Petrie v Police [2014] NZHC 1342 (16 June 2014)

Last Updated: 2 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-0042 [2014] NZHC 1342

BETWEEN	LEE BRENT PETRIE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 June 2014
Appearances:	J E Bragg for Appellant J B Hamlin for Respondent
Judgment:	16 June 2014

_{ORAL JUDGMENT OF PETERS J}

Solicitors: Meredith Connell, Crown Solicitor, Auckland

_{Copy for: Public Defence Service, Manukau}

PETRIE v POLICE [2014] NZHC 1342 [16 June 2014]

[1] By notice of appeal dated 17 February 2014, the Appellant appeals against convictions entered against him on 10 February 2014.

[2] The convictions were for:

(a) assault (“assault charge”) under s 9 Summary Offences Act 1981; and

(b) a failure to answer District Court bail on 3 February 2014 under s 38

Bail Act 2000.

[3] The Appellant pleaded guilty to these offences at the Manukau District Court on 10 February 2014. He was convicted and sentenced to community work and supervision.

[4] The Appellant now appeals against each conviction, pursuant to s 232(2)(c) Criminal Procedure Act 2011 (“Act”), that is on the ground that a miscarriage of justice has occurred. He seeks orders quashing the convictions and remitting the charges back to the District Court for hearing.

Background

[5] On 3 February 2014 the Appellant failed to appear for a case review hearing on the assault charge. The Appellant’s evidence is that he overlooked that he was required to appear that day, and that he was unwell in any event; that he sought to make voluntary appearances on 5 and 7 February but that the Court lists were too long for him to do so; and that he was only able to make a voluntary appearance on

10 February 2014, when he was represented by the duty solicitor, Mr Leith.

[6] Mr Leith has sworn an affidavit in support of the appeal. His recollection is that the presiding Judge was unwilling to grant a remand on the assault charge without the Appellant first entering a plea, the charge having been laid in September

2013. The Judge wished the Appellant to enter a plea that day.

[7] Mr Leith relayed that to the Appellant and advised that, given the failure to appear on 3 February (and possibly there were earlier failures also), he thought it

likely that the Appellant would be remanded in custody if he were to enter a plea of not guilty to the assault charge. If that were to occur, then it was likely the Appellant would be in custody until his next appearance which might be in a fortnight or so and that, in turn, would be a disproportionate punishment even if the Appellant were convicted of the offending. On the other hand, if the Appellant were to plead guilty, Mr Leith anticipated a sentence of community work.

[8] Having been informed of these matters, the Appellant advised Mr Leith he would plead guilty if the sentence was to be one of community work. The Court indicated that it would impose a sentence of community work and the Appellant entered guilty pleas. The Judge sentenced the Appellant to 12 months’ supervision and 50 hours community work.

[9] In retrospect, Mr Leith acknowledges that it is possible the Court would not have remanded the Appellant in custody if he had entered not guilty pleas and that he should have advised the Appellant of the option of entering not guilty pleas and seeking bail.

[10] As I have said, the Appellant appeals against both convictions on the ground that a miscarriage of justice has occurred. It is common ground that such a miscarriage may occur if counsel errs in his or her advice so as to wrongly induce a decision to plead guilty.¹

[11] The Respondent opposes the appeal. Its case is that, even if the relevant advice were not given, no miscarriage has been made out. Counsel also submits that the Appellant must state a defence to the charges. In the absence of the Appellant doing so, it is impossible to know whether a miscarriage of justice has occurred as the Act requires.

[12] The Appellant is alleged to have committed the assault against his sister. The summary of facts is to the effect that the Appellant was filming his sister with his cellphone; that she took the phone from him; that he repeatedly slammed her arm

_{into a wall with sufficient force that she was worried it would break and that further}

¹ R v Le Page [2005] 2 NZLR 845 (CA); and R v Merrilees [2009] NZCA 59.

violence followed from each. The Appellant denies the allegations and states that, to the extent he did use any force, he was acting in self-defence. The Appellant proposes to defend the “failing to appear” charge on the ground of ill health.

[13] I am satisfied that I should allow these appeals. Mr Leith’s advice may have induced a guilty plea and the Appellant should be able to defend the charges if he wishes. I quash the convictions and sentence and remit the matter back to the District Court for hearing.

[14] It is apparent from the transcript of the discussion between the presiding Judge and Mr Leith at 3.13 pm on 10 February 2014 that the Police Prosecutor agreed to withdraw a charge referred to as “2979” in light of the Appellant pleading guilty to the failure to appear on 3 February 2014. Counsel for the Appellant accepts that charge (2979) must now be reinstated and I make an order accordingly.

..................................................................

M Peters J