Hedges v Police HC Auckland CRI 2009-488-49
[2010] NZHC 1571
•9 September 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-488-0049
DONALD MITCHELL HEDGES
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 21 April 2010
Counsel: C Muston for Appellant
A L Patterson for Respondent
Judgment: 9 September 2010 at 4 pm
JUDGMENT OF WHITE J
This judgment was delivered by me on 9 September 2010 at 4 pm pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar
Date: .....................................
Solicitor: Crown Solicitor, PO Box 146, Whangarei
Counsel: C Muston, PO Box 1905, Whangarei
HEDGES V POLICE HC AK CRI-2009-488-0049 9 September 2010
[1] By Order in Council dated 21 September 2009, the Governor-General, acting under s 406(a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, has referred to the High Court the question of the conviction of Mr Hedges, entered in the District Court at Whangarei on 21 October 1986, for wounding with reckless disregard for the safety of others contrary to s 188(2) of the Crimes Act 1961.
[2] The background to, and the reason for, the reference appear in the Schedule to the Order in Council:
1 Interpretation
Schedule
In this schedule, the applicant means Donald Mitchell Hedges.
2 Trial and appeal
Background
(1)On 8 January 1986, an information was laid against the applicant charging him with wounding with reckless disregard for the safety of
others, which is an offence against section 188(2) of the Crimes Act
1961.
(2) The applicant’s trial for that offence took place in the District Court at Whangarei on 21 October 1986 and the applicant was convicted of
that offence.
(3)On 5 November 1986, the applicant was sentenced in the same court to 2 years’ imprisonment.
(4) The applicant appealed against the conviction and sentence to the
High Court.
(5)On 27 November 1986, the High Court dismissed the applicant’s appeal against conviction, but allowed the appeal against sentence and substituted a sentence of 18 months’ imprisonment.
3 Application for exercise of Royal prerogative of mercy
The applicant applied to the Governor-General, in an application dated 1 April 2008, for the exercise of the mercy of the Crown in
respect of his conviction.
4 Apparent lack of jurisdiction to enter conviction
(1) It appears that the District Court did not have jurisdiction to try, convict, or sentence the applicant for an offence against section
188(2) of the Crimes Act 1961.
(2)An offence against section 188(2) of the Crimes Act 1961 is, and was in 1986, an indictable offence. This is because-
(a) section 188(2) of the Crimes Act 1961 provides that “Every
one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless
disregard for the safety of others, wounds, maims,
disfigures, or causes grievous bodily harm to any person”:
(b)section 2(1) of the Crimes Act 1961 defines “is liable” to mean “is liable on conviction on indictment”.
(3)Section 6 of the Summary Proceedings Act 1957 gives the District Court summary jurisdiction in respect of certain indictable offences listed in Schedule 1 of that Act. However, section 188(2) of the Crimes Act 1961 is not, and in 1986 was not, included in Schedule
1.
(4)Under section 28A of the District Courts Act 1947, District Courts have jury trial jurisdiction in respect of certain indictable offences.
However, in 1986, District Courts did not have jurisdiction, under section 28A of the District Courts Act 1947, over an offence against
section 188(2) of the Crimes Act 1961.
(5) In 1986, a charge for an offence against section 188(2) of the Crimes
Act 1961 had to be laid indictably and could be heard only in the
High Court.
(6) It appears that, when the District Court tried, convicted, and sentenced the applicant for the offence against section 188(2) of the
Crimes Act 1961, the court purported to act in its summary
jurisdiction. This is borne out by the following documents:
(a)the information laid against the applicant on 8 January 1986 in accordance with section 15 and in form 1 of Schedule 2 of
the Summary Proceedings Act 1957, alleging that the applicant committed an offence against section 188(2) of the
crimes Act 1961:
(b) the summons in respect of the alleged offence issued on 8
January 1986 in accordance with section 19 of the Summary proceedings Act 1957 and in form 3 of Schedule 1 of the
Summary Proceedings Regulations 1958:
(c)the judgment of Judge H R H Paul in the District Court at Whangarei dated 21 October 1986 that sets out the reasons for convicting the applicant of the offence against section
188(2) of the Crimes Act 1961.
Reason for reference
5 Reason
The reason for the reference is that the matters set out above-
(a)indicate that the District Court did not appear to have jurisdiction to try, convict, or sentence the applicant for the
offence against section 188(2) of the Crimes Act 1961; and
(b)could lead the High Court to conclude that a miscarriage of justice has occurred.
[3] By notice of appeal dated 15 October 2009, Mr Hedges stated that the grounds of his appeal were as set out in the Order in Council.
[4] Both parties provided written submissions for the hearing on 21 April 2010, but, as my minute of that date records, counsel referred at the hearing to further authorities not previously considered by them. This required an adjournment for further written submissions. These have been provided by the Crown on
18 May 2010 and by counsel for Mr Hedges on 3 June 2010. In the absence of any application for further directions, I am now in a position to proceed with this
judgment on the basis of the submissions received for the hearing on 21 April 2010 and subsequently without the need for further oral argument.
Factual background
[5] Mr Hedges, when aged 46, was charged in the District Court at Whangarei with wounding Pancho Lopez with reckless disregard for the safety of others on
6 January 1986.
[6] At the commencement of the hearing of the charge on 21 October 1986, when Mr Hedges represented himself, the following exchange occurred between District Court Judge H R H Paul and Mr Hedges shortly after the evidence from Mr Lopez, the first witness for the prosecution, began:
COURT:
Just a few technical matters before we embark further. Mr Hedges you have had counsel briefly and counsel withdrew over a conflict of interest?
MR HEDGES: Yes.
COURT:
Q. You are aware of a right to apply for legal aid? A. Yes.
Q. You wish not to apply for legal aid? A. That’s right
Q. You are prepared to defend yourself? A. Yes.
Q. You wish to plead not guilty? A. Yes.
Q. You want it heard before this Court and not before a Judge and Jury? A. Yes?
[7] The hearing proceeded with Mr Hedges cross-examining the prosecution witnesses, the evidence of a medical practitioner and police constable being tendered by consent, and Mr Hedges giving evidence on his own behalf. Mr Hedges also called his father to give evidence.
[8] At the conclusion of the hearing on 21 October 1986 the District Court Judge delivered an oral decision finding that after an argument and physical fight between Mr Hedges and Mr Lopez in the flat occupied by Mr Hedges and his father, which was apparently won by Mr Lopez who then retreated in the direction of his own flat within the same house alongside an outside verandah, Mr Hedges picked up a knife and followed Mr Lopez and stabbed him with the knife. Preferring the evidence of Mr Lopez and his flatmate, Mr Openshaw, to that of Mr Hedges and his father, the District Court Judge accepted that the knife attack was a deliberate and unprovoked attack by Mr Hedges on Mr Lopez.
[9] The District Court Judge sentenced Mr Hedges on 5 November 1986 to two years imprisonment. In doing so he took into account the fact that Mr Hedges had pursued Mr Lopez and that the stabbing resulted in the perforation of Mr Lopez’s spleen. The District Court Judge also took into account Mr Hedges’ previous convictions for assault in 1971, 1972 and 1986.
[10] Mr Hedges’ original appeal to the High Court against conviction and sentence was heard by Smellie J on 27 November 1986. In an oral judgment on that date, Smellie J dismissed the appeal against conviction, but reduced the sentence to one of 18 months imprisonment. On the appeal Mr Hedges was represented by counsel, Mrs Hemmingsen. In rejecting the appeal against conviction, Smellie J said:
The appellant represented himself. The case put forward by the police was essentially that after an altercation and fight in the Appellant’s flat the Appellant had followed Mr Lopez to the door of the latter’s flat and had there, without warning, stabbed him with a sheath knife, the stab wound puncturing the victim’s body to the extent of 10 cms. The victim was rushed to hospital and operated upon and his spleen was removed. As Mr Treston has quite properly pointed out the Learned District Court Judge heard and saw the witnesses that the Police called and likewise heard and saw Mr Hedges and the witness he called. It is perfectly obvious from the judgment on the question of culpability that Judge Paul believed the evidence of the
Police witnesses and did not accept the evidence of the Appellant and his father.
Sitting as the Appeal Judge I cannot substitute my view of the credibility of the witnesses for that of the Judge in the Lower Court who heard and saw them. Furthermore, I am bound to say on reading the transcript and considering all the circumstances of the offence I am left with the clear impression, quite apart from the question of credibility, that the fight was over when Mr Hedges decided to collect his sheath knife from his bedroom and that he did in fact pursue Mr Lopez and strike him a dangerous blow from behind without warning.
I have listened carefully to what Mrs Hemmingsen has had to say on the question of conviction and she has traversed the evidence and the aspects of the matter carefully. I do not consider that there is any real aspect of self- defence here because on the District Court Judge’s findings there was no attack taking place so far as Lopez is concerned at the time Mr Hedges wounded him with the knife.
[11] There was no dispute that following the determination of his appeal
Mr Hedges served his sentence of imprisonment.
Submissions for the parties
[12] For Mr Hedges, Mr Muston submitted that as the District Court Judge had no jurisdiction to hear the original prosecution under s 188(2) of the Crimes Act 1961, the hearing was held outside jurisdiction and as such was ultra vires, void and a nullity, “being destitute of the statutory authority without which it is nothing”: Wade
and Forsyth Administrative Law.[1]
[1] Wade and Forsyth Administrative Law (7th ed, Clarendon Press, Oxford, 1994) at 43.
[13] For the Crown, Ms Patterson submitted that under s 406(a) of the Crimes Act
1961 the question referred to the Court by the Order in Council is to be heard and determined “as in the case of an appeal” by Mr Hedges against conviction and sentence, which means that in this case the High Court has power under s 121(2) and (3) of the Summary Proceedings Act 1957 to confirm, set aside or amend the
conviction and confirm, quash, substitute or vary the sentence: Palmer v R.[2] The
[2] Palmer v R CA373/02, 12 December 2002.
Crown submitted that as the reference in the Order in Council requires the High Court to consider the technical nature of how the information proceeded rather than the substance of the evidence that resulted in the conviction itself and as the appeal is
based solely on the jurisdictional error and not on the evidence that secured the conviction, there is no suggestion that the High Court should re-examine the conviction on the basis of “new matters”: R v Ellis.[3] The High Court should amend the conviction to one of injuring (rather than wounding) with reckless disregard under s 189(2) of the Crimes Act 1961, which at the relevant time in 1986 was an indictable offence over which the District Court had summary jurisdiction: Summary Proceedings Act 1957, Schedule 1, Part 1. It would not be in the interests of justice, the Crown submited, for the conviction simply to be set aside when the evidence is
not in question.
[3] R v Ellis [2000] 1 NZLR 513 (CA) at [13]-[17].
[14] On the question of the sentence, the Crown submitted that as the maximum penalty under s 189(2) of the Crimes Act 1961 was five years imprisonment, the
18 month term of imprisonment imposed on Mr Hedges by Smellie J on appeal remained appropriate and should be confirmed. Any re-assessment of appropriate penalty should be undertaken with reference to the law as it stood at the time: the Criminal Justice Act 1985 was applicable rather than the Sentencing Act 2002.
[15] In the further written submissions for the Crown, it was submitted that the decisions of the Court of Appeal in R v Blows,[4] R v L[5] and R v O (No 2),[6] which have held or suggested that where a trial has been a nullity reliance on the proviso to s 385 of the Crimes Act 1961 is inappropriate, are distinguishable on the ground that those cases involved jury trials that inevitably meant the application of s 385 on appeal. Here, where the case proceeded in the summary jurisdiction before a Judge alone, s 121 of the Summary Proceedings Act 1957 remains applicable and the Court may amend the information under s 43 of the Act, substitute the charge of injuring with
reckless disregard under s 189(2) of the Crimes Act 1961 for the charge of wounding with reckless disregard under s 188(2) and enter a conviction on the substituted charge: Jones v Police.[7]
[4] R v Blows CA 103/95 31 August 1995.
[5] R v L CA 71/98, 22 June 1998.
[6] R v O (No 2) [1999] 1 NZLR 326 (CA).
[7] Jones v Police [1998] 1 NZLR 447 (CA).
[16] It was also submitted for the Crown that s 385 of the Crimes Act 1961 does not apply to a general appeal to the High Court under s 121 of the Summary Proceedings Act 1957, which by s 119 of the Act is by way of rehearing. Only the Court of Appeal or the Supreme Court may decide to dismiss an appeal under the proviso to s 385 if it considers “that no substantial miscarriage of justice has actually occurred.”
[17] It was acknowledged for the Crown that if the Court decided that s 385 was applicable then the procedural error in this case did constitute a miscarriage of justice, which could not be saved by the proviso unless the Court decided, by reference to R v Sungsuwan,[8] that the error did not materially affect or risk the outcome of the conviction because even if Mr Hedges had appointed new counsel, or retained counsel and appeared at the High Court trial, this would not have affected
the result given the simplicity of the prosecution. Alternatively, if the Court decided to allow the appeal and quash the conviction under s 385, it should order a stay of the proceeding rather than an acquittal that would deem the offender innocent of the offence. A stay would allow the prosecutor to lay a fresh charge, so the offender was still in jeopardy. That would be appropriate given the fact that the evidence the basis of the original conviction has never been in question.
[8] R v Sungsuwan [2006] 1 NZLR 730 (SC) at [70].
[18] Finally, it was submitted for the Crown that the District Court Judge was entitled to impose a full-time custodial sentence because in terms of s 10(1) of the Criminal Justice Act 1985 Mr Hedges, at the time at which he was at risk of conviction, had been informed of his rights to legal representation by the District Court Judge and had decided not to retain counsel.
[19] In reply for Mr Hedges, Mr Muston submitted that in terms of the Governor- General’s reference the Court needs to consider whether as a result of the District Court’s lack of jurisdiction “a miscarriage of justice” has occurred. If the Court concludes that there was a miscarriage of justice, the conviction should be set aside and the sentence quashed under s 121 of the Summary Proceedings Act 1957. A miscarriage of justice occurs whenever defendants are treated by the state in breach
of their rights, procedural or substantive. Reference was made to D J Galligan Due Process and Fair Procedures,[9] Hon J J Spigelman AC “The truth can cost too much: The principle of a fair trial”,[10] J Bruce Robertson Adams on Criminal Law,[11] and Hon Justice Grant Hammond, “The New Miscarriages of Justice”.[12] There was a miscarriage of justice in the present case because Mr Hedges, when self-
represented, was convicted and sentenced to imprisonment by a Court which had no jurisdiction to do so. If the original charge had been heard by a jury and Mr Hedges had been represented by competent counsel, the outcome might have been favourable to him. Included charges were never part of the hearing process: cf
R v Mokaraka.[13]
[9] D J Galligan Due Process and Fair Procedures (Clarendon Press, Oxford, 1996) at 411-417.
[10] Hon J J Spigelman AC “The truth can cost too much: The principle of a fair trial” (2004) 78 ALJ 29 at 36-37.
[11] J Bruce Robertson (Ed) Adams on Criminal Law (looseleaf ed, Brookers) at CA385.08-CA385.16.
[12] Hon Justice Grant Hammond, “The New Miscarriages of Justice” (The Harkness Henry Lecture (2006) in the University of Waikato.
[13] R v Mokaraka [2002] 1 NZLR 793 (CA) at [12]-[20].
[20] In his further written submissions, Mr Muston has made the following points:
a) Mr Hedges was not informed that the District Court had no power to deal with the charge of wounding in its summary jurisdiction.
b)The appeal before Smellie J may also have been a nullity because had there been a jury trial any appeal would have been to the Court of Appeal.
c) In terms of the Governor-General’s reference, the High Court should deal with the matter under s 121 of the Summary Proceedings Act
1957. A rehearing under s 131 of that Act would be pointless as Mr Hedges has already served a term of imprisonment. The amendment of the conviction and substitution of another under s 132 of that Act would be contrary to principle.
d)The decisions of the Court of Appeal in R v Blows, R v L and R v O (No 2) are not distinguishable on the ground that they involved jury
trials. Jurisdictional error means nullity in each case, which may be a miscarriage of justice: Police v Thomas[14] and Butterfield v R.[15]
[14] Police v Thomas [1977] 1 NZLR 109 (CA) at 121 per Cooke J.
[15] Butterfield v R [1997] 3 NZLR 760 at 763–764 (HC).
e) The original conviction was entered in a Court that lacked jurisdiction.
f) It is accepted that considerations of miscarriage of justice arise by virtue of the reasons set out in paragraph 5 of the Governor-General’s reference. A miscarriage of justice finding may be made without statutory authority.
g) The conviction should be set aside and the sentence quashed. There is no authority or basis for a stay. A further prosecution would itself be likely to be stayed.
h)R v Sungsuwan is not relevant because here the conviction arose out of a fatally flawed process and is inextricably entwined with it.
i)If the District Court Judge had no jurisdiction to hear the prosecution, he also had no jurisdiction to sentence Mr Hedges.
The reference to the High Court
[21] The reference to the High Court by way of Order in Council is under s 406(a)
of the Crimes Act 1961, which provides:
Nothing in this Act shall affect the prerogative of mercy, but the Governor- General in Council, on the consideration of any application for the exercise of the mercy of the Crown having reference to the conviction of any person by any Court or to the sentence (other than a sentence fixed by law) passed on any person, may at any time if he thinks fit, whether or not that person has appealed or had the right to appeal against the conviction or sentence, either—
(a)Refer the question of the conviction or sentence to the Court of Appeal or, where the person was convicted or sentenced by a District Court acting in its summary jurisdiction or under section
28F(4) of the District Courts Act 1947, to the High Court, and the question so referred shall then be heard and determined by the Court to which it is referred as in the case of an appeal by that person against conviction or sentence or both, as the case may require; or
…
[22] As the Crown submitted, s 406(a) requires the High Court to hear and determine the question referred to it “as in the case of an appeal” against conviction or sentence or both by the person convicted or sentenced. In R v Palmer where there was a reference to the Court of Appeal under s 406(a), as a result of new evidence, the Court said at [1]:
… The question so referred is to be heard and determined by this Court as in the case of an appeal by the appellant against conviction by s 385(1)(c). This Court is to allow the appeal if it is of the opinion that on any ground there was a miscarriage of justice.
[23] In the case of a reference to the High Court under s 406(a) the analogous provision to s 385 of the Crimes Act 1961 is s 121 of the Summary Proceedings Act
1957, which provides:
(1)The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.
(2)In the case of an appeal against conviction, the High Court may— (a) Confirm the conviction; or
(b) Set it aside; or
(c)Amend it and, if the Court thinks fit, quash the sentence imposed and either impose any sentence (whether more or less severe) that the convicting Court could have imposed on the conviction as so amended, or deal with the offender in any other way that the convicting Court could have dealt with him on the conviction as so amended.
(2A)If in the case of an appeal against conviction it appears to the Court that the appellant was insane at the time of the commission of the offence and that the information should have been dismissed on account of the appellant's insanity, the Court may quash the conviction; and thereupon sections 23 to 26, 28, and 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 shall apply, as far as they are applicable, as if the information had been so dismissed.
(3)In the case of an appeal against sentence, the High Court may— (a) Confirm the sentence; or
(b)If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i)Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) Quash any invalid part of the sentence that is severable from the residue; or
(iii) Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
(4)In the case of an appeal against an order, the High Court may— (a) Confirm the order; or
(b) Set it aside; or
(c)Quash it and make such other order warranted in law (whether more or less severe) in substitution therefor as the Court thinks ought to have been made; or
(d) Vary, within the limits warranted in law, the order or any part of it or any condition imposed in it.
(5)In the case of an appeal against the amount of any sum ordered to be paid, the High Court may confirm the amount or increase or reduce it within the limits warranted in law.
(6)In any case, the High Court may exercise any power that the Court whose decision is appealed against might have exercised.
(7)Subject to the provisions of section 144 of this Act, the decision of the High Court on any general appeal shall be final.
[24] I therefore approach the reference on the basis that it is effectively a new general appeal to the High Court against the 1986 District Court conviction and sentence on the grounds that as the District Court had no jurisdiction to convict and
sentence Mr Hedges there was a miscarriage of justice that requires the conviction to be set aside and the sentence quashed. The High Court has a general power under s 121(1) of the Summary Proceedings Act 1957 to make such order in relation to the appeal as the Court thinks fit as well as the specific powers under s 121(2), (3) and (6) of that Act. As the Crown submitted, one of the powers of the District Court which the High Court may exercise under s 121(6) is the power to amend an information under s 43 of the Summary Proceedings Act 1957 which by s 43(2) includes the power:
… to amend an information by substituting one offence (whether an indictable or a summary offence) for another offence (whether an indictable offence or a summary offence …
[25] In considering the exercise of the various powers under s 121 of the Summary Proceedings Act 1957, the starting point, as required by the Governor- General’s reference, is to consider whether the District Court proceeded without jurisdiction and whether, as a consequence, a miscarriage of justice occurred requiring the conviction to be set aside and the sentence quashed. Was the District Court hearing a nullity, as submitted for Mr Hedges?
Lack of jurisdiction
[26] There is no dispute that the District Court did not have jurisdiction to try, convict and sentence Mr Hedges for the offence under s 188(2) of the Crimes Act
1961 of wounding with reckless disregard for others. The reasons why the District Court did not have jurisdiction are set out in paragraph 4(2)–(6) of the Schedule to the Order in Council dated 21 September 2009. A charge for an offence under s 188(2) of the Crimes Act 1961 has to be, and in 1986 had to be, laid indictably and could be heard only in the High Court. The District Court had no jurisdiction to hear and determine the charge against Mr Hedges in its summary jurisdiction. The Crown accepted that the District Court had no jurisdiction to enter the conviction against Mr Hedges or to impose the sentence of imprisonment on him for that offence.
[27] There was no suggestion that the 1986 appeal to the High Court against conviction and sentence overcame the lack of jurisdiction in the District Court. The
District Court simply had no jurisdiction to proceed as it did. The question now is whether, as a consequence, this Court should set aside the conviction under s 121(2)(b) of the Summary Proceedings Act 1957 and quash the sentence under s 121(3)(b)(i) of the Act, as Mr Muston submitted for Mr Hedges, or should amend the information and the conviction under ss 43, 126(6) and 121(2)(c) and confirm the sentence under 121(3)(a), as submitted by Ms Patterson for the Crown.
The consequences of lack of jurisdiction
[28] A decision of a Court made without jurisdiction is a nullity and will be quashed: Laws of New Zealand.[16] The Court of Appeal has applied this principle in a line of cases involving criminal convictions in the District Court: R v Blows,[17]
R v L[18] and R v O (No 2).[19] The Supreme Court has confirmed the approach of the
Court of Appeal: R v Matenga.[20]
[16] Laws of New Zealand Courts Reissue 1, at [20].
[17] R v Blows CA103/95, 31 August 1995.
[18] R v L CA71/98 22 June 1998.
[19] R v O (No 2) [1999] 1 NZLR 326 (CA).
[20] R v Matenga [2009] 3 NZLR 145 (CA) at [9].
[29] In R v Blows the appellant was convicted after trial by jury in the District Court on two charges of sexual violation, a middle band offence, that had not been transferred to the District Court by order of the High Court under s 168AA of the Summary Proceedings Act 1957. The appellant submitted that the trial was a nullity and the convictions should be quashed. The Crown submitted that the conviction could be saved by application of the proviso to s 385 of the Crimes Act 1961, if the Court considered that no substantial miscarriage of justice had occurred. The Court of Appeal rejected the Crown submissions. Delivering the judgment of the Court, Thorp J said at 6–7:
The criminal jurisdiction of the District Court is necessarily bounded by the provisions of s 28A(1) [of the District Court Courts Act 1947], and it is common ground that the sexual violation charges on which the appellant was tried and convicted do not come within the limits of that section. In the circumstances of this case the sexual violation charges could not come within the jurisdiction of the District Court by any action it could take. Nor could they be brought within its jurisdiction by order of the High Court, as the charges had not been committed to that Court for trial, and the s 168AA powers were accordingly not available to it.
...
The present case in our view illustrates so fundamental a deficiency in the proceedings as to make it inappropriate to apply the proviso so s 385, even recognising the breadth of the discretion vested in this Court. To do so would be to effectively confer jurisdiction on a tribunal which in the particular circumstances could not have determined the case. No case has been cited to us in which the proviso has been applied to give a court jurisdiction to try a charge which it could not lawfully hear and determine.
For those reasons it appeared to us, as was advised at the conclusion of the argument, that the ground of appeal based on nullity must be allowed.
The appellant’s conviction on the two charges of sexual violation and the sentences imposed were quashed. The Court left it for the Crown to decide whether it thought fit to seek a transfer of the proceedings to the High Court.
[30] In R v L the appellant was convicted after a trial by Judge alone on a charge under s 128A of the Insolvency Act 1967 that, being an undischarged bankrupt, he failed without reasonable cause to comply with s 62 of the Insolvency Act 1967 in that he took part in the management of a company without the leave of the Official Assignee or the Court. As the offence was triable only in the High Court, the Crown conceded on appeal that the trial in the District Court was a nullity because that Court had no jurisdiction to try the matter. The Court of Appeal therefore allowed the appeal and quashed the conviction. The Court also made an order remitting the matter back to the District Court for committal to the High Court. The Court left it to the Crown to decide whether in the circumstances it wished to pursue the matter further.
[31] In R v O (No 2) the appellant was convicted after trial by jury in the District Court on one charge of sodomy and two charges of doing and inducing acts, and was sentenced to imprisonment. He was also acquitted on other similar charges. On appeal the Crown accepted and the Court of Appeal held that as the appellant could only have been tried in the High Court on the charge of sodomy the District Court had no jurisdiction to do so. The Crown argued first for a substituted verdict under s 386 of the Crimes Act 1961 or for the application of the proviso to s 385 of that Act. Delivering the judgment of the Court, Tipping J said at 329–330:
As to s 386, the Crown’s submission was that a substituted verdict of guilty of indecent assault on a boy under the age of 16 should be entered in place of the verdict of guilty of sodomy which was a nullity. But if a trial has been a nullity, either generally or in respect of a particular count, it hardly seems appropriate to substitute a verdict for another crime, albeit a crime that would have been within jurisdiction if originally charged. On reflection, Mr O’Donoghue [Crown Counsel] did not pursue this suggestion.
In the light of the conclusion to which we have come on another aspect of the appeal, it is not necessary to come to any final views about the use of the proviso. It is sufficient to say that the reasoning of this Court in R v Blows (Court of Appeal, Wellington, CA 103/95, 31 August 1995) in which a similar issue arose, points strongly against resort to the proviso when a fundamental defect has occurred...
For these reasons, had the proviso point stood alone, we would probably have felt unable to resort to it. That would have meant quashing the count 5 conviction and considering the question of a new trial.
As the Court held that the jury’s guilty verdicts were inconsistent with its not guilty verdicts, the convictions were quashed. The Court did not consider it was appropriate to order a new trial because there had already been two trials and the Crown did not suggest there was any further evidence.
[32] In R v Matenga the Supreme Court considered the scope of the proviso to s 385(1) of the Crimes Act 1961. Delivering the judgment of the Court, Blanchard J said:
[9] The proviso to s 385(1) is appended to all four paragraphs which state when the Court must otherwise allow an appeal. In R v Owen [[2008]
2 NZLR 37], where this Court clarified para (a), we concluded that it cannot possibly apply to that paragraph since the rendering of an unreasonable
verdict must always constitute a substantial miscarriage. The same fundamental discordance would exist if the proviso were to be used in relation to para (d), where the trial was a nullity. That paragraph did notappear in the United Kingdom or Australian equivalents and may have been added in this country only out of caution, as a trial which is a nullity would
certainly also be a miscarriage within para (c) and also a substantial miscarriage. Something that is a nullity, for example, a trial in the wrong court, however properly conducted and fair, is unlawful and cannot be upheld. That has rightly been the view taken by the Court of Appeal [R v Blows (Court of Appeal CA103/95, 31 August 1995) and R v O (No 2) [1999] 1 NZLR 326 (CA) at p 329].
(Emphasis added)
The Supreme Court held that as the proviso to s 385(1) should not have been applied in that case the convictions should be quashed and a new trial ordered.
[33] Following the approach of the Court of Appeal as confirmed by the Supreme Court, it is clear that the lack of jurisdiction in the District Court to hear and determine the charge against Mr Hedges under s 188(2) of the Crimes Act 1961 means that the 1986 trial in his case was a nullity. Lack of jurisdiction of this nature was a fundamental deficiency: R v Blows. The fact that the trial was before a Judge alone makes no difference: R v L. Contrary to the submissions for the Crown, there is no basis for distinguishing the Court of Appeal decisions from Mr Hedges’ case on the ground that s 385 was considered. The proviso to s 385 of the Crimes Act
1961 did not save the convictions: R v Blows and R v O (No 2). A trial without jurisdiction which is a nullity constitutes a substantial miscarriage of justice and, where applicable, is not able to be saved by the proviso: R v Matenga.
[34] The conviction of Mr Hedges on the charge of wounding with reckless disregard under s 188(2) of the Crimes Act 1961 should therefore be set aside under s 121(2)(b) of the Summary Proceedings Act 1957.
Amendment of information?
[35] As already noted, by virtue of s 121(6) of the Summary Proceedings Act
1957 the High Court does have power on appeal to exercise the power of the District Court under s 43 of that Act to amend an information and substitute one offence for another. The Crown has submitted that the Court should do so in this case by substituting the offence of injuring with reckless disregard under s 189(2) of the Crimes Act 1961 as that was an offence over which the District Court had summary jurisdiction at the time.
[36] The wide scope of the power of amendment under s 43 was explained by the
Court of Appeal in Jones v Police:[21]
[21] Jones v Police [1998] 1 NZLR 447 (CA) at 451
The policy behind s 43 is that amendments should be allowed when appropriate and subject to the procedural safeguards contained in the section. Whether to allow an amendment will usually involve striking a balance between the interests of the prosecution and the policy of the section on the one hand, and what, if any, prejudice there may be to the defendant on the other.
Consistent with s 204 of the Act, the purpose of s 43 is that subject to questions of prejudice, variances between the proof and the charge should not result in an outright acquittal, or even a dismissal without prejudice. Not only can an information be amended in the conventional sense under s 43; a wholly different charge may be substituted.
Under s 335 of the Crimes Act 1961, in an environment which is likely to involve more serious offending, the Court of trial, and even this Court on appeal, may amend the indictment or any count in it to make it coincide with the proof. Indeed, if the accused has not been misled or prejudiced, the Court is required to make the necessary amendment.
The same power of amendment applies when the High Court is sitting on appeal from a summary conviction in the District Court. In such a case s 121(2)(c) of the Summary Proceedings Act gives the High Court the power to amend the conviction. It is thus apparent in the summary jurisdiction that even on appeal convictions can be amended. This, of course, is at a much later stage of the proceedings than a point between the time when judgment is reserved and it is delivered. When a conviction already entered can be amended on appeal it would be odd if an information could not be amended when the Judge is considering whether to enter a conviction.
We do not consider that any of these powers of amendment raise a conflict with the New Zealand Bill of Rights Act 1990 in its affirmation of the right to a fair trial and its requirement to inform defendants promptly and in detail of the nature and cause of the charge: ss 25(a) and 24(a). The safeguards built into the legislation, either expressly or implicitly, preclude any suggestion that there has been a breach of the Bill of Rights in making the kind of amendments under discussion. Section 6 of the Bill of Rights does not lead Mr Zindel to his intended destination.
[37] Jones v Police was not, however, concerned with a trial that was a nullity. The Crown was unable to point to any authority where an information had been amended to substitute a charge within jurisdiction when a conviction on the original charge had been set aside on the ground that the Court had no jurisdiction to hear and determine it. On the contrary, the Court of Appeal in R v O (No 2) in the passage already cited made it clear that in its view if a trial has been a nullity, either generally or in respect of a particular count, it hardly seems appropriate to substitute a verdict for another crime, albeit a crime that would have been within jurisdiction if originally charged.
[38] As a matter of principle, when a trial is a nullity because it was held in the wrong court and is consequently, as the Supreme Court pointed out in R v Matenga, unlawful and cannot be upheld, there is no basis for amending an information and substituting a charge for another offence and entering a conviction on that charge. It is not a question of a variance between the proof and the charge in the information,
or count in the indictment, where an amendment may be appropriate. It is simply an unlawful trial that was a nullity at which there was therefore no valid proof.
[39] Accordingly, the Crown’s submission that the information in Mr Hedges’
case should be amended under ss 43 and 121(2)(c) of the Summary Proceedings Act
1957 and a conviction entered on a charge of injuring with reckless disregard under s 189(2) of the Crimes Act 1961 is not accepted.
The appeal against sentence
[40] As Mr Hedges’ conviction on the charge of wounding with reckless disregard under s 188(2) of the Crimes Act 1961 must be set aside, so too must the sentence of imprisonment on that charge be quashed under s 121(3)(b)(i) of the Summary Proceedings Act 1957: R v O (No 2).[22] There is no basis on which the sentence may stand once the conviction is set aside and it is accepted that there is no scope for amending the invalid information.
A new trial?
[22] R v O (No 2) [1999] 1 NZLR 326 (CA) at 334.
[41] As an alternative, the Crown has sought a “stay” of the proceeding to enable a fresh charge to be brought against Mr Hedges on the grounds that the evidence that was the basis of the original conviction has never been questioned and Mr Hedges should not avoid being placed in jeopardy again. No authority was cited by the Crown in support of a stay in a case of this nature.
[42] A new trial is a possibility. In the absence of a conviction or acquittal, no question of previous conviction or previous acquittal arises under ss 357-358 of the Crimes Act 1961 or under s 26(1) of the New Zealand Bill of Rights Act 1990. Nor is there any applicable limitation period which would prevent a new trial on a charge under s 188(2) or s 189(2) of the Crimes Act 1961: cf s 10B of the Crimes Act 1961.
The fact that a sentence has been served does not necessarily prevent a new trial from being ordered: Palmer v R.[23]
[23] Palmer v R CA373/02, 9 December 2002
[43] As already noted, Palmer v R involved a Governor-General’s reference to the Court of Appeal under s 406(a) of the Crimes Act 1961 on the basis of new evidence, not lack of jurisdiction. In that case the reference reached the Court of Appeal within two years of a District Court conviction for assault. Delivering the judgment of the Court, Baragwanath J said:
[22] If the alleged offending stood alone and outside the circumstances of a domestic relationship we would have regarded the circumstance of the appellant’s having served his sentence as a strong pointer against ordering a new trial. But the relationship between the parties cannot be categorised as wholly historical. There is currently pending between them litigation in the Family Court concerning the children of the marriage.
[23] The decision to set aside the conviction is not premised on any acceptance of the appellant’s account but on the fortuity of neither the Crown nor the defence being aware of the existence of the eyewitness. To decline to order a new trial would deprive the Crown Solicitor, and if necessary the Solicitor-General, of the opportunity to determine whether interests of justice require such trial to take place. Their decisions will be made within a wider context and on the basis of greater knowledge of the facts and the parties’ relationships than is available to us. Moreover such decision could have implications for the conduct of the litigation in the Family Court.
[24] In these circumstances it is in our view undesirable that the present proceedings should be concluded by default without an adjudication as to the merits, both because of its potential relevance to the pending decisions in relation to other potential charges and because of the importance such adjudication, either way, may have for the future positions of the parties in the matrimonial proceedings.
[25] We accordingly accept the Crown’s submissions and formally order that there be a new trial.
(Emphasis added)
[44] In R v Blows and R v L the Court of Appeal left it to the Crown to decide whether to pursue a new trial. A new trial was not ordered in R v O (No 2). In R v Matenga, which did not involve a nullity, the Supreme Court ordered a new trial. None of those cases involved a Governor-General’s reference under s 406(a) of the Crimes Act 1961 or circumstances similar to those in Mr Hedges’ case where not
only has the term of imprisonment imposed following the District Court trial and High Court appeal in 1986 been served but also nearly 24 years has elapsed since the trial and the appeal. In these circumstances for the following reasons I do not consider it appropriate to order a new trial in this case.
[45] First, in the absence of good reasons to the contrary, the fact that Mr Hedges served a sentence of imprisonment for the offence of wounding with reckless disregard for the safety of others is a strong reason not to order a new trial: cf R v Kino and Mete[24], Palmer v R and McMahon v R.[25]
[24] R v Kimo and Mete [1997] 3 NZLR 24 (CA) at 29.
[25] McMahon v R [2009] NZCA 472 (CA) at [88].
[46] Second, unlike the situation in Palmer v R where the assault occurred in the context of a domestic relationship where the relationship between the parties could not be categorised as wholly historical and there was currently pending between them litigation in the Family Court concerning the children of the marriage, here the circumstances of the alleged offending by Mr Hedges are wholly historical, having occurred over 24 years ago. There was no suggestion by the Crown in this case of any ongoing relationship of any relevant nature between Mr Hedges and the complainant, Pancho Lopez, or any other relevant circumstances justifying a new trial.
[47] Third, there is no public interest reason for a new trial in relation to the incident, albeit serious, in this case after the elapse of over 24 years. The Crown submitted that Mr Hedges should remain “in jeopardy” because the evidence for the original conviction had never been in question, but the Crown did not suggest that if Mr Lopez and the other witnesses who gave evidence in 1986 were still available and able to give evidence at a new trial, they would not be questioned on their evidence, especially if Mr Hedges was represented by counsel. Nor did the Crown suggest that Mr Hedges would receive a fair trial now if the witnesses from 1986, including Mr Hedges’ father, who gave evidence on his behalf, were no longer available or able to give evidence. In these circumstances the fact that the evidence for the original conviction had not previously been questioned is therefore not in itself a public interest reason for a new trial.
[48] Fourth, in the absence of any good private or public interest reasons why there should be a new trial, the delay now inherent in a new trial after 24 years tells against requiring Mr Hedges, now aged 70, to remain “in jeopardy”, especially when there has been no suggestion that as a self-represented defendant at his 1986 trial he bore any responsibility for the fact that it was a nullity. No explanation has been provided to the Court as to why no steps were taken to rectify the position in this case until there was an application by Mr Hedges to the Governor-General for the exercise of the Royal prerogative of mercy in 2008: paragraph 3 of the Schedule to the Order in Council dated 21 September 2009. In these circumstances there is now every prospect, as counsel for Mr Hedges submitted, that the Court would in any
event stay a further prosecution as an abuse of process: Watson v Clarke,[26]
Fox v Attorney-General,[27] and R v Smith,[28]and Don Mathias “The Duty to Prevent an Abuse of Process by Staying Criminal Proceedings” in Essays on Criminal Law: A Tribute to Professor Gerald Orchard.[29]
Result
[26] Watson v Clarke [1990] 1 NZLR 715 (HC).
[27] Fox v Attorney-General [2002] 3 NZLR 62 (CA) at 71.
[28] R v Smith [2003] 3 NZLR 617 (CA) at 628.
[29] J Bruce Robertston (Ed) Essays on Criminal Law: A Tribute to Professor Gerald Orchard
(Thomson Brookers, Wellington, 2004) at 133-134.
[49] As required by the reference in the Order in Council, I have heard and determined Mr Hedges’ appeal under s 406(a) of the Crimes Act 1961 “as in the case of an appeal” in terms of s 121 of the Summary Proceedings Act 1957 and I have decided that:
a) The 1986 trial of Mr Hedges on the charge of wounding with reckless disregard under s 188(2) of the Crimes Act 1961 was a nullity because the District Court had no jurisdiction to hear and determine the charge.
b)The conviction of Mr Hedges on that charge should therefore be set aside under s 121(2)(b) of the Summary Proceedings Act 1957.
c) The sentence of 18 months imprisonment imposed by the High Court on that charge should also be quashed under s 121(3)(b)(i) of the Summary Proceedings Act 1957.
d)The information should not be amended under ss 43 and 121(2)(c) of the Summary Proceedings Act 1957 and a conviction should not be entered on a charge of injuring with reckless disregard under s 189(2) of the Crimes Act 1961.
e) No new trial should be ordered.
D J White J
0