S v R

JurisdictionNew Zealand
JudgeWilliam Young,O'Regan,Ellen France JJ,Ellen France J,Glazebrook,Arnold JJ
Judgment Date20 December 2018
Neutral Citation[2018] NZSC 124
Docket NumberSC 36/2018
CourtSupreme Court
Date20 December 2018
Between
S (SC 36/2018)
Appellant
and
The Queen
Respondent

[2018] NZSC 124

Court:

William Young, Glazebrook, O'Regan, Ellen France and Arnold JJ

SC 36/2018

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Appeal against conviction on grounds of miscarriage of justice as appellant had not been advised that he had a right to elect a judge alone trial instead of jury trial — Whether the absence of an informed choice as to the mode of trial has given rise to a miscarriage of justice — s 50 Criminal Procedure Act 2011.

Appearances:

N Levy for Appellant

B J Horsley and M J Lillico for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT
REASONS

Para No.

William Young, O'Regan and Ellen France JJ

[1]

Glazebrook and Arnold JJ

[87]

William Young, O'Regan AND Ellen France JJ

(Given by Ellen France J)

Table of Contents

Para No.

Introduction

[1]

Background facts

[3]

The statutory scheme

[12]

The decision of the Court of Appeal

[27]

Effect of the failure to advise of the choice as to mode of trial

[31]

A nullity?

[35]

An unfair trial?

[48]

An important choice

[49]

The application of Abraham

[57]

The Canadian authorities

[58]

The constitutional place of the jury trial

[74]

Real risk outcome affected?

[79]

Conclusion

[82]

Result

[86]

Introduction
1

The appellant was charged with serious sexual offending in relation to two complainants. The effect of s 73 of the Criminal Procedure Act 2011 is that his trial on these charges would be before a judge alone unless he elected trial by jury. It is common ground that his lawyer at trial was unaware a Judge-alone trial was available and so elected trial by jury on the appellant's behalf without advising the appellant of the choice as to mode of trial that was available to him.

2

The appellant was convicted following a jury trial. He subsequently learned he could have been tried before a judge alone and appealed against conviction on the basis the absence of an opportunity to elect the mode of trial gave rise to a miscarriage of justice. The Court of Appeal, by a majority, dismissed the appeal on this ground. 1

He appeals with leave to this Court. 2 The question on the appeal is whether the absence of an informed choice as to the mode of trial has given rise to a miscarriage of justice
Background facts
3

It is useful to begin by saying a little about the incidents giving rise to the alleged offending and about the trial. 3 These matters assume some importance because of the reliance the appellant places on the nature of the trial and the way in which that affected the advice he should have been given about the mode of trial.

4

The first complainant, HS, was 15 years old when, late one night in January 2016, she and two male friends were offered a lift by the appellant back into town. The three were dropped outside HS's home but HS was persuaded to get back into the appellant's vehicle. He drove her to an isolated place where the alleged offending took place. The appellant was charged with abduction for the purposes of sexual connection, sexual violation by rape, unlawful sexual connection by anal penetration, assault by choking and by sucking her neck.

5

The appellant then drove HS home. On seeing her distress, her two male friends confronted the appellant. The resulting incident gave rise to two charges of assault to which the appellant pleaded guilty.

6

Following the complaint by HS the appellant's wife, HK, made a complaint about what the Court of Appeal described as a “course of violent and sexual offending by the appellant that had occurred throughout their relationship”. 4 The complaint led to charges of sexual violation by rape on a specific occasion, assault by punching HK in the face and pushing and holding her against a wall. There were also representative charges of sexual violation by rape, unlawful sexual connection by anal penetration and a representative charge of assault (by choking during sexual activity), and a charge of indecent assault.

7

Prior to trial an application for severance/opposing joinder of the charges relating to the two complainants was unsuccessful in the District Court. 5

8

The appellant admitted the bulk of the conduct complained about occurred except for choking in relation to HS. He gave evidence at trial that the conduct was consensual.

9

In summing up the trial Judge, Judge Barkle, directed the jury on a propensity basis. That was because both HS and HK made allegations of forceful anal sexual connection and vaginal rape, and of choking.

10

The appellant was discharged under s 147 of the Criminal Procedure Act on one count involving HS. He was convicted of all of the other charges.

11

To explain how the mistake as to the mode of trial occurred, Susan Hughes QC, who was the appellant's trial counsel, filed an affidavit in the Court of Appeal. She deposes that she did not know that a Judge-alone trial was available. She said she focused on the fact the maximum penalty faced by the appellant was a term of imprisonment of 20 years. Ms Hughes stated that she understood that a Judge-alone trial was not available except where the maximum penalty was a term of ten years' imprisonment or less. Accordingly, she said she elected a jury trial on behalf of the appellant in relation to the charges involving HS on 11 February 2016, and the charges involving HK on 5 May 2016. 6

The statutory scheme
12

The key provisions relating to the mode of trial are set out in the Criminal Procedure Act. The purpose of that Act is, relevantly, to “set out the procedure for the conduct of criminal proceedings”. 7

13

Under the Act offences are grouped into four categories: categories 1, 2, 3 and 4. 8 Generally speaking, category 1 offences comprise offences not punishable by imprisonment. 9 Category 2 offences, generally, are offences punishable by less than two years' imprisonment. 10 Category 3 offences comprise offences punishable by a term of imprisonment of two years or more, other than a category 4 offence. 11 Category 3 is the relevant category in this case. Category 4 offences are those listed in sch 1 of the Act. 12 The list includes offences under the Crimes Act 1961 such as murder and manslaughter, treason and judicial corruption and offences under other enactments such as the Aviation Crimes Act 1972 (hijacking) and the International Crimes and International Criminal Court Act 2000 (genocide). 13

14

The Criminal Procedure Act makes provision for two types of trial process, namely, a trial before a judge alone and a trial before a judge and a jury (jury trial). 14 The trial process applicable is linked with the category of offence. Previously, the default position in terms of the mode of trial largely reflected the way the prosecution was commenced. 15 If the prosecution was commenced by way of an indictment (broadly, more serious offending), trial was by jury unless the defendant applied for a

Judge-alone trial. 16 If the prosecution was summary (broadly, less serious offending) then trial was before a judge alone unless a jury trial was elected (an election being available where the maximum sentence exceeded three months' imprisonment). The prosecution could accordingly influence the mode of trial by filing an indictment
15

For categories 1 and 2 trial is by judge-alone. 17 The Act provides that for category 3 offences the procedure “generally depends on whether the defendant elects trial by jury”. 18 That reflects the fact the defendant has a choice as to whether to elect a jury trial. 19 If there is no election of a jury trial, the trial will be by judge-alone. 20 The fact the Judge-alone trial is now the default mode for offences in category 1, 2 and 3 is a change from the previous statutory regime and, across the board, the number of offences that may be heard before a judge alone has expanded. 21 Further, it is no longer possible to deny a Judge-alone trial on “interests of justice” grounds as was the case under the old ss 361B and 361C of the Crimes Act.

16

If the defendant in a category 3 proceeding elects jury trial, the trial will be before a jury unless a Judge-alone trial is ordered under s 102 (long and complex trials) or s 103 (juror intimidation). Category 4 offences are tried before a jury in the High Court unless an order is made under ss 102 or 103 for a Judge-alone trial. 22

17

The procedure in relation to trial by jury for category 3 offences is set out in more detail in ss 50 to 53. 23 Section 50 provides for a person charged with a category 3 offence to elect trial by jury and states:

A defendant who is charged with a category 3 offence, and who pleads not guilty to that offence, may elect to be tried by a jury.

18

The timing of such an election is provided for in s 51 as follows: 24

(1) An election under section 50 must be made at the time of entering a not guilty plea, unless the defendant obtains the leave of the court under subsection (2).

(2) The court may grant leave to make an election at a later time, but only if the court is satisfied that there has been a change in circumstances that might reasonably affect the defendant's decision whether to elect a trial by jury.

19

Under s 52, a judicial officer 25 or Registrar may receive an election under s 50 to be tried by a jury.

20

If a defendant wishes to withdraw the election to be tried by a jury, leave of the court to do so must be obtained under s 53(2). 26 Leave may be granted only if: 27

  • (a) the court is satisfied that there has been a change in circumstances that might reasonably affect the defendant's decision to elect a trial by jury; or

  • (b) the court is satisfied that the withdrawal of the defendant's election is unlikely to cause a delay in the defendant's trial being concluded; or

  • (c) in the case of a...

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