Tupara v Police

[2020] NZHC 1281

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000034

[2020] NZHC 1281

BETWEEN

LUCKY TUPARA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	2 June 2020
Appearances:	S C Abernethy for the Appellant G Banuelos for the Respondent
Judgment:	10 June 2020

JUDGMENT OF MOORE J

This judgment was delivered by me on 10 June 2020 at 3:00 pm.

Registrar/Deputy Registrar Date:

TUPARA v NEW ZEALAND POLICE [2020] NZHC 1281 [10 June 2020]

Introduction

[1]                 The Police allege that Lucky Tupara brandished and threatened a member of the public with a large imitation knife. He was arrested and charged with offences under the Summary Offences Act 1981 (“the summary offences charges”).

[2]                 On the morning of Mr Tupara’s fourth appearance more than four months later, the Police laid two further, but comparable, charges under the Crimes Act 1961 (“the Crimes Act charges”). They sought leave to withdraw the summary offences charges. Ms Abernethy, for Mr  Tupara,  opposed  the  Police’s  application.  She  indicated Mr Tupara wished to plead guilty to the summary offences charges. She claimed that the laying of the Crimes Act charges amounted to an abuse of the Court’s process and that they should be dismissed or stayed.

[3]                 Judge G C Hollister-Jones determined there was no abuse of process. He granted the Police’s application for leave. This appeal is brought against that decision.

Alleged offending

[4]                 The brief summary of facts  alleges that shortly before midday on Monday,  13 January 2020 Mr Tupara was in Horomatangi Street, Taupō. He had in his possession a plastic imitation bush knife with a 20 cm blade. He approached the complainant with the knife in his hand, raised it at her in a threatening way while verbally abusing her. The complainant believed Mr Tupara was about to stab her. She retreated and called the Police. The summary is silent as to whether the complainant was known to Mr Tupara.

Procedural history

[5]                 Mr Tupara was arrested at the scene by the Police. The following morning he appeared in the TaupōDistrict Court before a Justice of the Peace on the summary offences charges, being possession of a knife without reasonable excuse1 and threatening to injure.2 He was granted bail. One of the conditions of bail was that he

1      Summary Offences Act 1981, s 13A; maximum penalty three months’ imprisonment and/or $2,000 fine.

2      Section 21(1)(a); maximum penalty three months’ imprisonment and/or $2,000 fine.

not enter the Taupō CBD. He was remanded without plea to 29 January 2020.  On  16 January 2020 he breached his bail when he was found in the Taupō CBD. He was warned and re-admitted to bail. On 18 January 2020 he breached his bail again. He was remanded in custody. On 3 February 2020 he appeared before Judge Snell in the Rotorua District Court. He entered pleas of not guilty to the summary offences charges. However, the Judge made strong comments to the prosecuting sergeant that he believed the offending had been undercharged and that Crimes Act charges should have been preferred. He directed the Police to review their charging decision.

[6]                 The Police reviewed the case. On the morning of Mr Tupara’s next appearance on 1 April 2020 before Judge Hollister-Jones, they laid the two new Crimes Act charges being possession of an offensive weapon3 and threatening to do grievous bodily harm.4 These were laid with the intention the summary offences charges would be withdrawn.

District Court decision

[7]                 Judge Hollister-Jones’ short, oral decision reflects the nature and brevity of the hearing. It is recorded in a transcript taken from the Court’s FTR audio recording system.

[8]                 Before the Judge were the four charges, being the original summary offences charges and their new equivalents under the Crimes Act 1961 (“the Act”). The Police prosecuting sergeant applied for leave to withdraw the summary offences charges which, if granted, would leave Mr Tupara facing only the Crimes Act charges.

[9]                 Ms Abernethy, for Mr Tupara, indicated her client wished to retract his earlier not guilty pleas and enter pleas of guilty to the summary offences charges. She submitted that those charges should remain and the new Crimes Act charges should be dismissed because they amounted to an abuse of the Court’s process. She submitted that the new charges were duplicitous and should not have been laid without the

3      Crimes Act 1961, s 202A(b); maximum penalty three years’ imprisonment.

4      Section 306; maximum penalty seven years’ imprisonment.

summary offences charges first being withdrawn. Furthermore, she submitted that the new charges were disproportionate having regard to all of the circumstances.

[10]             The Judge recited the general principle that a Court will not lightly interfere with a prosecution authority’s exercise of prosecutorial discretion. The Judge noted that the Police had reviewed the charges due to the observations of a previous Judge and that following that review the Police elected to lay the more serious charges.

[11]             The Judge noted that what is required to find an abuse of the process of the Court is conduct so egregious that it should intervene.

[12]             Applying that principle, the Judge determined the laying of the new charges fell well short of constituting an abuse of process. By way of example, the Judge observed that the summary offence charges could have been withdrawn “today” and the Crimes Act charges could have been laid “tomorrow”. What, in fact, had occurred was, in the Judge’s view, “not materially [different]”. Furthermore, the Judge noted that he could see no prejudice to Mr Tupara as a consequence of these procedural steps. He originally pleaded not guilty and, with the prospect of the Crimes Act charges being laid, he sought to change his pleas to guilty, a move which the Judge described as “tactical”.

[13]             For these reasons the Judge refused to stay the Crimes Act charges and granted leave to the prosecution to withdraw the summary offences charges.

Appellant’s submissions

[14]             In this Court Ms Abernethy submitted, as she did in the District Court, that the two Crimes Act charges should either be dismissed,5 or permanently stayed as an abuse of process in the exercise of the Court’s inherent power to prevent an abuse of its own jurisdiction; either by this Court on appeal from the District Court or under this Court’s inherent jurisdiction to prevent an abuse of process.6 She submitted that the abuse in the present case involved a duplication of minor charges through the substitution of

5      Criminal Procedure Act 2011, s 147.

6      Section 176.

disproportionately more serious ones requiring an elevated mens rea and attracting a substantially greater maximum penalty.

[15]             She submitted that it is relevant to the exercise of the power that Mr Tupara is vulnerable by reason of his chronic and serious mental health issues. He is a non- compliant recipient of a Community Compulsory Treatment Order under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Since the offending, more than four months ago, he has been remanded in custody to a distant location, unable to access his fundamental rights and freedoms,7 with the likelihood that any time on custodial remand will exceed whatever sentence is imposed. She submitted that such is the prejudice and unfairness to Mr Tupara that to proceed with the prosecution on the Crimes Act charges would “tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety”.8

Discussion

Does this Court have jurisdiction to determine the appeal?

[16]             The first obstacle for Mr Tupara is whether this Court has jurisdiction to grant him relief by way of appeal.

[17]             The short point is that I agree with Ms Banuelos, for the Crown, that the Criminal Procedure Act 2011 (“the CPA”) does not permit such a course.

[18]             The appeal is brought under s 296 of the CPA. Sections 215 and 217 list the types of pre-trial decisions which may be subject to appeal. Notably, none includes an appeal against a refusal to dismiss a charge or a refusal to stay proceedings.

[19]The relevant provisions of s 296 of the CPA are set out below:

“296    Right of appeal

(1)        This section applies if a person has been charged with an offence.

7      New Zealand Bill of Rights Act 1990, ss 23, 24(a) and 25(b).

8      Fox v Attorney-General [2002] 3 NZLR 62, 72.

(2)        The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3)        The question of law in a first appeal under this subpart must arise—

(a)        in proceedings that relate to or follow the determination of the charge; or

(b)        in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

…”

[20]             Ms Banuelos helpfully referred  me  to  the  Court  of Appeal’s  decision  in D (CA716/2015) v R.9 There the Court determined the reference in s 296(3)(b) applied to stays or dismissals of charges entered by the trial Court; that is “determined”. Plainly that is not the case here. As with D v R there has been no determination of the charge or charges. They remain live because they are yet to be determined either by a conviction or acquittal. The Court summarised the issue in this way:10

“Mr Shamy accepted that the reference in s 296(3)(b) to “the dismissal of the charge under s 147 or a stay of prosecution” was a reference to cases where a stay or dismissal has actually been granted by the trial court, not where, as in this case, it has been refused. In other words, the effect of the reference in s 296(3)(b) to dismissals and stays is the same as the old s 318A of the Crimes Act. It confers a right on the Crown to appeal a stay or discharge on a question of law because the effect of the stay or dismissal is to bring an end to the prosecution. In contrast, the refusal to grant a stay is not a “determination” of the proceeding. It is the opposite. It means the proceeding will continue.”

[21]             In my view this interpretation is plainly correct in light of both the legislative history as discussed by the Court of Appeal as well as from a plain reading of the words of s 296(3). The provision confers on the Crown the right to appeal a dismissal or stay which brings an end to the prosecution of the charge or charges. It does not confer the same right to defendants because these procedural mechanisms do not lead to outcomes which require a right of appeal to preserve the party’s rights.

[22]             It has been suggested by the Court of Appeal in Lyttle v R that an appeal under s 296(3) on a question of law arising from a defendant’s application to dismiss a charge

9      D (CA716/2015) v R [2016] NZCA 190.

10 At [14].

or stay a prosecution may also be available “in rare cases where the defendant can demonstrate a trial court’s decision has, effectively, resulted in a determination of the proceeding.”11 That approach, too, is entirely consistent with the statutory scheme and the purpose of s 296.

[23]             This is not the situation facing Mr Tupara. His appeal rights remain preserved. If convicted, he may appeal that determination by way of general appeal.

[24]It follows I am satisfied the appeal must fail for want of jurisdiction.

Should the Judge have refused to grant leave to withdraw the summary offences charges as an abuse of process?

[25]             However, even if this Court does have the requisite jurisdiction to determine the appeal, I am not satisfied that the Judge’s decision created or perpetuated an abuse of process such that the appeal should be allowed in the exercise of the Court’s inherent power to prevent such an abuse.

[26]             First, the Judge was plainly aware that traditionally the Courts are reluctant to interfere in prosecutorial decisions.12 The Police’s decision to review the case and, having done so, substitute more serious charges was one which was open to them on the facts.

[27]             In any event, the allegation that the new charges are duplicitous is ill-founded. That principle applies where there is the potential for double jeopardy in the sense that the defendant is at risk of conviction for essentially the same offence arising out of the same circumstances. That situation might well found a claim of abuse of process or render available one of the autrefois special pleas. But that is not the case here. As the Judge noted there was no material injustice or unfair prejudice to Mr Tupara, other than the fact he now faces more serious charges than he did previously. That is not sufficient to ground a claim of abuse of process. Prosecution authorities routinely review their decisions to prosecute. That is what occurred here. That the reassessment may have been influenced by the forceful observations of a judicial officer adds

11     Lyttle v R [2019] NZCA 329 at [35]; Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [37].

12     Talley's Group Ltd v WorkSafe New Zealand [2018] NZCA 587 at [80].

nothing. He made no direction or order other than to note the charging should be reviewed. The moment Judge Hollister-Jones permitted the Police to withdraw the summary offences charges, any question of duplicity or potential prejudice was removed. From that point on Mr Tupara faced the same number of charges and of a similar type as he previously did, albeit carrying a greater maximum penalty. That is not sufficient to ground an abuse of process.

[28]             Secondly and relatedly, whatever the prescribed maximum penalty is, it is self- evidently the duty of a sentencing Judge to impose the appropriate sentence on the facts before them. As Blanchard J stated by way of obiter in Hamed v R:13

“To weigh the seriousness of the offending with regard only to the prescribed maximum penalty could seriously disadvantage a defendant in a case where, on any view of the facts, the defendant’s alleged misconduct was relatively minor but the maximum penalty for the offence charged was substantial, for example where a defendant faces a charge of indecent assault (maximum seven years’ imprisonment) and only a single touching is alleged.”

The culpability of the defendant, as assessed from all the circumstances, is what determines the appropriate penalty, not simply the provision under which the defendant is charged. The focus in assessing culpability must always be on the nature of the offending.

[29]             Ms Abernethy submitted that the present case is analogous to that which confronted Hillyer J in Leckey v Attorney-General.14 In Leckey the prosecution summarily laid five charges of forgery and then laid five identical charges. Ostensibly this was to cure an error made in the laying of the summary charges. Hillyer J observed that to lay duplicate charges without first obtaining leave to withdraw the previous charges breached the procedural scheme created by the Summary Proceedings Act 1957 and the Act. He considered the conduct was ultra vires and invalid. He said:

“To lay duplicate charges where the original has been withdrawn ‘… would be a way round the requirement that leave be obtained to withdraw the original charges.’”

13     Hamed v R [2011] NZSC 101 at fn 223.

14     Leckey v Attorney-General [1993] 1 NZLR 98.

[30]             He concluded it would be an abuse of the process of the Court for the Crown to proceed on the indictable charges at some stage and then to withdraw the summary charges following conviction. To do so would render the requirement of leave ineffectual. The Judge discharged the defendant on the new indictable charges on the basis they amounted to an abuse of the process of the Court or were ultra vires. He did so under the inherent jurisdiction of the Court rather than under the Act because a discharge under the Act would amount to a determination preventing the laying of further indictable charges subject to leave being granted to withdraw the summary charges.15

[31]             In my view the present situation is readily distinguishable from Leckey. First, unlike Leckey, the summary offences charges and the Crimes Act charges are not identical. Not only were they laid pursuant to different statutes, but their essential elements are, in certain material respects, different.

[32]             Secondly, this is not a case where two sets of identical charges existed in parallel proceedings such as was the case in Leckey.

[33]             Thirdly, in the present case the Crimes Act charges were laid on the morning of the hearing and when Mr Tupara’s case was called the prosecution sought leave to withdraw the summary offences charges. That is a material distinction. The potential for the sort of abuse discussed by Hillyer J simply does not arise on the present facts.

[34]             For these reasons I am not satisfied that the Judge erred in granting leave to the Police to withdraw the summary offences charges or to stay the Crimes Act charges. Nor am I prepared to grant relief by allowing this appeal on the grounds that the Police’s actions amounted to an abuse of the Court’s process. For those reasons also, the appeal must fail.

[35]             However, as I did with counsel during the hearing and by way of Minute following the hearing, I register my deep concern that Mr Tupara remains in custody in circumstances where there appears to be a real risk that the time he will spend on remand will exceed any final sentence, particularly given his mental presentation.

15     Crimes Act 1961, s 347.

That, on any analysis, is an injustice. From observations made by Ms Abernethy it may be that Mr Tupara wishes to plead guilty to the remaining Crimes Act charges if any sentence imposed is on a time served basis, with the result he would be immediately released. That must surely be the case given the time he has spent on remand in custody. If Mr Tupara’s instructions are as Ms Abernethy advised, the parties are to liaise with a view to facilitating Mr Tupara’s appearance in the District Court at the earliest possible opportunity for the purpose of him entering pleas of guilty and being sentenced with the probable result he will be released on a time served basis.

[36]             As a result of enquiries I asked the Crown to make, I have been advised that the Police would not oppose the imposition of a sentence equivalent to time served. While, of course, the actual sentence will be a matter for the sentencing Judge, I record the Police’s responsible position.

Result

[37]The appeal is dismissed.

Moore J

Solicitors:

Ms Abernethy, Taupo Crown Solicitor, Rotorua