Johnson v Police [2018] NZHC 1790 (19 July 2018)

Last Updated: 31 July 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2017-409-000108 [2018] NZHC 1790

BETWEEN	MICHELLE ANNETTE JOHNSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 July 2018
Appearances:	E C Bulger for Appellant S Bicknell-Young for Respondent
Judgment:	19 July 2018

ORAL JUDGMENT OF VENNING J

Solicitors/Counsel: E C Bulger, Christchurch

Crown Solicitor, Christchurch

JOHNSON v NEW ZEALAND POLICE [2018] NZHC 1790 [19 July 2018]

[1] On 23 September 2016 Michelle Johnson pleaded guilty to a charge of dishonestly using a document. She was sentenced to 50 hours community work and ordered to pay reparation of $730 by Judge J J Brandts-Giesen.¹

[2] Ms Johnson appeals against conviction. She says that the Judge was wrong to decline to grant an adjournment of her case and she felt pressured by the Judge and her then solicitor to enter the guilty plea.

[3] The procedural history to this file does not read well. I make it clear I make no criticism of present counsel, Ms Bulger, in relation to the file.

[4] Ms Johnson was first before the District Court on the charge on 12 February 2016. The matter was adjourned three times until on 23 September 2016 the not guilty plea was vacated and the guilty plea entered. Ms Johnson then apparently failed to comply with the sentence which led to an application to cancel the sentence of community work and a charge of failing to report to a probation officer. That charge was filed on 2 June 2017 with Ms Johnson’s first appearance scheduled for 5 July 2017. She failed to appear at Court that day. She then appeared on 2 August 2017. It was only after that date, on 9 August 2017, that she filed the appeal. As noted the grounds of appeal are:

Fair hearing was prejudiced by Judge when he refused to grant an adjournment for compassionate reasons, resulting in me feeling pressured to vacate my not guilty plea and enter a guilty plea when I had a defence to the charge.

[5] As the appeal was filed almost 11 months out of date Ms Johnson had to seek leave to pursue the appeal.

[6] The application for leave was before this Court on two occasions before it was substantively dealt with. On the first occasion on 26 October 2017 Mander J noted:

[1] This appeal was set down to be heard this morning. However, no submissions were filed in support of the appeal, and Ms Bulger had earlier advised of difficulties in obtaining instructions from her client.

[2] This morning Ms Bulger appeared, as did the appellant Ms Johnson. Ms Bulger advised that as a result of discussions she has recently had with Ms

¹ New Zealand Police v Johnson [2016] NZDC 20247.

Johnson she is willing to continue to act. She sought the opportunity to have further discussions with Ms Johnson regarding the appeal.

[7] Accordingly the Judge adjourned the matter to 7 December 2017. However, before 7 December Ms Bulger filed a further synopsis of submissions on 5 December 2017. In that synopsis a further adjournment of the application was sought on the grounds that Ms Johnson had indicated she wished to pursue two further grounds in support of the appeal:

(a) an adjournment should have been granted; and

(b) secondly, and for the first time, an issue as to the advice she had been given by her lawyer at the time, who had failed to pursue her instructions to pursue a discharge without conviction.

[8] Ms Bulger noted in the memorandum it was not possible to advance the appeal matters as the former lawyer was overseas. The hearing on 7 December 2017 was vacated and the matter further adjourned. The matter then came before Gendall J on the application for leave on 13 March 2018. Following that hearing on 14 March 2018 the Judge issued a decision noting that although somewhat by a fine margin he was of the view that interests of justice required leave be granted to enable the appeal to proceed out of time.² The Judge acknowledged that that would lead to further delay, particularly as there would be a need to contact previous counsel.

[9] The matter was then scheduled to be called before the Court on 24 May 2018 at 10.00 am. At that time and in preparation for the hearing Ms Bulger filed a further memorandum on 22 May 2018 noting that the Public Defence Service required a waiver from Ms Johnson so that Ms Bulger could discuss the matter with former counsel Mr Smedley. Although Ms Bulger had requested a waiver from Ms Johnson it had not been received. An adjournment of a further two months was sought. On that basis the matter was adjourned on the papers to be called today.

[10] At the outset of today’s hearing Ms Bulger advised that she was still awaiting the waiver from Ms Johnson. Although she had been unable to contact Mr Smedley

² Johnson v New Zealand Police [2018] NZHC 430.

she was optimistic Mr Smedley might now be able to be contacted through a third party. She had also experienced difficulties and issues in relation to legal aid.

[11] Unfortunately I have to say that I consider the history of the file discloses that Ms Johnson apparently has little interest in pursuing this appeal. It is significant in my view the appeal was only lodged 11 months after the sentence was imposed and only after enforcement proceedings for failure to comply with the sentence was initiated. The appellant has failed to take any steps to provide the waiver sought by counsel and has not provided Ms Bulger, the present appeal counsel, with proper instructions. On the face of it the appellant is abusing the process of the Court. She has failed to file an affidavit setting out her position in support of the appeal which would engage the need to discuss matters with Mr Smedley. As to the prospect of a discharge without conviction, given her previous record and the offending in this case, it frankly seems an unrealistic prospect.

[12] The position has been reached in my view where s 338 of the Criminal Procedure Act 2011 is engaged. That permits an appeal court to dismiss an appeal if the appellant fails to comply with the timetable or other procedural orders fixed for the appeal after giving notice to the appellant of that intention. I make the following orders:

(a) the appellant is to file and serve an affidavit in support of her appeal by Friday, 3 August 2018; and

(b) the appellant is to provide a written waiver of privilege in relation to her dealings with her former counsel Mr Smedley by the same date, Friday, 3 August 2018.

[13] Unless the appellant complies with both directions the appeal will be dismissed with no further appearances required.

[14] In the event the appellant complies with both orders the Registrar is to allocate this file a further review on 9 August 2018 at 10.00 am.
[15] In relation to legal aid I observe that Ms Bulger has taken a number of steps on this file, including successfully obtaining leave for the appeal to be pursued. I ask the Legal Aid authorities to take into account the steps that Ms Bulger has taken on behalf of the appellant to date. If at all possible Ms Bulger should be compensated in an appropriate way for the steps she has taken for the appellant to date.






Venning J