Dannielle Tumahai successfully had her conviction for supplying methamphetamine set aside after the Court of Appeal ruled there had been a miscarriage of justice at sentencing. Photo / NZME
A young mum who testified against a drug dealer at a murder trial in exchange for escaping conviction for selling meth was convicted anyway, crushing her dreams of working as a flight attendant.
Now Dannielle Tumahai’s conviction has been set aside by the Court of Appeal in what her lawyer describes as a “merciful and just” decision.
Tumahai’s case has been sent back to the District Court, where fresh evidence to support her application for a discharge without conviction will be heard after she won her appeal on the grounds of a miscarriage of justice at sentencing.
According to the Court of Appeal judgment released today, Tumahai’s offending arose out of an abusive relationship in 2015.
Tumahai, then 23, was introduced to drugs and her two children, whom she described as her world, were removed, Justice Mathew Downs noted.
Her partner was then jailed for 6½ years. She turned from cannabis to methamphetamine and her life began to spiral.
“At the time of this offending, I was hanging out with a drug dealer to support my habit,” she told the Court of Appeal at a hearing last week.
“I made a lot of ‘friends’ – people used to come to me because they knew I had some [methamphetamine], and I could make some extra money on the side, by giving some to them.”
In May and June 2020, Tumahai offered to supply at least 2.75 grams of meth and at least 1 gram of the same drug. She was charged on October 29 that year.
“At the time I was arrested, I had been in a hotel room with some guys,” she said. “The men I had come to the hotel room with had gone to do a drug deal and left me in the hotel room.
“The drug deal went wrong and a murder was committed.”
Those men were Michael Filoa and Aaron Davis. Filoa was found guilty of murdering Mongrel Mob member Clifford Umuhuri in Auckland and Davis was acquitted.
Tumahai was a prosecution witness in the trial of both men.
“It was my understanding that, if I gave evidence for the prosecution, I would receive a discharge without conviction on these charges,” she said.
She pleaded guilty to selling the meth and tried to turn her life around.
She went to rehab, moved to a new home, was “stable” and “safe”, and got to the interview stage of a job with Air New Zealand as a flight attendant.
“The next step in the process was police vetting,” Tumahai said.
But a day later, in May last year, she faced sentencing in the District Court for her offending.
Because she had not completed her rehabilitation, she sought a second adjournment of her sentencing but District Court Judge Anna Skellern declined.
Tuamhai’s lawyer at the time had permission to appear via audio-visual link but the court did not have that capability so she appeared via phone.
The Court of Appeal heard the line was so bad the lawyer could not keep up with the process and did not seek a discharge without conviction.
There had also been no application for the discharge before the hearing and the court had no knowledge of Tumahai’s efforts to change.
Tumahai was sentenced to 15 months’ intensive supervision.
“I was shocked my sentencing went ahead ... without my lawyer there and without being able to ask for a discharge without conviction and complete my rehabilitative work,” Tumahai told the Court of Appeal in her affidavit.
“I was then sentenced, and I knew that my convictions for supplying methamphetamine and offering to supply methamphetamine would show up on police vetting. I withdrew my application [to Air NZ].
“I would very much like to reapply but I know that I will never be able to get the job because the convictions will mean I am unable to get a visa to fly internationally to any other country.
“The charges both carry a maximum penalty of life imprisonment, and that is all people will see when they receive the police vetting results – that is what I am scared of. I have applied for a lot of other jobs in the last year.”
Marie Taylor-Cyphers, who took Tumahai’s case to appeal, emphasised it was an unusual case because her client had “broken the grip of an addiction and has much to offer society – provided the burden of an unwarranted criminal record is removed”.
Taylor-Cyphers contended the consequences of conviction were out of all proportion to the gravity of the offending, and argued Tumahai should be discharged without conviction.
Justice Downs, Justice Christian Whata, and Justice Patricia Courtney were satisfied there had been a miscarriage of justice and said Tumahai’s evidence was credible.
“Ms Tumahai wanted to apply for a discharge without conviction and, through no fault of her own, that application was never advanced.
“Relatedly, no evidence was placed before the District Court to support such an application.
“Sentencing then proceeded even though Ms Tumahai anticipated an unopposed adjournment, absent effective representation because of the unavailability of VMR and an ‘appearance’ by no more than a poor telephone line.
“Moreover, given the evidence now available, we are satisfied there is a real possibility the outcome might have been different had the process not miscarried.”
They pointed out that no part of their decision implied any criticism of the judge.
Justice Downs set aside the conviction and sent the case back to the District Court for redetermination with additional evidence, including Tumahai’s efforts to gain employment, her rehab progress and the fact her children had been returned.
Taylor-Cyphers told the Herald it was a “merciful and just outcome”.
Natalie Akoorie is the Open Justice deputy editor, based in Waikato and covering crime and justice nationally. Natalie first joined the Herald in 2011 and has been a journalist in New Zealand and overseas for 27 years, recently covering health, social issues, local government, and the regions.