METHVEN v NEW ZEALAND POLICE [2019] NZHC 357

METHVEN v NEW ZEALAND POLICE [2019] NZHC 357 [6 March 2019]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2019-443-1[2019] NZHC 357BETWEEN STUART METHVENAppellantAND NEW ZEALAND POLICERespondentHearing: 5 March 2019Appearances: J C Hannam for the AppellantG N Milne for the RespondentJudgment: 6 March 2019JUDGMENT OF COOKE J[1] Mr Methven appeals a decision of Judge Harrison delivered in the DistrictCourt at New Plymouth on 26 July 2018, in which the Judge declined Mr Methven'sapplication to vacate his guilty plea in relation to one charge of contravening aprotection order and one charge of failing to supply identifying particulars to Police.1[2] Mr Methven appeals his conviction on the grounds that first, there is newevidence, namely medical records, which indicate he was in an "unfit state of mind"when he entered his plea on 26 July 2018. Second, the District Court erred by givinginsufficient weight to the availability of an arguable defence to the charge.1 Police v Methven [2019] NZDC 1340; Domestic Violence Act 1995, s 19(2)(d), s 49(1)(b) ands 49(3), maximum penalty 3 years' imprisonment; and Policing Act 2008, s 32(4), maximumpenalty 6 months' imprisonment or $5,000 fine.Factual background[3] On 25 July 2017 a final protection order was issued in the New PlymouthDistrict Court in relation to Mr Methven's prior dealings with Ms A. Police sentMr Methven a letter on 1 June 2018 stating Mr Methven was no longer allowed at theMs A's address and their relationship was over. The letter also explained theconsequences of breaching the letter and the protection order.[4] At approximately 8.20 pm on 7 June 2018 Mr Methven entered Ms A's addressand knocked on the front door. She stood on the other side of the door. Mr Methvenasked to come into the house. She refused to allow entry and told Mr Methven toleave. Mr Methven stayed on the property for around 15 minutes, entering into thegarage and moving around the front of the property. During this period Ms Arepeatedly told Mr Methven to leave. She told Mr Methven she had called the Policeand only then did he finally leave the address.[5] The following day Police arrested Mr Methven for breaching the protectionorder. He admitted to being at Ms A's address and explained that she had invited himto the address to collect his clothing the previous day.[6] Mr Methven was charged with contravening a protection order. Mr Methvensought a sentencing indication. On 26 July 2018 Judge Harrison indicated a sentenceof sentence of 15 and a half months' imprisonment if Mr Methven pleaded guilty toboth charges. As to suitability for home detention, "that remains to be seen but myview at the moment is that this man is not a candidate".2 Mr Methven entered hisguilty pleas following the sentencing indication.[7] On 24 August 2018, Mr Methven applied to vacate the guilty pleas. Thatapplication was heard by Judge Harrison on 18 January 2019.32 Sentencing indication at [9].3 Police v Methven, above n 1.District Court decision[8] Judge Harrison first noted she had been invited to deal with the application onthe papers without evidence or cross-examination of Mr Methven, before turning to adiscussion of the relevant law. The Judge indicated that for Mr Methven's applicationto succeed "the conviction must be shown to be unsafe, or for there to have been amiscarriage of justice".4 The real issue, as articulated by Mr Hannam for Mr Methven,was whether Mr Methven's change of position during the hearing and his inability toexpress it justify a change of plea to not guilty.[9] Mr Methven's first ground for wanting to vacate the guilty plea was he did notclearly instruct his lawyer at the time, Mr Bourke, to enter pleas of guilty on thecharges.5 Mr Methven said he was struggling to hear everything said during thehearing and he did not accept the sentencing indication. He said he wanted to say tothe Court during the sentencing indication that he no longer wanted to plead guilty,and he was not given the opportunity to confirm his guilty plea.[10] The Judge then played the audio of the sentencing indication appearance of26 July 2018. She held:[6] During this hearing today the audio of the Court appearance of 26 July2018 has been played. It is at odds with what Mr Methven recalls. I amsatisfied that there has been no miscarriage of justice and that the convictionsare safe for the following reasons.[7] He was represented by competent counsel, guilty pleas were enteredafter having obtained legal advice. Even before the sentencing indication hadbeen given he wanted to plead guilty, and articulated that to me. After thesentencing indication was given he still wanted to plead guilty. He was giventhe opportunity to consult with Mr Bourke about his plea after the indicationhad been given. He declined that. He was insistent he wanted to plead guilty.[8] I asked Mr Bourke if he wanted to put sentencing off for a week. Andagain an indication from Mr Methven was given that he wanted to plead guilty.Mr Bourke said that he ·had discussed the matter with him already and hadinstructions to plead guilty.[9] During the hearing I did mute Mr Methven because he wasargumentative and interruptive, but I did bring him back into the courtroomso audio was available so he could speak with Mr Bourke, and again heconfirmed the guilty plea.4 At [4].5 At [5].[10] He was insistent he wanted to tell me something and I gave him thatopportunity. He said what he wanted to say was that "she text me first." Icertainly gave him a chance to have his say. At no time during that did he saythat he wanted to change his plea.[11] In my view he was given more than adequate opportunities to confirmhis position on pleading guilty.[11] The reference to the Judge muting Mr Methven arises because he wasappearing by video link, and during the course of giving the sentencing indication hewas interrupting the Judge by making comments. This is recorded in the transcript ofthe sentencing indication. In the circumstances the Judge put the connection on muteso that she could continue to deliver the sentencing indication.[12] The Judge then addressed Mr Methven's argument that, having sought legaladvice, he was now aware of an available defence. She acknowledged "this is also aground that may justify a change of plea".6 Mr Methven was charged withcontravening a protection order by remaining in a building occupied by the protectedperson. But Mr Bourke confirmed "legal advice was given to Mr Methven about [thecharge] and in the context of wanting to plead not guilty because he did remain on theproperty and that was in fact the nature of the charge. It was not to do with whocontacted who or why he was on the property". Judge Harrison accordingly dismissedthe application to vacate guilty pleas.Relevant law[13] An application to withdraw a guilty plea is an appeal against conviction. Forthe appeal to succeed, Mr Methven must demonstrate a miscarriage of justice hasarisen through the decision to decline his application to vacate the guilty plea.7[14] The Court of Appeal in R v Merrilees emphasised the very rare circumstancesin which a later retraction of guilty plea is permitted, and that "later regret over theentering of a guilty plea is not the test as to whether that plea can be impugned".86 At [13].7 Criminal Procedure Act 2011, s 232(2); and R v Kihi CA395-03, 19 April 2004 at [14].8 R v Merrilees [2009] NZCA 59 at [35].[15] The recent Court of Appeal decision Halpin v R provides a helpful overviewof the circumstances giving rise to a miscarriage of justice for a defendant who wishesto challenge a conviction entered after a guilty plea.9 This includes where an appellantdid not intend to plead guilty to a particular charge, or did not appreciate the nature ofthe charge; where the guilty plea was entered because of trial counsel error; and wherethe defendant has demonstrated a tenable defence.10 On this last circumstance, "it isnot sufficient for an appellant to simply assert his or her innocence. Credible evidencemust be presented to justify a court taking the rare step of vacating a guilty plea".11Unfit state of mind[16] Mr Hannam for Mr Methven argues that new evidence is available in the formof medical records recording he was in an unfit state of mind at the time the guilty pleawas entered. He argued that this state of mind impaired his decision making. Therecords are contained in the medical notes kept by Wanganui Prison detailing30 minute observations on 4–9 July 2018. Mr Hannam says these notes confirmMr Methven was reporting thoughts of self-harm and depression.[17] The fact that a defendant is depressed to the point of him reporting that he isconsidering self-harm does not demonstrate that he was not in a fit state of mind toenter a guilty plea. The evidence for suggesting that Mr Methven was not in a fit stateof mind is very thin, comprising only the notes available at the time. There is no otherevidence of impairment. They do not demonstrate that Mr Methven was not able tofully understand the charges, the advice given to him, or the significance of entering aguilty plea. Many defendants before the Court will suffer from issues of anxiety anddepression. But in order to demonstrate that a guilty plea is to be vacated much morepowerful evidence will be needed to demonstrate the defendant was not fully able tofully appreciate the significance of the guilty plea.[18] Mr Hannam made reference to the decision of the High Court in Gardiner vLevin District Court where low intellect was accepted as a legitimate concern when9 Halpin v R [2018] NZCA 477.10 At [18].11 At [20].determining whether a guilty plea should be vacated.12 But such circumstances aredistinguishable. Here there is no basis for saying that Mr Methven's depression meantthat he was not able to properly appreciate the significance of the guilty plea.[19] This ground of appeal therefore fails.Availability of a reasonably arguable defence[20] Mr Hannam argues a miscarriage of justice will occur if the guilty plea is notwithdrawn because Mr Methven has an arguable defence to the charge. The proposeddefence is that Mr Methven says he was invited onto the property, and did not hear thedirection to leave from the protected person.13[21] I am not satisfied Mr Methven has demonstrated a tenable defence.Mr Methven was charged with contravention of a protection order under s 49 of theDomestic Violence Act 1995. Mr Methven contravened the protection order byremaining on land or building where the protected person is present in circumstancesthat constitute a trespass.14 Mr Methven remained on the property for a further 15minutes after the protected person had repeatedly asked him to leave.15 It is no defenceto this charge that Mr Methven was asked to the property in the first place. The factis he did remain on the property after being asked to leave.[22] Mr Methven says he did not hear the protected person when she asked him toleave. But there must be credible evidence to demonstrate a tenable defence for amiscarriage of justice to occur.16 There is no credible evidence to demonstrateMr Methven did not hear Ms A. The statement of facts says she asked him to leaverepeatedly, and only when she told Mr Methven she had called Police did he then leavethe property.[23] Mr Hannam argues there are "credibility issues" in respect of the protectedperson because her statements in her letter to the court are "substantially different" to12 Gardiner v Levin District Court HC Palmerston North CIV-2006-454-630, 24 November 2006.13 At [16].14 Domestic Violence Act 1995, s 19(2)(d).15 Methven v Police, above n 1, at [2].16 Halpin v R [2018], above n 9, at [20].the facts in the Summary of Facts. She says in her letter that she asked Mr Methven toleave when he arrived. Her letter is consistent with the Statement of Facts. I am notpersuaded there is credible evidence of a tenable defence. The Crown's evidencesuggests that Mr Methven was well advised to plead guilty.[24] For these reasons the appeal is dismissed.Cooke JSolicitors:Hannam & Co. Lawyers, New Plymouth for AppellantCrown Solicitor, New Plymouth for Respondent