IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA60/2019
 [2019] NZCA 671

	
BETWEEN	
JOHN PAUL CLARKSON
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
11 November 2019	

Court:	
Courtney, Brewer and Gendall JJ	

Counsel:	
S K Green for Appellant
E J Hoskin for Respondent	

Judgment:	
19 December 2019 at 11.30 am	

JUDGMENT OF THE COURT

A	The application for leave to appeal is granted.
B	The second appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)
Introduction
[1]	John Clarkson and his then partner, Elyse Payne, got into an argument that turned physical.  Both were charged with assault and both pleaded guilty in the District Court at Hawera in June 2018.  Mr Clarkson was ordered to come up for sentence if called upon within 12 months and to pay $750 reparation.  His appeal against conviction was dismissed.  He seeks leave to bring a second appeal.
[2]	Leave cannot be granted for a second appeal against conviction unless this Court is satisfied that:
(a)	the appeal involves a matter of general or public importance; or  
(b)	a miscarriage of justice may have occurred or may occur unless the appeal is heard.
[3]	As to whether an appeal involves a matter of general or public importance, this Court’s decision in McAllister v R confirms that the test is a high one — leave will generally be declined where the proposed issue involves a factual assessment specific to the circumstances of the case.
[4]	Mr Clarkson’s proposed grounds of appeal are that the High Court Judge erred in finding that:
(a)	Mr Clarkson’s counsel, Mr Bourke, did not act in a position of conflict of interest by appearing for Mr Clarkson and for Ms Payne on instructions from her counsel, when the guilty pleas were entered;
(b)	Mr Bourke’s advice to Mr Clarkson was correct; and
(c)	Mr Bourke did not fail to follow instructions in relation to an application for discharge without conviction on behalf of Mr Clarkson.
[5]	Leave is granted in relation to the proposed first and second grounds of appeal under s 237(2)(b) on the basis that a conviction of assault is serious and the grounds raised could give rise to a miscarriage of justice.
[6]	Leave is refused in relation to the proposed third ground because it does not raise an issue of general or public importance and nor could any miscarriage have arisen from it.  Mr Clarkson complained that Mr Bourke had given inadequate advice in relation to the application for discharge without conviction and had failed to advance the application in a timely way.  But Mr Bourke had ceased acting for Mr Clarkson some weeks before sentencing and, although Mr Clarkson had new counsel at the time of sentencing, he did not advance an application for discharge without conviction and did not waive privilege in relation to that aspect.  
The High Court appeal 
The entry of the guilty plea
[7]	Mr Clarkson and Mr Bourke gave evidence as to the circumstances in which Mr Clarkson’s guilty plea was entered. 
[8]	At the relevant time, Mr Bourke was acting for Mr Clarkson and Ms Woodcock for Ms Payne.   There was a different summary of facts relating to each.  We were provided only with the summary of facts relating to Mr Clarkson. Relevantly, it recorded that:
The defendant and the victim began to argue while breakfast was being made.  
The defendant went to get cutlery for his breakfast but the victim would not move.  
He has pushed her out of the way.  
The victim threw a small Easter egg at the defendant in retaliation.  
The defendant grabbed the victim by the neck and forced her back into the oven and then punched her in the face.  
The victim pushed him away and the defendant punched the victim to the face again.  
The victim pushed the defendant away again and he threw her against a closed door and then into an open doorway.  
The defendant and victim ended up wrestling on the floor and the victim’s son has attempted to call Police.  
The defendant was still wrestling with the victim and she has grabbed him by the testicles and squeezed to get him off her.  
…
The victim has bruising to both sides of her neck, her left cheek and jaw area are swollen and tender.  
…
In explanation the defendant stated that “I don’t believe I caused her any injuries.  I wasn’t trying to hurt her, I only wanted to make her let go because of the pain.”
[9]	Mr Clarkson did not agree with this summary of facts.  Initially he was keen to defend the charge. Mr Bourke discussed the merits and risks of proceeding to trial with Mr Clarkson. On one hand Mr Clarkson had medical evidence of his injuries to support his account. On the other hand there was evidence indicative of injuries to Ms Payne. There was was a risk that Ms Payne’s account would be preferred to that of Mr Clarkson.  Mr Bourke advised Mr Clarkson that if he did decide to defend the charge his position would be improved if Ms Payne were to plead guilty before he came to trial. 
[10]	Ultimately, Mr Clarkson decided to plead guilty and confirmed that decision in writing.  Ms Payne also decided to plead guilty. Mr Clarkson and Ms Payne were still living together at that point and Mr Clarkson was aware that Ms Payne was planning to plead guilty.  
[11]	The pleas were to be entered on 12 June 2018.  Ms Woodcock, who was based in New Plymouth, asked Mr Bourke to appear as her agent that day.  Mr Bourke had appeared as Ms Woodcock’s agent on a previous occasion in relation to an agreed bail variation for Ms Payne. 
[12]	Mr Bourke met Mr Clarkson and Ms Payne at the courthouse on 12 June 2018. He did not have any discussion with either.  They entered the dock together (although they were not charged jointly) and Mr Bourke entered guilty pleas for both.  He ensured that no conviction was entered against Mr Clarkson because of Mr Clarkson’s intention to apply for a discharge without conviction.
[13]	Subsequently Mr Clarkson and Mr Bourke exchanged emails about the proposed application for discharge without conviction.  Mr Clarkson provided material for Mr Bourke to use in the preparation of the affidavit.  Some weeks into this process Mr Clarkson became dissatisfied and terminated Mr Bourke’s retainer.  He engaged another lawyer, Ms Marriner, who appeared for Mr Clarkson at sentencing.  However, as already noted, no application for discharge without conviction was made.
The decision under appeal
[14]	Thomas J recorded the grounds advanced by Mr Clarkson on appeal as being that:
(a)	Mr Bourke had given erroneous advice in relation to whether Ms Payne would be a compellable witness and whose evidence would be preferred;
(b)	Mr Bourke was acting for Mr Clarkson and Ms Payne and therefore had a conflict of interest which influenced his advice;
(c)	Mr Clarkson entered his guilty plea in circumstances of counsel conflict; and
(d)	Mr Bourke’s advice about the requirements for a successful application to be discharged without conviction was wrong.
[15]	The allegation of conflict of interest related to Mr Bourke’s appearance on 12 June 2018.  Ms Green submitted that lawyers cannot appear for two defendants when a plea is entered where there has been a dispute about the summary of facts.  It was advanced against the background that Mr Bourke had previously advised Mr Clarkson that if he decided to proceed to trial and, by the time he came to trial Ms Payne had pleaded guilty, his position would be improved.  The argument was made that, knowing that Ms Payne was to plead guilty, it was incumbent on Mr Bourke to take Mr Clarkson aside prior to entering the guilty plea on his behalf and revisit the question of his plea.
[16]	It was also argued that Mr Bourke had given incorrect advice regarding Mr Clarkson’s probable position at trial because Mr Bourke had failed to understand the distinction between compellability and self-incrimination.
[17]	The High Court Judge rejected both arguments.  On the conflict of interest point she held that:
[23]	It is clear from the evidence that Mr Bourke did not act in a position of conflict.  He identified at the outset that he could not act for both Mr Clarkson and his partner.  He told Mr Clarkson that.  He assisted by identifying an appropriately qualified and experienced lawyer, Ms Woodcock, to represent Mr Clarkson’s partner.
[24]	There is nothing at all unusual in Mr Bourke appearing on two occasions for Mr Clarkson’s partner, acting on instructions from Ms Woodcock.  As Mr Bourke made clear in his evidence, he gave no advice to Mr Clarkson’s partner, he took no instructions from her and he did not charge her.
[25]	It might appear somewhat unusual for Mr Bourke to appear when both Mr Clarkson and his partner were called, and apparently appeared together in the dock to vacate not guilty pleas and enter pleas of guilty.  However, I accept the evidence that, in the smaller centres in provincial New Zealand, this sometimes happens as a matter of necessity.
[18]	On the question of whether Mr Bourke should have revisited the decision to plead guilty, the Judge concluded that:
[40]	It is therefore patently clear that Mr Clarkson received competent and, indeed, relatively comprehensive legal advice as to his options.  He was fully aware of those options and made an informed decision to plead guilty.
[41]	It is artificial to suggest that, once Mr Clarkson’s partner had pleaded guilty, Mr Bourke should have had the matter stood down in order to advise Mr Clarkson effectively to re-evaluate his position.  Mr Clarkson had already been advised that a plea of guilty by his partner would be of some benefit were he to defend the charges.  As Mr Clarkson acknowledged in cross‑examination, he was aware, prior to the day the guilty pleas were entered, that his partner intended to plead guilty.
(footnote omitted)
Appeal 
[19]	Ms Green, for Mr Clarkson, submitted that the High Court Judge’s conclusions were wrong as a matter of law.  She argued that Mr Bourke’s advice had been confused and that the circumstances in which he appeared on 12 June 2018 amounted to a breach of r 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, which provides that:
	Conflicting duties
6.1	A lawyer must not act for more than 1 client on a matter in any circumstances where there is more than a negligible risk that the lawyer may be unable to discharge the obligations owed to 1 or more of the clients.
[20]	The Judge did not refer to r 6.1 and it is not clear that the argument based on r 6.1 was advanced in that court on first appeal. 
[21]	We did not understand Ms Green to argue that counsel could never appear in such circumstances without breaching r 6.1.  Rather, the argument was that, in these particular circumstances, there was a “more than a negligible risk” that Mr Bourke would be unable to discharge his obligations to Mr Clarkson because Mr Clarkson’s own position would change as soon as Ms Payne entered her plea, necessitating fresh advice on the merits of Mr Clarkson entering a like plea.
[22]	Although Mr Bourke did not have a contract with Ms Payne, we agree that he is properly viewed as acting for her on 12 June 2018, having accepted instructions to appear on behalf from her usual counsel.  He was therefore required to exercise reasonable skill and care in undertaking the limited tasks required of him.  This was simply to attend court and enter a guilty plea on behalf of Ms Payne. He was not required to advise Ms Payne on any aspect and he did not purport to do so.  Mr Bourke did, however, continue to owe the usual duties of counsel to Mr Clarkson.  This would include advising him on any change in circumstances that could reasonably be expected to affect Mr Clarkson’s position.
[23]	Mr Bourke’s obligations to Mr Clarkson on 12 June 2018 were, however, to be viewed against Mr Clarkson’s prior decision to plead guilty.  Mr Bourke had advised Mr Clarkson regarding the merits and risks of defending the charge and on the basis of that advice Mr Clarkson had decided to plead guilty.  The Judge held that the advice given was correct. Ms Green argued that it was not and that the Judge was in error. 
[24]	Mr Bourke recorded the advice he gave Mr Clarkson in a file note following a conversation with Mr Clarkson on 25 May 2018.  It said:
Discuss case and evidence with John
-	Obviously two varying accounts that have resulted in charges against both John and Elyse.  
-	Positives = John’s statement is thorough.  He also has medical evidence to demonstrate the injury to his testicles.
-	Discuss potential difficulties proceeding to trial: 
-	As Elyse has entered a [not guilty] plea she is not accepting John’s account and Police have a statement from her.
-	If her matter is heard first and she is found [not guilty] then she is a compellable witness and has given a statement.  So even if she turns hostile Police already have her evidence and can use this.
-	Can’t guarantee whose case will go first.
-	Police can’t have both matters heard at once otherwise can refuse to answer questions through right to protect against self-incrimination/right to silence.
-	Risk that Judge may prefer Elyse’s version of events (or version as per her statement)
-	There is a photo of a scratch on Elyse’s neck.
Explain likely delay to [Judge alone trial].  At least a few months.  John is worried about cost.  Explain that obviously the cost is higher if it proceeds to trial.
John angry with the Police, it’s all bullshit and their fault.  Explain that charge unlikely to be dropped even if Elyse doesn’t want to proceed.
Explain it’s up to John if he wants to proceed to trial.  Yes there will be a higher cost, longer delay but chance to prove his version of events is correct.  But risks attached, Elyse being believed etc.
Otherwise can look at s 106
Explain discharge w/out conviction and process.
[25]	It is evident that Mr Bourke advised Mr Clarkson on the basis that both he and Ms Payne would be required to give evidence at one another’s trials.  In his evidence in the High Court, Mr Bourke described Mr Clarkson’s negative attitude towards the police.  Mr Clarkson had told him that he and Ms Payne intended not to assist the police in the prosecutions but to do what they could to assist one other. 
[26]	Mr Bourke’s advice can be summarised as being that (1) the defence of self‑defence was available; (2) if both Mr Clarkson and Ms Payne defended the charges against them it was not possible to predict which case would be heard first; (3) there was a risk that Ms Payne’s account would be preferred; and (4) if Ms Payne either pleaded guilty or was found guilty prior to Mr Clarkson standing trial, then the risk of her account being preferred would be less because, regardless of what she said in evidence, the certificate of conviction could be produced as evidence that she had assaulted Mr Clarkson. 
[27]	Mr Clarkson also said that Mr Bourke advised him that, if called as a witness at Ms Payne’s trial, he could refuse to answer questions on the basis of the privilege against self-incrimination.  Mr Bourke confirmed that he had given that advice, though, rather confusingly, went on to express the view that Mr Clarkson “[could not] just refuse to answer, that could be a contempt matter”.  
[28]	Ms Green argued that Mr Bourke had misunderstood the effect of s 60 of the Evidence Act 2006 (privilege against self-incrimination) and s 73 (compellability of defendants and associated defendants).  But she did not identify any overall deficiency in the advice that might have affected Mr Clarkson’s decision either before or on 12 June 2018 to plead guilty.  Because there would be separate trials, whichever of Mr Clarkson and Ms Payne came to trial first could be compelled to give evidence against the other at the latter’s trial and would not enjoy a privilege against self‑incrimination at that point.  Thus, had Ms Payne been convicted before Mr Clarkson stood trial, she would likely have been required to give evidence at his trial.  The fact of her conviction would have assisted Mr Clarkson but that did not necessarily mean that Mr Clarkson’s account of not having assaulted her first would be accepted.  It was still possible that Ms Payne’s account of Mr Clarkson’s conduct (reflected in the summary of facts relating to the charge against him) would be preferred.  We agree with the Judge that Mr Clarkson was properly advised. 
[29]	More importantly, Mr Clarkson’s decision to plead guilty reflected a number of factors, not just the legal advice he had received.  In his affidavit filed in support of the appeal, he said that his decision to plead guilty was based on:
(a)	Mr Bourke’s advice that if he went to trial he would need to wait until Ms Payne had her hearing as she would invoke the privilege against self-incrimination; 
(b)	Ms Payne herself could not risk a conviction because of her occupation; 
(c)	the risk that he would not be believed at trial (Mr Clarkson claimed to have been told that this was because the District Court took a dim view of men charged with assault, though Mr Bourke said that he simply identified the risk of Ms Payne’s account being preferred); 
(d)	the cost of trial (Mr Bourke was paying his own and half of Ms Payne’s costs); and 
(e)	the possibility of a discharge without conviction. 
[30]	It is clear that the tactical advantage to Mr Clarkson of Ms Payne being convicted before him was only one of the several factors that influenced his decision to plead guilty.  Moreover, he knew before he went to court on 12 June 2018 that Ms Payne was intending to plead guilty.  In these circumstances we do not accept that Mr Bourke had any obligation to revisit that decision, regardless of whether he appeared only for Mr Clarkson or both Mr Clarkson and Ms Payne for the purposes of entering the guilty pleas.  Nor do we accept that there was a real risk that the outcome on 12 June 2018 would have been different had Mr Clarkson had the opportunity to reconsider his position.  We therefore do not accept that there was any breach of r 6.1.
Result 
[31]	The application for leave to appeal is granted.
[32]	The second appeal against conviction is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent