Su'a v R - [2017] NZCA 439

IN THE COURT OF APPEAL OF NEW ZEALAND

CA283/2015
[2017] NZCA 439

BETWEEN	JEREMIAH CHRISTOPHER SUʼA Appellant
AND	THE QUEEN Respondent

Hearing:	30 August 2017
Court:	Miller, Courtney and Gendall JJ
Counsel:	Appellant in Person C J Tennet as Counsel Assisting S K Barr for Respondent
Judgment:	5 October 2017 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to bring the appeal is granted.
BThe appeal is dismissed.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

Following a police operation in 2013 Jeremiah Su’a was arrested with several others for methamphetamine-related offending. He faced a total of 11 charges comprising various counts of supply, possession for supply and conspiracy to supply methamphetamine. His wife, Kimberley Meihana-Su’a, faced two charges of supplying methamphetamine. One charge, that of supplying one ounce of methamphetamine in November 2013, was common to both defendants.
Simon Hewson acted as counsel for both Mr Su’a and Ms Meihana-Su’a. He negotiated a reduction in the charges against them, which led to Mr Su’a pleading guilty to one representative charge of possessing methamphetamine for supply and one representative charge of conspiracy to supply. Dobson J imposed a sentence of five years 11 months imprisonment.[1]
[1]R v Weston [2014] NZHC 3260.
Mr Su’a appeals his conviction.[2] The appeal rests on aspects of Mr Hewson’s conduct. Mr Su’a alleges that Mr Hewson:
(a)wrongly advised Mr Su’a that he did not have a tenable defence;
(b)failed to oppose a Crown application to adduce evidence of Mr Su’a’s previous conviction;
(c)failed to ensure that Mr Su’a had full disclosure;
(d)negotiated with the Crown without Mr Su’a’s authority;
(e)assured Mr Su’a that if he pleaded guilty he could expect a sentence of two-and-a-half years’ imprisonment; and
(f)did not consult Mr Su’a regarding the amended summary of facts prior to the plea being entered.
[2]An appeal against sentence was abandoned before the hearing.
Mr Su’a appeared at the appeal hearing in person by AVL, legal aid having been declined. This Court’s view was that whatever its propects of ultimate success the appeal was complex and Mr Su’a could not be expected to present it without the aid of counsel. Accordingly, Mr Tennet was appointed by the Court, not as amicus curiae but to assist Mr Su’a. Crown counsel cross-examined Mr Su’a. Mr Tennet prepared affidavits for Mr Su’a in support of the appeal, cross-examined Mr Hewson and made written and oral submissions on Mr Su’a’s behalf.
The appeal was brought out of time and Mr Su’a required an application for an extension of time. There was no objection by the Crown. Clearly, Mr Su’a was hampered by his lack of legal representation, which explains the delay. We grant the necessary application for an extension of time.

Appeal against conviction following guilty plea

An appeal against conviction following a guilty plea falls within the scope of s 232 of the Criminal Procedure Act 2011 (CPA). The available ground of appeal is that provided by s 232(2)(c),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Su'a v R

Details

AGLC: Su'a v R [2017] NZCA 439
Case: [2017] NZCA 439
Decision Date: 5 October 2017 at 12.30 pm

CaseChat Overview and Summary

The appeal in Su'a v R was brought by Jeremiah Su'a against his conviction for methamphetamine-related offences. Su'a argued that his counsel, Simon Hewson, had provided incorrect advice and acted without his authority, leading to his guilty plea. The appeal court had to determine whether Su'a's conviction resulted in a miscarriage of justice, which would allow the appeal to proceed. The court examined whether Su'a had a tenable defence, whether he authorized Hewson to negotiate with the Crown, and whether Hewson's advice or actions led to an incorrect plea. The court found that Su'a did not have a tenable defence to the charges, that he had authorized Hewson to negotiate, and that Hewson's advice was not incorrect. Therefore, the appeal was dismissed, and the conviction was upheld.

Orders