JOHNSON v NEW ZEALAND POLICE [2019] NZHC 695

JOHNSON v NEW ZEALAND POLICE [2019] NZHC 695 [4 April 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2017-409-108[2019] NZHC 695BETWEEN MICHELLE ANNETTE JOHNSONAppellantAND NEW ZEALAND POLICERespondentHearing: 4 April 2019Appearances: No appearance for AppellantC C White for RespondentJudgment: 4 April 2019JUDGMENT OF COOKE J[1] On 23 September 2016, Judge Brandts-Giesen convicted the appellant of usinga document for pecuniary advantage and sentenced her to 50 hours' community workand $730 reparation to be paid at $20 per week.1 The appellant had pleaded guilty tothe charge, but now appeals her conviction. Leave to appeal out of time was given on14 March 2018 "by a somewhat fine margin".Facts[2] The appellant used a fuel card belonging to a business named Concrete 4 U Ltd10 times between 2 April 2015 and 26 April 2015, obtaining $730 worth of Unleaded91 petrol. The appellant is not an employee of the company, and was not authorisedto use the card. The appellant claims she did not know it was stolen.1 New Zealand Police v Johnson [2016] NZDC 20247.[3] 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 for someupholstery work. The victim impact statement however shows that the appellant's sonis a former employee of Concrete 4 U Ltd. This issue was not explored in the DistrictCourt given the appellant's guilty plea.[4] This appeal was set down for hearing on 7 December 2017. It was adjourned,unopposed at that stage. It has subsequently had a protracted history. This includedthe Court granting leave to appeal out of time. On 13 December 2018 the appeal wasfurther adjourned until 28 February 2019 to enable the appellant to approach LegalServices to obtain substitute counsel to appear on the appeal. It was last before theCourt on 28 February 2019 when it was reported that legal aid had been declined. Afurther adjournment was sought. Gendall J granted the adjournment on the basis thatthe appeal was set down for hearing today. It was made clear that the appeal wouldproceed today.District Court decision[5] As the appellant pleaded guilty, there is no formal decision considering theappellant's guilt or otherwise. In sentencing, Judge Brandts-Giesen noted theappellant's prior convictions, but recognised that this was her first dishonesty offence.His Honour made reference to the poor health of the appellant's brother and deaths inher family, but did not consider that justified the offending in any way. The Judgeconvicted the appellant and sentenced her to 50 hours of community work and $730in reparation, to be paid at $20 per week.Principles on appeal[6] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.2 In this section, a trial includes a proceeding in which theappellant pleaded guilty.3Appellant's submissions[7] The appellant had pleaded guilty to the charge, but now appeals conviction.No written submissions were filed in advance of the hearing and she did not appearwhen the matter was called today.[8] The following grounds have previously been referred to by the appellant inwritten submissions:(a) The Judge erred in refusing to grant an adjournment for compassionatereasons;(b) This left the appellant feeling pressured to vacate her not guilty pleaand enter a guilty plea, despite having a possible defence to the charge;(c) The appellant says her lawyer told her that she was at risk of beingimprisoned if she did not change her plea to guilty; and(d) The appellant says her lawyer did not follow her instructions to pursuea discharge without conviction.[9] The first two grounds of appeal were advanced in the Notice of Appeal. Theappellant later instructed her then lawyer to pursue the second two.Respondent's submissions[10] Mr White appeared and asked that the appeal be dismissed. The respondenthas previously submitted that no miscarriage of justice has occurred to satisfy s 232.In R v Le Page the Court of Appeal has held that:42 Section 232(4).3 Section 232(5).4 R v Le Page [2005] 2 NZLR 845 (CA) at [16].it is only in exceptional circumstances that an appeal against conviction willbe entertained following entry of a plea of guilty Where the appellant fullyappreciated the merits of his position, and made an informed decision to pleadguilty, the conviction cannot be impugned.[11] In response to the first ground of appeal, the respondent has submitted that theDistrict Court Judge was entitled not to adjourn the matter based on the appellant'sbrother's ill health. Three months had passed since the Case Review Hearing, and theappellant had had ample time to consider her position and prepare a defence. There isnothing on file to indicate Judge Brandts-Giesen deprived the appellant of a fair trialor made any factual or legal errors in the exercise of his discretion not to adjourn thematter.5[12] In response to the second ground of appeal, the respondent has submitted thatthere was no adverse pressure on the appellant to plead guilty. Had the appellant hada defence to the charge, as she states on the Notice of Appeal, the matter could havebeen defended.Analysis[13] In the circumstances I will not simply dismiss the appeal for want ofprosecution. I have considered the file to ensure there has been no miscarriage ofjustice.[14] As the Court of Appeal outlined in R v Le Page, it is only in exceptionalcircumstances that an appeal against conviction will be entertained following the entryof a guilty plea.6 The Court of Appeal described the relevant circumstances where thismight arise in the following way:[17] A miscarriage of justice will be indicated in at least three broadsituations which are identified and discussed in Adams on Criminal Law atpara CA385.21. The first is where the appellant did not appreciate the natureof, or did not intend to plead guilty to, a particular charge. These are situationswhere the plea is shown to be vitiated by genuine misunderstanding ormistake. Where an accused is represented by counsel at the time a plea isentered, it may be difficult indeed to establish a vitiating element. It is notsuggested the present case is in this category.5 Mohammed v R [2016] NZCA 254 at [17]-[18].6 R v Le Page, above n 4.[18] A further category is where on the admitted facts the appellant couldnot in law have been convicted of the offence charged. Examples are where acharge required special leave and such was not obtained, a charge was out oftime or where as a matter of law the facts are insufficient to establish anessential ingredient of the offence. [19] The third category is where it can be shown that the plea was inducedby a ruling which embodied a wrong decision on a question of law. Examples are where a trial Judge wrongly concludes that there is no evidencesufficient to justify a defence being left to the jury (say provocation or self-defence) leaving the accused with no option but to plead guilty. In such cases,which will admittedly be rare, this Court would intervene to cure a miscarriageof justice which plainly flowed from the erroneous ruling. [15] The categories are not necessarily closed, and there is potentially a fourthcategory. Illegitimate pressure to plead guilty when it arises from pressure from thepolice or prosecutors, may also give rise to an arguable case that the guilty plea hasbeen improperly obtained such that the plea should be vacated, and the matter remittedfor trial.7[16] None of the circumstances identified by these authorities arise in the presentcase. It cannot be said that the appellant did not intend to plead guilty, or did notunderstand the nature of the charge to which the guilty plea was entered. The appellanthas not demonstrated that on the admitted facts the appellant could not in law beconvicted. Neither did the appellant enter a guilty plea as a consequence on a wrongdecision on the Court of matter of law. Finally there was no improper pressure thatwarrants the conviction on the guilty plea to be set aside as a miscarriage of justice.Conclusion[17] For these reasons, the appeal is dismissed.Cooke J7 See Marteley v Legal Services Commissioner [2015] NZSC 127, [2016] 1 NZLR 633 at [64]–[67].In that case it was alleged that the police stated that the defendant's partner would not face a chargeof murder if he pleaded guilty.