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…

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 Tupara v Police

Details

AGLC: Tupara v Police [2020] NZHC 1281
Case: [2020] NZHC 1281
Decision Date: 10 June 2020

CaseChat Overview and Summary

In this case, Lucky Tupara appeals against the decision of Judge G C Hollister-Jones to grant the Police leave to withdraw summary offences charges and substitute them with more serious Crimes Act charges. Tupara argues that the new charges amount to an abuse of process and should be dismissed or stayed. The High Court must first consider whether it has jurisdiction to hear the appeal under the Criminal Procedure Act 2011. The Court found that it did not have jurisdiction because the charges were not yet determined by the Court, and the Act only allows an appeal when a charge has been dismissed or a stay has been granted. Even if the Court had jurisdiction, Tupara's appeal was dismissed because the Court found that the Police's decision to substitute more serious charges was not an abuse of process.

Moore J explained that the Court is traditionally reluctant to interfere with prosecutorial decisions, and the Police's decision to review and substitute charges was open to them on the facts. The allegation that the new charges are duplicitous is ill-founded, as there was no material injustice or unfair prejudice to Tupara. The prescribed maximum penalty is not the sole determinant of an appropriate sentence, and the focus should be on the nature of the offending. The Court distinguished this case from Leckey v Attorney-General, as the summary offences charges and the Crimes Act charges are not identical and were not laid in parallel proceedings. The potential for abuse of process discussed in Leckey does not arise in this case.

The Court registers its concern that Tupara remains in custody, with the risk that the time he will spend on remand will exceed any final sentence. However, the appeal is dismissed, and the matter is returned to the District Court for Tupara to enter pleas of guilty and be sentenced, with the probable result of being released on a time served basis. The Police have indicated they would not oppose the imposition of a sentence equivalent to time served.

Orders