DAY v POLICE [2019] NZHC 1256

DAY v POLICE [2019] NZHC 1256 [5 June 2019]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2019-488-000004[2019] NZHC 1256BETWEEN JAMIE SHILO DAYAppellantAND NEW ZEALAND POLICERespondentHearing: 5 June 2019Counsel: VD Heather for AppellantKJG MacNeil for RespondentJudgment: 5 June 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 5 June 2019 at 3 pm.Registrar/Deputy RegistrarSolicitors/Counsel:VD Heather, Auckland.Crown Solicitor, Whangarei.[1] A defendant may appeal conviction even if she or he has pleaded guilty. But,only if justice has miscarried. Ms Jamie Day pleaded guilty to cultivating cannabis.Judge A Swaran Singh sentenced her to terms of community work and supervision.Ms Day appeals conviction. In a one-page affidavit, Ms Day says the processmiscarried because her lawyer did not follow her instructions:1I met my lawyer for the first time at my court appearance on 19th February2019. I made it clear to her I wanted the case put off to another date for thePolice to consider diversion. I explained to her that I had worked my wholelife towards a career in the travel and tourism industry. I had been informedindependently to try for diversion as it was my first offence, and that aconviction could affect my career choice. I understood my lawyer was awareof what was to happen in court when I appeared. I was confused when Iappeared before the Judge as [he] was talking about sentencing me there andthen. I do not recall my lawyer confirming my decision to be sentenced whenI appeared. I do not recall signing anything to instruct my lawyer to enter aplea of guilty to the charge, or whether the charge was put to me in court. Ifeel my lawyer did not follow my instructions and therefore was not given theopportunity for my voice to be heard.[2] In short, Ms Day says:(a) She instructed Ms Naivasha Moore to seek an adjournment, so Policecould consider diversion.(b) She was confused when she pleaded guilty.(c) She did not anticipate the Judge sentencing her that day. And,everything happened the same day.[3] The appeal was originally scheduled for 8 April 2019. Woolford J adjournedit as Ms Day had not waived privilege, meaning Ms Moore could not respond. Ms Dayhas since waived privilege. And, the Crown has now filed a comprehensive affidavitfrom Ms Moore.[4] Ms Moore says things did not occur as Ms Day suggests. Rather, Ms Day andher partner were jointly charged with cultivating cannabis (a topic on which Ms Day1 The format of the affidavit is different; each sentence has its own paragraph.is silent). Other counsel acted for Ms Day's partner. And, the first hearing was on18 January 2019—not 19 February 2019.[5] Ms Moore's "initial inclination" on 18 January was to seek an adjournment.However, Ms Day did not want this. Neither did her partner or his lawyer. Ms Moorewas anxious Ms Day might have been taking responsibility for offending that wasexclusively her partner's; unlike her partner, Ms Day had no criminal history.Ms Moore "insisted on speaking with Ms Day privately without her partner present".Ms Moore read the summary of facts to Ms Day. She asked her if the cannabis washers or her partner's. Ms Day was "adamant that it belonged to her". Ms Moore wasstill anxious. She made other inquiries as to whether Ms Day "was being pressured totake responsibility for the cannabis by her partner". Ms Day said she was not.[6] Ms Moore asked Ms Day to sign the summary of facts to confirm she wishedto plead guilty. Ms Day did so. Ms Moore appended the signed summary to heraffidavit. It records: "Doug [Blaikie] acting for Partner", and, "I wish to plead guiltyto the charge". Ms Day's signature accompanies the latter.[7] Ms Moore told the Registrar Ms Day would plead guilty on 19 February whena Judge would be available.[8] Ms Moore and Ms Day spoke again in person at Court on the 19th. Ms Mooresays Ms Day told her she was still with her partner, and Ms Day was growing cannabis"for personal use". Ms Moore recorded both observations in a file note, which isappended to her affidavit. Ms Moore told Ms Day the Judge may sentence her thatday or require her to return. Ms Moore says: "Ms Day seemed incredibly put out thatshe may be required to come back to court on another occasion". Ms Moore was ableto persuade Judge Singh another appearance was unnecessary; the Judge sentencedMs Day on the 19th.[9] Ms Moore says Ms Day never said anything about diversion, or heremployment being affected by a conviction. Ms Moore also says had diversion beenraised, she would have considered it likely the charge was too serious for that. Policesaw cannabis growing on the property from the air. They found 53 plants.[10] Given all this, I assumed Ms Day would require Ms Moore for cross-examination.2 The reason for this assumption will be obvious: Ms Day's case turnson the proposition Ms Moore ignored her instructions, and Ms Moore denies that.Ms Moore also says Ms Day's account is bereft of important detail; for example, thatthere were two hearings, not one; that Ms Day's partner was jointly charged too; andthat Ms Day signed the summary of facts, confirming she wanted to plead guilty to thecharge.[11] I convened a telephone conference the day before the hearing to discussarrangements. Ms Day's counsel, Mr Heather, said Ms Moore's account was notchallenged. I told Mr Heather if that were so, an appeal would be difficult to pursueas Ms Moore's affidavit would be taken "at face value".3 Mr Heather said heunderstood.[12] The hearing unfolded as foreshadowed; Mr Heather made no challenge to theaccuracy of Ms Moore's evidence and accepted she had done "everything possible".Some cases involving alleged trial counsel incompetence do not require cross-examination. For the reasons explained, this is not one of them.[13] The appeal is dismissed.Postscript[14] Mr Heather filed a helpful memorandum of counsel acknowledging thedifficulties confronting the appeal. I repeat my thanks for it. However, thememorandum contained correspondence between Mr Heather and Ms Day attractinglegal professional privilege. This should not have been appended. The Registrar is toseal this material. So too Mr MacNeil in relation to the copies on the Police file...Downs J2 And, Police would require Ms Day.3 Evidence Act 2006, s 92.