CLARKSON v R [2019] NZCA 671

CLARKSON v R [2019] NZCA 671 [19 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA60/2019[2019] NZCA 671BETWEEN JOHN PAUL CLARKSONAppellantAND THE QUEENRespondentHearing: 11 November 2019Court: Courtney, Brewer and Gendall JJCounsel: S K Green for AppellantE J Hoskin for RespondentJudgment: 19 December 2019 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The second appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] John Clarkson and his then partner, Elyse Payne, got into an argument thatturned physical. Both were charged with assault and both pleaded guilty inthe District Court at Hawera in June 2018. Mr Clarkson was ordered to come up forsentence if called upon within 12 months and to pay $750 reparation.1 His appealagainst conviction was dismissed.2 He seeks leave to bring a second appeal.3[2] Leave cannot be granted for a second appeal against conviction unlessthis Court is satisfied that:(a) the appeal involves a matter of general or public importance;4 or(b) a miscarriage of justice may have occurred or may occur unlessthe appeal is heard.5[3] As to whether an appeal involves a matter of general or public importance, thisCourt's decision in McAllister v R confirms that the test is a high one — leave willgenerally be declined where the proposed issue involves a factual assessment specificto the circumstances of the case.6[4] Mr Clarkson's proposed grounds of appeal are that the High Court Judge erredin finding that:(a) Mr Clarkson's counsel, Mr Bourke, did not act in a position of conflictof interest by appearing for Mr Clarkson and for Ms Payne oninstructions from her counsel, when the guilty pleas were entered;(b) Mr Bourke's advice to Mr Clarkson was correct; and(c) Mr Bourke did not fail to follow instructions in relation to anapplication for discharge without conviction on behalf of Mr Clarkson.1 Police v Clarkson [2018] NZDC 23767 at [3].2 Clarkson v Police [2019] NZHC 54 [High Court judgment] at [51].3 Criminal Procedure Act 2011, s 237.4 Section 237(2)(a).5 Section 237(2)(b).6 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].[5] Leave is granted in relation to the proposed first and second grounds of appealunder s 237(2)(b) on the basis that a conviction of assault is serious and the groundsraised could give rise to a miscarriage of justice.[6] Leave is refused in relation to the proposed third ground because it does notraise an issue of general or public importance and nor could any miscarriage havearisen from it. Mr Clarkson complained that Mr Bourke had given inadequate advicein relation to the application for discharge without conviction and had failed toadvance the application in a timely way. But Mr Bourke had ceased acting forMr Clarkson some weeks before sentencing and, although Mr Clarkson had newcounsel at the time of sentencing, he did not advance an application for dischargewithout conviction and did not waive privilege in relation to that aspect.The High Court appealThe entry of the guilty plea[7] Mr Clarkson and Mr Bourke gave evidence as to the circumstances in whichMr Clarkson's guilty plea was entered.[8] At the relevant time, Mr Bourke was acting for Mr Clarkson and Ms Woodcockfor Ms Payne. There was a different summary of facts relating to each. We wereprovided only with the summary of facts relating to Mr Clarkson. Relevantly,it recorded that:The defendant and the victim began to argue while breakfast was being made.The defendant went to get cutlery for his breakfast but the victim would notmove.He has pushed her out of the way.The victim threw a small Easter egg at the defendant in retaliation.The defendant grabbed the victim by the neck and forced her back intothe oven and then punched her in the face.The victim pushed him away and the defendant punched the victim to the faceagain.The victim pushed the defendant away again and he threw her against a closeddoor and then into an open doorway.The defendant and victim ended up wrestling on the floor and the victim's sonhas attempted to call Police.The defendant was still wrestling with the victim and she has grabbed him bythe testicles and squeezed to get him off her.The victim has bruising to both sides of her neck, her left cheek and jaw areaare swollen and tender.In explanation the defendant stated that "I don't believe I caused her anyinjuries. I wasn't trying to hurt her, I only wanted to make her let go becauseof the pain."[9] Mr Clarkson did not agree with this summary of facts. Initially he was keen todefend the charge. Mr Bourke discussed the merits and risks of proceeding to trial withMr Clarkson. On one hand Mr Clarkson had medical evidence of his injuries to supporthis account. On the other hand there was evidence indicative of injuries to Ms Payne.There was was a risk that Ms Payne's account would be preferred to that ofMr Clarkson. Mr Bourke advised Mr Clarkson that if he did decide to defendthe charge his position would be improved if Ms Payne were to plead guilty before hecame to trial.[10] Ultimately, Mr Clarkson decided to plead guilty and confirmed that decisionin writing. Ms Payne also decided to plead guilty. Mr Clarkson and Ms Payne werestill living together at that point and Mr Clarkson was aware that Ms Payne wasplanning to plead guilty.[11] The pleas were to be entered on 12 June 2018. Ms Woodcock, who was basedin New Plymouth, asked Mr Bourke to appear as her agent that day. Mr Bourke hadappeared as Ms Woodcock's agent on a previous occasion in relation to an agreed bailvariation for Ms Payne.[12] Mr Bourke met Mr Clarkson and Ms Payne at the courthouse on 12 June 2018.He did not have any discussion with either. They entered the dock together (althoughthey were not charged jointly) and Mr Bourke entered guilty pleas for both.He ensured that no conviction was entered against Mr Clarkson because ofMr Clarkson's intention to apply for a discharge without conviction.[13] Subsequently Mr Clarkson and Mr Bourke exchanged emails aboutthe proposed application for discharge without conviction. Mr Clarkson providedmaterial for Mr Bourke to use in the preparation of the affidavit. Some weeks into thisprocess Mr Clarkson became dissatisfied and terminated Mr Bourke's retainer.He engaged another lawyer, Ms Marriner, who appeared for Mr Clarkson atsentencing. However, as already noted, no application for discharge withoutconviction was made.The decision under appeal[14] Thomas J recorded the grounds advanced by Mr Clarkson on appeal as beingthat:7(a) Mr Bourke had given erroneous advice in relation to whether Ms Paynewould be a compellable witness and whose evidence would bepreferred;(b) Mr Bourke was acting for Mr Clarkson and Ms Payne and therefore hada conflict of interest which influenced his advice;(c) Mr Clarkson entered his guilty plea in circumstances of counselconflict; and(d) Mr Bourke's advice about the requirements for a successful applicationto be discharged without conviction was wrong.[15] The allegation of conflict of interest related to Mr Bourke's appearance on12 June 2018. Ms Green submitted that lawyers cannot appear for two defendantswhen a plea is entered where there has been a dispute about the summary of facts.It was advanced against the background that Mr Bourke had previously advised7 High Court judgment, above n 2, at [10].Mr Clarkson that if he decided to proceed to trial and, by the time he came to trialMs Payne had pleaded guilty, his position would be improved.8 The argument wasmade that, knowing that Ms Payne was to plead guilty, it was incumbent on Mr Bourketo take Mr Clarkson aside prior to entering the guilty plea on his behalf and revisit thequestion of his plea.[16] It was also argued that Mr Bourke had given incorrect advice regardingMr Clarkson's probable position at trial because Mr Bourke had failed to understandthe distinction between compellability and self-incrimination.9[17] The High Court Judge rejected both arguments. On the conflict of interestpoint she held that:[23] It is clear from the evidence that Mr Bourke did not act in a positionof conflict. He identified at the outset that he could not act for bothMr Clarkson and his partner. He told Mr Clarkson that. He assisted byidentifying an appropriately qualified and experienced lawyer, Ms Woodcock,to represent Mr Clarkson's partner.[24] There is nothing at all unusual in Mr Bourke appearing on twooccasions for Mr Clarkson's partner, acting on instructions fromMs Woodcock. As Mr Bourke made clear in his evidence, he gave no adviceto Mr Clarkson's partner, he took no instructions from her and he did notcharge her.[25] It might appear somewhat unusual for Mr Bourke to appear when bothMr Clarkson and his partner were called, and apparently appeared together inthe dock to vacate not guilty pleas and enter pleas of guilty. However, I acceptthe evidence that, in the smaller centres in provincial New Zealand,this sometimes happens as a matter of necessity.[18] On the question of whether Mr Bourke should have revisited the decision toplead guilty, the Judge concluded that:[40] It is therefore patently clear that Mr Clarkson received competent and,indeed, relatively comprehensive legal advice as to his options. He was fullyaware of those options and made an informed decision to plead guilty.[41] It is artificial to suggest that, once Mr Clarkson's partner had pleadedguilty, Mr Bourke should have had the matter stood down in order to adviseMr Clarkson effectively to re-evaluate his position. Mr Clarkson had alreadybeen advised that a plea of guilty by his partner would be of some benefit werehe to defend the charges. As Mr Clarkson acknowledged in8 At [14].9 At [16].cross-examination, he was aware, prior to the day the guilty pleas wereentered, that his partner intended to plead guilty.(footnote omitted)Appeal[19] Ms Green, for Mr Clarkson, submitted that the High Court Judge's conclusionswere wrong as a matter of law. She argued that Mr Bourke's advice had been confusedand that the circumstances in which he appeared on 12 June 2018 amounted to a breachof r 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care)Rules 2008, which provides that:Conflicting duties6.1 A lawyer must not act for more than 1 client on a matter in anycircumstances where there is more than a negligible risk thatthe lawyer may be unable to discharge the obligations owed to 1 ormore of the clients.[20] The Judge did not refer to r 6.1 and it is not clear that the argument based onr 6.1 was advanced in that court on first appeal.[21] We did not understand Ms Green to argue that counsel could never appear insuch circumstances without breaching r 6.1. Rather, the argument was that, in theseparticular circumstances, there was a "more than a negligible risk" that Mr Bourkewould be unable to discharge his obligations to Mr Clarkson because Mr Clarkson'sown position would change as soon as Ms Payne entered her plea, necessitating freshadvice on the merits of Mr Clarkson entering a like plea.[22] Although Mr Bourke did not have a contract with Ms Payne, we agree that heis properly viewed as acting for her on 12 June 2018, having accepted instructions toappear on behalf from her usual counsel. He was therefore required to exercisereasonable skill and care in undertaking the limited tasks required of him. This wassimply to attend court and enter a guilty plea on behalf of Ms Payne. He was notrequired to advise Ms Payne on any aspect and he did not purport to do so. Mr Bourkedid, however, continue to owe the usual duties of counsel to Mr Clarkson. This wouldinclude advising him on any change in circumstances that could reasonably beexpected to affect Mr Clarkson's position.[23] Mr Bourke's obligations to Mr Clarkson on 12 June 2018 were, however, to beviewed against Mr Clarkson's prior decision to plead guilty. Mr Bourke had advisedMr Clarkson regarding the merits and risks of defending the charge and on the basisof that advice Mr Clarkson had decided to plead guilty. The Judge held that the advicegiven was correct. Ms Green argued that it was not and that the Judge was in error.[24] Mr Bourke recorded the advice he gave Mr Clarkson in a file note following aconversation with Mr Clarkson on 25 May 2018. It said:Discuss case and evidence with John- Obviously two varying accounts that have resulted in charges againstboth John and Elyse.- Positives = John's statement is thorough. He also has medical evidenceto demonstrate the injury to his testicles.- Discuss potential difficulties proceeding to trial:- As Elyse has entered a [not guilty] plea she is not accepting John'saccount and Police have a statement from her.- If her matter is heard first and she is found [not guilty] then she is acompellable witness and has given a statement. So even if she turnshostile Police already have her evidence and can use this.- Can't guarantee whose case will go first.- Police can't have both matters heard at once otherwise can refuse toanswer questions through right to protect against self-incrimination/rightto silence.- Risk that Judge may prefer Elyse's version of events (or version asper her statement)- There is a photo of a scratch on Elyse's neck.Explain likely delay to [Judge alone trial]. At least a few months. John isworried about cost. Explain that obviously the cost is higher if it proceeds totrial.John angry with the Police, it's all bullshit and their fault. Explain that chargeunlikely to be dropped even if Elyse doesn't want to proceed.Explain it's up to John if he wants to proceed to trial. Yes there will be ahigher cost, longer delay but chance to prove his version of events is correct.But risks attached, Elyse being believed etc.Otherwise can look at s 106Explain discharge w/out conviction and process.[25] It is evident that Mr Bourke advised Mr Clarkson on the basis that both he andMs Payne would be required to give evidence at one another's trials. In his evidencein the High Court, Mr Bourke described Mr Clarkson's negative attitude towardsthe police. Mr Clarkson had told him that he and Ms Payne intended not to assistthe police in the prosecutions but to do what they could to assist one other.[26] Mr Bourke's advice can be summarised as being that (1) the defence ofself-defence was available; (2) if both Mr Clarkson and Ms Payne defendedthe charges against them it was not possible to predict which case would be heard first;(3) there was a risk that Ms Payne's account would be preferred; and (4) if Ms Payneeither pleaded guilty or was found guilty prior to Mr Clarkson standing trial, thenthe risk of her account being preferred would be less because, regardless of what shesaid in evidence, the certificate of conviction could be produced as evidence that shehad assaulted Mr Clarkson.[27] Mr Clarkson also said that Mr Bourke advised him that, if called as a witnessat Ms Payne's trial, he could refuse to answer questions on the basis of the privilegeagainst self-incrimination. Mr Bourke confirmed that he had given that advice,though, rather confusingly, went on to express the view that Mr Clarkson "[could not]just refuse to answer, that could be a contempt matter".[28] Ms Green argued that Mr Bourke had misunderstood the effect of s 60 ofthe Evidence Act 2006 (privilege against self-incrimination) and s 73(compellability of defendants and associated defendants). But she did not identify anyoverall deficiency in the advice that might have affected Mr Clarkson's decision eitherbefore or on 12 June 2018 to plead guilty. Because there would be separate trials,whichever of Mr Clarkson and Ms Payne came to trial first could be compelled to giveevidence against the other at the latter's trial and would not enjoy a privilege againstself-incrimination at that point.10 Thus, had Ms Payne been convicted beforeMr Clarkson stood trial, she would likely have been required to give evidence at histrial. The fact of her conviction would have assisted Mr Clarkson but that did notnecessarily mean that Mr Clarkson's account of not having assaulted her first wouldbe accepted. It was still possible that Ms Payne's account of Mr Clarkson's conduct10 Evidence Act 2006, s 73(2).(reflected in the summary of facts relating to the charge against him) would bepreferred. We agree with the Judge that Mr Clarkson was properly advised.[29] More importantly, Mr Clarkson's decision to plead guilty reflected a numberof factors, not just the legal advice he had received. In his affidavit filed in support ofthe appeal, he said that his decision to plead guilty was based on:(a) Mr Bourke's advice that if he went to trial he would need to wait untilMs Payne had her hearing as she would invoke the privilege againstself-incrimination;(b) Ms Payne herself could not risk a conviction because of her occupation;(c) the risk that he would not be believed at trial (Mr Clarkson claimed tohave been told that this was because the District Court took a dim viewof men charged with assault, though Mr Bourke said that he simplyidentified the risk of Ms Payne's account being preferred);(d) the cost of trial (Mr Bourke was paying his own and half of Ms Payne'scosts); and(e) the possibility of a discharge without conviction.[30] It is clear that the tactical advantage to Mr Clarkson of Ms Payne beingconvicted before him was only one of the several factors that influenced his decisionto plead guilty. Moreover, he knew before he went to court on 12 June 2018 thatMs Payne was intending to plead guilty. In these circumstances we do not accept thatMr Bourke had any obligation to revisit that decision, regardless of whetherhe appeared only for Mr Clarkson or both Mr Clarkson and Ms Payne for the purposesof entering the guilty pleas. Nor do we accept that there was a real risk thatthe outcome on 12 June 2018 would have been different had Mr Clarkson hadthe opportunity to reconsider his position. We therefore do not accept that there wasany breach of r 6.1.Result[31] The application for leave to appeal is granted.[32] The second appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent