Anderson v R
[2015] NZCA 518
•9 November 2015 at 10 am
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA274/2015 [2015] NZCA 518
BETWEEN LEE ANDERSON
Applicant
AND
THE QUEEN Respondent
Hearing: 5 August 2015 Court:
Ellen France P, French and Winkelmann JJ
Counsel:
K H Cook for Applicant
M J Lillico for Respondent
J B Orpin as Counsel assistingJudgment:
9 November 2015 at 10 am
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
REASONS OF THE COURT
(Given by Ellen France P)
Table of Contents
Para No
Introduction [1] Factual background [3] Does this Court have jurisdiction to hear an appeal relating to
the decision not to grant leave to change an election? [12]
Should Woolford J’s decision be interpreted as a refusal of leave
to appeal? [12]
Has there been a “determination” of the first appeal by the
High Court under s 303(1)? [17]
ANDERSON v R [2015] NZCA 518 [9 November 2015]
The approach to s 296 [26] The statutory scheme [27] The High Court decision [35] Our assessment [40]
Should leave be granted? [59] The relevant provisions [62] The approach in the Courts below [65] Discussion [68]
Decision [73]
Introduction
[1] Ms Anderson elected trial by judge alone but later applied to change her election to trial by jury. In the North Shore District Court, Judge Burns declined her application on jurisdictional grounds, but observed that even if there had been jurisdiction, the appellant had not shown good grounds for the application.1
On appeal to the High Court, Woolford J found the High Court had no jurisdiction to hear her appeal and in any event would have upheld the decision of Judge Burns that grounds had not been made out to allow a change of election.2
[2] Ms Anderson seeks leave to appeal the decision of Woolford J. It is common ground that any appeal right she has is limited to an appeal on a question of law.3
Factual background
[3] Ms Anderson faces one charge of assault with intent to injure under s 193 of the Crimes Act 1961.4 The incident relates to Ms Anderson’s former partner. He has
pleaded guilty to charges of assaulting Ms Anderson.
1 Police v Anderson DC North Shore CRI-2014-44-1695, 8 December 2014 [District Court judgment].
2 Anderson v Police [2015] NZHC 923, [2015] NZAR 999 [High Court judgment].
3 Mr Orpin was appointed as counsel assisting because of the unavailability of Ms Anderson’s
counsel, Mr Schellenberg, and the uncertainty, at that time, as to whether alternative counsel for Ms Anderson could be obtained: Anderson v R CA274/2015, 14 July 2015 (Minute (No 2) and Directions of Wild J). Mr Cook was assigned late in the piece to appear for Ms Anderson.
4 This is a category three offence with a maximum term of imprisonment of three years.
The Criminal Procedure Act 2011 applies as the charging document was filed on 2 May 2014 after the commencement of the second stage of the Act on 1 July 2013.
[4] Ms Anderson decided not to elect trial by jury at the time of her plea. She chose to remain with a judge-alone trial because she was on a curfew and wanted a prompt trial.
[5] The trial before Judge Saunders alone began on 19 September 2014. The trial was aborted due to insufficient court time. A further judge-alone trial was directed. Ms Anderson appeared on 8 December 2014 for a further defended hearing before Judge Burns. At that juncture Ms Anderson applied for leave to make a late election of trial by jury. The application was based on comments purportedly made by Judge Saunders as a result of which Ms Anderson believed that she could not trust a judge sitting alone to consider her situation.
[6] Judge Burns declined the application to elect trial by jury. The Judge decided that he did not have jurisdiction to grant leave to make a late election under s 51(2) of the Criminal Procedure Act 2011 (the Act) because the judge-alone trial had commenced.5 Section 51(3) of the Act provides a court must not grant leave under s 51(2) after a judge-alone trial has commenced. Even if there was jurisdiction, the Judge said he would not have granted leave because Ms Anderson’s perception of
judge-alone trials was not objectively accurate and there was no relevant change of circumstances that might reasonably affect the decision whether to elect a jury trial as required by s 51(2).6
[7] Ms Anderson sought leave to appeal to the High Court under s 296 of the Act. The section provides for appeals, with leave, on a question of law against a ruling by a trial court. Importantly, s 296(3) states that the question of law must arise:
(a) in proceedings that relate to or follow the determination of the charge; or
(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under s 147, or a stay of prosecution).
[8] Woolford J concluded the High Court had no jurisdiction to hear the appeal because the decision on the mode of trial is not one related to the determination of
5 District Court judgment, above n 1, at [39].
6 At [26], [29] and [40].
the charge under s 296(3)(a).7 Woolford J went on to briefly consider the merits of the application. He considered Judge Burns erred in finding s 51(3) applied but said it was open to the Judge to determine there had not been a relevant change of circumstances as required by s 51(2).8
[9] Ms Anderson seeks leave to appeal to this Court to challenge the refusal to allow her to change her election, which is the effect of both lower court decisions.
[10] The Crown says that this Court has no jurisdiction to hear this appeal and so may not grant leave for the following reasons:
(a) Woolford J’s decision should be interpreted as a refusal of leave to appeal. Under s 213(3) of the Act a decision to decline leave to appeal is final.
(b)There has been no determination at all under s 303 of the Act so as to give jurisdiction for this Court to hear the appeal.
(c) Even if Ms Anderson surmounts these procedural hurdles the Judge was correct that there was no jurisdiction to appeal on a question of law under s 296 of the Act from the decision not to allow Ms Anderson to change her election. That section is the only route by which Ms Anderson could appeal pre-trial.
[11] We address each of these jurisdictional points in turn, as they logically must
be determined in Ms Anderson’s favour before the issue of leave to appeal arises for
consideration.
7 High Court judgment, above n 2, at [27].
8 At [29] and [37]. For good reason, there was no direct challenge to this aspect of Woolford J’s
decision.
Does this Court have jurisdiction to hear an appeal relating to the decision not to grant leave to change an election?
Should Woolford J’s decision be interpreted as a refusal of leave to appeal?
[12] The Crown submits that, despite determining there was no jurisdiction, in substance Woolford J declined leave to appeal. This argument turns on the fact leave was dependent on the Court being satisfied there was a general question of law linked to the determination of the proceedings. As Woolford J was not so satisfied, the submission is the High Court must have declined leave and that decision is final.
[13] Section 213(3) of the Act provides as follows:
An appeal court’s decision to give or refuse leave for the purposes of this Part is final unless otherwise expressly provided by this Part or any other Act.
[14] Section 213(4) makes clear the duty of an appeal court to determine an appeal is subject to any leave requirements first being met.9
[15] The scheme of the Act suggests that where there is to be a departure from the general provision of finality of leave decisions, that is expressly stated in the Act.10
[16] Woolford J was dealing with an application for leave to appeal. It was that matter, obviously, the Judge had to decide. However, Woolford J’s formal order was to dismiss the appeal for want of jurisdiction. We consider his decision is best construed as, in substance, a decision to grant leave but dismiss the appeal on the
basis of an absence of jurisdiction.11 We agree with Mr Orpin that the purpose of
s 213(3) is not to make final a decision turning solely on the way in which the subject matter of the decision under appeal is categorised as a matter of law.
9 Section 213(4) states: “The duty of an appeal court to determine an appeal is subject to any leave
requirements being met”.
10 Section 315(1) enables the Solicitor-General to appeal with leave to the Supreme Court from a decision of this Court refusing to grant leave to the Solicitor-General on a question of law under
s 313.
11 There is some precedent for that approach under the leave provisions of the Employment Relations Act 2000: Waitemata District Health Board v New Zealand Public Service Association [2006] ERNZ 1029 (CA); and Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc [2010] NZCA 317, [2010] ERNZ 317.
Any other approach would mean there was no ability for appellate review of a significant jurisdictional question.
Has there been a “determination” of the first appeal by the High Court under s 303(1)?
[17] Having concluded that this Court is not precluded from dealing with the matter on the basis that Woolford J’s decision was a leave decision, we now turn to s 303.
[18] Section 303 deals with the right of appeal against a determination of the first appeal court. The section provides for further appeals in these terms:
(1) A party to a first appeal under this subpart may, with the leave of the second appeal court, appeal under this subpart to that court against the determination of the first appeal.
(2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a) the appeal involves a matter of general or public importance;
or
(b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[19] For present purposes, the key issue is whether the first appeal has been determined.
[20] Section 300 details the means by which a first appeal court must determine a first appeal. We consider Woolford J’s decision amounts to a determination because the effect of his decision is to confirm the ruling appealed against, an outcome anticipated by s 300(1)(a).
[21] Mr Orpin referred us to this Court’s decision in Simpson v Kawerau District
Council as illustrative of cases pre-dating the Act giving a more restrictive interpretation to provisions similar to ss 213(3) and 303(1).12
12 Simpson v Kawerau District Council CA76/04, 27 July 2004.
[22] Mr Simpson was convicted by Community Magistrates in the District Court. He appealed unsuccessfully against conviction to the District Court. He then appealed by way of case stated to the High Court under s 114 of the Summary Proceedings Act 1957. That appeal was dismissed.13 Mr Simpson sought leave in the High Court to appeal to this Court under s 144 of the Summary Proceedings Act. In dismissing the application, Venning J said there was no jurisdiction to grant leave.
Mr Simpson’s application of special leave to this Court was dismissed.
[23] Mr Simpson’s next step was to seek leave to appeal to the Supreme Court. Section 10 of the Supreme Court Act 2003 authorised the Supreme Court to hear appeals against a decision of this Court on “an appeal” under the Summary Proceedings Act. The Supreme Court in dismissing Mr Simpson’s application for leave to appeal said there was no jurisdiction because the decision of this Court declining special leave was not a decision on an appeal.14 Rather, it was “a decision
that no appeal shall be permitted”.15
[24] Mr Simpson was seeking a third appeal in the context of a statutory regime which, as Mr Orpin submits, limited the scope of appellate jurisdiction by reference to the number of tiers of appellate review. The difference in the present case is that the jurisdiction is defined by the characterisation of the trial court’s decision. Accordingly, we can proceed on the basis s 303(1) applies.
[25] In written submissions for Ms Anderson Mr Cook submitted an alternative route for our jurisdiction, namely, the Court could be the first appeal court in terms of s 297(c) of the Act. We mention this argument for completeness but it can be shortly dismissed. That is because s 296(2), the applicable appeal right, provides for
a right of appeal with leave to the first appeal court on a question of law against a
13 Simpson v Kawerau District Council [2005] NZAR 529 (HC).
14 Simpson v Kawerau District Council (2004) 17 PRNZ 358 (SC).
15 At [5].
ruling by the trial court. The High Court is not the court before which Ms Anderson is to be tried.16
The approach to s 296
[26] We turn to consider the substantive issue of whether Woolford J was correct in finding Ms Anderson could not submit her proposed question of law for consideration by the High Court because it was not a question arising in proceedings that relate to the determination of the charge as required by s 296 of the Act.
The statutory scheme
[27] Section 296 is found in pt 6 dealing with appeals. Part 6 deals with various categories of appeals.17 For example, subpart 2 deals with pre-trial appeals whilst conviction appeals are dealt with in subpart 3. Section 296 is found in subpart 8 entitled “Appeals on question of law”. Section 296 is under the heading “First appeals”. The section provides in full:
296 Right of appeal
(1) This section applies if a person has been charged with an offence.
(2) The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3) The question of law in a first appeal under this subpart must arise—
(a) in proceedings that relate to or follow the determination of the charge; or
(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(4) The question of law must not be one that—
(a) arises from a jury verdict; or
16 Criminal Procedure Act, s 5, definition of “trial court”. We add the parties proceeded on the basis the proviso in s 297(b)(i) does not apply, ie they agreed this present case was not a ruling made in proceedings for a category 3 offence after the person charged elected a jury trial. That is because although Ms Anderson was charged with a category three offence and sought leave to elect a jury trial, leave was not granted.
17 Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [CPAIntro.03(9)].
(b) arose before the trial and has already been decided under subpart 2.
[28] Section 300 sets out the court’s powers on appeal. The section provides as
follows:
(1) A first appeal court must determine a first appeal under this subpart by—
(a) confirming the ruling appealed against; or
(b) doing any of the following if the court considers the ruling is erroneous and, in the case of the person’s conviction or acquittal or of a direction by a court to stay the prosecution or to dismiss the charge under section 147, also resulted in a miscarriage of justice:
(i) setting aside the conviction and entering an acquittal, if the person has been convicted; or
(ii) directing a new trial, in any case; or
(c) varying or substituting the sentence or remitting the sentence to the sentencing court with directions, if the decision relates to sentence and the court thinks the decision is erroneous; or
(d) remitting the matter to the trial court in accordance with the opinion of the appeal court; or
(e) making any other order that the court considers justice requires.
…
[29] As the authors of Adams on Criminal Law note, this is a simplified version of its predecessors.18
[30] Section 301 deals with the impact on a trial of filing an application for leave under subpart 8. If the application is filed prior to trial, the trial must not commence before the application for leave is determined “unless the trial court is satisfied that it is in the interests of justice to do so”.19 If the application for leave is filed during a
jury trial, the trial must continue unless the court considers it is “in the interests of
18 Robertson, above n 17, at [CPA300.01]. Section 382 of the Crimes Act 1961 applied to indictable offences and s 112 of the Summary Proceedings Act 1957 applied to appeals to the High Court.
justice for the jury to be discharged”.20 In any other case, the trial may be adjourned.21
[31] These provisions are necessary because of the changes made by the Act to the regime for these types of appeals and, in particular, because of the shortened timeframes for filing an appeal under the Act.22
[32] Prior to the Act, in the indictable jurisdiction, s 380(1) of the Crimes Act allowed a question to be reserved for the opinion of this Court relevantly on any question of law arising either on the trial or on any of the associated proceedings or arising out of the direction of the Judge. The question had to be reserved either during or after the trial. Section 381A enabled the prosecutor to apply to refer to this Court a question of law arising out of a direction that an accused be discharged or a prosecution be stayed. There was no equivalent right for a defendant in the
indictable jurisdiction.23
[33] In the summary jurisdiction, the District Court could state a case for the opinion of the High Court,24 and parties could appeal by way of case stated for the opinion of the High Court on a question of law where an information or complaint had been determined.25
[34] Section 302 of the Act sets out how the determination of the appeal affects the outcome of the trial. For example, if the trial proceeds before a first appeal is determined and the outcome of the trial is an acquittal or dismissal, the accused person is subject to being rearrested or summoned to appear if the first appeal court
orders a new trial.26
20 Section 301(4)(a).
21 Section 301(4)(b).
22 Robertson, above n 17, at [CPA301.01].
23 R v Harrison [2007] NZCA 588 at [12]; R v S (CA424/2008) [2008] NZCA 382 at [4];
Postlethwaite v R [2012] NZCA 170 at [4]; Trifilo v Police [2006] DCR 796 (HC) at [10]–[15].
24 Summary Proceedings Act, s 78.
25 Summary Proceedings Act, s 107(1).
The High Court decision
[35] Woolford J decided s 296 required “some relation or an existing connection or a significant association” between the proceedings and the determination or disposition.27 The Judge noted that in his previous decision of Pritchard v Police, he found there was no jurisdiction under s 296 to appeal against an order amending a charge to which the accused person had previously pleaded guilty.28 Woolford J also referred to Clarke v Police, in which Collins J said there was no jurisdiction under s 296 to appeal a decision declining an application to have charges dismissed under s 147 of the Act.29
[36] Woolford J saw the older case law on the predecessors to s 296 as still relevant in deciding whether the requisite link was present.30
[37] Turning to the election decision, the Judge considered that issue was one as to the identity of the fact-finder and any determination or disposition was remote.31
Further, it was relevant that any miscarriage arising from the decision could be corrected post-conviction.32 Finally, the Judge treated it as significant that there was an express right of appeal for decisions by a Judge to hold a judge-alone trial in long and complex cases or cases involving the intimidation of jurors.33
[38] Woolford J’s approach in the present case has been followed in other High Court cases.34 Hala v Police involved an application for leave to appeal a decision declining an application to change the defendant’s election to a jury trial. Moore J agreed with Woolford J that “determination of the charge” relates to how a charge is disposed of and “[g]enerally, the mode of trial will not be decisive of the determination of the charge”.35 In Baron v Police Muir J found a decision in relation
to requiring the prosecution to call a witness did not fall within s 296(3)(a).36
27 High Court judgment, above n 2, at [17].
28 Pritchard v Police [2013] NZHC 3278, [2014] NZAR 149 at [7]–[9].
29 Clarke v Police [2015] NZHC 259 at [22].
30 High Court judgment, above n 2, at [25]–[26] citing Police v O’Neill [1991] 3 NZLR 594 (HC).
31 At [27].
32 At [22].
33 At [20]; Criminal Procedure Act, ss 217(2)(c) and (d), 102–103 .
34 Hala v Police [2015] NZHC 1665; and Baron v Police [2015] NZHC 1577.
35 Hala v Police, above n 34, at [18] and [21].
36 Baron v Police, above n 34, at [36]–[37].
[39] There are references to s 296 but no substantial discussion of its impact in four Court of Appeal cases.37
Our assessment
[40] The issue is whether Woolford J was right that s 296 does not extend to the decision about the election of a jury trial. That question turns on the correct approach to the interpretation of the terms, particularly, the words “relate to” and “determination” in s 296 as well as the nature of the connection required to disposition of the charge. It is also necessary to consider the overall statutory scheme and the nature and extent of changes made by the Act to the previous regime. Finally, the Judge’s approach and the parties’ submissions also require consideration of whether the decision could be corrected on appeal after any conviction.
[41] The ordinary dictionary meaning of the words “relate to” and “determination” support Woolford J’s view that there must be a close connection between the proceedings and the determination. The Shorter Oxford English Dictionary defines “relate” as meaning “establish a connection between” and “[h]ave
reference to, concern”.38 It defines “related” as meaning “connected”.39 The
Webster’s Dictionary refers to showing or establishing “a logical or causal connection between”.40 The Shorter Oxford English Dictionary definition of “determine” is to “[p]ut an end to; come to an end. … [s]ettle or decide (a dispute, controversy, etc, or a sentence, conclusion, issue, etc)”.41 In the Webster’s Dictionary “determination” is defined as “the settling and ending of a controversy esp by judicial decision”.42
[42] Mr Cook on behalf of Ms Anderson properly points out s 296 states the
question of law must arise “in proceedings” that relate to or follow the
37 R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806 at [43]; McAllister v R [2014] NZCA
175, [2014] 2 NZLR 764 at [32], n 17; Alex v R [2015] NZCA 239 at [1]; and Brown v R [2015] NZCA 325 at [11]–[14].
38 Lesley Brown (ed) Shorter Oxford English Dictionary (5th ed, Oxford University Press, Oxford,
2002) at 2520.
39 At 2520.
40 Philip Babcock Gove (ed) Webster’s Third New International Dictionary (G & C Merriam
Company, Springfield, 1976) at 1916.
41 Brown, above n 38, at 659.
42 Babcock Gove, above n 40, at 616.
determination.43 That does not detract from the proposition there must be some link between the question in issue, for example, the right to elect a jury trial, and the determination. We accept this would not necessarily require a temporal connection.
[43] The words have to be considered in context. There is some assistance to be gained from subs (3)(b) which makes it clear “determination” at least includes a conviction, an acquittal, the dismissal of the charge under s 147 or a stay.
[44] The scope of the appeal court’s powers in s 300(1) is also relevant. For the most part, those powers suggest what is in issue is a decision putting an end to matters. For example, the court may set aside the conviction and enter an acquittal or vary a sentence.44 This point cannot be taken too far because of the catch-all provision in s 300(1)(e) enabling the court to make “any other order that the court considers justice requires”.45
[45] More generally, the context in which s 296 is to be viewed is as a part of the system which also provides for pre-trial appeals on specified matters under subpart 2. Under s 296(4)(b) if an issue has already been decided under subpart 2 it cannot be decided again under s 296. This suggests it is possible to have matters that may be dealt with under subpart 2 decided under s 296. That might, for example, encompass pre-trial decisions of more general importance.
[46] It is important that the appeal rights under s 296 are not the only remedy. If, for example, there is a decision not to dismiss a charge under s 147 of the Act that can be remedied after the trial by an appeal against conviction on the basis there has been a miscarriage of justice. For other decisions, for example, the decision not to adjourn a trial, remedies such as judicial review may be available. The ability to
remedy any error after trial is relevant in construing the scope of s 296.
43 Mr Cook made something of the fact the legislature has not referred to the proceeding in the singular but that point does not add anything given s 33 of the Interpretation Act 1999.
44 Criminal Procedure Act, s 300(1)(b) and (c) respectively.
45 In R v Morris [2007] NZCA 578 at [15] this Court left open whether the same phrase in s 385(2) of the Crimes Act enabled the Court to impose some limits on the form which a retrial was to take.
[47] It is also of some significance that the legislature has retained the language of
“determination”.
[48] Under s 107(1) of the Summary Proceedings Act, the summary case stated procedure was available “where any information or complaint has been determined by a District Court”. Section 115 of the Summary Proceedings Act provided for a general right of appeal in the summary jurisdiction in a number of situations by reference to whether the District Court “determines any information or complaint”.
[49] This Court in Black v Fulcher dealing with s 115(1) noted the High Court discussion of whether an order is appealable.46 Cooke J described McGechan J in the High Court as postulating an order was appealable:47
… if made in the course of a determination or decision; that the test is not purely temporal; and that an order may be regarded as satisfying it if so closely linked with the process of deciding the information that it can properly be described as made in the course or process of so doing.
[50] Cooke P stated that those propositions were:48
… correct as far as they go, but they do not surmount the difficulty … in the present case that the defendant was not a person convicted, nor had any order been made against him on the dismissal of the information. As yet there has been neither a conviction nor a dismissal. One or the other (or the estreat of a bond) is essential to a defendant’s right of general appeal under s 115.
[51] It is not, however, easy to discern a consistent application of this approach in the authorities on what came within ss 107 or 115. For example, matters that have been held to come within a determination under s 107 include decisions dismissing a charge, discharging the defendant without conviction and granting permanent name
suppression, and declining to impose penalties on parking infringement notices.49
[52] By contrast, in Police v Corbin this Court dismissed a s 107 case stated appeal against a determination of the Youth Court in a preliminary hearing for want
46 Black v Fulcher [1988] 1 NZLR 417 (CA).
47 At 419–420.
48 At 420.
49 Police v Buck (No 2) [2014] NZHC 3349, [2015] NZAR 72; Police v M [2013] NZHC 1101, [2013] NZAR 861; and Wellington City Council v McBride [2006] DCR 452 (HC).
of jurisdiction.50 The Youth Court ruled the defendant’s statements inadmissible leading to the conclusion there was insufficient evidence to commit him for trial and so he was discharged. This Court accepted that s 107 was not available because “neither the ruling nor the discharge amounted to a determination of the information”.51
[53] In terms of s 115, courts have treated the refusal of an application for name suppression, the finding of a District Court Judge that an information is bad for duplicity and an order to pay court costs after an order that the defendant be discharged as coming within s 115.52 Matters outside the ambit of s 115 include:
(a) an order granting leave to withdraw an information;53
(b)the refusal of an application to dismiss an information on the ground the defendant had been prejudiced by delay;54
(c) the refusal to make an order that a medical practitioner appear as a witness;55
(d) an order directing the change of venue;56
(e) a decision declining an application for an oral evidence order;57
(f) a decision granting an application for adjournment;58
(g) the refusal to grant a rehearing;59
50 Police v Corbin CA327/92, 17 December 1992.
51 At 2.
52 Police v S [1977] 1 NZLR 1 (CA); Evans v Police HC Rotorua AP69/86, 23 October 1986; and
Smith v Wellington City [1968] NZLR 636 (SC).
53 Burton v Police [1961] NZLR 698 (SC).
54 Delaney v Police [1980] 2 NZLR 648 (HC).
55 Kinnaird v Ministry of Transport HC Christchurch M338/82, 14 September 1982.
56 Iti v Police HC Rotorua CRI-2007-463-113, 30 October 2007.
57 Carroll v District Court at Nelson HC Nelson CIV-2009-442-509, 22 December 2009.
58 Colman v Police HC Whangarei CRI-2009-488-09, 22 December 2009.
59 Police v Norman [1975] 1 NZLR 391 (CA).
(h)a decision not to require the informant to call witnesses that the appellant had requested them to call;60
(i) the refusal of an application for a partial exemption;61
(j) a preliminary finding as to the validity of an information;62 and
(k) an infringement fine recorded without judicial intervention.63
[54] As Mr Lillico for the Crown submits, it is not always easy to draw the line between those matters seen to fall within a determination and those that do not. Similar judgments will be called for in the application of s 296. The retention of the language of “determination” and the availability of other remedies suggest an expansive view of s 296 is not required.
[55] The legislative history is not particularly helpful because there are somewhat mixed messages emerging from the limited material available. It does seem that the main focus was to replace the more cumbersome case stated appeal process with a simplified procedure consolidating the previous provisions in the Crimes and Summary Proceedings Acts rather than affecting substantive appeal rights.64
[56] Drawing the threads together and applying them to the present case leads us to take a different view from the Judge. We see the decision as to whether the trial is to be by a judge alone or by jury as one closely linked to disposition or determination. It decides the form of trial at which the determination will be made; in other words, who the decision-maker will be, a judge or a jury. The importance of the decision is reflected in s 24(e) of the New Zealand Bill of Rights Act 1990
preserving the right to the benefit of the trial by jury for offences punishable by two
60 Pua v Police HC Auckland CRI-2006-404-285, 8 September 2006.
61 Transport Department v Cole [1966] NZLR 609 (SC).
62 Black v Fulcher, above n 46.
63 Davies v Ministry of Transport [1989] 3 NZLR 300 (CA).
64 Criminal Procedure (Reform and Modernisation) Bill 2010 (243–1) (explanatory note) at 1,
12-14 and 70; but see Ministry of Justice and Law Commission, Departmental Report for the
Justice and Electoral Committee: Criminal Procedure (Reform and Modernisation) Bill (16 May
2011) at [1198] and [1200]–[1201]; and Robertson, above n 17, at [CPA296.02].
years imprisonment or more.65 This decision is fundamentally different to, for example, decisions about case management or an adjournment of a trial.
[57] It is relevant also that, while conceptually possible to address the issue by an appeal against conviction, it is hard to see how an appellant could establish a miscarriage absent some demonstration of bias or where the trial was a nullity. Another way of putting this point is that the decision about an election is unlikely to be informed by the events of the trial.
[58] Accordingly, we consider the High Court and this Court have jurisdiction to hear an appeal under s 296 in relation to the decision not to grant leave to change an election.
Should leave be granted?
[59] Where s 296 applies, leave of the Court is required to pursue the appeal. The appeal under s 296 is limited to questions of law. We accept that, as reformulated by counsel assisting, Ms Anderson’s proposed appeal could raise a question of law, namely:66
Did Judge Burns apply the correct legal principles when declining leave to make a late election under s 51 of the Act?
[60] However, for the reason which follows, we decline to grant leave. Essentially, given the factual findings, no broader issues of law arises in this case.
[61] To put this matter in context it is helpful first to set out the statutory provisions relating to the election and secondly to explain in a little more detail the approach taken by Judge Burns and by Woolford J to this aspect.
The relevant provisions
[62] Ms Anderson is charged with a category three offence. That means, in terms of s 50 of the Act, she may elect to be tried by a jury.
65 See also Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.
66 In the form advanced by Ms Anderson’s counsel Mr Schellenberg in his written submissions, the
question posed was a factual one.
[63] Section 51 deals with the timing of an election. Section 51(1) provides that an election must be made at the time of entering a not guilty plea unless leave of the court to make an election at a later time is granted under s 51(2). Section 51(2) states that 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”. Section 51(3) provides that the court must not grant leave to make an election at a later time “after a Judge-alone trial has commenced”.
[64] Finally, for completeness we note that s 53 deals with the withdrawal of an election. Leave of the court is required.67 The court may grant leave to a defendant to withdraw if the court is satisfied “there has been a change in circumstances that might reasonably affect the defendant’s decision to elect a trial by jury”.68
The approach in the Courts below
[65] Importantly, for present purposes, Judge Burns concluded that Ms Anderson’s concerns were not a change of circumstances. The Judge considered that reasonableness involved an objective criterion. He said that:69
The perception of the defendant, as to the justice system that she faces, is a subjective state of mind held by her, I do not think [it] can be a relevant factor in exercising a decision in this category.
[66] Judge Burns went on to say that issues such as the delay caused by electing trial by jury were relevant factors as was the question of proportionality, that is, the seriousness of the charge.70 The Judge did not consider there was any distinguishing
feature in this case to put it in a different category from many other cases.71
[67] Woolford J agreed the courts did not treat the defendant’s perception as
decisive but required allegations of bias to be objectively justified.72 He concluded it was open to Judge Burns to determine there had been no change of circumstances in
67 Criminal Procedure Act, s 53(1).
68 Section 53(2)(a).
69 District Court judgment, above n 1, at [26].
70 At [27].
71 At [29].
72 High Court judgment, above n 2, at [33].
terms of s 51(2). Woolford J’s view was that if there had been a change of circumstances that might reasonably affect the defendant’s decision, there was a residual discretion and issues of “delay, cost and proportionality” were all “proper discretionary factors to be weighed in the balance when making a final decision on an application under s 51(2)”.73
Discussion
[68] The application for leave to change the election was advanced before Judge Burns on the basis of the concern about the comments Judge Saunders is said to have made. In the High Court, Ms Anderson filed an affidavit which apparently sought to expand the grounds. On this aspect, Woolford J stated:
[35] Counsel for Ms Anderson [Mr Schellenberg] also refers to three other factors, which he says are also changes of circumstances in terms of s 51(2). First, that Ms Anderson was not advised of her right to trial by jury by her previous counsel. Secondly, her curfew was deleted after the aborted Judge-alone trial on 8 December 2014 and by implication, she is now less concerned about the delay inevitably involved in a jury trial. Thirdly, the complainant has subsequently pleaded guilty to two separate and unrelated charges of assaulting Ms Anderson after the date of the alleged offence, which adds to her credibility as to why she had a knife in her possession on the date of the alleged offence.
[69] On the first factor, Woolford J noted counsel accepted that once Ms Anderson was told of her right to elect trial by jury (when she appeared for a case review hearing on 3 July 2014) she chose to remain with the judge-alone trial. Woolford J noted that the second factor was not addressed at the hearing before Judge Burns. On the third factor he said there were “no different rules relating to the admissibility of the complainant’s convictions in a Judge-alone or jury trial”.74
[70] It seems counsel would want to explore these aspects further on an appeal. For example, reference was made to the potential impact on Ms Anderson’s decision as to her election depending on when she was told of the guilty plea by her former partner. No waiver has been provided from Ms Anderson as to the nature of the advice she received over the relevant period although Mr Cook has attempted to
contact her in this respect. In these circumstances, Mr Cook said he would seek
73 At [37].
74 At [36].
referral back to the High Court. Mr Orpin also submits that to the extent any issue of waiver of privilege arises about the advice given to Ms Anderson of her right to elect trial by jury, the appeal could be allowed and the matter remitted to the District Court.
[71] Mr Orpin’s submission was that whether there was a change of circumstances must be determined objectively as Judge Burns found. However, Mr Orpin says the other factors, such as delay and proportionality, referred to by Judge Burns comprised an error of law. But the latter factors did not feature in Judge Burns’ decision that there was no relevant change of circumstances. Further, in her affidavit filed in the High Court, Ms Anderson says that the fact her then partner pleaded guilty made her “feel even more upset” about Judge Saunders’ comments. In other words, this factor remains linked to her concerns about the comments. Neither Judge Burns nor Woolford J considered those concerns provided a change in circumstance and nothing has been advanced that would alter that assessment. We see no basis to grant leave from the concurrent conclusions of Judge Burns and Woolford J that there was no change in circumstances.
[72] This proceeding has followed an undesirable path. Ms Anderson’s evidence was that she elected trial before a judge alone to achieve a speedy trial. However the trial was aborted part way through because of insufficient court time. This is an unfortunate outcome. Although Ms Anderson has ultimately been unsuccessful in respect of the application to change her election the subject of this appeal, there have been jurisdictional errors. All of this has led to delay and we acknowledge the factual matrix for Ms Anderson could have shifted during the appeal process. It may be that Ms Anderson could start afresh in the District Court and seek leave to withdraw her election on a different basis, but the availability of that course is a matter for her and her counsel to consider.
Decision
[73] There was jurisdiction to appeal against the decision declining
Ms Anderson’s application to change her election. However, for the reason given,
we decline to grant leave to appeal against that decision. The application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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