Tafua-Nicholl v Police
[2024] NZHC 2450
•29 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2023-485-81
[2024] NZHC 2450
BETWEEN EDWARD SCOTT TAFUA-NICHOLL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 August 2024 Appearances:
Appellant in person
M A Heslip for respondent
Judgment:
29 August 2024
JUDGMENT OF BOLDT J
Solicitors:
Crown Solicitor, Wellington, for Respondent
TAFUA-NICHOLL v POLICE [2024] NZHC 2450 [29 August 2024]
Introduction
[1] This is an appeal against conviction. The appellant, Mr Edward Tafua-Nicholl, pleaded guilty to a representative charge of breaching a protection order.1 He now contends that the circumstances in which he entered his plea gave rise to a miscarriage of justice.
[2] Mr Tafua-Nicholl’s appeal was filed around a month out of time.2 The Police opposed leave to appeal out of time, noting Mr Tafua-Nicholl had provided no explanation for the delay. But no prejudice has arisen and, as will be explained further below, the appeal has considerable merit.3 Accordingly, I give leave to appeal out of time.
[3] Mr Tafua-Nicholl appeared on his own behalf in support of the appeal. Because he sought to challenge the circumstances in which he agreed to plead guilty, he waived the privilege that would normally attach to the discussions he had with his trial counsel, Mr Chris Nicholls. Mr Tafua-Nicholl and Mr Nicholls gave evidence and were cross-examined.
Background
[4] On 25 September 2023 Mr Tafua-Nicholl stood trial (without a jury) in the Lower Hutt District Court on six charges relatively minor charges of breaching a protection order.
[5] The complainant was Mr Tafua-Nicholl’s former partner. She and Mr Tafua- Nicholl have two children together. A protection order was in force which prohibited him from contacting her except to make arrangements for the care of the children. Four of the charges alleged Mr Tafua-Nicholl sent text messages which went beyond the scope of the limited contact the order permitted. A fifth charge alleged a particular text amounted to psychological abuse, while the sixth alleged Mr Tafua-Nicholl came to the complainant’s address uninvited. On that occasion the Police alleged he went
1 Family Violence Act 2018, ss 90(a) and 112(a).
2 Criminal Procedure Act 2011, s 231.
3 R v Knight [1998] 1 NZLR 583 (CA) at 587 and 589; and Smith v R [2020] NZCA 221 at [3]–[4].
to her home around an hour earlier than the parenting order allowed, knocked on the front door and then tooted his horn from outside the address.
The trial
[6] The complainant gave evidence and Mr Nicholls cross-examined her. Mr Tafua-Nicholl and Mr Nicholls had differing opinions about the success of the cross-examination. Mr Tafua-Nicholl regarded it as a triumph; he said Mr Nicholls was “on fire” and had “basically already won the case”. He believed Mr Nicholls had done a very good job of discrediting the complainant’s evidence, and said he felt confident he would be acquitted.
[7] Mr Nicholls was not so optimistic. He did not accept Mr Tafua-Nicholl’s suggestion that the cross-examination had been “excellent”. He described it as the best he could do in the circumstances, and said he considered the complainant had “basically stood up in cross-examination”. He said he did not consider that he and Mr Tafua-Nicholl “were onto an absolute winner and that we’d won the case at the end of cross-examination”. Mr Nicholls gave evidence he considered there was risk Mr Tafua-Nicholl would be found guilty on some or all of the charges.
[8] Then an unusual thing happened. After the complainant had finished her evidence, the Judge directed Mr Tafua-Nicholl to leave the courtroom. In Mr Tafua-Nicholl’s absence, he engaged in a discussion with counsel and proposed a resolution.
[9] There was a minor disagreement between Mr Tafua-Nicholl and Mr Nicholls about when the Judge intervened. Mr Tafua-Nicholl was certain the Judge interrupted Mr Nicholls while he was in the middle of his cross-examination. That question is conclusively resolved both by the written record and the audio of the hearing. Mr Nicholls had finished his cross-examination and the complainant had been excused.
[10] When the appeal was heard I was advised that there was neither a written nor an audio record of the discussion that followed, but the audio has now been obtained and I have listened to it. The Judge broached the matter by saying:
Just before we play [Mr Tafua-Nicholl’s Police interviews] there’s just a legal issue I want to raise with you, counsel. Mr Tafua-Nicholl can I just ask you to excuse yourself? I just don’t want them to taint your evidence seeing as I’ve been told you’re going to give evidence.
[11] The Judge acknowledged he had not heard the defence’s answer to the charges, but observed that while Mr Tafua-Nicholl might be able to say, with respect to each individual allegation, that the contact was “vaguely connected with care for the kids”, the complainant’s evidence described an ongoing pattern of psychological abuse. The Judge said, “I’m just wondering if a single representative charge covering the period and alleging psychological abuse might fit the proof.”
[12] As part of the discussion, Mr Nicholls noted that a further charge had recently been laid alleging, once again, that Mr Tafua-Nicholl had gone to the complainant’s house earlier than the parenting order allowed. The Judge and counsel agreed that the proposed representative charge would incorporate this seventh charge too. As to penalty, the Judge said, “I don’t think anything other than a conviction would be required, and a talking to”.
[13] The conversation then developed into a discussion about what might be required to address Mr Tafua-Nicholl’s apparent determination to ignore the protection order. The Judge drew on his knowledge of Mr Tafua-Nicholl’s relationship with the complainant from Family Court proceedings. He suggested, for example, that the terms of the parenting order should be reconsidered. The conversation was jocular at times and had all the hallmarks of being off the record. Except, of course, it was taking place in the middle of Mr Tafua-Nicholl’s trial, and the Judge and counsel were discussing matters of direct relevance to the charges. At one point the Judge reminded Mr Nicholls that the tape was still running.
[14] In any event, the Judge invited Mr Nicholls to discuss his proposal with Mr Tafua-Nicholl. Mr Nicholls and Mr Tafua-Nicholl spoke privately, and Mr Nicholls described the arrangement the Judge had proposed.
[15] Mr Nicholls recommended Mr Tafua-Nicholl take the deal, and Mr Tafua-Nicholl agreed to do so. They returned to court, and Mr Nicholls entered a plea of guilty on Mr Tafua-Nicholl’s behalf. The new charge alleged that, while a
protection order was in force against him, he “engaged in family violence in that he psychologically abused” the complainant over a period of nearly six months.
[16] The Judge ordered Mr Tafua-Nicholl to come up for sentence if called upon. He also made a series of remarks designed to encourage Mr Tafua-Nicholl to respect the terms of the protection and parenting orders, drawing on his knowledge of the family from other proceedings.4
The evidence on appeal
[17] Mr Tafua-Nicholl now says he did not properly understand the proposed plea arrangement. He noted this was the third time he had gone to trial on charges of breaching the protection order, and he said he had never pleaded guilty before. He gave evidence that at one of his earlier trials he had been acquitted on two of the three charges he faced, and said he was determined to maintain his not guilty plea to the current set of charges as well.
[18] Mr Tafua-Nicholl said he changed his mind as a result of Mr Nicholls’ firm recommendation, and because he was under a misapprehension as to the arrangement the Judge was proposing. Mr Nicholls told him that if he pleaded guilty, he would no longer be on bail, he would face no punishment and that would be the end of the matter. Mr Tafua-Nicholl said he interpreted that advice as an indication he would be “exonerated”. Though he did not use the phrase, he effectively said he thought he would receive a discharge without conviction, possibly following a deferral for twelve months to make sure he had “done nothing wrong” in the interim.
[19] While Mr Nicholls and Mr Tafua-Nicholl agreed Mr Nicholls told him that if he accepted the proposal he would be free to leave and would not face any punishment, they disagreed as to whether the Mr Tafua-Nicholl could reasonably have believed he would avoid a conviction.
[20] Mr Nicholls gave evidence that he explained the offer clearly, and did not believe Mr Tafua-Nicholl was under any misapprehension as to consequences of his
4 New Zealand Police v Nicholl [2023] NZDC 21580 at [4].
plea. He said he told Mr Tafua-Nicholl he would be convicted, and said the reference to there being no punishment simply reflected the fact an order to come up for sentence if called does not carry any further penalty, provided the defendant does not commit another offence in the next twelve months.
[21] There is no evidence Mr Nicholls and Mr Tafua-Nicholl expressly discussed the fact the new charge would allege a six-month course of family violence in the form of psychological abuse, though Mr Nicholls said he showed Mr Tafua-Nicholl the new summary of facts. The summary contains a heading reading “Contravenes Protection Order – Psychological Abuse (representative)”. The phrase “psychological abuse” does not appear in the body of the document, although it records that the complainant felt harassed. It is not clear whether Mr Nicholls explained to Mr Tafua-Nicholl that harassment of the complainant would amount to psychological abuse and, therefore, family violence under the Family Violence Act 2018.5
[22] When sentencing Mr Tafua-Nicholl, the Judge made it clear he had been convicted on the new charge. Mr Tafua-Nicholl said he misunderstood the effect of the Judge’s remarks, and the order to come up for sentence if called. In any event, by then the die was cast. Mr Tafua-Nicholl says he was under a material misapprehension when he agreed to plead guilty. He said he had never pleaded guilty before, and that he did so on this occasion only because he believed the proposed resolution was one which would see him exonerated.
[23] My own impression of Mr Tafua-Nicholl, having observed him under cross-examination, having watched his cross-examination of Mr Nicholls and having read the extensive material he has placed before the Court, is that he believes steadfastly, to the point of obsession, in the correctness of his position. He interprets all his interactions through that lens. For example, he said he interpreted the Judge’s sentencing remarks as an indication the Judge did not believe he had psychologically abused the complainant.
5 See Family Violence Act, ss 9 and 11. Psychological abuse is defined under s 11 to include “intimidation or harassment”.
[24] It follows that while I accept Mr Nicholls’ evidence, it is quite possible he and Mr Tafua-Nicholl were at cross purposes when they discussed the arrangement the Judge proposed. Given his unshakeable determination to deny charges under the Family Violence Act, no matter how well-founded, and his optimism that he would secure an acquittal following Mr Nicholls’ cross-examination, I doubt Mr Tafua- Nicholl would have accepted the Judge’s proposal unless he understood it as a vindication. I consider it unlikely he would have admitted the new charge if he had understood he would be convicted of engaging in a six-month course of family violence in the form of psychological abuse.
The appeal
[25] The basis of the appeal changed somewhat as it unfolded. Initially, Mr Tafua- Nicholl sought to set his guilty plea aside. It is apparent he did not understand the formidable hurdle he must overcome before doing so.
[26] In Watts v R the Court of Appeal summarised its earlier decision in R v Le Page, which held that exceptional circumstances are required before an appeal court will entertain an appeal after a guilty plea. It continued:6
[20] The Court [in Le Page] observed that a miscarriage of justice will be indicated in at least three broad situations where:
(a)the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)the appellant could not in law have been convicted of the offence charged;
(c)the plea was induced by a ruling which embodied a wrong decision on a question of law.
[21] In R v Proctor this Court cited Le Page and framed the essential issue on such appeals as a question: “will a miscarriage of justice result unless [the appellant] is able to impugn his pleas of guilty?”
6 Watts v R [2011] NZCA 41 citing R v Le Page [2005] 2 NZLR 845 (CA) at [16]–[17]; and R v Proctor [2007] NZCA 289 at [4]. Footnotes omitted.
[27]In R v Merrilees the Court of Appeal noted the possibility of a fourth category:7
[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
[28] A new dimension emerged in argument. As will be apparent from the discussion above, Mr Tafua-Nicholl’s plea followed an unusual intervention from the Judge, who interrupted the trial and directed Mr Tafua-Nicholl to leave the courtroom. There was then a frank discussion about the charges and other matters in Mr Tafua- Nicholl’s absence.
[29] The conversation began as a suggestion that the prosecution may wish to re-formulate the charges, and developed into a judicially-initiated sentence indication. It then evolved into a pragmatic attempt to problem solve. Though undoubtedly well- intentioned, the Judge should not have engineered a discussion of that kind in Mr Tafua-Nicholl’s absence. And, as a Judge in the midst of a defended criminal trial, it was not his role to draw on his knowledge of the ongoing Family Court proceedings to suggest ways to prevent offending in the future. 8 Doing so risked blurring two quite distinct judicial roles.
[30] Mr Heslip agreed the Judge should not have directed Mr Tafua-Nicholl to leave the courtroom. He agreed the discussion formed part of Mr Tafua-Nicholl’s trial, and that there was no lawful basis on which the Judge could have required Mr Tafua- Nicholl to absent himself.
7 R v Merrilees [2009] NZCA 59.
8 There would have been no bar to the Judge doing so later, either at sentencing or when once again wearing his Family Court hat.
[31] Given there was no lawful justification for Mr Tafua-Nicholl’s exclusion, the Judge’s decision to remove him, and the subsequent discussion, breached s 25(e) of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act). Section 25(e) affirms a defendant’s right to be present at trial and present a defence. There was no reason the discussion, or a version of it, could not have taken place in Mr Tafua-Nicholl’s presence.
[32] Indeed, the courtroom remained open throughout. That was appropriate — as a substantive rather than administrative discussion there was no reason for the Judge to speak to counsel in chambers. But the resulting exchange led to an extraordinary situation. The only person who was not entitled to sit and listen was Mr Tafua-Nicholl. Yet he was the one person who had a guaranteed right to be there.
[33] Section 25 of the Bill or Rights Act sets out a defendant’s minimum procedural rights. The first six paragraphs provide:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) the right to a fair and public hearing by an independent and impartial court:
(b) the right to be tried without undue delay:
(c) the right to be presumed innocent until proved guilty according to law:
(d) the right not to be compelled to be a witness or to confess guilt:
(e) the right to be present at the trial and to present a defence:
(f) the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
…
[34] Section 25’s reference to “minimum” rights indicates it contains a set of basic procedural standards essential to a valid criminal trial. The right to a fair trial is absolute.9 Moreover, aspects of the fair trial right are reflected in other parts of s 25. For example, a trial will not be fair if a court denies the defendant the presumption of
9 See Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [37]; R v Burns [2002] 1 NZLR 387 (CA) at [10]; and Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77].
innocence,10 or compels the defendant to give evidence. Similarly, the right to challenge the prosecution’s witnesses, present a defence and summons and call witnesses are all basic pillars of a fair hearing. The fundamental importance of the right to be present is underlined by the fact it is bracketed with the right to present a defence, and is listed among a series of other non-negotiable aspects of the right to a fair trial.
[35] Expulsion of a defendant from his or her own trial is so rare that there is little authority on the subject. This case is very different from the kinds of case where exclusion usually arises; for example, defendants occasionally forfeit their right to attend by becoming disruptive.11 Even then, the court will usually go to considerable lengths to ensure the defendant remains fully informed about what occurred in his or her absence, such as by transmitting proceedings to the holding cell or by providing immediate access to transcripts. Here, there was no good reason for requiring Mr Tafua-Nicholl to leave.
[36] The Court of Appeal’s decision in R v Smail provides helpful guidance. In Smail the appellant was a caregiver who pleaded guilty to murdering a man in his care.12 While plainly at the opposite end of the spectrum in seriousness, the sequence of events which led to Mr Smail’s plea have some similarities with the present case. The Court of Appeal described the background as follows:
[20] [Justice Fogarty], the scheduled High Court trial judge, convened a conference in chambers. Mr Shamy and Mr McCrae, the Crown Solicitor and his junior respectively, and Mr Fournier, the then defence counsel, were present. The accused Mr Smail was not. Mr McCrae subsequently made a file note, which was produced before us. No formal record was kept of the conference.
[21] It is common ground that, at that conference, Fogarty J raised a concern with Mr Fournier as to whether there was any evidence to support a defence of provocation. Counsel are agreed that the Judge expressed a clear view that provocation was not available on the basis of the current evidence. However, he indicated that he viewed the case as one involving certain mitigating factors which might impact on sentence, namely the stresses imposed by caregiving.
10 Except in certain, relatively rare, cases where the offence provision expressly creates a reverse onus for some elements of the charge.
11 Section 117(2) of the Criminal Procedure Act provides that the right to be present does not apply if the defendant disrupts the hearing to such an extent that it is impracticable to continue in his or her presence. See for example Tully v R [2020] NZCA 690 at [154]–[163] citing Kumar v R [2013] NZCA 77, [2013] 3 NZLR 201; and R v Jones [2002] UKHL 5, [2003] 1 AC 1.
12 R v Smail [2008] NZCA 6.
[22] It is also common ground between counsel that the discussion then progressed, in a general way, to the issue of sentence in the event that a guilty plea was entered.
…
[25] On the information before us Fogarty J twice expressed the view that he did not think it mattered whether Mr Smail pleaded guilty to murder or manslaughter. Manslaughter does not attract a minimum term of imprisonment. This would have reinforced Mr Fournier’s view that the Judge was, broadly, leaning against a life term for murder.
…
[28] Subsequent to this conference, there were further discussions between Mr Smail and Mr Fournier. Mr Smail was advised that the Judge was disinclined to leave provocation to a jury, leaving him with no defence. However, Mr Smail was told by his counsel of the sympathetic light in which the Judge viewed his actions. In particular, he was advised that the Judge had indicated that a finite sentence, as opposed to life imprisonment, would be considered if Mr Smail pleaded guilty. Mr Fournier mentioned a likely sentence length of six to 10 years to Mr Smail, based not on what the Judge had indicated as a possible term, but on Mr Fournier’s own rather hopeful interpretation of the materials subsequently circulated to counsel by the Judge ...
[37] Mr Smail pleaded guilty on the understanding he would be likely to receive a finite sentence of between six and ten years. In the event, he was sentenced to twelve years’ imprisonment, with a minimum non-parole period of seven. The Crown appealed successfully against the sentence and Mr Smail unsuccessfully sought leave to appeal to the Supreme Court. But, as the appeals unfolded, the focus shifted to the circumstances in which the plea had come to be entered, and in particular to Mr Smail’s absence from the chambers discussion at which the Judge indicated his view. Mr Smail sought leave to appeal against his conviction out of time. The Court of Appeal observed:13
[51] The course that the High Court trial Judge took in this case was entirely well meaning, but also very high risk. A judge is perfectly entitled, indeed obliged, to efficiently manage a case. It may be perfectly legitimate for a judge who, amongst other things, has to anticipate the length of a trial and the nature of defences which may be run, to make inquiries as to how such things may fall.
[52] Unfortunately, the discussion in chambers regarding possible defences “spilled over” into sentence in this case. With the benefit of hindsight, it would have been advisable if counsel had reminded the Judge of the perils of discussing such matters, particularly where the Crown had made it plain that it was going to seek the maximum penalty known to our law.
…
13 R v Simon CA 162/90 4 June 1991; R v Harper-Taylor (1998) 138 NLJ 80 (CA) at 81; and
Sungsuwan v R [2006] 1 NZLR 730. In text citations omitted and emphasis added.
[63] In R v Simon … this Court … affirmed the dangers of a judge seeing counsel in chambers in the absence of the accused, where an application was on a material matter such as sentencing. The Court referred to an oft-cited passage from the judgment of Mustill LJ in R v Harper-Taylor …, to the effect that the absence of a defendant is a potential source of trouble. He or she only learns what the judge has said second hand; he or she may complain afterwards that an accurate account has not been given; and he or she cannot hear what counsel has said to the judge, and correct any errors.
…
[66] It will be readily apparent that the effect of some of the foregoing factors, regarded separately or cumulatively, might well give rise to the setting aside of this verdict on the grounds set out by the Supreme Court of New Zealand in Sungsuwan v R …, namely that the proper course of justice was disadvantaged to the extent of a miscarriage by what counsel had done here. Further, it may be that the breach of Mr Smail’s right to be present should amount to a miscarriage in and of itself. We do not have to determine that point. It would require fuller argument on which the Crown, and possibly even the Solicitor-General, would wish to be heard given the implications of such a holding for Status Hearings and sentence indications in New Zealand courts.
[38] The appeal was allowed and a new trial was ordered. The law now provides that sentencing indications must be given in open Court.14
[39] The very danger Mustill LJ anticipated in Harper-Taylor arose in this case. The Judge gave what was, in effect, a sentence indication in Mr Tafua-Nicholl’s absence. Mr Tafua-Nicholl had a right to hear the Judge’s proposal for himself. Leaving aside whether it was appropriate for the Judge to initiate a discussion about the formulation of the charges or the likely sentence, there could have been no ambiguity about the proposed arrangement if Mr Tafua-Nicholl had been there. The Judge expressly referred to the proposed new charge comprising a representative allegation of psychological abuse over a six-month period, and noted he did not consider any punishment over and above recording the conviction would be appropriate. By requiring Mr Nicholls to act as an intermediary, the Judge and counsel opened the door to the complaint Mr Tafua-Nicholl now makes.
[40] As already noted, I consider there is a real possibility Mr Nicholls and Mr Tafua-Nicholl were at cross purposes when Mr Nicholls conveyed the Judge’s proposal. It is easy to imagine Mr Tafua-Nicholl, buoyed by what he considered to have been an effective cross-examination of the complainant, interpreting the Judge’s offer as a mechanism by which the charges would be resolved in his favour. Mr
14 Criminal Procedure Act, s 62(2).
Nicholls’ emphasis on the matter being at an end and there being no further punishment would only have reinforced that impression.
[41] The Court of Appeal in Smail left open the possibility that a defendant’s absence from a material part of the trial may, of itself, amount to a miscarriage of justice. That question remains unresolved, and in the absence of argument it would be unwise to propose a general approach here. Breaches of s 25(e) are rare, and it is even rarer for a material dispute to arise about how the parts of the hearing the defendant missed were later communicated by counsel.
[42] In this case I am satisfied there was at least a real risk Mr Tafua-Nicholl misunderstood the proposed arrangement. I find it is reasonably possible he would not have changed his plea if he had been allowed to remain in court for the discussion between the Judge and counsel,15 especially if he had heard the Judge confirm he would be convicted of a charge alleging a six-month course of psychological abuse. On its face, that charge captures a more troubling course of conduct than the series of minor incidents originally alleged.
[43] It follows that the breach of Mr Tafua-Nicholl’s rights under s 25(e) cannot be dismissed as inconsequential. Given his plea was obtained in breach of s 25(e), I do not consider Mr Tafua-Nicholl received a fair trial. A miscarriage of justice has occurred, and the appeal must be allowed.16
[44] I have considered whether to direct a new trial, but the interests of justice overwhelmingly favour bringing the matter to an end. The alleged offending was minor and occurred two years ago. The Judge did not consider any element of punishment was required, and little will be gained by re-examining a series of now-historic communications between Mr Tafua-Nicholl and the complainant.
15 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].
16 Criminal Procedure Act, s 232(2)(c) and subs (4)(b).
Result
[45] Leave to appeal out of time is granted and the appeal is allowed. I set aside Mr Tafua-Nicholl’s conviction for breaching a protection order, and enter a judgment of acquittal.
Boldt J
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