HALPIN v R [2018] NZCA 477

HALPIN v R [2018] NZCA 477 [6 November 2018]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA116/2017[2018] NZCA 477BETWEEN CHRISTOPHER ROBERT HALPINAppellantAND THE QUEENRespondentHearing: 8 October 2018Court: Cooper, Venning and Collins JJCounsel: Appellant in personE J Hoskin for RespondentJudgment: 6 November 2018 at 3 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Halpin appeals a decision of Judge Spear delivered in the District Court atHamilton on 20 January 2017, in which the Judge declined Mr Halpin's application tovacate his pleas of guilty to two charges of indecent assault.1 Mr Halpin pleaded guiltyon 21 November 2016 after receiving a sentence indication. He was sentenced byJudge Spear on 20 January 2017 to two years' imprisonment and was releasedimmediately because of the time he had spent in custody on remand.[2] The appeal is against conviction.2 Mr Halpin must therefore demonstrate thata miscarriage of justice has arisen through the decision to decline his application tovacate his guilty pleas.3Background[3] Mr Halpin initially faced trial in relation to one charge of indecency assaultingT and four charges of indecently assaulting C. The trial was scheduled to commenceon 21 November 2016. That morning, Mr Sutcliffe, who was Mr Halpin'strial counsel, sought a sentence indication from Judge Spear. The Judge indicated asentence of two years' imprisonment if Mr Halpin pleaded guilty to the chargeconcerning the offending against T and a representative charge covering the offendingagainst C. Judge Spear appreciated that because Mr Halpin had been remanded incustody for approximately 17 months he was likely to be released immediately if heaccepted the sentence indication.[4] Mr Halpin consulted his lawyer and accepted the sentence indication. He wasconvicted and released on bail until sentencing on 14 December 2016.On 14 December 2016, Mr Halpin's new counsel made an application to vacate theguilty pleas. That application was adjourned to 20 January 2017 and was heard anddetermined immediately prior to Judge Spear sentencing Mr Halpin to twoyears' imprisonment.[5] The summary of facts, which Mr Halpin accepted when he pleaded guilty,alleged that Mr Halpin asked T and her friend to move a pile of rubbish at the rear ofa property where he was staying. This occurred in either in September or October2010 on the street outside an address in Auckland. At the time, T was eight years old1 R v Halpin [2017] NZDC 1000.2 R v Kihi CA395-03, 19 April 2004 at [14].3 Criminal Procedure Act 2011, s 232(2).and her friend was 10 years old. Mr Halpin offered to pay them $5 for their labours.He then took them around the back of the property. While showing the girls where tomove the rubbish, Mr Halpin approached T from behind, grabbed her waist and thenmoved his hands to her breasts. He squeezed her breasts and then felt her bottom withboth hands. She pulled away. As she walked off, Mr Halpin called out that he wouldpay her $5 if she showed him her "tits".[6] The summary of facts in relation to C, who was also eight years old, allegedthat during December 2014 Mr Halpin indecently assaulted her on three occasions atan address in Ngātea in the Thames Valley. On the first occasion, Mr Halpin is said tohave grabbed C's bottom and crotch through her clothing when she was decorating aChristmas tree. On the second occasion, when C was in her brother's bedroom,Mr Halpin is said to have grabbed C by her bottom, pulled her legs apart and thentouched her genitalia through her clothing. He also attempted to remove her shortsand asked: "Do you want to be my girlfriend?" On the third occasion, Mr Halpinsqueezed C's bottom when they were in a garage together at the Ngātea address.He also made a comment to C about her wearing "sexy underwear".The application to vacate the guilty pleas[7] The application by Mr Halpin to vacate his guilty pleas was advanced on twogrounds:(a) that he had a tenable defence, which had not been properly advanced;and(b) that he immediately regretted changing his pleas to guilty as he hadalways maintained his innocence.[8] Mr Halpin supported his application with a detailed affidavit from himself andaffidavits from Ms Walters in relation to the charge that he had indecently assaulted Tand affidavits from Mr Wilson, Ms Wilson and Mr Lundon in relation to the charge hehad indecently assaulted C. The Crown filed an affidavit from Mr Sutcliffe inopposition to the application for leave to vacate the guilty pleas.[9] In his affidavit, Mr Halpin said that he did offer some work to two young girlswhen he was staying at his daughter's address in Auckland, but that he did not toucheither of them in a sexual way or make the comments attributed to him by T.[10] In relation to the offending in Ngātea, Mr Halpin says he can recall visiting thehome where C lived and seeing her decorating a Christmas tree. He says he did nottouch C. Mr Halpin says he revisited C's home a few days later and stayed the night.In his affidavit, Mr Halpin says that the following morning he spoke to C in herbrother's bedroom for about five minutes. He maintains he did not touch her.Mr Halpin says he again visited C's home in the early hours of 25 December 2014.No one was awake. He says he left presents at C's home and continued on his way tothe place where he was living. Mr Halpin says the next contact he had with C and herfamily was in February 2015, when he stayed in a panel van parked at their property.He maintains nothing untoward occurred between himself and C on this occasion.[11] In her affidavit, Ms Walters says she can recall Mr Halpin talking to two girlson the street outside the property where he was staying and that Mr Halpin talked tothem about helping him tidy up his yard. Ms Walters does not, however, make anycomment about seeing the young girls at the back of the property where T says shewas sexually assaulted by Mr Halpin. Ms Walters was not in any position to commenton the events that formed the first charge against Mr Halpin.[12] The affidavits from Mr Wilson, Ms Wilson and Mr Lundon deal with theirinteractions with Mr Halpin from early December 2014 through to February 2016.None were present, however, at the address in Ngātea where C says Mr Halpinoffended against her.[13] In his affidavit, Mr Sutcliffe explained that Mr Halpin's guilty pleas wereentered following extensive discussions between himself and Mr Halpin. Mr Halpinthen provided the following signed written instructions:I Christopher Halpin DOB 15/7/64, have had discussions with my counsel,Mr Sutcliffe, following Judge Spear's indication, that he would sentence meon the basis, of time served, and I would be bailed pending sentence.Considering all factors, I have decided, that I will plead guilty to two (2)charges, as proposed by the Crown. I am not happy with this but havingweighed up the risks and the benefits, I have agreed to do this.[14] In his affidavit, Mr Sutcliffe says that:Mr Halpin had indicated that notwithstanding his innocence he accepted anyjury was likely to accept the word of the complainant and witnesses over his.But he was always adamant that despite that view he was innocent and that iswhy he could not bring himself to plead guilty.[15] Mr Sutcliffe also explained that Mr Halpin asked whether, if he did pleadguilty, he could then find witnesses and then have a trial. Mr Sutcliffe explained toMr Halpin that whilst that course of action was technically possible, the chance of anapplication to vacate his guilty pleas being granted was remote. Thereafter, Mr Halpindecided to plead guilty.Judge Spear's decision[16] Judge Spear examined the affidavit evidence relied upon in support ofthe application and concluded that none of the matters contained in the affidavitsprovided a defence to the charges.4[17] Judge Spear therefore reasoned that Mr Halpin had not demonstrated that hehad a tenable defence. The Judge also commented that the fact that Mr Halpin almostimmediately regretted changing his pleas to guilty was not a persuasive factor.5Governing principles[18] This Court has previously explained that a defendant who wishes to challengea conviction entered after a guilty plea must demonstrate that a miscarriage of justicewill occur if the conviction is not overturned. Examples of circumstances giving riseto a miscarriage of justice following a guilty plea were considered in Richmond v R,and include cases where:64 R v Halpin, above n 1, at [32].5 At [37].6 Richmond v R [2016] NZCA 41 at [17]–[18], citing R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19]; and R v Merrilees [2009] NZCA 59 at [34].(a) an appellant did not intend to plead guilty to a particular charge, or didnot appreciate the nature of the charge;(b) the appellant could not, as a matter of law, have committed the offence;(c) where the plea was induced by an incorrect ruling on a question of law;and(d) the guilty plea was entered because of trial counsel error.[19] In R v Merrilees, this Court said:7[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.[20] A common thread in all cases in which guilty pleas have been allowed to bevacated has been the ability of the appellant to demonstrate a tenable defence. It is notsufficient for an appellant to simply assert his or her innocence. Credible evidencemust be presented to justify a court taking the rare step of vacating a guilty plea.Analysis[21] We have carefully examined the affidavit evidence filed in support ofMr Halpin's application and agree with Judge Spear that it falls short of demonstratingthat a tenable defence was available to Mr Halpin. We summarise our reasons for thisconclusion as follows:(a) Ms Walters saw Mr Halpin speaking to T and her friend at the front ofthe property where Mr Halpin was staying. The first charge allegedMr Halpin indecently assaulted T at the rear of the property.7 R v Merrilees, above n 6.Ms Walters did not see T and her friend where T says the offending tookplace. Ms Walters' evidence is therefore not directly relevant to the firstcharge.(b) Similarly, the evidence from Mr Wilson, Ms Wilson and Mr Lundon isnot directly relevant to C's allegations that Mr Halpin hadindecently assaulted in her home at Ngātea on various occasions in late2014–2015. None of them were present when C says the offendingoccurred.[22] While we accept Mr Halpin regretted changing his pleas soon after he did so,that is not the test.[23] Mr Halpin accepted the sentence indication after discussing his options withMr Sutcliffe and knowing that it was highly unlikely he would be able to subsequentlyvacate his guilty pleas. Mr Halpin's decision to plead guilty was a reasoned andinformed decision that was not made in error.[24] In these circumstances, Mr Halpin has failed to demonstrate a miscarriage ofjustice occurred when Judge Spear declined his application to vacate his guilty pleas.Result[25] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent