NISBET v R [2019] NZCA 500

NISBET v R [2019] NZCA 500 [16 October 2019]NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO11D OF THE FAMILY COURTS ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA638/2018[2019] NZCA 500BETWEEN CRAIG GRANT SCOTT NISBETApplicantAND THE QUEENRespondentHearing: 9 October 2019Court: Cooper, Lang, Mander JJCounsel: P F Chambers for ApplicantJ A Eng for RespondentJudgment: 16 October 2019 at 2.30 pmJUDGMENT OF THE COURTThe application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] The applicant, Craig Nisbet, seeks to appeal his conviction for perjury afterhaving pleaded guilty to that offence during the course of his trial. His appeal wasfiled approximately one year out of time, and he now applies for an extension of timeto appeal, arguing that he should be permitted to vacate his plea.Background[2] The perjury charge arose out of an affidavit sworn by Mr Nisbet for the purposeof a proceeding before the Family Court in which he falsely denied an allegation thathe had failed to properly secure his infant daughter in her car seat. His evidence at thecriminal trial was that this assertion had been drafted by his Family Court lawyerwithout his knowledge. Mr Nisbet maintained he had instructed his lawyer to admitthis allegation and that the false statement in the affidavit had resulted from thelawyer's failure to execute his instructions. He claimed he had not read the affidavitbefore swearing to its contents.[3] At the completion of the defence case, Judge Adeane ruled that Mr Nisbet hadwaived privilege in respect of communications with his Family Court lawyer andgranted the Crown's application to call her to give rebuttal evidence.1 Mr Nisbet, afterconsulting with his trial counsel, then elected to plead guilty.The appeal[4] In support of his application, Mr Nisbet advanced two grounds. First, it wassubmitted that he could not have been convicted of the charge of perjury.He contended that the evidence disclosed that he had not intended to deceivethe Family Court because he had corrected the content of his affidavit during his oralevidence before that Court.[5] Secondly, it was argued that Mr Nisbet had effectively been forced to pleadguilty. It was claimed on his behalf that during the course of the trial Mr Nisbet hadcome to the conclusion that his conviction was inevitable because of prejudicialstatements made by Judge Adeane. It was argued that Mr Nisbet's concerns at thetime have since been confirmed as a result of information provided to him by histrial counsel suggesting the possibility of prejudicial discussions betweenJudge Adeane and the Judge who presided at the Family Court hearing,Judge Lendrum.1 R v Nisbet [2017] NZDC 17906.[6] Mr Nisbet filed an affidavit. Relevant to the grounds advanced before us andto others listed in his points on appeal are the following passages:(9) ... I am convinced that the judges were out to make an example of mefor their own reasons, because of my protest at the way they weretreating me....(11) I accept that I changed my plea from not guilty to guilty and madecertain concessions in my evidence because (i) the judge allowedthe Crown to call my former lawyer to give evidence, despite protestabout protecting client-lawyer privilege and (ii) refusing to adjourn onthat account.(12) ... The change in my plea was occasioned by my being pragmatic atthe process and wanting to bring the proceedings to an end, andminimise the outcome and any penalty in the belief my primeresponsibility was to protect the interests of my daughter.Decision[7] Mr Nisbet alleged in both his affidavit and in the grounds he filed in supportof his appeal, that Judge Adeane had erred in his ruling regarding the waiver ofprivilege. However, Mr Chambers, who appeared on Mr Nisbet's behalf, expresslydisavowed any reliance on such an argument and did not seek to challenge thecorrectness of that decision. We consider that was a wise concession given the natureand content of Mr Nisbet's evidence at trial. For completeness, we also note that it isuntenable to suggest a refusal to adjourn the trial could have compelled Mr Nisbet tochange his plea. It was Mr Nisbet who introduced the evidence about his Family Courtlawyer's conduct and sought to blame her for the false statement.[8] Mr Nisbet's confidence that his acknowledgment that his affidavit wasincorrect when giving oral evidence before the Family Court proved he lacked anyintention to deceive, and provided him with a complete defence to the perjury charge,is misplaced. A further and integral part of his explanation was his claimed ignoranceof the false particulars in the affidavit, for which he blamed his lawyer. Mr Nisbetpreferred to plead guilty rather than hear the evidence of that witness and have the jurymake an assessment of the truthfulness of his explanation.[9] Mr Nisbet does not contend that he had other than competent and correct legaladvice from his trial counsel before changing his plea. Nor, that he made his decisionto plead guilty other than on an informed basis.2 Even where a defendant may havean arguable defence, leave to vacate a plea will not be granted when that defence isnot pursued after having taken the advice of counsel.3[10] Similarly, Mr Nisbet's claim that he changed his plea as a result of "beingpragmatic" and "wanting to bring the proceedings to an end" will not provide a properbasis to vacate a guilty plea after having made that decision with the benefit ofcounsel's advice. The suggestion of the change of plea being influenced by thelikelihood of a lesser penalty does not advance Mr Nisbet's position.4[11] The allegation that the conduct of the trial Judge pressured Mr Nisbet intochanging his plea or left him with no option but to take that course is unsubstantiatedand without foundation. We repeatedly pressed Mr Chambers to identify where inthe record there was support for such a suggestion. He was unable to cite an example.[12] The allegation of some form of collusion between Judges Lendrum and Adeanerests on two oblique comments that were made by the Family Court Judge on theoccasion of two events marking his retirement. Neither of those statements made anydirect reference to Mr Nisbet. There is simply no nexus between Mr Nisbet's decisionto plead guilty during his trial and any alleged conversation the two Judges may havehad regarding Mr Nisbet's prosecution for perjury. Mr Nisbet was being tried beforea jury. Absent any illegitimate prejudicial comment or action by Judge Adeane indischarging his role as the trial Judge there can be no causal connection. As we havealready observed, there is none.Conclusion[13] Only in exceptional circumstances will an appeal against conviction beentertained after a plea of guilty. An appellant is required to demonstrate that a2 Hussein v R [2011] NZCA 58 at [22].3 R v Stretch [1982] 1 NZLR 225 (CA).4 Merrilees v R [2009] NZCA 59 at [35].miscarriage of justice will result if the conviction is not overturned.5 The groundsraised by Mr Nisbet are unsustainable and, by some considerable margin, insufficientto impugn his guilty plea.Result[14] Mr Nisbet's application for an extension of time to appeal his perjuryconviction is declined.Solicitors:Henley-Smith Law, Auckland for ApplicantCrown Law Office, Wellington for Respondent5 R v Le Page [2005] 2 NZLR 845 (CA) at [16].