LOCKETT v R [2018] NZCA 47

LOCKETT v R [2018] NZCA 47 [14 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA258/2017[2018] NZCA 47BETWEEN JAMIE BEATTIE LOCKETTAppellantAND THE QUEENRespondentHearing: 1 March 2018Court: Gilbert, Simon France and Whata JJCounsel: Appellant in PersonE J Hoskin for RespondentJudgment: 14 March 2018 at 9.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Lockett seeks leave to bring a second appeal in relation to his convictions.[2] In late August 2014, Mr Lockett was charged with threatening to kill, speakingthreateningly (x2), assault and burglary. The charges relate to what seems to be anongoing conflict with another person living in the area. Mr Lockett was remanded incustody. On 16 December 2014 Mr Lockett, still remanded in custody, was broughtto the Court. At that time he had discussions with a duty solicitor, who in turndiscussed the charges with the prosecutor. As a consequence of these discussions, thethreatening to kill charge was reduced to a third charge of speaking threateningly, andthe burglary charge was withdrawn.[3] Mr Lockett then pleaded guilty. When doing so he signed the summary of factsand charge sheets, but added the words "under duress". This was a reference to thefact that he was pleading guilty so as to bring to an end his custodial remand. He hadelected trial by jury and there would be a considerable time until trial. We areadvised the sentence imposed on 16 December 2014 equated to time served andMr Lockett was released that day.[4] Mr Lockett's primary grievance is that he was denied bail on the basis of whathe says is an incorrect police opposition to bail which alleged he was a threat to thesafety of police officers. He does not, however, appear to have appealed the baildecision. Nor is it suggested Mr Lockett misunderstood the choice he was making indeciding to plead guilty.[5] Six months after the sentencing, Mr Lockett applied for a retrial. TheDistrict Court declined the application.1 Mr Lockett then appealed out of time to theHigh Court. An extension of time within which to appeal was granted, but theappeal was dismissed by Edwards J.2 Mr Lockett now brings the present application.[6] Mr Lockett advances the same grounds as in the lower courts which revolvearound the proposition that he only pleaded guilty under duress. This proposition issupplemented by submissions that he has a defence to all charges sourced in s 56(1)of the Crimes Act 1961, and that a successful defence of a subsequent burglary chargegives rise to the probability of the same outcome here.3 These three matters were eachconsidered by Edwards J who concluded that none afforded a prospect of success at aretrial.1 New Zealand Police v Lockett [2016] NZDC 4551.2 Lockett v New Zealand Police [2017] NZHC 88.3 New Zealand Police v Lockett [2015] NZDC 999.[7] The law in relation to when a defendant will be allowed to withdraw aguilty plea following sentence is well settled.4 We see no error in the manner theprinciples were applied in the courts below. There is nothing in the material on whichMr Lockett relies that could satisfy the test for revisiting a guilty plea. This is not amatter of general or public importance, and there is no appearance that a miscarriagehas occurred.5[8] A separate new ground in support of leave to bring a second appeal concernsthe process followed in the High Court. At the conclusion of the oral hearingEdwards J indicated she would be assisted by an affidavit from the duty solicitor whoadvised Mr Lockett on the day he pleaded guilty. For that to happen Mr Lockett wouldneed to provide a waiver which he did subsequent to the oral hearing. The affidavitwas duly filed. Mr Lockett complains he was not provided with an opportunity torespond to the affidavit. This would appear to be correct.[9] We are not clear as to the exact basis on which it was agreed the evidencewould be obtained. On the information known to us it was a process error not to giveMr Lockett a chance to respond. However, we accept the respondent's submissionthat it has not given rise to the need for a further appeal. The basis of Mr Lockett'sapplication to withdraw his plea was well before the Court and the lawyer's affidavitdoes not undermine it in any material way. We inquired of Mr Lockett what aspect ofthe lawyer's affidavit he would have contested. The only matter of potential relevancewas the comment by the lawyer that Mr Lockett was smiling when he wrote "underduress" on the forms. Assuming the lawyer to be mistaken on that, it is not a matterthat affects the current application. Mr Lockett has not satisfied us that the ability tocounter the affidavit would have made any material difference.[10] The application for leave to bring a second appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent4 R v Le Page [2005] 2 NZLR 845 (CA).5 McAlister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]–[39].