Turoa v New Zealand Police [2016] NZHC 104

Turoa v New Zealand Police [2016] NZHC 104 [9 February 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2015-404-307[2016] NZHC 104BETWEEN ABRAHAM RANGI TUROAAppellantAND NEW ZEALAND POLICERespondentHearing: 3 February 2016Counsel: PT Eastwood for appellantJV Barry for respondentJudgment: 9 February 2016JUDGMENT OF FAIRE JThis judgment was delivered by me on 9 February 2016 at 12 noon,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandTo: PT Eastwood, AucklandContentsIntroduction ............................................................................................................ [1]Factual background ................................................................................................ [3]Matters in the District Court [6]Grounds of Appeal ............................................................................................... [12]Procedural history in the High Court ................................................................... [13]Appellant's submissions ....................................................................................... [20]Respondent's submissions .................................................................................... [25]Analysis ................................................................................................................ [31]Result.................................................................................................................... [49]Introduction[1] Mr Turoa was charged on 25 August 2104 with wilfully committing an indecent assault under s 125(1) of the Crimes Act 1961 which carries a maximum sentence of imprisonment not exceeding two years.1 He was sentenced on 14 January2015 to 15 month's intensive supervision.2 He appeals the conviction and sentence although his counsel advised that the appeal against sentence would not be pursued.[2] The appellant filed the appeal out of time. The reason given was recorded in the notice of appeal and it was that he was advised he had no basis for the appeal. The respondent takes a neutral position and says little prejudice attaches to the respondent if an extension is granted. I grant an extension of time to appeal.Factual background[3] On the 2 August 2014 the appellant went to the Henderson Library on Ratanui St in Henderson. The complainant and several of her friends were seated at a large table. The appellant sat down directly opposite the complainant. He held a1 Crimes Act 1961, s 125(1).2 NZ Police v Turoa [2015] NZDC 20064.mirror between his legs underneath the table and positioned his body so that he appeared to be reading a book on top of the table when he was actually looking intothe mirror. The mirror reflected the complainant's legs and genital area. Theappellant continued to do this for two hours.[4] The complainant was only made aware of what the appellant was doing when she was approached by Police. The appellant was still sitting opposite the complainant when he was spoken to by Police. He denied the offending. He stated that there was a magnifying glass on the other side of the mirror which he was using to assist with reading.[5] The facts are not disputed by the appellant.Matters in the District Court[6] On the 25 August 2014, a charging document was filed for the offence of indecent act in a public place under s 125(1) of the Crimes Act 1961. The Record of Hearing shows the appellant had interim name suppression granted and was released on bail at that time.[7] On the 15 September 2014, in the District Court, the appellant pleaded not guilty.[8] On 30 September 2014, the Court was advised that name suppression was no longer sought with the result that the order for suppression expired on 2 October 2014.[9] The summary of facts originally recorded the charge as "offensive behaviour". That was crossed out and replaced by a reference to the charge of an indecent act in a public place. Although that change appears in the summary of facts, the file is clear that one charge only was ever laid, namely the offence of an indecent act in a public place.[10] On 17 November 2014, in the District Court, the appellant pleaded guilty to the charge of indecent act in a public place under s 125(1) of the Crimes Act 1961. He was remanded to appear for sentence on 14 January 2015.[11] On 14 January 2015, the appellant was sentenced to 15 month's intensivesupervision.Grounds of Appeal[12] The appellant's notice of appeal records the following grounds:(a) The sentencing judge invited counsel to vacate guilty plea because we believe his own assessment of the matter;(b) The original charge was offensive behaviour, which was the appropriate charge for facts;(c) Because of embarrassment I pleaded guilty contrary to advice from my lawyer.Procedural history in the High Court[13] This appeal has had an unsatisfactory history.[14] I have already extended time for the filing of the appeal.[15] Directions for its hearing were made by Toogood J on 23 October 2015 at which time a fixture was allocated for 14 December 2015. The directions made required that the appellant file affidavits and a waiver of privilege, and for submissions. Those directions were not complied with.[16] The appellant made an application for an adjournment of the hearing. That was granted by Wylie J on the assigned date for the hearing, namely 14 December 2015. His Honour made new directions. They also were not complied with on atimely basis. The appellant's submissions were not received by the court until 4:30pm on the day before this fixture.[17] The directions previously made include directions for the filing and service of affidavit evidence. Because the directions included reference to a waiver of privilege, the implication seems to be that there would be a complaint against the lawyer who represented the appellant in the District Court and that, therefore, the provisions of r 8.7 of the Civil Procedure Rules 2012 apply.[18] On 27 January 2016, in response to counsel's memorandum regarding cross- examination of the affidavit deponents, Thomas J minuted the file:Leave given pursuant to r 8.7(4) Criminal Procedure Rules 2012.[19] Both counsel took the position that the two affidavits which had been filed -one by the appellant and the other by the appellant's lawyer in the District Court –should be read and that both deponents should be cross-examined. Although that position seemed irregular, because there was no clearly defined complaint against counsel who appeared for the appellant in the District Court, I allowed the matter to proceed on that basis. Both deponents were accordingly cross-examined.Appellant's submissions[20] Mr Eastwood advanced the appeal in reliance on three matters.[21] First, he submitted the facts do not reach the threshold of an indecent act. He referred to the fact that the summary of facts originally referred to an offence of offensive behaviour which, he submitted, was the appropriate charge and one which was accepted by the appellant. He referred to the schedule of cases which had been presented by counsel for the appellant in the District Court to the District Court Judge on 17 November 2014 in support of the proposition that the facts do not reach the threshold of an indecent act.[22] Second, he submitted that at the case review hearing on 17 November 2014 the appellant was advised by the judge that he effectively had no defence to the charge. This, he submitted, resulted in the appellant entering a plea based on a wrong decision on a question of law namely, whether his conduct as set out in the admitted summary of facts amounted to an indecent act in a public place.[23] Third, he submitted that the appellant's lawyer had told the appellant that thematter would be "done and dusted" if the appellant pleaded guilty on 17 November 2014.[24] Mr Eastwood submitted that a miscarriage of justice will result if the conviction is not overturned, having regard to the matters outlined by him.Respondent's submissions[25] Mr Barry advanced the following matters.[26] First, he submitted that there has only ever been one charge, namely a charge of an indecent act in a public place pursuant to s 125(1) of the Crimes Act 1961. That was the charge which the appellant faced at all his District Court appearances. The crossed out reference on the summary of facts is therefore irrelevant.[27] Second, the facts are sufficient to support a charge of indecent act in a public place.[28] Third, there is no evidence that the judge asserted any pressure on the appellant to change his plea. His change of plea followed a discussion with his counsel, when counsel advised that he could defend the case and that he might expect to succeed in front of another judge. Counsel had set out the position in awritten note which the appellant signed. There is no basis on which the appellant'sdecision to plead guilty can be impugned.[29] Fourth, the appellant's evidence that his lawyer told him that the case would be "done and dusted" is refuted by the appellant's lawyer and is inconsistent with the appellant's knowledge of the process and the documents he signed at the time.[30] Mr Barry submitted there is no basis upon which the court can find that there has been a miscarriage of justice which requires the court to overturn the conviction.Analysis[31] The central issue in this case is whether a miscarriage of justice will result unless the appellant is able to impugn his guilty plea and have the conviction setaside. The Court of Appeal has said that it is only in "exceptional circumstances"that an appeal against conviction will be entertained after a plea of guilty and that an appellant must show that a miscarriage of justice will result if the conviction is not overturned.3[32] One matter that can be disposed of quickly is whether there was one only charge or an amendment to that charge.[33] It is clear from the file that there has only ever been one charge, namely the charge of an indecent act in a public place.[34] It is common ground that the appellant's counsel's strategy in the DistrictCourt had been designed to convince the authorities to amend the charge to the lesser charge of offensive behaviour. The fact that offensive behaviour appeared on the summary of facts was fortuitous so far as the strategy was concerned. However, it has no relevance to the charge laid and faced by the defendant at each of his appearances in the District Court. There is simply no foundation for the proposition that there has been a miscarriage of justice arising from the notation of these wordson the summary of facts. It does not support the appellant's appeal.[35] I move to the second issue. In R v Le Page the Court of Appeal referred to at least three broad situations where a miscarriage of justice will be indicated.4 One of these is raised in this case and is where, on the admitted facts, the appellant could not in law have been convicted of the offence charged.5[36] This issue is raised because the appellant has proceeded throughout on the basis that the summary of facts is admitted. The sole question then is whether those admitted facts satisfy all elements of the charge.3 R v Le Page [2005] NZLR 845 at [16]; R v Proctor [2007] NZCA 289 at [4].4 R v Le Page, above n 3, at [17].5 At [18].[37] The charge was laid pursuant to s 125 of the Crimes Act 1961 which provides:125 Indecent act in public place(1) Every one is liable to imprisonment for a term not exceeding 2 years who wilfully does any indecent act in any place to which the public have or are permitted to have access, or within view of any such place.(2) It is a defence to a charge under this section if the person charged proves that he had reasonable grounds for believing that he would not be observed.(3) For the purposes of this section, the term place includes any railway carriage, and also includes any ship, aircraft, or vehicle used for the carriage of passengers for hire or reward.[38] I have recorded in [3] and [4] the admitted facts. The appellant does not raise any matter in those admitted facts suggesting that he had reasonable grounds forbelieving that he would not be observed. The appellant's conduct has occurred in a public library, which is clearly a public place. The appellant's conduct wasadmittedly wilful. The only question would appear to be whether the conductamounted to an indecent act. The court's have generally accepted that therequirements for an indecent act are that:6the act in question must be one that, given the time, place and circumstances would be considered indecent by right minded persons such as to warrant the sanction of the law.[39] Mr Barry referred to the judgment of Priestley J in Iosefa v Police which involved a male peering into a female toilet cubicle to observe a female while she was on the toilet.7 His Honour, although expressing some sympathy for the possible overcharging of the defendant in that case, nevertheless concluded that:the act of standing on the seat of a toilet and peering over into an adjacent cubicle occupied by a female would, on the part of a male, be an indecent act[40] It might be the case that the discretion could have been used to lay a different charge but I am satisfied that there is, here, no dispute that the ingredients of the6 McMillan v Police [2013] NZHC 252 at [47] citing R v Dunn [1973] 2 NZLR 481 (CA) and R v Armstrong [2007] NZCA 221.7 Iosefa v Police HC Auckland CRI-2010-404-301, 4 October 2010 at [22].offence of an indecent act are satisfied by the agreed facts. In short, I am satisfied that where the appellant has held a mirror between his legs to see the genital area of those sitting opposite him for a period of approximately two hours he has committed an indecent act. I am therefore satisfied that, on the admitted facts, it cannot be established that the appellant would not have been convicted of the offence charged. On that basis, I am not satisfied that this potential ground for a miscarriage of justice, which would justify the setting aside of the guilty plea, has been made out.[41] The next area that requires investigation relates to the interchange with the Judge at the case review hearing on 17 November 2014 and the advice which was given by Mr Dunne, the appellant's then counsel, following that interchange.[42] It is common ground that the Judge was invited by Mr Dunne to express a view on whether the admitted facts satisfied the elements of the charge pursuant to s 125. It is also common ground that Mr Dunne gave the judge a case summary for the purpose of supporting the proposition that the facts did not amount to a breach of s 125 but were more appropriate for a lesser charge of offensive behaviour pursuant to the Summary Offences Act 1981.[43] There is a dispute as to what occurred following the Judge's expression of opinion. What is clear, however, from the contemporary documents signed at the time is that there was, in fact, no pressure put on the appellant to change his plea by the Judge. Further, as is recorded in writing, the appellant was told that he could defend and possibly succeed before another judge. Counsel did not recommend that the appellant change his plea. His decision to change his plea was made of his own volition. That, in fact, is made clear by the written instruction which the appellant gave Mr Dunne at the time, which was as follows:I instruct you that I will plead guilty to the charge of indecent act giventoday's indication by her Honour Judge Tremewan. I understand from youthat I may successfully defend the charge if this matter proceeded to a defended hearing before another judge given your research of the case law before the High Court and Court of Appeal as discussed.[44] Mr Dunne denied that he made any statement to the effect that if the appellant pleaded guilty the matter would be done and dusted that day. I accept his evidenceand reject that of the appellant on this matter. The appellant's version is inconsistentwith the documents which were signed at the time and, indeed, inconsistent with what the appellant clearly knew, namely that it was likely that there would have to be further adjournments for sentencing purposes in any event.[45] I do not overlook the fact that the appellant was particularly concerned about media attention and that he may have felt that having the matter dealt with in the absence of the media might have avoided publicity. However, in terms of the articulation of the first of the three broad situations where a miscarriage of justice might be indicated, this case falls far short of situation where the appellant could say that he did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. He was represented by counsel, who I find to be able and conscious in the handling of the matter, at the time the plea was entered. His counsel and he both confirmed that the judge imposed no pressure at all to enter his plea of guilty. That was a decision he took despite having had advice that he could carry on and defend the case.[46] Counsel referred to the decision of the Ontario Court of Appeal in R v Djekic.8 There was, in that case, clear evidence of pressure applied to the defendant to change the plea based on the possibility that if a change of plea was not entered a new charge would be laid coupled with the fact that the defendant had significant family considerations that required immediate attendance. There is simply nothing approaching the situation that was before the court in the Canadian case in this case.[47] I am accordingly satisfied that neither the actions of the Judge, nor that of counsel for the appellant at the time, provide a justification for the setting aside of the appeal. Further, I record this is not a case where a ruling has been given which was wrong in law, which was the foundation for the change of plea. The view expressed by the Judge at the time was not binding on the defendant.[48] I conclude, therefore, that none of the circumstances advanced by Mr Eastwood on behalf of the appellant justify the impugning of the guilty pleas to avoid a miscarriage of justice.8 R v Djekic (2000), 147 CCC (3d) 572 (Ont CA).Result[49] Accordingly, the appeal is dismissed.____________________JA Faire J