LAULU v ATTORNEY-GENERAL [2016] NZHC 3202

LAULU v ATTORNEY-GENERAL [2016] NZHC 3202 [23 December 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-000875[2016] NZHC 3202BETWEEN TAPU MAHENDARA LAULUPlaintiffAND ATTORNEY-GENERALDefendantHearing: 14 October 2016Appearances: C J Tennet and T N A Bowman for the PlaintiffN E Copeland for the DefendantJudgment: 23 December 2016JUDGMENT OF PALMER JThis judgment is delivered by me on 23 December 2016 at 1.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel/Solicitors:C J Tennet, Barrister, WellingtonHickey Law, AucklandMeredith Connell, AucklandSummary[1] On 2 March 2016 Judge Ronayne in the District Court refused Mr Tapu Laulu leave to withdraw his guilty plea to a charge of obtaining by deception. The Judge considered the defence Mr Laulu now wanted to offer, compared with his earlier confession, was neither tenable, credible nor reasonably arguable. Mr Laulu applies for judicial review of that decision on the basis it did not take into account relevant evidence, it applied the wrong legal test and failed to consider a particular case. I do not uphold any of these challenges. I decline the application.Facts[2] Mr Laulu was approved by Child, Youth and Family (CYF) to provide care in a CYF Family Home supporting the primary home caregiver, Ms Kimi Rewi. The Ministry of Social Development (MSD) deposited approximately $2,500 perfortnight in Ms Rewi's bank account to cover expenses of caring for the children.Charges and plea[3] On 11 December 2014 and 1 October 2015 Mr Laulu was interviewed by the Internal Fraud Unit of MSD and a Police Constable respectively. At the first interview Mr Laulu admitted he had transferred money, paid by MSD to Ms Rewi, into his own account for online gambling purposes. He explained the mechanics of the transfers and gambling payments. In the second interview Mr Laulu confirmed the transcript of the first interview and also explained he had used Ms Rewi'sEFTPOS card. Mr Laulu's rights were explained to him on both occasions and hehad the opportunity to speak with a lawyer but did not do so.[4] On 30 October 2015, represented by counsel, Mr Laulu pleaded guilty to a charge of obtaining by deception under ss 240(1)(a) and 241(a) of the Crimes Act 1961. Before doing so he read the Summary of Facts and received advice from counsel regarding sentencing. The Summary of Facts stated that, from 26 October2013 to 15 May 2014, Mr Laulu used $13,242.91 to make payments from Ms Rewi'sbank account to Facebook and Google Play and from 11 June 2014 to 24 October 2014 he transferred $10,683.50 from Ms Rewi's account to his own bank account(transferring back only $666.25). Repayment of $23,260.16 was sought by way of reparation.Application to withdraw guilty plea[5] Later, however, Mr Laulu claimed he had taken the rap for something he had not done. On 3 December 2015 he applied to the District Court, under s 115 of the Criminal Procedure Act 2011, for leave to withdraw his guilty plea. He said he had wrongly pleaded guilty, under pressure to assist Ms Rewi, but had not committed the offence. He said he had a defence to the charge and it was in the interests of justice to grant leave to withdraw the plea to avoid the risk of a wrongful conviction. He now says it was Ms Rewi who was the gambler.[6] The application was supported by three affidavits. Two affidavits were from Mr Laulu who was cross-examined at the hearing on 2 March 2016. Mr Laulu said he made up the details relating to payment for gambling and he did not know how much playing online games cost. He said he never really had access to her accounts. Dr Hirini Kaa also provided an affidavit in the nature of a character reference. The application was opposed by the Police.District Court decision[7] On 16 March 2016 Judge Ronayne declined the application for leave.1 He outlined a useful summary of the circumstances in which the Court may exercise its discretion to allow a guilty plea to be withdrawn, based on case law:(i) If the defendant did not appreciate the nature of the charge, or did not intend to admit his or her guilt, or if on the admitted facts the defendant could not have been guilty of the offence charged – R v Taylor.2(ii) If the defendant's ability to determine whether or not to plead guiltywas affected by a permanent impairment or lack of capacity or by ill health or other circumstances – Leeder v Christchurch District Court.31 Laulu v New Zealand Police [2016] NZDC 4294.2 R v Taylor [1967] NZLR 577.3 Leeder v Christchurch District Court [2005] NZAR 18 (HC).(iii) If there is a possible defence to a charge of which the defendant was unaware when she pleaded guilty, whether because of incompetent legal advice or otherwise – Sharp v District Court of Whangarei, R v Merrilees, Watts v R.4(iv) If there is some impropriety in the conduct of the proceedings or of the prosecution – R v Nevan.5[4] Leave will seldom be given when the defendant has had competent and correct legal advice before the plea – R v Stretch.6 – or, except in very rare circumstances, if the Court is satisfied that the plea was made freely on an informed basis. This includes if the defendant has an arguable defence which he or she chose not to advance after proper advice about the charges and the quality of the defence.7[8] To this I would add the general statement by Gault P for the Court of Appeal in Clark v R that the common circumstances which warrant leave "are no more than examples" and that "[t]he underlying object is to avoid a miscarriage of justice, or, perhaps in the prospective context is better viewed from the opposite end, toconsider the interests of justice" which "incorporates not only the interests of the accused but also the interests of the victims and witnesses as well".8[9] Judge Ronayne also cited the judgment of Asher J in Joshi v R:9[22] The onus is on the applicant to clearly establish that he had an arguable defence.10 It is not necessary for the applicant to prove the defence would inevitably succeed, or even be highly likely to succeed. As the Court of Appeal stated in Cooper v R:11In the context of considering the adequacy of advice about possible defences, various terms have been used to describe the nature of the defence required,including an "arguable defence", a "tenable defence", a "credible defence", or a "discernible defence". In acase involving Arms Act charges, Randerson Jreferred to a "reasonably arguable" defence which"ought to be heard".[23] The Court considered the adequacy of advice cases cited to them allhave the "common denominator" of a defence with some substance.4 Sharp v District Court of Whangarei [1999] NZAR 221 (HC); R v Merrilees [2009] NZCA 59,Watts v R [2011] NZCA 41.5 R v Nevan [2006] NZCA 72.6 R v Stretch [1982] 1 NZLR 225 (CA).7 Hussein v R [2011] NZCA 58.8 Clark v R CA 59/02, 28 May 2002 at [14].9 Joshi v R [2015] NZHC 2022 at [22]-[23].10 Sharp v District Court at Whangarei, above n 4, at [233].11 Cooper v R [2013] NZCA 551 at [20].Although the Court did not expressly comment on the merits or otherwise of the test applied in England by which the applicant must establish the defencewould "quite probably" succeed, it appears the Court was inclined to not setthe bar that high.[10] The Judge concluded, with admirable succinctness:[22] The salient features of the applicant's position are:(i) On 11 December 2014, he admitted the underlying facts which underpin the charge.(ii) On 1 October 2015, he specifically adopted and repeated his earlier admissions. He was under appropriate caution.(iii) He secured proper competent legal representation prior to 30 October 2015.(iv) He had read the contents of the Summary of Facts and knew that he would be sentenced on the basis of that document. He knew the sentencing involved punishment and possible reparation. He had had some advice about this.(v) He made no suggestion to his counsel that he was not guilty.(vi) He was not impaired in his judgment in any real or appreciable way either at his interviews or when taking advice and pleading. I comment here that, although the applicant explained in his oral evidence that he was tired in his first interview, his explanations for twice admitting the offending (including the detail of some transactions) and pleading guilty, in some measure lacked an air of reality. In any event, his admissions are consistent with documentary evidence in the form of bank statements. He has, on this, his own application,given no credible reason why if "Kimi" is the offender, shewould use his bank account.[23] Whatever terminology is adopted, it is my clear view that I have to make an assessment of not just whether a technically available defence exists, but also whether it has any realistic prospects of success. I do that bearing in mind that the context of the assessment is an application to vacate a guilty plea where the onus of making out the relevant grounds rests on the applicant. The defence offered, namely a complete denial and blaming another household member, is at least technically available. However, in the context in which it is now proffered, measured against the earlier admissions, it is neither tenable, credible nor reasonably arguable.[24] It is not in the interests of justice to grant leave to the applicant to vacate his guilty plea and, accordingly, the application is refused.Issue 1: Did the Court fail to take evidence into account?[11] Mr Tenet, for Mr Laulu,12 submits the District Court failed to take intoaccount, or sufficiently into account, affidavit evidence explaining Mr Laulu'sposition, omitted relevant facts and weighted the account of the cross-examination unfairly.[12] However, I agree with the submissions of Ms Copeland, for the Attorney- General, that the District Court is not required to refer to all the evidence before it.13Judge Ronayne referred to aspects of the affidavits and cross-examination of Mr Laulu. He did not have to refer to everything. Mr Tenet has not identified any particular piece of evidence, not referred to, which would justify overturning the decision. As I have said in another judgment:14Challenging the amount of weight placed on various factors by a decision- maker is less than propitious of a successful judicial review. It is a tacit acknowledgement that the decision-maker took a relevant consideration into account. It usually signals disagreement about the outcome of the decision without being able to impugn it.[13] I do not consider there is a problem with the weight placed on evidence by here. It is certainly not so out of kilter that the Judge's decision is unreasonable.[14] In oral argument Mr Tenet also submitted Judge Ronayne was wrong tocharacterise Dr Kaa's affidavit as hearsay. However, I do not agree with Mr Tenet it is admissible under the previous consistent statements rule of s 35 of the Evidence Act 2006. I do not understand there to have been a challenge to Dr Kaa's veracity. In any case, I do not consider the treatment of Dr Kaa's statement was material to the Judge's decision.Issue 2: Did the Court fail to adopt the correct legal test?[15] Mr Tenet, for Mr Laulu, submits, with reference to paragraph [23] of the judgment, that the Court failed to adopt the correct legal test. He says the Judge12 Mr Laulu's written submissions were filed by Mr Hirschfeld who applied for, and was granted,permission to withdraw. The oral submissions were presented by Mr Tenet.13 Deliu v Connell [2106] NZHC 361, [2016] NZAR 475 at [34]-[35].14 AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471 at [49].talked down the prospect of Mr Laulu's defence as "technical", when a jury may reasonably come to the view that his explanation would raise a reasonable doubt as to his guilt, and the Judge wrongly considered he was required to assess the defence whereas that is discretionary.[16] Ms Copeland, for the Attorney-General, submits Judge Ronayne did not consider assessment of a defence to be mandatory. Rather he assessed it in order to consider whether there was a realistic prospect of success.[17] I agree the Judge considered he had to assess whether the defence existed and whether it had any realistic prospects of success. But it is not sensible to criticise theJudge's approach on the basis that doing so was discretionary rather than mandatory.His reference to terminology was to the various different terms identified by Asher J in R v Joshi and the Court of Appeal in Cooper to describe the nature of the defence required.15 As Asher J stated, the onus was on the applicant to clearly establish he had an arguable defence.16 Judge Ronayne was considering whether Mr Laulu had done so. Mr Laulu would have had grounds to complain if he had not.Issue 3: Did the Court fail to consider R v Turrall?[18] Mr Laulu submits the Court failed to consider the case of R v Turrall whichemphasises the importance of ensuring no one is wrongfully convicted "even if it ishis own foolish act that has brought the situation about".17 R v Turrall is one of the cases cited by the Court of Appeal in Clark v R for the proposition that the underlying object is to avoid a miscarriage of justice.18[19] It is correct that Judge Ronayne did not cite R v Turrall. But his decision can hardly be said to ignore the proposition it stands for. The whole point of thejudgment, and in particular of examining Mr Laulu's defence, was to ensure no onewas wrongfully convicted. The Judge's key conclusions in that regard were contained in the six sub-paragraphs of paragraph [22] of his judgment.15 Joshi v R, above n 9 and Cooper v R, above n 11.16 Joshi v R, above n 9, at [22].17 R v Turrall [1968] NZLR 312 (SC).18 Clark v R, above n 8.[20] Although I have the notes of evidence, Judge Ronayne had the advantage of hearing Mr Laulu being cross-examined. He considered Mr Laulu's later explanations, for twice admitting the offending including the detail of some transactions and pleading guilty, "in some measure lacked an air of reality". Moreconclusively Judge Ronayne considered his admissions were consistent with documentary evidence, particularly the bank records, which Ms Copeland also took me through. She submitted it would be unusual to be able to go into as much detail about the offending as Mr Laulu did if he had not purchased online gambling credit, as he now says he had not.[21] I agree it was open to Judge Ronayne to conclude the defence was not tenable based on a detailed comparison of Mr Laulu's admissions and the documentary evidence.Result[22] I decline the application for judicial review. Because Mr Laulu is legally aided, I make no costs award.Palmer J