CHERRINGTON-WILLIAMS v POLICE [2023] NZHC 1795

CHERRINGTON-WILLIAMS v POLICE [2023] NZHC 1795 [10 July 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2023-488-24[2023] NZHC 1795BETWEEN RAYMOND CHERRINGTON-WILLIAMSAppellantAND NEW ZEALAND POLICERespondentHearing: 5 July 2023Appearances: J P R Scott for AppellantB O'Connor for RespondentJudgment: 10 July 2023JUDGMENT OF JOHNSTONE JThis judgment was delivered by me on 10 July 2023 at 4.30 pmRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, WhangareiSummary[1] Raymond Cherrington-Williams seeks leave under s 231(3) of theCriminal Procedure Act 2011 (the Act) to appeal out of time his conviction, entered inthe Whangārei District Court on 3 October 2022, on a charge of assault in terms of s 9of the Summary Offences Act 1981. He says that the duty solicitor who appeared forhim on that day contradicted his instructions, by entering a guilty plea when hisinstructions were that he did not want to plead guilty.[2] The key issue for determination is whether or not Mr Cherrington-Williamsinstructed the duty solicitor that he wished to plead guilty. On my assessment of theevidence, Mr Cherrington-Williams instructed the duty solicitor that he wished toplead guilty. The duty solicitor properly entered Mr Cherrington-Williams' guiltyplea. There has been no miscarriage of justice.[3] The background, evidence, submissions of counsel, legal position and reasonsfor my assessment are set out in detail below.[4] During the hearing, I indicated I would hear the appeal, including the evidenceto be advanced, before dealing with the question of leave. In light of my assessmentof the merits, Mr Cherrington-Williams' delay in bringing the application for leave toappeal has not been satisfactorily explained.[5] The application for leave to appeal is dismissed.Background[6] Mr Cherrington-Williams and his then partner, who worked together on fishingboats operating out of Timaru, were on holiday in Northland in early October 2022.At around 1 am on Sunday, 2 October 2022, they were at the Grand Hotel bar inWhangārei.[7] The police alleged there was an argument between the pair, and that when hispartner went outside there was physical contact between them: he trying to pull herback to the bar; she resisting. As police arrived, Mr Cherrington-Williams was seento attempt to pull his partner up off the ground, before dropping her back. He thengrabbed the hoodie she was wearing, trying aggressively to pull it off her. When hethen saw the police, he ran away on foot. Upon being apprehended he said that hewent after his partner as if she were leaving him he wanted his hoodie from her, ithaving cost him $100.[8] Mr Cherrington-Williams was held in custody and appeared in court thefollowing day, charged with the offence under s 194A of the Crimes Act 1961 ofassault on a person in a family relationship. When the case was called, John Dayappeared as duty solicitor for Mr Cherrington-Williams. He advised Judge Rzepeckythat there would be a plea of guilty to an amended charge under the Summary OffencesAct, the police sergeant in Court confirming that he proposed amendment of the charge"to get the matter resolved". Judge Rzpecky amended the charge accordingly,accepted Mr Cherrington-Williams' guilty plea through his counsel Mr Day, andconvicted and sentenced him to a fine of $800, taking into account a victim impactreport in which his partner said:1 [she had] cuts and scratches on her hands and elbows from what happened.My partner [Mr Cherrington-Williams] is only like that when he drinks. Iwant to be with him but not when he drinks.[9] Mr Cherrington-Williams filed his appeal notice himself. It is dated 3 March2023 and was accordingly around four months out of time.2 The reason provided forseeking an extension of time in which to appeal was "because its effecting my life andjob [sic]". In the space for Mr Cherrington-Williams to specify the grounds of hisappeal, he wrote:Was not true as it was very rushed. Forced to go with the flow and plead guiltycause there would of been conditions if I did not.[10] At the first callover of the appeal, on 24 March 2023, Whata J indicated toMr Cherrington-Williams that he would need to consider whether to give the Crown1 Police v Cherrington-Williams [2022] NZDC 26137.2 Criminal Procedure Act [CPA], s 231(2).permission to speak to his former lawyer about what he was claiming, suggesting thathe take legal advice.3[11] By letter dated 6 April 2023, Mr Day wrote to the Crown Solicitor forNorthland. Mr Day commenced by stating that the Crown Solicitor had approachedhim "[p]ursuant to judicial direction", "to make contact with the appellantMr Cherrington-Williams with a view to providing him with some legal advice rewaiver of privilege and, more generally, whether the appeal had merit". Plainly, therehad been no such judicial direction.[12] Mr Day's letter went on to describe him obtaining Mr Cherrington-Williams'file from the registry, and realising only then he had acted forMr Cherrington-Williams as duty solicitor on 3 October 2023. He advised that in thecircumstances he would not contact Mr Cherrington-Williams. Reflecting on thepossibility that the Crown Solicitor had instead wanted Mr Day's recollection of howit was that the guilty plea came to be entered, Mr Day went on to set out thecircumstances. The essence of Mr Day's then recollection was that he could not recallwith any specificity what it was that he was told or instructed in connection withmatter. That said:(a) He would "almost certainly" have obtained initial disclosure, likely tohave been the summary of facts and conviction/bail history, beforegoing to see Mr Cherrington-Williams in the cells, that being hisconstant practice as duty solicitor in the Whangārei District Court for37 years.(b) He inferred Mr Cherrington-Williams wanted matters resolved on theday.(c) Pursuant to those "probable" instructions, he would have approachedthe police prosecutor and negotiated the charge reduction.3 Williams v R HC Auckland CRI-2023-488-24, 24 March 2023.(d) "[H]aving reported back to [Mr Cherrington-Williams] and obtainedhis agreement to the plea reduction [he] would have duly appeared forhim before Judge Rzepecky, entered the plea of 'guilty' to the amendedcharge."4Mr Cherrington-Williams' affidavit[13] By the time of the next mention on 21 April 2023, Mr Cherrington-Williamshad been granted legal aid and was represented by Mr Scott. With Mr Scott'sassistance, Mr Cherrington-Williams filed an affidavit dated 23 June 2023 in which hedenied the assault. He said that although he was only standing over his partner tryingto help her up when the police arrived, he knew how bad it would look. He ran awaybecause he did not want to spend time in the cells until court on Monday. He went onto describe Mr Day approaching him in the court cells. He said:17. He went through some paper work with me and I said over and overthat I didn't assault anyone. Because of that I didn't want to go guiltyto the charge.18. He told me that it would be better to sort it out on the day. He saidthat if I didn't plead guilty there would be bail conditions – like notbeing able to live with my partner.19. I still said that I wanted to plead not guilty, but asked him not to getbail conditions that would effect [sic] my life.20. But he kept saying that I should plead guilty. I'd been in the cells forso long and I was tired and getting frustrated because he wasn'tlistening to me. In the end I just said "do what you want" – I didn'tfeel like I had any choice.21. I never told him I wanted to plead guilty.[14] Mr Cherrington-Williams' affidavit describes him not speaking up in courtwhen his plea was entered and a fine imposed because "I didn't think I was allowedto talk". It adds "I have paid that fine in full".4 (Emphasis added).Mr Day's affidavit[15] I understand that it was not until the day of the hearing ofMr Cherrington-Williams' application that counsel for New Zealand Police invited MrDay to swear an affidavit. Be that as it may, he did so, and it was filed withoutobjection from counsel for Mr Cherrington-Williams.[16] Mr Day's affidavit dated 5 July 2023 largely confirms the views he expressedin his 6 April 2023 letter. However, it adds that he had read the transcript ofproceedings of 3 October 2023 and Mr Cherrington-Williams' affidavit dated 23 June2023. Mr Day further wrote:12. As said above, I cannot recall what the appellant might then haveinformed me as to such personal circumstances of his as they relatedto issues of employment and domestic relationships.12. However, I do recall that the appellant was most concerned about bailand the imposition of bail conditions. I recall he worked with thecomplainant and was concerned about how bail conditions wouldaffect that.13. I would never approach Police and negotiate an amendment to chargeswithout clear instructions from a defendant to do so.14. I would never enter guilty pleas on behalf of a defendant without clearinstructions to do so.Evidence at hearing[17] At the hearing of the appeal, Mr Cherrington-Williams gave evidence on hisown behalf, and Mr Day gave evidence when called by Ms O'Connor, forNew Zealand Police. Both were cross-examined. I will relate aspects of the evidencelater in this judgment. In broad terms, their evidence replicated their affidavits.Mr Cherrington-Williams' submissions[18] For Mr Cherrington-Williams, Mr Scott submitted that Mr Day failed to followMr Cherrington-Williams' instructions. In particular, the guilty plea was entered whenMr Cherrington-Williams' instructions were that he wished to plead not guilty.Accordingly, in terms of s 232(2)(c) of the Act, a miscarriage of justice occurred.New Zealand Police submissions[19] Ms O'Connor's written submissions for New Zealand Police, dated4 July 2023, had conceded the appeal. But having obtained Mr Day's affidavit, theposition taken for New Zealand Police shifted. Ms O'Connor submitted that Mr Daydid not act contrary to instructions. The appeal should be dismissed.Legal principles[20] If leave to appeal out of time were granted, the appeal would requiredetermination under s 232 of the Act. In the circumstances of this case, the Courtwould be required to allow the appeal if satisfied that a "miscarriage of justice" hadoccurred.5 A "miscarriage of justice" means any error, irregularity, or occurrence inor in relation to or affecting the trial that has created a real risk that the outcome of thetrial was affected, or has resulted in an unfair trial.6 Here, "trial" includes the hearingon 3 October 2022, leading to and including the entry of the conviction.7[21] The general position is that only in exceptional circumstances will an appealagainst conviction be entertained following entry of a plea of guilty. Where anappellant fully appreciated the merits of his or her position, and made an informeddecision to plead guilty, the conviction cannot be impugned.8[22] However, amongst what has been described as the three broad situations wherea miscarriage of justice is indicated is where the appellant did not appreciate the natureof, or did not intend to plead guilty to, a particular charge.9 In determining whetherthe appellant comprehended the charge the court may have regard to any priorexperience of the criminal justice system which the appellant may possess.10[23] In Hall v R, the Court of Appeal found it:115 CPA, s 232(2).6 Section 232(4).7 Section 232(5).8 R v Le Page [2005] 2 NZLR 845 (CA) at [16].9 At [17].10 R v Roycroft CA312/01, 4 September 2002 at [22].11 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65]. helpful to identify three fundamental decisions on which trial counsel'sfailure to follow specific instructions will generally give rise to a miscarriage.The fundamental decisions are those relating to plea, electing whether to giveevidence and to advance based on a [defendant's] version of events.[24] The Court went on to observe:[69] In an appeal based on a failure to follow instructions as to thesefundamental decisions, the focus will be on whether, as a matter of fact, therewas a failure to do so.[25] In this case, there is no suggestion Mr Cherrington-Williams did not appreciatethe significance of the guilty plea entered by Mr Day on his behalf.Mr Cherrington-Williams has experience of the criminal justice system, previouslyhaving pleaded guilty and been sentenced for matters including assault on a person ina family relationship.[26] As mentioned above, the key issue for determination was accordingly whetheror not Mr Cherrington-Williams instructed Mr Day that he wished to plead guilty.Assessment of evidence[27] In my assessment, though he may now genuinely believe otherwise,Mr Cherrington-Williams instructed Mr Day on 3 October 2022 that he would pleadguilty to the reduced charge. The following are my reasons.[28] First, it is significant that Mr Cherrington-Williams' initial complaint was asstated above at [8]. The tenor was that Mr Cherrington-Williams pleaded guilty, albeitreluctantly in light of his own view of the evidence, because he would otherwise havehad to endure restrictive bail conditions. By the time of his affidavit, and his evidenceat the hearing, Mr Cherrington-Williams' position had changed. The passage quotedabove captures the essence of the affidavit. His evidence in chief including thefollowing:Q. Do you recall what he said to you?A. No.Q. No? Okay. Did he talk to you about whether you wanted to pleadguilty or not guilty?A. Yes.Q. What did he say about that?A. He asked me if I wanted to plead guilty or not guilty. I said: "Notguilty. I didn't do it."Q. Okay. What did he say after you said that?A. He said: "If you plead guilty you get this matter over and done with."Q. Okay. What did you say?A. I said: "I didn't do it. I don't want to plead guilty."Q. And what did he say?A. "He pleads guilty."[29] But when asked whether there was a conversation about bail,Mr Cherrington-Williams' evidence was:A. Yeah, what could happen.Q. What could happen in what circumstance?A. Oh, like, to get bail, like, we will be separated. We'll be – we couldn'ttalk to each other.Q. Okay. And what did you say when Mr Day told you about that?A. I told him we can't do that 'cos we work together.Q. What did he say?A. We live together. We, you know, we do life together.Q. What did he say?A. I don't know. I can't recall.[30] Mr Cherrington-Williams' evidence went on to confirm that this discussion,about him being separated while on bail from the partner he had allegedly assaulted,occurred prior to Mr Day going away and returning to discuss the reduced charge thathad been negotiated.[31] The clear impression I formed was that Mr Cherrington-Williams' primary,retrospective concern about what had occurred on 3 October 2022 was in essence thesame concern he had then: that he felt he had done nothing wrong, and he should nothave had to face either a charge or the prospect of a non-association condition. But,as Mr Day asserted in evidence, a non-association condition would have been a naturaland standard condition for the presiding Judge to have seen fit to impose, particularlyin light of Mr Cherrington-Williams' previous conviction for assault on a person in afamily relationship. There was no realistic prospect of Mr Cherrington-Williams bothdisputing the charge and being bailed without a non-association condition. YetMr Cherrington-Williams' evidence was that when the issue of bail was raised, and hepointed out he could not "do" a non-association condition, he could not recallMr Day's response.[32] Of course, Mr Cherrington-Williams was confronted with making a choice,about which he needed to instruct Mr Day. There has been no suggestion, in his appealnotice, his affidavit or his evidence in person, that he chose to accept he would bebailed with a non-association condition, or that he instructed Mr Day to advance anapplication for bail without a non-association condition. His evidence was that hecould not recall further discussion about bail.[33] On this basis, the greater likelihood is that Mr Cherrington-Williams did, as hisappeal notice suggests, "plead guilty" through Mr Day. By doing so he made aninformed choice about plea given his adequate understanding of the weight of theevidence and the likely nature of his bail conditions pending a substantive hearing.[34] Second, the transcript of the hearing on 3 October 2022 indicates that therewere three occasions on which the topic of Mr Cherrington-Williams' plea was raised:(a) first, when Mr Day advised "there is going to be a plea of guilty to anamended charge under the Summary Offences Act";(b) second, when Judge Rzepecky confirmed there would be amendmentof the charge and Mr Day repeated the proposal; and(c) third, when the Judge had made the amendment and asked for "yourplea, the plea", with Mr Day saying, "guilty through me, sir, thankyou".[35] Mr Day's evidence was that had there been "the slightest inkling or doubt oruncertainty in my mind" whether Mr Cherrington-Williams wished to plead guilty hewould have had the registrar put the charge. I accept that evidence on the basis it canbe expected to be Mr Day's standard approach, in line with that of counsel generallywhen a defendant for whom they act as duty solicitor has displayed prevarication.[36] More significantly for present purposes, I do not acceptMr Cherrington-Williams remained silent throughout the hearing with the guilty pleabeing entered against his instructions. He is familiar with the court process, havingpleaded guilty and been fined, or had community work or supervision imposedpreviously. In evidence, he asserted he had been held in contempt of court for speakingon a prior occasion, but that reason was not offered in his affidavit and so does notappear to have been in his mind when the affidavit was made.Mr Cherrington-Williams was forthright and confident about voicing his perspectivewhen giving evidence: at times he commenced to talk over both Ms O'Connor whencross-examining and me when seeking clarification; and at one moment he simplystood up and started to walk from the witness box (explaining when stopped that hewanted to talk to Mr Scott).[37] Third, Mr Cherrington-Williams' evidence was, at times, somewhat flexible.For example, he was asked whether he approached Mr Day after his court appearanceon 3 October 2022 and said he did not, because he left through the rear exit from thecells. Mr Day "was nowhere to be seen". When asked whether he came back aroundinto the main body of the courthouse, he said "[n]o. No, I was sussing out my ride."Within the course of the next exchange, he was asked to clarify whether he walkedaround and came into the front of the courthouse, and said "[o]f course I did. I neededto charge my phone, asking people to use their charger. My focus was getting home."Similarly, his affidavit recorded that he had paid the $800 fine imposed byJudge Rzepecky in full. Yet in evidence in chief when asked whether he had paid thefine he said "[n]o, I haven't paid no fines. I didn't pay fines. I do community work.That's the plan though." In cross-examination, his final position was that he did notknow whether he had paid the fine.[38] The variability of Mr Cherrington-Williams' evidence tells against preferringhis modified account of events set out in his affidavit and viva voce evidence over hisinitial summary as set out in his appeal notice.[39] Fourth, I have no difficulty accepting Mr Day's evidence that it is not hispractice to enter guilty pleas on behalf of a defendant without clear instructions to doso. It is correct that this evidence was offered for the first time only in Mr Day'saffidavit of 5 July 2023, and not in his letter. But that is understandable. When Mr Daywrote his letter on 6 April 2023, the allegations being made byMr Cherrington-Williams (via his appeal notice) were that matters were rushed and hehad been forced to plead guilty. Whether Mr Day was briefed to that extent is notclear. However, it is in any event unlikely he had been told Mr Cherrington-Williamswas alleging that he instructed Mr Day to enter a "not guilty" plea.Mr Cherrington-Williams did not make that allegation until it appeared in his affidavitof 23 June 2023. Accordingly, it is unsurprising Mr Day's letter focussed on how itwas that he came to negotiate the reduced charge.[40] This is not to say Mr Day necessarily holds a memory of takingMr Cherrington-Williams' instructions. His evidence made it plain that in the absenceof a written record in the form of a note signed by Mr Cherrington-Williamsconfirming his instructions he had to "fall back on what [he] routinely [does] as a dutylawyer". That is similarly unsurprising given the unexceptional nature of the hearingand the lapse of time from then until a first invitation to recall events nearly six monthslater.[41] Overall, however, I was left with the clear view that Mr Day's generalmethodology as he approaches his work as duty solicitor is sufficiently careful inrespect of defendants' "fundamental decisions" such as plea as to make it mostunlikely he might enter a client's guilty plea while under a misapprehension on thatsubject. Yet Mr Cherrington-Williams' case goes further, suggesting Mr Day entereda guilty plea when Mr Cherrington-Williams did nothing to suggest that was what hewanted. Mr Day's practice is not to conduct himself in that way. He did not do so onthis occasion.[42] I note, incidentally, that the evidence suggested Mr Cherrington-Williamsreturned to Timaru within a week or so of 3 October 2022, and that he went to seasoon thereafter. But he was back on land for Christmas 2022, and although he hadintended to go to sea again he was injured and did not do so. His appeal notice notbeing filed in the Timaru District Court until 3 March 2023, I find the reason offeredfor the delay12 somewhat obscure.[43] In light of the merits of the appeal, and the unclear reason for the delay in itbeing brought, I am not prepared to grant leave to bring the appeal out of time._____________Johnstone J12 See above at [8] ("Because its effecting my job and my life").