Taua v Police

[2013] NZHC 3428

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000126 [2013] NZHC 3428

BETWEEN  JIMY GLEN TAILO TAUA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   16 December 2013

Appearances:           M J Kidd for Appellant

R K Thomson for Respondent

Judgment:                17 December 2013

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 17 December 2013 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

TAUA v NZ POLICE [2013] NZHC 3428 [17 December 2013]

Introduction

[1]      Following a judge-alone trial in the District Court at Auckland, Judge D A Burns convicted Jimy Taua of threatening to kill, driving while disqualified, refusing to provide a blood specimen, providing false and misleading information, breaching bail, and resisting a constable in the execution of his duty.   The Judge imposed concurrent sentences of 100 hours’ community service and six months’ disqualification from driving in respect of each of the first three charges.  Mr Taua was convicted and discharged on the remaining counts.

[2]      The threatening to kill charge related to an incident on 23 November 2011 during which Mr Taua was said to have threatened to kill police officers who had attended premises to support noise control officers.  Mr Taua appeals that conviction and the sentence.  An appeal was originally filed in respect of the charge of refusing to provide a blood specimen, but this has been abandoned.

[3]      The appeal against conviction was brought primarily on the ground that the Judge made an error in finding that Mr Taua’s conduct was threatening.  In written submissions Mr Kidd, for Mr Taua, suggested that Mr Taua’s behaviour was not threatening, that he had made no effort to approach or assault the Police and his behaviour was properly viewed as out of character behaviour and a case of very bad language.  It was said that the sentence imposed was excessive, given that Mr Taua had been pepper-sprayed and tasered and also spent some time in custody.

[4]      As matters on the day of the appeal developed, however, it became apparent that the real issue was the fact that Mr Taua’s defence had been inadequately conducted and that there was, therefore, the risk of a miscarriage of justice which justified allowing the appeal and remitting the matter to the District Court for a rehearing.  I made orders to that effect with my reasons, to follow.

The District Court hearing

[5]      Two police officers gave the following evidence in respect of the threatening to kill charge.  Sergeant Kurukaanga said that on the evening of 23 November 2011 he responded to a noise control complaint; noise control officers wished to seize a

stereo from an address, having previously served the requisite notice, and requested police support.   When the officer reached the address at 18 Skinner Rd, Mount Wellington, two other police officers were already there, together with staff from Icon Security.

[6]      Sergeant Kurukaanga went onto the property and there was some pushing and shoving because some of the occupants were trying to prevent seizure of the stereo. A man  later  identified  as  Mr  Taua  was  acting  aggressively,  yelling  abuse  and demanding to know where the warrant was.  After the stereo had been removed the Police began to leave the address.   A group of people followed them.   Sergeant Kurukaanga said he heard the appellant utter threats, including “I fucking kill you, cunts.  You cunts are dead.  I can kill you, cunts”.  This was repeated several times, with the appellant holding his hands by his side with his fists clenched.

[7]      Sergeant  Kurukaanga  decided  to  arrest  the  appellant,  but  first  called  for police backup.  The appellant continued to repeat the same threat.  When the other staff  arrived,  Sergeant  Kurukaanga  told  Mr  Taua  that  he  was  under  arrest  but Mr Taua made a number of gestures that the officer took to mean that Mr Taua was not going to come on without a fight.  Sergeant Kurukaanga told Mr Taua that he was risking being pepper sprayed.  Mr Taua did not acknowledge that information and Sergeant Kurukaanga proceeded to spray him.   That did not have the desired effect and Mr Taua ran towards the property and lay on the ground with his hands in front of him, so that he could not be handcuffed.  Other people on the property were trying to interfere with the arrest.   Sergeant Kurukaanga deployed a Taser, which caused Mr Taua to release his hands.  He was then arrested and handcuffed.

[8]      Constable Hohepa attended the property at Sergeant Kurukaanga’s request and  arrived  after  him.    He  helped  Sergeant  Kurukaanga  during  the  period  that Mr Taua was on the ground and during the period that Sergeant Kurukaanga used the Taser.

[9]      Mr Taua gave evidence in the District Court.  He did not have counsel and was prompted occasionally by the Judge.   However, his evidence lacked any significant detail.  He briefly described a peaceful family gathering, a notice served

by noise control at 5 pm when there was no music being played, feeling that the family had been intruded upon by noise control and his instinctive move to protect his family “with force”.   However, in terms of exactly what happened after the Police arrived Mr Taua gave little detail.  He said that he considered the use of the taser was unlawful but described himself as being “confused about the allegation and [feeling] that this matter is unintentional and confusion”.   In response to specific questions  from  the  Judge  Mr  Taua  denied  saying  the  words  that  Sergeant Kurukaanga had described in evidence.  He said that he cooperated with the Police in terms of the arrest and did not resist but, rather, had his hands in the air.  He said the two police officers had lied in their evidence.

[10]     In his judgment Judge Burns accurately summarised the evidence given by the two police officers on the one hand and by Mr Taua on the other and concluded that:

[22]      The two police officers who were on duty on this particular occasion clearly were not affected by alcohol.  It would appear, by way of inference, that the defendant was affected by alcohol.  I have absolutely no reason to believe, or no foundation in which to come to the conclusion, that the police officers were not telling the truth.  There was a complete contradiction in hte evidence.  I prefer the evidence given by both police officers which I found credible and truthful and accept their evidence.

[23]      With respect to the threatening to kill charge, it was clearly directed at the Police and, in particular, the sergeant who gave evidence.  The content of the language used clearly amounted to a threat to kill and I have no hesitation in accepting that that information is proved beyond reasonable doubt.

[11]     The appellant was unrepresented in the District Court, though he had the assistance of a McKenzie Friend.   During the course of the hearing he referred to wanting to call as witnesses people who had been present on the night.   It also appeared from other comments he made during his evidence that he had misunderstood the nature of the hearing and did not realise that it was a trial but thought it was a pre-trial hearing.  The Judge appears not to have appreciated this, or at least, the significance of it.

The appeal hearing

[12]     Three appeal dates had been adjourned at Mr Taua’s request.  The first, on

15 July 2013, was granted so that Mr Taua could instruct recently engaged counsel, Mr Kidd.  The second, on 19 August 2013 was granted so that Mr Kidd could obtain better instructions and notes of evidence relating to the refusing a blood specimen to be taken charge.  The third, and said by Keane J to be the final, adjournment, was granted so that Mr Taua could file further evidence which he would seek to adduce at the appeal.  He was required to file the further evidence by 15 October 2013 together with an affidavit explaining why the evidence had not been called in the District Court.

[13]     Mr Taua filed fresh evidence in the form of an affidavit sworn by him on

13 November 2013.  He says that he had not been drinking either prior to or when the incident happened.  They were about to eat at around 9 or 10 pm, at which time the carport door suddenly opened.  A police officer was there, and that he did not identify himself nor explain his presence.  He was rough and rude and pointed a taser at the group.  The appellant says he asked to talk to the officer “out in the carport” as there were children present.  The appellant says “things started going crazy” and that everyone was pepper sprayed.   The Police were laughing and he said they were wearing “ninja gear”.   He says there were no noise control officers and about 20 police officers present.  The appellant further claims that the police officers put a bag over his head when they pepper sprayed him, and that this occurred after he was tasered three times over five minutes.

[14]     Mr Taua also said that he thought the 4 February hearing was a status hearing and so he did not have his witnesses ready.   He was not given any disclosure beforehand.  This accords with statements made during his evidence in the District Court.

[15]     Despite  the  indication  given  to  Keane  J  that  there  were  several  other witnesses whose evidence would be adduced, no additional affidavits were filed.

[16]     The respondent filed an affidavit sworn by Sergeant Kurukaanga in response to that filed by Mr Taua.  He said, among other things, that he could smell alcohol

coming strongly from the appellant and him to be extremely intoxicated and that no taser was produced until necessary.

[17]     When  Mr Kidd  appeared  for Mr Taua on  16  December 2013  he sought another adjournment.  He explained that, despite several attempts, he not been able to obtain full instructions.   Further, Mr Taua wished to adduce evidence from his sister, Jane Taua, but she had been overseas and therefore no affidavit had been obtained.  Ms Taua was now back in New Zealand but had matters of her own to attend to at the Manukau District Court that morning.   Given the history of the appeal I refused to grant another adjournment but did stand the matter down until

2.15 pm to allow time for Mr Taua’s sister to come to Court and because of the pressure of time I agreed to hear her evidence viva voce.

[18]     When we resumed at 2.15 pm there were many members of Mr Taua’s family present who had not been present that morning.  It seemed that Mr Taua wished to have several of them give evidence.  I proceeded to hear from Mr Taua’s sister.  She gave an account that was utterly different from that given by the police officers who had given evidence at the trial and, indeed, different in some important respects to what Mr Taua had said.  These included that Mr Taua had been drinking and that the police had already handcuffed Mr Taua before using the taser.

[19]     At the conclusion of Ms Taua’s evidence Mr Kidd indicated that he wished to call four more witnesses.  By that time it was about 2.45pm.  It was clear that there would not be sufficient time to hear that many witnesses.  Further, Ms Thomson was very  concerned  at  the  factual  disputes  that  were  now  apparent  as  a  result  of Ms Taua’s evidence, which the police witnesses would not have the opportunity to address.  In these circumstances, it would be impossible for me to adequately deal with the issues raised on the appeal.

[20]  Ms Thomson responsibly acknowledged that Mr Taua’s apparent misunderstanding as to the nature of the District Court hearing and the fact that there were several witnesses whom he would otherwise have called created a risk of a miscarriage of justice.

Result

[21]     I was satisfied that Mr Taua had misunderstood that the hearing in the District Court was a substantive hearing.  As a result of that he failed to call the witnesses that he wished to call.  To a large extent Mr Taua has contributed to this outcome by refusing to obtain legal advice at the District Court stage.   Had he done so the defence would have been advanced properly and the time of the District Court and this Court not have been wasted.   Nevertheless, justice requires that Mr Taua be given the opportunity for a trial  at  which  the evidence he wishes  to  adduce is properly tested.

[22]   In these circumstances I allow the appeal, make an order quashing the conviction for threatening to kill, set aside the sentence and remit the matter to the District Court for a fresh hearing.

[23]     I note that Mr Kidd is currently engaged and funded by Legal Services.  If possible it would be helpful if Mr Kidd were able to continue acting on this matter

since he now has a grasp of the dynamics of the case.

P Courtney J