ABBY ROTHWAY AND THE KING

[2024] NZHC 2836

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-000011

[2024] NZHC 2836

BETWEEN

ABBY ROTHWAY

Appellant

AND

THE KING

Respondent

Hearing:	24 September 2024
Counsel:	Appellant in person (via VMR) C R Walker for Crown
Judgment:	1 October 2024

JUDGMENT OF BOLDT J

Introduction

[1]                 The appellant, Mr Abby Rothway, appeals against his convictions on charges of robbery and  intentional  damage.1  He  was  self-represented,  both  in  the  District Court and this Court.

[2]                 Mr Rothway argues a miscarriage of justice occurred. His principal contention is that the Judge should have declared a mistrial because the court-appointed amicus accidentally misgendered Mr Rothway in correspondence.

1      Crimes Act 1961, ss 234 and 269(2)(a). Maximum penalties of 10 years’ imprisonment and seven years’ imprisonment respectively.

ROTHWAY v R [2024] NZHC 2836 [1 October 2024]

Background

[3]                 On 20 March 2023, Mr Rothway robbed a Noel Leeming store in Napier. He demanded $100 from a Noel Leeming employee and punched him in the head when he did not respond immediately. Mr Rothway also picked up a chair and smashed a computer monitor, then picked up another chair and threw it at staff members. An employee gave Mr Rothway $100, and Mr Rothway left the store.

[4]                 There is no dispute about any of the underlying facts; indeed the robbery, the assaults and the damage to the computer monitor were all recorded on CCTV.

[5]                 Mr Rothway was charged with robbery and intentional damage and pleaded not guilty. After spending 14 months in custody on remand, he stood trial before Chief Judge H M Taumaunu in the Napier District Court. The Chief Judge recorded that the facts underpinning the  charges  were  clearly  proven,  and  he  convicted  Mr Rothway on both charges.2

[6]                 On 20 May 2024, the Chief Judge sentenced Mr Rothway to 22 and a half months’ imprisonment on the robbery charge, with a six-month concurrent sentence for the intentional damage.3 Given the time that Mr Rothway had already served on remand, he was eligible for immediate release.

[7]                 Despite there being no dispute about the facts giving rise to Mr Rothway’s convictions, he appeals against those convictions, arguing the Chief Judge should have declared a mistrial. Mr Rothway argues he was irremediably prejudiced in the District Court.

The appeal

[8]                 The Chief Judge directed reports under s 38 of the Criminal Procedure (Mentally Impaired) Persons Act 2003 to help him determine whether Mr Rothway was fit to stand trial. Mr Rothway strongly opposed the preparation of the s 38 reports, describing them as medical policing.

2      R v Rothway [2024] NZDC 11090 [Decision under appeal].

3      R v Rothway [2024] NZDC 12235.

[9]                 The reports disclosed that Mr Rothway has a range of complex mental health difficulties which have been present throughout much of his life, but that he was neither insane for the purposes of s 23 of the Crimes Act 1961, nor unfit to stand trial for the purposes of s 4 of the Criminal Procedure (Mentally Impaired) Persons Act.

[10]             That said, given Mr Rothway’s mental health and his refusal to instruct counsel, the Chief Judge appointed an amicus, Mr Roger Philip, to advance any evidence or submissions which may assist Mr Rothway’s defence at trial. Mr Rothway strenuously opposed that appointment.

[11]             While attempting to engage with him, Mr Philip sent Mr Rothway a letter which accidentally misgendered him. Mr Rothway maintains he was then treated differently during his remand in an intervention and support unit.

[12]             Mr Rothway contends Mr Philip’s misgendering of him in correspondence irrevocably tainted the proceeding, causing irreversible prejudice. He contends that Mr Philip’s error should be regarded as the Court’s error. He effectively argued (though he did not use these words) that the misgendering rendered the entire proceeding a nullity.

[13]             Mr Philip apologised for his mistake. That apology was reiterated by the Chief Judge in his oral decision convicting Mr Rothway. The Chief Judge observed:4

[17] … Mr Rothway gave submissions at  the  end of the hearing where again he accepted that he physically committed the act but the hearing itself has been unfair. He was particularly concerned about the appointment of Amicus Mr Philip. He did not agree to that and opposed it throughout the course of this proceeding, and he was also upset by the fact that he had been addressed inappropriately in terms of his gender in a letter that was written to him by Mr Philip. I note that in Mr Philip’s submissions he apologised in Court for that error.

…

[20] Now I have gone to some extent here to canvas the actual submissions made by Mr Rothway because first of all, I want Mr Rothway to know that I actually do hear his submissions, understand them and now I want to be quite clear about those submissions. They are not relevant to the job that I have now, the task I have is to look at the evidence that relates to the charges themselves, to the day in question and for the various reasons I have already

4      Decision under appeal, above n 2.

given, I am satisfied beyond reasonable doubt that the evidence is sufficient to prove these charges to the requisite standard.

Discussion

[14]             It is clear there has been no miscarriage of justice. Mr Rothway’s responsibility for the robbery and intentional damage has never been in doubt; he admitted the offending at trial, and repeated that admission in submissions before me on appeal. When asked to describe what prejudice had arisen as a result of the misgendering, Mr Rothway spoke about difficulties he perceived in his treatment while on remand, including false rumours, though it is unclear how any of those matters might have been linked to Mr Philip’s mistake.

[15]             It scarcely needs to be said that not every error by the Court or counsel will give rise to a miscarriage of justice. A miscarriage will only arise if an error, irregularity or occurrence affecting the trial creates a real risk that the outcome was affected, or results in a trial that is either unfair or a nullity.5 Mr Philip’s inadvertent error did not affect the trial in any way, and did not touch upon its fairness. Moreover, as already noted, there remains no doubt whatever that Mr Rothway robbed the   Noel Leeming store and damaged a computer monitor as alleged. It follows the appeal must fail.

Result

[16]The appeal is dismissed.

Boldt J

Solicitors:
Crown Solicitor, Napier for Respondent

5      Criminal Procedure Act 2011, s 232 (4).