JOHNSON v NZ POLICE [2018] NZHC 430

JOHNSON v NZ POLICE [2018] NZHC 430 [14 March 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-000108[2018] NZHC 430BETWEEN MICHELLE ANNETTE JOHNSONAppellantAND NEW ZEALAND POLICERespondentHearing: 13 March 2018Appearances: E C Bulger for AppellantS J Mallett for RespondentJudgment: 14 March 2018JUDGMENT OF GENDALL JIntroduction[1] On 23 September 2016 Judge Brandts-Giesen in the District Court atChristchurch convicted the appellant on one charge of using a document for pecuniaryadvantage and sentenced her to 50 hours' community work and $730 reparation to bepaid at the rate of $20 per week.1 The appellant had pleaded guilty to the charge.[2] Now, however, she appeals conviction on a number of grounds. Theseessentially relate to the conduct of her lawyer in the District Court and the pressureshe says she felt to enter a guilty plea. In the appeal the appellant maintains, too, thatJudge Brandts-Giesen erred in refusing to grant her an adjournment of her hearing atthe time which she said was necessary on a number of grounds, including forcompassionate reasons. This, the appellant, alleges left her feeling pressured into1 NZ Police v Johnson [2016] NZDC 20247.vacating her not guilty plea and pleading guilty despite the fact she says she had apossible defence to the charge.[3] The present appeal was filed some 10 months out of time. Section 231(2) ofthe Criminal Procedure Act 2011 provides:231 How to commence first appeal(2) A notice of appeal or notice of application for leave to appealmust be filed within 20 working days after the date ofsentence for the conviction appealed against.[4] The appeal here was filed on 9 August 2017. This was substantially out oftime, as I have noted, amounting to some 10 months late. The 20 working day periodunder s 231(2) expired on 21 October 2016.[5] Initially, here, Ms Bulger for the appellant sought leave of the Court to grantan extension of time for bringing this appeal.[6] In doing so Ms Bulger indicated that a major plank of this appeal relates to theappellant's contentions relating to trial counsel error. The appellant contends that hercounsel at the time, Mr Smedley of the Public Defence Service, provided inadequateadvice to her, did not follow her instructions to pursue a discharge without convictionand pressured her improperly throughout to enter a guilty plea.[7] Ms Bulger confirms that she has made considerable efforts to make contactwith Mr Smedley to discuss with him the allegations the appellant makes. It seemsMr Smedley some time ago resigned from the Public Defence Service and Ms Bulgerconfirms he is now working and living in London. She says that, as yet, she has beenunable to contact him in London and, if this Court grants leave for the appeal tocontinue, she will need some time for this contact to be made. Ms Bulger notes thatthis will also entail the Public Defence Service file being provided to Mr Smedley soshe can hear his views on matters the appellant raises and then for arrangements to bemade for him to give evidence from London by AVL if this appeal is to continue.[8] On all of this, Ms Bulger contends that the interests of justice in this case andthe need for the appellant's appeal to be properly heard and considered outweigh anyfurther delays which may occur in this matter and the costs involved in taking AVLevidence from London.[9] Matters therefore proceeded before me yesterday on the basis that I was toconsider as a preliminary matter the appellant's application for leave to bring thisappeal out of time.[10] I now do so, noting that this application is opposed by the respondent.Factual background[11] Some brief background facts relating to the appellant's alleged offending areuseful here.[12] Between 2 April 2015 and 26 April 2015 the appellant used a fuel cardbelonging to a business named Concrete4U Limited 10 times, obtaining $730 worthof petrol. The appellant is not an employee of the company and was not authorised touse the card. The appellant claims she did not know the card was unavailable to heror stolen.[13] It is somewhat unclear how the appellant came to have the fuel card in herpossession. On her account, a friend named "Dylan" gave it to her as payment forsome upholstery work. The Victim Impact Statement, however, shows that theappellant's son is a former employee of Concrete4U Limited. This issue, however,was not further explored in the District Court, presumably because of the appellant'sguilty plea. It was also not a matter raised in the appellant's submissions.[14] As I have noted above, at the District Court hearing Mr Smedley of the PublicDefence Service appeared on behalf of the appellant and entered her guilty plea.Appeal filed out of time?[15] I repeat that, this appeal was filed very late, some 10 months out of time.[16] The appeal in R v Slavich2 discussed the principles which apply whenconsidering whether to grant an extension of time. In doing so the Court of Appealconcluded at [14]:In the simplest terms, extension of time applications will routinely reduce totwo heads. Firstly, why was the appeal filed late? Secondly, what, if anymerit, does the prospective appeal appear to have?[17] It is clear too that the onus is on the appellant to provide sufficient informationfor the Court to determine whether it is in the interests of justice for leave to begranted.3[18] The appellant submits in the present case that there is good reason why thisappeal had been filed late and that in any event, when matters unfold in the future, itwill be found that this appeal has merit. Accordingly, she maintains that the interestsof justice require that she must be entitled to advance this appeal and have mattersproperly considered.[19] The respondent's position is that this is not the case and the appeal should bedismissed at this point.Delay[20] Turning first to consider the delay in filing this appeal, the 10 month period isobviously significant.[21] Before me, Ms Bulger indicated that from her perusal of the documentation itseems that Mr Smedley may have assisted the appellant in completing her Notice ofAppeal soon after her conviction. It is not clear, however, why this appeal was notfiled at the time.[22] It appears then that another counsel, Mr Watts, became involved. But, again,why the Notice of Appeal was not filed later is also unclear.2 R v Slavich [2008] NZCA 116.3 Above n 2, at [13].[23] The appellant's current counsel, Ms Bulger, then became involved andconfirmed filing of the appeal.[24] Before me, Ms Bulger contended that throughout it was not apparent to theappellant that her appeal had not been filed. Over this 10 month period of delay shehad been dealing effectively as an unrepresented appellant, initially from time to timewith some help from two separate counsel, before Ms Bulger became involved.Ms Bulger understands that the appellant believed throughout that her appeal had beenfiled in time.[25] On this matter, although the 10 month delay in filing this appeal was a lengthyperiod, in all the circumstances here, and, given the appellant's explanation and herinsistence that it was her understanding that the appeal had been filed by counsel intime, to some degree the reason why this appeal was filed so late has been addressed.In these circumstances, I am prepared to give the appellant some benefit of the doubthere.Merit[26] Turning now to the issue of what, if any, merit does this prospective appealhave, before me Ms Bulger made clear that this appeal was of some moment to theappellant who strongly contests the conviction which has been entered against her.According to Ms Bulger, the appellant maintains she has a proper defence to the chargeand this should have been before the District Court if she had been allowed to run it.Ms Bulger confirms, however, that at this stage she personally has been unable to getto the bottom of all this. To do so, Ms Bulger says she will need an opportunity todiscuss matters with counsel who appeared at the time, Mr Smedley. And, thisrequirement to speak with Mr Smedley would take a short while given, as I have noted,that he works and lives in London now.[27] Overall, Ms Bulger contends that it is in the interests of justice for leave to begranted here and for this appeal to be adjourned today. This will give her anopportunity to contact Mr Smedley to test the advice which the appellant says shereceived in September 2016 and to discuss the way matters unfolded in the DistrictCourt on the day. Ms Bulger has properly acknowledged to the Court that there mayturn out to be contrasting views between Mr Smedley and the appellant as to what mayhave happened at the time, but this needs to be investigated further.[28] In response, Mr Mallett for the respondent contends that this appeal has nomerit and that no grounds exist here for establishing that a miscarriage of justice mayhave occurred in this case. He suggests there is nothing on the District Court file tosuggest that Judge Brandts-Giesen made an error in principle, considered irrelevantmatters, or failed to take into account relevant matters. He notes that, indeed, the onlyrelevant matter appears to have been the fact that the appellant's brother (who it ispresumed the appellant might have wished to call as a witness) at the time was ill, afact of which Judge Brandts-Giesen was well aware when refusing the adjournmentthe appellant had sought.[29] The respondent maintains that the appellant would have fully appreciated themerits of her position in pleading guilty to the charge she faced, and would have madean informed decision as to this plea.[30] In response, Ms Bulger noted, however, that she was unable to make anycomment at this point. The contentions advanced for the respondent, she said werereally unable to be properly tested unless she, as counsel for the appellant, at least hadsome opportunity to make contact with previous counsel, Mr Smedley. If appropriatethen, the appeal could be advanced to hearing.[31] It is true that a consequence of granting leave for this appeal to be brought outof time will involve further delay and the possibility of additional cost, particularly ifthe appeal hearing proceeds and AVL evidence from London is required. And, givenall the circumstances I have outlined above, it is very difficult at this point to commenton the merits of this appeal. Notwithstanding this, the overall interests of justice, inmy view, suggest that the appellant should be allowed to advance her appeal here. Itis appropriate, in my view, that some additional time should be allowed here for,amongst other things, the advice the appellant received to be explored and tested. Thisis also particularly the case given that the appellant says, through a combination ofcircumstances involving changed counsel and the like, she was under the clearimpression that the appeal had been filed in time.Result[32] Although it is by a somewhat fine margin, I am of the view that the interests ofjustice here require that leave should be granted to this appeal proceeding out of time.[33] An order is made granting leave accordingly.[34] The Registrar is directed to list this appeal for call in three weeks' time to checkprogress....................................................Gendall JSolicitors:Elizabeth Bulger, Barrister, ChristchurchRaymond Donnelly & Co, Christchurch