METHVEN v NEW ZEALAND POLICE [2019] NZCA 292

METHVEN v NEW ZEALAND POLICE [2019] NZCA 292 [8 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA145/2019[2019] NZCA 292BETWEEN STUART SIMON BRYCE METHVENApplicantAND NEW ZEALAND POLICERespondentCourt: Courtney, Venning and Dunningham JJCounsel: J C Hannam for ApplicantP D Marshall for RespondentJudgment:(On the papers)8 July 2019 at 11.30 amJUDGMENT OF THE COURTThe application for leave for a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] Stuart Methven pleaded guilty in the District Court at New Plymouth to onecharge of contravening a protection order and one of failing to supply identifyingparticulars to the police. He applied unsuccessfully to vacate the guilty pleas.1He then appealed that decision unsuccessfully.2 He now seeks leave for a secondappeal.31 Police v Methven [2019] NZDC 1340.2 Methven v Police [2019] NZHC 357.3 The application is determined on the papers in accordance with a Minute of Courtney J: Methvenv Police CA145/2019, 30 May 2019.[2] The application falls to be determined under s 237(2) of the Criminal ProcedureAct 2011 which provides that a Court must not grant leave for a second appeal unlesssatisfied that the appeal involves a matter of general or public importance or thata miscarriage of justice may have occurred or may occur unless the appeal is heard.This is a high threshold.4Background[3] In July 2017 Mr Methven was subject to a final protection order in respect ofhis former partner. On 1 June 2018 the police gave Mr Methven a letter advising himthat he could no longer go to the complainant's address and that their relationship wasover. The following week Mr Methven went to the complainant's address, knockedon the door and asked to come in. He claimed that he had done so in response to atext message from the complainant inviting him to retrieve his clothes fromthe address.[4] The complainant refused to let Mr Methven in. She told him to leave. He didnot. He remained on the property for a further 15 minutes despite being told bythe complainant to leave. He only left when the complainant finally called the police.This incident formed the basis for the charge of contravening a protection order.[5] When Mr Methven was arrested the following day he twice refused to allowthe police to take his fingerprints or photograph. His refusals led to the charge offailing to supply identifying particulars to the police.The guilty pleas and application to vacate the pleas[6] Mr Methven sought a sentencing indication in respect of both charges.Judge L Harrison gave a sentencing indication on 26 July 2018 of 15 and a halfmonths' imprisonment. Mr Methven entered guilty pleas following the sentenceindication.[7] On 24 August 2018 Mr Methven applied to vacate the guilty pleas.The application was not heard until 18 January 2019. The matter came before the4 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].same Judge. Mr Methven provided an unsworn affidavit in support of his application,which the Judge appears to have accepted. He also provided a statement by his formercounsel, Mr Bourke.[8] Mr Methven raised two grounds in support of the application. The first wasthat he had decided during the sentencing indication that he no longer wanted to pleadguilty but was not given the opportunity to say so before entering his plea. The Judgedid not accept that this ground had any substance. The audio record of the 26 July2018 hearing was played during the hearing of the application and the Judge wassatisfied that Mr Methven had been represented throughout by competent counsel andhad the opportunity to consult counsel after the sentencing indication had been givenand before the pleas were entered.5[9] Mr Methven's second ground was that, having sought legal advice, he hadbecome aware that he may have had a defence available to him. This defence was,evidently, based on Mr Methven's claim that the complainant had invited him to go tothe property. However, the Judge was satisfied from Mr Bourke's statement thatMr Methven had been properly advised that the charge was based on Mr Methvenremaining at the property after being asked to leave so that it was irrelevant whetherMr Methven had been invited.6Leave to appeal[10] In the High Court Mr Methven raised two grounds of appeal. The first wasthat there was new evidence in the form of medical records indicating that he was inan "unfit state of mind" when he entered the guilty pleas. This ground was supportedby the production of medical notes kept by Wanganui Prison detailing 30-minuteobservations on 4–9 July 2018 said to confirm that Mr Methven was reportingthoughts of self-harm and depression. The second ground was a variation on one ofthe grounds advanced in the District Court; Mr Methven asserted that he hada reasonably arguable defence to the charge, namely that he had been invited ontothe property and did not hear the complainant tell him to leave.5 Police v Methven, above n 1, at [6].6 At [14]–[15].[11] Cooke J began his consideration of the appeal by identifying the recognisedcircumstances that might be regarded as giving rise to a miscarriage of justice for adefendant who wishes to challenge a conviction entered after a guilty plea.7This included where an appellant did not intend to plead guilty or did not appreciatethe nature of the charge or where a guilty plea was entered because of trial counselerror or where the defendant had demonstrated a tenable defence. The Judgeparticularly noted in relation to the last that it was not sufficient for an appellant tosimply assert innocence; credible evidence was needed to justify the rare step ofvacating a guilty plea.8[12] The Judge then turned to consider each of the grounds. He regardedthe evidence about Mr Methven's state of mind as "very thin comprising only the notesavailable at the time. There is no other evidence of impairment."9 He did not considerthat the medical evidence tendered demonstrated that Mr Methven was not able tofully understand the charges, the advice he had received or the significance of enteringa guilty plea.[13] In his memorandum in support of the application for leave in this Court,Mr Methven's counsel, Mr Hannam, accepted that there was no detailed forensicmedical evidence to support the ground but submitted that the records neverthelesspresented Mr Methven as a troubled person suffering from a disordered mental state.We are not satisfied that evidence of the nature relied on either raises an issue of publicor general importance or could provide a reasonably arguable basis to assert amiscarriage of justice.[14] In relation to the second ground the Judge noted the two different aspects ofthe proposed defence. The first, that Mr Methven had been invited onto the property(and which had been raised in the District Court), did not constitute a tenabledefence.10 The charge was contravening the protection order by remaining on land orbuilding where the protected person is in circumstances that constitute a trespass.117 Methven v Police, above n 2, at [15] citing Halpin v R [2018] NZCA 477.8 Halpin v R, above n 7, at [20].9 Methven v Police, above n 2, at [17].10 At [21].11 Domestic Violence Act 1995, s 19(2)(d).The fact that Mr Methven may have been asked to the property in the first place wasnot relevant to proof of the charge, given that he had remained on the property forsome 15 minutes after being asked to leave (this aspect was apparently unchallenged).[15] In relation to the new assertion, that Mr Methven did not hear the complainantasking him to leave, the Judge noted that there was no credible evidence that he hadnot heard the complainant.12 This was the first time Mr Methven had suggested thathe had not heard the complainant's repeated requests. The summary of facts on whichMr Methven sought a sentencing indication and pleaded guilty simply referred to thecomplainant repeatedly telling Mr Methven to leave. He had not raised the issue inhis application to vacate the guilty pleas. In these circumstances, it is not tenable toassert that the High Court erred in finding that there was no credible evidence tosupport this claim.Result[16] Mr Methven has not shown that the proposed second appeal raises any matterof general or public importance, nor that a miscarriage of justice may have occurredor may occur unless the appeal is heard. Leave to appeal is accordingly declined.Solicitors:Hannam & Co Lawyers, New Plymouth for AppellantCrown Law Office, Wellington for Respondent12 Methven v Police, above n 2, at [22]–[23].