Tuhi v Police - [2020] NZHC 649

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-5

[2020] NZHC 649

TATYANA MARAEA TUHI

v

NEW ZEALAND POLICE

Hearing (via AVL): 20 March 2020

Counsel:

E R Fairbrother QC for Appellant C R Stuart for Crown

Judgment:

25 March 2020

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 18 February 2019, Ms Tuhi (the appellant) entered a plea of guilty to a charge of wounding with reckless disregard.1

[2] At the end of a Judge-alone trial in the District Court, Judge Rea had amended the original charge, which was one of wounding with intent to injure, and adjourned the matter briefly to allow the appellant to consider her position.

[3] After receiving legal advice from her then counsel, the appellant elected to enter a plea of guilty. It was common ground at this appeal that counsel had not advised the appellant of her right to apply for a discharge without conviction.

1 Crimes Act 1961, s 188(2).

[4] On 5 April 2019, Judge Rea entered a conviction, sentenced the appellant to 12 months’ intensive supervision and imposed a first strike warning.

[5] The appellant appealed the conviction to the High Court and Cull J allowed the appeal on the ground that a miscarriage of justice had occurred because the appellant was not advised of her right to apply for a discharge without conviction.2

[6] The decision records that, by consent, the matter was sent back to the District Court for the hearing of an application for discharge without conviction. Judge Rea considered the application for a discharge without conviction but dismissed it.3

[7] Ms Tuhi now appeals the decision to dismiss the application for discharge without conviction. Ms Tuhi also seeks to advance on appeal the other grounds that were relied on in the original appeal before Cull J but which the Court was not required to consider because of the agreement between the Court and counsel that the appeal could be allowed on the basis of a miscarriage of justice because of the failure to advise of the opportunity to apply for a discharge without conviction.

[8] Normally, when an appeal is allowed on one of several grounds, the other grounds would be regarded as having been withdrawn or abandoned. In those circumstances, there would be no jurisdiction to permit a subsequent further appeal in relation to the abandoned or withdrawn grounds.

[9] However, in this case it is clear that Cull J specifically anticipated that the grounds that the court had not been required to deal with remained live should the application for a discharge without conviction not be successful. She said:4
Depending on the outcome in the District Court, Ms Tuhi may, if necessary, pursue other grounds of appeal.

[10] In those circumstances and without any opposition from Mr Stuart for the Crown, I allowed Mr Fairbrother QC to advance arguments that were broader than simply challenging the dismissal of the application for discharge without conviction.

2 Tuhi…

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.

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Details

Case: [2020] NZHC 649
Decision Date: 25 March 2020

CaseChat Overview and Summary

Tatyana Marea Tuhi (the appellant) appeals the decision of the District Court to dismiss her application for discharge without conviction. The appellant had been convicted of wounding with reckless disregard, which is moderately serious offending. The appellant is a young woman with no previous convictions. She has a child and is attending secondary school. The appeal focuses on whether the consequences of a conviction are out of all proportion to the gravity of the offence. The court must determine this by considering: the gravity of the offending; the consequences of conviction; and whether the consequences are out of all proportion to the gravity of the offending. The appellant's counsel did not advise her of her right to apply for a discharge without conviction. This is a serious omission, but not necessarily a nullity. The court must determine whether this failure affected the outcome of the case. The court must also consider whether the consequences of the conviction are out of all proportion to the gravity of the offence. The court held that the consequences of conviction were out of all proportion to the gravity of the offending. The appeal is allowed and the appellant is discharged without conviction.

Orders