WEDGWOOD v R [2023] NZCA 638

WEDGWOOD v R [2023] NZCA 638 [12 December 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT/PERSON UNDERTHE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMEDWITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA516/2022[2023] NZCA 638BETWEEN ASTON EDWARD WEDGWOODAppellantAND THE KINGRespondentHearing: 30 October 2023Court: French, Thomas, Fitzgerald JJCounsel: Appellant in personM G McClenaghan for RespondentJudgment: 12 December 2023 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Fitzgerald J)Introduction[1] On day two of a jury trial in the Christchurch District Court, Mr Wedgwoodpleaded guilty to five charges of supplying a Class C drug to a person under 18 yearsold,1 two charges of indecent assault,2 and one charge of theft.3 Four other chargeswere withdrawn.4 Mr Wedgwood was sentenced by Judge M Callaghan on16 December 2022, to one year and 11 months' imprisonment.5[2] Despite his guilty pleas, Mr Wedgwood now appeals against his convictions.He is self-represented on appeal. It is a little difficult to discern the precise basis forthe appeal, but from Mr Wedgwood's notice of appeal and his oral submissions at thehearing, we proceed on the basis of the following grounds of appeal:(a) Mr Wedgwood was not able to adequately participate in a pre-trialhearing that determined the admissibility of propensity evidence attrial, and he "ran out of time for appealing pre-trial decisions";(b) the trial was unfair because Mr Wedgwood's physical and mental healthneeds were not accommodated and he was therefore "unable towithstand the trial";(c) Mr Wedgwood's inability to properly prepare for and participate in thetrial was compounded by his physical and mental health needs notbeing accommodated while in custody in the lead-up to the trial, andduring his transportation to court for the trial; and(d) he was not given sufficient time to prepare a defence.1 Misuse of Drugs Act 1975, s 6(1)(d).2 Crimes Act 1961, s 135.3 Crimes Act, s 219.4 The withdrawn charges included one charge of supplying a Class A controlled drug (namely LSD),a charge of indecent assault on a young person under 16 (the offending was alleged to have beenagainst a second complainant), a charge of assault and a charge of robbery.5 R v Wedgewood [2022] NZDC 25205 [Sentencing notes].The alleged offending[3] The charges against Mr Wedgwood arose out of events that occurred while hewas residing at a property in North Canterbury in January 2020. The Judgesummarised the offending in his sentencing notes as follows:6[3] The summary of facts in respect of the charges is that on 26 January2020, the police received information that you were residing at an address in[North Canterbury] and you had been doing so for about a month with BH.He is wheelchair bound. Also resident at the address was his son K or KH,and KH had friends CB, KS, TV and CR.[4] KH is 14. CB who is [the] victim of the indecent assault was 17 years,KS was 13, TV was 17 and CR was 15.[5] In late December 2019, you arrived at BH's address in [NorthCanterbury] after making an arrangement to deliver a tin of cannabis to himvia Facebook. You were introduced to him as "the bro" and you spoke to bothhe and his son about having access to medical marijuana and you gave themsome free cannabis.[6] Following that you approached the son and talked to him about sellingmarijuana for you and you struck a deal with him that if he sold six tinnies, hewould receive the seventh one free.[7] On 31 December 2019, you had been out with the son during the day.When you came home in the evening, you found the occupant BH and alsothe victim of the indecent assault at the address celebrating New Year's Eve.You produced a bag of cannabis and said to the two young ones that thecannabis was for their use. Throughout the night you all consumed alcoholand cannabis. CB fell asleep and awoke to you placing a vaping device in hisface and offering him a bong, saying: "Have it have it". You returned to theaddress in the following days and took up residence in the spare bedroom andyou stayed until 26 January 2020. You had never actually been asked to stayat the address.[8] Over the period of time, you supplied cannabis to the named victims inthe charges, all of whom were under 18 years of age. The cannabis wassupplied to all but one of them on several occasions and in respect of one ofthem, the youngest, you supplied it on one single occasion. You oftenremained present while the cannabis was smoked by the young people.[9] In January 2020 after the consumption of alcohol and cannabis suppliedby you, you offered KH, who is the son of the owner or occupier of theproperty, and CB who is the victim of the indecent assault, a white capsulewhich you referred to as a tingle tab. The victim of the indecent assaultconsumed one of these pills and fell asleep shortly after in the garage on thecouch. He awoke in a dazed state sometime later to find himself lying on aleather couch in the living room with no memory of how he had got there.You were lying next to him on the floor. You had your arm raised up and wastouching the front of his trousers. You then placed the palm of your hand into6 Sentencing notes, above n 5.the waistband of his pants. He asked you what you were doing and heimmediately stood up and left the room.[10] He went to another room where he lay down on what he thought wasthe spare bed and fell back asleep. He awoke to hear the sound of a vapingdevice and saw you standing next to the bed vaping. He noticed you, thedefendant, were staring at him and that you had an erection. You told thevictim he was in your bed. He replied that: "He'd go" to which you responded:"It's all good. We can share it." You then lay down beside him on the bed andgot closer and closer to him. He was lying on his side and was too scared tosay anything. You then placed your hand on his shoulder and you pushed yourerect penis against the right buttock of him. You then began breathing heavilyinto his ear. He got out of bed and left the room.[11] The occupier, as I say, is wheelchair bound. He has painkillers at nightwhich help him sleep and he is bed bound for the majority of the day. Becauseof his lack of mobility, his son has to go and withdraw money out of a cashmachine on a weekly basis. Between 1 January and 26 January 2020, youapproached him while he was in bed and you told him that his son owed youmoney and that the father had to pay. You demanded the money from him andyou spoke about having minders and said that they would take care of businessif he refused to pay. He felt intimidated by that which made him feel that hehad to pay and so he had you withdraw $200 on four separate occasions. Themoney was paid in cash and reparation is sought for that amount.[4] Relevant to matters discussed later in this judgment,7 when interviewed bypolice about the alleged offending, Mr Wedgwood said that the complainant, CB, hadin fact sexually assaulted him, and was the person offering drugs to others in thehouse.8Mr Wedgwood's physical and mental health issues[5] It is helpful to next address Mr Wedgwood's physical and mental health issues,which have been the subject of a number of expert assessments over the years. Theywere conveniently summarised by this Court when dismissing Mr Wedgwood's appealagainst the District Court's finding that he was fit to stand trial on the charges that arethe subject of this appeal.9 This Court stated:[10] It is not disputed that Mr Wedgwood sustained a traumatic brain injuryin 1997 as a result of an assault. There were also other, less severe, injuriessubsequent to the original injury.[11] The effect of the 1997 injury, particularly on Mr Wedgwood's cognitivefunctioning, has been the subject of considerable investigation over the years.7 See [42] to [45] below.8 R v Wedgewood [2022] NZDC 3754 [District Court propensity evidence decision] at [36].9 Wedgwood v R [2022] NZCA 351 [Fitness to stand trial appeal].The predominant complaints have been of fatigue, reduced attention span,slow processing of information, difficulty moving on from particular topics,and difficulty regulating body temperature. In 2013 Mr Wedgwood'sneuropsychiatrist, Dr Gil Newburn, concluded that Mr Wedgwood hadsuffered from a personality change and post-concussion syndrome as a resultof the 1997 brain injury.[12] In June 2018 Mr Wedgwood was the subject of a report provided unders 38(1) by clinical psychologist Stephanie Snelson in the context of offendingunrelated to the current charges. Ms Snelson assessed Mr Wedgwood'smedical and personal history. She noted previous diagnoses of post-traumaticstress disorder, major mood disorder, adjustment disorder featuring mixedanxiety and depressed mood and personality dysfunction with traits ofnarcissistic personality disorder. She observed Mr Wedgwood's "verychallenging and demanding interpersonal style, whereby he relies on strongavoidance strategies to manage his emotional discomfort and stress".[13] Ms Snelson concluded that, given Mr Wedgwood's well-establisheddifficulties in executive functioning resultant from head injuries, hisdifficulties with information processing, emotion regulation, planning andshifting of attention could certainly be considered a "mental impairment" forthe purposes of s 4 of CPMIP. She did not, however, consider that thesedifficulties impaired Mr Wedgwood to the extent he would not be able toparticipate in the court process. On balance, Ms Snelson concluded thatMr Wedgwood was fit to stand trial.[14] In February 2019 Dr Newburn, in relation to the same proceeding,undertook a further assessment under s 38(1) at the request ofMr Wedgwood's lawyer. He reviewed Mr Wedgwood's medical and personalhistory at some length. He commented that the issues arising fromMr Wedgwood's brain injury would impact on his capacity to function in thecourt environment, noting particularly cognitive issues and informationprocessing. Nevertheless, Dr Newburn considered that Mr Wedgwood wasnot unfit to stand trial provided the court could meet conditions to assist himin managing the known issues. In particular, this included managing theambient temperature, minimising the amount of stimulus load and allowingfrequent breaks.[6] Of particular relevance to the present appeal is that Mr Wedgwood hasdifficulty in managing his body temperature (thermoregulation) and an aversion tostrong light. In relation to the former, Mr Wedgwood requires the ambient temperatureto be within a range of 16 to 21 degrees Celsius.10The procedural history of the trial and this appeal[7] Given the grounds of Mr Wedgwood's appeal, it is necessary for us to traversethe procedural history of both the trial in the District Court and this appeal.10 Wedgwood v R [2022] NZCA 42 [Name suppression appeal] at [24].[8] Mr Wedgwood was charged on 20 April 2020. His fitness to stand trial wasraised shortly thereafter. Two health assessor reports were sought by and provided tothe District Court. Mr Wedgwood was also assessed to determine if he requiredcommunication assistance at trial.[9] In a judgment delivered on 17 June 2021, Judge Hix concluded thatMr Wedgwood was mentally impaired but that there was a "compelling case for afinding that [he] is fit to stand trial".11 As already noted, Mr Wedgwood's appealagainst that finding was dismissed by this Court in August 2022, which observed that"the totality of the evidence leaves no room for doubt that Mr Wedgwood is fit tostand trial".12[10] The Crown proposed to call propensity evidence at Mr Wedgwood's trial, theadmissibility of which was opposed. The evidence related to events in 2015, whichled to Mr Wedgwood being found guilty following a jury trial in 2017 of charges ofmeeting a young person following sexual grooming, supplying cannabis to a personunder the age of 18, and doing an indecent act with a male between 12 and 16 yearsof age. The sentencing Judge's notes recorded that Mr Wedgwood had deliberatelyset out to befriend boys aged 14 to 16 years old and engaged in grooming behaviour.13He pretended to be a social worker, bought the boys food, let them sleep at his house,and provided them with cannabis. On one occasion, one boy who had stayed atMr Wedgwood's house and been given cannabis awoke to find that his trousers andunderwear had been removed and Mr Wedgwood was lying closely behind him.[11] In a decision delivered on 7 March 2022, Judge Neave ruled the propensityevidence admissible.14 While accepting that there were some differences between the2015 offending and the alleged index offending, the Judge noted there were a numberof core similarities and that it would be a "remarkable coincidence" that two sets ofcomplainants should make similar allegations against Mr Wedgwood.15 The Judgeaccordingly held that the evidence had a high degree of probative value which was not11 Police v Ernest [2021] NZDC 12188 at [10] and [11].12 Fitness to stand trial appeal, above n 9, at [25].13 As recorded in the District Court propensity evidence decision, above n 8, at [28].14 District Court propensity evidence decision, above n 8.15 At [43]–[46].outweighed by the risk of it having an unfairly prejudicial effect on the proceedings.16He also noted that if Mr Wedgwood was going to allege that it was CB who hadsexually assaulted him, it was appropriate for the jury to be aware that Mr Wedgwoodhas a history of behaving in a similar fashion on a previous occasion.17[12] In his decision, Judge Neave also recorded that prior to the admissibilityhearing, Mr Wedgwood — despite being represented by counsel — had applied toadjourn the hearing on the basis he did not consider he could fairly prepare for thehearing.18 Judge Neave declined the application, noting that Mr Wedgwood wasrepresented at the hearing by counsel who had not reported any difficulty in obtaininginstructions or preparing argument for the hearing.19 The Judge also noted that it wasnot uncommon for matters such as a pre-trial admissibility issue to be argued in theabsence of the defendant and thus it was not necessary that Mr Wedgwood bepresent.20 Judge Neave then stated:[7] As it transpired Mr Wedgewood (sic) was present at the hearing. Hewas clearly able to articulate his views as he did in his request for anadjournment and he was able to communicate with [counsel] throughout thehearing and did so on more than one occasion. Furthermore Mr Wedgewood(sic) was able to provide [counsel] with written material from time to timewhich required some ingenuity given his position in the dock which did nothave adequate materials for his purposes. When this was drawn to myattention I ensured that he had appropriate amounts of writing material toprovide further instructions to [counsel]. I could see no disadvantage toMr Wedgewood (sic) in continuing with the hearing and could see no benefitthat would be obtained by an adjournment.[13] Mr Wedgwood's trial was due to commence on 26 September 2022. On13 September 2022, the trial Judge, Judge Callaghan, convened a telephoneconference with counsel to address an application by Mr Wedgwood to adjourn thetrial. Mr Wedgwood's trial counsel, Ms Aickin, advised that following face to facecontact between her and Mr Wedgwood (as directed by the Judge at a "ground rules"hearing for the trial held in August 2022), Mr Wedgwood had provided a list of14 names of individuals or organisations which he said needed to be spoken to inrelation to his defence, and instructed that a private investigator be retained to make16 At [46].17 At [45].18 At [4].19 At [6].20 At [6].appropriate inquires. Ms Aickin advised the Judge that she had discussed withMr Wedgwood the relevance of the named individuals and organisations, and thatinquiries needed to be made to progress the defence. She sought an adjournment ofthe trial for that purpose.[14] In a minute issued on 13 September 2022, the Judge declined the applicationfor an adjournment. He noted Ms Aickin's advice that she had not progressed theinquiries at that point, given the instructions she had received were "somewhat vague"in relation to addresses and actual persons. The Judge also observed thatMr Wedgwood had been aware of the allegations since January 2020, and the mattersraised in the conference as forming part of his defence could be put to the complainantsin any event. The Judge did, however, defer the start date of the trial by two days toprovide Ms Aickin with further time to take instructions from Mr Wedgwood.[15] The trial accordingly commenced on 28 September 2022. In light of the healthassessor and communication assistance reports, two communication assistants wereavailable to assist Mr Wedgwood, the lights in the courtroom were lowered to a levelacceptable to him, and the courtroom temperature was adjusted so that it did notexceed 19 degrees Celsius.[16] On the first day of trial, the Judge delivered his opening remarks to the jury,the Crown opened its case and then called its first witness, the complainant CB. Hisevidential video interview was played to the jury and the hearing then concluded forthe day. After the jury had left, counsel advised the Judge that there might be "somemovement in respect of the trial".21[17] The following morning, the Judge was advised that a resolution had beenreached in which Mr Wedgwood would plead guilty to a number of charges and theremainder would be withdraw. In a minute summarising these events,22 the Judge said:21 R v Wedgewood DC Christchurch CRI-2020-009-003365, 7 October 2022 (7 October Minute) at[7].22 R v Wedgewood DC Christchurch CRI-2020-009-003365, 29 September 2022 (Minute 2).Although this minute was labelled "Minute 2" it plainly preceded a further minute issued that dayand addressed at [20] below.[3] The reason that I am told Mr Wedgwood wishes now to change hisplea is that he believes that he is unable to continue with the pressure ofcontinuing a trial which is likely to last up to 10 days but at least six or sevendays because of both his mental and physical health and wellbeing. He is alsoconcerned about his treatment at the prison in terms of the medication that hehas not been given by the prison authorities.[4] In any event he has indicated now that he is going to plead guilty. Hiscounsel just require[s] some time to get the instructions confirmed in writingwith the assistance of the communication assistants who are present in courttoday.[18] The Judge recorded that he had sent the jury away until 11.45 am to enableMs Aickin to take instructions. The Judge also recorded that Mr Wedgwood hadconfirmed that upon the entry of his guilty pleas, he would seek continued namesuppression.23[19] At 11.45 am, Mr Wedgwood entered guilty pleas to those charges set out at [1]above. The remaining charges were withdrawn.[20] In a second minute issued that day, the Judge provided further background toMr Wedgwood's guilty pleas.24 He stated:[1] [Mr Wedgwood] you have now pleaded guilty to eight charges which isa result of your hearing some of the evidence and determining that you did notwish to continue with the trial. You have given reasons about your state andyour condition and also the treatment that you have received in custody. Youhave also said that when the pleas were taken you were technically guilty.Technically guilty is not known to our justice system. It is either guilty or notguilty. I have, therefore, recorded those pleas as guilty on the basis that thatis the words that you used and you are, therefore, convicted.[21] The following day, 30 September 2022, and it seems without the input of hislawyer, Mr Wedgwood filed in this Court a notice of appeal against conviction. It ishelpful to set out key aspects of the notice of appeal:The trial was unfair because of dementia needs were not accommodated andthis meant I am unable to withstand the trial, and was causing suffering anddeterioration, no extension to allow [re-prescription] of anti-dementia23 The Judge granted continued interim name suppression pending determination of Mr Wedgwood'sapplication for leave to appeal to the Supreme Court against this Court's decision declining namesuppression in relation to his 2015 offending. In a decision delivered on 23 October 2023, theSupreme Court dismissed Mr Wedgwood's application for leave to appeal: Wedgwood v R [2023]NZSC 139 [Name suppression final decision]. Mr Wedgwood's name suppression has accordinglylapsed.24 R v Wedgewood DC Christchurch CRI-2020-009-003365, 29 September 2022.medication and unable to withstand stress of 3 week trial with 10 hour days,transportation stress etc.Was not given the time to prepare a fair defence due to special dementia needs.Was not given procedural guarantee to call and prepare witnesses sufficientfor an effective defence. Intellectual slowing meant that I was unable tounderstand matters leading up to trial in a regular amount of time andmissed/ran out of time for appealing pre-trial decisions and this meant the trialdesign was unfair Propensity evidence. I was not able to adequately participate in the hearingand did not understand what grounds I had for a fair trial, for example.[22] Mr Wedgwood's matter was called again in the District Court on 7 October2022, by which time he had applied to set aside his guilty pleas. Ms Aickin appearedand advised that Mr Wedgwood did not intend to pursue that application and that herequested that it be dismissed. The Judge noted that because Mr Wedgwood hadalready filed an appeal against conviction it was unlikely he had jurisdiction todetermine the application in any event, but nevertheless dismissed it. The Judgerecorded Ms Aickin's advice that Mr Wedgwood did not wish to pursue the application"because he says that the application is an ineffective measure of justice to pursue theapplication to set aside the convictions".25[23] On 16 December 2022, the Judge sentenced Mr Wedgwood to one year and11 months' imprisonment.26 In his sentencing notes, the Judge noted thatMr Wedgwood was likely to be released from custody that same day or the followingday, given the time he had spent in custody to that point.27 In relation toMr Wedgwood's guilty pleas, the Judge said:[37] The assertion that you pleaded guilty only because you could not standthe conditions in the Courtroom I treat with some scepticism. I also commentthat the Crown evidence was overwhelming. While the only evidence actuallyheard in the courtroom was the evidential video interview of the victim of theindecent assaults, and he was not required to give oral evidence, the other[evidence that] was available to the Crown which I had considered bothbefore and since the trial, confirms to me that the only verdict that the jurorscould have returned on the basis of the Crown case, was one of guilt.25 7 October Minute, above n 21, at [4].26 Sentencing notes, above n 5, at [41].27 At [47]–[48].[24] Turning to the appeal in this Court, Mr Wedgwood advised the Registry inMarch 2023 that he wished to continue with his conviction appeal. In a minute dated24 May 2023, Katz J directed that a communication assistant be appointed to assistMr Wedgwood at the hearing.28 The Registry also advised Mr Wedgwood that theappeal would likely be held in the week of 31 October 2023. In a subsequent minuteissued on 8 June 2023, Katz J recorded:[3] You have since sent several emails to the Registry. The first concernyou raise is that you do not have a lawyer. You feel that, at present, you donot have the mental capacity to prepare an appeal on your own.Mr Wedgwood, it is your responsibility to follow up with Legal Aid Servicesregarding your request that a legal aid lawyer be appointed to act for you. Iurge you to do this as soon as possible, as more than eight months have nowelapsed since you filed your appeal.[4] In your emails, you request a "scheduling extension" to accommodateyour ongoing cognitive issues and attention impairment. The October hearingdate proposed by the Registry is five months after the date of my minute of24 May 2023 and more than a year after your notice of appeal was filed. Theproposed date should give you ample time to instruct counsel and prepare foryour appeal.[25] As noted earlier, Mr Wedgwood has represented himself on the appeal.Documents filed by Mr Wedgwood at the hearing[26] Mr Wedgwood did not comply with this Court's directions to file writtensubmissions in support of his appeal, despite being granted a number of extensions todo so. Given Mr Wedgwood is self-represented, and that the Crown was content toproceed, we proceeded to hear the substantive appeal. Mr Wedgwood made oralsubmissions, and he also provided us with a number of documents in support of hisappeal, namely:(a) a record of a general practitioner consultation from 31 October 2019;(b) a schedule said to be a list of temperatures in North Canterbury inJanuary 2020;(c) an ACC injury claim form dated 24 January 2020;28 We record that a communication assistant was present at the hearing to assist Mr Wedgwood.(d) an email sent by Mr Wedgwood to James Wilding KC on 20 April 2020outlining Mr Wedgwood's account of what occurred in January 2020;and(e) a letter from Te Aranga Community Health dated 31 March 2023,which summarises Mr Wedgwood's mental and physical health needsin relation to Kāinga Ora housing.[27] While none of the materials, other than the 31 March 2023 Te ArangaCommunity Health letter, are fresh, and the relevance of some of them toMr Wedgwood's appeal is not clear, there was no objection by the Crown to thedocuments being filed and taken into account on the appeal. We accordingly grantleave for the materials to be adduced and address them, where necessary, at therelevant points later in this judgment.Legal principles[28] A first appeal court must allow an appeal against conviction if a miscarriage ofjustice has occurred for any reason.29 A miscarriage of justice occurs if there is anyerror, irregularity, or occurrence in or in relation to or affecting the trial that has createda real risk that the outcome of the trial was affected or has resulted in an unfair trial ora trial that was a nullity.30[29] Where a conviction follows a guilty plea, the approach to an appeal againstconviction has been described as follows:31[16] it is only in exceptional circumstances that an appeal againstconviction will be entertained following entry of a plea of guilty. An appellantmust show that a miscarriage of justice will result if his conviction is notoverturned. Where the appellant fully appreciated the merits of his position,and made an informed decision to plead guilty, the conviction cannot beimpugned.29 Criminal Procedure Act 2011, s 232(2)(c).30 Section 232(4). See also Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[41].31 R v Le Page [2005] 2 NZLR 845 (CA); cited with approval in Richmond v R [2016] NZCA 41 at[16]; Nixon v R [2016] NZCA 589, (2016) 28 CRNZ 698 at [7]; and Gleason-Beard v R [2018]NZCA 349, [2018] 3 NZLR 699, at [22].[30] This Court in R v Le Page discussed three broad categories which may giverise to exceptional circumstances, namely:(a) if the appellant did not appreciate the nature of the charge, or did notintend to admit his or her guilt;32(b) if, on the admitted facts, the appellant could not have been guilty of theoffence charged;33 and(c) if the plea was induced by a ruling which embodied a wrong decisionon a question of law.34[31] The categories of exceptional circumstances are not complete and newcategories will be adopted where necessary.35 For example, in R v Merrilees this Courtidentified a further category of where the plea was entered on the basis of incorrectadvice as to the non-availability of certain defences, or outcomes.36 The authors ofAdams on Criminal Law also suggest the following further categories arising from theauthorities:37(a) the appellant's ability to determine whether or not to plead guilty wasaffected by a permanent impairment or lack of capacity or by ill healthor other circumstances;(b) there was some impropriety in the conduct of the proceedings or of theprosecution, including an abuse of process by the Police or prosecutingauthorities that is sufficiently significant to justify the granting of astay; and32 R v Le Page, above n 31, at [17].33 At [18].34 At [19].35 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104]; and Gleason-Beard v R, above n 28.See also Solicitor-General's Reference (No 1 of 2023) [2023] NZSC 151, where the Courtconfirmed at [44] that the categories are not closed, and at [46] that the categories are "illustrationsof when a miscarriage of justice may have occurred."36 R v Merrilees [2009] NZCA 59 at [34].37 Mathew Downs (ed) Adams on Criminal Law — Criminal Procedure (looseleaf ed, ThomsonReuters) at [CPA232.14].(c) the court failed to provide the defendant with an opportunity to vacatehis or her guilty plea when imposing a sentence different to thatindicated before the plea was entered.[32] Finally, and with some relevance to the present case, as this Court observed inMerrilees:38[35] It is often the case that an offender pleads guilty reluctantly, butnevertheless does so, for various reasons. They may include the securing ofadvantages through withdrawal of other counts in an indictment, discounts onsentencing, or because a defence is seen to be futile. Later regret over theentering 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 fromexperienced counsel, where an offender knows what he or she is doing and ofthe likely consequences, and of the legal significance of the facts alleged bythe Crown, later retraction will only be permitted in very rare circumstances.DiscussionDid a miscarriage of justice arise on the basis that Mr Wedgwood was not able toadequately participate in the pre-trial propensity hearing/ran out of time to appeal thepre-trial decision?[33] As noted, Judge Neave dismissed Mr Wedgwood's application to adjourn thepre-trial hearing. The Judge recorded that there was no suggestion thatMr Wedgwood's counsel was not in a position to proceed or was otherwise prejudiceddue to the adjournment being declined. Nothing has been put before us to suggest thatthere might have been a different outcome on the admissibility ruling hadMr Wedgwood been able to participate in the hearing in some other way, and we notethat from the extract of the Judge's decision set out at [12] above, Mr Wedgwood fullyparticipated in the hearing in any event.[34] In relation to the complaint that he "ran out of time" to appeal the pre-trialruling, Mr Wedgwood does not appeal his conviction on the basis that the admissibilityruling was wrong in substance. We nevertheless observe that there was a strong casefor the admission of the propensity evidence, which had a high degree of probativevalue and thus was likely to be prejudicial to Mr Wedgwood at trial — but not unfairlyso.38 R v Merrilees, above n 36.[35] There is nothing in this aspect of Mr Wedgwood's appeal that impugns hisguilty pleas.Did a miscarriage of justice arise due to Mr Wedgwood's physical and mental healthneeds not being accommodated in the lead-up to and at trial?[36] The next two grounds of appeal, identified at [2(b)] and [2(c)] above, areconveniently addressed together.[37] Turning first to the trial process itself, it is clear that Mr Wedgwood's needswere carefully considered in the District Court and appropriate accommodations weremade. A "ground rules" hearing was held in August 2022 to discuss Mr Wedgwood'sneeds at trial. As noted earlier, two communication assistants were available to assisthim at trial, and lighting and temperature changes were made to the courtroom. TheJudge advised the jury in his opening remarks that more breaks than usual would betaken to accommodate Mr Wedgwood's needs. Further, Mr Wedgwood's guilty pleascame on the second day of the trial, such that he did not sit through a lengthy trialbefore he elected to plead guilty.[38] In his oral submissions, Mr Wedgwood focussed on his time in custody priorto the trial, submitting that the prison authorities had stopped his medication, and thatbeing in prison with his conditions was "torturous". He said he could not withstandany more time in prison or being taken to court,39 and his thermodysregulationadversely impacted his ability to prepare for or attend court.[39] There is nothing before us, however, other than Mr Wedgwood's ownstatements, to support the suggestion that he was not receiving his medication incustody, and that even if that were the case, his mental and/or physical functioningwas compromised to such an extent that a miscarriage of justice would arise if hisguilty pleas were to stand. The record discloses that the Judge was advised at the endof the first day of the trial that there may be some "movement" in respect of the trial.Mr Wedgwood must therefore have had the opportunity to speak with Ms Aickinduring the first day of trial about the prospect of a resolution, which in turn prompted39 Describing "being dragged in chains in a metal box every day for trial".the indication given to the Judge. He also had overnight to consider the positionfurther, and then the following morning Ms Aickin sought and was given further timeto take written instructions from him. There is no record of Ms Aickin raising anyconcerns at that time about Mr Wedgwood's ability to properly consider and enterguilty pleas.[40] Further, while the Judge's second minute of 29 September 2022 (referred to at[20] above) records that at the time of entering his pleas Mr Wedgwood raised matterssuch as his treatment in custody, the fact remains that he entered guilty pleas in thecircumstances just described. The Judge also noted that upon the guilty pleas beingentered, Mr Wedgwood would seek continued name suppression and was prepared toengage in restorative justice. This suggests that these matters had been discussed inadvance with his counsel, and is also consistent with a considered and informeddecision to plead guilty. Mr Wedgwood also benefitted from the pleas, given that fourremaining charges were withdrawn, including a charge of supplying a class Acontrolled drug and an indecent assault charge against a second complainant. He alsoreceived a 10 percent discount for his pleas at sentencing, which the Judge (rightly)described as very generous.40[41] In summary, there is nothing to suggest that Mr Wedgwood would not haveunderstood, appreciated, or intended what he was doing at the time he entered hisguilty pleas. The grounds of appeal set out at [2(b)] and [2(c)] above are accordinglynot made out.Did a miscarriage of justice occur because Mr Wedgwood was not given sufficienttime to prepare a defence?[42] Again, there is no merit in this ground of appeal.[43] The key issue at trial was whether the alleged offending happened at all, thedefence case being that the complainants and other Crown witnesses had motives tolie about Mr Wedgwood's alleged offending; and that it was in fact the complainant,40 Sentencing notes, above n 5, at [39].CB, who sexually assaulted Mr Wedgwood and who was supplying drugs in thehousehold.[44] Mr Wedgwood was first arrested in April 2020 and the trial did not take placeuntil September 2022. He accordingly had more than ample time to prepare a defence.And it is clear that from the time of his arrest, Mr Wedgwood was well aware of hisdefence to the allegations, as reflected in his email to Mr Wilding of 20 April 2020 inwhich he set out a detailed narrative of what he said had occurred. This was alsoconveyed to police when he was interviewed following his arrest.41[45] There is nothing to suggest that Mr Wedgwood did not have the time or theability to convey his account of what happened to his trial counsel. Indeed, Ms Aickinwas plainly aware of Mr Wedgwood's proposed defence, given she referred to it in heropening statement of the issues to the jury. We have summarised aboveMr Wedgwood's application to adjourn the trial and the Judge's reasons for decliningto do so. Mr Wedgwood has not suggested on the appeal any particular witnesses hehad proposed to call but could not do so because the trial proceeded in September2022. Further, those persons referred to in Mr Wedgwood's narrative of events in hisemail to Mr Wilding of 20 April 2020 — on which he placed considerable reliance inhis oral submissions in support of his appeal — were to be called as Crown witnessesat the trial, such that his version of events could be put to them and the jury make anassessment of their credibility and reliability in the ordinary way. Ultimately, whetherMr Wedgwood might have been able to advance a different defence at trial if he hadhad further time to prepare is speculative.[46] Finally, we observe that Mr Wedgwood's suggestion that he was not givensufficient time to prepare his case or to otherwise participate in the trial is a theme ofhis approach to impending court hearings and/or his response to adverse rulings oroutcomes more generally. In this proceeding, for example, he raised similar mattersin seeking to have the propensity hearing adjourned, as well as his September 2022application to adjourn the trial. Mr Wedgwood also sought a "scheduling extension"to this appeal to accommodate his cognitive and attention impairment.42 He took a41 See [4] above.42 See [24] above.similar approach in applying for an adjournment of his appeal against his convictionsfor the 2015 offending.43 When dismissing Mr Wedgwood's application for leave toappeal against this Court's decision declining to grant name suppression, theSupreme Court also recorded that the proposed appeal would have been advanced onthe basis that there was insufficient time and resources for Mr Wedgwood to obtainevidence to support his application for name suppression, and there were insufficientallowances made to accommodate his disabilities such that he could not participateproperly in the Court of Appeal hearing.44Conclusion[47] For the reasons given, none of the matters raised by Mr Wedgwood, eitherindividually or cumulatively, suggest that a miscarriage of justice will result if hisconvictions are not overturned.Result[48] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch for Respondent43 W (CA252/2017) v R [2019] NZCA 367 at [6]–[17].44 Name suppression final decision, above n 23, at [14].