Hunstanton v Gretna [2010] NZLCRO 26 (13 July 2010)

Last Updated: 15 July 2010

LCRO 27/2010

CONCERNING An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

_AND

CONCERNING a determination of the Wellington

Standards Committee

BETWEEN MRS HUNSTANTON

of Wellington

_Applicant

_{AND MR GRETNA}

of Wellington

_Respondent

The names and identifying details of the parties in this decision have been changed.

_DECISION

[1] An application was made by Mrs Hunstanton (“the Applicant”) for a review of a Standards Committee decision declining to uphold her complaint against Mr Gretna (“the Practitioner”). The Standards Committee had determined pursuant to Section

138(2) of the Lawyers and Conveyancers Act 2006 to take no further action with regard to the complaints. This section confers on the Standards Committee a discretionary power to take no further action on a complaint if, in the course of the investigation of the complaint, it appears to the Standards Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.

[2] The Practitioner had acted for the Applicant in defending her against criminal charges involving Social Security fraud. She was charged with receiving a single person benefit while living with her husband. The Applicant believes that she had a good defence in relation to the charges, in that the Ministry of Social Development

(MSD) had gathered evidence during its investigation of her in a manner that did not explicitly comply with the provisions of the Social Security Act for giving notices. She complained that the Practitioner had not complied with her instructions and that he had persuaded her to enter a guilty plea after a non-custodial sentencing indication had been given, when he ought, instead, to have sought an adjournment to allow her to fully consider her situation. She claimed not to have been properly briefed by the Practitioner in relation to her change of plea (from not guilty to guilty) and contended that she had not been in the Court when the Judge had given a sentencing indication. Further complaints were directed at the Practitioner’s refusal to act for her in an application to vacate the guilty plea, and the allegation that he had been rude to her.

[3] The three principal complaints arising from that background were:

(i) that the Practitioner had not explored the defence of admissibility of evidence in relation to the MSD evidence;

(ii) that the Practitioner had not sought an adjournment for a reasonable period of time to allow proper consideration of the implications of the evidence of the Police witness; and

(iii) that the Practitioner refused to act for her on the change of her plea, had failed to explain matters properly to her and had been rude to her.

[4] The Practitioner did not dispute that he did not raise the defence sought by the Applicant, saying that he had focused on what he considered to be the key issue in relation to the criminal charges confronting his client, that being evidence of the Crown against the Applicant as proof on the indictment. His evidence was that on the day of the trial the Police informed him that they intended to produce, as a witness, a Police Officer who had taken a statement from the Applicant on an earlier occasion in which she had admitted residing with her husband. The statement had been obtained in connection with an unrelated incident that had been investigated by the Police. Until the morning of the trial there had been no suggestion that the Police Officer who took that statement would be a witness. The MSD also intended to produce the Applicant’s statement that her husband did not reside with her. The Practitioner’s concern was that evidence would be introduced of the Applicant having made two irreconcilable statements, and exposed her to a possible charge of perjury.

[5] The Practitioner said that after learning that the police evidence would be presented at trial he discussed all relevant matters with the Applicant and suggested that a sentencing indication should be sought with view to giving consideration to

changing her plea to one of guilty. He said that that he attended on the Applicant twice in the cell on the morning in question, fully briefed her as to all of the circumstances, that she had been in Court when the Judge indicated that a guilty plea would led to a non-custodial sentence, and that he had acted on her instruction to enter a guilty plea. He denied that the Applicant was not fully briefed. He denied failing to act in the Applicant’s best interests.

[6] The Standards Committee concluded that the Practitioner had acted on the Applicant’s instruction in changing her plea after the judge had given a sentencing indication, and that there was no evidence that any procedural defects by the MSD would have changed the outcome. The Committee noted that the Practitioner denied having made dismissive comments but apologised if he had offended her. The Committee finally commented that the additional information provided by the Applicant’s husband (in relation to her application to change her plea) did not alter its view.

[7] The review hearing took place on 30 June 2010 and was attended by the Applicant and her husband, and also by the Practitioner. The Applicant had provided to this office copies of emailed requests made by the MSD in seeking information when investigating the Applicant. She also provided copies of the relevant legislation that she considered supported her claims. The file of the Standards Committee was also available for the review.

Reasons for seeking a review

[8] The Applicant sought a review of the Standards Committee decision because she considered that the Committee had failed to investigate matters she had raised, and relied on statements made by the Practitioner. She contended that the Committee made the decision because she had not supplied proof of the MSD’s procedural defects and may have assumed no proof existed, adding that she had not been asked to provide the evidence. She forwarded copies of several emails that had been sent by the MSD to services providers with requests for information. There were additional grounds but principally she alleged the Practitioner had not followed her instructions concerning her defence.

[9] She claimed she was not properly advised about changing her plea, had given no such indication to the Practitioner who, she claimed, had communicated this to the Crown without her knowledge. However, at the hearing she admitted that she agreed to enter a guilty plea, but denied that she had a proper opportunity to consider all the

options and the implications of such a plea. She claimed the Practitioner attended on her only once in the cell for about 50 seconds to inform her of the Crown’s witness who would present evidence of her statement to the Police, and that he had thrown the Police brief of evidence at her. In her view the Practitioner should have sought an adjournment because she was under significant stress and suffered health issues. She denied knowledge of the Practitioner having sought a sentencing indication from the Judge and denied being present in Court when that was given. In her view the Practitioner failed to protect her interests, particularly in failing to advance on her behalf the defence concerning the MSD’s information.

[10] The Applicant’s complaints fundamentally stem from her belief that all of the evidence collected by the MSD in contravention of the Social Security Act provided her with a good defence to criminal charges. Given that the Applicant entered a guilty plea there had been no trial. I understand that she holds the Practitioner responsible for the fact that she has a criminal conviction.

[11] The Committee focused on the question of whether any part of the Practitioner’s action was such that could amount to unsatisfactory conduct. The Committee’s reasons for not upholding the complaints were clearly set out in the determination. The question for the review is therefore whether the Standards Committee properly exercised its discretion to take no further action on the complaints.

Considerations

[12] The Applicant believes that she had a good defence based on the MSD having collected evidence in contravention of the Social Security Act, which in her view should not have been admissible. This included the statement that she had given to the police. The Practitioner explained that the Police have extensive powers to collect evidence, and in any event the Applicant’s statement (admitting that her husband resided with her) was already in the possession of the Police. He did not consider any administrative defects on the part of MSD were sufficient to overcome the evidence against the Applicant in order to defend her against the criminal charges. He referred to R v Shaheed [2002] NZCA 254; [2002] 19 CRNZ 616 which addressed the question of competing factors to be considered in determining the admissibility of improperly obtained evidence. These principles are now largely contained in section 30 of the Evidence Act, and provide for admissibility of improperly obtained evidence in a number of situations. In each case a judge is required to determine whether or not the exclusion of the evidence is proportionate to the impropriety but also to take proper account of the need for an effective and credible system of justice.

[13] There is an abundance of cases where judges have been required to give consideration to many different circumstances in which improperly obtained evidence was nevertheless admitted. Other than challenge the method of the MSD collection of information, the Applicant has offered no other argument as to why any of the evidence collected could successfully have been withheld. Having considered all of the information provided I accept that the Practitioner properly exercised his judgment in this matter.

[14] The evidence indicates that the last-minute plea to guilty came about because the Crown unexpectedly advised its intention to introduce at trial evidence that would place the Applicant at risk of further criminal charges. I accept the Practitioner’s advice that the evidence had already been been disclosed to the Applicant. In the circumstances an application for an adjournment would have been difficult to obtain.

[15] Regardless of whether the Practitioner attended the Applicant in the cell once or twice is less material than whether she was fully informed of the circumstances. I accept that the Practitioner fully advised her of all relevant matters and properly cautioned her as to the risks of her situation, and the advantage of seeking a sentencing indication in relation to changing her plea. The fact that a sentencing indication was sought suggests that there had been a prior discussion between the Practitioner and the Applicant concerning the matter of her plea, and the Standards Committee properly noted that the Applicant had given written consent to the Practitioner to enter the guilty plea. I also accept that she was present in Court when the sentencing indication was given by the Judge as this is standard procedure. It may be the case that she did not fully comprehend all of the processes, and health issues she confronted at that time may have impacted on her recall.

[16] It is likely that the Applicant would have felt stressed at the time, and I accept that she may not have been in the best of health, but these circumstances do not translate into professional failings on the part of the Practitioner. Having considered all of the evidence and the circumstances surrounding the matter I can find no evidence that the Practitioner failed to keep the Applicant properly informed of the reality of her situation, or that he failed to protect her interests given the circumstances that she found herself in. Given the evidence against the Applicant, the Practitioner’s advice to her was reasonable and appropriate in all of the circumstances, and his advice and actions may well have been material in her avoiding a custodial sentence.

[17] The additional complaint alleging rudeness on the part of the Practitioner occurred some short time later when the Applicant asked the Practitioner to take steps

to change her plea. I accept that the Practitioner could no longer then continue to act for the Applicant, and it would not have been possible for him to do so on an application that would have examined his role in the plea. (I noted her application to change her plea was later unsuccessful). The Practitioner admitted that he may have been somewhat frustrated at the Applicant’s insistence that she wished to change her plea, but he denied that he was rude to her as alleged by the Applicant. It seems likely that the circumstances gave rise to some firm language, but there is no evidence that the Practitioner’s conduct was such that should lead to any adverse finding against him. In my view the Practitioner properly declined to pursue that application for her. There was no basis for upholding any of the complaints against the Practitioner, and there is no basis for interfering with the Standards Committee’s decision.

Decision

Pursuant to section 211(1)(a) of the Lawyers and Conveyancers Act 2006 the decision of the Standards Committee is confirmed.

_{DATED this 13}th _{day of July 2010}

Hanneke Bouchier

Legal Complaints Review Officer

In accordance with s.213 of the Lawyers and Conveyancers Act 2006 copies of this decision are to be provided to:

Mrs Hunstanton as the Applicant

Mr Gretna as the Respondent

The Wellington Standards Committee

The New Zealand Law Society