GORGUS v R [2021] NZCA 367

GORGUS v R [2021] NZCA 367 [5 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA121/2020[2021] NZCA 367BETWEEN ASHOR CHRISTIAN GORGUSAppellantAND THE QUEENRespondentHearing: 20 May 2021Court: Goddard, Venning and Peters JJCounsel: Appellant in person R K Thomson for RespondentJudgment: 5 August 2021 at 10.00 amJUDGMENT OF THE COURTA An extension of time to appeal is granted.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] On 23 December 2019, Mr Gorgus pleaded guilty to charges of theft and receiving stolen property. He was convicted, and sentenced to 18 months' imprisonment.1 This was in effect a "time-served" sentence, as Mr Gorgus had spent more than nine months in custody on remand, so was entitled to be released on parole immediately.1 R v Gorgus [2019] NZDC 26079 [Sentencing judgment].[2] Mr Gorgus now seeks to appeal against his convictions. He requires an extension of time in which to do so, his appeal having been filed approximately five weeks out of time. However, the Crown does not oppose an extension, and we grant it accordingly.[3] The grounds on which Mr Gorgus appeals are that his arrest on 5 November 2018 was unlawful and in breach of s 23(2) New Zealand Bill of Rights Act 1990; alternatively that the charge of receiving had been withdrawn by the date of his plea to that charge; and alternatively that his pleas (to both charges) were induced by an erroneous ruling that evidence relevant to the receiving charge would be admissible at trial.2 Before us, Mr Gorgus advised that he was not pursuing a ground previously notified, being that he was "pressured" into pleading guilty by an offer of the Crown to resolve matters on the time-served basis referred to above at [1].[4] The appeal is opposed.[5] An appeal against conviction must be allowed if a miscarriage of justice has occurred for any reason. 3 A miscarriage of justice means any error, irregularity, or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.4 For the purposes of the definition of a "miscarriage of justice", a trial includes a proceeding in which the appellant pleaded guilty.5[6] In R v Le Page, this Court held that it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.6An appellant must show that a miscarriage of justice will result if his or her conviction is not overturned. If the appellant fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot generally be impugned.72 R v Gorgus [2019] NZDC 24941 [Pre-trial ruling].3 Criminal Procedure Act 2011, s 232(2)(c).4 Section 232(4).5 Section 232(5).6 R v Le Page [2005] 2 NZLR 845 (CA) at [16].7 At [16].BackgroundArrest[7] Constable Wong arrested Mr Gorgus late in the evening of 5 November 2018, on suspicion of him having been unlawfully in an enclosed yard. 8 The events leading up to the arrest may be summarised as follows.[8] At about 10.00 pm that evening, the police received a report of a stabbing in Ngaire Avenue, Epsom. Constable Arthur responded to that report and spoke to the residents at an address at Ngaire Avenue. They informed her that a male had come to the address, had claimed to be stabbed but they could see no sign of injury, and that the male appeared agitated, on drugs, and had "taken off over the fence".[9] At a pre-trial hearing before Judge Taumaunu, concerned with the admissibility of evidence (referred to below at [21]), Constable Arthur's evidence was that the residents gave her the following description "male, Arab, black top, red bag", and that she had recorded this description in her notebook and also relayed it to police communications at or about the same time.9 We note that there was an issue at the pre-trial hearing about whether the residents had in fact given this description to Constable Arthur and whether it had been broadcast on the police radio, and again we refer to this below.[10] The second call to the police was from a staff member of a nearby boarding house, Epsom Lodge, reporting a person trespassing. Epsom Lodge is on Margot Street, which is immediately parallel to Ngaire Avenue. The description given by this caller was of a male Arab, wearing a black shirt, with a red bag, who was slightly overweight and in his middle age, around late 40s.[11] Constable Wong, on patrol in the area, heard reports over the police radio of an Arab male acting suspiciously, claiming to have been stabbed, and who had been seen to jump a fence or fences in Ngaire Avenue. On hearing of the incident at Epsom Lodge, Constable Wong went to that address and on arrival saw Mr Gorgus, as8 Summary Offences Act 1981, s 29(1)(b).9 Pre-trial ruling, above n 2, at [9].it turned out, outside. Constable Wong considered Mr Gorgus's appearance consistent with the descriptions broadcast and saw him dispose of a red bag into nearby bushes on first sight of Constable Wong. The Constable arrested Mr Gorgus for unlawfully being in an enclosed yard, that being in Ngaire Avenue.[12] Constable Arthur then herself went to Epsom Lodge and on arrival Constable Wong asked her to search the backpack.[13] Constable Arthur found an iPad, camera, screwdrivers, pliers and gloves in the backpack. She opened the iPad to see whether or not it belonged to Mr Gorgus. The iPad appeared to belong to a female and, on further enquiry of police headquarters, Constable Arthur was informed the owner had reported it stolen in a burglary earlier in the day at a nearby address in Mt Eden.Charges[14] The following day, 6 November 2018, the police charged Mr Gorgus with the burglary of that address; receiving stolen property, being the iPad and camera; and possession of instruments capable of being used for burglary being the screwdrivers and so on.[15] On 12 February 2019, the Crown filed a Crown Charge Notice (CCN) charging the burglary and withdrawing the receiving and instruments charges. The withdrawal of the receiving charge is relevant to the second issue raised by Mr Gorgus's appeal.[16] Various procedural steps ensued over the coming months, including Mr Gorgus seeking but ultimately declining three sentence indications, one in February 2019 and two in April 2019. For the first two of these the prosecution indicated a willingness to amend the burglary charge to one of receiving if it would assist in resolving matters, and this ultimately is what occurred in December 2019. Such an amendment was in Mr Gorgus's favour as it exposed him to a lesser term of imprisonment.[17] On or about 5 March 2019, and after a breach of bail and a failure to appear, the police laid a fresh charge of receiving the iPad and camera, and also a charge oftheft of a Mazda motor vehicle from a car dealership. Mr Gorgus was alleged to have failed to return the vehicle after taking it for a test drive in October 2018.[18] On 20 June 2019, the Crown filed a CCN charging the theft of the vehicle. This meant the Crown had two charges on foot, one of burglary and one of theft.Pre-trial application[19] On 20 September 2019, Judge Taumaunu heard the Crown's pre-trial application for an order that evidence of the contents of the backpack was admissible at trial.[20] The Crown contended the evidence was admissible as the search of the backpack, and of the iPad itself, was consequential on Constable Wong's arrest of Mr Gorgus. The Crown submitted the arrest was lawful pursuant to s 315 of the Crimes Act 1961. This required Constable Wong, at the time of arrest, to have had good cause to suspect Mr Gorgus of having committed an offence punishable by imprisonment, that is being unlawfully in an enclosed yard. Alternatively, if it was wrong in that and the evidence improperly obtained, the Crown submitted the "balancing exercise" required by s 30 of the Evidence Act 2006 favoured admission.[21] Mr Mansfield, counsel for Mr Gorgus at the time, submitted the evidence was inadmissible. In particular, Mr Mansfield submitted Constable Wong did not have good cause to suspect that an offence had been committed in Ngaire Avenue, let alone that Mr Gorgus was the offender. On that last point, Mr Mansfield had challenged Constable Arthur's evidence that the residents at Ngaire Avenue had given her the description referred to in [8] above. Rather, it was put to the Constable that she had heard that description over the police radio in connection with what was said to be occurring at Epsom Lodge. The basis for this line of questioning of Constable Arthur was a written statement made in January 2019 by one of the residents at Ngaire Avenue who had spoken to the male on the evening in question. In her statement, the resident described the male as "big island guy, over 6 foot, wearing a cap, had a red backpack, jeans, sneakers, jacket".[22] Ultimately, the Judge was satisfied that Constable Wong's arrest of Mr Gorgus was lawful. The Judge was satisfied that Constable Wong suspected Mr Gorgus of having committed the offence for which he was arrested and the Constable had good cause for that suspicion. This was because both reports described the male acting suspiciously as if on drugs; both described the male as carrying a red backpack, which Constable Wong observed Mr Gorgus dispose of; and Mr Gorgus was sweating profusely and breathing heavily, consistent with his having exerted himself by jumping a fence or fences. The Judge considered the discrepancies between Constable Arthur's evidence and the written statement immaterial given that it was Constable Wong who had made the arrest.[23] The effect of these findings was that the arrest and the searches of both the backpack and iPad were lawful and thus the evidence was admissible. 10 In case he were wrong on that, the Judge went on to consider whether exclusion of the evidence would be disproportionate to the impropriety. The Judge found that it would be disproportionate and that the evidence was admissible on that score also. 11[24] On 16 December 2019, Mr Gorgus lodged an application for leave to appeal to this Court against the Judge's pre-trial ruling. 12Pleas[25] The next step that followed was the pleas themselves. Mr Gorgus has not waived privilege in this matter so we do not have evidence from Mr Mansfield, or evidence from Mr Johnstone, for the Crown, about the plea negotiations. But the Crown has produced an email sent by Mr Mansfield on 20 December 2019 to the District Court, copied to the Crown, asking that the matter be listed on 23 December 2019 for plea and sentence. That email chain included an email sent on 20 December 2019 by Mr Johnstone to Mr Mansfield.10 Sentencing judgment, above n 2, at [55] and [66].11 At [82].12 Leave to appeal was subsequently declined by this Court on 19 March 2020 for lack of jurisdiction because Mr Gorgus had pleaded guilty and had been convicted: Gorgus v R [2020] NZCA 46.[26] In his email, Mr Johnstone reports on a (further) telephone call from Mr Gorgus direct from prison, in which Mr Johnstone confirmed to Mr Gorgus that the Crown had agreed to amend the burglary charge to one of receiving in contemplation of a guilty plea on (Monday) 23 December 2019; that he had refused Mr Gorgus's request to drop the theft charge; and that he had told Mr Gorgus the Crown would support a submission that a sentence of "time-served" should be imposed. Mr Johnstone also asked Mr Mansfield whether Mr Gorgus would withdraw his appeal against the pre-trial ruling if matters were settled on that basis, and he attached the CCN for the theft of the vehicle, and another labelled "For Resolution", amending the (extant) burglary charge to one of receiving the iPad and camera. That this was an amendment of the burglary charge is apparent from the CRN number quoted on the CCN.[27] Then, on 23 December 2019, Mr Gorgus entered guilty pleas, and Judge Sharp entered convictions. Counsel submitted to the Judge that the proposed sentence was a principled one, a matter of which the Judge was ultimately persuaded. 13The appealUnlawful arrest[28] Mr Gorgus submits that his arrest on 5 November 2018 was unlawful.[29] Mr Gorgus submits Constable Wong could not have had the required good cause to suspect under s 315 of the Crimes Act because he did not match the description given by the Ngaire Avenue resident or the caller from Epsom Lodge. As Judge Taumaunu accepted, Mr Gorgus is not of Arab extraction. 14 We take Mr Gorgus's word that he was not wearing some of the clothes the callers had described, and that he was not in his late 40s but rather was 34 at the relevant time.[30] However, like the Judge, we do not accept Mr Gorgus's submission that such discrepancies, as there may have been between his actual appearance on the night and the descriptions given by the person concerned, negate the other matters to which the13 Sentencing judgment, above n 1, at [13]–[15].14 Pre-trial ruling, above n 2, at [50].Judge referred. As the Judge said, descriptions given are not a scientific exercise and there may well be inconsistencies.15[31] In so far as Mr Gorgus submits that he was arrested on suspicion of having committed an offence with which he was not charged, nothing turns on that. The sole issue is whether the arrest was made lawfully. The police need not lay any charge against an arrested person, let alone the offence the arrested person is suspected of having committed at the time of arrest. 16[32] To conclude on this point, we are not persuaded the arrest was unlawful.Receiving charge[33] Mr Gorgus submits that the Crown could not pursue a charge of receiving on 23 December 2019, having withdrawn that charge on 12 February 2019.[34] We accept the Crown's submission that it was open to the Crown to proceed as it did. Section 190 of the Criminal Procedure Act 2011 permits a Crown prosecutor to file a notice amending any charge, prior to trial, without leave. That is what occurred in this case. The Crown amended the extant burglary charge to one of receiving, as it was entitled to do. No miscarriage arises as a result.Plea induced by erroneous ruling[35] To succeed on this ground, Mr Gorgus must establish that Judge Taumaunu erred in holding the evidence admissible and that the Judge's ruling left him with no option but to plead guilty.[36] R v Le Page is particularly relevant to this ground of appeal because the appellant in that case contended he had pleaded guilty in the face of an erroneous ruling that evidence obtained during the search of a vehicle was admissible.17In response, this Court said that it does not ordinarily follow that a defendant has no15 At [49]–[51].16 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 566.17 R v Le Page, above n 6.option but to alter his or her plea following an adverse ruling as to the admissibility of evidence. 18 That a ruling renders the prosecution case "factually overwhelming" or makes it more difficult to mount a defence is insufficient to establish "the necessary nexus between the ruling and the change of plea". 19 It is not enough that the defendant's chances at trial have suffered a "body blow". 20 There must be no legal avenue left to a defendant.21[37] As a first step, it is for Mr Gorgus to satisfy us the Judge's ruling was erroneous.[38] We are not persuaded the Judge did err. If the arrest was lawful, the search of the backpack was lawful pursuant to s 11 of the Search and Surveillance Act 2012. As to the search of the iPad, that too was lawful pursuant to s 110(h) of the same Act. And as we have said, the Judge went on to consider the position under s 30 of the Evidence Act if the searches were unlawful. The Judge's analysis of the factors in s 30 which inform this decision was unremarkable and we agree with his conclusion.[39] Nor is the second step, of establishing a nexus between ruling and plea, satisfied. Although the Judge's ruling made it more difficult for Mr Gorgus to defend the receiving charge, it was not impossible for him. In an affidavit affirmed on 22 June 2020, Mr Gorgus stated he "had nothing to do with" the stolen goods. Before us, Mr Gorgus acknowledged that he was "in control" of the backpack at the time of the search but said he was looking after it for someone else. It was open to Mr Gorgus to defend the receiving charge on that basis.[40] It was also open to Mr Gorgus to continue to pursue the appeal he had already filed against Judge Taumaunu's pre-trial ruling.[41] Accordingly, we accept Crown counsel's submission that even if the ruling was erroneous — and we are not persuaded it was — the necessary nexus is not established.18 At [20].19 At [21]–[22].20 At [23].21 At [23].Result[42] We grant an extension of time to appeal against conviction.[43] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent