Abraham v District Court at Auckland

[2007] NZCA 598

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA324/07
[2007] NZCA 598

BETWEENWIREMU PIKITEKAHA ABRAHAM

Appellant

ANDDISTRICT COURT AT AUCKLAND

First Respondent

ANDCOMMISSIONER OF INLAND REVENUE

Second Respondent

Hearing:11 October 2007

Court:Arnold, Ronald Young and Fogarty JJ

Counsel:P Davey for Appellant

A Markham and N Malarao for Commissioner of Inland Revenue

Judgment:21 December 2007 at 12 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe decision of the District Court is quashed.  The appellant’s application for leave to withdraw his guilty plea is referred back to the District Court for reconsideration in the light of this judgment.

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

Para No.

Introduction  [1]
Background  [4]

THE DECISIONS OF THE COURTS BELOW  [16]
STATUTORY FRAMEWORK  [27]

Discussion  [33]
         Nullity  [41]
         Miscarriage of justice   [61]
Decision  [68]

Introduction

[1]       The appellant pleaded guilty to 18 charges under the Tax Administration Act 1994 (TAA) relating to the filing of false tax returns.  Prior to being sentenced, however, he applied under s 42 of the Summary Proceedings Act 1957 (SPA) to withdraw his guilty pleas.  Judge Gittos refused the application: DC AK CRI-2004-034-000201 6 November 2006.  The appellant sought judicial review of the Judge’s decision.  Stevens J dismissed that application: HC AK CIV 2006-404-007599 15 June 2007.  The appellant now appeals against that dismissal.

[2]       Although the charges were laid summarily, they carry a maximum penalty of five years imprisonment.  As a consequence, under s 66(1) of the SPA and s 24(e) of the New Zealand Bill of Rights Act 1990 (NZBORA), the appellant was entitled to elect trial by jury. 

[3]       It was common ground in the Courts below that, prior to entering his guilty pleas, the appellant was not advised by the District Court of his right to elect trial by jury, as required by s 66(2) of the SPA.  The issue is whether, in the circumstances of this case, the District Court’s refusal of leave to withdraw the guilty pleas was unlawful (using that as a compendious expression to cover the grounds of judicial review).  That depends, in part at least, on the effect of s 204 of the SPA.

Background

[4]       The appellant is a truck driver.  He incorporated a company, W Abrahams Holdings Ltd, for the purpose of carrying on his trucking business.  He was the sole director of the company, which was registered for goods and services tax (GST).

[5]       On 1 April 2004 the Inland Revenue Department (IRD) initiated prosecutions against the appellant and the company.  The charges against the company were that it had knowingly filed false GST returns (income from the business was omitted) with the intent to evade the payment of GST, contrary to s 143B(1)(c) and (f) of the TAA.  (These charges were not pursued as the company ceased trading and was removed from the Register.)  The charges against the appellant were that he had aided the company in filing the false returns, contrary to s 148 of the TAA.  The charges cover a period of three years and the GST involved is over $80,000.

[6]       The charges were laid in the Marton District Court.  There was some difficulty serving the appellant.  As it happened, he was to face unrelated charges in Auckland, so the GST charges were transferred to Auckland by consent.  The appellant apparently agreed to this because he wished to avoid publicity in Marton.  Then there was further delay to allow the IRD to provide disclosure and to give the appellant time to seek legal advice.  Eventually, on 2 November 2004, the appellant entered not guilty pleas to the charges and was remanded to a status hearing.  He was unrepresented at the time.  At the status hearing the presiding Judge advised the appellant that he should obtain legal advice and remanded him to a defended hearing on 11 April 2005.

[7]       On 11 April 2005 the IRD was ready to proceed.  Counsel appeared for the appellant.  He said that he had only recently been instructed and as he had no expertise in tax, he would have to arrange for counsel with appropriate expertise to act.  He sought an adjournment.  The application was granted and the matter was adjourned to 27 April 2005.  On 27 April, when the same counsel appeared, the presiding Judge fixed 4 July 2005 for the defended hearing and said that the matter would definitely proceed on that date.

[8]       On 1 July 2005, Ms Tracy Spencer, a barrister employed by Mr Geoffrey Clews, a senior tax barrister, sought an adjournment of the defended hearing, on the ground that she had only recently become involved.  The appellant had shortly before instructed Mr Clews.  Although Mr Clews retained responsibility for the file, he had arranged for Ms Spencer to undertake the Court appearances under his supervision. The application for adjournment was declined.

[9]       On 4 July 2005 the IRD was again ready to proceed.  Ms Spencer renewed the application for an adjournment.  This time it was granted.  After two further status hearings (on 19 July and 16 August 2005), the charges were set down for a defended hearing on 15 – 16 December 2005.

[10]     As it turned out, there were no Judges available on those dates, and a further fixture for the defended hearing was made for 1 – 2 May 2006.

[11]     On 28 April 2006 Ms Spencer provided the appellant with detailed written advice.  It covered the charges, the evidence, the strength of the IRD’s case, his proposed defence and the likely outcome of the prosecution. The letter concluded by setting out Ms Spencer’s recommendation, which was that the appellant should plead guilty.

[12]     At the bottom of the last page of the letter the following typed statement appeared:

I, Wiremu Pikitekaha Abraham have considered the advice contained in this letter and confirm that I wish to plead not guilty/guilty to the above charges when the matter is called on 1 May 2006.

DATED:

______________

W P Abraham

[13]     Having taken the letter of advice away to consider, and having discussed the matter with his wife, the appellant resolved to plead guilty.  He struck out the words “not guilty” in the statement at the foot of the letter, signed it and gave it to Mr Clews on the same day.  Mr Clews said that he was “a little taken aback” to receive it as he thought that the appellant was still making up his mind.  On 1 May 2006 Ms Spencer entered guilty pleas, in the appellant’s presence.  The appellant was remanded for sentencing on 4 July 2006. 

[14]     In mid June, the appellant instructed Ms Spencer that he wished to withdraw his guilty pleas.  Ms Spencer advised the Court and sought leave to withdraw as counsel.  This was granted.  The appellant then sought and found new counsel. 

[15]     On 27 July 2006, the appellant filed an application seeking leave under s 42 of the SPA to withdraw his guilty pleas.  He also applied to have the proceedings transferred back to Marton.

The decisions of the Courts below

[16]     Initially the application to set aside the guilty plea was based principally on allegations that the legal advice the appellant had received was inadequate and that his counsel had pressured him into pleading guilty. 

[17]     However, those contentions proved unsustainable in the face of affidavits filed by Mr Clews and Ms Spencer and the supporting documentary evidence. Accordingly, the focus of the argument in support of the application shifted.  It became whether the appellant had been informed at any stage of his right to trial by jury and, if not, what the consequence of that was. 

[18]     Judge Gittos adjourned the matter so that further enquiries and further submissions could be made.  Nothing was found on the court files to indicate that at any of the various hearings the Court had advised the appellant of his right to trial by jury.  Mr Clews said in his affidavit that he thought (but could not be sure) that he discussed that with Ms Spencer, but could not remember any discussion with the appellant about trial by Judge alone or by Judge and jury.  For his part, the appellant deposed that no one had informed him of his right to elect trial by jury.  Accordingly Judge Gittos dealt with the application on that basis. 

[19]     Judge Gittos identified the issue before him as being whether the failure to advise the appellant of his right to elect trial by jury was a mere “defect or irregularity” such as might be cured by the application of s 204 of the SPA, or whether it was something which was of sufficient substance to render the proceedings a nullity (at [15]). 

[20]     The essence of the Judge’s reasoning was that, at the time the appellant entered the guilty pleas, a defended hearing was not in his contemplation.  He had taken legal advice.  His advisers recommended that he plead guilty.  The appellant had accepted their advice and entered pleas of guilty.  Putting the election to him before the pleas were taken was simply, Judge Gittos said, a matter of form and not of substance.  No miscarriage of justice was involved and accordingly the application to set aside the guilty pleas was dismissed. 

[21]     The appellant then sought judicial review of the Judge’s refusal to grant the application.  As we have said, Stevens J declined the application.

[22]     Stevens J said that the central issue that had emerged at the hearing before him was “whether the convictions were a nullity on the basis that there was a procedural irregularity (i.e. non-compliance with s 66(2) of the [SPA]) at the time the guilty pleas had been entered” (at [38]).  In considering that question the Judge examined the authorities dealing with the withdrawal of guilty pleas under s 42 of the SPA.  He then turned to the authorities, particularly of this Court, on the proper approach to s 204.  The Judge also noted that there had been a “sea change” on the issue of compliance with procedural requirements in England following the decision of the House of Lords in R v Soneji [2006] 1 AC 340. We return to this aspect below.

[23]     The Judge summarised the authorities in relation to s 204 as follows:

[78]     Having carefully considered the range of cases cited by counsel dealing with the application of the provisions of s 204 of the [SPA], several principles emerge:

a)Whether a defect, irregularity, omission or want of form is a nullity is a question of degree;

b)If an accused person is advised by counsel and is able to exercise his or her rights despite the defect, irregularity, omission or want of form then s 204 will apply and there will be no nullity or miscarriage of justice; and

c)Some rights are, by their nature, so fundamental that to fail to give effect to them through the criminal procedure set out in the [SPA] will mean that there are no proceedings to which s 204 could apply.

[79]     What also becomes clear on an examination of the case law is that the question of whether the proceedings are a nullity or whether s 204 applies is considered on a case by case basis taking into account the particular circumstances of each case.

….

[81]     It is possible to imagine a myriad of circumstances affecting an appellant in which the right to be informed of the right to elect trial by jury impacts in differing ways upon their case.  This is apparent from the different situation in which this issue was encountered in [Stoves v Police HC CHCH CRI 2003-409-000067 28 October 2003].  Even on the present facts, one can imagine that even with the slightest alteration of the facts the right might become more or less essential to the plaintiff.  For example, if the plaintiff was not represented by counsel at the time that he entered the not guilty plea, the fact of not having been told of the right by the Courts would assume more importance.  Conversely, if there was affirmative evidence that the plaintiff had been told of the right to elect by counsel, the right to be told of it by the Court would decrease in importance.

[24]     The Judge then considered two questions – whether the convictions were a nullity and, if not, whether the procedural defect had caused a miscarriage of justice.

[25]     In relation to nullity the Judge concluded:

[87]     In terms of relevant contextual background, I consider it was material that [the appellant] was advised by one of the country’s leading tax counsel, had been provided with detailed and comprehensive advice on the charges and had instructed his counsel to enter pleas of guilty after written legal advice and by way of formal written instructions endorsed thereon.  I have also had regard to the fact that the issue was one where a defended hearing of the charges was not contemplated and involved non-compliance with a procedural step contained in s 66(2).  Like the Judge, I consider that what was involved here was more in the nature of an omission or a matter of form and not such as should be characterised as a nullity.

[26]     In relation to miscarriage of justice, the Judge concluded that the appellant had no defence to the charges and that there were no other factors or circumstances which caused a miscarriage of justice.

Statutory framework

[27]     As noted above, the application to withdraw the guilty pleas was made under s 42 of the SPA.  That section provides that, with the Court’s leave, a plea of guilty may be withdraw at any time before a defendant has been sentenced or otherwise dealt with.

[28]     In terms of the particular ground advanced in support of the application, two provisions of the SPA are of particular importance.  They are ss 66 and 204. 

[29]     Relevantly s 66 provides:

Defendant’s right to elect trial by jury where offence punishable by more than 3 months’ imprisonment

(1)Any person charged under this Part of this Act with an offence which is punishable by imprisonment for a term exceeding 3 months shall be entitled, before the charge is gone into but not afterwards, to elect to be tried by a jury.  Before the defendant is called upon to make his election under this subsection, the substance of the charge shall be stated to him.

…

(2)Except in any case in which subsection (7) of this section or section 66A(1) applies, the Court shall, before the charge is gone into in respect of an offence to which this section applies, inform the defendant of the right conferred on him by subsection (1) of this section by causing him to be addressed to the following effect:

“This case is one where you have a choice of being tried here in this Court or of being tried by a Judge and jury.  Do you wish to be tried by a jury or by this Court?”

…

(7)Any barrister or solicitor who appears for the defendant may (whether or not the defendant is personally present) inform the Court on his behalf that the defendant does not elect to be tried by a jury, or may (where the defendant is personally present) inform the Court on his behalf that the defendant does elect to be so tried, and thereupon the Court may proceed as if the defendant had personally made the election:

Provided that, if it thinks fit, the Court may, if the defendant is not personally present and his counsel or solicitor informs the Court that the defendant does not elect to be tried by a jury, adjourn the hearing to such time and on such conditions as the Court thinks fit to enable the defendant to be present or issue a warrant, in the prescribed form, to arrest him and bring him before the Court.

[30]     Section 204 provides:

Proceedings not to be questioned for want of form

No information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any District Court or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.

[31]     Two aspects of these provisions are of particular importance in the present case:

(a)Under s 66 the defendant must make his or her election “before the charge is gone into but not otherwise” and the Court must meet its obligation to inform the defendant of the right to make the election “before the charge is gone into”.

(b)A court may not exercise its power under s 204 where it is satisfied that there has been a miscarriage of justice.  (For ease of reference we will refer to this as the “miscarriage proviso”.)

We discuss these features in more detail below.

[32]     Finally, s 24(e) of NZBORA provides that everyone who is charged with an offence:

Shall have the right … to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months.

Discussion

[33]     Two aspects of the appellant’s case require emphasis at the outset.  The first concerns the basis on which the appellant says that he wishes to defend the charges to which he pleaded guilty. The second concerns what he says he would have done had he been advised that he had a right to a jury trial.

[34]     As to the proposed defence, the appellant acknowledges that the company filed false GST returns and that he assisted it to do so.  But he says that at no point did he or the company intend to evade the payment of GST.  He says that in the three years at issue the company was in financial hardship for reasons over which it had little control.  Accordingly, it filed returns that understated its income and therefore its GST liability.  But, he says, he always intended that, once the company was on a stable financial footing, he would sort out with the IRD what the correct position in relation to GST was and ensure that the company met its obligations.

[35]     Turning to what the appellant says he would have done had he been properly informed, the appellant filed two affidavits.  The bulk of his first affidavit deals with the appellant’s claim that he did not understand the contents of Ms Spencer’s letter of advice and was pressured by her into pleading guilty.  That claim could not be sustained in light of the affidavit evidence of Mr Clews and Ms Spencer, which the appellant did not seek to challenge in his second affidavit.  However, the appellant also deposed in his first affidavit that:

I have not [at] any stage been advised that I had the right to be tried by jury in respect of these charges.  If I had known that, I would have requested to be tried by a jury and will make that election if the Court allows me to withdraw my guilty pleas.

[36]     In his second affidavit, the appellant referred to this paragraph from his first affidavit and said:

I confirm that at no stage was I advised of my right to elect trial by jury by either Tracy Spencer or Geoffrey Clews.  I also confirm that I was not advised by a Judge or other court staff during any of my court appearances that I had the right to elect trial by jury in respect of these charges.  If I had been advised of this right at any stage prior to entering guilty pleas then I would have chosen trial by jury and continued to defend the charges.  I confirm that I still wish to elect trial by jury in respect of these charges against me if the Court allows me to withdraw my guilty pleas.

[37]     There was no cross-examination on any of the affidavits filed, so that the appellant’s statements are unchallenged.

[38]     As we have said, this is an appeal from a refusal to grant judicial review of a discretionary decision under s 42 of the SPA to refuse leave to vacate a guilty plea.  The discretion under s 42 is a broad one and, in general terms, will be exercised to prevent a miscarriage of justice.   This might occur where, for example, a defendant who has a good defence to a charge enters a guilty plea under a mistake of fact or as a result of improper pressure from counsel.  The authorities indicate that where a plea is challenged, a court is more likely to grant leave to withdraw the plea prior to sentencing than it is to allow an appeal against conviction following such a plea.  See generally R v Ripia [1985] 1 NZLR 122 at 126 – 128 (CA).

[39]     In the present case, we consider that the appellant could not bring himself within the grounds on which a court would typically grant leave to withdraw a guilty plea prior to sentencing.  We say this for two reasons:

(a)Before entering his pleas, the appellant received comprehensive advice, both written and oral, from well-qualified legal advisors.  There is no credible evidence that he entered the plea as a result of incompetent advice or improper pressure.  The evidence establishes that after he received his counsel’s detailed letter of advice, he took it away and discussed it with his wife.  He then advised Mr Clews that he wished to plead guilty, and gave him a signed version of the written statement at the foot of the letter with the words “not guilty” struck out (see [12] above).

(b)The appellant does not appear to have any viable defence to the charges.  The appellant accepts that the company filed false GST returns, prepared and signed by him, but says that there was no intention to evade GST as he always intended to rectify the position with the IRD at some future point.  But even if this account were to be accepted as credible or possibly credible (which on the facts must be very unlikely), it would not constitute a defence to the charges.  Given a taxpayer’s obligations in this context (see R v Gilchrist [2007] 1 NZLR 499 (SC), especially at [9] and [15] – [20]) we consider that the company and the appellant would have had the necessary intention even on the appellant’s version of events. This was not a case of error or oversight in the completion of a return. Rather, at the appellant’s instigation, the company’s income was deliberately under-stated in its returns so that the company did not have to meet its GST obligations as they fell due. There was an intentional avoidance of payment in circumstances where the company knew it was under an obligation to pay. This constitutes an intent to evade - see Wilson v Chambers and Co Pty Ltd (1926) 38 CLR 131, especially at 141 – 142 per Isaac J, and Taylor v Attorney-General [1963] NZLR 261 at 262 (SC).

[40]     As a consequence, to succeed in his judicial review application, the appellant had to show that Judge Gittos acted unlawfully in holding that the admitted non-compliance with s 66(2) did not result in the guilty pleas being a nullity or constituting a miscarriage of justice.  We consider each aspect in turn.

Nullity

[41]     Section 204 protects procedural and documentary error, subject to the miscarriage proviso.  This Court considered the effect of the section in R v Kestle [1973] 2 NZLR 606. McCarthy P, delivering the judgment of the Court, noted that the language of s 204 was new. He said that the Court could see no reason why full effect should not be given to the ordinary and natural meaning of its language, particularly in light of the miscarriage proviso (at 609). In Hall v Ministry of Transport [1991] 2 NZLR 53 (at 56) Cooke P, delivering the judgment of this Court, reiterated that this was the correct approach.

[42]     But Cooke P also acknowledged in Hall that inevitably there were limits to the availability of the section.  In an earlier case, Police v Thomas [1977] 1 NZLR 109 (CA), which concerned an allegedly defective notice of prosecution, Cooke J said (at 121):

If a notice considered as a whole is defective, s 204 will apply unless there has been a miscarriage of justice.  No doubt s 204 is unavailable if a defect is so serious as to result in what should be stigmatised as a nullity.  But nullity or otherwise is apt to be a matter of degree: compare Broome v Chenoweth (1946) 73 CLR 583, 601, per Dixon J; New Zealand Institute of Agricultural Science Inc v Ellesmere County [1976] 1 NZLR 630, 636, and the authorities there cited. In practice the questions of miscarriage of justice and nullity will often tend to merge.

[43]     Cooke P returned to the point that s 204 would not protect a nullity in Rural Timber Ltd v Hughes [1989] 3 NZLR 178 (CA), a case where it was alleged that a search warrant was invalid. Delivering the judgment of the Court, the President said (at 184):

The applications, the supporting statement and the warrant … have in terms of s 204 of the [SPA] some defects, irregularities, omissions or want of form.  In such a case that section enjoins that the warrant be not quashed, set aside or held invalid unless the Court is satisfied that there has been a miscarriage of justice.  … we are not satisfied that there has been a miscarriage of justice in this case, for the following reasons.

None of the defects can be regarded as so radical as to require the warrant to be treated as a nullity: compare New Zealand Institute of Agricultural Sciences Inc v Ellesmere County [1976] 1 NZLR 630, 636. That is a question of degree, answerable only by trying to apply a commonsense judgment against the statutory background; in a case like the present, one can hardly elaborate further, apart from referring to the particular facts.

Cooke P then went on to analyse the facts in some detail.

[44]     Then in Hall Cooke P reviewed the authorities and concluded (at 58):

There must of course be proceedings before the Court before rectification or resort to s 204.  If defects in proceedings apparently instituted are so radical that the proceedings should be seen as no more than a nullity, the protective section has nothing to protect.  But we repeat that such a conclusion is not reached at all readily; as was emphasised in Best v Watson [[1979] 2 NZLR 492], it is not a mechanical or technical question.

[45]     Finally, in R v Blackmore [1994] 1 NZLR 268 (CA) there was an appeal against a conviction for arson following a guilty plea. The circumstances were that, before the appellant entered the guilty plea in the District Court, he had a brief interview with his solicitor and then dispensed with his services. The solicitor immediately applied for, and was granted, leave to withdraw. The appellant completed a written application for permission to enter a guilty plea, entered the plea orally and then endorsed on the information that he was pleading guilty. He was committed to the High Court for sentence, and was subsequently sentenced on this and other charges. On appeal against his arson conviction, the appellant argued that s 153A(1) of the SPA had not been complied with. That provided:

If a defendant is represented by a barrister or solicitor and the offence with which he is charged is not punishable by death, he may, at any time before or during the preliminary hearing of any information, request that he be brought before the Court (or if he is at that time before the Court, that he be permitted) to plead guilty to the offence with which he is charged.

[46]     This Court said (at 272):

[T]he requirement of legal representation on a plea of guilty under s 153A(1) is so fundamental a safeguard to the accused that non-compliance goes beyond a mere defect or irregularity, and renders his guilty plea and his subsequent committal and conviction a nullity, to which s 204 can have no application.

On general principle, we cannot accept the proposition that an unrepresented accused, who pleads guilty before the case against him is known at the preliminary hearing, should have his entitlement to a jury trial depend on whether a Judge thinks there has been a miscarriage of justice in the light of whatever evidence might be adduced on an application for leave to withdraw his plea.  In this situation, as in some other areas of criminal procedure, a strict adherence to the rules affords the surest guarantee of justice.  To hold otherwise would be to negate the purpose of efficacy of s 153A.  The general principles which apply to an application to withdraw a plea of guilty would always allow relief where there has been a miscarriage of justice.  The right to legal advice, the justification for and the importance of that right, is discussed by Richardson J in Ministry of Transport v Noort [1992] 3 NZLR 260 at pp 279-280 in the context of [NZBORA]. The consequences of non-compliance with those statutory requirements are now well established. There is no ground for reading down the express protection afforded by s 153A.

[47]     There was a similar outcome in R v Rizvi CA234/93 22 October 1993.  In that case there were various procedural failures before the appellant was committed for trial.  For example, the appellant was not offered the opportunity to be present at depositions as required by s 158 of the SPA and written statements were accepted under s 173A of the SPA although it was not clear that the appellant had agreed to that.  The appellant, who was legally represented at the time, ultimately pleaded guilty.  This Court said that the procedural failures were so serious that the committal was a nullity and s 204 had no application.  The Crown had emphasised in argument that the appellant had pleaded guilty after receiving competent legal advice and had done so on the basis of the written statements tendered under s 173A.  The Court said (at 5):

Whilst those matters would militate against the grant of any discretionary relief, we do not see how they can go to cure what is a nullity and to breathe life into that which has no existence.

[48]     The forgoing authorities indicate that whether a particular procedural failure constitutes a nullity in the context of s 204 is a matter of degree requiring an overall assessment of the particular failure against the relevant statutory background.  It is critical to understand the place of the particular requirement in the scheme of the legislation.  Further, as Cooke J noted in Police v Thomas, the concept of nullity will frequently overlap with the concept of miscarriage of justice in s 204. 

[49]     The application of the nullity concept will be straightforward in some situations.  For example, if a judicial officer deals with a matter that he or she has no jurisdiction to deal with, it seems obvious that the resulting decision should be characterised as a “nullity” which cannot be rectified by resort to s 204.  The effect of s 204 cannot be to confer jurisdiction where it does not exist.  (A similar issue arises in relation to the application of the proviso to s 385(1) of the Crimes Act to trials that are nullities in terms of s 385(1)(d) – see R v Blows CA103/95 31 August 1995 at 5 – 7 and R v O (No 2) [1999] 1 NZLR 326 at 329 (CA).) Similarly, where some process, the effect of which is to confer jurisdiction, has not been followed (for example, a statutorily required consent to prosecute has not been obtained), it is easy enough to characterise what follows as a nullity.

[50]     As will be apparent, Mr Davey for the appellant argued that the present case fell within the class of case where non-compliance is fatal, so that the resulting convictions are nullities.  To assess this argument we begin with the obligation at issue. 

[51]     Obviously, the right to elect trial by jury is an important right in our system of criminal justice, although not in all – see the discussion in Butler and Butler The New Zealand Bill of Rights Act: A Commentary (2005) at [22.6.1] – [22.6.4].  Accordingly, the importance of the Court’s obligation under s 66(2) to advise of the right should not be minimised.

[52]     However, s 66 does not impose an absolute obligation on the Court to advise of the right to elect.  This is clear from the fact that s 66(1) is subject to s 66(7).  Section 66(7) allows a defendant’s lawyer to advise the Court of the defendant’s election, in the defendant’s absence (or presence) if the election is for summary trial, but only in the defendant’s presence if the election is for trial by jury.  Presumably, this is based on an assumption that the lawyer will have discussed the options with the defendant and obtained instructions beforehand.  The fact that the defendant’s lawyer may inform the Court of the election on the defendant’s behalf suggests that, as far as Parliament was concerned, what is important is that the defendant understands the available options.  Whether the defendant acquires that knowledge through the Court or through counsel is incidental. 

[53]     Further, the obligation under s 66(2) is to advise “before the charge is gone into”.  This allows some flexibility in the sense that the required advice can be given at any time before the trial commences or a guilty plea is entered, rather than at some set point in the process.

[54]     We consider that these two features of s 66 provide some support for the view that a Court’s failure to inform in breach of s 66(2) is not to be regarded as resulting in a nullity but is to be dealt with by means of the miscarriage proviso.  We find further support for this view in two other considerations.

[55]     First, it is clear from the judgment of the Supreme Court in R v Condon [2007] 1 NZLR 300 at [77] that, even though the right to a fair trial, as affirmed by s 25(a) of NZBORA, is an absolute right, an unfair trial is not a nullity. As Deane J said in Jago v District Court of New South Wales (1989) 168 CLR 23 at 57, an acquittal after an unfair trial is ordinarily final and decisive. In terms of s 385(1) of the Crimes Act, then, an appeal against conviction after a trial which is found to be unfair will be allowed on the miscarriage of justice ground in s 385(1)(c), not the nullity ground in s 385(1)(d). This analysis applies equally, in our view, where there is a failure to inform of the right to trial by jury contrary to s 66(2) of the SPA. An acquittal after a summary trial in a case where the s 66(2) obligation was not met is still an effective acquittal. Where a conviction after such a trial is quashed on appeal, that will bring the matter to an end despite the procedural failure – see Brodrick v Ministry of Transport CA41/90 19 June 1990 at 2 – 3.  A trial in such circumstances is not, then, a nullity. 

[56]     Second, English law has undergone what has been described as a “sea change” in this area, moving from a rigid position where a procedural failure was likely to be fatal to an approach which focuses on whether the failure has caused prejudice (see Commentary in [2006] Crim L R 1006 – 7).  The current approach was summarised in R v Ashton [2007] 1 WLR 181 (CA) as follows:

[4]       … [W]henever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (“a procedural failure”), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid.  If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure.  If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.

[5]       On the other hand, if a court acts without jurisdiction—if, for instance, a magistrates’ court purports to try a defendant on a charge of homicide—then the proceedings will usually be invalid.

[57]     The Court referred (at [67]) to a series of decisions in which it was held that any failure to comply with the statutory procedure laid down for determining the mode of trial would render any subsequent hearing ultra vires. Among these was a case to which Mr Davey drew our attention, R v Cockshott [1898] 1 QB 582. In that case the appellant, who was legally represented, was charged with an offence which fell within the scope of s 17 of the Summary Jurisdiction Act 1879 (UK) (a forerunner of s 66(1) and (2) of the SPA and to similar effect). Initially a plea of not guilty was entered on his behalf by his solicitors but, after the prosecution evidence was led, this was changed to a plea of guilty. The appellant appealed against his conviction, on the ground that the Court had not advised him of his right to trial by jury, as required by s 17(2) of the Summary Jurisdiction Act. Wright J allowed the appeal. He said (at 586):

I think it would be wrong to fritter away the protection which the section intends to give to accused persons.  It intends to give them protection in the broadest and most generous way by providing that the option of trial by jury shall be put before any accused person before the charge is gone into.  I think the option ought to be put before him before he is asked whether he pleads guilty or not guilty.  The protection is possibly even more necessary where he intends to plead guilty.  He might plead guilty because, though he had no great confidence in the tribunal before which he appeared, he thought that by pleading guilty he would get a lighter sentence; whilst, if he knew he had a right to be tried by a jury, he would prefer to avail himself of that right.  I think it is immaterial whether in fact he knows that he has the right or not; he ought to be informed of it by the Court.  I come to the conclusion that in the present case the defendant did not know of the right.  His solicitors say they did not.

[58]     This reasoning was applied in subsequent cases, including R v Haye [2002] EWCA Crim 2476 (CA). There a legally represented appellant who ultimately entered a plea of guilty was not given the statutorily mandated option to chose summary trial or trial on indictment. His appeal against conviction was allowed, on the ground that what occurred after the failure to follow the statutory procedure was a nullity (at [18]).

[59]     The Court in Ashton said that it was “confident that if R v Haye … was decided now the result would have been the other way” (at [69]). A new test and a new approach were to be applied. The Court said (at [72]):

… an inflexible invalidity rule is contrary to the interests of the accused and the prosecution, as well as running contrary to the public interest in the fair administration of criminal justice.

[60]     Accordingly we conclude that the Court’s failure to comply with s 66(2) by advising the appellant of his right to elect jury trial “before the matter was gone into” does not render the subsequent guilty pleas a nullity.  Rather, the question is whether Judge Gittos was entitled to conclude that, in the circumstances of this case, there was no miscarriage of justice.

Miscarriage of justice

[61]     There is no doubt that the appellant in this case made a deliberate decision to plead guilty after having received and considered legal advice.  At the time he entered the pleas he had decided that he did not wish to go to trial.  This was a factor to which Judge Gittos gave decisive weight.  He said:

[13]     … In this case [the appellant], on 1 May, was not seeking a hearing of a defended issue at all.  Having taken advice he was entering pleas of guilty and there was no occasion to put the matter before a jury for determination of any issue at all.

…

[16]     … [I]n this case where a defended hearing was not in contemplation, where [the appellant] had taken advice, accepted that advice and entered pleas of guilty, then the formal announcement by his counsel that he elected summary jurisdiction or the formal putting of the election to him before pleas were taken, is in my view simply a matter of form and not a matter of substance.  It would be a matter of substance only if he were considering a defended hearing, which at the critical time he was not.

…

[18]     [The appellant] now says in an affidavit that he was never made aware of his right to trial by jury and had he been made so aware he would have exercised it and sought trial by jury, but that is really not consistent with what he did in fact do, which was to acknowledge his responsibility, his guilt if you like, for the offences and enter a plea of guilty having had full legal advice on the matter and plenty of time to think about it.

[62]     In addressing this aspect of the case, Stevens J also said that it was relevant that the appellant was fully advised by leading tax counsel and had given formal written instructions to counsel, the effect of which was to acknowledge that he was guilty of the charges.  He said:

[89] In terms of whether there was any miscarriage of justice flowing from the omission to comply with s 66(2) of the [SPA], it is critical to recognise that Mr Abraham’s rights were protected by the provisions of s 42 of the [SPA]. He could, and in this case did, seek leave of the District Court to withdraw the guilty pleas. However, as is clear from the principles governing applications to withdraw guilty pleas discussed at [46]-[55] above, the Court has a broad discretion to allow a change of plea on the basis of the interests of justice and in order to prevent a miscarriage of justice. In this area, the test under s 204 of the [SPA] and s 42 relating to a change of plea coalesce. But what is required before leave will be granted is to establish one of the grounds on which the guilty plea may be withdrawn. The only other ground available is the possibility of existence of a clear defence.

[63]     Stevens J then went on to consider whether the appellant had any defence to the charges.  He noted the legal advice that the appellant had received and said that Mr Davey had not made any effort to challenge it.  He considered that he had no alternative but to agree with Judge Gittos’ conclusion that the appellant had no defence (at [92]).  Further, he said that there was nothing to show that Judge Gittos had erred in his conclusion that the interests of justice did not require that the appellant be granted leave to withdraw his guilty plea (at [94]) or in his conclusion that there was no miscarriage of justice (at [96] – [97]).

[64]     As can be seen, then, both Judges in the Courts below focussed on the circumstance that the appellant had made a deliberate decision, formally recorded, to plead guilty after having taken specialist legal advice which indicated that he had no defence to the charges.  Neither Judge took account of the fact that an accused’s assessment of whether or not he or she will plead guilty may well be influenced by the nature of the tribunal before which any trial will occur.  (This omission may be understandable, as the case does not appear to have been put to them on this basis.)  In the present case, the appellant’s unchallenged evidence is that his decision would have been so influenced.

[65]     As we have said, this Court in Ripia said that the test for granting leave to withdraw a guilty plea prior to sentencing is less restricted than that which applies on a conviction appeal following a guilty plea. Delivering the judgment of the Court in that case, McMullin J said (at 126):

The grounds upon which an applicant may advance an appeal against conviction are very limited as the cited authority shows; a change of plea on an appeal will be allowed only in very exceptional cases – [R v Stretch [1982] 1 NZLR 225 at 229 (CA)]. But we are here concerned with an earlier stage in the proceedings – the power of the High Court to allow a change of plea before sentence has been imposed in that court itself. In such a case no question of appeal against conviction arises and the grounds upon which the court may allow a change of plea are not so restricted.

[66]     Our criminal justice system attaches great importance to the right to trial by jury, as is evidenced by s 25(e) of NZBORA and s 66 of the SPA.  In light of that, and given also that:

(a)an accused’s decision concerning plea may be influenced by his understanding of the mode of trial available to him or her; and

(b)this issue arises in the context of an application to vacate a guilty plea prior to sentence, rather than on an appeal against conviction,

we consider that Judge Gittos should have addressed the appellant’s contention that had he been aware of his right to a jury trial, he would have maintained his not guilty plea and gone to trial.  In other words, we consider that this was a relevant consideration in this context.  A decision by the appellant to elect trial by jury may not have been a wise decision given the apparent absence of any viable defence and the non-availability of a guilty plea discount on conviction after trial, but it is a decision that the appellant was entitled to make.  If the appellant’s evidence is accepted, the failure to give him that opportunity is, in our view, capable of constituting a miscarriage of justice.

[67]     While there may be reason to doubt the appellant’s evidence on this point, we do not consider that it is right to ignore it, as Judge Gittos effectively did.  In the light of that, we consider that the Judge did act unlawfully (in a judicial review sense) in declining the appellant’s application.

Decision

[68]     Accordingly we allow the appeal and quash the Judge’s decision.  We direct that the District Court reconsider the appellant’s application, if it is maintained, in the light of this judgment.

Solicitors:

Evans Henderson Woodbridge, Marton for Appellant
Crown Law Office, Wellington for Second Respondent