Lose v Police HC Auckland CRI-2010-404-000500
[2011] NZHC 1304
•4 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-000500
RICHARD LESLIE LOSE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 4 July 2011
Counsel: Z Dalbeth for the Appellant
K Wendt for the Respondent
Judgment: 4 July 2011
JUDGMENT OF WOOLFORD J
Solicitors:
C Reid, Solicitor, 1/1 Ruskin Street, Parnell, Auckland 1052. Crown Solicitor, DX CP24063, Auckland 1140
LOSE V NEW ZEALAND POLICE HC AK CRI-2010-404-000500 4 July 2011
[1] Mr Lose appeals against conviction for driving a motor vehicle on a road while the proportion of alcohol in his breath exceeded the legally permissible limit, he having been convicted at least twice previously of similar offences. Following conviction, he was sentenced to 50 hours community work and 12 months disqualification from holding a licence.
[2] The sole ground of his appeal is that he was not informed of his right to a jury trial before the charge was gone into in breach of s 66 Summary Proceedings Act.
Factual background
[3] Mr Lose first appeared in answer to the charge in the Auckland District Court on 27 January 2010. On that date he was remanded at large to 8 February 2010 to instruct counsel. When he appeared again on 8 February 2010, the Court record does not reveal whether he was represented by counsel. A not guilty plea was, however, recorded and the appellant was remanded on bail to 22 March 2010 for a status hearing. When he appeared at the status hearing on 22 March 2010, the appellant was represented by Mr Reid. The Court record shows that the not guilty plea was confirmed and the case was adjourned for a one-hour defended hearing on 23 June
2010.
[4] The case was heard on 23 June 2010. Judge Field noted on the Court record that the information had been “proved as to EBA” and the appellant was remanded on bail for sentence to 6 September 2010 at 11.45 am. The Judge ordered a pre- sentence report but he also noted on the Court record – “election given?” and “proof of previous?”
[5] The appellant was eventually sentenced on 15 December 2010. In his sentencing remarks Judge Field stated that towards the end of the hearing on 23 June
2010 he first noticed that an election of trial in the summary jurisdiction had not been recorded.
[9] The issue now really seems to be whether or not the defendant was advised of his right to elect trial by jury. His recollection is that he was not at the time that he first appeared. He was, however, represented by counsel from 22 March onwards and at least from that time, had the opportunity of electing trial by jury, no doubt having discussed the situation with counsel.
[10] In the absence of evidence to the contrary, I accept the defendant’s recollection that he was not, at the time he first appeared, advised of his rights and had he remained unrepresented, that seems to me that would give cause for some concern. However he has been represented by counsel from then up until the date of the hearing and was free at any time to make that election. He has not, and in my view that now leaves a situation where he is bound by, what appears to have been the choice, to elect a trial in the summary jurisdiction.
[11] For these reasons then I find that it is too late to review that option and the matter will proceed on the basis that the charge has been properly proven and that he is liable now to the penalties prescribed for a third or subsequent offence. That is the ruling.
Appellant’s submissions
[7] The appellant has sworn an affidavit to the effect that Judge Field’s assumption that he had discussed the issue of a jury trial with his counsel was incorrect and that to the best of his recollection he was never advised by the Court, his counsel, or by anyone else, that he had the right to elect trial by jury. He therefore never had any opportunity to elect trial by jury in relation to the charge of which he was convicted.
[8] I have also received this morning a further affidavit from the appellant’s counsel, Mr Reid. He deposes that he appeared as counsel for the first time at the status hearing on 22 March 2010 and in accordance with the appellant’s instructions maintained his plea of not guilty which had previously been entered. He states that as consequence of the not guilty plea having been entered prior to him having been instructed, he did not advise the appellant of his right to a jury trial and states that the issue was not discussed at all. Mr Reid further refers to the issue at trial which was whether the appellant had been dissuaded by the enforcement officer from electing a blood test. That issue, he says, was clearly an issue of credibility. He also advises that the notes of evidence are incomplete and incorrect in as much as the defence cross-examination of the enforcement officer has been completely omitted from the
transcript provided to the parties. Finally, he states that although Judge Field found the information “proved as to EBA”, His Honour gave no reasons.
[9] The appellant refers to the case of Abraham v District Court at Auckland[1] where the Court of Appeal held that non-compliance with s 66 Summary Proceedings Act 1957 did not automatically invalidate the subsequent steps in the proceedings. Rather, the matter fell to be decided under s 204 Summary Proceedings Act 1957 which required the Court to consider whether there had been a miscarriage of justice as a result of the breach.
[1] Abraham v District Court at Auckland [2008] 2 NZLR 352 (CA) at [49].
[10] In Abraham, the issue was whether the District Court should have allowed the defendant to withdraw his guilty plea. The Court of Appeal held that the defendant’s lack of knowledge of his right to trial by jury may have influenced his decision to plead guilty. Because the right to a jury trial was such a significant right the decision to enter a guilty plea without knowledge of the right was sufficient to constitute a miscarriage of justice.
[11] In the present case the appellant submits that he has at all times maintained his not guilty plea. It would be highly anomalous if the appellant was held to be in a less advantageous position than someone who had pleaded guilty such as Mr Abraham. It should be concluded therefore that the appellant had indeed suffered a miscarriage of justice. The appellant submits that the appeal should be allowed and the case remitted to the District Court with a direction that the appellant be granted the opportunity to elect a trial by jury.
Respondent’s submissions
[12] After referring to the case of Abraham, the Crown notes the case of Fordham v Police.[2] The Crown submits that the assistance rendered by this case is limited to its affirmation of Abraham. It submits that Fordham does not establish that the Court’s failure to inform an accused of his right of election is fatal as suggested by the learned authors of Brookers Law of Transportation. The Crown submits that the
facts in Fordham are somewhat different from the present case and it is also apparent
from the decision that the issue of the election was not raised in written submissions prior to the appeal hearing.
[2] Fordham v Police HC Auckland CRI-2009-404-1512, 14 July 2009.
[13] The Crown acknowledges that, in the absence of evidence to the contrary, the District Court does not appear to have informed the appellant of his right of election. Whether a Court’s failure to inform an accused of his right to elect trial by jury is a miscarriage of justice depends on the circumstances of a particular case. The appellant has provided no reasons, apart from the election failure, as to why he submits that a miscarriage of justice resulted.
[14] In this case the appellant pleaded not guilty and proceeded to a summary defended hearing. As such, the Crown submits it is appropriate to focus on the circumstances of the plea for the purposes of evaluating whether, in the circumstances of the case, there has been a miscarriage of justice.
[15] In its written submissions, the Crown submits that there has not been a miscarriage because an election would not have impacted on his plea and the appellant has not pointed to any defence. As such, even if he had elected trial by jury, the Crown submits that the outcome was likely to have been the same. The Crown also points to the fact that the appellant was represented and the lack of evidence as to the circumstances of the plea. The Crown submits that it would have been appropriate for the appellant to have waived privilege and provided evidence from his counsel at the trial and prior counsel as to the advice that was provided to him.
[16] The Crown submits that there has been no miscarriage of justice because the appellant pleaded not guilty and defended the charge against him. There is no suggestion that information regarding his right to elect a jury trial would have affected his plea. The appellant has no apparent defence and has provided no reasons as to why the outcome could have been different had he elected trial by jury.
Discussion
[17] The written Crown submissions were, however, prepared prior to the receipt of Mr Reid’s affidavit and it seems that there was a defence available at trial. The
appellant relies upon the decision of Hogan v Police[3] where Randerson J allowed an appeal against conviction for driving with excess breath alcohol. The basis for allowing the appeal was that there was a causative link between the words and the conduct of the enforcement officer and the particular evidence relied upon.
[3] Hogan v Police HC Auckland A41/00, 18 April 2000, Randerson J.
[18] Furthermore, Mr Reid’s affidavit discloses that there was no discussion between him and the appellant about the right to a jury trial. This confirms the appellant’s own affidavit.
[19] The essential issue in this case is whether the failure to put the election to Mr Lose has resulted, or is capable of having resulted, in a miscarriage of justice. While the Court of Appeal has asserted that such an inquiry requires an examination of all the circumstances of the case against the language of the statute, Stoves v
Police[4] is another case where primacy was given to the right of election.
[4] Stoves v New Zealand Police HC Christchurch CRI 2003-409-000067 (28 October 2003).
John Hansen J stated:
[17] Mr Poore argues on behalf of the Crown that on 1 May the Appellant had the opportunity to correct the Judge when he recorded “elects summary jurisdiction”. This, he submits, satisfies the requirement of s66. Section
66(2) is couched in mandatory terms. It states that “the Court shall, before the charge is gone into” inform the defendant of [h]is rights in the terminology used in the section or words to similar effect. In this case I can find no record of this occurring.
[18] The difficulty I have in this case is when asked directly the Appellant would not even say whether or not he would elect trial by jury at any rehearing.
[19] I am also conscious of the busy nature of list and status hearing courts in the District Court. It may also be that there is not a complete record of what occurred in the courts contained in the transcript. However, this Court can only deal with the matter on the basis of the material before it. On that material I am satisfied that one of the most fundamental rights in our criminal law, the right to elect trial by jury for offences carrying a penalty of more than three months imprisonment, was not given to the Appellant in the terms of, and as required by, s66 of the Summary Proceedings Act.
[20] It follows that an appeal must be allowed and a rehearing ordered. [21] I would make the further comment that it is vital, despite the busy
nature of list and status hearing courts that elections are clearly put in terms of s66 and the election of an accused person recorded.
[20] In the present case, although there is no suggestion that the appellant would have changed his plea if he knew of his right to an election as in Abraham, there is in my view no real distinction in principle to Mr Abraham who would not have pleaded guilty had he known of his right to an election. Those who choose to maintain not guilty pleas should not, in my view, be disadvantaged compared to those who may have pleaded guilty.
[21] The likelihood of success or otherwise seems to have had little weight in Abraham, Fordham or Stoves. There are, undoubtedly, difficulties in trying to make an assessment of the likelihood of success at trial. A more principled approach stresses the fundamental currency of the right to trial by jury, even in cases where the likelihood of success is assessed as minimal.
[22] As noted above, in its written submissions the Crown submitted that the privilege should be waived so as to allow the Crown to know what advice passed between counsel and the appellant. Mr Reid’s affidavit received this morning confirms that there was no such advice passing between him and the appellant.
[23] Regardless of what may or may not have been passed between counsel and the appellant, however, the failure was on the part of the District Court and not counsel. Although the result of a jury trial may not have been any different to the summary trial, I am of the view that the right to a jury trial is fundamental and unless there is good reason for approaching the matter in some other way, an appeal should normally be allowed in circumstances such as these whereby that right has been clearly denied to the appellant.
[24] In all the circumstances, the appeal is allowed and the matter is remitted to the District Court for the appellant to be afforded his right to an election of trial by
jury.
Woolford J
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