Waitai v Police

[2014] NZHC 1035

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2014-416-0008 [2014] NZHC 1035

BETWEEN

ASTRA TEAL WAITAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 May 2014 (by telephone)
Counsel:	R Donnelly for Appellant S B Manning for Respondent
Judgment:	16 May 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 16 May 2014 at 2.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Rishworth, Wall & Mathieson, Gisborne

Crown Solicitor, Gisborne

WAITAI v NEW ZEALAND POLICE [2014] NZHC 1035 [16 May 2014]

Introduction

[1]      On 6 March 2014, Ms Waitai entered a plea of guilty in the District Court to one charge of common assault.   She was convicted and ordered to come up for sentence if called upon within the next six months.  She now seeks an extension of time to appeal against her conviction, contending that she ought to have been discharged without conviction.

[2]      For reasons that will become apparent, the merits of the intended appeal are such that an extension of time must be allowed.  Time is extended for the appeal to be  brought.1      Mr  Manning,  for  the  Police,  accepted  that  the  appeal  should  be allowed.  I concur.

Background

[3]      Ms Waitai had been in a de facto relationship with Mr Wrathall for some seven years.  They have two very young children.  Before the incident in question, there had been some 13 domestic violence incidents to which Police had been called.

[4]      At about 2am on 27 September 2013, an argument developed between Mr Wrathall and Ms Waitai about who was going to care for one of their children, who had just woken.  It became heated.  Ms Waitai punched Mr Wrathall once in the face, causing his nose to bleed.  At the time, he was holding their baby, then two months old.

[5]      When  police  officers  arrived  Ms  Waitai  admitted  that  she  punched  Mr Wrathall, but said that she did so in self-defence because he had attacked her and threw her to the ground.  Despite that explanation, she was charged with common assault.

The District Court proceedings

[6]      Initially, Ms Waitai entered a plea of not guilty to the charges.  In an affidavit filed in support of her application for an extension of time to appeal, she explained

1      Criminal Procedure Act 2011, s 231(3).

what happened in the period leading up to a change of plea on 6 March 2014.  Her account is verified, in material respects, by counsel who appeared for her on that day.

[7]      It is fair to say that Ms Waitai became frustrated at the criminal justice process.   She speaks of appearing in Court on a number of occasions and having difficulty in speaking to her lawyer.  On each occasion that she went to Court she was obliged to take her two young children, of whom she had day-to-day care.

[8]      Ms Waitai appeared in the District Court at Gisborne on 6 March 2014, before Judge Down.  When her case was called, she motioned to her counsel and, after speaking to her, entered a plea of guilty to the charge.   She accepts that she gave instructions to counsel to change her plea.   At the time Ms Waitai pleaded guilty she did not know what the consequences of the entry of a conviction would be, in the context of a parenting application then before the Family Court.

[9]      There was a brief hearing before Judge Down.  In full, His Honour said:

[1]       Astra Waitai, you have pleaded guilty to a common assault, which carries a maximum penalty of six months’ imprisonment.  This is your first offence.  It is within an abusive and tumultuous relationship, as described by your counsel.   I have no difficulty in concluding that on this particular occasion there was probably six of one and half a dozen of the other.

[2]       It seems to me that the best way of dealing with this is to enter a conviction but not to punish you further.  I am going to order you to come up for sentence, if called upon, within the next six months.   If there are no further problems, then you will hear nothing more about this.   But if you were to commit another offence, then you may well be re-sentenced for this matter.

The consequences of conviction

[10]     At the time the conviction was entered, Ms Waitai was also engaged  in proceedings in the Family Court in which she was seeking parenting orders.   A different lawyer was acting for her in that proceeding.  He has provided evidence to verify what has been said by Ms Waitai in relation to that.

[11]     On 31 March 2014, the parenting application came before the Family Court at Gisborne.2    At that time, a temporary protection order existed in favour of Ms Waitai and she had interim day-to-day care of the two children.  Mr Wrathall, by this time, had left for Australia, where he currently remains.

[12]     The existence of a conviction for assault on her former partner meant that Ms

Waitai’s parenting application became subject to s 60 of the Care of Children Act

2004.  Under that provision the Family Court is required to undertake an inquiry into whether the children would be safe in the unsupervised care of Ms Waitai.  In the meantime, an order has been made that Ms Waitai may provide day-to-day care under the supervision of her mother, father or sister; one of whom must reside with her and undertake oversight of the children’s care, pending further order of the Family Court.

Analysis

[13]     None of the consequences to which I have referred were known to Judge Down at the time he entered a conviction and ordered Ms Waitai to come up for sentence if called upon within the six months following conviction.  Indeed, he may not even have known about the temporary protection order then in place, in favour of Ms Waitai. There can be no criticism of what the District Court Judge did.

[14]     In my view, the consequences that have arisen are persuasive factors that may well have influenced the District Court Judge to discharge Ms Waitai without conviction, had he known of them.

[15]     The  appeal  is  brought  under  s 232  of  the  Criminal  Procedure Act  2011. Although the word “trial” appears in s 232, in the context of an appeal against conviction, s 232(5) makes it clear that, in this context, the word “trial” includes “a proceeding in which the appellant pleaded guilty”.  I am satisfied that this is a case in which there has been a miscarriage of justice, for the purposes of s 232(2)(c).  There is a strong case for a discharge without conviction that a District Court Judge will

need to consider.

2      Waitai v Wrathall [2014] NZFC 2317.

[16]     Mr Donnelly, for Ms Waitai, foreshadowed the possibility that she may seek leave to vacate her guilty plea.  That is something with which the District Court must deal, if an appropriate application were made.  I express no opinion on the point.

Result

[17]     An extension of time to appeal is granted.  The appeal against conviction is allowed.  The conviction entered in the District Court is set aside, as is the sentence imposed  in  consequence.    The  proceeding  is  remitted  to  the  District  Court  for

rehearing on the basis of the extant plea of guilty.

P R Heath J

Delivered at 2.00pm on 16 May 2014