16] Ms Longdill noted that in certain circumstances, where there is considerable delay and where no or limited steps have been taken to prosecute the appeal, the Court has a discretion to exercise under s 133 of the Summary Proceedings Act. In the exercise of such discretion, the Court is entitled to consider whether there is any possible merit in the substantive appeal.

[17] In this regard, Ms Longdill referred to the fact that the appellant had pleaded guilty to the two charges to which he now wishes to appeal. This was part of a resolution of the prosecution which had initially involved three charges. The Police sought leave to amend CRN 08092015238 from a Crimes Act intentional damage charge (s 269(2)(a) of the Crimes Act 1961, which carries a maximum penalty of

seven years’ imprisonment) to a Summary Offences Act wilful damage charge (s 11(1)(a) of the Summary Offences Act 1981, which carries a maximum penalty of three months’ imprisonment). The information on the District Court file recorded that the amendment was made by consent.

[18] Further, the summary of facts in relation to the two charges to which guilty pleas were entered shows that it has been significantly amended. Such amendment was made by way of excisions and deletions of material which had earlier formed part of the summary of facts.

[19] Prior to entering the guilty pleas on 17 February 2009, the appellant had appeared in the Manukau District Court on four occasions: 6 September 2008,

12 September 2008, 25 September 2008 and 7 November 2008. Thereafter, the three charges had been set down for a defended hearing, but this proved not to be necessary because the matter was resolved in the manner already outlined. Ms Longdill confirmed that the file had been fully briefed and the matter was ready to proceed to a hearing on 17 February 2009.

Discussion

[20] I agree with the respondent’s submissions that the actions of the appellant as described in the summary of facts clearly establish the elements of the two offences of threatening to kill and wilful damage.

[21] In the five months that this appeal has been on foot, the appellant has failed to put forward any evidence or submissions which suggest that there has been exceptional circumstances which might support the appeal. Moreover, there is nothing to suggest that there has been a miscarriage of justice. The discussions which obviously preceded the resolution of the charges in the District Court on

17 February 2009, and in particular the amendments made by consent to the charges and the summary of facts (all very much to the benefit of the appellant) support the fact that the appellant was well aware of what he was pleading guilty to.

[22] I take particular notice of the fact that there is no material before the Court from the lawyer that represented the appellant in the District Court. Had the appeal had any merit, it would have been open to the appellant to waive privilege and allow his appointed lawyer, Mr Cooke, to obtain instructions from the lawyer who represented the appellant at the time when the guilty pleas were entered. But there is no such material before the Court. Even the possible witness referred to earlier by the appellant has not materialised.

[23] Accordingly, the Court on appeal has before it absolutely no evidential material on which the appellant could begin to demonstrate the existence of the required exceptional circumstances. These matters, coupled with the delay (including the three times upon which the appeal has been set down in the High Court for hearing), all persuade me that this is an appropriate case in which the appeal should be dismissed.

[24] The appellant, and others like him, must appreciate that where they seek to use the procedures of the High Court for the purposes of appeals then such appeals must be prosecuted diligently. Further, except where there is good excuse for not doing so, time limits must be complied with and established fixtures must be utilised otherwise the scarce judicial resources of the High Court will simply be wasted with ongoing delay and inefficiency.

Result

[25] For all of the reasons set out above, this is an appropriate case in which to exercise the discretion to dismiss the appeal.

Stevens J