Jones v Police - [2018] NZHC 1373

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-0020

[2018] NZHC 1373

BETWEEN
TREVOR ALLAN JONES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 June 2018

Appearances:

T D Clee of Appellant

L E Nunweek for Respondent

Judgment:

11 June 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Tudor David Clee, Barrister, Auckland Kayes Fletcher Walker Limited, Auckland

JONES v NEW ZEALAND POLICE [2018] NZHC 1373 [11 June 2018]

[1] Trevor Jones appeals against his conviction of driving under the influence of cannabis. He was found guilty of that charge at a Judge-alone trial in the Pukekohe District Court on 16 January 2018.

[2] He appeals on the basis that he wanted to give evidence at his trial, but was not given the opportunity to do so. He claims his then counsel, Oliver Troon, advised the Court Mr Jones would not be giving evidence contrary to his client’s instructions, and then proceeded to obtain signed written instructions after the fact.

[3]The appeal turns on two core issues:

(a)as a question of fact, did Mr Troon act contrary to or consistent with Mr Jones’ instructions in telling the Court Mr Jones would not give evidence; and

(b)as a question of law, does that error (if it was such) give rise to a real risk that the verdict is unsafe, such that a miscarriage of justice has occurred.

[4]After briefly outlining the legal framework, I address each issue in turn.

Legal framework

—on appeal

[5] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge- alone trial.

[6] Under s 232, I can only allow such an appeal if satisfied the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or “a miscarriage of justice has occurred for any reason”. That provision relevantly provides:

232 First appeal court to determine appeal

…

(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—

…

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(3)The first appeal court must dismiss a first appeal under this subpart in any other case.

(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[7] As s 232(4) makes clear, not every “error or irregularity” creates a miscarriage of justice.1 The error or irregularity must either create a real risk the outcome of the trial was affected – in the words of Tipping J in R v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 1373
Decision Date: 11 June 2018

CaseChat Overview and Summary

Trevor Allan Jones appealed against his conviction for driving under the influence of cannabis, claiming that his counsel, Oliver Troon, had failed to follow his instructions to give evidence at trial. The appeal hinged on two issues: whether Mr Troon had acted contrary to Mr Jones’ instructions, and whether any such error created a real risk of an unsafe verdict. The court assessed the evidence and found that Mr Jones had indeed wanted to give evidence, but had acquiesced in Mr Troon's advice not to do so, and that this did not result in an unfair trial or a nullity. The court further found that even if Mr Jones had given evidence, it would not have created a real risk of an unsafe verdict, as his counsel had already thoroughly cross-examined the police witnesses on the key aspects of their evidence. The appeal was dismissed.

The court's reasoning was based on the legal framework for first appeals from Judge-alone trials, which requires the first appeal court to allow the appeal if satisfied that the District Court Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred. The court considered the evidence and found that Mr Jones' instructions to give evidence were not followed, but that this did not create a real risk of an unsafe verdict. The court also considered the right to a fair trial, which is an absolute right, and found that the error in this case did not warrant the setting aside of the conviction without further inquiry into the potential effect of the error on the trial’s outcome. The court ultimately dismissed the appeal.

Orders