Byrt v Police

[2012] NZHC 340

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-241 [2012] NZHC 340

BETWEEN  JAMIE JONTHAN BYRT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 February 2012

Appearances: T J Darby for the Appellant

B Hamlin  for the Respondent

Judgment:      5 March 2012

JUDGMENT OF GILBERT J [Appeal against conviction and sentence]

This judgment was delivered by me on 5 March 2012 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules. Registrar/Deputy Registrar

Date: ………………….

Counsel:            T J Darby, Barrister, Auckland: [email protected]

Solicitor:            Crown Solicitor, Auckland:  [email protected]

BYRT V NZ POLICE HC AK CRI 2011-404-241 [5 March 2012]

[1]      Mr Byrt, the appellant, was convicted on 5 April 2011 of an offence under s 125(1) of the Crimes Act 1961 for wilfully committing an indecent act in a public place.1   He appeals against his conviction on the grounds:

(a)       The evidence gave rise to a reasonable doubt and Judge Hinton erred in finding that the charge was made out; and

(b)He was not informed of his right to elect trial by jury in terms of s 66 of the Summary Proceedings Act 1957.

Factual background

[2]      At about 3.30 pm on 10 September 2010 the appellant was driving a friend’s car along Watea Road in Torbay.  He stopped the car.  The complainants were two school girls who were walking home from school along Watea Road at that time. They gave evidence of seeing the appellant masturbating while seated in the car. The appellant denied this.   He gave evidence that he was trying to extinguish a cigarette that had fallen between his legs using a drink bottle.

The decision under appeal

[3]      Judge Hinton preferred the evidence of the complainants.  He said at [6] of his judgment that the complainants:

... were not shaken in cross-examination.   They seemed to me reasonably self-assured and specific.  They seemed to be most probably not mistaken with respect to the core relevant pieces of their evidence.

By contrast he found that the appellant “could not remember a lot of what had happened that day”.2

[4]      The Judge was satisfied that the complainants saw the appellant masturbating in the car.  He accepted their evidence and found that the charge was proved beyond

reasonable doubt. After summarising the evidence the Judge concluded at [14]:

1 Police v Byrt DC North Shore CRI-2010-044-006772, 5 April 2011.

2 At [8].

I am satisfied beyond reasonable doubt, which is the standard in a criminal prosecution, that this charge is proven, which means that [the appellant] must be, and is accordingly, convicted of it.

Ground 1 – reasonable doubt

[5]      The appellant criticised a number of aspects of the trial process and the

Judge’s reasoning in support of his first ground of the appeal. These were:

(a)      The prosecutor elicited evidence on critical and contentious issues with leading questions during examination in chief and re- examination.

(b)The Judge wrongly permitted these leading questions and wrongly relied on the answers in finding the charge proved beyond reasonable doubt.

(c)      The Judge omitted to make factual findings on contentious issues.

(d)The Judge accepted the complainants’ evidence despite their inability to recall all aspects of what had occurred.

(e)      The Judge did not identify the essential ingredients of the alleged offence.

(f)      The Judge applied the civil standard of proof rather than the criminal standard.

[6]      Having carefully read the transcript of the evidence and the judgment I am satisfied that there is nothing in any of these points.  This was a single issue case: was the Judge satisfied beyond reasonable doubt that the appellant had a penis, not a bottle, in his hand?  There was no need for the Judge to list the essential ingredients of the alleged offence. This was the only contest.

[7]      The complainants were not prompted by leading questions in giving their evidence on the critical issue. The first complainant’s evidence was as follows:

Q        All right, you said this car came past?

AA car went past and then stopped and reversed to where me and [the other complainant] were walking.  And we looked to our right and there was a car, um, a four door grey sedan car stopped with the passenger window down and we looked beside us and there was a man masturbating. ...

QAlright, now I’m afraid I’m going to have to ask you to be a little more specific as to exactly what you saw and when you say you saw him masturbating.  So just give us a little more detail as to what you saw.

AUm, there was a male with an erect penis and he was guiding his hand up and down his penis.3

[8]      The other complainant gave evidence as to what she saw.  This was not in response to any leading question:

AAs we looked into the grey sedan car, we noticed a man with his pants down.  The man was indecently exposing himself, he had his penis out and was masturbating.4

[9]      There is nothing in Mr Darby’s submission that the learned Judge was not entitled to find the charge proven beyond reasonable doubt because the complainants were unsure about other, less critical, aspects of what had occurred.  There is equally no basis for the submission that the Judge applied the civil standard of proof rather than the criminal standard.   The Judge expressly stated that he was applying the criminal standard being proof beyond reasonable doubt.

[10]     For the foregoing reasons this ground of appeal must fail.

Ground 2 – jury trial election

[11]     The offence of committing an indecent act in a public place under s 125(1) of the Crimes Act 1961 is punishable by a term of imprisonment not exceeding two

years.

3 Notes of Evidence, page 5.

4 Notes of Evidence, page 16.

[12]     Section 66(2) of the Summary Proceedings Act 1957 provides that any person charged with an offence punishable by imprisonment for a term exceeding three months is entitled to elect to be tried by a jury.

[13]     The appellant has sworn an affidavit stating that he was not advised of his right to elect trial by jury.  He says that he believes he would have elected trial by jury had he been aware that this option was available to him, particularly given that the critical issue in the case was purely factual.   The appellant produced the Information from the North Shore District Court file which records the entry of the not guilty plea but has no reference to any election of summary jurisdiction.  The appellant was not cross-examined on this affidavit and his evidence is therefore unchallenged.

[14]     The appellant also obtained an affidavit from the solicitor who represented him in the North Shore District Court.  She states that her usual practice, where she is aware of a right to trial by jury, is to advise clients of that right and to obtain their written instructions to ensure that there is a clear record of this on the file.  She has checked the file and there is no such record.  She is therefore not able to refute the appellant’s evidence that he was not advised of this election.  This evidence was also unchallenged.

[15]     Mr Hamlin conceded that on the basis of the evidence I must find that the appellant was not advised of his right of election.  I agree.

[16]     The effect of the Court’s failure to advise a defendant of the right to elect jury trial was considered by the Court of Appeal in Abraham v District Court at Auckland.5   The Court confirmed that the right to elect trial by jury is an important right in our system of criminal justice.  But a court’s failure to inform a defendant of this right does not render the proceeding a nullity.  The question in each case will be whether there has been a miscarriage of justice: s 204 of the Summary Proceedings

Act.

5 Abraham v District Court at Auckland [2008] 2 NZLR 352 (CA).

[17]     In Abraham the Court of Appeal held that there had been a miscarriage of justice because the defendant had entered a guilty plea without knowing of his right to a trial by jury.

[18]     Mr Darby relies on the decision of this Court in Lose v New Zealand Police6

in which Woolford J said at [23]:

... I am of the view that the right to a jury trial is fundamental and unless there is good reason for approaching the matter in some other way, an appeal should normally be allowed in circumstances such as these whereby that right has been clearly denied to the appellant.

[19]     Mr Darby submitted that the Court could not be confident that the result would have been the same had the trial been conducted before a jury instead of a judge alone.   Given that the issue was a purely factual one, I accept that there is some force in this submission.

[20]     Mr Hamlin submitted that it follows from the Court of Appeal’s approach in Abraham that not every failure to advise a defendant of the jury trial election will result in a miscarriage of justice.  That may be so but, in the circumstances of this case, I am satisfied that there has been a miscarriage of justice and the appeal must therefore be allowed on this ground.

[21]     Section 131(1) of the Summary Proceedings Act 1957 provides that:

131     Power of High Court to direct rehearing of information or complaint

(1)       On any appeal the High Court may remit the determination appealed against to the District Court with a direction that the information or complaint to which it relates be reheard.

[22]     This power was discussed by the Court of Appeal in E H Cochrane Ltd v

Ministry of Transport.7 Cooke P stated at 153:

Statutes giving appeal rights commonly include power to order a rehearing by the court appealed from, as does the Summary Proceedings Act 1957, s 131.     If  an  appeal  is  allowed  on  the  ground  of  bias  or  excessive questioning, the ordinary course in the absence of some special reason to the

6 Lose v New Zealand Police HC Auckland CRI-2010-404-500, 4 July 2011.

7 E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (CA).

contrary will  be to  order a  rehearing in  the  Court below,  provided that another judge is available.  A party who wins an appeal because he has had an unfair trial does not thereby immunise himself from a fair one.

[23]     The discretion under s 131 to remit the matter for rehearing in the District Court was considered by Heath J in Scott v Otago Regional Council.8    In that case there had been a miscarriage of justice because of a misunderstanding about the burden of proof.   In considering whether the information should be remitted for rehearing in the District Court, His Honour stated at [51]:

The seriousness of the conduct that gave rise to the charges is significant. The less serious the charge, the less likely it is that a rehearing is desirable and should be ordered.

[24]     In Ranapia v Police,9 French J agreed that the seriousness of the charge is a significant factor to be taken into account in the exercise of the discretion under s 131.  Her Honour noted that delay such as would render it impossible for there to be a rehearing would be an important consideration as would the need to balance inconvenience to the appellant with public interest considerations.  She said at [33]:

... ultimately, each case turns on its facts, with the overriding consideration being which of the statutory courses is feasible and best calculated to meet the interests of justice in the particular circumstances.

[25]     It is not suggested in this case that delay is a factor which I should take into account.  Although there has been some delay in the prosecution of this appeal, the appellant must take responsibility for that.  Mr Darby did not suggest that the delay in this case is such as would prejudice a fair trial.

[26]     Mr Darby also accepts that the alleged offending is of a serious character, but he submits that the appellant should not be subjected to the ordeal of a second trial because he was not responsible for the error that occurred.

[27]     The alleged offending in this case is serious.  There is no reason why a fair trial cannot now be conducted.  In my view, the interests of justice are best served in this case by exercising my discretion under s 131 of the Act and remitting the matter

to the District Court for a rehearing.

8 Scott v Otago Regional Council HC Dunedin CRI-2008-412-17/18/19/20, 3 November 2008.

9 Ranapia v Police HC Christchurch CRI-2008-409-207, 30 March 2009.

Result

[28]     The appeal is allowed.   The conviction entered against the appellant in the

District  Court  is  set  aside  as  is  the  sentence  imposed  in  consequence.     The information is remitted to the District Court for rehearing.

M A Gilbert J