Tareha v The Queen
[2014] NZHC 3038
•1 December 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2014-020-0430 [2014] NZHC 3038
IN THE MATTER of an application pursuant to s 115
Criminal Procedure Act 2011 to apply for leave to withdraw guilty pleas
BETWEEN
HUGH HEMI TUATUA TAREHA Applicant
AND
THE QUEEN Respondent
Hearing: 21 October 2014 Appearances:
E J Forster for Applicant
S B Manning for RespondentJudgment:
1 December 2014
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 1 December 2014 at 4 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Elvidge & Partners, Napier
Counsel: E J Forster, Napier
TAREHA v R [2014] NZHC 3038 [1 December 2014]
Introduction
[1] On 7 July 2014 the Applicant (“Mr Tareha”) pleaded guilty to, and was convicted of, the following charges in the High Court at Napier:
(a) assault with intent to commit sexual violation;1
(b) sexual violation by unlawful sexual connection (x 4);2
(c) injuring with intent to injure;3
(d) burglary (x 2);4 and
(e) indecent assault.5
[2] Mr Tareha was for sentence on 23 September 2014. By application dated
20 September 2014 Mr Tareha sought leave to withdraw his guilty pleas.6
Sentencing was adjourned accordingly. Some of the charges are “stage-2” offences,
although that is immaterial to the issues before me.7
Relevant law
[3] Section 115(1) Criminal Procedure Act 2011 provides:
115 Plea of guilty may be withdrawn by leave of court
(1) A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
[4] Section 115(1) is in the same terms as the (repealed) s 42 Summary
Proceedings Act 1957. Accordingly, authorities addressing s 42 remain relevant.
1 Crimes Act 1961, s 129(2).
2 Section 128B.
3 Section 189(2).
4 Section 231(1)(a).
5 Section 135.
6 Criminal Procedure Act 2011, s 115.
7 Sentencing Act 2002, s 86A. Mr Tareha was given a “first warning” on conviction for robbery
on 21 December 2010.
[5] There is no dispute as to the principles to be applied in determining this application. The decision to allow withdrawal of a guilty plea is discretionary and I should grant leave only if Mr Tareha satisfies me that it is in the interests of justice to do so, having regard to the interests of the defendant, the complainants (two in the present case) and witnesses.8
[6] Adams on Criminal Law summarises the circumstances in which the Court may allow withdrawal as follows:9
(a) If the defendant did not appreciate the nature of the charge, or did not intend to admit his or her guilt, or if on the admitted facts the defendant could not have been guilty of the offence charged.
(b) If the defendant’s ability to determine whether or not to plead guilty was affected by a permanent impairment or lack of capacity or by ill- health or other circumstances.
(c) If there is a possible defence to the charge of which the defendant was unaware when he or she pleaded guilty, whether because of incompetent legal advice or otherwise.
(d) If there is some impropriety in the conduct of the proceedings or of the prosecution.
...
Leave will seldom be given where the defendant has had competent and correct legal advice before the plea ... or, except in “very rare circumstances”, if the court is satisfied that the plea was made freely and on an informed basis ... This includes if the defendant has an arguable defence which he or she chose not to advance after proper advice about the charges and the quality of the defence ... Leave will not be given if the guilty plea was entered by a competent defendant who had no viable defence ... A more relaxed view may be taken by the court if a defendant is unrepresented when the plea is made ...
Background
[7] The case against Mr Tareha concerns offending against two complainants, both elderly women, on 7 November 2013. The offending against the second complainant is serious in its own right but pales in comparison to that against the
first complainant.
8 R v C CA59/02, 28 May 2002.
9 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CPA115.02] (citations omitted).
[8] As at 7 November 2013, Mr Tareha was on parole on condition, inter alia, that he not consume alcohol or smoke synthetic cannabis. He breached these conditions whilst at a friend’s address. Mr Tareha left the address and, in the early afternoon, came up behind the first complainant, a woman in her eighties who was outside her home. Mr Tareha forced the woman into her house, kicked the front door shut and assaulted the woman violently and sexually for an extended period. The complainant sustained severe bruising about her throat, shoulders, hips and arms.
[9] It is alleged that, after leaving the first complainant’s home, Mr Tareha approached the second complainant, a woman in her seventies. Mr Tareha asked to use her telephone. He made a fictitious call once inside the property and then asked the woman if she would like a “kiss and a cuddle”. The complainant told him to leave, which Mr Tareha did but only after an indecent act.
[10] The Police interviewed Mr Tareha on 11 and 15 November 2013. On the first occasion Mr Tareha denied being the offender.
[11] By 15 November 2013 the Police had DNA analysis of samples taken from the first complainant and her home. The samples matched Mr Tareha’s DNA. The Police did not disclose the DNA results to Mr Tareha prior to interviewing him on that day. In that interview, Mr Tareha made a full and detailed confession. I have watched a DVD of the interview. I accept the submission of Crown counsel that the accounts given by the first complainant and Mr Tareha coincide so as to make the Police case against him compelling.
[12] Following the interview, the Police informed Mr Tareha of the results of the DNA analysis and arrested him. Mr Tareha appeared before the Court shortly thereafter and was remanded in custody at the Hawkes Bay Regional Prison.
[13] Mr Snell, experienced and senior counsel practising in Hawkes Bay, was assigned to represent Mr Tareha. Mr Tareha terminated Mr Snell’s instructions in about March 2014, following which Mr Tareha retained Mr Russell Fairbrother QC – again, experienced and senior counsel.
[14] Amongst other things, Mr Snell obtained a report pursuant to s 38 Criminal Procedure (Mentally Impaired Persons) Act 2003 (“s 38 report”). I do not have a copy of the s 38 report but excerpts from it, referred to in submissions from the Crown, are to the effect that the psychiatrist concluded Mr Tareha was not insane as at the date of the offending. The psychiatrist also provided an opinion that Mr Tareha was fit to stand trial, and understood the available pleas and their significance.
[15] Mr Tareha entered pleas of not guilty in February 2014.
[16] Mr Tareha subsequently changed his pleas and was arraigned on 7 July 2014. The Crown indicated that it might seek a sentence of preventive detention.10 Simon France J ordered the preparation of a pre-sentence report, a cultural report and, given the Crown’s indication, a psychiatric report and psychological assessment. These latter reports, prepared in September 2014, state that Mr Tareha is schizophrenic, and that he has a history of addiction and mental health issues.
[17] Mr Tareha subsequently advised Mr Fairbrother he wished to withdraw his pleas, Mr Fairbrother was given leave to withdraw, and present counsel was assigned. I am grateful to both Crown and defence counsel for their helpful submissions.
Discussion
[18] The grounds on which Mr Tareha seeks leave are that:
(a) he was not fully informed of all relevant matters at the time he entered his pleas;
(b)he was impaired at the time he entered his pleas and that impairment meant more care than usual had to be taken to ensure that he was making an informed decision to plead guilty;
(c) he was not the perpetrator of the offending.
10 Sentencing Act 2002, s 88(1)(b).
[19] The relevant evidence is in affidavits that Mr Tareha, Mr Snell and
Mr Fairbrother have sworn regarding the application.
[20] In his affidavits, Mr Tareha deposes that he did not attack either complainant. His evidence is that the account he gave the Police on 15 November 2013 came to him in a vivid and detailed dream. Mr Tareha states that he told each of Mr Snell and Mr Fairbrother that he wished to plead not guilty but that he “gave in” after Mr Fairbrother told him that the Court would not accept that his confession was the result of a dream.
[21] Mr Tareha also states that he had not seen all of the Police disclosure prior to
7 July 2014, but only the summary of facts and a document confirming the DNA match. I am willing to proceed on the basis that Mr Tareha entered his pleas without reviewing, let alone receiving a copy of, all of the disclosure including the DVD of his interview with the Police. I was informed from the bar that to have left the disclosure with Mr Tareha might have put him at risk from other prisoners, given the nature of the offending. Whatever the reason for the withholding of the disclosure, I propose to proceed as I have said.
[22] Mr Snell’s evidence is to the following effect.
[23] First, the Police made disclosure on an ongoing basis in December 2013 and January 2014. Mr Snell’s colleague in chambers, Mr Phelps, discussed the disclosure with Mr Tareha in Mr Snell’s absence over the Christmas period.
[24] Secondly, at the outset Mr Snell obtained the s 38 report. Given the conclusions reached in the report to which I have already referred, and the confession, Mr Snell did not consider Mr Tareha had a viable defence and considered that there were benefits to him in entering early guilty pleas.
[25] Thirdly, Mr Snell had a lengthy attendance with Mr Tareha on 17 February
2014 at the Hawkes Bay Regional Prison. Mr Snell understood that Mr Tareha was going to give him instructions to arrange for the entry of guilty pleas but, as it transpired, Mr Tareha did not do so. Mr Snell’s evidence is that in the course of the
meeting he and Mr Tareha discussed possible amendments to the charges, the lack of a viable defence for the reasons to which I have referred, the advantages of entering a guilty plea at an early stage, the possibility that the Crown might seek a sentence of preventive detention, and the consequences of the charges being stage-2 offences. Mr Tareha’s explanation was that his “body” might have carried out the offending but that he had been hallucinating at the time due to the influence of the synthetic cannabis he had consumed. At the conclusion of the discussion Mr Tareha said that he wished to plead not guilty and that he understood the consequences of this decision.
[26] Mr Snell left the discussion intending to investigate whether psychosis might have been induced by the synthetic cannabis and indeed obtained the consent of the legal services agency to meet the cost of a report on that matter. Mr Tareha, however, terminated Mr Snell’s instructions before he could obtain the report. I record that before me counsel for Mr Tareha did not submit that he wished to obtain a report addressing these matters before proceeding with this application.
[27] Mr Fairbrother’s evidence is to the effect that he first visited Mr Tareha in prison prior to his receipt of Mr Snell’s file and then made a second, hour long, visit at which time Mr Tareha gave him instructions to arrange for changes of plea. During that meeting Mr Fairbrother and Mr Tareha discussed the significance of the interview with the Police and of the DNA analysis. Mr Fairbrother advised that it would be to Mr Tareha’s detriment to persist with his “dream” explanation, and that evidence of remorse would assist in opposing a sentence of preventive detention. Mr Fairbrother states that Mr Tareha accepted his advice to plead guilty, and that he would have sought the opinion of a forensic psychiatrist had he been concerned as to Mr Tareha’s ability to understand the discussions.
[28] Mr Fairbrother spoke to Mr Tareha again in the Court cells on the day he entered his pleas. His evidence is that, although nervous, Mr Tareha did not resile from his decision to plead guilty.
Discussion
[29] I do not consider there is any merit in the first ground on which Mr Tareha relies. Whatever information Mr Tareha may have lacked, I am satisfied that he made an informed decision to plead. He would have known that his confession and the results of the DNA analysis made the Crown case compelling. Moreover, Mr Tareha had the same advice from two experienced criminal lawyers. He understood the advice, however disappointing it may have been to him.
[30] Nor is there merit in the second ground. There is no dispute that Mr Tareha is a schizophrenic. Despite this, I accept the Crown submission that there is no evidence that Mr Tareha was impaired at the time he entered his pleas or that the steps that Mr Fairbrother took were insufficient.
[31] Counsel for Mr Tareha submitted that Mr Fairbrother ought to have required Mr Tareha to give written instructions, as it would have focused Mr Tareha’s mind. Written instructions are desirable in the usual course of events. As I have said, however, each of Mr Snell and Mr Fairbrother had explained Mr Tareha’s legal position to him and there is no evidence that Mr Tareha did not understand the consequences – good and bad – of his decision. On the contrary, Mr Fairbrother did not detect any uncertainty or that Mr Tareha had difficulty reaching a decision and, of course, he could have changed his mind at any point up until he entered the pleas.
[32] The third ground is also devoid of merit. Mr Fairbrother was correct to advise Mr Tareha that the Court would not accept his explanation that he dreamt the events described in his interview.
[33] For the reasons given I am not satisfied that it would be in the interests of justice to allow a withdrawal. I dismiss this application accordingly.
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M Peters J
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