Taia v Police [2012] NZHC 1255 (6 June 2012)

Last Updated: 11 July 2012

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-416-000001 [2012] NZHC 1255

BETWEEN DANNY HERARE PAOMANGA TAIA Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 1 June 2012

Counsel: AM Simperingham for Appellant

K Laurenson for Respondent

Judgment: 6 June 2012

_{JUDGMENT OF RODNEY HANSEN J}

This judgment was delivered by me on 6 June 2012 at 4.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: Woodward Chrisp, P O Box 347, Gisborne for the Appellant

(Email: [e-mail] )

Elvidge & Partners, P O Box 609, Napier for the Crown

(Email: [e-mail] )

DANNY HERARE PAOMANGA TAIA V NEW ZEALAND POLICE HC GIS CRI-2012-416-000001 [6 June

2012]

Introduction

[1] Mr Taia appeals against his conviction on a charge of assaulting a person using a knife as a weapon, contrary to s 202C(1)(a) of the Crimes Act 1961. He says that, in breach of s 43(3)(d) of the Summary Proceedings Act 1957, Judge McNaughton, who heard the case in the Gisborne District Court, amended the charge at the conclusion of the case without giving him the right to examine, cross-examine or re-examine witnesses whose evidence had already been given.

Additional background

[2] Mr Taia originally faced the charge of assault using a weapon under s 202C(1)(a) of the Act but the information was amended by consent at the beginning of the hearing, before any evidence was called, to a charge that while assaulting the complainant, Mr Ted Shortland, he had a knife with him in circumstances that prima facie showed an intention to use it as a weapon, contrary to s 202C(1)(b) of the Act.

[3] The case then proceeded in the following way. Mr Shortland was called. He explained that he and Mr Taia were both members of a motorcycle club that had ridden from Whakatane to Gisborne and, on the night in question, were staying at the Jolly Stockman Hotel. At some stage of the evening there was an altercation involving the pair and Mr Shortland’s brother which led to Mr Taia sustaining an injury. The incident which led to the charges, however, occurred in the early hours of the following morning when Mr Shortland said he left the bedroom in which he was sleeping with his wife to go to the toilet on the other side of the corridor. Mr Shortland said he had relieved himself and flushed the toilet when he turned around to see Mr Taia standing in the doorway holding a knife in his hand. He said Mr Taia was holding the weapon against his leg with the blade pointing towards the ground. Fearful that he would be attacked with the knife, he charged at Mr Taia and tried to grab the knife. He said he ended up on the ground with Mr Taia on top of him. At some point he wrested the knife out of Mr Taia’s hand. Soon afterwards he

said Mr Taia’s partner, who also happens to be Mr Shortland’s first cousin, came in. She grabbed the knife out of Mr Shortland’s hand and threw it in a sink in the toilet.

[4] At the conclusion of Mr Shortland’s evidence-in-chief, Judge McNaughton intervened, telling the police prosecutor that he thought he was in “some difficulty” with the substituted charge. The Judge suggested that the only basis on which there was criminal liability was in Mr Taia coming into the toilet with the knife in the first place. That, he said, was either assault with a weapon, or assault, or threatening behaviour, or possession of a knife.

[5] After further discussion the Judge said that he did not like amending charges because he thought it unfair to the defendant and defence counsel but he made it clear that amendments to substitute charges of the kind discussed were likely. At this point Mr Simperingham made it clear that the defendant’s case was that it was not him who entered the toilet with the knife but Mr Shortland. Mr Shortland was then cross-examined. It was put to Mr Shortland that he was holding the knife when seen by other witnesses and that Mr Taia did not take the knife into the toilet with him. Mr Shortland rejected the latter suggestion.

[6] Tania Tauariki then gave evidence of entering the toilet having heard scuffling sounds. She is Mr Taia’s partner and Mr Shortland’s first cousin. She found the pair fighting. She said Mr Taia was on top, punching Mr Shortland. Mr Shortland was holding onto the knife. She said she prised it out of his fingers and threw it into the shower or the toilet.

[7] Another member of the motorcycle club, Robert Bartlett, who went to the toilet after hearing the altercation, also said he found Mr Taia on top of Mr Shortland. He pulled them apart. At that point he did not notice a knife but afterwards Mr Shortland said to him that Mr Taia had a knife with him. Mr Bartlett then went into the toilet and found a knife on the floor.

[8] The prosecution closed its case after a police officer who interviewed Mr Taia had given evidence. The defence elected not to call evidence. The prosecutor then invited the Judge to amend the charge to one of possession of an offensive weapon.

Counsel for Mr Taia advised that the application to amend was opposed. The Judge proceeded to give his decision.

The decision

[9] After reviewing the evidence, the Judge observed that the only realistic explanation for the knife being in the toilet area was because either Mr Taia or Mr Shortland took it there. He said it was not suggested to Mr Shortland that he had taken the knife into the bathroom; Mr Taia in his interview had suggested that it had been left in the sink and Mr Shortland had picked it up before or during the struggle. Judge McNaughton said he did not accept that as a reasonable or plausible explanation.

[10] The Judge said it was far more plausible and likely that the knife was taken from drawers in the kitchen which was a short distance down the corridor. The kitchen adjoined the dining room where Mr Taia had been earlier in the night. Mr Shortland, on the other hand, had not been in the dining room or kitchen that night. The Judge concluded that the only reasonable and rational conclusion he could reach was that Mr Taia had taken the knife from the kitchen and into the bathroom. He said he was satisfied beyond reasonable doubt that he had confronted Mr Shortland there, holding the knife in his hand, and that his purpose in doing so was to threaten Mr Shortland or prepare to assault him or both. He said there was, accordingly, an assault by threat with Mr Taia in possession of a knife and the charge, as originally laid under s 202C(1)(a), was the correct one. He accordingly amended the charge back to that of assault using a knife as a weapon and found the charge proved. He went on to sentence Mr Taia to 100 hours community work.

Grounds of appeal

[11] Mr Simperingham submitted that the Judge failed to comply with s 43 of the

Summary Proceedings Act which relevantly provides:

43 Amendment of information where defendant appears

(1) Subject to the succeeding provisions of this section, where the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.

(2) Without limiting the generality of the powers conferred by subsection (1) of this section, it is hereby declared that those powers shall include power to amend an information by substituting one offence (whether an indictable offence or a summary offence) for another offence (whether an indictable offence or a summary offence), and shall also include power to amend the information to an information to which Part 5 of this Act applies.

(3) Where under subsection (2) of this section any information is amended by substituting one offence for another, then, subject to the provisions of subsection (4) of this section, the following provisions shall apply:

(a) Subject to the provisions of paragraphs (b), (c), and (d) of this subsection, the hearing shall be continued as if the defendant had originally been charged with the substituted offence:

(b) If the substituted offence is one to which section 66 of this Act applies, the defendant shall, before the hearing is continued, be entitled to elect to be tried by a jury for that offence, and the provisions of that section, with the necessary modifications, shall accordingly apply as if for the words “before the charge is gone into” in subsections (1) and (2) of that section there were substituted in each case the words “before the hearing is continued”:

(c) Before the hearing is continued, the substance of the charge as amended shall be stated to the defendant and he shall be asked how he pleads; and, if he pleads guilty, the Court may convict him or deal with him in any other manner authorised by law:

(d) Any evidence already given shall be deemed to have been given in and for the purposes of the hearing of the charge as amended, but either party shall have the right to examine or cross-examine or re-examine any witness whose evidence has already been given in respect of the offence originally charged.

...

[12] Mr Simperingham submitted that the failure to comply with s 43(3)(d) vitiates the conviction. He said the matter should be remitted back to the District Court for a rehearing. He rejected the suggestion of Ms Laurenson, for the Crown, that the conviction could be amended to the charge which was substituted at the

outset. He argued that this would not cure the injustice arising from the failure to comply with s 43(3).

Decision

[13] It is clear (and accepted) that the Judge had the power to amend the information to substitute the original charge, and to do so when he did. For the purpose of s 43, the hearing continues until the Judge finds the charge proved or dismisses it.[1]

[14] It is also clear that the Judge erred in failing to comply with s 43(3)(c) and (d). Compliance is mandatory as the language of s 43(3) makes clear.[2] Section 204 of the Summary Proceedings Act is not available to cure the defect.[3] The conviction cannot stand. The sole question is what is to be done about it.

[15] There is power to amend the conviction under s 121(2)(c) of the Summary Proceedings Act. Mr Simperingham opposes that course because he considers Mr Taia was disadvantaged by the way the case unfolded. But on analysis it appears that the disadvantage of which he complains did not derive from the amendment. It had other causes.

[16] It emerged that in his statement to the police, Mr Shortland (the complainant), had said he was punched by Mr Taia when he came into the toilet with the knife. In his evidence he said nothing about a punch. He said he began the physical fight in the toilet as a pre-emptive strike after he saw Mr Taia standing in the doorway with the knife.

[17] This took the defence by surprise and caused Mr Simperingham to focus on

the altercation that followed, not, he said, appreciating that Mr Taia’s prior actions

_{could constitute an assault by virtue of the threat he offered as he stood in the}

doorway. As a result, the defence did not focus, as it otherwise would have, on who brought the knife to the toilet in the first place – Mr Shortland or Mr Taia.

[18] It is clear that the mischaracterisation of the case by the defence had its genesis in the unexpected change to Mr Shortland’s account of events. It meant that the only way in which an assault could be established was on the basis ultimately found by the Judge – threatened action by Mr Taia as he stood at the toilet door. But that applied under both limbs of s 202C(1). Both require proof of an assault. The Judge clearly identified this as a critical factual issue during the discussion that took place at the end of Mr Shortland’s evidence-in-chief. At that point Mr Simperingham also identified as a threshold factual issue whether it was Mr Shortland or Mr Taia who brought the knife to the toilet.

[19] In my view, there could not be any injustice to Mr Taia if I were to amend the conviction to the charge which he faced throughout the hearing. Mr Taia was given every opportunity to challenge a case directed to that charge. On the Judge’s findings of fact, it was clearly established.

Result

[20] The appeal succeeds in that non-compliance with s 43(3) of the Summary Proceedings Act means that the conviction on the charge of assault with a weapon cannot stand. However, for the reasons stated, the conviction is amended to one under s 202C(1)(b) that while assaulting the complainant Mr Taia had a knife with him in circumstances that prima facie showed an intention to use it as a weapon.

[21] The sentence is appropriate to the conviction as amended and is unaffected by the amendment.

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[1] _{MOT v Nicol [1980] 1 NZLR 436, Jones v Police [1998] 1 NZLR 447.}

[2] See also Reynolds v Police HC Dunedin AP68/87, 15 July 1988; Tam v Police [1996] NZFLR _252.

[3] R v Police (1997) 14 CRNZ 590; Tam v Police (Ibid n2)