BARAKAT v R [2020] NZCA 440

BARAKAT v R [2020] NZCA 440 [21 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA266/2019[2020] NZCA 440BETWEEN FIONA FAYE BARAKATAppellantAND THE QUEENRespondentHearing: 27 August 2020Court: Gilbert, Thomas and Dunningham JJCounsel: R E Webby for Appellant J E Mildenhall for RespondentJudgment: 21 September 2020 at 9.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] On 18 October 2018, Ms Barakat pleaded guilty to five charges: offering to supply methamphetamine, 1 possession of methamphetamine for the purposes of1 Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a).supply,2 possession of methamphetamine utensils,3 possession of cocaine,4 and possession of LSD.5 This followed a sentence indication given the previous day. 6[2] At sentencing on 19 December 2018, Ms Barakat applied to vacate her guilty pleas to all charges except possession of utensils and sentencing did not proceed. Following a hearing in the District Court at Tauranga, Judge Macdonald was not satisfied that it was in the interests of justice to grant Ms Barakat leave to vacate her guilty pleas. The application was accordingly declined. 7 Ms Barakat now appeals that decision. The appeal is against conviction.8Background[3] On 14 November 2017, police executed a search warrant at an address in Tauranga where Ms Barakat was living. Ms Barakat was asleep at the time and her room was searched. Police located four glass pipes used for smoking methamphetamine, a quantity of methamphetamine and a small electronic safe containing $7,600 in cash, six LSD tablets, 0.12 grams of cocaine and Ms Barakat's passport. Ms Barakat admitted to one of the pipes and the safe being hers but denied any knowledge of the drugs.[4] Text messages offering to supply methamphetamine were subsequently discovered to have been sent from Ms Barakat's cell phone number.[5] Ms Barakat was charged with offering to supply methamphetamine (a representative charge covering the period 1 to 14 November 2017), possession of methamphetamine for the purposes of supply, possession of methamphetamine2 Sections 6(1)(f) and 6(2)(a).3 Sections 13(1)(a) and 13(3).4 Sections 7(1)(a) and 7(2)(a).5 Sections 7(1)(a) and 7(2)(a).6 The sentence indication set a starting point of four years imprisonment, uplifted by six months for offending while on home detention for drug supplying offences. A 10 per cent deduction was made for guilty pleas, leaving a sentence of four years' imprisonment. Depending upon further information provided at sentencing, and the pre-sentence report, Judge Cameron indicated further discounts would likely be available for personal circumstances, including attendance at a drug treatment programme.7 R v Barakat [2019] NZDC 8688.8 R v Kihi CA395-03, 19 April 2004 at [14]. Ms Barakat must therefore demonstrate that a miscarriage of justice has arisen through the decision to decline her application to vacate the guilty pleas: Criminal Procedure Act 2011, s 232(2), (4) and (5).utensils, possession of cocaine and possession of LSD. By 16 January 2018, Ms Barakat had entered not guilty pleas to all charges and elected trial by jury.[6] On 4 July 2018, former counsel was given leave to withdraw and two new counsel were assigned to Ms Barakat. The charges were given a reserve jury trial fixture for the weeks of 15 and 22 October 2018.[7] Between 25 July and 4 October 2018, either one or both trial counsel conducted five client meetings with Ms Barakat and had telephone contact with her on approximately 20 occasions.9 By 4 October, Ms Barakat had still not confirmed whether her instructions were to defend the charges at trial or to seek a resolution.[8] On 16 October 2018, the parties were notified that the trial would be brought on the next day. The same day counsel obtained instructions from Ms Barakat to seek a sentence indication, which was given the following day. Ms Barakat entered guilty pleas to all charges on 18 October 2018.The appeal[9] Ms Barakat appeals the decision declining her application to vacate her guilty pleas on the following grounds:(a) the Judge failed to give adequate weight to Ms Barakat's vulnerability and personal characteristics;(b) the Judge did not give enough weight to the availability of an effective defence to all the charges;(c) the Judge erred in relying upon the document contained in Exhibit D given Ms Barakat denied its contents;(d) the Judge identified the legal advice that was given on the prospect of home detention but the advice could only have been given to entice or9 A support person attended the meetings from 4 October 2018 onwards.induce Ms Barakat to plead guilty because home detention was never a possibility;(e) the Judge failed properly to consider that the trial preparation had been inadequate, meaning when the reserve trial date became a firm fixture, Ms Barakat had no option other than to engage in a "plea bargain" or sentence indication; and(f) the Judge overlooked the fact that evidential flaws in the Crown case had never been raised with Ms Barakat. Instead, Ms Barakat was simply given advice that the Crown case was "overwhelming".[10] Ms Mildenhall, for the Crown, submits the Judge had the benefit of seeing and hearing Ms Barakat, her support person, and both trial counsel. He was best placed to determine that Ms Barakat properly understood the nature and effect of the charges and that she made a free and informed decision to accept the sentence indication. The Judge was therefore correct to find there were no exceptional circumstances arising to justify vacating the guilty pleas and there was no risk of a miscarriage of justice.The District Court decision[11] The Judge found that: 10(a) Trial counsel made appropriate allowances for Ms Barakat's communication and comprehension difficulties. She was accompanied by a support person at all important meetings. Her signed written instructions spoke for themselves.(b) Ms Barakat's claim that someone else had created her "personal statement" (Exhibit D) was "quite implausible". 1110 R v Barakat, above n 7, at [36]–[48].11 At [38].(c) Trial counsel could point to reasonably comprehensive file notes to support their position, whereas Ms Barakat's memory of the meetings, by her own admission, was "pretty poor". 12(d) The delay of two months between Ms Barakat pleading guilty in October 2018 and then seeking to dismiss trial counsel and applying to vacate her guilty pleas undermined Ms Barakat's position. If her legal representation had been as bad as claimed by Ms Barakat and her support person, 13 the Judge would have expected trial counsel's services to have been terminated much earlier (as had happened with previous counsel). She did not complain about trial counsel or mention being pressured to plead guilty when speaking to the pre-sentence report writer.(e) If Ms Barakat was being bullied or pressured by trial counsel, he would have expected her support person, who presented as "a very forthright person", to have said something at the time.14(f) Ms Barakat made two decisions — to seek a sentence indication and then to accept it and plead guilty. While there was pressure on MsBarakat when she agreed to seek a sentence indication, this was due to the fact that her trial was brought on at short notice. The real pressure however came from her own inability to make any decisions about whether she wanted to defend the charges or attempt to seek a resolution.(g) If her pleas were vacated, the primary defence to the charges would be that the drugs belonged to Ms Barakat's former partner. That defence would not necessarily succeed given what was found in Ms Barakat's bedroom and on her cell phone. She knew that defence was available from the outset, yet she repeatedly rejected the option of raising it.12 At [39].13 A friend of Ms Barakat who was involved in meetings with lawyers.14 R v Barakat, above n 7, at [42].She made an informed and conscious decision not to run this defence at trial.(h) Putting the Crown to proof was unlikely to result in an acquittal, given the nature of the evidence.[12] The Judge was satisfied that Ms Barakat had made an informed decision to seek a sentence indication and she had sufficient time to consider the result. Her informed decisions were supported by signed written instructions to plead guilty.15[13] Ms Barakat did not say she pleaded guilty because she had been told that home detention was the likely sentence; she had been told it was unlikely and that the most likely outcome was always imprisonment.16[14] The Judge concluded by saying he was satisfied that Ms Barakat's complaints about defective or unprofessional legal advice and inadequate trial preparation could not be sustained. He rejected her assertion that she was pressured or bullied into seeking and then accepting a sentence indication. She had made an informed decision not to pursue any defence. Leave to vacate her guilty pleas was therefore refused.The law[15] Section 115(1) of the Criminal Procedure Act 2011 provides:A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.[16] It is well-settled that only in exceptional circumstances will an appeal against conviction be entertained after a guilty plea, and an appellant must show that a miscarriage of justice will result if the conviction is not overturned. 17 This Court has held the "underlying object is to avoid a miscarriage of justice", and to "consider the interests of justice". 1815 At [49].16 At [50].17 R v Merrilees [2009] NZCA 59 at [4], citing R v Proctor [2007] NZCA 289 at [4] and R v Le Page[2005] 2 NZLR 845 (CA) at [16].18 R v C CA59/02, 28 May 2002 at [14].[17] While the circumstances which will give rise to a miscarriage of justice are not limited, in Richmond v R this Court summarised the broad categories that have been identified as potentially giving rise to a miscarriage of justice in this context: 19(a) where a defendant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;(b) where on the admitted facts a defendant could not in law have been convicted of the offence charged;(c) where it can be shown that the plea was induced by an incorrect ruling on a question of law; and(d) where trial counsel errs in his or her advice as to the non-availability of certain defences or potential outcomes.[18] A defendant may decide to plead guilty for any number of reasons. As this Court said in R v Merrilees: 20[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages for withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering 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 from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.[19] Misgivings about having pleaded guilty are an insufficient basis for concluding that a miscarriage of justice has occurred. This Court in Keegan v R said: 21[60] Anyone facing serious charges will inevitably be under pressure to a greater or lesser extent in the context of criminal proceedings. The fact that an accused may be stressed and feel under pressure when making a decision to plead guilty is not ordinarily sufficient to amount to a miscarriage of justice. Something more is required. 19 Richmond v R [2016] NZCA 41 at [17]–[18], citing R v Le Page, above n 17, at [17]–[19].20 R v Merrilees, above n 17.21 Keegan v R [2010] NZCA 247.Issues[20] Ms Barakat condensed her grounds of appeal to two issues:(a) Did Ms Barakat have a good defence?(b) Was trial counsel's trial preparation inadequate and did this increase improper pressure on Ms Barakat to plead guilty?Did Ms Barakat have a good defence?[21] Ms Barakat asserts that she had a good defence, primarily on the grounds that her former partner was in fact the person mainly responsible for the offending.[22] Ms Barakat admits her drug addiction and culpability for possession of one of the methamphetamine pipes, and perhaps some of the methamphetamine (for personal use), but claims that was the extent of her liability.[23] Ms Webby, for Ms Barakat, acknowledges that Ms Barakat was not prepared to name another person as being responsible for the offending, but says that the key consideration for the Court is whether there was a defence to the charges. She suggests trial counsel could have given advice about the possibility of obtaining a protection order and other potential measures to protect Ms Barakat from her former partner, but there did not appear to have been any such consideration. There was also the possibility that an effective defence could have been conducted without calling Ms Barakat, to circumvent the issue of "naming" her former partner.[24] As trial counsel's file showed, there were numerous client meetings, most of which Ms Barakat attended together with a support person. Trial counsel gave evidence that Ms Barakat tended to "flip-flop" in her instructions as to how she wished to proceed. Ms Barakat agreed in evidence that trial counsel made it clear to her that he would have no issue running a trial on the basis of a defence that the methamphetamine did not belong to Ms Barakat.[25] We agree with Ms Mildenhall that this aspect of the appeal fits squarely into the category of cases referred to in R v Merrilees. Ms Barakat expressly rejected the only viable defence available to her because she would not name her former partner. This was not a case of counsel having erred in advising as to the non-availability of a defence, as discussed in Richmond v R. 22 Ms Barakat was given timely and appropriate advice over several meetings and signed written instructions that she understood and accepted that advice. It is not enough that she now regrets her informed decision.[26] Ms Webby raised two other matters in respect of Ms Barakat's ability to defend the charges: that the charge of possession of LSD23 was not supported by drug analysis undertaken by ESR and that the messages offering to supply methamphetamine could have been sent by Ms Barakat's former partner or a third person.LSD[27] Ms Webby contends that the charge of possession of LSD could have been defended. There was no evidence ESR had analysed what the Crown maintained were LSD tabs. We note, however, that trial counsel said he was prepared to put the Crown to proof in respect of the LSD. This was the best he could do in the circumstances because in a document, Exhibit D (discussed further below), Ms Barakat accepted the LSD was hers and by implication that it was LSD. We agree with trial counsel's approach.Messages offering to supply methamphetamine[28] The representative charge of offering to supply methamphetamine was founded on messages disclosed by Ms Barakat's cell phone data.[29] There was some confusion as to how those messages had been obtained by the police. Ms Webby suggests that the phone was located in a search undertaken22 Richmond v R, above n 19, at [18].23 In her written submissions Ms Webby contended that the cocaine allegedly found in Ms Barakat's room had not been analysed by ESR. She did not refer to this in her oral submissions but the position is the same as that which applies to the argument regarding LSD. That is, in Exhibit D Ms Barakat accepted the "cocaine" was hers.some three weeks after Ms Barakat's arrest and remand in custody, which had messages on it sent during the period she was in custody. Were that so, then there would clearly be some questions as to whether the messages, even those before her remand in custody, had indeed been sent by Ms Barakat. However, that was not the case. The police searched a different address when Ms Barakat was in custody and seized a phone which did not belong to Ms Barakat. That phone revealed messages sent from another number offering to supply methamphetamine. The police obtained a production order of the data from that other number and alleged that number belonged to Ms Barakat. That allegation was supported by the fact the messages included some apparently between Ms Barakat and her probation officer.[30] The offers to supply methamphetamine were in text message and WhatsApp data. Ms Barakat maintained that the WhatsApp messages had not been sent by her, pointing out that WhatsApp uses a phone's internet connection.[31] It is clear that trial counsel advised Ms Barakat on what they assessed as the strength of the Crown case but assured her they would put the Crown to proof if instructed to do so. The way in which the evidence of the messages offering to supply methamphetamine was obtained meant that there was a prospect of successfully challenging the authorship of them but it was no more than that. It was simply one aspect to be weighed in deciding whether to plead guilty or not.Was trial counsel's trial preparation inadequate and did this increase improper pressure on Ms Barakat to plead guilty?[32] In Ms Webby's submission, the combination of Ms Barakat's personal circumstances — her vulnerability and comprehension issues — coupled with what she described as flawed advice went to the heart of Ms Barakat's decision to plead guilty. The issues were of such seriousness that they warranted leave to vacate the guilty pleas.Ms Barakat's personal circumstances[33] While the Judge accurately summarised Ms Barakat's vulnerability, Ms Webby submits the Court failed to give adequate weight to it. She says Ms Barakat neededtime to comprehend the sentence indication. Ms Webby refers to s 64(b) of the Criminal Procedure Act which allows five working days to accept or reject a sentence indication, although the Court may specify a shorter or longer timeframe. This provision, Ms Webby says, must surely be to avoid situations where undue pressure is placed on defendants to enter pleas.[34] And Ms Webby says if there had been an earlier sentence indication, such as months earlier than the proposed trial date, the pressure would have been lessened and there would have also have been a larger discount available to Ms Barakat for guilty pleas. 24[35] The Crown does not dispute the factors relied on by Ms Webby as to Ms Barakat's personal circumstances. She was having counselling through the Accident Compensation Corporation in respect of historic issues and required a support person and assistance in understanding matters. In respect of the latter, she was accompanied by a support person in many of her meetings with trial counsel.[36] The Crown does take issue with the criticism of trial counsel and the allegation that inadequate trial preparation put undue pressure on Ms Barakat, particularly given her personal circumstances.Trial preparation[37] Ms Webby acknowledges that senior trial counsel was an experienced and senior defence lawyer but refers to the following:(a) Ms Barakat consistently denied culpability on the serious charges of possession of methamphetamine for supply and offering to supply methamphetamine.(b) Before pleading guilty, trial counsel provided Ms Barakat with a typed document, which contained numerous acknowledgments and24 Ms Webby also refers to r 4.9 of the Criminal Procedure Rules 2012, which contemplates a sentence indication being undertaken or flagged during the case management stage, significantly earlier than when it was proposed by counsel in the present case.instructions to trial counsel, including Ms Barakat's knowledge of the charges, the consequences of pleading guilty and the likely sentence. This document said the Crown case was overwhelming and demonstrated a lack of faith in her defence.(c) Ms Barakat says the document was handed to her on 18 October 2018 and she was given little time to consider the contents and sign it. She says the document was unclear about what an end sentence would be, namely imprisonment given the indicated starting point of four years. Further, the document did not give an indication of what the discounts would be and the likely end sentence. Because of this, the document was misleading as to the overall outcome, which is the key consideration for any defendant.(d) Both trial counsel deny any pressure on Ms Barakat, although accept she was clearly stressed.(e) Any suggestion of home detention was improper given Ms Barakat's previous offending. Ms Webby submits the mere mention of home detention could only be considered as an inducement to enter guilty pleas. It would have given Ms Barakat false hope for a sentence that would never have been imposed given the seriousness of the charges and what was then the guideline judgment for sentencing methamphetamine offenders, R v Fatu. 25(f) The Crown had advised trial counsel that further charges would be laid if the matter proceeded to trial. Ms Webby says that this contributed to improper pressure on Ms Barakat.[38] Ms Webby submits that trial counsel's inadequate trial preparation contributed to counsel's willingness to resolve the charges and failure to negotiate a better resolution with the Crown. This proposition was rejected by the Judge, and for good reason. The comprehensive file notes taken by trial counsel show they met with25 R v Fatu [2006] 2 NZLR 72 (CA).Ms Barakat on five occasions (when she was accompanied by her support person) and had approximately 20 telephone conversations about the charges with her.[39] Ms Webby then submits the Judge should not have relied upon Exhibit D as it contained admissions contrary to Ms Barakat's instructions and Ms Barakat resiled from the admissions, as she advised trial counsel. The affidavit of Ms Barakat's friend, Lee Hare, affirmed on 10 October 2019 deposes that she had prepared Exhibit D and provided it to Ms Barakat, who then forwarded it to trial counsel with clear instructions to ignore the first two pages. At this point, Ms Webby submits, trial counsel was in receipt of conflicting advice and should have considered withdrawing, rather than relying on a document created by a third party.[40] Exhibit D is headed:To: Tauranga District CourtFrom: Fiona Fay BARAKATDate: 12 September 2018Re: Personal Statement[41] Exhibit D begins by discussing the search warrant executed by the police at Ms Barakat's residential address, the charges and Ms Barakat's interview with the police, saying she had been provided with a copy of the interview transcript. Exhibit D then states that Ms Barakat says some of her answers to the police were correct (for example that a small amount of methamphetamine belonged to her for personal use) but that a number of the answers were not correct, such as that she had no knowledge of the drugs and cash found in the safe. She then admits that those items did belong to her and explains why she had not told the truth in her police interview. That information is contained in the first two pages of Exhibit D. The following page and a half is headed "PERSONAL BACKGROUND" and describes Ms Barakat's upbringing, drug use and attempts at rehabilitation.[42] When giving evidence before the District Court, Ms Barakat denied sending Exhibit D to trial counsel by email and suggested Ms Hare, who drafted the document, included untruths in it because of personal issues between her and Ms Barakat.She said the admissions had not come from her. She claimed that she had provided trial counsel with a hard copy of Exhibit D but told them to ignore the first two pages in which the admissions were made. Trial counsel was definite that Ms Barakat had put no such qualification on the contents of the document.[43] We consider that the Judge was entitled to rely on Exhibit D as reflecting Ms Barakat's instructions and to reject her denial of its contents. Ms Barakat emailed Exhibit D to trial counsel after their meeting on 12 September 2018. In that meeting, trial counsel had gone through the evidence with Ms Barakat and discussed in detail the merits of her defence and whether she was prepared to name her former partner as being involved. Ms Barakat's email to trial counsel shows that Exhibit D was sent to Ms Barakat by Ms Hare on 12 September 2018 at 3.28 pm and then forwarded by Ms Barakat to trial counsel at 4.27 pm. There was no disclaimer in the email as to the content of Exhibit D. Importantly, Ms Barakat also physically handed a hard copy of Exhibit D to trial counsel. As the Judge said, it simply did not make sense to hand over the entire document and then tell trial counsel to ignore half of it.Threat of further charges[44] Ms Webby maintains that the Crown had unfairly threatened to lay further charges, which put undue pressure on Ms Barakat. Ms Webby says that the additional charges referred to 28.3 grams of methamphetamine but it was unclear what the amount was based on. She notes that, while some methamphetamine had been found in Ms Barakat's room, the police had also found some in her former partner's car. All of the methamphetamine was found at the time the police executed the search warrant but the total amount of methamphetamine did not distinguish between that found in Ms Barakat's room (with the inference it belonged to her) and that found in her former partner's car (with the inference it belonged to him). Furthermore, there was no allowance made for the methamphetamine which would have been for Ms Barakat's personal use, she being an acknowledged methamphetamine addict.[45] The summary of facts makes it clear that the charge of possession of methamphetamine involved the methamphetamine found in Ms Barakat's room. She had acknowledged that it belonged to her. The suggestion of other charges relatedto the offers to supply methamphetamine which were revealed in the messages disclosed by Ms Barakat's phone data.[46] There was, therefore, a sound basis from the phone data for the proposition that Ms Barakat could have been charged with further offences of offering to supply methamphetamine, rather than the single representative charge that had been laid.[47] We reject the suggestion that this prospect amounted to improper pressure on Ms Barakat to accept the sentence indication. We note that counsel had discussed with Ms Barakat in July 2018 the possibility of the Crown seeking to file an amended charge notice reflecting other transactions. It was not first raised immediately prior to trial.[48] We observe also that there must have been a real prospect that the Crown would seek to have Ms Barakat's prior convictions admitted as propensity evidence. In 2017 she was convicted on representative charges of supplying methamphetamine and possessing methamphetamine for supply. Indeed, she was serving a home detention sentence on those charges at the time the search warrant was executed. If that evidence had been ruled admissible it would, in our assessment, have strengthened the Crown case, particularly in relation to the charges of offering to supply methamphetamine and possession of methamphetamine for supply.Sentence indication[49] It is clear that trial counsel had made repeated but unsuccessful efforts to obtain clear instructions from Ms Barakat prior to the reserve trial fixture being brought on. As a result, there was time pressure in which a decision had to be made, but that does not undermine the process that followed. Ms Barakat's behaviour also explains the delay in seeking a sentence indication.[50] Ms Barakat's signed written instructions on seeking and then accepting the sentence indication are compelling evidence that Ms Barakat both understood andaccepted trial counsel's advice on the sentence indication. As the Judge said, those instructions "really do speak for themselves". 26[51] These documents also demonstrate that trial counsel made it clear prior to the indication being given that the end sentence was likely to be one of imprisonment. The Judge who gave the sentence indication had left open the possibility of further discounts for rehabilitative efforts, personal circumstances, a positive pre-sentence report and genuine remorse. Trial counsel told Ms Barakat there was a "minor possibility" those discounts could bring the sentence to within home detention range. We take no issue with that advice. Ms Barakat did not give evidence to the effect that she pleaded guilty on the understanding that she would receive a home detention sentence.[52] As the Judge said, as the date for sentencing drew nearer, it appears the prospect of serving a sentence of imprisonment became "increasingly unattractive". 27Mere regret does not constitute exceptional circumstances, nor can it amount to a miscarriage of justice.Conclusion[53] For these reasons, we reject the argument that trial counsel inadequately prepared for trial and that this increased improper pressure on Ms Barakat to plead guilty. Although Ms Barakat had some vulnerability, she had a support person with her at meetings with trial counsel where important decisions were to be made. The Judge heard evidence from the support person and was satisfied she was a robust individual who would have protected Ms Barakat's position.[54] As this Court said in Keegan v R, anyone facing serious charges will inevitably be under pressure, but the fact that a defendant may be stressed and feel under pressure when making a decision to plead guilty is not ordinarily sufficient to amount to a miscarriage of justice. 2826 R v Barakat, above n 7, at [37].27 At [55].28 Keegan v R, above n 21, at [60].[55] We are satisfied that Ms Barakat was appropriately advised and made an informed decision to plead guilty. That she now regrets her decision is not a basis to grant her leave to vacate her guilty pleas.Result[56] The appeal against conviction is dismissed.Solicitors:Webby & Associates, Tauranga for AppellantCrown Law Office, Wellington for Respondent