Helu v District Court at Auckland

[2013] NZHC 2965

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003485 [2013] NZHC 2965

UNDER THE  Judicature Amendment Act 1972

IN THE MATTER OF       an application for Judicial Review

BETWEEN  MELE HELU Applicant

ANDTHE DISTRICT COURT AT AUCKLAND

First Respondent

THE ATTORNEY-GENERAL Second Respondent

Hearing:                   8 November 2013

Appearances:           T J Darby for Applicant

M J Lillico and Z Hamill for Respondents

Judgment:                8 November 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Law, Wellington

S T Fonua, Auckland

Copy to:            T J Darby, Auckland

HELU v THE DISTRICT COURT AT AUCKLAND [2013] NZHC 2965 [8 November 2013]

Introduction

[1]      Mele  Helu  seeks  judicial  review  of  the  decisions  of  two  District  Court Judges.  First, the decision of Judge D J McNaughton aborting Mrs Helu’s trial and discharging the jury;   and second, the subsequent decision of J P Gittos declining Mrs  Helu’s  application  for a discharge under s 347  of the Crimes Act  1961  or granting a permanent stay.

Background

[2]      Mrs Helu faced trial in the District Court at Auckland on nine charges of dishonest use of a document for pecuniary advantage.  It was alleged she had failed to declare all the income earned by herself and her husband to Housing New Zealand (HNZ) and as a consequence obtained a lower rental rate for the property provided to her by HNZ.  It is alleged that the benefit obtained was approximately $95,000.

[3]      The prosecution proceeded to a trial by jury in the District Court on 17

August 2011 before Judge McNaughton.  A memorandum of admitted facts set out Mrs Helu’s employment history during the relevant time period.  The Crown called one witness, Ms Carr, who was an income related rent specialist attached to the investigation team for HNZ.  Ms Carr gave evidence about the income related rent scheme and the requirements of the relevant forms.   She produced the forms completed by Mrs Helu, which failed to disclose her admitted employment history.

[4]      In  cross-examination  it  was  put  to  Ms  Carr  that  Mrs  Helu’s  language difficulties (she being Tongan and English not her first language) may have impeded her understanding of the forms.   Ms Carr gave some evidence to the effect that managers had responsibility to address any perceived language difficulties.   Trial counsel Mr Darby then put a hypothetical question to Ms Carr to the effect that if Mrs Helu were to give evidence that she had told HNZ about her employment would Ms Carr be able to contradict that?  Ms Carr accepted she had not dealt with Mrs Helu and she would not be able to contradict that but said she was sure HNZ’s tenancy managers would have noted that and would have requested Mrs Helu to provide full employer statements for those employers if the information had been given.

[5]      Mrs Helu gave evidence in her defence.  In her evidence she said that she had verbally told a HNZ staff member, Brett about her employment.   Brett was Mr McManus.  She said the HNZ staff told her the income related rent forms were for the renewal of her tenancy agreement.

[6]      Mrs Helu’s evidence that  she had told Mr  McManus of HNZ about  her employment came as a surprise to the prosecutor.  A positive defence of that nature had not been suggested or disclosed prior to trial.  Mrs Helu had not referred to it in the statement she had made to the investigators prior to the prosecution.  Nor had Mr Darby referred to it in his address to the jury opening for the defence in identifying the issues at trial.

[7]      Judge McNaughton was concerned at that development.  In the absence of the jury the Judge raised his concerns with counsel as to how the defence had been conducted and asked the prosecutor to inquire as to whether Mr McManus would be available to be called as a Crown witness, noting that, in his opinion, s 98(3) of the Evidence 2006 provided jurisdiction to call him.

[8]      The  prosecutor’s  inquiries  disclosed  that  while  Mr  McManus  was  still employed by HNZ he was in no position to attend Court.  He had taken ill shortly before the trial and was due to have a serious operation.  It was plain he would not be available as a witness for some weeks.  In those circumstances the Judge aborted the trial and remanded Mrs Helu to call-over for a new trial date to be set.  As the jury by this stage had been sent home for the night the jury were contacted by the Registrar and advised they had been discharged and were not required to attend Court.

[9]      Mrs Helu then sought a discharge under s 347 or, in the alternative, for a stay of the prosecution against her.   That application came before Judge Gittos on 22

December 2011.  On the next day the Judge delivered a brief decision dismissing the application for discharge or stay.

[10]     This application for review was filed on 15 July this year, some 18 months after the decision of Judge Gittos.

The applicant’s case

[11]     Mrs Helu challenges the decisions of the District Court Judges.  Mr Darby submits that:

the decision of Judge McNaughton to abort the trial was based on errors of

law;

the decision of Judge Gittos to dismiss the application for discharge or stay

was based on errors of law;

the decision to abort the trial was based on material mistakes of fact;

the decision to abort the trial was unreasonable;  and

the decision to abort the trial was made as a result of failing to take into account mandatory relevant considerations, namely that the accused had the right to have her trial proceed to conclusion and that a jury was not to be

lightly dispensed with once empanelled, and in charge of the accused.

Discussion

Did Judge McNaughton make an error of law in discharging the jury?

[12]     Mr Darby submitted that it appeared from Judge McNaughton’s ruling that

the Judge aborted the trial in reliance on subs (3)(b) of s 98 of the Evidence Act

2006.  He noted that section does not confer a power to abort a trial.   Further, he submitted that in any event s 98(3)(b) was not satisfied.

[13]     However, it is quite apparent that when [10] to [13] of Judge McNaughton’s minute are read together the Judge addressed both the issue of rebuttal evidence under s 98 of the Evidence Act 2006 and then the issue of whether the trial ought to be aborted. The Judge was satisfied that s 98(3)(b) applied, namely that:

In a criminal proceeding, the Judge may grant permission to the prosecution under subsection (1) if—

...

(b)       the further evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen; or

[14]     At [12] of his ruling the Judge said:

I am perfectly satisfied that this is a matter arising out of the conduct of the defence  case,  the  relevance  of  which  could  not  reasonably  have  been foreseen.   Given the almost total failure of the accused, to disclose her employment details in the documents, the prosecution could hardly be expected to anticipate a suggestion that the information had been conveyed to Housing New Zealand staff orally.   If Mr McManus were available I would simply grant the Crown’s application and the trial would continue. Unfortunately he is not.

From that it is apparent the Judge was satisfied that s 98(3)(b) applied and that the requirement for Mr McManus’ evidence could not reasonably have been foreseen given the discussions between counsel prior to trial, Mrs Helu’s statement, the other information before the prosecution, and the way the defence case had been open to the jury.

[15]     The  Judge  then  went  on  to  address  the  consequences  of  Mr  McManus’

availability. At [13] he stated:

Given my concerns about the way that the accused’s evidence has been led, and the conduct of the defence case generally, that fortifies my conclusion that the only remedy is simply to abort the trial and the accused will be remanded to callover for a new date to be set.

[16]     The short point is that the Judge did not discharge the jury in reliance on s 98(3) as suggested by Mr Darby.  The Judge discharged the jury because, while he would have granted leave to the Crown to call rebuttal evidence, the witness required to give that rebuttal evidence was unavailable and would have been unavailable for some weeks.  In the circumstances the trial before the Judge and current jury could not proceed.

[17]     Mr  Darby  next  submitted  that  Judge  Gittos  was  wrong  to  note  that  no authority had been cited to support the submission the accused was still in charge of the jury because he had in fact referred to s 368 of the Crimes Act.   However, as discussed with Mr Darby, his reference to s 368 is misconceived.   Section 368(1)

applies to situations where the accused is taken by surprise by the production of a surprise and unexpected prosecution witness.   In such a case the Judge can either adjourn the hearing or discharge the jury.  Section 368(2) provides the power to the Court to direct or require the prosecutor to call a witness and again to adjourn the hearing until the witness attends.  If necessary, again the jury can be discharged.  The section has no relevance to the present issues.

[18]     Finally  on  this  point,  Mr  Darby  submitted  that  Judge  McNaughton’s questioning of the prosecution witness gave the appearance of unduly assisting the prosecution.  On my review of the notes of evidence the Judge was doing no more than  clarifying  the  issues  for  the  jury.    He  asked  the  witness  to  review  the information provided by Mrs Helu in the documents.  The Judge’s questions were relatively brief.   While  the  responses  are  long  that  is  because  the  witness  was referring to the documentation.  The questioning was not improper.  In any event it is immaterial to the decision to discharge and ultimately immaterial because the jury was discharged and Mrs Helu faces a new trial before a fresh jury.

[19]     Mr Darby then submitted that, while accepting there was jurisdiction under s 22(3)(a) of the Juries Act 1981 to discharge a jury if “a casualty or emergency makes it, in the Court’s opinion, highly expedient for the ends of justice to do so”, neither of these conditions was fulfilled in Mrs Helu’s case.   He first noted that Judge McNaughton did not expressly refer to s 22 and noted that in Namana v DC at Wellington & Anor Mallon J confirmed the District Court has no inherent power to

discharge.1   I accept that that is of course the correct position, however, that does not

mean that the Judge has to expressly refer to s 22 in making a decision to discharge the jury.  The issue is whether the circumstances prescribed by s 22 are satisfied in the particular case.

[20]     Mr Darby relied on the case of Namana and submitted that the Court should adopt a similar approach in the present case.

[21]     The circumstances of Namana however are quite different to the facts of the present case.  In Namana the Crown had always intended to call a co-offender as an

1      Namana v DC at Wellington & Anor [2012] NZAR 196.

important prosecution witness to prove the Crown case against Mr Namana.  At the outset of the trial the Crown were aware that the witness had breached his bail and had gone on the run.  The Crown sought an arrest warrant from the Judge for the witness.   They did not seek an adjournment of the trial but carried on with the prosecution.   The case  carried  on  into  the second  day when  an  application  for adjournment was made.   The Judge acceded to the Crown request.   Mallon J considered that in aborting the trial the Judge had incorrectly purported to invoke an inherent power.   However she then went on to accept the Judge had jurisdiction under s 22 of the Juries Act 1981 and that, while it might be said the Judge could have viewed the circumstances as a “casualty”, it could not have been said in the circumstances to be highly expedient for the ends of justice to have discharged the jury.  Mallon J was clearly influenced by the fact the Crown had from the outset and before trial intended to call the co-offender and even though it knew he was unavailable before the trial started nevertheless made the decision to commence the trial.

[22]     In my judgment the present case is quite different.  In this case there was no reason for the prosecution to consider Mr McManus would be required as a witness. On the state of the evidence before the Court at the conclusion of the Crown case and in the absence of Mrs Helu’s evidence, the Crown case was established.  The agreed summary of facts confirmed the time periods that Mrs Helu was employed and the income that she earned during those time periods.  The forms that she had signed, which in light of the agreed statement of facts were incorrect were produced to the jury.

[23]     As Mr Lillico submitted there was a further nuance arising from the forms in that in some of the forms Mrs Helu had completed she had disclosed employment. She must therefore have known she was required to do so.  The prosecution case was that she not fully disclosed her employment.  On the basis of that Crown case a jury properly directed could readily have inferred the intent, which Mr Darby submitted was an essential element of the case.  However, when Mrs Helu gave evidence she purported to explain her position by saying that she had told Mr McManus about the employment.  At that stage it was inevitable the Crown would seek leave to call Mr McManus as a prosecution witness in rebuttal.  Until Mrs Helu gave evidence there

was no reason for the prosecution to consider that Mr McManus would be required as a witness.  He was not required to prove the Crown case.  If Mr McManus had been physically available then the trial would have proceeded.  He could have been called  as  a  rebuttal  witness  and  the  matter  concluded.    He  was  not  physically available because of his medical condition and the fact he needed surgery.   In the circumstances, in my view, as in Judge McNaughton’s view, the Court was entitled to conclude this was a situation of a casualty and one that made it highly expedient for the ends of justice to discharge the jury and direct a retrial.

[24]     I am fortified in that view by reference to the authorities discussing the concept of casualty. A limited interpretation is not to be adopted.

[25]     In R v Livingston a full Court of the Court of Appeal discussed this issue.2  At

[27] the Court observed:

[27]      The absence of any power to require the defence to disclose its hand before trial does not mean that the Crown can be successfully ambushed at trial. If no or insufficient advance warning has been given of a particular line of defence, being something which the Crown could not reasonably have anticipated, the Crown will generally be entitled to call evidence in rebuttal and, if necessary, to have the trial adjourned for that purpose. ..

I interpolate here, interestingly, at this point the Court went on to note that the situation was not covered by s 368 of the Crimes Act which looked at the similar problem from the accused’s point of view before going on to state:

Section 367(2) contemplates the Crown calling evidence in rebuttal. [The predecessor of s 98(3), Evidence Act].  It must follow that the Court has a power to adjourn the trial if such be necessary for that purpose: see s 373. If the adjournment is short, no major problem or inconvenience will arise from the jury's point of view. But there may be cases in which the time necessary for the Crown to assemble rebuttal evidence will be longer than can be accommodated by an adjournment. In that situation the question arises whether the Judge can discharge the jury on the application of the Crown so as to allow the Crown time to present rebuttal evidence at the new trial. That point is not addressed even implicitly, in either s 367 or s 368. The only general power to discharge the jury, after the accused has been put in charge, is to be found in s 374, of which subs (1) is the only provision which could be relevant to the situation under discussion.  It provides:

374.           Discharge of jury — (1) Subject to the provisions of this section, the Court may in its discretion, in the case of any

2      R v Livingston [2001] 1 NZLR 167 at [29]; (2000) 18 CRNZ 162 (CA).

emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.

That  section  is  in  material  times  the  same  as  s 22  of  the  Juries  Act  under consideration in this case.

[26]     The Court then went on to discuss the term “casualty” noting at [28]:

The learned authors of Adams on Criminal Law (looseleaf ed, 1992) state in their notes to s 374 that the term ``casualty'' appears to mean no more than a “chance  event'”.  The  word  ``casualty''  is  an  unusual  one  in  the  present context. It must be seen as adding materially to the concept of an emergency.

The Court then went on to refer to the previous decision of the Court of Appeal in

R v Tatana3 and noting that:4

‘Casualty’, however, is defined in the New Shorter Oxford Dictionary as being `a chance occurrence, an accident, a mishap, a disaster'. The circumstances in which it may be desirable in the interests of justice to discharge a jury under s 374 are multifarious and possibly indefinable. We do not see any need to adopt a strained or limited interpretation of

`casualty'.”

[27]     The Court noted to similar effect decisions in R v Thompson and Henare.5

The Court concluded on this point:6

... An accused who raises without notice an unforeseeable defence in the blood  or  breath-alcohol  field,  knowing  that  technical  evidence  will  be required to meet it, can hardly complain if the jury has to be discharged to allow the Crown to call appropriate evidence to rebut that defence. It will not usually be in the overall interests of justice to allow a defence to succeed by ambush rather than intrinsic merit.

[28]     Although the Livingstone case was directed at technical evidence in the drug or breath alcohol field the principles espoused by the full Court of the Court of Appeal apply equally to the present case.

[29]     As I have noted, if Mr McManus had been available leave inevitably would have been granted to the Crown to call his evidence as rebuttal evidence.  As he was

3      R v Tatana (1994) 11 CRNZ 708.

4      R v Livingstone, above n 1 at [29] citing R v Tatana.

5      R v Thompson CA 182/85, 13 December 1985; and R v Henare CA187/00, 26 July 2000.

6      R v Livingstone, at [30]

not available then it was in the overall interests of justice to abort the trial, discharge the jury and proceed to a further trial.

[30]     Finally on this point  I note that the discussion of ‘casualty” and related concepts in Tatana has been accepted and approved by the Supreme Court in Buddle v R.7   For those reasons I accept that the Judge had jurisdiction and the authority to discharge the jury in this case.

Did the Judge make a mistake of fact?

[31]     Mr Darby then submitted that Judge McNaughton had nevertheless made a mistake by concluding the defence was not being conducted sufficiently well.  It is apparent from the record that the Judge was concerned at the conduct of the defence. While that was a factor the Judge referred to it is apparent from his ruling that it was not a factor he relied on in discharging the jury other than to note that because of the way  the  defence  case  had  been  conducted  it  would  be  not  possible  for  the prosecution to have anticipated that Mr McManus would be required as a witness.

Was the decision unreasonable?

[32]     Mr Darby then submitted that the decision to abort the trial was unreasonable because it appeared the Judge was reluctant to proceed with the trial during the course of it.   He submitted that once the trial commenced Judge McNaughton’s questioning had the appearance of unduly assisting the prosecution and suggested that supported the argument of unreasonableness.  The concept of unreasonableness in  a  judicial  review  sense  was  discussed  by Tipping  J  in  Nicholls  v  Health  &

Disability Commissioner.8   In that case Tipping J held:9

... the word “unreasonable”, even if prefaced by the word “Wednesbury”, is hardly satisfactory to  describe  the  underlying  concept. The  test  is  often expressed as being a decision so unreasonable that no reasonable decision maker, properly directing themself in law and appraised of all relevant circumstances, could have made. That more accurately captures the concept, although again the double use of the concept of reasonableness and unreasonableness is still apt to mislead a little.

7      Buddle v R [2010] 1 NZLR 717 at [34].

8      Nicholls v Health & Disability Commissioner [1997] NZAR 351.

9      At 369.

[33]     In the present case the Judge’s decision to abort the trial in the circumstances he was faced with cannot be criticised, and even less cannot be suggested to be irrational so that no reasonable Judge could have arrived at it.  Whatever the Judge’s attitude or approach to the trial may have been he convened the trial and the trial was running until the circumstances arose, partly in consequence of the way the defence case was presented, which led to him ultimately discharging the jury because the rebuttal witness Mr McManus was not available.

Did the Judge fail to take into account mandatory relevant considerations?

[34]     Mr Darby then submitted generally that the Judge failed to take into account that Ms Helu had a right to have her trial proceed to conclusion unless there was some overwhelming reason to discontinue it.   Once a jury has been empanelled it occupied a very important position.   It was not to be lightly dispensed with.   In principle I accept the general thrust of those submissions and that Mrs Helu had a right to have her trial proceed.   However, the general principle is subject to the overriding discretion available to the trial Judge contained in s 22 of the Juries Act.

[35]     Finally, Mr Darby criticised the way the jury was discharged in this case.  He suggested that there may be perhaps a difference between the Judge aborting the trial and discharging the jury.   It appears that after the Judge had made the decision to abort the trial and bring it to an end, and therefore of course discharge the jury, that decision was implemented by the Registrar ringing around the jurors, (who by then had been sent home for the night), to tell them they were discharged and were not required the next day.

[36]     While it would have been preferable for the Judge to have adopted the usual course (even as a matter of courtesy to the jurors) to have resumed with them the next morning and to have advised them at that time that they were discharged (with perhaps some brief explanation or thanks as is usual), nothing turns on this point. The  important  point  is  that  once  the  trial  commenced  it  was  for  the  Judge  to determine whether the jury should be discharged or not.  The Registrar had no role to play in making the decision to discharge the jury.  It is clear from the record that the Judge made the decision to abort the trial.  The jury has no independent life of its

own without the trial that it is empanelled to hear.  Equally a trial, once the accused is put in charge of the jury, has no life without the jury.   The Judge in his ruling directed the trial to be aborted and to be at an end.  The effect of that was that he directed the jurors be discharged and as noted the Registrar simply gave effect to the Judge’s decision.

[37]     For completeness I note the review is also directed at Judge Gittos’ decision. Given the above discussion Judge Gittos was quite correct to decline the application for  stay  or  discharge  under  s 347.     The  attempt  to  review  that  decision  is misconceived.

[38]     The final matter is a point made by Mr Lillico in relation to delay.  Mr Darby sought to explain the 18 month delay in bringing this application for review by noting that it was at a call-over for the second trial that Judge Hubble suggested the matter should go to judicial review.  Two points arise – first it is not for counsel to rely on Judges to give advice as to appropriate courses of action, and second, to the extent the review was prompted by Judicial suggestion, I note that on a much earlier date Judge Gittos in his decision in December 2011 had referred to the possibility of judicial review.   If there had been any merit in the application for judicial review, then the fact of the delay in bringing the application would have weighed heavily against any relief in any event.   However, for the reasons given above there is no merit in this application for judicial review and it is dismissed.

Costs

[39]     Mr Darby has indicated an application for legal aid has been made.   Mr Darby  is  to  advise  the  Court  and  Mr  Lillico  in  writing  the  outcome  of  that application  and,  depending  on  the  outcome  of  that  application,  if  the  second

respondent seeks costs I will deal with the matter by way of memoranda.

Venning J