TAIT v NEW ZEALAND POLICE [2023] NZHC 1748

TAIT v NEW ZEALAND POLICE [2023] NZHC 1748 [6 July 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-140[2023] NZHC 1748BETWEEN TAHAE TAITAppellantAND NEW ZEALAND POLICERespondentHearing: 26 June 2023Appearances: Mr Tait (self-represented)Z Smart for the CrownJudgment: 6 July 2023JUDGMENT OF BECROFT JThis judgment was delivered by me on 6 July 2023 at 3pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Gordon Pilditch Solicitors, RotoruaCopy to: T TaitThe appeal[1] This is an appeal against conviction and sentence by Mr Tahae Tait.[2] He was convicted on the following two charges by Judge Snell at the RotoruaDistrict Court on 12 April 2022:1(a) assault of his then-partner with whom he was in a family relationship;2and(b) common assault of his then-partner's father.3[3] After being found guilty, he was immediately sentenced, on the spot, to ninemonths' supervision "to meet [his] offending related needs" as determined by hisprobation officer.4Self-represented[4] At all times in this appeal, Mr Tait represented himself. He effectivelyrepresented himself in the District Court too; although there a lawyer was madeavailable to him, and he was given time to consult with the lawyer during that hearing.[5] Mr Tait made his submissions in this appeal by way of telephone fromHamilton. Previously he had been in Wellington where he was homeless. He clearlycontinues to carry a sense of injustice regarding this matter although, as I set out, it isdifficult to ascertain the precise grounds of his appeal other than his stridentmaintenance of innocence.Appeal out of time[6] Section 248 of the Criminal Procedure Act 2011 requires that a notice of appealmust be filed within 20 days after the date of sentence appealed against. Here, thedefended hearing and sentence took place on 12 April 2022. The notice of appeal was1 Police v Tait [2022] NZDC 26218.2 Crimes Act 1961, s 194A. Maximum penalty two years' imprisonment.3 Summary Offences Act 1981, s 9. Maximum penalty six months' imprisonment or a $4,000 fine.4 Police v Tait, above n 1, at [19].filed on 14 October 2022. No reasons were given in the appeal notice nor since toexplain the very significant (over six-month) delay.[7] Clearly, Mr Tait is struggling with numerous health and other issues. He hassome relatively serious medical procedures scheduled quite soon, including anendoscopy later this week.[8] As it happens, the Crown does not oppose an extension in the time allowed forfiling the appeal notice. Given Mr Tait's lingering sense of grievance and injusticeabout these two charges, and to ensure that he has a chance to properly present hisconcerns to the Court, I think that is an appropriate position for the Crown to take. Iextend the time allowed for Mr Tait to file his appeal in this case.Adjournment requests[9] In the week before this appeal, Mr Tait made several requests that the appealhearing be delayed. I issued a Minute dated 20 June 2023 which is self-explanatory:5I made clear that the appeal would need to proceed, that it was in Mr Tait's intereststhat it did so as well as in the interests of justice. This appeal has been set down forhearing since 22 February 2023. Mr Tait has had more than ample time to prepare.Technical matter to be addressed[10] It was brought to my attention by Court staff that Judge Snell, apparentlyinadvertently, neglected to pronounce in open Court that Mr Tait was convicted; nordid he enter a conviction on the appropriate criminal records (the Record of Hearingwhich follows on from the Charging Document) for either of the charges.[11] I issued a Minute to the parties indicating that this had come to my knowledge.6In a Minute from Snell DCJ, dated 21 June 2023, the learned Judge makes clear thathe assumed that he had convicted Mr Tait and proceeded to sentence him to ninemonths' supervision on that basis.7 In the Minute, the Judge advised as follows:5 Tait v R HC Rotorua CRI-2022-463-140, 20 June 2023 [Minute of Becroft J].6 Tait v R HC Rotorua CRI-2022-463-140, 20 June 2023 [Minute (No. 2) of Becroft J].7 Tait v R HC Rotorua CRI-2022-463-140, 21 June 2023 (Minute of Judge Snell).[2] I dealt with Mr Tait's judge-alone trial. I found Mr Tait guilty of bothcharges for the reasons outlined in my decision which has now beentyped. In finding him guilty and proceeding to sentencing, I hadimplicitly intended that he be convicted on each of the two offences.I note that I did not record a conviction, just simply the guilty finding.I can only assume that was a slip, given the circumstances of thatjudge-alone trial where Mr Tait was being exceedingly disruptive.[3] I note I could not have proceeded on to sentencing unless I hadconvicted him following finding him guilty, but I acknowledge that Idid not write "C" on the charging documents.[4] I hope that this clarifies matters.[12] In the rush of District Court business, I doubt whether Judge Snell is the firstto have neglected to formally enter a conviction when that was obviously the Judge'sfinding and intention.[13] However, the proper keeping of the Court record is an important matter.Although technical, it concerned Mr Tait, who latched onto this error and wantedclarification that he had indeed been convicted. I do note however that, given his noticeof appeal is expressed as being against conviction and sentence, he can be taken tohave understood that he had been convicted.[14] On the original day scheduled for this appeal (26 June) I adjourned the appealfor a day and referred the matter back to the District Court for Judge Snell to considerwhether he thought it appropriate to correct the Court record under s 184(3) of theCriminal Procedure Act 2011. That section provides as follows:184 Permanent court record(1) Courts conducting criminal proceedings must continue to maintain apermanent court record of the formal steps in those proceedings.(2) Courts must maintain the permanent court record in accordance withrules of court.(3) The permanent court record is, subject to the power of the court toamend it, conclusive evidence of the matters recorded in it.[15] This Court received confirmation the next day (27 June) that the criminalrecord had been appropriately amended to reflect that a conviction, as was obviouslyintended, was entered in each case. The appeal continued and was completed on thatday.Grounds of appeal[16] In his impassioned and emotional submissions – which, with great respect tohim, at times bordered on the belligerent – Mr Tait argued as follows:(a) The conviction was a mockery of the criminal justice process. ThePolice had mishandled his case and provided false information in manyof the statements. From his point of view, this was not the first time thePolice had provided false statements. On this point, I did my best toexplain to him that the starting point for this Court, as for the DistrictCourt Judge, was to carefully analyse the notes of evidence given byhis then-partner and her father. If there were any discrepancies betweenwhat they said in Court and what they had said previously, this couldhave been brought up in cross-examination through his court-appointedlawyer. He understood that there were statutory restrictions on hisability to personally cross-examine them both.(b) He was suffering from a traumatic brain injury and had not had anoperation. Further, he did not have a proper lawyer acting for him thenor now given the cost, although it seems Legal Aid provision was madeavailable to him in the District Court. It had previously been explainedto Mr Tait, in respect of this appeal, that he was entitled to apply forLegal Aid and to obtain legal representation, but he repeatedly told methat he had not had time to do so.(c) He had not been given all the information required for this appeal andhe has been significantly disrespected, and so have I as the Judge in thiscase. He said he needed the statements from the witnesses. As Iunderstand it, they had been made available to him previously beforethe defended hearing as part of the disclosure package.(d) He said that he was going blind or at least losing his sight because ofthe stress of all the cases he had unjustifiably experienced with thePolice.(e) As to sentence, he strongly submitted that he should not have beensentenced in the first place. In particular, the two victims should nothave been permitted to provide letters to the Court pleading for leniencyin terms of Mr Tait's sentence. He also thought that Judge Bidois hadcancelled the supervision although no record could be found of this andnor could Mr Tait recollect when it happened.The District Court hearing[17] The District Court hearing was clearly a difficult one for the Judge. It wouldhave tested the patience of any judicial officer. I had personal experience of dealingwith Mr Tait myself and have some idea the frustrations Judge Snell would haveconfronted.[18] Mr Tait asked to be self-represented at the District Court hearing. The Judgeexplained his options prior to the case proceeding his options. A lawyer, Mr Malcolm,was ready and able to act for him. The Judge had arranged for Mr Malcolm to bestandby counsel to assist Mr Tait in this case. The Judge was alert to the Evidence Actrestriction on Mr Tait personally cross-examining the complainant in a family violencecase such as this; and the similar restriction in respect of her father who was both awitness to the family violence allegation and a complainant in his own right.8 TheJudge gave the opportunity to Mr Tait to have all his questions put to either of thosewitnesses by arranged standby counsel. On each occasion he was clear that he did notwant to cross-examine them.[19] At the end of the prosecution case the Judge gave Mr Tait the opportunity togive or call evidence. He correctly emphasised to Mr Tait that he was under noobligation to do so, that the burden of proving the charges was on the Police and thatMr Tait was not required to prove anything.[20] The Judge adjourned the trial for 15 minutes so that Mr Tait could speak to hisstandby counsel, Mr Malcolm. As it happened, Mr Tait elected to give evidence. Infact, his evidence consisted of playing a recording of a waiata/song thought to be8 Evidence Act 2006, s95(1)(a) and (b).attributed to Hinemoa – I assume of Hinemoa and Tūtānekai fame. The Judge said hestopped Mr Tait part way through because that recording had "limited relevance to hisdecision in this Court case".[21] Other than that, the Judge records, and the Notes of Evidence show, that MrTait strenuously maintained and protested his innocence. Beyond that, he provided noevidence of what happened from his point of view, nor did he give his own account ofevents. Mr Tait did say at one point: that the evidence I was presented on day one does not match the events thathappened [and] neither does the testimony. There is misleading of the Court[going on] in terms of there were things that did happen but not recorded tothe testimony I have heard today.[22] Mr Tait concluded his evidence by saying "I will take whatever is coming tome but I just said I'm innocent".Discussion about conviction appeal[23] As Mr Tait was self-represented, I looked carefully at the procedure that wasfollowed by learned Judge. It is clear, as I have outlined, that there was nothing unfairto Mr Tait about the process of his defended hearing. The Judge explained the processto him and arranged for a lawyer to be available to him. The Judge carefully explainedall relevant parts of the hearing process to Mr Tait.[24] His conviction was inevitable. The two witnesses established the ingredientsof each charge beyond a reasonable doubt, although each clearly wished to play downwhat happened and to minimise events. The witnesses were uncomfortable givingevidence against Mr Tait and clearly felt sympathy for him.[25] In the case of his then-partner, she wanted to accept some responsibility for theincident. She explained that she and Mr Tait had been in a relationship for about ayear, and they had a child together. She said on that evening there had been aprogressively worsening argument. Mr Tait was leaving the house. The incidentoccurred in the driveway. Her mother and father were present. In the driveway shesaw her father try to stand between her and Mr Tait. She saw Mr Tait go to striketowards her father and her father blocked him. She said she then stood in front of herfather and said how dare you do that to my father. She said "at that point I think [MrTait] just slapped me across the face" but that "it wasn't hard".[26] The Judge was obviously not troubled by the complainant's use of "I think".This is an area where the Judge had the advantage of seeing and hearing the witnessand assessing the nuisances of their phraseology. Presumably she was eitherexpressing uncertainty about the timing (in that "I think" followed "at that point"); orit was part of her general understatement of the incident. In any case, the fact she said"it wasn't hard" shows she was obviously sure that there was a slap.[27] Her father's evidence was even more understated and, I infer, reluctant. He casthis role as being the peacemaker and effectively said he did no more than standbetween Mr Tait and his daughter and blocked Mr Tait from hitting his daughter. Heremembered, eventually, that he made a statement but denied that Mr Tait wasattempting to punch him – he was clear he was blocking Mr Tait from getting at hisdaughter.[28] None of the evidence was disputed by Mr Tait in any meaningful way, otherthan to maintain his innocence.[29] The Judge regarded Mr Tait's partner as being honest and clear, and heaccepted her evidence that Mr Tait slapped her across the face. The Judge also acceptedher evidence as to Mr Tait striking at her father and her father blocking it. The Judgenoted that her father himself said he was not punched but was blocking Mr Tait. TheJudge said the combined effect of the evidence, which he accepted was sufficient toprove "that low end assault" against the father.[30] The Judge correctly identified the ingredients of each charge and was satisfiedbeyond reasonable doubt that there was an intentional application of force to theperson of another in each case. In the former case he also accepted that Mr Tait was ina family relationship with the complainant. These conclusions were clearly open tohim on all the evidence. The Judge had seen and heard the two witnesses andconcluded he could and did accept what they said. Having read the notes of evidenceand the Judge's decision there is no reason to think the Judge "erred in his assessmentof the evidence".9 I can see no reason why I should depart from the Judge's view.[31] I add that normally when a Judge accepts the evidence of the prosecutionwitnesses as here, it should ordinarily be accompanied by a statement, with reasons,of rejection of the defendant's evidence. Acceptance of the one does not necessarilyimply rejection of the other.10 But here, the defendant gave no meaningful evidenceother than to assert his innocence (which amounted to no more than a restatement ofhis pleas of not guilty) and hence there was no defence evidence with which the Judgecould engage.[32] As to Mr Tait's conviction, there has been no miscarriage of justice underss 232(2)(b) and (c) of the Criminal Procedure Act. The conviction appeal is dismissed.Sentence appeal[33] The sentence of nine months' supervision was imposed on the spot, withoutany discussion, immediately after Mr Tait was found guilty. It can only be regarded asbenevolent and constructive. The Judge said that the supervision was: totally rehabilitative in that I want you to do any such counselling,programmes or courses as directed by a probation officer to meet youroffending relating needs. That is all for now. You can leave.[34] The supervision sentence, standing on its own, is not manifestly excessive,inappropriate, or wrong in principle.[35] I respectfully observe that the sentence was somewhat briskly imposed. Butthere were perhaps obvious reasons for this. The hearing had clearly been difficult andfrustrating. Mr Tait had apparently interrupted throughout the hearing. The Judgeunderstandably wanted matters resolved and finished as soon as possible.9 Criminal Procedure Act 2011, s 232(2)(b).10 See R v MacPherson [1982] 1 NZLR 650 (CA) at 653 where Somers J emphasised: "In a criminalcase the acceptance of prosecution evidence needs to be accompanied by the rejection of theevidence for the defence. For acceptance of the one does not discount the possibility of the truthof the other."Investigation of a restorative justice process was not mandatory.11 Neither was theobtaining of a pre-sentence report.12[36] All in all, I can readily understand and accept why the Judge simply imposedthe sentence and concluded matters as he did. There was no unfairness in thesentencing procedure.[37] There is a final matter as to sentence. The effect of filing this notice of appealwas to suspend Mr Tait's supervision sentence.13 By time this appeal was filed by MrTait, just over six months of his sentence had elapsed. Ordinarily, given the dismissalof a sentence appeal, the sentence would be resumed, and the remainder of sentencewould now be served.14 Given that Mr Tait has serious health issues to contend with,the Crown is of the view that no useful purpose would be served by Mr Tait completingthe remaining short portion of the sentence. I agree. The sentence appeal is"successful" to the extent that the nine-month sentence is reduced to a six-monthsentence of supervision. That sentence has already been served in full.Conclusion[38] The appeal against conviction is dismissed. There was no error in the sentenceimposed. But as a pragmatic step, it is reduced to six months' supervision simply toreflect the realities of Mr Tait's current personal circumstances._________________________Becroft J11 Section 24A of the Sentencing Act 2002 sets out when an adjournment for restorative justiceprocesses are mandatory.12 Section 26 of the Sentencing Act 2002 provides that obtaining a pre-sentence report in thesecircumstances is discretionary.13 See Criminal Procedure Act 2011, s 345(1).14 Section 345(2).