Caneira v Police HC Auckland CRI-2011-404-000071 [2011] NZHC 1902 (11 November 2011)

Last Updated: 31 January 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI-2011-404-000071}

BETWEEN RUDY CANEIRA Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 November 2011

Appearances: C Curtis and S C Abernethy for Appellant

A R Longdill and R E Savage for Respondent

Judgment: 11 November 2011 at 4:45 PM

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 11 November 2011 at 4:45 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

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

Solicitors: Marshall Bird & Curtis, P O Box 105045, Auckland 1143

Fax: [phone] – C Curtis / S Abernethy

Meredith Connell, P O Box 2213, Auckland 1140

_{Fax: [phone] – A Longdill / R Savage}

CANEIRA V NZ POLICE HC AK CRI-2011-404-000071 11 November 2011

[1] The appellant, Rudy Caneira, is a Czech national who has lived in New Zealand for seven years. In July 2010 Mr Caneira pleaded guilty in the District Court to one charge of male assaults female and was sentenced to nine months supervision.[1] He appeals both conviction and sentence. He complains that he did not understand the summary of facts or the consequences of entering a guilty plea and that a discharge without conviction was the appropriate sentence.

[2] Mr Caneira makes three main complaints in his appeal against conviction. The first is that he was not fully advised as to the contents of the summary of facts to which he pleaded guilty. The second is that he understood from his counsel that if he pleaded guilty he would obtain a discharge without conviction under s 106. The third is that he was not advised of the consequences of a conviction on his immigration status.

[3] Only in exceptional cases will an appeal against conviction succeed following a guilty plea.[2] In R v Le Page the Court of Appeal said:[3]

[16] ... It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.

[17] A miscarriage of justice will be in at least three broad situations which are identified and discussed in Adams on Criminal Law, para CA385.21. 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 ...

[4] I begin by considering the extent to which Mr Caneira understood what his counsel said to him. Mr Caneira was represented by Ms Browne from June 2010, when he was charged, until December 2010, when he was being monitored pending

_{sentence. He had four meetings with Ms Browne, two of them lengthy. No}

interpreter was present. Ms Browne gave unchallenged evidence that he also contacted her by text on many occasions. In addition, she observed him communicating with his partner in English. Ms Browne said that it was her practice not to use difficult legal terms when communicating with clients. She said that Mr Caneira appeared to completely understand what she told him and never gave any indication that he did not.

[5] Mr Kan represented Mr Caneira only at the sentencing and therefore had a much briefer association with him. Mr Kan said that, although he realised that English was Mr Caneira’s second language, his English was very good and Mr Kan had no trouble understanding him. Although Mr Caneira said he had difficulty understanding Mr Kan, for whom English is also a second language, Mr Kan said that Mr Caneira never gave him any reason to be concerned that he did not understand what was being said.

[6] I add here that during the appeal hearing Mr Caneira had an interpreter present but only sought assistance from her from time to time. He gave his evidence in English with some assistance from the interpreter to clarify questions being asked of him. Overall, Mr Caneira’s English seemed to be about what one would expect of somebody who had lived and worked here for seven years.

[7] I am satisfied that Mr Caneira did understand what Ms Browne told him and that no unfairness resulted from the lack of an interpreter. I turn then to consider the substance of what Mr Caneira was told.

[8] Ms Browne met with Mr Caneira for the first time on 30 June 2010. Mr Caneira’s partner, who was the complainant, was present with him. According to Ms Browne, Mr Caneira insisted that his partner stay, notwithstanding Ms Browne’s reservations, which she conveyed to him. They briefly discussed the implications of having a conviction (though not in terms of any immigration consequences) and also the possibility of a discharge without conviction. To maximise the prospects of obtaining a discharge without conviction it was agreed that Mr Caneira would begin an anger management course, which he subsequently did. At that stage Ms Browne did not have the summary of facts.

[9] Ms Browne met Mr Caneira again on 6 July 2010. Mr Caneira’s partner was present and Mr Caneira insisted that she stay. Ms Browne discussed the summary of facts and the possibility of a guilty plea. They agreed that Ms Browne would obtain a sentencing indication to see whether a discharge without conviction might be possible. The sentencing indication was that a discharge without conviction would not be granted. The Judge’s notes specifically refer to the strangulation allegation as being the reason for that indication.

[10] After further discussion, during which Ms Browne said she explained the option of both pleading guilty and defending the charge, Mr Caneira decided that he would plead guilty and that plea was entered. Ms Browne’s strong impression from Mr Caneira was that he did not wish to defend the charge and that he and the complainant simply wanted to move on with their relationship, recognising that they had acted towards one another in an unacceptable manner. A few weeks later, however, Mr Caneira complained to the police that his partner had threatened him with a knife. He went to see Ms Browne to express unhappiness at the guilty plea and to discuss vacating that plea. It is evident that this was prompted by the state of his relationship. Ms Browne properly advised him that if he wished to take that course he should consult another lawyer. He did not do so, however, and appeared at the date in September set for monitoring and told Ms Browne that he would accept the plea that he had entered. He did not appear for the next monitoring date in December, at which time Ms Browne ceased acting.

[11] Despite, Mr Caneira’s claim that he pleaded guilty on the understanding that he would not be convicted, I accept Ms Browne’s evidence that she explained the options and made it was clear that a guilty plea would result in a conviction. Mr Caneira may have been confused about the difference between a discharge without conviction and a conviction and discharge but I am satisfied that he was told clearly of the outcome of the sentencing indication and the fact that he would receive a conviction if he pleaded guilty.

[12] I do, however, have concerns about the process by which the summary of facts was settled prior to the guilty plea being entered. The violence described is not minor. The allegation that Mr Caneira attempted to strangle the complainant stands

out as the most serious. Ms Browne said that she read both the summary of facts and the partner’s statement over to Mr Caneira line-by-line. She made handwritten changes to the summary of facts on his instruction, including deleting an allegation that Mr Caneira had punched his partner. However, the allegation that Mr Caneira had attempted to strangle her was left unchanged. Mr Caneira said in evidence that he had not known of that allegation until it was referred to at sentencing. I do not accept that evidence. The nature of the changes that Ms Browne made to the summary of facts show that the discussion was thorough and it is inconceivable that this most damaging allegation was not covered.

[13] However, although I am satisfied that Ms Browne read over the entire summary of facts with Mr Caneira, including the allegation of strangulation, I consider that there is a real likelihood that Mr Caneira did not dispute this allegation under pressure from his partner. Even on Ms Browne’s account, it is clear that the presence of Mr Caneira’s partner influenced the course of that meeting:

I went through the summary of facts with him and amended it to what Mr Caneira was happy with and to what his partner would consent to as well. Mr Caneira’s partner was very strong in her opinion about what had also happened.

[14] Significantly, at the sentencing hearing, Mr Caneira became so upset when the allegation of strangulation was referred to that the Judge stopped to allow Mr Caneira to speak to Mr Kan. Mr Caneira said he told Mr Kan that the allegation was untrue. Mr Kan had a vague recollection of going over to Mr Caneira during the sentencing hearing, which is consistent with Mr Caneira’s account. His view was, however, that since the guilty plea had already been entered there was nothing that could be done about the summary of facts. In fact, it is likely that the Judge would have taken into account the dispute over that allegation even though it was raised at a late stage.

[15] The allegation of strangling was undoubtedly the most serious aspect of the alleged offending and would have influenced the Judge significantly. I consider there to be a real risk of a miscarriage of justice resulting from the circumstances in which the summary of facts was agreed on. In reaching this conclusion I do not criticise Ms Browne. She was placed in a most difficult position by Mr Caneira’s

insistence that his partner remain in the room. It is, however, an object lesson for counsel; allowing the complainant to remain in the same room while counsel advises the accused is a dangerous course to take.

[16] Having reached that conclusion it is unnecessary to consider the appeal against sentence. I would only observe that, on the basis of the summary of facts before the Judge there was no error on her part and a discharge without conviction would not have been appropriate.

[17] The appeal is allowed. The conviction is quashed and the matter remitted to the District Court for a fresh hearing.

P Courtney J

---

[1] _{DC Auckland CRI-2010-004-011065, 11 January 2011.}
[2] _{R v Stretch [1982] 1 NZLR 225 (CA) at 229.}
[3] R v Le Page [2005] 2 NZLR 845 (CA) at 849.