Anderson v Police - [2015] NZHC 923

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000039 [2015] NZHC 923

BETWEEN
LEE RUTH ANDERSON

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 April 2015

Appearances:

D Schellenberg for Applicant
M Harborow and G Hughes for Respondent

Judgment:

5 May 2015

JUDGMENT OF WOOLFORD J

This judgment is delivered by me on Tuesday, 5 May 2015 at 12:00 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors: Crown Solicitor, Auckland

Counsel: D Schellenberg, Auckland

ANDERSON v POLICE [2015] NZHC 923 [5 May 2015]

Introduction

[1] The applicant, Lee Ruth Anderson, faces one charge of assault with intent to injure in the District Court. She seeks leave to appeal under s 296 of the Criminal Procedure Act (the Act) against a decision of Judge Burns dated 8 December 2014, refusing her leave to elect trial by jury following the abandonment of a part-heard Judge-alone trial.

Factual background

[2] Ms Anderson first appeared in the District Court on 2 May 2014. On 23 May, she entered a plea of not guilty. No election of trial by jury was recorded at that appearance and therefore her case proceeded as a Judge-alone trial. Ms Anderson says she was not advised of her right to elect trial by jury at the time. At a case review hearing on 3 July, counsel who now represents her advised Ms Anderson of her right to elect trial by jury, but she says that she chose to remain with a Judge- alone trial, because she was on a curfew and wanted a prompt trial.

[3] On 19 December, a Judge-alone trial before Judge Saunders commenced. The case was part-heard. The trial was aborted due to insufficient court time. A direction was made by the Judge for a further Judge-alone trial. Ms Anderson says that during the course of the hearing, Judge Saunders made inappropriate comments such as she and the complainant were as bad as each other and also made inappropriate suggestions as to how the trial might be resolved, such as her entering
into a bond to keep the peace with the complainant.1 He allegedly stated that he

would then dismiss the charge against her, if she agreed to withdraw her complaints against the complainant.

[4] Ms Anderson then applied for leave to elect trial by jury out of time. She says that because of Judge Saunders’ comments, she now wants to be tried by jury, which she now believes, would be fairer in determining her guilt compared to a Judge-alone trial. She says Judge Saunders’ comments have made her feel that her
case should not be heard by a Judge alone.

1 Criminal Procedure Act 2011, s 366.

District Court decision

[5] After reviewing the factual background, Judge Burns referred to ss 50 and 51 of the Act, which set out the right to elect trial by jury and the timing of such an election. An election can be made as of right at the time that a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 923
Decision Date: 5 May 2015

CaseChat Overview and Summary

Lee Ruth Anderson has appealed against the decision of Judge Burns to refuse her leave to elect trial by jury. She argues that a trial had not in fact commenced and that her perception of bias on the part of any Judge who may hear her case, based on comments made by Judge Saunders, constituted a change of circumstances that might reasonably affect her decision whether to elect trial by jury. The appeal is dismissed.

The Court found that there was no jurisdiction to hear the appeal. The Court found that the decision on the mode of trial does not relate to the determination of the charge, and therefore the Court does not have jurisdiction to hear this appeal under s 296. The Court also found that, even if it had jurisdiction, the appeal should be dismissed. The Court found that a trial had commenced within the meaning of s 51(3), but that the clock was reset when the trial was aborted and a new trial ordered. The Court found that the only real difference between a Judge-alone trial and a jury trial is the identity of the fact finder, and that the defendant will face the same charge regardless of whether she is tried by a Judge alone or a jury. The Court found that it was open to Judge Burns to determine that there had not been a change of circumstances in terms of s 51(2). The Court found that the perception of bias on the part of any Judge who may hear her case, based on comments made by Judge Saunders, did not reasonably affect her decision whether to elect trial by jury.

Orders