Mylesha Port Tihema v The King

[2023] NZSC 37

NOTE: NO PUBLICATION OF THE YOUTH COURT PROCEEDINGS REFERRED TO AT PARAGRAPH [32] OF THE COURT OF APPEAL JUDGMENT ([2022] NZCA 444) IS PERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT WITH LEAVE OF THE COURT THAT HEARD THE PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL OR TECHNICAL NATURE THAT DO NOT INCLUDE THE NAME(S) OR IDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANY PERSON HAVING THE CARE OF THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR IS ATTENDING.

NOTE: NO PUBLICATION OF THE FAMILY GROUP CONFERENCE PROCEEDINGS REFERRED TO AT PARAGRAPH [77] OF THE COURT OF APPEAL JUDGMENT ([2022] NZCA 444) IS PERMITTED UNDER S 38 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT AS PROVIDED UNDER S 38(2) OF THAT ACT.

 NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY PERSON UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

 NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF “H”  PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 109/2022
 [2023] NZSC 37

BETWEEN	MYLESHA PORT TIHEMA Applicant
AND	THE KING Respondent

SC 116/2022
BETWEEN	CYLE ROBERT JETSON Applicant
AND	THE KING Respondent

Hearing:	31 March 2023
Court:	Ellen France, Williams and Kós JJ
Counsel:	N P Chisnall KC and L A Elborough for Applicant in SC 109/2022 J E L Carruthers for Applicant in SC 116/2022 D R La Hood, D L Elsmore and O J Cann for Respondent
Judgment:	20 April 2023

JUDGMENT OF THE COURT

A The application for leave to appeal by Ms Tihema is granted to the extent described below (Tihema v R [2022] NZCA 444).

B  The approved question is whether the Court of Appeal was correct to determine that no miscarriage of justice arose from the failure to obtain instructions from Ms Tihema at the conclusion of the Crown case on the election to give evidence.

C The application for leave to appeal by Mr Jetson is granted to the extent described below (Tihema v R [2022] NZCA 444). 

D        The approved question is whether the Court of Appeal was correct to determine that no miscarriage of justice arose from the trial Judge’s directions relating to the evidence of Mr Sampson‑Arps, a prison informant. 

____________________________________________________________________

REASONS

1. Leave to appeal is granted to Mr Jetson on the basis that the Court will not  revisit the approach to the admissibility of prison informant evidence set out in W (SC 38/2019) v R,[1] and in Roigard v R.[2]  Rather, counsel will need to focus on whether the Court of Appeal in this case has correctly applied the principles in those two decisions in its assessment of the directions given in relation to the evidence of Mr Sampson-Arps. 

   [1]W (SC 38/2019) v R [2020] NZSC 93, [2020] 1 NZLR 382.

   [2]Roigard v R [2020] NZSC 94, [2021] 1 NZLR 338.

2. Both applicants raised other proposed grounds of appeal.  In explaining why leave to appeal is declined on these other grounds, it is helpful to note that the applicants were jointly convicted, along with Ms Tihema’s mother, of murder.  A fourth person, H, pleaded guilty to manslaughter.  The applicants’ appeals against conviction were dismissed.[3]   

   [3]Tihema v R [2022] NZCA 444 (French, Venning and Moore JJ).

3. At the time the victim was murdered, Ms Tihema was 15 years old.  She was found fit to stand trial, but “on the cusp”, in pre-trial rulings on her fitness.[4]  The primary diagnosis is Fetal Alcohol Spectrum Disorder.  Ms Tihema wants to argue a miscarriage of justice occurred because, in essence, she was “a bystander at her own trial”.  Aside from the aspect on which we have given leave, this proposed ground covers a number of matters, namely, a challenge to the sufficiency of the special measures adopted at the trial Judge’s direction to try to ensure her effective participation; the natural justice implications arising from Ms Tihema’s trial and appeal; and whether her instructions as to her defence were followed.

   [4]T (CA372/2019) v R [2019] NZCA 551.

4. In terms of these matters, we see the issues arising from Ms Tihema’s apparent inability to settle on a decision about whether she should give evidence as the critical issue.  It follows that the other issues in a practical sense fall away as independent grounds.  It is not in the interests of justice to grant leave to appeal on these other issues. 

5. Both applicants also sought leave to challenge the Court of Appeal’s assessment of the directions given about H’s evidence.  It may be that there is a general question about the approach to be taken to warnings given to accomplices but we do not see the prospects of success on this point as such as to warrant a grant of leave.

6. In addition, Mr Jetson wishes to argue that the Court of Appeal was wrong to conclude that the record of his first police interview, although obtained in breach of rr 3 and 4 of the Chief Justice’s Practice Note on Police Questioning, was admissible under s 30 of the Evidence Act 2006.  This issue does not raise any general question but rather involves the application of the relevant principles to the specific facts.  Nor do we see any appearance of a miscarriage in the Court of Appeal’s approach to this issue.

7. Leave to appeal is accordingly granted to both applicants on the terms we have set out.

Solicitors:
Crown Law Office, Wellington for Respondent