Tuhi v Police
[2020] NZHC 649
•25 March 2020
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[8] Normally, when an appeal is allowed on one of several grounds, the other grounds would be regarded as having been withdrawn or abandoned.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circumstances, there would be no jurisdiction to permit a subsequent further appeal in relation to the abandoned or withdrawn grounds.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 v Police [2019] NZHC 2046 at [4].
3 Police v Tuhi CRI-2018-020-1372 DC Hastings, 16 December 2019.
4 Tuhi v Police, above n 2, at [7].
Technical difficulties
[11] There are certain procedural requirements when one of the grounds of an appeal is the competence of trial counsel. In those circumstances, r 8.7(1) of the Criminal Procedure Rules 2012 requires that the particulars of counsel’s conduct relied on must be set out either in the notice of appeal or a memorandum filed and served by the appellant no later than 30 working days after the filing of the notice of appeal. Where such notice is given, and an affidavit filed in support, r 8.7(3) requires the prosecution to file and serve an affidavit in reply no later than 20 working days after service of the appellant’s affidavit.
[12] If an appellant wants to cross-examine the deponent of an affidavit called by the prosecution, r 8.7(4) requires the leave of the Court and the giving of notice. All of these procedural requirements seem to have been over looked in this case. Obviously, the parties came to some arrangement between themselves as, when this appeal began by way of AVL, the Court was confronted with the presence of the appellant’s former solicitor at Court in Napier for the purpose of being cross-examined by the appellant’s counsel. To add to the confusion, the lawyer was to be cross- examined on an affidavit that the Court did not have a copy of. It transpired that the affidavit of the former lawyer had been filed in the earlier appeal dealt with by Cull J. It was an affidavit which responded to another affidavit which had been filed in the same appeal, an affidavit of the appellant dated 19 June 2019. The Court did not have a copy of that affidavit either. It appears that counsel had assumed that this Court would automatically have access to whatever had been filed in the earlier appeal.
[13] In order not to further inconvenience the former counsel, I permitted the cross- examination to proceed on the basis that counsel would provide the Court with copies of both of the missing affidavits. In any event, nothing of significance emerged during cross-examination. The main difference between the accounts in the two affidavits is that the former counsel denied the appellant’s allegation that she had told him, prior to the original District Court hearing, that the complainant had punched her before she threw a bottle at the complainant.
Background
Factual background
[14] Ms Tuhi was 19 years of age when the offending occurred. She is of Ngāti Kahungunu and Ngāti Raukawa whakapapa. She has a child now two years old and currently attends the Teen Parent Unit at William Colenso College. She has no previous convictions.
[15] On 29 April 2018, in the early hours of the morning, the appellant went to a friend’s house. Others were drinking in the house at the time. Ms Tuhi was invited into the house, and into her friend’s bedroom. After Ms Tuhi had been in the bedroom with her friend for around 30 minutes, a group of people that had been drinking in the lounge entered the room. A member of the group, “Q” interacted with Ms Tuhi’s friend. Ms Tuhi and her friend asked the group to leave, which caused Q to become angry, and yell and swear at Ms Tuhi. A verbal fight between the two ensued, with Ms Tuhi alleging that at this time, Q threw a beer bottle at her. Q denies this. Q was removed from the room by other members of the group, leaving Ms Tuhi and Q’s partner (the victim) alone in the room.
[16] Ms Tuhi and the victim began yelling and swearing at each other. The victim pushed Ms Tuhi on her shoulder, causing her to fall back against the bed. The victim then reached down and pulled Ms Tuhi’s hair, with Ms Tuhi doing the same in retaliation. The two continued to scuffle. Ms Tuhi then picked up a bottle and either threw it at the victim or hit the victim in the face with it,5 which she stated was done as a quick reaction without any thought other than for her own safety. The bottle hit the victim on the left side of her head, causing a gash. Ms Tuhi left the house soon after she threw the bottle.
District Court decision on the s 106 application
[17] When addressing the application for a discharge, Judge Rea considered the three steps required for a discharge without conviction under s 107 of the Sentencing
5 Police v Tuhi DC Hastings CRI-2018-020-1372 at [2]. The Judge does not make a specific finding as to whether the bottle was thrown or used to hit the victim.
Act 2002.6 Firstly, the Judge considered this to be moderately serious offending, as to use a bottle on another person in the circumstances was “simply inviting what exactly happened, injury and the prospect of stitching and other health concerns”.7 Secondly, the Judge considered the consequences for Ms Tuhi to be “largely speculative” at the present time. While the Judge accepted that between the offending and the hearing, Ms Tuhi had shown considerable maturity in addressing her life position, and that a conviction would impact her chances of travelling or obtaining employment, these were more general consequences as opposed to specific ones.8 Thirdly, the Judge ultimately held that the conviction would not be out of all proportion to the seriousness of the offending, as although the general consequences of issues with travel and employment were important considerations, the offending was moderately serious, and therefore a conviction would not be out of all proportion to the seriousness of the offending.9
Provision of Advice to Courts (PAC) report
[18] The PAC report detailed that Ms Tuhi was an active member of the community and had no previous convictions. She was assessed as having a low risk of re- offending and medium risk of harm. Ms Tuhi had attended a restorative justice conference for the offence and had indicated that she would be willing to engage with rehabilitative programmes to address her offending needs. The report indicated that her current address was not suitable for EM bail, and recommended a sentence of 12 months’ intensive supervision with special conditions to attend departmental programmes as required by her probation officer.
Position of the parties
The appellant
[19] In addition to appealing the dismissal of the discharge application, Mr Fairbrother QC advanced other grounds. The first two grounds alleged that there was a radical error of Ms Tuhi’s counsel which affected the outcome of the case. This
6 Sentencing Act 2002, s 107. See also Scott v R [2019] NZCA 261 at [79].
7 Police v Tuhi, above n 3, at [14].
8 At [15]-[16].
9 At [17].
occurred as a result of the previous counsel failing to advise Ms Tuhi of her right to a jury trial, and failing to adequately put forward an argument in support of self-defence (as the previous counsel did not adequately explore the evidence suggesting that in the circumstances that Ms Tuhi believed to exist, she was justified in throwing the bottle at the victim).
[20] In relation to the discharge without conviction application, the three elements of s 107 were discussed separately. Firstly, the gravity of the offending. It was submitted that Ms Tuhi’s conviction arose from an overreaction to a stressful and unpleasant situation not of her making, and that (as observed by the District Court Judge), she was a young pro-social person “out of her depth”. Consequently, according to counsel, the seriousness of the offence was offset by a reduced level of culpability in the circumstances. Secondly, the consequences of the conviction. Counsel submitted that the conviction had overwhelmed Ms Tuhi’s appropriate ambitions to play a positive role in society and her daughter’s life. Affidavits from those supporting and educating Ms Tuhi indicated she had a good likelihood of future achievement, which would be significantly hindered by a conviction. Finally, the proportionality of a conviction to the gravity of the offending. Counsel referred to the cases of Walker v Police (where it was observed that when sentencing a young person in these types of cases, the best interests of the young person was a “primary consideration”),10 and Tahitahi v Police. In Tahitahi, the defendant (convicted of two charges of wilful damage and one charge of common assault) was 18 at the time of offending, with no previous convictions, motivated to start a career, expressed significant remorse and had sought restorative justice.11 In granting the discharge without conviction, Allan J described the defendant as “exactly the type of person at whom the provisions of ss 106 and 107 are aimed”.12 Counsel submitted that Ms Tuhi was in a highly analogous situation here, and thus the imposition of a conviction, given these factors, would be out of proportion to the gravity of the offending.
10 Walker v Police [2016] NZHC 1450 at [21].
11 Tahitahi v Police [2012] NZHC 663 at [32].
12 Tahitahi v Police, above n 11, at [32].
The respondent
[21] In relation to the failure to discharge without conviction, counsel discussed the three elements of s 107 separately. Counsel concurred with the District Court Judge’s assessment of the gravity of offending as moderately serious, particularly given Ms Tuhi’s use of the bottle caused the victim wounds requiring stitches. Furthermore, according to counsel, the Judge correctly assessed the consequences of the conviction as largely speculative. As a result, counsel submitted that the conviction was not out of all proportion with the gravity of the offending.
[22] While it was accepted that there was an error in the failure of counsel to advise Ms Tuhi of her right to elect a jury trial, counsel did not concede that this error was so fundamental that it amounted to a miscarriage of justice. On one hand, counsel asserted that the original hearing was held before an experienced District Court Judge and that Ms Tuhi pleaded guilty at the conclusion of the evidence, which was a decision independent from the mode of trial, suggesting that any unfairness as a result of a failure to be advised about rights to a jury trial was subsumed by the inevitability of conviction on the amended charge. However, on the other hand, counsel conceded that it may not have been possible for a jury to have convicted the defendant on the amended charge. This was because the Crown would have needed to include it as an alternative charge, or the presiding Judge would have needed to allow an amendment before the jury retired. In this case, the charge was amended to fit the evidence under ss 133 and 136 of the Criminal Procedure Act, and if this had not occurred, Ms Tuhi likely would have been acquitted. Consequently, counsel acknowledged that it was arguable that the outcome of the trial was affected by Ms Tuhi not having the ability to choose a jury trial.
[23] While making concessions on the above ground of appeal, counsel opposed the other two grounds, namely that the self-defence argument was inadequately put forward, and that the District Court Judge erred in not allowing a discharge without conviction. With regard to the failure of Ms Tuhi’s counsel to adequately put forward a self-defence argument, it was submitted that this defence was undermined by Ms Tuhi’s own evidence under cross-examination. Ms Tuhi’s actions could not be seen as a reasonable or proportionate response, due to her concession under cross-
examination that she wanted to hit the victim with the bottle, and that she did not need to do so. However, counsel did acknowledge the victim’s own concession under cross- examination that she started the physical altercation, that she intended to assault if not hurt Ms Tuhi, and Ms Tuhi’s statement in evidence-in-chief that it looked like the victim was going to punch her, and that she was scared before throwing the bottle.
Approach to appeal
[24] An appeal against the refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.13 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:14
(a)by virtue of a material error by the sentencing Judge in entering a conviction; or
(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Act.
[25] In S v R, the Supreme Court observed that an appeal on the basis of an error by counsel to advise a defendant of their right to elect a trial by jury is brought under s 232(2) of the Criminal Procedure Act 2011.15 Under the grounds set out in s 232(2), a Court must allow the appeal if satisfied that:16
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
[26] A miscarriage of justice is defined under s 232(4) as any error, irregularity or occurrence in, or in relation to, or affecting the trial that has created a real risk that the
13 Jackson v R [2016] NZCA 627 at [6]-[16].
14 At [12].
15 S v R [2018] NZSC 124, at [31].
16 Criminal Procedure Act 2011, s 232(2).
outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.17 This may include trials in which the appellant pleaded guilty.18
Relevant Law
Failure to advise of mode of trial
[27] In Abraham v Auckland District Court, the defendant had entered a guilty plea on 18 charges relating to the filing of false tax returns.19 The issue was whether the decision of the District Court to refuse leave to withdraw the defendant’s guilty pleas after it failed to advise him of his right to elect a jury trial was unlawful.20 The Court of Appeal held that the defendant's lack of knowledge of his right to a jury trial may have influenced his decision to plead guilty and that because this was such a significant right, the decision to enter a guilty plea without knowledge of the right was sufficient to constitute a miscarriage of justice.21
[28] However, following enactment of the Criminal Procedure Act 2011, the Supreme Court has taken a slightly different approach. As discussed above in S v R, a minority of the Court (Glazebrook and Arnold JJ) observed that the failure to be “advised of the right to elect trial by jury (and therefore being tried by a Judge-alone) may be a serious procedural error that on its own could cause an unfair trial, without any added requirements”.22 The majority also stressed the importance of a defendant’s right to elect a jury trial and to be advised of that right:23
It is important that defendants have an informed choice in relation to the making of an election. There are two elements to that choice. The first goes to knowledge, that is, the defendant must know that he or she has a choice as to the mode of trial. The second element goes to the advice a defendant should receive, that is, the right to take advice about the reasons for choosing one mode over another.
[29] However, even when one of these elements is missing or has not occurred, the majority concluded that a trial will not necessarily be deemed to be a nullity or unfair.
17 Criminal Procedure Act 2011, s 232(4).
18 Criminal Procedure Act 2011, s 232(5).
19 Abraham v Auckland District Court [2007] NZCA 598 at [1].
20 Abraham v Auckland District Court, above n 23, at [3].
21 At [51]-[54].
22 S v R, above n 15, at [99].
23 At [49].
In S v R (where the defendant had elected a jury trial due to the erroneous belief of counsel that a Judge-alone trial was unavailable) the majority of the Supreme Court upheld the Court of Appeal’s decision that the trial was not a nullity, despite the error of counsel.24 In particular, the majority, referencing the change from the Summary Proceedings Act 1957 (where under s 66, there was a positive obligation on the Court to advise the defendant of their right to a jury trial) to the Criminal Procedure Act (where no such positive obligation exists), noted:25
In assessing whether the error in the present case has caused a nullity, the importance of the election should not be underplayed. But it is not a decision which affects the jurisdiction of the Court. And, given the statutory context, it does not meet the nullity threshold. There is now no statutory obligation for the Court or counsel to advise the defendant of the election…
[30] The majority also concluded that while the rights to choose between a judge- alone and jury trial were important and of constitutional significance, failure by counsel to ensure the defendant’s rights were observed had not affected the outcome of the trial or caused it to be unfair.26
Discharge without conviction
[31] Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found or pleads guilty, a Court may discharge the offender without conviction, unless by any enactment applicable to the offence the Court is required to impose a minimum sentence.27
[32] Section 106 is complemented by s 107. Under this provision, a Court must not discharge an offender without conviction under s 106 unless that Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.28
[33] The Court of Appeal has characterised an assessment under s 107 as a three- step test:29
24 At [46].
25 At [46].
26 At [82]-[83].
27 Sentencing Act 2002, s 106.
28 Sentencing Act 2002, s 107.
29 Prasad v R [2018] NZCA 537 at [11].
[11] It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the Court is assessing the likelihood of something that may happen in the future.
[34] In Z v R, the Court of Appeal clarified the approach to applying each element of the s 107 assessment:30
[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[35] With regard to the assessment of direct and indirect consequences of conviction on a defendant, the Court of Appeal has stated that:31
The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.
[36]In relation to the final step, the Court of Appeal has affirmed in R v Smyth
that:32
[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences
30 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
31 DC (CA47/2013) v R [2013] NZCA 255.
32 R v Smyth [2017] NZCA 530.
must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
[37] As noted in Churchward v R, the youthfulness of an offender is an important consideration when a court is determining a discharge without conviction.33 This is for a number of reasons, including:
(a)There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
(b)The effect of imprisonment on young people, including the fact that long sentences may be crushing on young people.
(c)Young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult
[38] In Churchward, the Court also observed that criminal convictions at a young stage of life may have a disproportionate impact on the ability of a young person to gain meaningful employment and play a worthwhile role in society.34
Self-defence inadequately put
[39]Section 48 of the Crimes Act 1961 provides:
Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
[40] This formulation involves both a subjective and objective element, and can be set out in three questions:
(a)Did the defendant use force for the purpose of defending himself or herself or another?
(b)What were the circumstances as the defendant believed them to be? (The subjective element)
33 Churchward v R [2011] NZCA 531.
34 Churchward v R, above n 33, at [78].
(c)Was the force used reasonable in those circumstances? (The objective element)
[41] With regard to the subjective element, the actual beliefs of the defendant are critical. The defence will not be available if the defendant realised that there was not yet any imminent force to be resisted,35 or if at the time of the response the defendant knew that they had other options available to them and that those options were reasonably available to them in the time they had to react.36 The defence is only available if the defendant is using force for the purpose of defending themselves, or another, not solely as retaliation for past grievances.37
[42] With regard to the objective element, which requires an assessment of whether the force used was actually “reasonable”, reasonableness will require consideration of the perceived imminence and seriousness of the attack or threatened attack, whether the defensive reaction was reasonably proportionate to the perceived danger, and whether there were alternative courses of action reasonably available of which the defendant was aware.38
Analysis
Discharge without conviction
[43] This is a finely balanced case. On one hand, I agree that the District Court Judge was correct in describing the offending as moderately serious, due to the significant gash that the victim suffered as a result of Ms Tuhi throwing the bottle. On the other hand, I consider the consequences of the conviction upon Ms Tuhi more than “speculative” as described by the Judge. I consider that there is a real and appreciable risk that Ms Tuhi will struggle to find employment as a result of the conviction. Furthermore, given Ms Tuhi’s youth, her circumstances (particularly her responsibility for her child) and the fact that she has no previous convictions, the indirect consequences of being imposed with this type of conviction seem relatively severe.
35 R v Wang [1990] 2 NZLR 529 at 683-684.
36 McNaughton v R [2013] NZCA 657 at [54].
37 Pakai v R [2016] NZCA 343 at [29]-[31].
38 R v Wang, above n 35, at 535–536.
[44] When considering the seriousness of the offence, I am obliged to consider all aggravating and mitigating features.39
[45] A particular mitigating factor relating to the facts of the offence is the acknowledgment by the victim that she started the physical altercation. I also place a greater weight on the appellant’s personal circumstances. While all those convicted of criminal offences such as this face potential consequences for future employment because of the age of the appellant, the facts that she has never had a job, is still completing her secondary education and has a young child to care for, mean that the potential consequences for her future employment prospects are more acute than would be the case for many others.
[46] My finding that the appellant should be discharged without conviction effectively disposes of this appeal. The reason for this is that if the appellant is discharged without conviction there are no live issues. It would be completely inconsistent with a discharge without conviction for the matter to be referred back for a retrial on grounds such as there had been a miscarriage of justice because the appellant had not been advised of the right to a jury trial.
Outcome
[47] For these reasons, the appeal is allowed, and the appellant is discharged without conviction.
Churchman J
Solicitors:
Crown Solicitors’ Office, Napier
R Fairbrother QC, Barrister, Napier
39 See Z v R, above n 30.
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