HARDING v R [2019] NZCA 259

HARDING v R [2019] NZCA 259 [26 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA241/2017[2019] NZCA 259BETWEEN BROWNIE JOSEPH HARDINGAppellantAND THE QUEENRespondentHearing: 6 May 2019Court: Courtney, Venning and Lang JJCounsel: P T Eastwood for AppellantK S Grau for RespondentJudgment: 26 June 2019 at 3 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] Brownie Harding pleaded guilty to 11 charges relating to the manufacture anddistribution of methamphetamine in Northland. He applied unsuccessfully to vacatehis guilty pleas to four of those charges.1 After a disputed facts hearing, Moore J1 Harding v Police [2017] NZHC 1188 at [92] (Decision declining application to vacate pleas ofguilty).imposed a sentence of 28 and a half years' imprisonment with a 10 year minimumperiod of imprisonment.2[2] Mr Harding appeals his conviction on the ground that leave should have beengranted to vacate his guilty pleas and that a miscarriage of justice will occur if he isheld to them.3 The specific grounds of appeal overlap somewhat and are bestsummarised as follows (which is not in the order counsel argued them):(a) There was pressure from the Judge to plead.(b) There was pressure to plead from counsel, who was in a position ofconflict because she was also acting for members of Mr Harding'sfamily.(c) Counsel gave misleading advice about the evidence required to provethe charges of manufacturing methamphetamine.(d) The evidence that methamphetamine (as opposed to ephedrine) wasbeing manufactured was weak.4(e) Mr Harding did not receive the audio transcript books before enteringthe guilty pleas.[3] In addition, Mr Eastwood, for Mr Harding, suggested that a breach of s 25(b)and (f) of the New Zealand Bill of Rights Act 1990 (BORA) occurred as a result ofMr Harding not having the charges determined at trial. However, this ground addsnothing. If there are circumstances that justify quashing Mr Harding's conviction,then he will be able to exercise his BORA right; if not, there will not have been anybreach of a BORA right. We therefore do not deal with this ground further.2 R v Harding [2017] NZHC 675 at [97] and [102] (Sentencing Notes).3 Mr Harding also appeals his sentence, but the sentence appeal has been severed and will be heardat a later date. Harding v R CA241/2017, 15 April 2019 at [3].4 The terms pseudoephedrine and ephedrine were both used in evidence. Pseudoephedrine is asubset of ephedrine. For consistency, we refer only to ephedrine in this judgment.Background[4] Mr Harding was arrested in December 2014 along with several others.These included his partner, Casey Rewha, his sons, Evanda Harding and TysonHarding, and his father, Joseph Harding. The arrests were the culmination of aninvestigation by the Organised and Financial Crime Agency of New Zealand(OFCANZ) into the manufacture of distribution of methamphetamine in Northland,which focused on members and associates of the Headhunters motorcycle gang.[5] The Crown alleged that methamphetamine manufacturing had occurred in sixseparate phases between September and November 2014 in a house at a rural propertysouthwest of Whangarei. The property was owned by Mr Harding's sister andbrother-in-law. The Crown case rested mainly on photographic surveillance evidenceobtained between July and October 2014 and intercepted communications obtainedafter 17 October 2014 from an audio listening device installed in the kitchen area ofthe house. The Crown alleged that it was Mr Harding who "spear-headed"the operation.[6] At the relevant times Mr Harding, Ms Rewha, Evanda Harding and Mr Hardingsenior were all represented by Ms Pecotic. From an early stage there were discussionsbetween Ms Pecotic and Crown counsel regarding the possible resolution ofthe charges brought against these four defendants. At that stage it appeared to her thatthere was no conflict between them, but it was a matter which she and the Court wereclearly alive to.5[7] Mr Harding initially faced 35 charges. Ultimately however, he pleaded guiltyto 11 and the Crown withdrew the remainder. The charges to which he pleaded guiltywere:(a) manufacturing methamphetamine between 23 and 26 September 2014(transaction 1);5 See for example R v Harding HC Whangarei CRI-2014-088-003309, 23 March 2016 (Minute No 2of Moore J) at [33]–[37]; and R v Harding HC Whangarei CRI-2014-088-003309, 22 April 2016(Minute No 3 of Moore J) at [28]–[29].(b) manufacturing methamphetamine between 30 September and1 October 2014 (transaction 2);(c) manufacturing methamphetamine between 8 and 9 October 2014(transaction 3);(d) manufacturing methamphetamine between 20 and 23 October 2014(transaction 4);(e) manufacturing methamphetamine between 28 and 31 October 2014(transaction 5);(f) supplying Evanda Harding with pseudoephedrine on 30 October 2014(transaction 16);(g) conspiring to supply the class A controlled drug methamphetamine on5 November 2014 (transaction 25);(h) manufacturing methamphetamine between 6 and 14 November 2014(transaction 27);(i) possessing the class A controlled drug methamphetamine for supply on14 November 2014 (transaction 31);(j) conspiring to supply methamphetamine on 15 November 2014(transaction 36); and(k) participating in an organised criminal group between 23 September and16 December 2014 (transaction 49).[8] Mr Harding entered his guilty pleas on 2 June 2016.6 Sentencing wasadjourned to allow the trial of Mr Harding's co-defendants, which started on27 June 2016, to be completed.7 The trial saw one defendant discharged at the end of6 R v Harding HC Whangarei CRI-2014-088-003309, 2 June 2016 (Minute of Moore J) at [1].7 R v Harding [2017] NZHC 1181 (Reasons on disputed facts) at [19]–[20].the Crown case and the remaining three convicted on a variety of charges includingbeing party to the manufacture of methamphetamine and participating in an organisedcriminal group.8 Mr Harding's sentencing was eventually set down for1 September 2016. However, agreement could not be reached on the summary offacts, particularly as regards the amount of methamphetamine manufactured andMr Harding's role in the overall operation.[9] On the morning of 1 September 2016 Ms Pecotic appeared for Mr Harding andsought further time to take instructions on the summary of facts, which had still notbeen agreed. Ms Pecotic spent the rest of that day and the following day withMr Harding working through the summary of facts and obtaining instructions.On the afternoon of 2 September 2016 she produced a handwritten statement signedby Mr Harding and an annotated summary of facts signed by Mr Harding (erroneouslydated 2 August 2016). Although Mr Harding accepted that methamphetamine hadbeen manufactured, including on the six occasions relating to the charges to which hehad pleaded guilty, he disputed his role in those manufactures and the amount ofmethamphetamine produced. The sentencing was accordingly adjourned to allow fora disputed facts hearing.[10] The disputed facts hearing was set down for 23 November 2016.On 1 November 2016 Ms Pecotic applied unsuccessfully to adjourn the disputed factshearing because of other commitments.9 Mr Niven accepted instructions to appear forMr Harding. During the course of the disputed facts hearing Mr Harding indicatedthat, notwithstanding the previously agreed summary of facts, he did not accept thatany methamphetamine had been manufactured during the first two phases (charges 1and 2). Shortly afterwards, he also denied that any manufacturing occurred duringthe fifth phase (charge 5).[11] After discussion with the Judge, Mr Harding confirmed that he wanted to applyto vacate his guilty pleas in respect of those charges. Moore J required a formalapplication. Mr Harding duly filed a handwritten application and affidavit.The affidavit included a waiver of legal professional privilege. Mr Harding claimed8 At [18].9 At [25].that he had not understood the legal elements of the manufacturing charges and that,based on his instructions to Ms Pecotic, he could not have been guilty of those charges.Specifically, he maintained that he had told Ms Pecotic that he had only extractedpseudoephedrine in the first two manufactures and that on the fifth occasion there hadbeen a problem with the process and no methamphetamine had been produced. Hesaid that he had pleaded guilty only because he believed, on the basis of counsel'sadvice, that these facts would have been sufficient to prove the charges ofmanufacturing methamphetamine. In the circumstances Ms Pecotic was granted leaveto withdraw.10 Mr Edgar assumed conduct of the matter. Mr Harding subsequentlyextended his application to vacate his guilty pleas to include charge 3, which was alsoa charge of manufacturing methamphetamine.[12] Moore J heard the application to vacate the guilty pleas on 4 April 2017.Mr Harding gave evidence. Ms Pecotic provided an affidavit and also gave evidence.She said that there had been lengthy discussions between her and Mr Harding over theeach of the charges. These covered the evidence, the law and what the proposalMr Harding might make to the Crown to resolve matters. She also said thatMr Harding's instructions were not consistent: the instructions he gave her beforepleading guilty were "completely different" to his instructions after the guilty pleaswere entered.11 Further, Ms Pecotic considered that it was evident from admissionsthat Mr Harding made to her (including providing her with a recipe) that he knew howto manufacture methamphetamine and that he understood the distinction betweenextracting pseudoephedrine and manufacturing methamphetamine.[13] Moore J accepted Ms Pecotic's evidence. He dismissed the application, withreasons to be given later.12 The disputed facts hearing then proceeded on 5 and6 April 2017. In a results only decision delivered at the end of that hearing the Judgedetermined that at least 6.5 kilograms of methamphetamine had been manufacturedover the course of the operation and that Mr Harding had spearheadedthe manufacturing and distribution operation.1310 Decision declining application to vacate pleas of guilty, above n 1, at [31].11 At [73].12 The reasons were delivered on 1 June 2017: Decision declining application to vacate pleas ofguilty, above n 1.13 R v Harding HC Whangarei CRI-2014-088-003309, 6 April 2017 (Minute of Moore J – DisputedRelevant principles[14] An appellant seeking to quash a conviction entered as a result of a guilty pleamust show that a miscarriage of justice will occur if the conviction is not quashed.The general principle is that stated in R v Le Page:14it is only in exceptional circumstances that onappeal against conviction willbe entertained following entry of a plea of guilty. An appellant must show thata miscarriage of justice will result if his conviction is not overturned. Wherethe appellant fully appreciated the merits of his position, and madean informed decision to plead guilty, the conviction cannot be impugned.These principles find expression in numerous decisions of this Court, of whichR v Stretch[15] and R v Ripia[16] are examples.[15] Four broad categories are recognised as producing circumstances where theremay be a miscarriage of justice as a result of a guilty plea:17(a) Where the defendant did not appreciate the nature of or did not intendto plead guilty to a particular charge.(b) Where, on the admitted facts, the defendant could not in law have beenconvicted of the offence charged.(c) Where the plea was induced by a ruling based on a wrong legalauthority.(d) Where trial counsel errs in his or her advice as to the non-availabilityof certain defences or outcomes.[16] It is well recognised that an offender may plead guilty for a variety of reasons,including advantages to be obtained through a guilty plea such as the withdrawal ofother counts or discounts on sentencing. In R v Merrilees this Court observed that:18facts hearing results) at [3]–[5]. The Judge delivered reasons later on 1 June 2017: Reasons ondisputed facts, above n 7.14 R v Le Page [2005] 2 NZLR 845 (CA) at [16].15 R v Stretch [1982] 1 NZLR 225 (CA).16 R v Ripia [1985] 1 NZLR 122 (CA).17 R v Le Page, above n 14, at [17]–[19]. The last category was recognised in R v Merrilees [2009]NZCA 59 at [34].18 At [35].Later regret over the entering of a guilty plea is not the test as to whether thatplea can be impugned. If a plea of guilty is made freely, after careful andproper advice from experienced counsel, where an offender knows what he orshe is doing and of the likely consequences, and of the legal significance ofthe facts alleged by the Crown, later retraction will only be permitted in veryrare circumstances.AppealPressure from the Judge[17] Mr Eastwood argued that Mr Harding came under pressure from the Judge toplead guilty. During the course of argument, however, he accepted that there was nofactual basis on which to assert that the Judge had done or said anything that couldreasonably be perceived as pressure on Mr Harding to plead. The submission reliedon Moore J's 23 March 2016 minute, in which the Judge noted Ms Pecotic'sundertaking to advise the parties should a conflict arise but accepted that the potentialfor conflict was less acute in the context of resolution discussions.19 It is evident,however, that the Judge was simply concerned that if such discussions did concludematters counsel's position should be confirmed well before trial. He commented:[36] For that reason it is of particular importance that Ms Pecotic makescontact with the Crown and actively engages in discussions designed toexplore and advance the possibility of resolution.[37] When this matter is next called I expect Ms Pecotic and the Crown toreport on the fact that active discussions have taken place. I would also expectMs Pecotic to be in a position to advise what her intentions are in the eventthat resolution discussions fail.[18] We are satisfied that the Judge's only concern was to ensure that Ms Pecotic'sposition did not cause difficulties if the matter ran to trial. It cannot reasonably beconcluded that the Judge's comments gave an indication either way as to whatMr Harding ought to do.Pressure from counsel and counsel's conflict of interest[19] Mr Harding claimed that Ms Pecotic conveyed to him that he ought to pleadguilty for the sake of his family. This allegation is interwoven with the assertion that19 Minute No 2 of Moore J, above n 5.Ms Pecotic acted in a position of conflict because she represented three members ofMr Harding's family and we therefore deal with these grounds together.[20] In the affidavit sworn to support the application to vacate the guilty pleas heMr Harding said that he pleaded guilty because he believed (wrongly) thatthe extraction of pseudoephedrine would, alone, be sufficient to prove a charge ofmanufacturing methamphetamine. He made no mention of any other ground. In hisoral evidence before Moore J, however, Mr Harding added that he had been influencedto plead to the charges by Ms Rewha and Ms Pecotic because they had said thatthe Crown would treat his other family members more leniently if he did so.20This assertion was not put to Ms Pecotic in cross-examination.[21] The Judge did not accept Mr Harding's claim:[83] I also regard it as significant that Mr Harding's most recent explanation,and the basis on which he now seeks to vacate his pleas, is inconsistent withhis statement of 2 September 2016 and the summary of facts he amended andadopted on the same date. One of the explanations he proffered in evidencewas that although he wanted to go to trial he was told that if he pleaded guiltythe Crown would be lenient towards his family. However, both statements of2 September 2016 were made after the trial involving his former partner andsons had finished. Thus the position of his family had been settled well beforehe made the statements on 2 September 2016 which he now contradicts.[22] In an affidavit sworn for the purposes of the appeal Mr Harding deposed that:On many occasions my former partner Casey Rewha pleaded with me to pleadguilty, to save our family. As Maria Pecotic told her Brownie has to pleadguilty or the crown were going to punish your family.Around April 2016 I asked Casey Rewha to email Maria Pecotic as part of myinstructions, that I wanted to take all charges to trial.I received a hand delivered letter dated 2nd May 2016 from Maria Pecotic.In this letter it stated: At a special callover and through my discussions withthe crown, the resolution of your case also has an effect on how the crownwould treat your family Evanda, Tyson, Casey and your father.[23] Mr Harding said that he took that as a threat by the Crown against his familyand, although he did not want to plead guilty, he felt that he had no choice in light ofthis threat. Mr Eastwood described the letter of 2 May 2016 as the catalyst for20 Decision declining application to vacate pleas of guilty, above n 1, at [83].Mr Harding pleading guilty. This assertion has to be viewed against the fact thatMr Harding emailed the letter back to Ms Pecotic on 5 May 2016 with detailedhandwritten notes on it about the Crown's proposal for resolution and a few notesabout the defence response. There was, however, not a single comment aboutthe sentence that Mr Harding now says he viewed as a threat to punish his family.[24] It is clear that there were discussions between Ms Pecotic and Mr Hardingabout the effect his position could have on his family members. Ms Pecotic gaveevidence that, initially, the Crown was not willing to enter into discussions regardingMr Harding's family members until Mr Harding resolved the charges against his part.On her insistence that this was unfair, it changed its position and considered an offerof resolution from Mr Harding's partner and sons. Ultimately, that proposal wasrejected, and they proceeded to trial.[25] In her 23 May 2016 file note Ms Pecotic recorded that:- [Mr Harding] is aware that at the moment – his resolving the case impactson his family – so would really like him to make up his mind sooner ratherthan later. I have already organised to get other lawyers involved inthe case to assist as he knows.At the end of the day it is his decision what he wants to do – if he takes the caseto trial we talk about the risks – in all likelihood his entire family excludinghis dad will be in the dock with him.We have a lot of discussion over what would happen at trial and how a trialwould run – and how he could handle giving evidence about all of this – talkabout it being a Whangarei jury and how I am not sure what they are like –but juries do not like methamphetamine – you have to have a cast iron defence.Based on what he has told me – I do not like his chances. He says he wantsto give evidence for his dad – I say that can happen if that situation arises. Butit would not be a good idea to give evidence at his own trial thinking he canget everyone off – he could do a really bad job and make it 10 times worse foreveryone else. At the moment the others could blame him – it is a little hardfor them to do that with him sitting right there – saying he didn't do anythingand is not involved.[26] In our view, Ms Pecotic's file note can be accepted as an accurate record ofthe discussions that she had with Mr Harding about the effect of his position on hisfamily members. But the discussions record no more than the obvious issues thatneeded to be considered, given Mr Harding's position. It is very likely thatMr Harding was influenced by family considerations in making the decision to plead.But we do not accept that there was any improper influence by Ms Pecotic. Nor dowe consider that, at the pre-trial stage, there was any conflict between Mr Harding andthe other members of his family for whom Ms Pecotic was acting. This ground ofappeal fails.Misleading advice from counsel[27] Mr Harding claimed that he had entered his guilty pleas undermisapprehensions as to (1) the essential elements of the offences to which he waspleading and (2) the extent to which he could challenge the essential elements ofthe offence at the disputed facts hearing.[28] The first of these related to Mr Harding's claim that, in relation to charges 1and 2, he had told Ms Pecotic that no methamphetamine had been manufactured butthat only ephedrine had been extracted. In relation to count 5 he says that he told herthat because of a technical production problem no methamphetamine manufacturinghad taken place. He claimed that Ms Pecotic had led him to believe that extractingephedrine was sufficient to prove a charge of manufacturing methamphetamine andaccordingly pleaded on the basis that he thought there was no defence to charges 1 and2. He said that he only became aware that extracting ephedrine was insufficient toprove a charge of manufacturing methamphetamine when he was told this byMs Rewha, after he had pleaded guilty.[29] These assertions were central to the application to vacate the guilty pleas.But the Judge did not accept them. Ms Pecotic gave evidence of the steps she took toensure that Mr Harding fully understood the elements of the offence of manufacturingmethamphetamine. She provided him with a copy of R v Fatu,21 and an extract fromAdams on Criminal Law. She told him that manufacture was only complete oncemethamphetamine had actually been made and that if only ephedrine was extractedthat was a different offence. She explained that he did not need to have been presenton every occasion. This advice was imparted over the course of several months and,21 R v Fatu [2006] 2 NZLR 72 (CA).during Ms Pecotic's visits to Mr Harding, she discussed the evidence with him andthe likely effect of it. Ms Pecotic's file note of 23 May 2016 is consistent with herevidence, including, for example, the record that "I ask him if he can deny that nomanufacturing at all occurred between the time periods 23 September 2014 tothe period when intercepts were installed. He says no he cant say that".[30] By Ms Pecotic's account, Mr Harding accepted that manufacturing occurredon the occasions alleged. He did not deny that it was methamphetamine that had beenmanufactured. He did not say that only ephedrine had been extracted. In writteninstructions dated 31 May 2016 Mr Harding confirmed his intention to plead guilty,including to charges 1, 2, 3, 4 and 5 and assertions as to how much methamphetaminehe accepted had been manufactured on each occasion.[31] Moore J explicitly accepted Ms Pecotic's account and rejected Mr Harding'saccount.22 Specifically, he accepted Ms Pecotic's evidence that she had repeatedlyexplained the legal elements of manufacturing methamphetamine, a claim that wassupported by her contemporaneous notes.23 There is no basis on which to concludethat Moore J's assessment of Mr Harding's claim was wrong.[32] Mr Harding's alternative claim is that he pleaded guilty underthe misapprehension that he could dispute both his role in the manufacturing processand that it was actually ephedrine that was being produced rather thanmethamphetamine. Thus, he was unaware of the true consequences of pleading guilty.This position is not tenable. Ms Pecotic's evidence was that after the guilty pleas wereentered Mr Harding began emailing her with information that he had not previouslydisclosed and which contradicted his earlier instructions to her. It was not until17 July 2016, more than a month after Mr Harding had entered his guilty pleas, thatshe was first told that Mr Harding claimed that at least some of the manufacturingphases involved the extraction of ephedrine only. She visited him on 26 August 2016and spent some three hours discussing these issues. She asked him whether he wantedto vacate his pleas and he said he did not and that he simply wanted to challengethe amount of methamphetamine it is alleged was manufactured.22 Decision declining application to vacate pleas of guilty, above n 1, at [77].23 At [78].[33] Moore J found, rightly in our view, that Mr Harding fully understood the natureof the charges that he was pleading to and did so with the benefit of comprehensiveadvice as to the consequences.24 His assertion that he believed that charges could beundermined at a disputes hearing is contrary to that finding and to Ms Pecotic'sevidence about the events that followed that pleas. This ground of appeal fails.Strength of the evidence[34] Mr Eastwood submitted that there was, in fact, doubt over whether the Crowncould prove that it was methamphetamine that was being manufactured rather thanephedrine being extracted. This submission rested solely on an extract fromthe cross-examination of Sergeant Dunhill, who gave evidence at the disputed factshearing regarding the probable amount of methamphetamine produced. In relation totransaction 4, it was put to him that that it was possible that on 20 October there wasabout two ounces of methamphetamine that had been manufactured and he said thathe doubted that. In explanation, he saidA. Because you're picking out one or two isolated reference to numbers. I'vegone through quite an extensive analysis as to how I've arrived at myfigures and a lot of that has not been referenced by yourself here.A. Certainly the figures you've put to me could relate to methamphetamine.There's nothing in there that tells me it's definitely methamphetamine fora start, then you have to take into account is this simply one step inthe process of a continuing process –..Q. So we may not be even talking about meth at all. We may —.Q. — be talking about ephedrine extraction?A. That's a possibility, yes.24 At [78].[35] Mr Eastwood argued that if an expert witness could have doubt over whetherephedrine or methamphetamine was being produced then so could a jury. We do notaccept that this one isolated extract from the cross-examination could fairly beregarded as indicative of the strength of the Crown case. We need go no further thanMoore J's observation that:[84] It also cannot be overlooked that the evidence against Mr Harding wasextremely strong. In my view, on the basis of the transcripts alone, convictionon each of the manufacturing charges was all but inevitable. This is not a caseinvolving a possible defence of which Mr Harding was not aware.[36] This ground of appeal fails.The audio transcript booklet[37] Mr Eastwood submitted that Mr Harding received the audio transcript bookletsafter he had entered his pleas and was therefore deprived of the opportunity to considerthat evidence before making the decision to plead guilty. Ms Pecotic rejected thisassertion. She said that she provided Mr Harding with full copies of the disclosure,including the printed transcripts. She also prepared a summary of the interceptedcommunications and discussed that with him.[38] Mr Harding did not actually mention this aspect in his affidavit as a matter ofconcern to him. Nor did Mr Eastwood identify anything specific in the transcripts thatwould have affected the decision to plead guilty. In these circumstances this groundof appeal also fails.Result[39] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent