Robertson v Police

[2018] NZHC 3366

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2018-419-66

[2018] NZHC 3366

BETWEEN

KELLY ROBERTSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

17 December 2018

Appearances:

Appellant in person

B T Vaili for Respondent

Judgment:

17 December 2018

JUDGMENT OF BREWER J

Solicitors:
Almao Douch (Hamilton) for Respondent

ROBERTSON v POLICE [2018] NZHC 3366 [17 December 2018]

[1]Mr Robertson appeals his conviction for male assaults female.

[2]        Mr Robertson entered a plea of guilty to that charge but he submits he should succeed in his appeal because he pleaded guilty only to get out of jail. He had consistently been denied bail and he submits that although he had a strong defence, he thought he needed to enter his plea of guilty because he would be time-served and would be assured of immediate release. That is what happened.

[3]        Mr Robertson, who represents himself, has not filed any written submissions and he wants an adjournment of the appeal. He tells me he is not long out of jail and his previous counsel holds a lot of the information he would need to advance the appeal. This information includes affidavits of potential witnesses who would undermine the credibility of the allegations made by the victim. He also has an affidavit from the complainant sworn on 3 May 2018 recanting her complaint to the Police. Mr Robertson says he needs to raise money to pay his debt to his former counsel before she will release the affidavits.

[4]        The Crown opposes granting Mr Robertson an adjournment on the basis that the appeal could not possibly succeed. That is because what Mr Robertson did was on a fully informed basis. There was no error, irregularity or occurrence that has either created a real risk the outcome of the trial was affected or has resulted in a trial that was either unfair or a nullity.

[5]        The Crown points out that originally Mr Robertson was charged with injuring with intent to injure.   The trial was scheduled for 31 October 2018.   However,     Mr Robertson was offered the opportunity to enter a plea of guilty to male assaults female. Mr Robertson took that offer and entered his plea on 19 October 2018, a week- and-a-half before the scheduled hearing.

[6]        On that basis, I cannot see Mr Robertson meeting the miscarriage of justice threshold. It might be he entered a plea of guilty not because he was guilty but because he had a secondary purpose. However, given that the plea bargain was accepted a week-and-a-half before trial, that seems unlikely. It is true there is an affidavit from

the complainant recanting her complaint, but that by itself is not enough in a case such as this.

[7]        Mr Robertson is not in a position to take his appeal further as matters stand. On the foregoing basis, the appeal is dismissed.

Brewer J