JOHNSON v NEW ZEALAND POLICE [2018] NZHC 1790

JOHNSON v NEW ZEALAND POLICE [2018] NZHC 1790 [19 July 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-000108[2018] NZHC 1790BETWEEN MICHELLE ANNETTE JOHNSONAppellantAND NEW ZEALAND POLICERespondentHearing: 19 July 2018Appearances: E C Bulger for AppellantS Bicknell-Young for RespondentJudgment: 19 July 2018ORAL JUDGMENT OF VENNING JSolicitors/Counsel: E C Bulger, ChristchurchCrown Solicitor, Christchurch[1] On 23 September 2016 Michelle Johnson pleaded guilty to a charge ofdishonestly using a document. She was sentenced to 50 hours community work andordered to pay reparation of $730 by Judge J J Brandts-Giesen.1[2] Ms Johnson appeals against conviction. She says that the Judge was wrong todecline to grant an adjournment of her case and she felt pressured by the Judge andher then solicitor to enter the guilty plea.[3] The procedural history to this file does not read well. I make it clear I makeno criticism of present counsel, Ms Bulger, in relation to the file.[4] Ms Johnson was first before the District Court on the charge on 12 February2016. The matter was adjourned three times until on 23 September 2016 the not guiltyplea was vacated and the guilty plea entered. Ms Johnson then apparently failed tocomply with the sentence which led to an application to cancel the sentence ofcommunity work and a charge of failing to report to a probation officer. That chargewas filed on 2 June 2017 with Ms Johnson's first appearance scheduled for 5 July2017. She failed to appear at Court that day. She then appeared on 2 August 2017. Itwas only after that date, on 9 August 2017, that she filed the appeal. As noted thegrounds of appeal are:Fair hearing was prejudiced by Judge when he refused to grant an adjournmentfor compassionate reasons, resulting in me feeling pressured to vacate my notguilty plea and enter a guilty plea when I had a defence to the charge.[5] As the appeal was filed almost 11 months out of date Ms Johnson had to seekleave to pursue the appeal.[6] The application for leave was before this Court on two occasions before it wassubstantively dealt with. On the first occasion on 26 October 2017 Mander J noted:[1] This appeal was set down to be heard this morning. However, nosubmissions were filed in support of the appeal, and Ms Bulger had earlieradvised of difficulties in obtaining instructions from her client.[2] This morning Ms Bulger appeared, as did the appellant Ms Johnson.Ms Bulger advised that as a result of discussions she has recently had with Ms1 New Zealand Police v Johnson [2016] NZDC 20247.Johnson she is willing to continue to act. She sought the opportunity to havefurther discussions with Ms Johnson regarding the appeal.[7] Accordingly the Judge adjourned the matter to 7 December 2017. However,before 7 December Ms Bulger filed a further synopsis of submissions on 5 December2017. In that synopsis a further adjournment of the application was sought on thegrounds that Ms Johnson had indicated she wished to pursue two further grounds insupport of the appeal:(a) an adjournment should have been granted; and(b) secondly, and for the first time, an issue as to the advice she had beengiven by her lawyer at the time, who had failed to pursue herinstructions to pursue a discharge without conviction.[8] Ms Bulger noted in the memorandum it was not possible to advance the appealmatters as the former lawyer was overseas. The hearing on 7 December 2017 wasvacated and the matter further adjourned. The matter then came before Gendall J onthe application for leave on 13 March 2018. Following that hearing on 14 March 2018the Judge issued a decision noting that although somewhat by a fine margin he was ofthe view that interests of justice required leave be granted to enable the appeal toproceed out of time.2 The Judge acknowledged that that would lead to further delay,particularly as there would be a need to contact previous counsel.[9] The matter was then scheduled to be called before the Court on 24 May 2018at 10.00 am. At that time and in preparation for the hearing Ms Bulger filed a furthermemorandum on 22 May 2018 noting that the Public Defence Service required awaiver from Ms Johnson so that Ms Bulger could discuss the matter with formercounsel Mr Smedley. Although Ms Bulger had requested a waiver from Ms Johnsonit had not been received. An adjournment of a further two months was sought. Onthat basis the matter was adjourned on the papers to be called today.[10] At the outset of today's hearing Ms Bulger advised that she was still awaitingthe waiver from Ms Johnson. Although she had been unable to contact Mr Smedley2 Johnson v New Zealand Police [2018] NZHC 430.she was optimistic Mr Smedley might now be able to be contacted through a thirdparty. She had also experienced difficulties and issues in relation to legal aid.[11] Unfortunately I have to say that I consider the history of the file discloses thatMs Johnson apparently has little interest in pursuing this appeal. It is significant inmy view the appeal was only lodged 11 months after the sentence was imposed andonly after enforcement proceedings for failure to comply with the sentence wasinitiated. The appellant has failed to take any steps to provide the waiver sought bycounsel and has not provided Ms Bulger, the present appeal counsel, with properinstructions. On the face of it the appellant is abusing the process of the Court. Shehas failed to file an affidavit setting out her position in support of the appeal whichwould engage the need to discuss matters with Mr Smedley. As to the prospect of adischarge without conviction, given her previous record and the offending in this case,it frankly seems an unrealistic prospect.[12] The position has been reached in my view where s 338 of the CriminalProcedure Act 2011 is engaged. That permits an appeal court to dismiss an appeal ifthe appellant fails to comply with the timetable or other procedural orders fixed forthe appeal after giving notice to the appellant of that intention. I make the followingorders:(a) the appellant is to file and serve an affidavit in support of her appeal byFriday, 3 August 2018; and(b) the appellant is to provide a written waiver of privilege in relation toher dealings with her former counsel Mr Smedley by the same date,Friday, 3 August 2018.[13] Unless the appellant complies with both directions the appeal will be dismissedwith no further appearances required.[14] In the event the appellant complies with both orders the Registrar is to allocatethis file a further review on 9 August 2018 at 10.00 am.[15] In relation to legal aid I observe that Ms Bulger has taken a number of steps onthis file, including successfully obtaining leave for the appeal to be pursued. I ask theLegal Aid authorities to take into account the steps that Ms Bulger has taken on behalfof the appellant to date. If at all possible Ms Bulger should be compensated in anappropriate way for the steps she has taken for the appellant to date.__________________________Venning J