SILVIA CARTWRIGHT, Governor-General
ORDER IN COUNCIL
At Wellington this 28th day of June 2002
RIGHT HONOURABLE HELEN CLARK PRESIDING IN COUNCIL
Her Excellency the Governor-General, acting under section 406 (a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers the question of the convictions of Alec Kynaston Waugh for the offence of using a document with intent to defraud to the High Court for hearing and determination. The background to, and the reason for, the reference appear in the Schedule.
1. Interpretation-In this Schedule-
applicant means Alec Kynaston Waugh.
2. Conviction and sentence-(1) On 16 March 1998, the applicant was convicted in the District Court at Wanganui on 10 counts of using a document with intent to defraud, contrary to section 229A of the Crimes Act 1961.
(2) On 16 March 1998, the applicant was sentenced by the District Court at Wanganui to a fine of $1,000.00 on each of the charges he was convicted on, and ordered to pay $4,000.00 towards the costs of the prosecution and $130.00 Court costs.
3. Circumstances of applicant's plea of guilty-(1) The applicant was a police officer of 32 years' standing. He appeared in the District Court at Wanganui on 23 February 1998 on 21 charges of using a document with intent to defraud, contrary to section 229A of the Crimes Act 1961. The charges related to claims for reimbursement from his employer of travel expenses and telephone charges. The applicant entered a plea of not guilty. After the prosecution case was heard, the defence elected to call evidence. Counsel for the defence indicated that he intended to call the applicant and 16 other witnesses.
(2) The applicant gave evidence in chief for two days. Just before the afternoon adjournment on the second day, Thursday, 12 March 1998, counsel were called into the Judge's chambers. In chambers, the Judge asked what effect the proceedings could have on the applicant's superannuation and, because counsel seemed unsure, suggested that enquiries be made. The applicant and his counsel decided to check the applicant's pension rights following a conviction via a third solicitor, who contacted Police National Headquarters and relayed the information back to the applicant's counsel.
(3) The information given to the applicant regarding the applicant's pension rights was that-
(a) in the event that the applicant was convicted of an offence and consequently dismissed, the Police Commissioner had a discretion to withhold the employer's contributions and the applicant would not be entitled as of right to the option of deferring the commencement of the pension; and
(b) if the applicant were to resign, the resignation would have the effect of enabling the applicant to receive the employer contributions and to have the deferral option; and
(c) the police would only accept a resignation if it was offered before any conviction was entered against him.
(4) The applicant resigned from the police on Sunday,
15 March 1998, and pleaded guilty to 10 of the charges against him on Monday, 16 March 1998. Soon after this, the applicant discovered that the information regarding his pension rights was incorrect and that his pension was not liable to reduction in the event of dismissal.
(5) Counsel for the Crown advised the applicant's counsel on Thursday, 12 March 1998, that if the applicant continued with his evidence the Crown would have a case of perjury against him. The next day, counsel for the Crown twice raised the issue of a perjury charge if the applicant continued to defend the case. Counsel for the applicant informed the applicant of the perjury threats and advised the applicant that the perjury threats should be taken seriously.
4. Applicant's application for exercise of mercy of the Crown-(1) The applicant's application for the exercise
of the mercy of the Crown in respect of his 10 convictions for using a document with intent to defraud was made on
26 June 2001.
(2) Two of the grounds of the application are that-
(a) misinformation from the police concerning the effect on the applicant's pension rights were the applicant to be dismissed influenced the applicant's decision to plead guilty; and
(b) threats of perjury charges if the applicant continued to give evidence influenced the applicant's decision to plead guilty.
5. Documents-(1) The following documentary material was considered in determining the application:
(a) the petition and two volumes of documents (Appendices 1-76) filed in its support;
(b) the District Court record;
(c) the Ministry of Justice file;
(d) the report of Sir Thomas Thorp dated 29 April 2002 re a petition for the exercise of the Royal prerogative of mercy by Alec Kynaston Waugh, in which Sir Thomas Thorp concludes that-
(i) while the final decision of the applicant to plead guilty to 10 charges may well have been motivated by other factors than his concern that he might lose pension rights, it is probable
that the misinformation about those rights and the perceived need to protect them were the predominant reasons for the applicant's change of plea; and
(ii) while it is more difficult to assess how far the threats of a perjury charge may have affected the applicant's decision to plead guilty, it is at least probable that to some extent they did.
6. Reason-The reason for the reference is that the documents described in clause 5 indicate that evidence is available that could lead the High Court to the conclusion that the applicant's pleas of guilty were the result of improper pressures and, therefore, that there may have been a miscarriage of justice.
MARIE SHROFF, Clerk of the Executive Council.