I TE KŌTI PĪRA O AOTEAROA CA116/2017 [2018] NZCA 477. CHRISTOPHER ROBERT HALPIN Appellant. THE QUEEN Respondent JUDGMENT OF THE COURT

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1 NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA CA116/2017 [2018] NZCA 477 BETWEEN AND CHRISTOPHER ROBERT HALPIN Appellant THE QUEEN Respondent Hearing: 8 October 2018 Court: Counsel: Judgment: Cooper, Venning and Collins JJ Appellant in person E J Hoskin for Respondent 6 November 2018 at 3 pm JUDGMENT OF THE COURT The appeal is dismissed. REASONS OF THE COURT (Given by Collins J) Introduction [1] Mr Halpin appeals a decision of Judge Spear delivered in the District Court at Hamilton on 20 January 2017, in which the Judge declined Mr Halpin s application to HALPIN v R [2018] NZCA 477 [6 November 2018]

2 vacate his pleas of guilty to two charges of indecent assault. 1 Mr Halpin pleaded guilty on 21 November 2016 after receiving a sentence indication. He was sentenced by Judge Spear on 20 January 2017 to two years imprisonment and was released immediately because of the time he had spent in custody on remand. [2] The appeal is against conviction. 2 Mr Halpin must therefore demonstrate that a miscarriage of justice has arisen through the decision to decline his application to vacate his guilty pleas. 3 Background [3] Mr Halpin initially faced trial in relation to one charge of indecency assaulting T and four charges of indecently assaulting C. The trial was scheduled to commence on 21 November That morning, Mr Sutcliffe, who was Mr Halpin s trial counsel, sought a sentence indication from Judge Spear. The Judge indicated a sentence of two years imprisonment if Mr Halpin pleaded guilty to the charge concerning the offending against T and a representative charge covering the offending against C. Judge Spear appreciated that because Mr Halpin had been remanded in custody for approximately 17 months he was likely to be released immediately if he accepted the sentence indication. [4] Mr Halpin consulted his lawyer and accepted the sentence indication. He was convicted and released on bail until sentencing on 14 December On 14 December 2016, Mr Halpin s new counsel made an application to vacate the guilty pleas. That application was adjourned to 20 January 2017 and was heard and determined immediately prior to Judge Spear sentencing Mr Halpin to two years imprisonment. [5] The summary of facts, which Mr Halpin accepted when he pleaded guilty, alleged that Mr Halpin asked T and her friend to move a pile of rubbish at the rear of a property where he was staying. This occurred in either in September or October 2010 on the street outside an address in Auckland. At the time, T was eight years old 1 R v Halpin [2017] NZDC R v Kihi CA395-03, 19 April 2004 at [14]. 3 Criminal Procedure Act 2011, s 232(2).

3 and her friend was 10 years old. Mr Halpin offered to pay them $5 for their labours. He then took them around the back of the property. While showing the girls where to move the rubbish, Mr Halpin approached T from behind, grabbed her waist and then moved his hands to her breasts. He squeezed her breasts and then felt her bottom with both hands. She pulled away. As she walked off, Mr Halpin called out that he would pay her $5 if she showed him her tits. [6] The summary of facts in relation to C, who was also eight years old, alleged that during December 2014 Mr Halpin indecently assaulted her on three occasions at an address in Ngātea in the Thames Valley. On the first occasion, Mr Halpin is said to have grabbed C s bottom and crotch through her clothing when she was decorating a Christmas tree. On the second occasion, when C was in her brother s bedroom, Mr Halpin is said to have grabbed C by her bottom, pulled her legs apart and then touched her genitalia through her clothing. He also attempted to remove her shorts and asked: Do you want to be my girlfriend? On the third occasion, Mr Halpin squeezed C s bottom when they were in a garage together at the Ngātea address. He also made a comment to C about her wearing sexy underwear. The application to vacate the guilty pleas [7] The application by Mr Halpin to vacate his guilty pleas was advanced on two grounds: (a) that he had a tenable defence, which had not been properly advanced; and (b) that he immediately regretted changing his pleas to guilty as he had always maintained his innocence. [8] Mr Halpin supported his application with a detailed affidavit from himself and affidavits from Ms Walters in relation to the charge that he had indecently assaulted T and affidavits from Mr Wilson, Ms Wilson and Mr Lundon in relation to the charge he had indecently assaulted C. The Crown filed an affidavit from Mr Sutcliffe in opposition to the application for leave to vacate the guilty pleas.

4 [9] In his affidavit, Mr Halpin said that he did offer some work to two young girls when he was staying at his daughter s address in Auckland, but that he did not touch either of them in a sexual way or make the comments attributed to him by T. [10] In relation to the offending in Ngātea, Mr Halpin says he can recall visiting the home where C lived and seeing her decorating a Christmas tree. He says he did not touch C. Mr Halpin says he revisited C s home a few days later and stayed the night. In his affidavit, Mr Halpin says that the following morning he spoke to C in her brother s bedroom for about five minutes. He maintains he did not touch her. Mr Halpin says he again visited C s home in the early hours of 25 December No one was awake. He says he left presents at C s home and continued on his way to the place where he was living. Mr Halpin says the next contact he had with C and her family was in February 2015, when he stayed in a panel van parked at their property. He maintains nothing untoward occurred between himself and C on this occasion. [11] In her affidavit, Ms Walters says she can recall Mr Halpin talking to two girls on the street outside the property where he was staying and that Mr Halpin talked to them about helping him tidy up his yard. Ms Walters does not, however, make any comment about seeing the young girls at the back of the property where T says she was sexually assaulted by Mr Halpin. Ms Walters was not in any position to comment on the events that formed the first charge against Mr Halpin. [12] The affidavits from Mr Wilson, Ms Wilson and Mr Lundon deal with their interactions with Mr Halpin from early December 2014 through to February None were present, however, at the address in Ngātea where C says Mr Halpin offended against her. [13] In his affidavit, Mr Sutcliffe explained that Mr Halpin s guilty pleas were entered following extensive discussions between himself and Mr Halpin. Mr Halpin then provided the following signed written instructions: I Christopher Halpin DOB 15/7/64, have had discussions with my counsel, Mr Sutcliffe, following Judge Spear s indication, that he would sentence me on the basis, of time served, and I would be bailed pending sentence.

5 Considering all factors, I have decided, that I will plead guilty to two (2) charges, as proposed by the Crown. I am not happy with this but having weighed up the risks and the benefits, I have agreed to do this. [14] In his affidavit, Mr Sutcliffe says that: Mr Halpin had indicated that notwithstanding his innocence he accepted any jury was likely to accept the word of the complainant and witnesses over his. But he was always adamant that despite that view he was innocent and that is why he could not bring himself to plead guilty. [15] Mr Sutcliffe also explained that Mr Halpin asked whether, if he did plead guilty, he could then find witnesses and then have a trial. Mr Sutcliffe explained to Mr Halpin that whilst that course of action was technically possible, the chance of an application to vacate his guilty pleas being granted was remote. Thereafter, Mr Halpin decided to plead guilty. Judge Spear s decision [16] Judge Spear examined the affidavit evidence relied upon in support of the application and concluded that none of the matters contained in the affidavits provided a defence to the charges. 4 [17] Judge Spear therefore reasoned that Mr Halpin had not demonstrated that he had a tenable defence. The Judge also commented that the fact that Mr Halpin almost immediately regretted changing his pleas to guilty was not a persuasive factor. 5 Governing principles [18] This Court has previously explained that a defendant who wishes to challenge a conviction entered after a guilty plea must demonstrate that a miscarriage of justice will occur if the conviction is not overturned. Examples of circumstances giving rise to a miscarriage of justice following a guilty plea were considered in Richmond v R, and include cases where: 6 4 R v Halpin, above n 1, at [32]. 5 At [37]. 6 Richmond v R [2016] NZCA 41 at [17] [18], citing R v Le Page [2005] 2 NZLR 845 (CA) at [17] [19]; and R v Merrilees [2009] NZCA 59 at [34].

6 (a) an appellant did not intend to plead guilty to a particular charge, or did not appreciate the nature of the charge; (b) the appellant could not, as a matter of law, have committed the offence; (c) where the plea was induced by an incorrect ruling on a question of law; and (d) the guilty plea was entered because of trial counsel error. [19] In R v Merrilees, this Court said: 7 [35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances. [20] A common thread in all cases in which guilty pleas have been allowed to be vacated has been the ability of the appellant to demonstrate a tenable defence. It is not sufficient for an appellant to simply assert his or her innocence. Credible evidence must be presented to justify a court taking the rare step of vacating a guilty plea. Analysis [21] We have carefully examined the affidavit evidence filed in support of Mr Halpin s application and agree with Judge Spear that it falls short of demonstrating that a tenable defence was available to Mr Halpin. We summarise our reasons for this conclusion as follows: (a) Ms Walters saw Mr Halpin speaking to T and her friend at the front of the property where Mr Halpin was staying. The first charge alleged Mr Halpin indecently assaulted T at the rear of the property. 7 R v Merrilees, above n 6.

7 Ms Walters did not see T and her friend where T says the offending took place. Ms Walters evidence is therefore not directly relevant to the first charge. (b) Similarly, the evidence from Mr Wilson, Ms Wilson and Mr Lundon is not directly relevant to C s allegations that Mr Halpin had indecently assaulted in her home at Ngātea on various occasions in late None of them were present when C says the offending occurred. [22] While we accept Mr Halpin regretted changing his pleas soon after he did so, that is not the test. [23] Mr Halpin accepted the sentence indication after discussing his options with Mr Sutcliffe and knowing that it was highly unlikely he would be able to subsequently vacate his guilty pleas. Mr Halpin s decision to plead guilty was a reasoned and informed decision that was not made in error. [24] In these circumstances, Mr Halpin has failed to demonstrate a miscarriage of justice occurred when Judge Spear declined his application to vacate his guilty pleas. Result [25] The appeal is dismissed. Solicitors: Crown Law Office, Wellington for Respondent