TUPARA v NEW ZEALAND POLICE [2020] NZHC 1281

TUPARA v NEW ZEALAND POLICE [2020] NZHC 1281 [10 June 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-000034[2020] NZHC 1281BETWEEN LUCKY TUPARAAppellantAND NEW ZEALAND POLICERespondentHearing: 2 June 2020Appearances: S C Abernethy for the AppellantG Banuelos for the RespondentJudgment: 10 June 2020JUDGMENT OF MOORE JThis judgment was delivered by me on 10 June 2020 at 3:00 pm.Registrar/Deputy RegistrarDate:Introduction[1] The Police allege that Lucky Tupara brandished and threatened a member ofthe public with a large imitation knife. He was arrested and charged with offencesunder 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 ("theCrimes Act charges"). They sought leave to withdraw the summary offences charges.Ms Abernethy, for Mr Tupara, opposed the Police's application. She indicatedMr Tupara wished to plead guilty to the summary offences charges. She claimed thatthe laying of the Crimes Act charges amounted to an abuse of the Court's process andthat they should be dismissed or stayed.[3] Judge G C Hollister-Jones determined there was no abuse of process. Hegranted 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 hispossession a plastic imitation bush knife with a 20 cm blade. He approached thecomplainant with the knife in his hand, raised it at her in a threatening way whileverbally abusing her. The complainant believed Mr Tupara was about to stab her. Sheretreated and called the Police. The summary is silent as to whether the complainantwas known to Mr Tupara.Procedural history[5] Mr Tupara was arrested at the scene by the Police. The following morning heappeared in the TaupōDistrict Court before a Justice of the Peace on the summaryoffences charges, being possession of a knife without reasonable excuse1 andthreatening to injure.2 He was granted bail. One of the conditions of bail was that he1 Summary Offences Act 1981, s 13A; maximum penalty three months' imprisonment and/or $2,000fine.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. On16 January 2020 he breached his bail when he was found in the Taupō CBD. He waswarned and re-admitted to bail. On 18 January 2020 he breached his bail again. Hewas remanded in custody. On 3 February 2020 he appeared before Judge Snell in theRotorua District Court. He entered pleas of not guilty to the summary offencescharges. However, the Judge made strong comments to the prosecuting sergeant thathe believed the offending had been undercharged and that Crimes Act charges shouldhave 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 appearanceon 1 April 2020 before Judge Hollister-Jones, they laid the two new Crimes Actcharges being possession of an offensive weapon3 and threatening to do grievousbodily harm.4 These were laid with the intention the summary offences charges wouldbe withdrawn.District Court decision[7] Judge Hollister-Jones' short, oral decision reflects the nature and brevity of thehearing. It is recorded in a transcript taken from the Court's FTR audio recordingsystem.[8] Before the Judge were the four charges, being the original summary offencescharges and their new equivalents under the Crimes Act 1961 ("the Act"). The Policeprosecuting sergeant applied for leave to withdraw the summary offences chargeswhich, 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 earliernot guilty pleas and enter pleas of guilty to the summary offences charges. Shesubmitted that those charges should remain and the new Crimes Act charges should bedismissed because they amounted to an abuse of the Court's process. She submittedthat the new charges were duplicitous and should not have been laid without the3 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 thenew charges were disproportionate having regard to all of the circumstances.[10] The Judge recited the general principle that a Court will not lightly interferewith a prosecution authority's exercise of prosecutorial discretion. The Judge notedthat the Police had reviewed the charges due to the observations of a previous Judgeand 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 theCourt is conduct so egregious that it should intervene.[12] Applying that principle, the Judge determined the laying of the new chargesfell well short of constituting an abuse of process. By way of example, the Judgeobserved that the summary offence charges could have been withdrawn "today" andthe Crimes Act charges could have been laid "tomorrow". What, in fact, had occurredwas, in the Judge's view, "not materially [different]". Furthermore, the Judge notedthat 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 beinglaid, 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 grantedleave 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 thetwo Crimes Act charges should either be dismissed,5 or permanently stayed as an abuseof process in the exercise of the Court's inherent power to prevent an abuse of its ownjurisdiction; either by this Court on appeal from the District Court or under this Court'sinherent jurisdiction to prevent an abuse of process.6 She submitted that the abuse inthe present case involved a duplication of minor charges through the substitution of5 Criminal Procedure Act 2011, s 147.6 Section 176.disproportionately more serious ones requiring an elevated mens rea and attracting asubstantially greater maximum penalty.[15] She submitted that it is relevant to the exercise of the power that Mr Tupara isvulnerable by reason of his chronic and serious mental health issues. He is a non-compliant recipient of a Community Compulsory Treatment Order under the MentalHealth (Compulsory Assessment and Treatment) Act 1992. Since the offending, morethan four months ago, he has been remanded in custody to a distant location, unableto access his fundamental rights and freedoms,7 with the likelihood that any time oncustodial remand will exceed whatever sentence is imposed. She submitted that suchis the prejudice and unfairness to Mr Tupara that to proceed with the prosecution onthe Crimes Act charges would "tarnish the Court's own integrity or offend the Court'ssense of justice and propriety".8DiscussionDoes this Court have jurisdiction to determine the appeal?[16] The first obstacle for Mr Tupara is whether this Court has jurisdiction to granthim relief by way of appeal.[17] The short point is that I agree with Ms Banuelos, for the Crown, that theCriminal 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 thetypes of pre-trial decisions which may be subject to appeal. Notably, none includesan 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 anoffence.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 thefirst appeal court, appeal under this subpart to that court on a questionof law against a ruling by the trial court.(3) The question of law in a first appeal under this subpart mustarise—(a) in proceedings that relate to or follow thedetermination of the charge; or(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution)."[20] Ms Banuelos helpfully referred me to the Court of Appeal's decision inD (CA716/2015) v R.9 There the Court determined the reference in s 296(3)(b) appliedto 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 thecharge or charges. They remain live because they are yet to be determined either by aconviction 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 thecharge under s 147 or a stay of prosecution" was a reference to cases where astay or dismissal has actually been granted by the trial court, not where, as inthis case, it has been refused. In other words, the effect of the reference in s296(3)(b) to dismissals and stays is the same as the old s 318A of the CrimesAct. It confers a right on the Crown to appeal a stay or discharge on a questionof law because the effect of the stay or dismissal is to bring an end to theprosecution. In contrast, the refusal to grant a stay is not a "determination" ofthe 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 legislativehistory as discussed by the Court of Appeal as well as from a plain reading of thewords of s 296(3). The provision confers on the Crown the right to appeal a dismissalor stay which brings an end to the prosecution of the charge or charges. It does notconfer the same right to defendants because these procedural mechanisms do not leadto 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 unders 296(3) on a question of law arising from a defendant's application to dismiss a charge9 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 candemonstrate a trial court's decision has, effectively, resulted in a determination of theproceeding."11 That approach, too, is entirely consistent with the statutory scheme andthe 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 offencescharges as an abuse of process?[25] However, even if this Court does have the requisite jurisdiction to determinethe appeal, I am not satisfied that the Judge's decision created or perpetuated an abuseof process such that the appeal should be allowed in the exercise of the Court'sinherent power to prevent such an abuse.[26] First, the Judge was plainly aware that traditionally the Courts are reluctant tointerfere 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 onthe 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 thatthe defendant is at risk of conviction for essentially the same offence arising out of thesame circumstances. That situation might well found a claim of abuse of process orrender available one of the autrefois special pleas. But that is not the case here. As theJudge noted there was no material injustice or unfair prejudice to Mr Tupara, otherthan the fact he now faces more serious charges than he did previously. That is notsufficient to ground a claim of abuse of process. Prosecution authorities routinelyreview their decisions to prosecute. That is what occurred here. That the reassessmentmay have been influenced by the forceful observations of a judicial officer adds11 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 bereviewed. The moment Judge Hollister-Jones permitted the Police to withdraw thesummary offences charges, any question of duplicity or potential prejudice wasremoved. From that point on Mr Tupara faced the same number of charges and of asimilar type as he previously did, albeit carrying a greater maximum penalty. That isnot 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 thefacts 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 prescribedmaximum penalty could seriously disadvantage a defendant in a case where,on any view of the facts, the defendant's alleged misconduct was relativelyminor but the maximum penalty for the offence charged was substantial, forexample where a defendant faces a charge of indecent assault (maximumseven years' imprisonment) and only a single touching is alleged."The culpability of the defendant, as assessed from all the circumstances, is whatdetermines the appropriate penalty, not simply the provision under which thedefendant is charged. The focus in assessing culpability must always be on the natureof the offending.[29] Ms Abernethy submitted that the present case is analogous to that whichconfronted Hillyer J in Leckey v Attorney-General.14 In Leckey the prosecutionsummarily laid five charges of forgery and then laid five identical charges. Ostensiblythis was to cure an error made in the laying of the summary charges. Hillyer J observedthat to lay duplicate charges without first obtaining leave to withdraw the previouscharges breached the procedural scheme created by the Summary Proceedings Act1957 and the Act. He considered the conduct was ultra vires and invalid. He said:"To lay duplicate charges where the original has been withdrawn ' wouldbe a way round the requirement that leave be obtained to withdraw the originalcharges.'"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 Crownto proceed on the indictable charges at some stage and then to withdraw the summarycharges following conviction. To do so would render the requirement of leaveineffectual. The Judge discharged the defendant on the new indictable charges on thebasis they amounted to an abuse of the process of the Court or were ultra vires. Hedid so under the inherent jurisdiction of the Court rather than under the Act because adischarge under the Act would amount to a determination preventing the laying offurther indictable charges subject to leave being granted to withdraw the summarycharges.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 notidentical. Not only were they laid pursuant to different statutes, but their essentialelements are, in certain material respects, different.[32] Secondly, this is not a case where two sets of identical charges existed inparallel proceedings such as was the case in Leckey.[33] Thirdly, in the present case the Crimes Act charges were laid on the morningof the hearing and when Mr Tupara's case was called the prosecution sought leave towithdraw the summary offences charges. That is a material distinction. The potentialfor 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 thePolice 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 thePolice'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 Minutefollowing the hearing, I register my deep concern that Mr Tupara remains in custodyin circumstances where there appears to be a real risk that the time he will spend onremand 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 itmay be that Mr Tupara wishes to plead guilty to the remaining Crimes Act charges ifany sentence imposed is on a time served basis, with the result he would beimmediately released. That must surely be the case given the time he has spent onremand in custody. If Mr Tupara's instructions are as Ms Abernethy advised, theparties are to liaise with a view to facilitating Mr Tupara's appearance in the DistrictCourt at the earliest possible opportunity for the purpose of him entering pleas of guiltyand 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 thatthe 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 recordthe Police's responsible position.Result[37] The appeal is dismissed.Moore JSolicitors:Ms Abernethy, TaupoCrown Solicitor, Rotorua