Hala v Police
[2015] NZHC 1665
•16 July 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000149 [2015] NZHC 1665
BETWEEN LEVUKA HALA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 July 2015 Appearances:
Robert Samuel for the Appellant
Rebecca Thomson for the RespondentJudgment:
16 July 2015
JUDGMENT OF MOORE J [Application for leave to appeal]
This judgment was delivered by me on 16 July 2015 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
HALA v NEW ZEALAND POLICE [2015] NZHC 1665 [16 July 2015]
Introduction
[1] The appellant, Levuka Hala, faces one charge of burglary and one charge of using a document to obtain a financial advantage. On 28 May 2015, Judge Kellar refused Mr Hala’s application to change his election from a Judge-alone trial to a jury trial. He now seeks leave to appeal against this pre-trial ruling.
[2] The Police maintain there is no jurisdiction to hear the appeal but, in any event, the appeal should be dismissed on its merits.
[3] In this judgment I shall consider the question of jurisdiction, following which I shall examine the substantive question of law raised on this appeal. First, it is necessary to examine the factual and procedural background in some detail.
Background
[4] The facts of the offending are largely irrelevant to the appeal. What is important to note, for present purposes, is that the charges which Mr Hala faces occurred on 19 July 2014 and 21 October 2014.
[5] Mr Hala first appeared in the Auckland District Court on 27 November 2014 when he was represented by his previous counsel. He entered pleas of not guilty but no election for trial by jury was made. By default, the mode of trial was therefore by Judge-alone.1
[6] He next applied for a case review hearing on 23 January 2015 by which time he was represented by his new counsel and counsel on this appeal, Mr Samuel. Mr Samuel requested an adjournment to 4 March 2015. Thereafter, at Mr Samuel’s request, the matter was adjourned a further three times.
[7] On 29 April 2015, Mr Hala sought a sentence indication. On 7 May 2015, Mr Samuel advised that the indication was not accepted by Mr Hala. At the same time, Mr Samuel applied under s 51 of the Criminal Procedure Act 2011 (“the Act”)
to elect a trial by jury. The application was made out of time. It was determined by
Judge Kellar on 28 May 2015 and is the decision which is now appealed.
[8] Judge Kellar accepted the right to elect a trial is a fundamental one enshrined in the Act but emphasised any application to change election must be made in a timely fashion. His Honour declined the application, observing that:2
There have now been a number of months and a number of Judge-alone trial case review hearings in which there [has been] the opportunity to make that application.
Analysis
Jurisdiction
[9] The relevant sections of the Act are ss 51 and 296. They are set out in full below:
“51 Timing of election
(1) An election under section 50 must be made at the time of entering a not guilty plea, unless the defendant obtains the leave of the court under subsection (2).
(2) 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.
(3) The court must not grant leave under subsection (2) after a
Judge-alone trial has commenced.
…
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
(b) arose before the trial and has already been decided under subpart 2.”
[10] The explanatory note for s 296 reads as follows:3
“Clauses 299 to 313 aim to provide a coherent set of provisions that replace various existing provisions that enable a case to be stated for an appeal court on a question of law. The case-stated procedure is replaced by an appeal that proceeds in the same way as under other subparts. An appeal under this subpart will involve a question of law that arises in the proceedings used to determine a charge against the defendant or in the final determination of that charge. Excluded from such appeals are questions of law that arise from a jury verdict or pre-trial questions already determined by an appeal court.
Existing provisions are in sections 78 and 107(1) of the Summary
Proceedings Act 1957 and section 380(1) of the Crimes Act 1961.”
[11] Section 296 creates a relatively narrow right of appeal which may be exercised prior to the final determination of the charge. The rule abolishes the former provision which required the trial to be concluded before an appeal could be brought. However, the jurisdiction extends only to a decision made in proceedings which relate to or follow the “determination of the charge”.
[12] This issue was recently examined by Woolford J in Anderson v Police.4 The case was an appeal against a decision to refuse an application for a change of election under s 51(2) of the Act following the mistrial of the appellant’s part-heard
Judge-alone trial due to insufficient time to complete it.
3 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note) at 70.
4 Anderson v Police [2015] NZHC 923.
[13] Woolford J considered the key issue was whether the questions of law on which Ms Anderson wished to appeal arose in proceedings that “relate to” the determination of the charge. He said:5
“[14] The words ‘relate to’ are of importance and should not be overlooked. The words ‘relate to’ mean to have some relation or an existing connection or a significant association. That relation, connection or association must exist between the proceedings and the determination or disposition of the charge.
…
[18] In this case, Judge Burns was hearing a separate application for leave, under s 51(2) of the Act, to elect trial by jury. Any decision made by Judge Burns on that application did not, in my view, have some relation to, an existing connection with, or significant association with the determination or disposition of the charge against Ms Anderson. The re-trial had not commenced. No evidence had been heard. No decision had been given on any issue which may arise during a trial, such as the admissibility of evidence. The charge had not been determined. Any determination or disposition of the charge is, in fact, a long way off.”
[14] Similarly, the entering of a guilty plea has been held not to be a determination of the charge,6 as has a refusal to discharge a defendant under s 147.7 Also relevant are the comments of Tipping J in Police v O’Neill, a case decided under the former statutory regime, where his Honour observed:8
“It is my view that a case should generally be stated under s.78 only if the point of law which arises is (a) clearly necessary for the decision and (b)likely to be decisive one way or the other.”
[15] Furthermore, s 215 of the Act adds some support for the proposition that, in the present case, no right of appeal arises. Section 215 provides a right of appeal “against certain pre-trial evidential decisions in Judge-alone cases”. Notably, a decision under s 51 of the Act does not feature amongst the species of pre-trial evidential decisions which may be appealed under s 215(2).
[16] I agree with the submission of Ms Thomson, for the Crown, that the appellate jurisdiction contained in s 296 cannot be utilised to circumvent Parliament’s clear
5 Above n 4 (emphasis added).
6 Pritchard v Police [2013] NZHC 3278.
7 Clarke v Police [2015] NZHC 259.
8 Police v O’Neill [1991] 3 NZLR 594 (HC) at 603.
legislative intent to restrict the availability of pre-trial appeals in Judge-alone trial cases.
[17] I note that in his written submissions, Mr Samuel appears to accept the ratio in Anderson. In neither his written submissions nor in oral argument has he attempted to advance any argument that Woolford J in Anderson was wrong or that the decision can be distinguished. However, for completeness, I shall add my own observations.
[18] I agree with Woolford J that the term “determination of the charge” relates to how a charge is disposed of following the process by which the elements of the charge are made out (or not made out) and any legal defence is considered.
[19] Under s 296(3)(b) of the Act, the charge may be “determined” by acquittal, dismissal under s 147, conviction or a stay. The “without limitation” disclaimer, before the four categories of determination is listed, is merely suggestive of the other potential mechanisms by which the charge may be determined.9 In the present case, the charges have not been determined and thus s 296(3)(b) does not apply.
[20] Furthermore, s 296(3)(a) permits an appeal to be brought where a decision of law “relates to” the determination of the charge. Determination is synonymous with disposition. I cannot fault the reasoning of Woolford J in Anderson.
[21] Generally, the mode of trial will not be decisive of the determination of the charge. To adopt such reasoning would amount to a suggestion that the particular mode of trial, whether by Judge-alone or by jury, may result in a substantially different determination.
[22] In this case, declining Mr Hala of his preferred mode of trial will not and cannot be determinative of the charge.
9 For example, the process triggered by s 9 of the Criminal Procedure (Mentally Impaired
Persons) Act 2003.
[23] It follows I do not accept that s 296 of the Act provides the jurisdiction to determine an appeal against the exercise of Judge Kellar’s discretion to refuse Mr Hala’s out of time application for trial by jury under s 51(2) of the Act.
Did the Judge err in law in applying s 51(2) of the Act
[24] Despite my conclusion that this Court has no jurisdiction under s 296 of the Act to consider an appeal against Judge Kellar’s refusal to allow Mr Hala to change his election under s 51(2), even if I am wrong, I am not satisfied that the Judge erred in law.
[25] The essence of Mr Samuel’s submissions is that, for reasons beyond the control of the defence, the state and progress of the case was such that he could not have realistically made an election earlier. In particular, he relies upon the state of disclosure and timing of Mr Hala’s grant of legal aid.
[26] First, Mr Samuel submits that, until April 2015, he had serious difficulties in obtaining disclosure because the Police had already provided disclosure to Mr Hala’s previous counsel and were reluctant to repeat that exercise given that Mr Samuel was in a position to obtain the disclosure from Mr Hala’s previous counsel. Mr Samuel also submits that legal aid was not granted for all of Mr Hala’s matters until 30 April
2015. As I understood his submission, it was not until this time was he able to assess the merits of Mr Hala’s case and make an informed judgement on whether it would be in Mr Hala’s best interests to continue to proceed by way of a Judge-alone trial or whether he should elect a trial by jury. The same reasoning applies to the delay in obtaining disclosure.
[27] Furthermore, Mr Samuel submits, s 51 does not prescribe any time limit for making an application.
[28] Section 51(2) gives the Court a statutory discretion to grant leave to make an election out of time if it is satisfied there has been a change in circumstances which might reasonably affect the defendant’s decision whether to elect a trial by jury.
[29] I agree with Ms Thomson that the application of s 51(2) involves the following three step test:
(a) the Court must first satisfy itself there has been a change in circumstances (Step 1);
(b) it must consider whether that change in circumstances might
reasonably affect the defendant’s decision to elect trial by jury (Step
2); and
(c) if Steps 1 and 2 are met, it must consider whether to exercise its discretion to grant leave (Step 3).
[30] I shall now consider each of those steps in turn.
(a) Step 1: Change in circumstances
[31] This it is an objective inquiry which requires a determination, on the facts, of whether there has been a change in circumstances.
[32] The circumstances relied on by Mr Samuel are that he first appeared as Mr Hala’s new counsel on 23 January 2015 and did not get disclosure or possession of the full file until April 2015.
[33] However, the procedural requirements under the Act require an examination of the circumstances leading up to the entry of pleas and the status of disclosure at that time. Section 39(1) of the Act requires that, unless the defendant has pleaded to a charge under ss 37 or 38,10 the Court may require the defendant to enter a plea provided that the Court is satisfied the defendant has had initial disclosure in accordance with s 12(1) of the Criminal Disclosure Act 2008. Section 51(1) of the Act states that an election under s 50 must be made at the time of entering a not
guilty plea, unless the defendant obtains leave of the Court under s 51(2).
10 Section 37 deals with receiving early pleas; s 38 provides for the right to plead to category 1 offences by notice.
[34] Thus Parliament clearly envisaged full disclosure was not a necessary prerequisite to a defendant making an election. That Mr Samuel, as Mr Hala’s new counsel from January 2015, did not receive Mr Hala’s full file until April 2015 does not constitute a change in circumstances.
[35] Also of significance is the memorandum filed by Mr Samuel for callover on
19 June 2015. In this document, Mr Samuel recorded that Mr Hala wished to change his election but this was not recorded by the Court. If that advice to the Court was correct, Mr Samuel had already decided that Mr Hala was in a position to elect a trial by jury despite not having complete disclosure or having legal aid confirmed. Waiting for disclosure, from whatever source, or not having legal aid confirmed, was plainly not a prerequisite for counsel in assessing the merits of an election and making the decision that Mr Hala’s best interests were served by a trial by jury.
[36] Whether or not Mr Samuel appeared in person or via an agent, Judge Kellar was right when he determined that there had been a number of opportunities much earlier in time to advise Mr Hala on his right to elect a trial by jury and to make an application for a change of election out of time.
(b) Step 2: Was Mr Hala’s decision reasonably affected?
[37] The next step is for the Court to satisfy itself that the change in circumstances “might reasonably” affect the defendant’s decision to elect. This is a relatively low threshold and, because it requires an assessment of the defendant’s state of mind, whether Mr Hala’s state of mind is actually affected is a relevant concern. However, the overall inquiry is an objective one given the use of the word “reasonably”.
[38] It appears that the Judge did not consider Mr Hala’s decision to elect was reasonably affected by a change in circumstances. The Judge noted that there had been six Judge-alone trial case review hearings, in which Mr Samuel had been assigned for all of them. The Judge added:11
“Hence there have been a number of opportunities much earlier in time to advise Mr Hala in relation to the ability to apply to change election.”
[39] If Mr Samuel did, in fact, attempt to elect a trial by jury for Mr Hala on
23 January 2015 then, for the same reasons as discussed above, the receipt of full
disclosure in 2015 did not change Mr Hala’s position.
(c) Step 3: Exercise of discretion
[40] The third step, which is reached only if Steps 1 and 2 are satisfied, is for the
Court to consider its discretion to allow or decline a change of election.
[41] In examining these issues in Anderson, Woolford J listed delay, cost and proportionality as all proper discretionary factors to be weighed in the balance when making a final decision on an application under s 51(2).12
[42] Even if steps 1 and 2 were satisfied, which in my view they were not, the Judge retained the discretion as to whether to permit the appellant to change his election. There had been a significant delay and a series of hearings at which Mr Hala was legally represented since 23 January 2015. It was open to Judge Kellar to decline to exercise his discretion even if he concluded there had been a change of circumstances which had reasonably affected Mr Hala’s decision.
Conclusion and result
[43] The appeal is declined for want of jurisdiction.
[44] Even if I was satisfied the jurisdiction under s 296 existed, I would have dismissed the appeal on the grounds the Judge did not err in his application of the
law under s 51(2) of the Act.
Moore J
Solicitors:
Mr Samuel, Auckland
Crown Solicitor, Auckland
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