Hintz v Police [2019] NZHC 2805 (31 October 2019)

Last Updated: 6 November 2019

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000010 [2019] NZHC 2805

BETWEEN	JOEL NIKOLI HINTZ Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	23 October 2019
Appearances:	G L Turkington for Appellant C Power for Respondent
Judgment:	31 October 2019

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 31 October 2019 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date 31 October 2019

[1] On 7 November 2017, the appellant, Joel Hintz, pleaded guilty to a charge of injuring in circumstances that if death had occurred, he would have been guilty of manslaughter.¹ He now appeals that conviction, seeking that his guilty plea be set aside and the charge remitted to the District Court for rehearing.

¹ Crimes Act 1961, s 190.

HINTZ v NEW ZEALAND POLICE [2019] NZHC 2805 [31 October 2019]

[2] Mr Hintz acknowledges that an appeal against conviction after a guilty plea has been entered will only be allowed in exceptional circumstances. However, in this case, despite being advised by experienced counsel, Mr Turkington submits that the circumstances in which Mr Hintz entered his guilty plea produced a miscarriage of justice.² This is because:

(a) Mr Hintz was “substantially impaired” when he entered a plea of guilty;

(b) he had a clear defence of self-defence to the charge;

(c) he was inadequately advised of such a defence; and

(d) that, at least, a discharge without conviction should have been applied for.

A further ground was introduced in submissions and focused on at hearing, which was that the summary of facts was not agreed upon before the plea was entered.

[3] Mr Hintz says that these factors, either individually, or in combination, gave rise to a miscarriage of justice, and warrant the appeal being allowed.

Leave to appeal

[4] The appeal is brought well out of time, being filed on 1 March 2019, and more than a year after the conviction was entered and Mr Hintz sentenced. Mr Hintz explains his delay in lodging the appeal saying that initially he did not understand there was anything he could do. However, after newspaper coverage of his conviction and at the urging of his parents, he consulted a lawyer in June 2018. Mr Turkington advised that a medical report was required for the appeal and Mr Hintz was unable to see a psychiatrist until late January 2019 because of a shortage of qualified mental health assessors. His appeal was filed as soon as reasonably practicable after the psychiatric report was completed.

² As required by s 232(2)(c) of the Criminal Procedure Act 2011.

[5] Leave is opposed by the respondent, noting that the appeal could have been filed at an earlier date.

[6] However, as the respondent accepts, the question of whether leave should be granted depends on whether it is in the interests of justice in the particular case.³ That requires consideration of the wider interests of society and the finality of decisions to be balanced against the interests of the individual applicant. In my view, Mr Hintz has reasonably explained the delay in filing his appeal, and no prejudice arises to the respondent in the appeal being filed out of time. In these circumstances, I consider it is proper that the appeal is considered on its merits. Accordingly, leave is granted.

Facts of the offending

[7] At the time of the incident which led to the charge, Mr Hintz was a 20-year-old student near the end of his study towards a Bachelor of Commerce in Agriculture at Lincoln University. He had travelled to Dunedin with friends to meet with Lincoln University lecturers for a field trip. On the evening of Saturday 8 April 2017, he and some friends attended a student party on Queen Street in Dunedin. At the party Mr Hintz said he saw two people fighting, although the victim said he and the other person were simply play wrestling.

[8] According to the police summary of facts, Mr Hintz approached them and, without warning, punched the victim once in the mouth with a closed fist. Mr Hintz has disputed this version from the outset. On his account, when he saw the fight, he went over to try and break it up and it was the victim who suddenly took a swing at him and hit him in his face. He then retaliated with a single blow on the victim’s mouth. As a result of the punch, the victim received damage to his front tooth eventually requiring a false tooth to be fitted.

[9] Affidavits from four of Mr Hintz’s friends support his account and record that the victim and his friends yelled abuse at Mr Hintz as he left, which he ignored.

³ R v Knight [1998] 1 NZLR 583, (1997) 15 CRNZ 332 (CA); and R v Lee [2006] NZCA 60; [2006] 3 NZLR 42,

[2006] NZCA 60; (2006) 22 CRNZ 568 (CA).

Further threats were also sent by text to a friend of Mr Hintz from a friend of the victim.

Events following the offending

[10] The victim made a statement to police on 12 April 2017 in which he claimed he was struck without warning by a single blow from Mr Hintz.

[11] On 11 July 2017, Mr Hintz was interviewed by the police at Lincoln Police Station. He provided a statement in which he said the victim struck him in the face and “the adrenaline took over and I punched him back”, adding that he did so in self-defence. The Lincoln police indicated to Mr Hintz that the matter was unlikely to go any further.

[12] However, on 28 August 2017, Lincoln Police advised Mr Hintz that the Dunedin police had issued a summons for his appearance in the Dunedin District Court on 3 October 2017. The summons provided that the charge was “injured by unlawful act” without more.

[13] Mr Hintz says this news had a profound and distressing effect on him. He had three exams to sit in October and November 2017. He says he became depressed, unable to sleep, missed meals and attention to his daily activities dropped off. He played for the Canterbury provincial rugby team and found it hard to concentrate on the demands of training and playing. He did not tell his parents as he did not want them to know he was in trouble with the police, particularly his mother, who was sitting nursing exams.

[14] In September 2017 he consulted solicitors, Radich & Co., who obtained the summary of facts and charge sheet on 27 September. Mr Hintz maintained that the summary of facts wrongly recorded that he punched the victim first. The only other person the police had interviewed was the person the victim was wrestling or fighting with, who supported the victim’s account. Although the summary of facts states that Mr Hintz punched the victim “without warning” it also records Mr Hintz’s explanation at the end of the document saying “the defendant stated in explanation that he believed
the two males in front of him were fighting. He attempted to separate them, and the victim took a swing at him so he punched him once in the face with his right hand”.

[15] Due to late disclosure, the matter was adjourned in the District Court until 20 October 2017. Mr Hintz had an exam scheduled that day. He applied for an aegrotat which was eventually granted in January 2018, but he says this contributed to his stress over that time.

[16] Mr Hintz forwarded to his lawyer a statement from a friend and witness who supported his version of events, along with records of threatening text messages sent from the victim’s associate.

[17] On 17 October 2017, his lawyers advised that self-defence had a reasonable prospect of success and diversion was a possibility. Mr Hintz however advised that he had previously been granted diversion in 2016 on charges arising out of his waving a knife out a car window. There was also discussion between Mr Hintz and his lawyer about potential negotiations to downgrade the charge to common assault.

[18] Mr Hintz drove from Lincoln to Dunedin to appear in the District Court on 20 October 2017. His lawyers had instructed a criminal barrister, Mrs Anne Stevens to represent him on the day.⁴ The matter was adjourned for one week until 27 October 2017 to enable negotiations to continue. His lawyers contacted the police requesting that the summary of facts be amended to show that he did not initiate the incident and asked if it was possible for him to be discharged without conviction and to pay reparation. The police responded saying they did not have time to reconsider the summary of facts before the next appearance and it was premature to indicate whether they would oppose a discharge without conviction.

[19] Mr Hintz drove from Lincoln to Dunedin on 27 October 2017. Mrs Stevens advised him the police agreed to consider diversion and the matter was further remanded until 7 November 2017 so Mr Hintz could meet with police. He was concerned about the cost, being a student with limited income, and was advised that if

⁴ Now Anne Stevens QC.

he was granted legal aid he would not be able to choose his counsel. He chose to remain with his lawyers, rather than apply for legal aid.

[20] Mr Hintz again drove from Lincoln to Dunedin on 6 November 2017 to meet with police and discuss the option of diversion. He was alone, as his friends had exams and could not accompany him. This was the same day as another exam, which he had to discuss with his lecturer and then sit on 7 December 2017. He met with police on the morning of 6 November where the discussions were positive and he was advised that he needed to arrange to have $5,000 available in court on 7 November 2017 for a reparation order.

[21] However, late on the same day, the police advised Mr Hintz’s lawyer that diversion would not be granted because he had already received diversion in 2016. Further, he was told the cost of dental treatment in Australia where the victim was now living was likely to be in excess of $10,000.

[22] Mr Hintz says the effect on him of this last-minute change in circumstance was overwhelming. He felt he had lost everything. He was already fatigued as a result of lack of sleep and inattention to diet as well as ongoing exams. That evening he advised his lawyers by email that he was going to enter a guilty plea.

[23] He appeared in court on 7 November 2017. Mrs Stevens appeared for Mr Hintz again. She advised him of his options regarding a self-defence argument, or applying for a discharge without conviction. However, Mr Hintz says he had limited comprehension of his options, and his focus was on resolving the proceedings as quickly and inexpensively as possible. Knowing that further arguments would take more time and cost, Mr Hintz decided to have the matter dealt with on the day.

[24] His current lawyer, Mr Turkington, says he “simply gave up”, that he was “unable to consider his options” and was “a broken man”.

District Court hearing

[25] The record of the hearing on 7 November 2017 before Judge MacDonald indicates the Judge was concerned about some matters not being resolved and at various points, he suggested the case be deferred to address these issues.

[26] First, the Judge suggested that the matter be remanded so that restorative justice could be pursued, but Mrs Stevens advised the victim did not wish to participate. The next issue was uncertainty about whether the victim was eligible for ACC to repair the damaged tooth and therefore how much Mr Hintz would be required to be paid by way of reparation.

[27] The Judge then referred to Mr Hintz’s explanation of what had occurred recorded in the summary of facts, which was that the victim took a swing at him and enquired whether the victim accepted that. Mrs Stevens responded saying that while the victim did not accept that he swung at the appellant, that was the appellant’s explanation. At that juncture, the Judge asked whether she wished him to stand the matter down, presumably to address that issue. She responded saying that she had hoped the matter could be dealt with by way of a reparation order. However, the Judge noted that if the figure for reparation was not sorted out, he could not deal with it that day. On the basis that the prosecutor would try and get “some agreement on the reparation” and a copy of the victim impact statement for the Judge, the matter was stood down to be recalled in the afternoon.

[28] In the afternoon, Mrs Stevens handed up a number of references Mr Hintz had provided to her, confirming his good performance as a student at Lincoln University and various sporting and leadership roles he had held. After explaining Mr Hintz’s version of events and discussing his good character, Mrs Stevens asked the Judge to deal with the matter by entering a conviction and making a reparation order. She discussed the serious implications of a conviction for Mr Hintz, particularly in terms of travelling to play rugby, to support her submission that nothing more than conviction and reparation should be imposed. Further questions ensued about the amount of reparation and whether the victim was eligible for ACC. Given that a final figure for the cost of dental work would not be known until after 20 March the
following year, and noting that Mr Hintz was “anxious to get this matter resolved”, Mrs Stevens confirmed that he was prepared to offer $10,000 in reparation which the prosecution was prepared to accept. In light of the agreement on that figure, the Judge said he was “prepared to sentence on that basis”, although commenting “it’s unsatisfactory”.

[29] In sentencing Mr Hintz, the Judge noted that the summary of facts which had been read out “recites your claim that the victim took a swing at you” which the police “do not accept” and noted that “it is one of those situations where I could remand the matter, so we could hear evidence on that to resolve the conflict, but I sense that neither side wants that to happen”. In any event, Mr Hintz was sentenced on the basis proposed by his lawyer in that he was convicted, ordered to pay court costs of $130.00 and ordered to pay $10,000 in reparation to the victim, to be met by an immediate payment of $5,000 and the balance within 28 days.

This application

[30] Mr Hintz now wishes to vacate that guilty plea. In support of his application he has filed an affidavit which outlines events leading to his decision to plead guilty, along with affidavits from family members and friends which attest to his mental state at the time of entering the plea. There are also affidavits from friends who were present at the Dunedin party who confirm his version of events regarding the assault.

[31] Mr Hintz has also consulted a psychiatrist, Dr Justin Barry-Walsh, who interviewed him on 31 January 2019 and provided a report for the Court. Dr Barry-Walsh says it appears Mr Hintz was “driven by a wish to have the matter resolved speedily so that he could end the distress he was experiencing”. He notes that the gap in time of 15 months between Mr Hintz pleading guilty and being assessed “makes it difficult to accurately reconstruct his mental state at the time”. However, he considered “the high level of anxiety, mood disturbance and associated symptomatology were substantially impairing his psychosocial function”. He says “at the time he pleaded guilty Mr Hintz’s capacity to rationally and dispassionately consider his situation and make decisions was substantially impaired”.
[32] Mr Hintz’s affidavit also outlines the actual and potential consequences of the conviction. He has represented Canterbury and Wellington in rugby at a national level and is a world champion weightlifter. He has international aspirations and wishes to represent New Zealand at the highest level. He records his concerns about the effect of the conviction on his selection and his ability to travel to represent New Zealand. He had an offer to play rugby for a Japanese team between November 2018 and January 2019, but his conviction resulted in the offer being withdrawn. He also had to withdraw from a programme to become an adventure guide in Canada as a conviction was unacceptable for work there.

Principles governing the vacation of a guilty plea

[33] An application to vacate a guilty plea is dealt with as an appeal against conviction. Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.⁵ In this section, a trial includes a proceeding in which the appellant pleaded guilty.⁶

[34] In R v Merrilees, the Court of Appeal stated:⁷

[35] It is often the case than an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.

⁵ Section 232(4).

⁶ Section 232(5).

⁷ R v Merrilees [2009] NZCA 59.

[35] In R v Le Page, the Court of Appeal stated that a miscarriage of justice relating to a guilty plea will be indicated in “at least three broad situations”, to which a fourth was added in R v Merrilees:⁸

(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;

(b) where, on the admitted facts, the appellant could not in law have been convicted of the offence charged;

(c) where the plea was induced by a ruling which embodied a wrong decision on a question of law; and

(d) where trial counsel erred in advising as to the non-availability of certain defences or potential outcomes, or where counsel wrongly induced a decision to plead guilty under a mistaken belief or assumption that no tenable defence existed or could be advanced.

[36] However, as the Court of Appeal said in Whichman v R more recently:⁹

[36] The overriding consideration [is] whether the plea has produced a miscarriage of justice. This protean juristic concept is given modest definition in s 232(4) of the [Criminal Procedure Act 2011]. It is not to be thrust into an over-defined straightjacket. The categories of exceptional circumstances justifying a vacation of plea after entry of a guilty plea are neither closed nor complete ...

Submissions

Appellant’s submissions

[37] Mr Turkington, for Mr Hintz, submits that there were a number of problems with the circumstances of Mr Hintz’s guilty plea, such that there has been a miscarriage of justice and the plea should be set aside and the matter sent back to the District Court for rehearing.

⁸ R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [17]- [19]; R v Merrilees, above n 7, at [34].

⁹ Whichman v R [2018] NZCA 519 (footnotes omitted).

[38] Mr Turkington submits that Mr Hintz was substantially impaired on the day of 7 November 2017 and was not in a fit state to enter a plea. Mr Hintz was under significant stress after diversion was declined “at the eleventh hour”, the reparation figure discussed ballooned from $5,000 to $12,000 overnight, and there was discussion of the proceeding going on for months more. Exam pressure, fatigue, poor diet, lack of understanding of the court process, lack of social support and financial concerns compounded this stress and inability to fully appreciate what was happening.

[39] Mr Turkington submits that the Judge accepted Mr Hintz’s guilty plea, knowing that a factual dispute had not been resolved and Mr Hintz did not accept the summary of facts. Counsel cites Mowbray v R, where the failure of either defence counsel or the Judge to initiate a disputed facts hearing under s 24 of the Sentencing Act 2002 meant that Mr Mowbray “was arguably sentenced on an assessment of materially greater culpability than was justified”.¹⁰

[40] Mr Turkington submits that Mr Hintz had an arguable defence of self-defence. Mr Hintz does not need to prove self-defence would inevitably succeed, or even be highly likely to succeed.¹¹ What is required is a defence that has a realistic prospect of success, variously described as an “arguable”, “tenable”, “credible” or “discernible” defence.¹² Four affidavits from witnesses have been filed supporting Mr Hintz’s version of events.

[41] Furthermore, he says Mr Hintz did not understand what was required for a discharge without conviction.

[42] In all the circumstances, Mr Turkington submits that Mr Hintz’s response to the environment in which he found himself on 7 November 2017 went beyond the normal distress, pressure and agitation that might be felt by an accused in his situation. He submits Mr Hintz’s mental and emotional state was such that his ability to make a rational decision on how to plead was substantially impaired and as such his plea

¹⁰ Mowbray v R [2018] NZCA 560 at [26].

¹¹ Joshi v R [2015] NZHC 2022 at [22]- [23].

¹² Cooper v R [2013] NZCA 551 at [20], citing Hancock v R [2012] NZCA 292 at [31]; Keegan v R [2010] NZCA 247 at [61]; Iulio v Police HC Auckland CRI-2008-404-239, 17 February 2009 at [21]; and R v Ericson [2007] NZCA 18 at [25].

cannot be said to have been made by his free choice, fully understanding the facts on which his plea was made and the consequences of entering that plea.

Respondent’s submissions

[43] Mr Power, for the respondent, produces affidavits from Mr Hintz’s two lawyers, Ms Miriam Radich of Radich & Co and Mrs Stevens, both of whom were involved in representing Mr Hintz in these proceedings. Both lawyers say Mr Hintz was advised of and understood his options relating to self-defence and a discharge without conviction, but his concerns in pursuing those alternative options were the time, cost, delay, and exposure of his actions to his parents.

[44] Mr Power says that the grounds relied upon by Mr Hintz do not fit neatly into any of the four recognised categories for setting aside a conviction on a guilty plea. It appears Mr Hintz relies on the cumulative effect of all of the circumstances to suggest a miscarriage of justice has occurred, similar to the approach taken in Leeder v Christchurch District Court.¹³ In that case the Court found:¹⁴

The ultimate question was whether it was necessary in the interests of justice to adopt the unusual course of allowing withdrawal of a plea of guilty, entered in the context of a sentencing indication hearing, and by an accused who had the benefit of competent and experienced counsel. To answer that question in this instance the Judge also had to go on and decide whether in justice a plea could be allowed to stand which was entered in the face of an unfavourable sentencing indication and to the surprise of experienced counsel, when there was a reasonably arguable defence, and when a psychiatrist was of the opinion that Mr Leeder was suffering from a serious depressive illness with entry of the plea being behaviour consistent with that illness. To my mind the judgment does not demonstrate that there was a consideration of the cumulative effect of these factors.

[45] However, Mr Power rejects the submission that Mr Hintz’s ability to make a rational decision on how to plead was substantially impaired, saying it is problematic given Mr Hintz’s approach to the proceedings seems consistent from the outset. His priority was to deal with the proceeding as quickly as possible and at low cost, without exposure to his parents. Mr Power submits his decision to plead guilty was one reasonably available to him and did not come as a surprise to experienced counsel.

¹³ Leeder v Christchurch District Court [2005] NZAR 18 (HC).

¹⁴ At [62].

Emails from Mr Hintz to his lawyer some two weeks before he pleaded guilty indicate his understanding that a conviction would likely affect his ability to travel and career prospects. Mr Power recognises the stress Mr Hintz was under, but submits that his mental impairment was not at a level observed in other cases where the Court has been prepared to set aside a guilty plea.

[46] Mr Power submits that Mr Hintz was competently advised and demonstrated his understanding of the proceedings through his discussions with his lawyers. Both Ms Radich and Mrs Stevens confirm that the option of seeking a discharge without conviction was discussed and clearly contemplated throughout the proceedings. Mr Power also submits that Mr Hintz has not demonstrated that the consequences of the conviction are out of all proportion to the gravity of the offending, such that a discharge without conviction would have been appropriate.

[47] In response to Mr Hintz’s submission that he has an arguable defence of self-defence, Mr Power refers the Court to Penniket v R, where the Court of Appeal stated:¹⁵

The existence of a defence at the time of the guilty plea, even a possibly viable defence, is not enough to allow a change of plea. There may be defences that could be run, but which are put to one side because they are unlikely to succeed, or carry other disadvantages. In the absence of material counsel error, such decisions cannot be revisited on appeal save in rare circumstances. The sole fact that a possible defence was known to exist at the time the appellant pleaded guilty does not on its own show a miscarriage of justice.

[48] Mr Power acknowledges that Mr Hintz could have pursued a self-defence argument but does not accept that the argument had the strength asserted by counsel for Mr Hintz. Mr Power submits that rather than acting in self-defence, it is possible to infer from evidence and affidavits that Mr Hintz was retaliating when the adrenalin took over. He submits Mr Hintz’s decision to plead guilty and accept a potentially lower sentence than he might have received if found guilty at trial was understandable in all the circumstances.

¹⁵ Penniket v R [2016] NZCA 154 at [8].

[49] Accordingly, Mr Power submits that Mr Hintz has failed to demonstrate that a miscarriage of justice has occurred, and that if leave is granted, the appeal should be declined.

Analysis

Was Mr Hintz so mentally impaired when he entered a plea of guilty that his plea should be set aside?

[50] The evidence of Dr Barry-Walsh is uncontested. He observes that Mr Hintz’s account, and the accounts provided by family and friends through affidavits, are consistent with him being in a “highly anxious state” at the time of the court case. He says “this state is understandable in the context of the circumstances he was dealing with”. He notes that “despite these difficulties Mr Hintz was still able to pass his exams indicating that his functioning wasn’t grossly impaired”. He says “his description of wishing to resolve the matters at that time, with an intolerance to continuation of court process is psychologically understandable and plausible”. He concludes that while Mr Hintz was not unfit to stand trial in terms of the Criminal Procedure (Mentally Impaired Persons) Act 2003, his capacity to act rationally and dispassionately was substantially impaired.

[51] I accept that Mr Hintz was under stress at the time and that these feelings were exacerbated by the disappointment of the option of diversion being removed at the eleventh hour, along with the significant increase in the cost of reparations.

[52] However, the option to plead guilty was not discussed only in those circumstances. It was an option which was traversed, along with other options, right from the outset. When he first consulted lawyers, his options were discussed and then set out in an email to him of 17 October. In it, the preferred option of defending the charge on the ground of self-defence was recorded. It was also recorded that there may be the opportunity for diversion but noting that that was “unlikely” given that he had already obtained diversion for a previous offence. He was advised that despite there being “a decent chance of advancing a self-defence argument”, there would be “time and cost involved”. The other alternative was to “simply ... plead guilty at this stage and to have matters dealt with by way of a plea in mitigation for sentencing”.
[53] The fact these options had been discussed with him was supported by the evidence that his lawyers communicated with the police to explore whether they would support a discharge without conviction if he paid reparations, noting that he was “considering pleading guilty”. Furthermore, on 25 October, Mr Hintz emailed his lawyers saying “I’m thinking pleading guilty [sic] and just hoping like hell the Judge will take it easy on me”. He noted “if I was to have this on my record, what would it mean for travel? (I realise America and Canada are probably off the cards)”. On the night of 6 November, he confirmed to his instructing solicitors that he was “going to plead guilty”.

[54] Thus, while there is no doubt that Mr Hintz was in an anxious and stressed state by the time of his last court appearance on 7 November 2017, the various options and their advantages and disadvantages had been traversed over the three weeks leading to that appearance. The option to plead guilty was not, as in Leeder, a surprising decision made in the heat of the moment, but rather, was an option that had been discussed right from the outset.

[55] Mr Hintz is an intelligent young man, as demonstrated by his academic record, and I consider he did understand the advantages and disadvantages of the options being proposed over this period. For this reason, opting to plead guilty under the increased stress which Mr Hintz felt following the advice that diversion would not be available, was insufficient to render the ensuing conviction a miscarriage of justice.

Did he appreciate the availability of the self-defence option and the option to seek a discharge without conviction?

[56] As is evident from the discussion above, Mr Hintz’s lawyers explained both the option of defending the charge on the ground of self-defence and of seeking a discharge without conviction. As Ms Radich says in her affidavit:

We both agreed that, on the face of it, there was a reasonable basis for the appellant to advance a defence of self-defence. We confirmed this advice in writing to the appellant. The appellant was interested in considering this further and advised us that he could provide witness statements. We received one witness statement from a friend of the appellant and some text messages.

[57] However, she goes on to say that “we advised the appellant that there would be time and cost involved with defending the charges”. The appellant was concerned about time, cost, delay and exposure of his actions to his parents. He also wanted to be able to go on a planned holiday overseas with his family with the matter behind him. Thus, although he was advised of the defence of self-defence, both on the phone and in writing, and he provided some corroborating evidence in relation to the identified defence, in the end he did not want to incur the cost of pursuing this avenue, in favour of concluding the matter quickly.

[58] In terms of a discharge without conviction, Ms Radich says it, too, was considered and her firm sought the support of the police to that outcome which was not forthcoming.

[59] Ms Stevens also explained to Mr Hintz that one of the options was to seek a discharge without conviction. She says she “explained the legal test and that an application, submissions and a supporting affidavit are required”. She also explained the necessity for a further court appearance and the likely costs. Again, he rejected that option because he wanted matters finalised.

[60] While Mr Hintz acknowledges that his lawyers talked about the issue of self-defence and about a discharge without conviction, he said in evidence “I didn’t actually understand what a discharge without conviction was”. That said, he agreed he understood that a discharge without conviction could be given because he was aware of the Losi Filipo case.¹⁶ He also appreciated that a conviction would have consequences for his rugby career having referred to that in an email to his lawyers. The option had been discussed with him in sufficient detail for his lawyer to make enquiries of the police as to whether they would support that option.

[61] He also acknowledges that he discussed that option with Mrs Stevens, although he says “I didn’t understand what an actual discharge without conviction was until the date of my last court hearing”.

¹⁶ A case involving a young Wellington rugby player whose discharge without conviction on assault charges obtained some media profile in mid-2016, but which was overturned on appeal in a judgment dated 27 October 2016 (Police v Filipo [2016] NZHC 2573).

[62] I am satisfied from the evidence that, despite Mr Hintz’s statements to the contrary, he had a reasonable understanding of what a discharge without conviction was. He also undersood that the only route to avoiding conviction was either diversion (which he knew could be rejected because he had already received diversion), or pleading guilty and applying for a discharge without conviction, which Mrs Stevens told him would involve a delay and further affidavits. In light of that, he chose to plead guilty hoping to get a sentence of reparation payments alone. Indeed, in evidence he acknowledged that “obviously I’d been given options” and that Mrs Stevens told him that a discharge without conviction would cost “more time, more money, [and he would] have to come back”. His response was “let’s just get this done, and I’ll deal with the consequences, and let’s just hope like hell the Judge takes it easy on me”.

[63] I am satisfied that Mr Hintz was adequately advised on his legal options both by his instructing lawyers and by Mrs Stevens. However, he chose not to pursue either option to stem further cost, prevent the need to return to Dunedin yet again, and to avoid the risk that such a course may fail in any event. This ground does not warrant setting aside the conviction on the basis there was a miscarriage of justice.

What impact did the failure to have the summary of facts amended have?

[64] The last, and, by the hearing, primary ground on which Mr Turkington relied to say there had been a miscarriage of justice was the argument that the summary of facts was not agreed.

[65] During the negotiation phase, Mr Hintz’s lawyers asked for the summary of facts to be amended so that the paragraph which said that Mr Hintz punched the victim once in the mouth without warning would instead read:

The defendant thought the victim and his friends were fighting and tried to separate them. The victim swung at the defendant. The defendant retaliated and punched the victim once in the mouth ...

[66] That change meant that the appellant’s explanation contained at the end of the summary of facts could be deleted as it was now reflected in the facts as alleged.
[67] However, the police response was that they did not have time to have the disputed facts checked before the next appearance. No further steps were taken to amend the summary of facts.

[68] Mrs Stevens had been careful to tell Mr Hintz’s lawyers that she wanted any issues over the summary of facts to be sorted before she entered a plea. Mr Hintz accepted that he knew that the police had not agreed to change the summary of facts, but then suggested that he did not understand that when pleading guilty, it would be to the unamended summary of facts saying, “I didn’t understand the process of that”.

[69] The tension between the police summary of facts and Mr Hintz’s explanation troubled the District Court Judge, who offered to remand the matter so that evidence could be heard to resolve that conflict, but as “neither side wants that to happen”, he proceeded to sentence on the basis agreed between the prosecutor and Mrs Stevens.

[70] Mr Turkington’s argument on this issue is that s 24(2) of the Sentencing Act 2002 requires any factual dispute in the summary of facts to be resolved prior to sentencing. It states:

If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,-

(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

[71] Similarly, r 5A.1 of the Criminal Procedure Rules 2012 provides that at the time a guilty plea is entered, the prosecution and defence must resolve any dispute over the summary of facts and, if it is not resolved, seek an indication in accordance with s 24 of the Sentencing Act.

[72] Mr Turkington submitted that the Judge imposed a conviction in the knowledge that the conflict had not been resolved and that Mr Hintz did not accept the police summary of facts against him.

[73] However, when he put that proposition to Mrs Stevens, she disagreed. She acknowledged that efforts had been made to have the summary amended, but that
Mr Hintz was aware these were unsuccessful and he understood that the unamended summary was what he was pleading guilty to. In respect of Mr Hintz’s explanation which was recorded in the summary of facts, Mrs Stevens said it was simply “his explanation to the police”, noting that “defendants’ explanations are often inconsistent
... with the actual elements of the charge”. She noted that Mr Hintz was not advancing self-defence and she had explained to him that the statement he made to the police where he said that “the adrenalin then took over and I punched him back” did not assist him in that regard.

[74] In short, he knew there had been no amendment to the summary of facts when he pleaded guilty to them and he admitted the facts as the police set them out.

[75] In my view, the summary of facts was problematic. While it is, as Mrs Stevens says, common for the summary of facts to record the defendant’s explanation given to police at the time, that may be inconsistent with the facts as advanced by the police for the purpose of the charge. It is then unclear what relevance the defendant’s explanation has to the factual matrix for sentencing.

[76] However, I do not consider the inconsistency in this case has a bearing on the conviction. On either scenario, Mr Hintz accepts he hit the victim; the only query is whether the punch was unprovoked or provoked. Mr Hintz’s explanation included in the summary of facts does not, as Mr Turkington suggests, effectively deny the charge because he hit in self-defence. In the circumstances where he had agreed to plead guilty to an assault, the only ambiguity was as to whether the punch was provoked or unprovoked. That would be an issue on a sentence appeal, where the sentence imposed depended on which version of facts prevailed, and is the risk that s 24 is designed to address. However, here the sentence was imposed on the basis sought by Mrs Stevens and appeared not to turn on whether the attack was provoked or unprovoked.

[77] In these circumstances, I do not see how the ambiguity as to culpability can undermine the conviction or lead to the conclusion that there was a miscarriage of justice. Mr Hintz acknowledged that he was responsible for an assault and he chose to plead guilty to that, rather than defer matters and incur further costs by taking any further steps, including a disputed facts hearing. Importantly, no issue is taken with
the sentence imposed as it is what was sought by his lawyer, which underscores the fact that a disputed facts hearing was not required. The failure to have one therefore does not affect the conviction.

Is there a miscarriage of justice when looked at in the round?

[78] Although I have addressed each ground of appeal individually, I also now look at the matter in the round to consider whether the combination of circumstances was such that a miscarriage of justice occurred.

[79] In my view, that threshold is not met. I am satisfied that Mr Hintz was aware of his options, both from his instructing lawyers and from Mrs Stevens. While he was no doubt feeling under pressure and anxious, and those feelings will have influenced his decision to plead guilty, he did so knowing that he could:

(a) seek a discharge without conviction; or

(b) defend the charge based on self-defence.

He was also aware of the possible downsides of a conviction, being an effect on his ability to travel and career prospects.

[80] It is understandable that now he has the support of family members and has revisited the option of defending the charge, he regrets the decision he made. However, regret over the choice made is insufficient to reach the threshold for setting aside a conviction. Thus, even considering the cumulative effect of the factors which led to Mr Hintz’s decision, I am not satisfied that a miscarriage of justice has occurred.

[81] Accordingly, the appeal is dismissed.

Solicitors:

Gary Turkington, Barrister, Wellington RPB Law, Dunedin