Utatau v Police

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2025-404-000215
[2025] NZHC 1555

BETWEEN SAMUEL MCCARTHY UTATAU
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 12 June 2025

Appearances: H Johnson for the Appellant
RCB Kendall for the Respondent

Judgment: 12 June 2025

ORAL JUDGMENT OF HARVEY J

Solicitors:
Meredith Connell, Auckland

Counsel:
A Cresswell, Barrister, Auckland (H Johnson)

UTATAU v R [2025] NZHC 1555 [12 June 2025]

Introduction

[1] On 30 April 2020, Samuel Utatau drove a stolen motorbike over the speed limit. He failed to stop when signalled by Police but was eventually arrested. He has two previous failing to stop convictions dated 23 May 2013 and 29 June 2017. He was then charged with the aggravated form of failure to stop under s 52A(5) of the Land Transport Act 1998, this being his third or subsequent offence.

[2] However, it is accepted that this is wrong.1 Mr Utatau’s previous convictions occurred prior to the coming into force of the Land Transport Amendment Act 2017. They therefore do not constitute qualifying offences for the purposes of s 52A(5).2

[3] Mr Utatau unsurprisingly appeals his conviction on the ground that he pleaded guilty on the mistaken basis that he was correctly charged with failing to stop as a third or subsequent offence. This gives rise he says to a miscarriage of justice.

[4]The Police do not oppose the appeal.

Analysis

[5] Mr Utatau’s notice of appeal was filed 740 working days out of time. It is agreed that, in this case, it is in the interests of justice that leave to appeal out of time be granted. While the delay is significant and unexplained, there does not appear to be any prejudice, given that the appeal is unopposed. The appeal also has clear merit.

[6]I agree with the parties and grant leave to appeal out of time.

[7] The facts are clear and the appeal is unopposed. Mr Utatau pleaded guilty on the mistaken understanding that this was his third or subsequent offence. He did not therefore fully appreciate the nature of the charge when entering his guilty plea. This gives rise to sufficient unfairness to amount to a miscarriage of justice under

1 See Pearse v New Zealand Police [2023] NZHC 2900.
2 See Martin v New Zealand Police [2021] NZHC 1356.

s 232(2)(c) and (4) of the Criminal Procedure Act 2011. I consider that the approach of this Court in the cases O’Rourke, Pearse and Harris is appropriate here.3

Decision

[8]The appeal is allowed.

[9] Mr Utatau’s conviction is quashed and replaced with a conviction under s 52A(1) and (3).

[10] Mr Utatau’s sentence of two years’ disqualification is substituted with a sentence of six months’ disqualification commencing 26 November 2021.

Harvey J

3 O’Rourke v New Zealand Police [2023] NZHC 1805; Pearse, above n 1; and
Harris v New Zealand Police [2024] NZHC 2321 at [27]-[31].

CaseChat Overview and Summary

The appellant, Samuel Utatau, appealed against his conviction for driving a stolen motorbike at an excessive speed and failing to stop when signalled by police. Utatau's appeal was predicated on the basis that he had pleaded guilty under a mistaken belief that his previous convictions were relevant to the charge against him. The Police did not oppose the appeal. The High Court of New Zealand was tasked with determining whether Utatau's appeal should be heard despite the significant delay in filing the notice of appeal, and if so, whether the appeal had merit.

The court examined whether the significant delay in filing the notice of appeal could be excused in the interests of justice, given the absence of prejudice and the clear merit of the appeal. The court found that while the delay was substantial and unexplained, it did not cause any prejudice because the appeal was unopposed. Furthermore, the appeal had clear merit as Utatau had pleaded guilty based on a mistaken understanding of the charge, leading to a miscarriage of justice. The court considered it appropriate to follow the approach taken in previous cases, where the appeal was allowed despite the delay.

The court allowed the appeal, quashing Utatau's conviction and substituting it with a conviction under s 52A(1) and (3) of the Land Transport Act 1998. The court also substituted Utatau's sentence of two years' disqualification with a sentence of six months' disqualification, starting from 26 November 2021. The decision was based on the principle that Utatau did not fully understand the charge when entering his guilty plea, which led to a miscarriage of justice. The court's decision was in line with the precedents set in O’Rourke, Pearse and Harris.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established