Application to change plea — Criminal Procedure Act 2011, s 115 — R v Clark 28 May 2002 CA 59/02. The defendant, Mr Ropiha, was originally charged with a number of drug related offences, as well as one charge under the Arms Act of being unlawfully in possession of a firearm. He entered not guilty pleas, leading the Crown to subsequently present an amended Crown charge notice, charging the defendant with possession of methamphetamine for supply (as a representative charge) and a second charge of supplying methamphetamine (as a representative charge), as well as the original charge of being unlawfully in possession of a firearm. The defendant appeared in the Napier District Court by way of AVL link from prison, and counsel appearing for the defendant entered guilty pleas to charges 1 and 2. Counsel for the defendant was detained in a matter before another court and so his instructing solicitor appeared and entered the pleas on the defendant's behalf. Eight months later the defendant filed an application for leave to withdraw his guilty pleas, relying on the grounds that the Court had the power to do so under s 115 of the Criminal Procedure Act 2011; that the plea was made under pressure; that he had a defence to the charges and ought to be heard; that it was in the interests of justice to order the change in plea; and that he did not enter the guilty pleas and they were entered beyond his instructions. The application relied on s 115(1) of the Criminal Procedure Act 2011. The Judge also referred to the test laid out in R v Clark, noting that the onus of making out the relevant grounds rests on the defendant. Specifically, the grounds allowed for a plea withdrawal were summarised by the Judge as being: (a) If the defendant did not appreciate the nature of the charge, or did not intend to admit his or her guilt, or, if on the admitted facts, the defendant could not have been guilty of the offence charged. (b) If the defendant’s ability to determine whether or not to plead guilty was affected by a permanent impairment or lack of capacity or by ill-health or other circumstances. (c) If there is a possible defence to the charge of which the defendant was unaware when he or she pleaded guilty, whether because of incompetent legal advice or otherwise. (d) There is some impropriety in conduct of the proceedings or of the prosecution. The affidavit submitted by the defendant raised the aforementioned grounds for leave and the Judge viewed that, on balance, much of the affidavit dealt with factual matters concerning the charges. First, the transcript from when the pleas were entered showed that the defendant made no complaints at the time, and under cross-examination, accepted that it occurred as discussed with his lawyer, and that he had recommended it go that way. The defendant disputed that this was the same as taking up the recommendation; however, it was put to the defendant that he had been in Court many times and would have complained if the pleas entered were not as he intended. In an affidavit, and subsequent cross-examination, the defendant's original lawyer emphasised that the defendant had agreed to the proposal of pleading guilty to the representative charges. Further, s 11 of the Criminal Procedure Act provides for the defendant's case to be conducted by a lawyer. The Judge assessed the credibility of the defendant, considered the viability of his potential defence, and so the application to vacate the guilty pleas was dismissed. Judgment Date: 13 February 2018.