S v R

JurisdictionNew Zealand
CourtSupreme Court
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
Date20 December 2018

[2018] NZSC 124




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

SC 36/2018

S (SC 36/2018)
The Queen

N Levy for Appellant

B J Horsley and M J Lillico for Respondent

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.

Held: While the election as to mode of trial was an important decision, the failure to make that election did not affect the jurisdiction of the District Court to try the proceedings and did not constitute a nullity. The Court was also agreed that there was nothing to support the conclusion that the error had created a real risk that the outcome of the trial was affected, nor was the trial unfair. The Court did not need to decide whether the position was different where a defendant was denied the right to elect a jury trial.

In addressing the fairness of the trial William Young, O'Regan and Ellen France JJ said that, in assessing the importance of the absence of informed choice in this case, any advice about the mode of trial would involve experience and impression and so necessarily involve a degree of speculation. Further, William Young, O'Regan and Ellen France JJ saw it as relevant that S had been given the rights protected in the New Zealand Bill of Rights Act 1990 which include the right to trial by jury in certain cases. Nor could it be said S had received an inferior process where there was no criticism of the conduct of the trial other than the absence of an informed choice as to whether to elect a Judge-alone trial.

Glazebrook and Arnold JJ, writing separately, differed in some aspects of the reasoning. They considered that a trial where the defendant lost the ability to choose the mode of trial could be characterised as unfair if the defendant could show with something other than hindsight that a different mode of trial would have been elected. They considered that in this case no other basis was provided.

Appeal against conviction dismissed.

The appeal is dismissed.


Para No.

William Young, O'Regan and Ellen France JJ


Glazebrook and Arnold JJ


William Young, O'Regan AND Ellen France JJ

(Given by Ellen France J)

Table of Contents

Para No.



Background facts


The statutory scheme


The decision of the Court of Appeal


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


A nullity?


An unfair trial?


An important choice


The application of Abraham


The Canadian authorities


The constitutional place of the jury trial


Real risk outcome affected?







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.


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

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.


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.


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.


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.


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


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.


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.


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.


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

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


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


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

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.


If the defendant in a category 3 proceeding elects jury trial, the trial will be before a jury unless...

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