RITCHIE v POLICE [2022] NZHC 494

RITCHIE v POLICE [2022] NZHC 494 [18 March 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2021-412-000047[2022] NZHC 494BETWEEN NICOLE RACHAEL RITCHIEAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2022Appearances: N M Laws for the AppellantR P Bates for the RespondentJudgment: 18 March 2022JUDGMENT OF NATION JIntroduction[1] The appellant (Ms Ritchie) was one of two people in a vehicle that collidedwith a power pole. She pleaded guilty to an excess breath alcohol charge and a chargeof careless use. She subsequently sought, but was refused, leave to withdraw her guiltypleas. She was convicted and sentenced. She appeals her convictions.Background[2] Ms Ritchie was 25. She borrowed her uncle's vehicle on a day she wassocialising with friends and drinking heavily. On 26 May 2019 around 11.20 pm, thevehicle collided with a power pole located on the footpath on Kenmure Road, Dunedindamaging the mains cable and power pole. Ms Ritchie and another person (Ms H) hadbeen in the vehicle. They decamped from the scene but were located by the Police ashort time later.[3] Ms Ritchie was charged with careless use and driving with excess breathalcohol of 876 micrograms of alcohol per litre of breath. She first appeared in Courton those charges on 13 June 2019. She denied she was the driver and pleaded notguilty.[4] On 19 July 2019 with the Duty Solicitor, Ms Ritchie entered pleas of not guiltyand was remanded for a Judge-alone trial.[5] On 30 August 2019, Ms Ritchie appeared with counsel, Ms Turner. On asecond appearance of 20 September 2019, the Judge noted that a case managementmemorandum had been filed. In that memorandum, counsel indicated the only issuewas as to whether Ms Ritchie was the driver. The Court noted that a not guilty pleawas maintained.[6] Ms Ritchie was remanded to a nominal date for a Judge-alone trial. COVID-19 restrictions led to further remands.[7] On 8 May 2020, after being given a sentence indication, Ms Ritchie pleadedguilty to both charges. She was remanded for sentencing and for a reparation reportto be obtained. The Court did not enter a conviction at that time because her counsel,Ms Turner, indicated that an application was to be made for a discharge withoutconviction.[8] On 18 June 2020, Ms Turner advised the Court that Ms Ritchie wished tovacate her guilty pleas. An application for leave to withdraw her guilty pleas wasmade through new counsel on 24 June 2020.[9] The application was refused in a decision of Judge Large of 17 August 2020.Fundamental to the Judge's decision was his noting that an affidavit sworn by MsTurner was very limited in its scope, and no affidavit had been sworn by Ms Ritchieto provide an evidential basis to support the grounds on which she was arguing.[10] Ms Ritchie filed a second application.[11] In a minute of 24 February 2021, Judge Turner agreed to rehear the applicationon the basis further evidence would be provided by Ms Ritchie and Ms Turner. Henoted that privilege appeared to have been waived regarding Ms Turner.[12] There was a hearing of the application before Judge Turner on 17 June and 10September 2021. By then, both Ms Ritchie and Ms Turner had sworn two affidavits.They both gave evidence at the hearing. Other documents, including witnessstatements and the summary of facts, were before the Judge, having been annexed toMs Turner's first affidavit.[13] In a judgment of 13 September 2021, Judge Turner declined the application.1[14] On 2 November 2021, Ms Ritchie was convicted on the excess breath alcoholcharge, sentenced to 100 hours' community work, and disqualified from driving forseven months. The Judge also made a zero alcohol licence order and ordered her topay reparation of $2,000. On the careless use charge, she was convicted anddischarged. Ms Ritchie appeals those convictions.Principles on appeal[15] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmust allow an appeal if satisfied that the trial judge "erred in his or her assessment ofthe evidence to such an extent that a miscarriage of justice has occurred" or that "amiscarriage of justice has occurred for any reason". Miscarriage of justice is definedin s 232(4) as follows:(4) In subsection (2), miscarriage of justice means any error, irregularity, oroccurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[16] A trial includes a proceeding in which the appellant pleaded guilty.21 Police v Ritchie [2021] NZDC 18479.2 Criminal Procedure Act 2011, s 232(5).[17] The relevant principles for an appeal against conviction following a guilty pleaare well established. As stated by the Court of Appeal in R v Le Page, an appeal againstconviction will only be allowed in exceptional circumstances following the entry of aguilty plea.3 What constitutes an "exceptional circumstance" was set out by the Courtof Appeal in Whichman v R as follows:4[35] Three broad categories of relevant exceptional circumstance wereidentified by this Court in R v Le Page to which a fourth was added inMerrilees v R:5(a) where the appellant did not appreciate the nature of, or did notintend to plead guilty to, a particular charge;(b) where on the admitted facts the appellant could not in law havebeen convicted of the offence charged;(c) where the plea was induced by a ruling which embodied a wrongdecision on a question of law; and(d) where trial counsel erred in advising as to the non-availability ofcertain defences or potential outcomes, or where counsel wronglyinduces a decision to plead guilty under a mistaken belief orassumption that no tenable defence existed or could be advanced.[36] The overriding consideration whether the plea has produced amiscarriage of justice. This protean juristic concept is given modest definitionin s 232(4) of the Criminal Justice Act. It is not to be thrust into an over-defined straightjacket. The categories of exceptional circumstance justifyinga vacation of plea after entry of a guilty plea are neither closed nor complete.The Supreme Court recognised that reality in Wilson v R.6[18] In this instance, Ms Ritchie's guilty pleas were entered before sentence.Section 115(1) of the Criminal Procedure Act states:115 Plea of guilty may be withdrawn by leave of court(1) A plea of guilty may, by leave of the court, be withdrawn at any timebefore the defendant has been sentenced or otherwise dealt with.(2) The court must grant leave to a defendant to withdraw a plea of guiltyreferred to in section 116(1) if—3 R v Le Page [2005] 2 NZLR 845 (CA).4 Whichman v R [2018] NZCA 519.5 R v Le Page, above n 3; and Merrilees v R [2009] NZCA 59 at [35].6 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104].(a) the court, presided over by the judicial officer that gave the relevantsentence indication, indicates that the circumstances described insection 116(2) apply and it proposes to impose a sentence of adifferent type or types, or of the same type or types but a greaterquantum, than that specified in the sentence indication; or(b) the court, presided over by a judicial officer other than the one thatgave the relevant sentence indication, indicates that it proposes toimpose a sentence of a different type or types, or of the same type ortypes but a greater quantum, than that specified in the sentenceindication.7[19] As stated in Adams on Criminal Law:8The decision to allow a guilty plea to be withdrawn is a discretionary one. Thecourt should only grant leave if it is in the interests of justice to do so. Indetermining the interests of justice, the court should have regard to theinterests of the defendant as well as victims and witnesses.[20] In Popata v R, the Court of Appeal referred, with approval, to statements fromthe decision of R v Kihi:9[17] Where application is made in the High Court to withdraw a guilty pleabefore sentence, the touchstone is whether the interests of justice require leaveto be granted: Ripia at 150 and R v Turrall [1968] NZLR 312, 313. Althoughthe discretion is not lightly exercised, several particular grounds (not intendedto be exhaustive) have been recognised at least since R v Le Comte [1952]NZLR 564 as justifying the grant of leave:a) Where the accused has "not really" pleaded guilty;b) Where in entering the plea the accused acted upon a materialmistake;c) Where the proceedings were defective or irregular;d) Where there is a clear defence to the charge.[18] The onus of making out the relevant grounds rests upon the accused butwhere the accused has merely repented of the plea, without more, theapplication will not be granted.7 Ms Ritchie had entered pleas of guilty to the two charges she had faced after a sentence indicationwhere she had been told she would be disqualified from driving for nine months, fined and wouldbe required to pay reparation. She was ultimately sentenced to 100 hours' community work anddisqualified from driving for seven months. Following the hearing of the appeal, Ms Ritchie'scounsel acknowledged that while a sentence of community work is more restrictive than a fine,she had sought to be dealt with by way of community work. She accepts that there was not asignificant disparity between the sentence ultimately imposed and that referred to in the sentenceindication. Ms Ritchie's counsel accordingly accepted that s 115(2) was irrelevant to the appeal.8 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters)at [CPA115.02] (citations omitted).9 Popata v R [2021] NZCA 222 at [17], citing R v Kihi CA395/03, 19 April 2004.[21] In Popata, the District Court Judge had referred to the need for exceptionalcircumstances. The Court of Appeal left for determination in another case whetherthat was a principle to be considered on a s 115 application. The Court however notedthat, relevant to this case, Mr Popata had accepted the Judge's findings that:10(a) he had been made fully aware of the case against him in relation to the trial issue,which was identification;(b) he appreciated and understood the nature of the charge;(c) he had been made aware of possible defences;(d) he understood counsel's advice that the guilty plea would be admissible againsthim at trial on the first and second charges, and so understood the implicationsof his guilty plea; and(e) he nonetheless insisted on pleading because he wanted the benefits of an earlyguilty plea.[22] In his submissions, Mr Laws said, in this case, it is not necessary for the Courtto consider whether the test for setting aside a guilty plea under s 115 of the CriminalProcedure Act was different to that under s 232. He submitted:[T]his case does not require the Court to answer that question, because it wasin the interests of justice for [Ms Ritchie] to be allowed to change her pleas,and the failure to vacate her plea has resulted in a miscarriage of justice.[23] I approach matters on the basis set out in Adams and by the Court of Appeal inPopata v R as referred to earlier but also on the basis it would not be in the interestsof justice for Ms Ritchie's convictions to stand if the failure to allow her to vacate herpleas has resulted in a miscarriage of justice.11[24] Although a decision on an application under s 115(1) is discretionary, I havenot dealt with the matter as if it has to be considered within the constraints thatnormally apply to an appeal against a decision made in the exercise of a discretion. Iconsider s 232 of the Criminal Procedure Act 2011 also applies to this appeal so that,10 Popata v R, above n 9, at [16].11 At [20]−[21].in terms of s 232, I must allow the appeal if satisfied that a miscarriage of justiceresulted from the refusal to allow Ms Ritchie to withdraw her guilty pleas.Decision of Judge Turner[25] In determining whether there would be a miscarriage of justice or whether itwould otherwise not be in the interests of justice for the convictions to be upheld, it isthe decision of Judge Turner which is at issue on appeal. I discuss matters accordingly.[26] Judge Turner considered the issue before him was whether Ms Ritchie shouldbe permitted to vacate her guilty pleas on the grounds that she had a defence to thecharges, she was given inadequate legal advice by counsel which resulted in herpleading guilty, or that it was in the interest of justice that leave be granted.[27] The Judge summarised the applicable law under s 115 of the CriminalProcedure Act. He then summarised the Police case and the history of proceedings.[28] As to whether Ms Ritchie had a defence to the charges, the Judge consideredevidence from Ms Ritchie's affidavit and the evidence given by both Ms Ritchie andMs Turner before him in court. After canvassing this evidence, the Judge consideredthere was a strong circumstantial case pointing to Ms Ritchie being the driver at thetime of the collision with the power pole. This was based on independent witnessstatements, the police dog tracking from the driver's door to Ms Ritchie, and thediscovery of blood on the driver's seat and exterior of the driver's door (with Policeobserving that Ms Ritchie had blood on her clothes and hands, whereas the passengerhad no visible injuries or signs of blood). The Judge also noted Ms Ritchie'sconflicting versions of events and potential issues in terms of reconciling these withthe evidence. He determined that Ms Ritchie did not have a clear defence.[29] The Judge then considered whether inadequate advice was given to Ms Ritchieby her counsel at the time. He first rejected the proposition that Ms Turner had notadvised Ms Ritchie that the burden of proof was on the prosecution, as both Ms Turnerand Ms Ritchie had given evidence that Ms Turner had told Ms Ritchie the Police hadto prove that she was the driver. Secondly, the Judge found that Ms Turner did not"brush off" potential inconsistencies in the prosecution case, but rather reflected onthese matters and discussed them in the context of all the evidence, as would beexpected from counsel. Lastly, the Judge considered whether undue pressure had beenput on Ms Ritchie to plead guilty. He noted there was no judicial pressure despite thebusy court day. On the evidence before him, he referred to Ms Turner's 12 years ofpost-admission experience and the police case. The Judge found no pressure had beenexerted on Ms Ritchie by counsel.Submissions[30] For Ms Ritchie, Mr Laws submitted that Judge Turner erred by applying thewrong legal test. He submitted the Judge approached the issue of whether Ms Ritchiehad a defence by considering whether she could prove her innocence instead ofassessing whether there was a tenable defence.[31] Mr Laws submitted that the Judge's finding, that there was a strongcircumstantial case against Ms Ritchie, was not supported by any evidence.[32] In relation to trial counsel error, Mr Laws submitted the standard of the advicethat the Court found was given by counsel was overstated and contrary to the evidence.This submission was made on the basis that counsel:(a) did not provide advice about admissibility of evidence;(b) did not provide written advice to Ms Ritchie;(c) did not take written instructions from Ms Ritchie;(d) kept only some brief file notes;(e) erred in advising Ms Ritchie that the Police had a strong case and that theevidence against her was "overwhelming";(f) did not advise Ms Ritchie that identity could not be proven to the requiredstandard;(g) did not provide advice about the burden of proof;(h) did not provide adequate advice about making an application under s 106of the Sentencing Act, and the role of pleas if such an application fails; and(i) did not advise Ms Ritchie about the difficulties in changing guilty pleasonce they are entered.[33] Lastly, Mr Laws submitted it is the Court's role to ensure that justice is done.He contended that upholding the convictions would perpetuate a miscarriage of justiceas there was no evidence identifying Ms Ritchie as the driver.[34] I refer to his submissions in more detail in the analysis that follows.[35] Mr Laws submitted that, following the setting aside of the convictions, thisCourt may remit the matter back to the District Court for a hearing of the charges orform a view that the case against Ms Ritchie is so incapable of proof that an acquittalshould be entered on both charges.[36] The submissions of Mr Bates for the respondent are reflected in the analysisthat now follows.Analysis[37] The Police case was that, around 11.00 pm on 26 May 2019, the Police receiveda complaint from the public about a collision between a white van and a stationaryvehicle on Henderson Street, Dunedin. The Police were advised that the van hadbacked into a car and had driven off. Both the van and the car it collided with weredamaged. The Police were advised that the rear bumper of the van was hanging off asthe vehicle left the scene. The informant, a Police witness, believed there were twofemales in the van. Shortly afterwards, and only a few hundred metres away inKenmure Road, a white van was involved in another collision. The vehicle hadtravelled backwards down Kenmure Road and collided with a power pole.1212 After Ms Ritchie's first application for leave to withdraw her guilty pleas had been declined, MsRitchie's counsel indicated to the Court that Ms Ritchie wanted to have a disputed facts hearingas to Ms Ritchie's involvement in the van's collision with a parked vehicle on Henderson Street.Ultimately, sentencing proceeded with a deletion of those parts of the summary of facts whichreferred to the collision on Henderson Street. Ms Ritchie had pleaded guilty to the charge ofcareless use. She was ultimately convicted and discharged on that charge but that offence related[38] A resident, Police witness L, heard the crash with the power pole whichresulted in an immediate loss of power. He went outside to investigate and saw afemale move from the passenger side of the van towards the driver's side, asking ifthe driver was alright. He then saw the driver's door open and a small person hebelieved to be a female fall out of the car onto the ground. He asked this person ifthey were alright but received no answer. About 30 seconds later, the person on theground got up and both females ran off.[39] Another resident, Police witness M, also heard the crash, prompting him to getout of bed and look out a window. He saw one person, wearing a black hoodie, byPitcairn Street. He went to the intersection of Kenmure Road and Pitcairn Street andnoted that the person had gone down Pitcairn Street. He followed and saw a secondperson who was smaller in build. He believed this person was a female because of herbuild. This person was also wearing a hoodie which had something on the back of it.He observed the person running, weaving to the left and the right. This witness didnot pursue these people but returned to the van to see if he could assist.[40] The Police had been called. One of the attending Police officers was ConstableSaunders, a Police dog handler. On his way to the scene, Constable Saunders stoppedon Stone Street. There, he encountered Ms Ritchie and another female (who, in anaffidavit supporting her application, Ms Ritchie said had been the driver). The Policedog handler spoke with Ms Ritchie and noted she had blood on her hands and clothing.The dog handler left both women there and travelled to Kenmure Road. His dog thentracked from the van driver's door, along Kenmure Road, down Pitcairn Street,through a residential property, onto Stone Street and directly up to Ms Ritchie.[41] Constable Lang dealt with Ms Ritchie at Stone Street. He noted she had smallcuts to her hands, although they were no longer bleeding when he spoke to her.to her driving a vehicle at the time it collided with a power pole on Kenmure Road. It is notsuggested that the Police willingness to accept that amendment to the summary of facts was amatter which this Court needed to consider in deciding whether there had been a miscarriage ofjustice in relation to Ms Ritchie's conviction on the two charges relating to her driving a vehicleon Kenmure Road.[42] Constable Davidson spoke with the other woman Ms H at Stone Street. Shetold him she was an occupant in the van. He saw no signs of blood on her after lookingspecifically for this because he was aware there was blood at the scene. She appearedto be uninjured. She was required to undergo alcohol testing procedures. She toldPolice that the van had been driven by a male.[43] Two Constables attended and took photographs of the scene at HendersonStreet and Kenmure Road. At Kenmure Road, blood was found on the driver's seat ofthe van, on the outside of the driver's door, and possibly on the road surface.[44] Ms Ritchie was arrested at Stone Street for obstruction. This related to herbehaviour in communicating with or attempting to communicate with Ms H.[45] Ms Ritchie was required to undergo breath testing procedures. A breathscreening test at Kenmure Road showed a result over 400 micrograms of alcohol perlitre of breath. She agreed to accompany the Police back to the station for an evidentialbreath test. It showed an alcohol level of 876 micrograms of alcohol per litre of breath.After that, she was warned for obstruction, summonsed to appear in Court on 13 June2019 and forbidden to drive.[46] According to the statements from Police officers, throughout her interactionwith the Police, both at the scene and at the Police station, Ms Ritchie made nocomment about who was driving the van. She simply repeated her name, address anddate of birth.[47] The Judge noted there were obvious discrepancies between Ms Ritchie'sversion of events in her affidavit and evidence, and Ms Turner's evidence as to theinstructions Ms Ritchie gave Ms Turner at an early stage in the proceedings.[48] The Judge noted that, although best practice would have involved thecompletion of full file notes, signed written instructions, and perhaps a letter of adviceto the applicant, he did not consider the absence of such detailed written informationdetracted from Ms Turner's reliability or credibility. He said Ms Turner madeconcessions where they were due and, overall, appeared to have a very goodrecollection of her dealings with Ms Ritchie. Although the events had occurred inMay 2019 and Ms Turner had ceased acting for the applicant in June 2020, the Judgeaccepted Ms Turner's evidence that the matter had consciously been on her mind since.This led him to accept her evidence where it conflicted with Ms Ritchie's.[49] Having read the affidavits, the documents before the Judge through thedisclosure that had been made, and the transcript of evidence, I agree with theassessment the Judge made as to the credibility of both Ms Turner and Ms Ritchie.[50] There were significant inconsistencies in Ms Ritchie's evidence, in heraffidavits and what emerged during the hearing. In her second affidavit, she said at notime was she advised that the Police had to prove the case beyond reasonable doubtand that she only had to raise doubt to be found not guilty.[51] The Judge asked questions as to whether there had been any discussion withMs Turner as to the strength of the case and Ms Ritchie's argument. Ms Ritchie saidthere had not been but then said Ms Turner had told her at one point that "it might behard for somebody to identify you". She said Ms Turner told her that the Police hadto prove the case against her.[52] Ms Ritchie referred to them discussing the potential difficulties in the Policeidentifying her as the driver because of similarities in "height, weight, everything likethat, it was dark".[53] In response to questions from the Judge, Ms Ritchie said she and Ms Turnerhad discussed her giving evidence. They discussed how she would need to giveevidence as to who the driver was and Ms Ritchie had said she was not prepared tosay it was Ms H. Ms Ritchie and Ms Turner had also discussed the possibility of MsH being called as a witness and the possibility that Ms H would give evidence that MsRitchie was the driver.[54] Ms Ritchie also said in evidence that Ms Turner had talked to her about thepossibility of her facing a big fine or a longer period of disqualification if she defendedthe charge. Ms Ritchie said Ms Turner had said that was a possibility, but anotherpossibility was that she would be found not guilty and it would all be over with.[55] In her first affidavit, Ms Ritchie referred to the Police notes that indicated herhands were bleeding. In her affidavit, Ms Ritchie said she did not have any blood orcuts on her hands when she was stopped by the Police. Ms Turner referred to theirdiscussing blood found in or around the driver's seat and it being identified as MsRitchie's. Ms Turner said Mr Ritchie did not definitively indicate it was hers but "[w]einferred that it was likely to be hers cos it was her vehicle".[56] The Judge referred to Mr Ritchie's differing accounts of what happened. Thefirst contained in her first affidavit and in her evidence in Court involved her, as thepassenger, having an argument with Ms H who she said was driving, with Ms Ritchielooking out the passenger window at the time, then turning to look at the driver whenthere was no response to a comment, only to discover there was no one in the driver'sseat of the van which was moving backwards. Ms Ritchie then got into the driver'sseat to reach for the gear lever to stop the van and discovered the top of the gear leverwas missing. Having heard the crash, Ms Ritchie said she may have been knockedunconscious because her next recollection was of being outside the van with the otherwoman standing over her and yelling "we need to leave". The Judge referred to MsH's denials to the Police of being the driver but also of Ms Ritchie's narrative lackingplausibility:13 involving, as it must, the van travelling uphill on Kenmure Road and,somehow and at some time the driver getting out of the van (either while itwas moving or not) without [Ms Ritchie's] knowledge and with part of thegear lever.[57] The Judge noted this version of events could not be reconciled with theevidence of the witness who saw a female come from the passenger side of the vanasking if the driver was okay and subsequently the driver's door opening and the driverfalling to the ground.13 Police v Ritchie, above n 1, at [50].[58] The Judge also accepted as accurate and reliable Ms Turner's evidence as towhat Ms Ritchie had told her, that:14 on Kenmure Road, during the course of the argument, [Ms H] stopped thevan and told [Ms Ritchie] "you deal with this then" before putting the vehiclein reverse and accelerating backwards into the power pole and remaining inthe driver's seat until after impact.At that point, [Ms H] said "get out of the vehicle and run" and so [Ms Ritchie]did.[59] Judge Turner accepted Ms Turner's evidence that Ms Ritchie told her that atno time was she sitting in the driver's seat before the van struck the power pole. TheJudge noted this narrative could not be reconciled with her affidavit and evidence inCourt.[60] The Judge also took into account, in assessing Ms Ritchie's credibility andwhether she had a tenable or seriously arguable defence, that there had been aconsiderable delay before Ms Ritchie revealed the version of events she sought to relyon.15[61] In response to questions from the Judge, Ms Turner said Ms Ritchie told hershe had told the Police she was not driving on that night but Ms Turner acknowledgedthere was no indication of that in the documents disclosed by the Police.[62] Judge Turner said:16[47] In my assessment there is a strong circumstantial case pointing to theapplicant being the driver at the time of the collision with the power pole. Afemale was seen by an independent witness to fall out of the driver's door,face first, onto the ground. Another female, who it appeared had approachedfrom the passenger side of the van was asking if this person was all right. Thefemale on the ground got up and ran down Kenmure Road, along PitcairnStreet. Two witnesses observed that. A police dog tracked from the driver'sdoor, along Kenmure Road, down Pitcairn Street and into Stone Street anddirectly to the applicant. What appears to be blood was found inside thevehicle on the driver's seat and outside the vehicle on the driver's door andpotentially on the ground. The applicant was observed to have blood on herclothes and hands and showed signs of injury. These were observed by twopolice officers. The other person with her on Stone Street, [Ms H], had no14 At [52].15 At [54].16 Police v Ritchie, above n 1.visible injuries nor signs of blood. Detective Davidson had specifically lookedfor such signs as he was aware that blood had been found at the scene.[48] Although the applicant was not required to give a statement to thepolice, either at Stone Street or subsequently at the police station either whenbreath testing procedures were undertaken or when she was charged withdriving with an excess breath alcohol level and careless driving, at no time didshe assert that she was not the driver or that someone else was. Plainly theapplicant appreciated she was in serious trouble. In such circumstances itmight have been expected that she would say something to police.[49] Overall, I consider the prosecution evidence to be strong and capableof proving the elements of the charges beyond reasonable doubt.[63] For Ms Ritchie, Mr Laws suggested the witness who said he saw a female fallout of the driver's door face first and another female approach from the passenger'sside had, in an original statement, referred to this witness possibly coming from thepassenger's side and that not being evidence that Ms Ritchie was driving the car. Hesaid Ms Ritchie did not accept that the Police dog had tracked from the driver's doorto Stone Street and to Ms Ritchie. In any event, that evidence only connected MsRitchie to the vehicle. He suggested that the statements from the Police indicatingblood was located in the vehicle and on Ms Ritchie was not evidence of her drivingand, at most, only connected her with the vehicle. He suggested that, on the Policecase, a sober person had to have agreed to be driven by a very intoxicated person. Heargued the breath levels suggest the other woman was the likely driver.[64] For the reasons referred to by the Judge, I agree with the Judge's assessmentthat there was a strong circumstantial case that Ms Ritchie was the driver of the vehiclewhen it was on Kenmure Road.[65] In her evidence, Ms Ritchie said she had been with the Police when the Policedog arrived. She said that Police had led the dog to her and let it sniff her and she hadpatted the dog "and then it just carried on down the road".[66] A Police dog had sniffed the blood and then tracked the scent down KenmureRoad to Pitcairn Street, the route which a witness said he saw the woman who fellfrom the driver's seat take when running away from the scene. The evidence ofConstable Saunders, the dog handler, was that the dog tracked the scent along PitcairnStreet and into Stone Street, and then indicated on Ms Ritchie. The Constable had castthe Police dog past Ms Ritchie but "[t]he track did not continue".[67] On the Police case and consistent with Ms Ritchie's evidence, Ms H wasrelatively sober or at least much less intoxicated than Ms Ritchie. This did not makeit more likely Ms H was the driver of the vehicle at this time. The undisputed evidencewas the vehicle had reversed into a power pole on Kenmure Road and a woman,generally of Ms Ritchie's stature, had fallen from the driver's seat. What happenedwas consistent with the driver at the time being seriously intoxicated, as Ms Ritchiewas.[68] In evidence, Ms Turner was asked if she could recall what the evidence againstMs Ritchie had been. She said:A. Well, yeah, there was the blood and if that turned out to be her blood,that, and that could be shown it had been deposited at the time of theimpact, that was going to be difficult. There was the dog handler and thedog tracking her from the vehicle from the driver's side seat to her on thestreet and that was going to be difficult. There was her level ofintoxication, which meant that her recall of events wasn't 100% and thatposed some difficulties and there was the difficulty of the other womanbeing unco-operative and having said one thing at the scene that wasn'thelpful at all really.Q. Did you convey that to Ms Ritchie?A. Yes.Q. Your concerns?A. I did.Q. Yeah, how often?A: Well, we'd discussed it leading up to the call on the 8th of May beforeJudge Crosbie. We certainly discussed it during the stand down periodafter he gave his indication.[69] Ms Ritchie was not willing to give evidence that the driver was Ms H becauseshe did not want to "nark" on Ms H. She had also discussed with Ms Turner that theycould not be confident that Ms H would not identify Ms Ritchie as the driver. In herevidence, Ms Ritchie had acknowledged she was extremely intoxicated that night.There was no dispute that, because of her degree of intoxication, it would be difficultfor her to give evidence in her own defence. Given the strength of the circumstantialcase against Ms Ritchie, it was reasonable for Ms Turner to consider that Ms Ritchie'sinability to call or give evidence in her own defence would make it more difficult toobtain an acquittal.[70] Consistent with the view of the District Court Judge, I consider Ms Turner'sassessment of the strength of the Police case was reasonably based and certainly notmisleading. It was based on all the material disclosed by the Police to the defence.The Police summary, police notes and witness statements had been provided bydisclosure early in the proceedings. They had been provided to Ms Ritchie. Therewas no suggestion from Ms Ritchie that she did not understand what the documentsdisclosed.[71] Mr Laws suggested there was some inadequacy in counsel's advice becauseshe had not disclosed all the elements of what the Police had to prove. Ms Turner hadhowever indicated in a memorandum for the Court that the only issue at trial was asto the identity of the driver. Ms Ritchie clearly understood this. She denied she wasthe driver throughout the time she was engaging with Ms Turner and the Court, rightup to the point she decided to plead guilty. She had entered pleas of not guilty on 19July 2019 with the duty solicitor and had maintained not guilty pleas in a subsequentappearance on 20 September 2019. During the discussion with Judge Crosbie on 8May 2020, Ms Ritchie would have heard Ms Turner say that the defence was that MsRitchie was not the driver.[72] Although Ms Turner's notes were sparse, there was a note indicating that on 9October 2019, Ms Turner had discussed with Ms Ritchie her defence and the strengthsand issues with it. In her evidence, Ms Ritchie had said that, in meetings with herlawyer, they had discussed inconsistencies Ms Ritchie found in the statements andthat, at one point, they had talked about what would happen if she pleaded guilty. Shesaid they had discussed whether she was going to plead guilty or not guilty before notguilty pleas were entered.[73] The case was scheduled for a Judge-alone trial on 24 March 2020. On 23March 2020 in chambers, Ms Ritchie was remanded to a nominal date, that remandwas required because of the COVID-19 lockdown. There were further remands untila number of cases were called for review on 8 May 2020. Ms Turner said it was abusy day because all outstanding Judge-alone trial matters were called that day forreview.[74] Ms Ritchie said she spoke to Ms Turner before Court that day and Ms Turnerhad said the best option would be to plead guilty. She said it was during the discussionabout whether she was going to plead guilty or not that Ms Turner said at one pointthat it might be hard for somebody to identify her. Ms Ritchie said she was aware that,if she pleaded not guilty, she would have a trial. She understood then that she knewthe Police had to prove she was the driver.[75] Ms Ritchie's recollection was that her case was called in the morning. MsRitchie was then shown a transcript of what was said between the Judge and Ms Turnera short time before the Court adjourned at 3.45 pm. Ms Ritchie did not say that alteredher recollection of when the case was first called before Judge Crosbie. Ms Turner'sevidence also was that the matter was called initially in the morning before lunch but,on being shown the transcript, said it must have been called first in the afternoon.[76] The transcript shows there was a discussion with the Judge. It is not clear fromthe transcript when the discussion began but it begins as if the case had been calledearlier and there might have been some initial discussion about the case.[77] The transcript began with Ms Turner saying:We're moving forward I think slowly. Ms Ritchie is interested to hear whatyour Honour might impose if she changed her pleas today, Sir. She has – whatI can tell you about her is she has no history whatsoever and she has no demeritpoints on her licence at all. She's otherwise of extremely good character andthis was, I can paraphrase what she said: "one crazy night", Sir.[78] There was then a brief discussion with the Judge with it being accepted thereading was quite high. The Judge enquired as to Ms Ritchie's defence and was toldthat Ms Ritchie maintained she was not driving the vehicle. That led to the Judgelooking at the summary of facts. He referred to her high reading, the fact she had lostcontrol twice, and reparation being an issue. The Judge enquired as to whetherreparation was an issue and was told by Ms Turner that $7,937.57 was being sought.The Judge then said:Well, I think that, what have we got? 26 year old, no previous convictions,stupid night, very high reading. I would, if she's prepared to plead rather thango off to a hearing, assuming you guys are saying identification is not an issue,Sergeant, I would limit her disqualification to nine months, otherwise it'sgoing to be at least a year if she goes to a hearing and then we'd have to be –I can't do anything about the reparation.[79] The Judge said the fine would be about the same as the reading, that the lossof licence "should be higher" but he would keep it at nine months because there wouldbe a penalty in the reparation. The transcript shows the Court then adjourned at 3.45pm.[80] The Court resumed at 4.45 pm. On returning to Court, Ms Turner said she hadinstructions to vacate the pleas of not guilty and enter pleas of guilty but that she didnot want the Court to enter convictions, as there was potentially going to be a s 106application because of the impact convictions might have on Ms Ritchie's future careeras a social worker.[81] There was some discussion about the s 106 application and how it wouldproceed. Judge Crosbie made timetabling directions for such a s 106 application if itwas to be pursued.[82] Ms Turner's evidence was that, during the stand down, there was a lot ofdiscussion in one of the interview rooms. Present during the discussion were MsRitchie and her father. Ms Turner said she discussed the indication given by JudgeCrosbie and advised that, in the circumstances, that would be a good outcome. Shesaid they discussed the difficulties with her defence that they had discussed previously,focusing around her intoxication level and therefore her ability to recall the nightclearly, the difficulties posed by the dog tracking from the vehicle to her on the streetand the difficulty of not having anyone else to back up her version of events. MsTurner said Ms Ritchie understood all those difficulties but initially said she stillintended to defend the charge. But:[S]lowly and somewhat reluctantly she formed the view that it wasn't goingto be a good option for her and her best option was to take that indication fromJudge Crosbie in terms of the outcome.[83] She said Ms Ritchie's father was very supportive of Ms Ritchie and wasadvocating for her to maintain her not guilty pleas. She said, before they went backinto the courtroom, Ms Ritchie instructed her to vacate the not guilty pleas but also toask for the conviction not to be entered so as to explore the s 106 application. MsTurner said they had talked about that application in discussing what the change ofplea would mean for her and her worry the consequences of a conviction might haveon her social work career aspirations.[84] In her evidence, Ms Ritchie said, immediately on leaving Court, she told MsTurner that she wanted to plead not guilty. There was no mention of this in MsTurner's evidence and that possibility was not put to Ms Turner. Ms Turner's evidencewas that she had been unable to get hold of Ms Ritchie after the hearing before JudgeCrosbie and the next contact was at Ms Ritchie's next Court appearance. Ms Ritchiethen told Ms Turner that she wanted to go back to her not guilty pleas because she wasnot driving on the night. Ms Turner told her it was her right to make that applicationand Ms Turner would facilitate that, but Ms Ritchie would need to engage anotherlawyer to pursue that.[85] With her pleas of guilty, through her counsel and in her presence, Ms Ritchiewas admitting she was the driver of the vehicle at the time of the Kenmure Roadcollision. At that point, this was all that had been at issue as far as proof of the chargeswas concerned. The issue for Judge Turner was whether there would be a miscarriageof justice if she was not allowed to effectively withdraw the guilty pleas and theadmissions associated with them.[86] I consider that, on the evidence, it was clear:(a) there was a strong case against Ms Ritchie that she was driving the vehiclebefore it came to a stop on Kenmure Road;(b) the evidential breath test proved that her breath alcohol reading was 876micrograms of alcohol per litre of breath;(c) Ms Ritchie understood that, to prove the charges, the Police had to proveshe was the driver;(d) Ms Ritchie was aware of and understood the evidence the Police would berelying on to prove she was driver;(e) she was advised, reasonably and correctly, by the solicitor representing herthat the Police case against her was strong;(f) she was advised responsibly and reasonably that, if she pleaded guilty,particularly in terms of disqualification, her sentence would be less than itwould be if she pleaded not guilty but was found guilty at trial;(g) the option of pleading not guilty was available to her and, if she pleadednot guilty and the Police were unable to prove she was the driver, thatwould be the end of the matter; and(h) after a discussion with her counsel over much of an hour and with herfather present and encouraging her to maintain pleas of not guilty, MsRitchie chose to plead guilty, knowing what she was doing and knowingthat, in doing so, she was admitting to having been the driver at therelevant time.[87] Ms Turner was undoubtedly pessimistic as to the prospects of an acquittal ifMs Ritchie defended the charges against her in a Judge alone trial. Ms Turner'spessimism was undoubtedly conveyed to Ms Ritchie before Ms Ritchie decided toplead guilty. In considering whether this resulted in a miscarriage of justice, as it wasin Kissling v R, the question on appeal is whether there was any error in counsel'spessimism.17 As in Kissling, for the reasons referred to in this judgment, I considerthere was none.[88] I accept Ms Ritchie was under pressure when deciding whether she wouldaccept the sentence indication of Judge Crosbie. As the Court of Appeal have said,anyone facing serious charges will inevitably be under pressure, but the fact a17 Kissling v R [2021] NZCA 6.defendant may be stressed and feel under pressure when making a decision to pleadguilty is not ordinarily sufficient to amount to a miscarriage of justice.18[89] In Methven v Police, Cooke J referred to the judgment of the Court of Appealin Halpin v R as providing a helpful review of the circumstances giving rise to amiscarriage of justice for a defendant who wishes to challenge a conviction enteredafter a guilty plea.19 This included an appeal where it was asserted a defendant haddemonstrated a tenable defence. As to that, the Court of Appeal had said:20It is not sufficient for an appellant to simply assert his or her innocence.Credible evidence must be presented to justify a court taking the rare step ofvacating a guilty plea.[90] Here, there was a compelling case that Ms Ritchie was the driver. She wouldnot have been able to give credible evidence that someone else was the driver becauseof the degree to which she was intoxicated and the fact she had not denied being thedriver to the Police at the time of the crash or when she was being breath tested at thePolice station. She had not demonstrated to Judge Turner there would be credibleevidence that she was not the driver.[91] In addition to the matters I have already considered, it was argued for MsRitchie that there were grounds to hold that the evidential breath test should be ruledinadmissible. Ms Turner acknowledged she had not considered this issue. Ms Ritchiehad not been given any advice as to that issue before she pleaded guilty.[92] Counsel for Ms Ritchie had raised this as an issue in written submissions forthe hearing of the first application but had not referred to it again in further briefsubmissions for the hearing of the second application. It was not referred to in JudgeTurner's decision. It was raised again on appeal and responded to by the Crownsolicitor.[93] Ms Ritchie's counsel submitted that evidence (from the evidential breathtesting) was obtained following Ms Ritchie's arbitrary detention in contravention of18 K v R [2010] NZCA 247 at [60]; and Barakat v R [2020] NZCA 440 at [54].19 Methven v Police [2019] NZHC 357 at [15], citing Halpin v R [2018] NZCA 477.20 Halpin v R, above n 19, at [20].the New Zealand Bill of Rights Act 1990. He submitted there was a causative linkbetween the impropriety and the obtaining of evidence. Mr Laws submitted a courtwould be likely to determine that the exclusion of evidence was proportionate to theimpropriety.[94] I consider the issue in light of the evidence that the District Court Judge wouldalso have had to consider.[95] In her affidavit in support of the application, Ms Ritchie said:14. By the time I was stopped by Police, I was almost at the bottom of StoneStreet. The police officer I spoke with told me to stay where I was. Theofficers kept [Ms H] and I apart. I remember that [Ms H] was still tryingto speak to me. I don't know what she was saying.15. I gave the police officer I spoke to my name, address and date of birth. Idid not answer any other questions. I asked the officer if I was underarrest. He said no. I said I was going to leave. He said I had to stay. Iasked again if I was under arrest. He said I was not, but he would not letme leave. I was not talking to [Ms H]. When I went to leave anyway,the officer arrested me for obstruction. I was cuffed and put in the policecar.[96] In her evidence at the hearing, Ms Ritchie said she ran from Kenmure Roadand stopped when she got to Stone Street. She said she thought Ms H had alreadybeen picked up by the Police at that time. They were not together. A little later shesaid the Police brought Ms H to her. She said she did not speak with Ms H.[97] The Court had a statement taken from Police Constable Lang on 5 August2019. In that statement he said, after arriving at the scene on Kenmure Road, he wasdirected to make his way to the bottom of Stone Street. He was advised that a Policeunit had stopped with two females suspected of being drivers of the vehicle involvedin the crash on Kenmure Road. He said in his statement:Upon arrival at the bottom on Stone Street I saw that three women were beingspoken to by the Police Dog Sergeant Michael CALVERTT and PST SergeantMathew DAVIDSON, there was one vehicle that had been stopped.I began gathering the details of a female I now know to be [], she stated shehad come to pick up the other two females and take them home.A approximately [sic] 2346 hours a female I now know to be Nicole RITCHIEbegan to walk down the road towards Kaikorai Valley Road and talk to theother female I now know to be [Ms H]. RITCHIE was told multiple times tostay where she was and she cannot speak with the [sic] [Ms H].At 2347 hours I arrested RITCHIE for obstruction and read her the cautionrights and confirmed she understood them.[98] He said it was after this he attempted to gather her details and a description ofevents. He said Ms Ritchie gave just her details of name, date of birth and address,and refused to provide any further information. During this time, he noticed smallcuts on her hand. It was also after this time that the Police dog came up to her.[99] In his statement, Constable Lang said, during the evidential breath testingprocedure:RITCHIE continually asked if she was arrested and free to go, she was toldevery time that she was arrested for obstruction and was now detained for thepurposes of the evidential breath testing procedure and that she was not freeto go until it was complete.[100] Section 315 of the Crimes Act 1961 allows the arrest without a warrant of anyperson who the Constable has good cause to suspect of having committed any offencepunishable by imprisonment.[101] The offence of obstruction is found at s 23 of the Summary Offences Act 1981.This relevantly provides:23 Resisting Police, prison, or traffic officerEvery person is liable to imprisonment for a term not exceeding 3 months ora fine who resists or intentionally obstructs, or incites or encourages anyother person to resist or obstruct,—(a) any constable acting in the execution of his duty;...[102] In Brechelt v Police, this Court endorsed an earlier statement that:21 it will always be a matter of degree whether there was hindering orobstructing. The refusal to comply with reasonable requests made in thecourse of the lawful exercise of powers may amount to obstruction orhindering. I do not accept the submission of counsel that some action rather21 Brechelt v Police [2017] NZHC 2955 at [8], citing Smith v Police HC Wellington CRI-2006-485-23, 23 June 2006 at [14].than refusal or inaction was required. Words may in certain circumstancesamount to obstruction or hindering. Likewise, standing mute or refusing tocomply with reasonable directions, which are necessary in order that thelawful power of search be exercised, may suffice.[103] I infer from Constable Lang's statement that, because there were multipledirections to Ms Ritchie not to speak with Ms H, Ms Ritchie was refusing to complywith that request. Constable Lang was obviously endeavouring to speak to the otherperson who had been in the car to try to find out who was driving. He did not wantMs Ritchie to interfere with his enquiries. The directions to Ms Ritchie, for her not totry to talk to Ms H, were reasonable requests for him to make in the course of hisenquiries as a Police constable.[104] On the hearing of the first application, Judge Large had concluded:22[65] The arrest for obstruction related to a direction to Ms Ritchie not tospeak to the other female but that is what was occurring, and it seems, fromthe material supplied to me, that the police did not act improperly in respectof that nor was the arrest for obstruction unlawful.[105] Had Ms Ritchie, through her counsel, made an issue as to the admissibility ofthe evidential breath test that ultimately ensued after her initial arrest, I do not considera Judge would have found the evidence from the evidential breath testing to beinadmissible on the ground that it resulted from an unlawful detainment forobstruction.[106] Even if a Judge had found the initial arrest for obstruction was unlawful, I amsatisfied the evidence obtained from the evidential breath test would have been ruledadmissible on the s 30 balancing exercise under the Evidence Act 2006. The Policewould have been entitled to require Ms Ritchie to submit to the initial breath screeningtest as she was reasonably suspected of having been a driver of the vehicle. Sheunderwent such a test which showed a result of over 400 micrograms of alcohol perlitre of breath. The Police could legally require her to go with them to the DunedinCentral Police Station for the purpose of an evidential breath test, blood test, or both,without delay.23 She agreed to accompany them. At the Police station she was told22 Police v Ritchie [2020] NZDC 16658.23 Land Transport Act 1998, ss 68 and 69.she had been detained there for the purpose of an evidential breath test. Her detentionfor that purpose was therefore permitted independently of her initial arrest forobstruction. The evidence obtained from that test did not therefore result from herinitial arrest for obstruction.[107] Accordingly, I do not consider there was such potential for evidence from theevidential breath test to be ruled inadmissible that this should have been brought to theattention of Ms Ritchie as an issue for her to take into account before she decided toplead guilty. I do not consider there was such a prospect of the evidence being ruledinadmissible that there was a risk of a miscarriage of justice in Ms Ritchie pleadingguilty based on that evidence.[108] On that basis, Ms Ritchie did not establish that, in the interests of justice, sheshould have been allowed to withdraw her guilty pleas. She has not established therewould be a miscarriage of justice if, on her guilty pleas, she remains convicted on thecharges she faced.[109] Ms Ritchie's appeal is accordingly dismissed.Solicitors:Ross Dowling Marquet Griffin, DunedinRPB Law, Dunedin.