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IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2020-441-5[2020] NZHC 649TATYANA MARAEA TUHIvNEW ZEALAND POLICEHearing (via AVL): 20 March 2020Counsel: E R Fairbrother QC for AppellantC R Stuart for CrownJudgment: 25 March 2020JUDGMENT OF CHURCHMAN JIntroduction[1] On 18 February 2019, Ms Tuhi (the appellant) entered a plea of guilty to acharge of wounding with reckless disregard.1[2] At the end of a Judge-alone trial in the District Court, Judge Rea had amendedthe original charge, which was one of wounding with intent to injure, and adjournedthe matter briefly to allow the appellant to consider her position.[3] After receiving legal advice from her then counsel, the appellant elected toenter a plea of guilty. It was common ground at this appeal that counsel had notadvised the appellant of her right to apply for a discharge without conviction.1 Crimes Act 1961, s 188(2).[4] On 5 April 2019, Judge Rea entered a conviction, sentenced the appellant to12 months' intensive supervision and imposed a first strike warning.[5] The appellant appealed the conviction to the High Court and Cull J allowed theappeal on the ground that a miscarriage of justice had occurred because the appellantwas not advised of her right to apply for a discharge without conviction.2[6] The decision records that, by consent, the matter was sent back to the DistrictCourt for the hearing of an application for discharge without conviction. Judge Reaconsidered the application for a discharge without conviction but dismissed it.3[7] Ms Tuhi now appeals the decision to dismiss the application for dischargewithout conviction. Ms Tuhi also seeks to advance on appeal the other grounds thatwere relied on in the original appeal before Cull J but which the Court was not requiredto consider because of the agreement between the Court and counsel that the appealcould be allowed on the basis of a miscarriage of justice because of the failure to adviseof the opportunity to apply for a discharge without conviction.[8] Normally, when an appeal is allowed on one of several grounds, the othergrounds would be regarded as having been withdrawn or abandoned. In thosecircumstances, there would be no jurisdiction to permit a subsequent further appeal inrelation to the abandoned or withdrawn grounds.[9] However, in this case it is clear that Cull J specifically anticipated that thegrounds that the court had not been required to deal with remained live should theapplication for a discharge without conviction not be successful. She said:4Depending on the outcome in the District Court, Ms Tuhi may, if necessary,pursue other grounds of appeal.[10] In those circumstances and without any opposition from Mr Stuart for theCrown, I allowed Mr Fairbrother QC to advance arguments that were broader thansimply challenging the dismissal of the application for discharge without conviction.2 Tuhi v Police [2019] NZHC 2046 at [4].3 Police v Tuhi CRI-2018-020-1372 DC Hastings, 16 December 2019.4 Tuhi v Police, above n 2, at [7].Technical difficulties[11] There are certain procedural requirements when one of the grounds of anappeal is the competence of trial counsel. In those circumstances, r 8.7(1) of theCriminal Procedure Rules 2012 requires that the particulars of counsel's conductrelied on must be set out either in the notice of appeal or a memorandum filed andserved by the appellant no later than 30 working days after the filing of the notice ofappeal. Where such notice is given, and an affidavit filed in support, r 8.7(3) requiresthe prosecution to file and serve an affidavit in reply no later than 20 working daysafter service of the appellant's affidavit.[12] If an appellant wants to cross-examine the deponent of an affidavit called bythe prosecution, r 8.7(4) requires the leave of the Court and the giving of notice. Allof these procedural requirements seem to have been over looked in this case.Obviously, the parties came to some arrangement between themselves as, when thisappeal began by way of AVL, the Court was confronted with the presence of theappellant's former solicitor at Court in Napier for the purpose of being cross-examinedby the appellant's counsel. To add to the confusion, the lawyer was to be cross-examined on an affidavit that the Court did not have a copy of. It transpired that theaffidavit of the former lawyer had been filed in the earlier appeal dealt with by Cull J.It was an affidavit which responded to another affidavit which had been filed in thesame appeal, an affidavit of the appellant dated 19 June 2019. The Court did not havea copy of that affidavit either. It appears that counsel had assumed that this Courtwould automatically have access to whatever had been filed in the earlier appeal.[13] In order not to further inconvenience the former counsel, I permitted the cross-examination to proceed on the basis that counsel would provide the Court with copiesof both of the missing affidavits. In any event, nothing of significance emerged duringcross-examination. The main difference between the accounts in the two affidavits isthat the former counsel denied the appellant's allegation that she had told him, priorto the original District Court hearing, that the complainant had punched her before shethrew a bottle at the complainant.BackgroundFactual background[14] Ms Tuhi was 19 years of age when the offending occurred. She is of NgātiKahungunu and Ngāti Raukawa whakapapa. She has a child now two years old andcurrently attends the Teen Parent Unit at William Colenso College. She has noprevious convictions.[15] On 29 April 2018, in the early hours of the morning, the appellant went to afriend's house. Others were drinking in the house at the time. Ms Tuhi was invitedinto the house, and into her friend's bedroom. After Ms Tuhi had been in the bedroomwith her friend for around 30 minutes, a group of people that had been drinking in thelounge entered the room. A member of the group, "Q" interacted with Ms Tuhi'sfriend. Ms Tuhi and her friend asked the group to leave, which caused Q to becomeangry, and yell and swear at Ms Tuhi. A verbal fight between the two ensued, withMs Tuhi alleging that at this time, Q threw a beer bottle at her. Q denies this. Q wasremoved from the room by other members of the group, leaving Ms Tuhi and Q'spartner (the victim) alone in the room.[16] Ms Tuhi and the victim began yelling and swearing at each other. The victimpushed Ms Tuhi on her shoulder, causing her to fall back against the bed. The victimthen reached down and pulled Ms Tuhi's hair, with Ms Tuhi doing the same inretaliation. The two continued to scuffle. Ms Tuhi then picked up a bottle and eitherthrew it at the victim or hit the victim in the face with it,5 which she stated was doneas a quick reaction without any thought other than for her own safety. The bottle hitthe victim on the left side of her head, causing a gash. Ms Tuhi left the house soonafter she threw the bottle.District Court decision on the s 106 application[17] When addressing the application for a discharge, Judge Rea considered thethree steps required for a discharge without conviction under s 107 of the Sentencing5 Police v Tuhi DC Hastings CRI-2018-020-1372 at [2]. The Judge does not make a specific findingas to whether the bottle was thrown or used to hit the victim.Act 2002.6 Firstly, the Judge considered this to be moderately serious offending, as touse a bottle on another person in the circumstances was "simply inviting what exactlyhappened, injury and the prospect of stitching and other health concerns".7 Secondly,the Judge considered the consequences for Ms Tuhi to be "largely speculative" at thepresent time. While the Judge accepted that between the offending and the hearing,Ms Tuhi had shown considerable maturity in addressing her life position, and that aconviction would impact her chances of travelling or obtaining employment, thesewere more general consequences as opposed to specific ones.8 Thirdly, the Judgeultimately held that the conviction would not be out of all proportion to the seriousnessof the offending, as although the general consequences of issues with travel andemployment were important considerations, the offending was moderately serious,and therefore a conviction would not be out of all proportion to the seriousness of theoffending.9Provision of Advice to Courts (PAC) report[18] The PAC report detailed that Ms Tuhi was an active member of the communityand had no previous convictions. She was assessed as having a low risk of re-offending and medium risk of harm. Ms Tuhi had attended a restorative justiceconference for the offence and had indicated that she would be willing to engage withrehabilitative programmes to address her offending needs. The report indicated thather current address was not suitable for EM bail, and recommended a sentence of12 months' intensive supervision with special conditions to attend departmentalprogrammes as required by her probation officer.Position of the partiesThe appellant[19] In addition to appealing the dismissal of the discharge application,Mr Fairbrother QC advanced other grounds. The first two grounds alleged that therewas a radical error of Ms Tuhi's counsel which affected the outcome of the case. This6 Sentencing Act 2002, s 107. See also Scott v R [2019] NZCA 261 at [79].7 Police v Tuhi, above n 3, at [14].8 At [15]-[16].9 At [17].occurred as a result of the previous counsel failing to advise Ms Tuhi of her right to ajury trial, and failing to adequately put forward an argument in support of self-defence(as the previous counsel did not adequately explore the evidence suggesting that in thecircumstances that Ms Tuhi believed to exist, she was justified in throwing the bottleat the victim).[20] In relation to the discharge without conviction application, the three elementsof s 107 were discussed separately. Firstly, the gravity of the offending. It wassubmitted that Ms Tuhi's conviction arose from an overreaction to a stressful andunpleasant situation not of her making, and that (as observed by the District CourtJudge), she was a young pro-social person "out of her depth". Consequently,according to counsel, the seriousness of the offence was offset by a reduced level ofculpability in the circumstances. Secondly, the consequences of the conviction.Counsel submitted that the conviction had overwhelmed Ms Tuhi's appropriateambitions to play a positive role in society and her daughter's life. Affidavits fromthose supporting and educating Ms Tuhi indicated she had a good likelihood of futureachievement, which would be significantly hindered by a conviction. Finally, theproportionality of a conviction to the gravity of the offending. Counsel referred to thecases of Walker v Police (where it was observed that when sentencing a young personin these types of cases, the best interests of the young person was a "primaryconsideration"),10 and Tahitahi v Police. In Tahitahi, the defendant (convicted of twocharges of wilful damage and one charge of common assault) was 18 at the time ofoffending, with no previous convictions, motivated to start a career, expressedsignificant remorse and had sought restorative justice.11 In granting the dischargewithout conviction, Allan J described the defendant as "exactly the type of person atwhom the provisions of ss 106 and 107 are aimed".12 Counsel submitted that Ms Tuhiwas in a highly analogous situation here, and thus the imposition of a conviction, giventhese factors, would be out of proportion to the gravity of the offending.10 Walker v Police [2016] NZHC 1450 at [21].11 Tahitahi v Police [2012] NZHC 663 at [32].12 Tahitahi v Police, above n 11, at [32].The respondent[21] In relation to the failure to discharge without conviction, counsel discussed thethree elements of s 107 separately. Counsel concurred with the District Court Judge'sassessment of the gravity of offending as moderately serious, particularly givenMs Tuhi's use of the bottle caused the victim wounds requiring stitches. Furthermore,according to counsel, the Judge correctly assessed the consequences of the convictionas largely speculative. As a result, counsel submitted that the conviction was not outof all proportion with the gravity of the offending.[22] While it was accepted that there was an error in the failure of counsel to adviseMs Tuhi of her right to elect a jury trial, counsel did not concede that this error was sofundamental that it amounted to a miscarriage of justice. On one hand, counselasserted that the original hearing was held before an experienced District Court Judgeand that Ms Tuhi pleaded guilty at the conclusion of the evidence, which was adecision independent from the mode of trial, suggesting that any unfairness as a resultof a failure to be advised about rights to a jury trial was subsumed by the inevitabilityof conviction on the amended charge. However, on the other hand, counsel concededthat it may not have been possible for a jury to have convicted the defendant on theamended charge. This was because the Crown would have needed to include it as analternative charge, or the presiding Judge would have needed to allow an amendmentbefore the jury retired. In this case, the charge was amended to fit the evidence underss 133 and 136 of the Criminal Procedure Act, and if this had not occurred, Ms Tuhilikely would have been acquitted. Consequently, counsel acknowledged that it wasarguable that the outcome of the trial was affected by Ms Tuhi not having the abilityto choose a jury trial.[23] While making concessions on the above ground of appeal, counsel opposed theother two grounds, namely that the self-defence argument was inadequately putforward, and that the District Court Judge erred in not allowing a discharge withoutconviction. With regard to the failure of Ms Tuhi's counsel to adequately put forwarda self-defence argument, it was submitted that this defence was undermined byMs Tuhi's own evidence under cross-examination. Ms Tuhi's actions could not beseen as a reasonable or proportionate response, due to her concession under cross-examination that she wanted to hit the victim with the bottle, and that she did not needto do so. However, counsel did acknowledge the victim's own concession under cross-examination that she started the physical altercation, that she intended to assault if nothurt Ms Tuhi, and Ms Tuhi's statement in evidence-in-chief that it looked like thevictim was going to punch her, and that she was scared before throwing the bottle.Approach to appeal[24] An appeal against the refusal to grant a discharge without conviction is acomposite appeal against both conviction and sentence.13 The basis for determiningan appeal against a refusal to grant a discharge without conviction is whether amiscarriage of justice has occurred:14(a) by virtue of a material error by the sentencing Judge in entering aconviction; or(b) as a result of an error by the judge in applying the principles ofdischarging an offender without conviction under s 107 of the Act.[25] In S v R, the Supreme Court observed that an appeal on the basis of an error bycounsel to advise a defendant of their right to elect a trial by jury is brought unders 232(2) of the Criminal Procedure Act 2011.15 Under the grounds set out in s 232(2),a Court must allow the appeal if satisfied that:16(a) in the case of a jury trial, having regard to the evidence, the jury'sverdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage ofjustice has occurred; or(c) in any case, a miscarriage of justice has occurred for any reason.[26] A miscarriage of justice is defined under s 232(4) as any error, irregularity oroccurrence in, or in relation to, or affecting the trial that has created a real risk that the13 Jackson v R [2016] NZCA 627 at [6]-[16].14 At [12].15 S v R [2018] NZSC 124, at [31].16 Criminal Procedure Act 2011, s 232(2).outcome of the trial was affected or has resulted in an unfair trial or a trial that was anullity.17 This may include trials in which the appellant pleaded guilty.18Relevant LawFailure to advise of mode of trial[27] In Abraham v Auckland District Court, the defendant had entered a guilty pleaon 18 charges relating to the filing of false tax returns.19 The issue was whether thedecision of the District Court to refuse leave to withdraw the defendant's guilty pleasafter it failed to advise him of his right to elect a jury trial was unlawful.20 The Courtof Appeal held that the defendant's lack of knowledge of his right to a jury trial mayhave influenced his decision to plead guilty and that because this was such a significantright, the decision to enter a guilty plea without knowledge of the right was sufficientto constitute a miscarriage of justice.21[28] However, following enactment of the Criminal Procedure Act 2011, theSupreme Court has taken a slightly different approach. As discussed above in S v R,a minority of the Court (Glazebrook and Arnold JJ) observed that the failure to be"advised of the right to elect trial by jury (and therefore being tried by a Judge-alone)may be a serious procedural error that on its own could cause an unfair trial, withoutany added requirements".22 The majority also stressed the importance of a defendant'sright to elect a jury trial and to be advised of that right:23It is important that defendants have an informed choice in relation to themaking of an election. There are two elements to that choice. The first goesto knowledge, that is, the defendant must know that he or she has a choice asto the mode of trial. The second element goes to the advice a defendant shouldreceive, that is, the right to take advice about the reasons for choosing onemode over another.[29] However, even when one of these elements is missing or has not occurred, themajority concluded that a trial will not necessarily be deemed to be a nullity or unfair.17 Criminal Procedure Act 2011, s 232(4).18 Criminal Procedure Act 2011, s 232(5).19 Abraham v Auckland District Court [2007] NZCA 598 at [1].20 Abraham v Auckland District Court, above n 23, at [3].21 At [51]-[54].22 S v R, above n 15, at [99].23 At [49].In S v R (where the defendant had elected a jury trial due to the erroneous belief ofcounsel that a Judge-alone trial was unavailable) the majority of the Supreme Courtupheld the Court of Appeal's decision that the trial was not a nullity, despite the errorof counsel.24 In particular, the majority, referencing the change from the SummaryProceedings Act 1957 (where under s 66, there was a positive obligation on the Courtto advise the defendant of their right to a jury trial) to the Criminal Procedure Act(where no such positive obligation exists), noted:25In assessing whether the error in the present case has caused a nullity, theimportance of the election should not be underplayed. But it is not a decisionwhich affects the jurisdiction of the Court. And, given the statutory context,it does not meet the nullity threshold. There is now no statutory obligation forthe Court or counsel to advise the defendant of the election[30] The majority also concluded that while the rights to choose between a judge-alone and jury trial were important and of constitutional significance, failure bycounsel to ensure the defendant's rights were observed had not affected the outcomeof the trial or caused it to be unfair.26Discharge without conviction[31] Section 106 of the Sentencing Act 2002 provides that if a person who ischarged with an offence is found or pleads guilty, a Court may discharge the offenderwithout conviction, unless by any enactment applicable to the offence the Court isrequired to impose a minimum sentence.27[32] Section 106 is complemented by s 107. Under this provision, a Court must notdischarge an offender without conviction under s 106 unless that Court is satisfied thatthe direct and indirect consequences of a conviction would be out of all proportion tothe gravity of the offence.28[33] The Court of Appeal has characterised an assessment under s 107 as a three-step test:2924 At [46].25 At [46].26 At [82]-[83].27 Sentencing Act 2002, s 106.28 Sentencing Act 2002, s 107.29 Prasad v R [2018] NZCA 537 at [11].[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressing theguidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, taking intoaccount all aggravating and mitigating factors of the offending and theoffender;(b) identification of the direct and indirect consequences of conviction;and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the Court isassessing the likelihood of something that may happen in the future.[34] In Z v R, the Court of Appeal clarified the approach to applying each elementof the s 107 assessment:30[W]hen considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).[35] With regard to the assessment of direct and indirect consequences of convictionon a defendant, the Court of Appeal has stated that:31The Judge does not have to be satisfied that the direct and indirectconsequences will inevitably or probably occur; it is sufficient if he or she issatisfied there is a real and appreciable risk of such consequences.[36] In relation to the final step, the Court of Appeal has affirmed in R v Smyththat:32[12] It is not enough that the consequences of a conviction outweigh thegravity of the offending. Significantly more is required. The consequences30 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].31 DC (CA47/2013) v R [2013] NZCA 255.32 R v Smyth [2017] NZCA 530.must be out of all proportion to the gravity of the offending before the courthas jurisdiction to grant a discharge without conviction.[37] As noted in Churchward v R, the youthfulness of an offender is an importantconsideration when a court is determining a discharge without conviction.33 This isfor a number of reasons, including:(a) There are age-related neurological differences between young peopleand adults, including that young people may be more vulnerable orsusceptible to negative influences and outside pressures (includingpeer pressure) and may be more impulsive than adults.(b) The effect of imprisonment on young people, including the fact thatlong sentences may be crushing on young people.(c) Young people have greater capacity for rehabilitation, particularlygiven that the character of a juvenile is not as well formed as that ofan adult[38] In Churchward, the Court also observed that criminal convictions at a youngstage of life may have a disproportionate impact on the ability of a young person togain meaningful employment and play a worthwhile role in society.34Self-defence inadequately put[39] Section 48 of the Crimes Act 1961 provides:Every one is justified in using, in the defence of himself or herself or another,such force as, in the circumstances as he or she believes them to be, it isreasonable to use.[40] This formulation involves both a subjective and objective element, and can beset out in three questions:(a) Did the defendant use force for the purpose of defending himself orherself or another?(b) What were the circumstances as the defendant believed them to be?(The subjective element)33 Churchward v R [2011] NZCA 531.34 Churchward v R, above n 33, at [78].(c) Was the force used reasonable in those circumstances?(The objective element)[41] With regard to the subjective element, the actual beliefs of the defendant arecritical. The defence will not be available if the defendant realised that there was notyet any imminent force to be resisted,35 or if at the time of the response the defendantknew that they had other options available to them and that those options werereasonably available to them in the time they had to react.36 The defence is onlyavailable if the defendant is using force for the purpose of defending themselves, oranother, not solely as retaliation for past grievances.37[42] With regard to the objective element, which requires an assessment of whetherthe force used was actually "reasonable", reasonableness will require consideration ofthe perceived imminence and seriousness of the attack or threatened attack, whetherthe defensive reaction was reasonably proportionate to the perceived danger, andwhether there were alternative courses of action reasonably available of which thedefendant was aware.38AnalysisDischarge without conviction[43] This is a finely balanced case. On one hand, I agree that the District CourtJudge was correct in describing the offending as moderately serious, due to thesignificant gash that the victim suffered as a result of Ms Tuhi throwing the bottle. Onthe other hand, I consider the consequences of the conviction upon Ms Tuhi more than"speculative" as described by the Judge. I consider that there is a real and appreciablerisk that Ms Tuhi will struggle to find employment as a result of the conviction.Furthermore, given Ms Tuhi's youth, her circumstances (particularly her responsibilityfor her child) and the fact that she has no previous convictions, the indirectconsequences of being imposed with this type of conviction seem relatively severe.35 R v Wang [1990] 2 NZLR 529 at 683-684.36 McNaughton v R [2013] NZCA 657 at [54].37 Pakai v R [2016] NZCA 343 at [29]-[31].38 R v Wang, above n 35, at 535–536.[44] When considering the seriousness of the offence, I am obliged to consider allaggravating and mitigating features.39[45] A particular mitigating factor relating to the facts of the offence is theacknowledgment by the victim that she started the physical altercation. I also place agreater weight on the appellant's personal circumstances. While all those convictedof criminal offences such as this face potential consequences for future employmentbecause of the age of the appellant, the facts that she has never had a job, is stillcompleting her secondary education and has a young child to care for, mean that thepotential consequences for her future employment prospects are more acute thanwould be the case for many others.[46] My finding that the appellant should be discharged without convictioneffectively disposes of this appeal. The reason for this is that if the appellant isdischarged without conviction there are no live issues. It would be completelyinconsistent with a discharge without conviction for the matter to be referred back fora retrial on grounds such as there had been a miscarriage of justice because theappellant had not been advised of the right to a jury trial.Outcome[47] For these reasons, the appeal is allowed, and the appellant is dischargedwithout conviction.Churchman JSolicitors:Crown Solicitors' Office, NapierR Fairbrother QC, Barrister, Napier39 See Z v R, above n 30.