Tareha v The Queen - [2014] NZHC 3038

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 Respondent

Judgment:

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115 Plea of guilty may be withdrawn by leave of court

(1) A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.

[4] Section 115(1) is in the same terms as the (repealed) s 42 Summary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…

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 Tareha v The Queen

Details

AGLC: Tareha v The Queen [2014] NZHC 3038
Case: [2014] NZHC 3038
Decision Date: 1 December 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Hugh Hemi Tuatua Tareha sought leave to withdraw his guilty pleas in relation to multiple serious charges, including assault with intent to commit sexual violation, sexual violation by unlawful sexual connection, injuring with intent to injure, burglary, and indecent assault. The application was heard on 21 October 2014, and judgment was delivered by Justice Peters on 1 December 2014. The legal issues before the court included whether the withdrawal of a guilty plea could be allowed under section 115 of the Criminal Procedure Act 2011 and if the interests of justice warranted such a withdrawal. The court considered whether Mr Tareha's plea was informed and voluntary, and if there were any grounds for impropriety or lack of capacity.

Justice Peters found that Mr Tareha had been fully informed of the charges and the strength of the evidence against him, including his confession and DNA evidence. Both his former and current counsel had advised him extensively on the implications of pleading guilty. The court rejected the argument that Mr Tareha was impaired or that the steps taken to ensure his understanding were insufficient. Furthermore, the court was not persuaded that Mr Tareha was not the actual perpetrator of the crimes as his detailed confession and the DNA evidence made the Crown's case compelling. Consequently, Justice Peters dismissed the application to withdraw the guilty pleas, finding that it was not in the interests of justice to allow such a withdrawal.

Orders