Lockett v The Queen

[2018] NZCA 47

IN THE COURT OF APPEAL OF NEW ZEALAND

CA258/2017
[2018] NZCA 47

BETWEEN	JAMIE BEATTIE LOCKETT Appellant
AND	THE QUEEN Respondent

Hearing:	1 March 2018
Court:	Gilbert, Simon France and Whata JJ
Counsel:	Appellant in Person E J Hoskin for Respondent
Judgment:	14 March 2018 at 9.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

1. Mr Lockett seeks leave to bring a second appeal in relation to his convictions.

2. In late August 2014, Mr Lockett was charged with threatening to kill, speaking threateningly (x2), assault and burglary.  The charges relate to what seems to be an ongoing conflict with another person living in the area.  Mr Lockett was remanded in custody.  On 16 December 2014 Mr Lockett, still remanded in custody, was brought to the Court.  At that time he had discussions with a duty solicitor, who in turn discussed the charges with the prosecutor.  As a consequence of these discussions, the threatening to kill charge was reduced to a third charge of speaking threateningly, and the burglary charge was withdrawn.

3. Mr Lockett then pleaded guilty.  When doing so he signed the summary of facts and charge sheets, but added the words “under duress”.  This was a reference to the fact that he was pleading guilty so as to bring to an end his custodial remand.   He had elected trial by jury and there would be a considerable time until trial.       We are advised the sentence imposed on 16 December 2014 equated to time served and Mr Lockett was released that day.

4. Mr Lockett’s primary grievance is that he was denied bail on the basis of what he says is an incorrect police opposition to bail which alleged he was a threat to the safety of police officers.  He does not, however, appear to have appealed the bail decision.  Nor is it suggested Mr Lockett misunderstood the choice he was making in deciding to plead guilty.

5. Six months after the sentencing, Mr Lockett applied for a retrial.               The District Court declined the application.[1]  Mr Lockett then appealed out of time to the High Court.  An extension of time within which to appeal was granted, but     the appeal was dismissed by Edwards J.[2]  Mr Lockett now brings the present application.

   [1]New Zealand Police v Lockett [2016] NZDC 4551.

   [2]Lockett v New Zealand Police [2017] NZHC 88.

6. Mr Lockett advances the same grounds as in the lower courts which revolve around the proposition that he only pleaded guilty under duress. This proposition is supplemented by submissions that he has a defence to all charges sourced in s 56(1) of the Crimes Act 1961, and that a successful defence of a subsequent burglary charge gives rise to the probability of the same outcome here.[3]  These three matters were each considered by Edwards J who concluded that none afforded a prospect of success at a retrial.

   [3]New Zealand Police v Lockett [2015] NZDC 999.

7. The law in relation to when a defendant will be allowed to withdraw a          guilty plea following sentence is well settled.[4]  We see no error in the manner the principles were applied in the courts below.  There is nothing in the material on which Mr Lockett relies that could satisfy the test for revisiting a guilty plea.  This is not a matter of general or public importance, and there is no appearance that a miscarriage has occurred.[5]

   [4]R v Le Page [2005] 2 NZLR 845 (CA).

   [5]McAlister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36]–[39].

8. A separate new ground in support of leave to bring a second appeal concerns the process followed in the High Court.  At the conclusion of the oral hearing Edwards J indicated she would be assisted by an affidavit from the duty solicitor who advised Mr Lockett on the day he pleaded guilty.  For that to happen Mr Lockett would need to provide a waiver which he did subsequent to the oral hearing.        The affidavit was duly filed.  Mr Lockett complains he was not provided with an opportunity to respond to the affidavit.  This would appear to be correct.

9. We are not clear as to the exact basis on which it was agreed the evidence would be obtained.  On the information known to us it was a process error not to give Mr Lockett a chance to respond.  However, we accept the respondent’s submission that it has not given rise to the need for a further appeal.  The basis of Mr Lockett’s application to withdraw his plea was well before the Court and the lawyer’s affidavit does not undermine it in any material way.  We inquired of Mr Lockett what aspect of the lawyer’s affidavit he would have contested.  The only matter of potential relevance was the comment by the lawyer that Mr Lockett was smiling when he wrote “under duress” on the forms.  Assuming the lawyer to be mistaken on that, it is not a matter that affects the current application.  Mr Lockett has not satisfied us that the ability to counter the affidavit would have made any material difference.

10. The application for leave to bring a second appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent