Tait v Police

[2023] NZHC 1748

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-140

[2023] NZHC 1748

BETWEEN

TAHAE TAIT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 June 2023
Appearances:	Mr Tait (self-represented) Z Smart for the Crown
Judgment:	6 July 2023

JUDGMENT OF BECROFT J

This judgment was delivered by me on 6 July 2023 at 3pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Gordon Pilditch Solicitors, Rotorua Copy to: T Tait

TAIT v NEW ZEALAND POLICE [2023] NZHC 1748 [6 July 2023]

The appeal

[1]This is an appeal against conviction and sentence by Mr Tahae Tait.

[2]                 He was convicted on the following two charges by Judge Snell at the Rotorua District Court on 12 April 2022:1

(a)assault of his then-partner with whom he was in a family relationship;2 and

(b)common assault of his then-partner’s father.3

[3]                 After being found guilty, he was immediately sentenced, on the spot, to nine months’ supervision “to meet [his] offending related needs” as determined by his probation officer.4

Self-represented

[4]                 At all times in this appeal, Mr Tait represented himself. He effectively represented himself in the District Court too; although there a lawyer was made available to him, and he was given time to consult with the lawyer during that hearing.

[5]                 Mr Tait made his submissions in this appeal by way of telephone from Hamilton. Previously he had been in Wellington where he was homeless. He clearly continues to carry a sense of injustice regarding this matter although, as I set out, it is difficult to ascertain the precise grounds of his appeal other than his strident maintenance of innocence.

Appeal out of time

[6]                 Section 248 of the Criminal Procedure Act 2011 requires that a notice of appeal must be filed within 20 days after the date of sentence appealed against. Here, the defended hearing and sentence took place on 12 April 2022. The notice of appeal was

1      Police v Tait [2022] NZDC 26218.

2      Crimes Act 1961, s 194A. Maximum penalty two years’ imprisonment.

3      Summary Offences Act 1981, s 9. Maximum penalty six months’ imprisonment or a $4,000 fine.

4      Police v Tait, above n 1, at [19].

filed on 14 October 2022. No reasons were given in the appeal notice nor since to explain the very significant (over six-month) delay.

[7]                 Clearly, Mr Tait is struggling with numerous health and other issues. He has some relatively serious medical procedures scheduled quite soon, including an endoscopy later this week.

[8]                 As it happens, the Crown does not oppose an extension in the time allowed for filing the appeal notice. Given Mr Tait’s lingering sense of grievance and injustice about these two charges, and to ensure that he has a chance to properly present his concerns to the Court, I think that is an appropriate position for the Crown to take. I extend the time allowed for Mr Tait to file his appeal in this case.

Adjournment requests

[9]                 In the week before this appeal, Mr Tait made several requests that the appeal hearing be delayed. I issued a Minute dated 20 June 2023 which is self-explanatory:5 I made clear that the appeal would need to proceed, that it was in Mr Tait’s interests that it did so as well as in the interests of justice. This appeal has been set down for hearing since 22 February 2023. Mr Tait has had more than ample time to prepare.

Technical matter to be addressed

[10]              It was brought to my attention by Court staff that Judge Snell, apparently inadvertently, neglected to pronounce in open Court that Mr Tait was convicted; nor did he enter a conviction on the appropriate criminal records (the Record of Hearing which follows on from the Charging Document) for either of the charges.

[11]              I issued a Minute to the parties indicating that this had come to my knowledge.6 In a Minute from Snell DCJ, dated 21 June 2023, the learned Judge makes clear that he assumed that he had convicted Mr Tait and proceeded to sentence him to nine months’ supervision on that basis.7 In the Minute, the Judge advised as follows:

5      Tait v R HC Rotorua CRI-2022-463-140, 20 June 2023 [Minute of Becroft J].

6      Tait v R HC Rotorua CRI-2022-463-140, 20 June 2023 [Minute (No. 2) of Becroft J].

7      Tait v R HC Rotorua CRI-2022-463-140, 21 June 2023 (Minute of Judge Snell).

[2]I dealt with Mr Tait’s judge-alone trial. I found Mr Tait guilty of both charges for the reasons outlined in my decision which has now been typed. In finding him guilty and proceeding to sentencing, I had implicitly intended that he be convicted on each of the two offences. I note that I did not record a conviction, just simply the guilty finding. I can only assume that was a slip, given the circumstances of that judge-alone trial where Mr Tait was being exceedingly disruptive.

[3]I note I could not have proceeded on to sentencing unless I had convicted him following finding him guilty, but I acknowledge that I did not write “C” on the charging documents.

[4]I hope that this clarifies matters.

[12]              In the rush of District Court business, I doubt whether Judge Snell is the first to have neglected to formally enter a conviction when that was obviously the Judge’s finding and intention.

[13]              However, the proper keeping of the Court record is an important matter. Although technical, it concerned Mr Tait, who latched onto this error and wanted clarification that he had indeed been convicted. I do note however that, given his notice of appeal is expressed as being against conviction and sentence, he can be taken to have understood that he had been convicted.

[14]              On the original day scheduled for this appeal (26 June) I adjourned the appeal for a day and referred the matter back to the District Court for Judge Snell to consider whether he thought it appropriate to correct the Court record under s 184(3) of the Criminal Procedure Act 2011. That section provides as follows:

184 Permanent court record

(1)Courts conducting criminal proceedings must continue to maintain a permanent court record of the formal steps in those proceedings.

(2)Courts must maintain the permanent court record in accordance with rules of court.

(3)The permanent court record is, subject to the power of the court to amend it, conclusive evidence of the matters recorded in it.

[15]              This Court received confirmation the next day (27 June) that the criminal record had been appropriately amended to reflect that a conviction, as was obviously intended, was entered in each case. The appeal continued and was completed on that day.

Grounds of appeal

[16]              In his impassioned and emotional submissions – which, with great respect to him, at times bordered on the belligerent – Mr Tait argued as follows:

(a)The conviction was a mockery of the criminal justice process. The Police had mishandled his case and provided false information in many of the statements. From his point of view, this was not the first time the Police had provided false statements. On this point, I did my best to explain to him that the starting point for this Court, as for the District Court Judge, was to carefully analyse the notes of evidence given by his then-partner and her father. If there were any discrepancies between what they said in Court and what they had said previously, this could have been brought up in cross-examination through his court-appointed lawyer. He understood that there were statutory restrictions on his ability to personally cross-examine them both.

(b)He was suffering from a traumatic brain injury and had not had an operation. Further, he did not have a proper lawyer acting for him then or now given the cost, although it seems Legal Aid provision was made available to him in the District Court. It had previously been explained to Mr Tait, in respect of this appeal, that he was entitled to apply for Legal Aid and to obtain legal representation, but he repeatedly told me that he had not had time to do so.

(c)He had not been given all the information required for this appeal and he has been significantly disrespected, and so have I as the Judge in this case. He said he needed the statements from the witnesses. As I understand it, they had been made available to him previously before the defended hearing as part of the disclosure package.

(d)He said that he was going blind or at least losing his sight because of the stress of all the cases he had unjustifiably experienced with the Police.

(e)As to sentence, he strongly submitted that he should not have been sentenced in the first place. In particular, the two victims should not have been permitted to provide letters to the Court pleading for leniency in terms of Mr Tait’s sentence. He also thought that Judge Bidois had cancelled the supervision although no record could be found of this and nor could Mr Tait recollect when it happened.

The District Court hearing

[17]              The District Court hearing was clearly a difficult one for the Judge. It would have tested the patience of any judicial officer. I had personal experience of dealing with Mr Tait myself and have some idea the frustrations Judge Snell would have confronted.

[18]              Mr Tait asked to be self-represented at the District Court hearing. The Judge explained his options prior to the case proceeding his options. A lawyer, Mr Malcolm, was ready and able to act for him. The Judge had arranged for Mr Malcolm to be standby counsel to assist Mr Tait in this case. The Judge was alert to the Evidence Act restriction on Mr Tait personally cross-examining the complainant in a family violence case such as this; and the similar restriction in respect of her father who was both a witness to the family violence allegation and a complainant in his own right.8 The Judge gave the opportunity to Mr Tait to have all his questions put to either of those witnesses by arranged standby counsel. On each occasion he was clear that he did not want to cross-examine them.

[19]              At the end of the prosecution case the Judge gave Mr Tait the opportunity to give or call evidence. He correctly emphasised to Mr Tait that he was under no obligation to do so, that the burden of proving the charges was on the Police and that Mr Tait was not required to prove anything.

[20]              The Judge adjourned the trial for 15 minutes so that Mr Tait could speak to his standby counsel, Mr Malcolm. As it happened, Mr Tait elected to give evidence. In fact, his evidence consisted of playing a recording of a waiata/song thought to be

8 Evidence Act 2006, s95(1)(a) and (b).

attributed to Hinemoa – I assume of Hinemoa and Tūtānekai fame. The Judge said he stopped Mr Tait part way through because that recording had “limited relevance to his decision in this Court case”.

[21]              Other than that, the Judge records, and the Notes of Evidence show, that Mr Tait strenuously maintained and protested his innocence. Beyond that, he provided no evidence of what happened from his point of view, nor did he give his own account of events. Mr Tait did say at one point:

… that the evidence I was presented on day one does not match the events that happened [and] neither does the testimony. There is misleading of the Court [going on] in terms of there were things that did happen but not recorded to the testimony I have heard today.

[22]              Mr Tait concluded his evidence by saying “I will take whatever is coming to me but I just said I’m innocent”.

Discussion about conviction appeal

[23]              As Mr Tait was self-represented, I looked carefully at the procedure that was followed by learned Judge. It is clear, as I have outlined, that there was nothing unfair to Mr Tait about the process of his defended hearing. The Judge explained the process to him and arranged for a lawyer to be available to him. The Judge carefully explained all relevant parts of the hearing process to Mr Tait.

[24]              His conviction was inevitable. The two witnesses established the ingredients of each charge beyond a reasonable doubt, although each clearly wished to play down what happened and to minimise events. The witnesses were uncomfortable giving evidence against Mr Tait and clearly felt sympathy for him.

[25]              In the case of his then-partner, she wanted to accept some responsibility for the incident. She explained that she and Mr Tait had been in a relationship for about a year, and they had a child together. She said on that evening there had been a progressively worsening argument. Mr Tait was leaving the house. The incident occurred in the driveway. Her mother and father were present. In the driveway she saw her father try to stand between her and Mr Tait. She saw Mr Tait go to strike

towards her father and her father blocked him. She said she then stood in front of her father and said how dare you do that to my father. She said “at that point I think [Mr Tait] just slapped me across the face” but that “it wasn’t hard”.

[26]              The Judge was obviously not troubled by the complainant’s use of “I think”. This is an area where the Judge had the advantage of seeing and hearing the witness and assessing the nuisances of their phraseology. Presumably she was either expressing uncertainty about the timing (in that “I think” followed “at that point”); or it was part of her general understatement of the incident. In any case, the fact she said “it wasn’t hard” shows she was obviously sure that there was a slap.

[27]              Her father’s evidence was even more understated and, I infer, reluctant. He cast his role as being the peacemaker and effectively said he did no more than stand between Mr Tait and his daughter and blocked Mr Tait from hitting his daughter. He remembered, eventually, that he made a statement but denied that Mr Tait was attempting to punch him – he was clear he was blocking Mr Tait from getting at his daughter.

[28]              None of the evidence was disputed by Mr Tait in any meaningful way, other than to maintain his innocence.

[29]              The Judge regarded Mr Tait’s partner as being honest and clear, and he accepted her evidence that Mr Tait slapped her across the face. The Judge also accepted her evidence as to Mr Tait striking at her father and her father blocking it. The Judge noted that her father himself said he was not punched but was blocking Mr Tait. The Judge said the combined effect of the evidence, which he accepted was sufficient to prove “that low end assault” against the father.

[30]              The Judge correctly identified the ingredients of each charge and was satisfied beyond reasonable doubt that there was an intentional application of force to the person of another in each case. In the former case he also accepted that Mr Tait was in a family relationship with the complainant. These conclusions were clearly open to him on all the evidence. The Judge had seen and heard the two witnesses and concluded he could and did accept what they said. Having read the notes of evidence

and the Judge’s decision there is no reason to think the Judge “erred in his assessment of the evidence”.9 I can see no reason why I should depart from the Judge’s view.

[31]              I add that normally when a Judge accepts the evidence of the prosecution witnesses as here, it should ordinarily be accompanied by a statement, with reasons, of rejection of the defendant’s evidence. Acceptance of the one does not necessarily imply rejection of the other.10 But here, the defendant gave no meaningful evidence other than to assert his innocence (which amounted to no more than a restatement of his pleas of not guilty) and hence there was no defence evidence with which the Judge could engage.

[32]              As to Mr Tait’s conviction, there  has  been  no  miscarriage of justice under ss 232(2)(b) and (c) of the Criminal Procedure Act. The conviction appeal is dismissed.

Sentence appeal

[33]              The sentence of nine months’ supervision was imposed on the spot, without any discussion, immediately after Mr Tait was found guilty. It can only be regarded as benevolent and constructive. The Judge said that the supervision was:

… totally rehabilitative in that I want you to do any such counselling, programmes or courses as directed by a probation officer to meet your offending relating needs. That is all for now. You can leave.

[34]              The supervision sentence, standing on its own, is not manifestly excessive, inappropriate, or wrong in principle.

[35]              I respectfully observe that the sentence was somewhat briskly imposed. But there were perhaps obvious reasons for this. The hearing had clearly been difficult and frustrating. Mr Tait had apparently interrupted throughout the hearing. The Judge understandably wanted matters resolved and finished as soon as possible.

9      Criminal Procedure Act 2011, s 232(2)(b).

10 See R v MacPherson [1982] 1 NZLR 650 (CA) at 653 where Somers J emphasised: “In a criminal case the acceptance of prosecution evidence needs to be accompanied by the rejection of the evidence for the defence. For acceptance of the one does not discount the possibility of the truth of the other.”

Investigation of a restorative justice process was not mandatory.11 Neither was the obtaining of a pre-sentence report.12

[36]              All in all, I can readily understand and accept why the Judge simply imposed the sentence and concluded matters as he did. There was no unfairness in the sentencing procedure.

[37]              There is a final matter as to sentence. The effect of filing this notice of appeal was to suspend Mr Tait’s supervision sentence.13 By time this appeal was filed by Mr Tait, just over six months of his sentence had elapsed. Ordinarily, given the dismissal of a sentence appeal, the sentence would be resumed, and the remainder of sentence would now be served.14 Given that Mr Tait has serious health issues to contend with, the Crown is of the view that no useful purpose would be served by Mr Tait completing the remaining short portion of the sentence. I agree. The sentence appeal is “successful” to the extent that the nine-month sentence is reduced to a six-month sentence of supervision. That sentence has already been served in full.

Conclusion

[38]              The appeal against conviction is dismissed. There was no error in the sentence imposed. But as a pragmatic step, it is reduced to six months’ supervision simply to reflect the realities of Mr Tait’s current personal circumstances.

Becroft J

11     Section 24A of the Sentencing Act 2002 sets out when an adjournment for restorative justice processes are mandatory.

12     Section 26 of the Sentencing Act 2002 provides that obtaining a pre-sentence report in these circumstances is discretionary.

13     See Criminal Procedure Act 2011, s 345(1).

14     Section 345(2).