Palu v District Court at Wellington HC Wellington CIV-2005-485-458

[2005] NZHC 1304

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2005-485-458

BETWEENHAINI CHARLES JUBILEE SILVER PALU

Plaintiff

ANDTHE DISTRICT COURT AT WELLINGTON

First Defendant

AND  THE ATTORNEY-GENERAL

Second Defendant

Hearing:         17 March 2005 Appearances: D A Ewen for Plaintiff

A M Powell and S McKenzie for Defendants Judgment:  18 March 2005

In accordance with r 540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 18^th day of March 2005.

RESERVED JUDGMENT OF GENDALL J

[1]        The plaintiff applies seeking judicial review to quash a decision of a District Court Judge, made on 4 February 2005, dismissing an application made on behalf of the plaintiff that he be discharged from two counts in an indictment.

[2]        If the plaintiff succeeds in these judicial review proceedings it seems to me that all that happens is that the decision refusing to discharge the counts against the plaintiff is set aside. But the counts in the indictment remain until such time as they are dealt with by the trial Judge, or he/she deals with an application under s347 of

HAINI PALU V THE DISTRICT COURT AT WELLINGTON And Anor HC WN CIV-2005-485-458 [18

March 2005]

the Crimes Act 1961. If the s345 application is then reheard and determined again (and it may not necessarily be before the same Judge) the outcome may well be the same, depending on the view the Judge takes of the evidence disclosed in the depositions.

Background

[3]        The plaintiff and three other males, Fruean, Hira-Matiu and Siale, were charged that on 13 May 2004 at Wellington they, with intent to injure, injured three complainants. The complainants were Messrs Chambers, Lemon and Smith. The  four alleged offenders were committed for trial. This plaintiff pleaded guilty to a charge of assault with intent to injure Chambers. The accused Fruean pleaded guilty to assault with intent to injure Lemon. Hira-Matiu pleaded guilty to assault with intent to injure Smith. Consequently the Crown applied for leave to file an amended indictment omitting all those accused from the separate indictment alleging intent to injure, as the case may be, Chambers, Lemon and Smith. Leave was granted. So, each of three accused admitted assaults on each of three complainants, but all denied being involved with any of the actions of the other.

[4]        The plaintiff Palu therefore faces two counts namely that jointly with Hira- Matiu and Siale, with intent to injure Lemon he did injure him. Similarly, jointly with Fruean and Siale with intent to injure Smith he did injure him. He has pleaded not guilty to those two counts and he applied under s345(5) of the Crimes Act 1961 that those counts be quashed on the grounds that the charges were not founded on the evidence disclosed in the depositions.

[5]        The Crown case is that Palu got into an altercation with Chambers (the victim in respect of the first count). Palu then returned to a night club from whence he had come and sought the assistance of a number of his friends (probably four), three of whom were Fruean, Hira-Matiu and Siale. The Crown case is that Palu and the three named associates then pursued Chambers who was in the company of Lemon and Smith. They set upon Chambers by assaulting him, knocking him to the ground and kicking him. Chambers was in the company of Lemon and Smith. Given the guilty pleas of Palu to attacking Chambers and Fruean to attacking Lemon and Hira-Matiu

to attacking Smith, it is axiomatic that those three named accused were present at the commencement of the event. The Crown case is, however, that they, together with Siale, all participated in the attack upon Chambers and thereafter they pursued and set upon Lemon and Smith. The Crown’s case is that this was a joint attack by four men upon three others pursuing a common enterprise namely, to pursue and initially assault Chambers which escalated into the attacks on the others. The features of the attacks were similar namely, punching of the victims so they fell to the ground and then kicking them about the head and body.

[6]        Although each of the named accused pleaded guilty to separate charges they and this plaintiff maintain the evidence was not sufficient to found counts in the indictment which related to those attacks to which they had pleaded not guilty. The evidence was not, it is said, sufficient to identify them as participating.

[7]        In his reserved decision Judge Tuohy referred to the submission made by counsel on behalf of Palu at that time namely that there was:

“No evidence linking Mr Palu, as a principal or as party to the assaults on  the complaints (sic complainants) Lemon and Smith.”

[8]        The Judge sets out the provisions of s345(5) highlighting the difference between it and the more commonly used s347 provision where insufficiency of evidence is argued. These differences or distinctions are well known and were referred to by Eichelbaum CJ in R v C (No. 3) (HC NN T6 & 7/90, 13 February 1991). When an application is made under s345(5) the Court is limited to considering material contained in the depositions themselves and the section is framed in imperative terms. A decision under s347 is discretionary and the Court may consider material other than contained in the depositions. Under s345(5) if the count cannot be said to be “founded” on the evidence disclosed in the depositions then the count must be quashed if the Court is “satisfied that it is not so founded”.

[9]The Judge summarised the Crown’s allegations as follows:

“…the accused Palu was involved in an assault of Chambers, the complainant, who is referred to in count one and that as a result of and following upon that assault a group of up to five or six men, including all four accused, assaulted Lemon and Smith. The Crown is unable to say

exactly what part the accused played in the attack on Lemon and Smith in which there is no doubt they were injured but the accused discharged as a party in counts two and three. It is enough that in the Crown’s case that he was a member of the group because the Crown says that all of them either had a common purpose or at least Palu and the others aided and abetted each other.”

[10]      The Judge went on to express the view that there was evidence to support the Crown case against Palu in relation to these two counts. He observed the considerable evidence that Palu assaulted Chambers and had pleaded guilty to  assault with intent to injure. He said that it was clear that Palu was immediately before the events in a group with the other accused who were clearly identified as being among those who turned on Lemon and Smith and that that attack was a combined and simultaneous group attack. The Judge said that there was some evidence which he “put it no higher than that” which indicates that Palu remained a member of the group which attacked the latter two men. The Judge said that the depth of the evidence depended on the tying together of various strands from a number of different witnesses and the drawing of a number of inferences and although saying that the evidence did not appear “particularly strong” he said that it was of the standard required to be reached to successfully withstand an application under s345(5). He said that standard was “lower” than that required to withstand a s347 application.

[11]      In dismissing the application the Judge made the obvious point that this did not of course preclude a further application being made under s347.

Counsel’s submissions

[12]      Counsel for the plaintiff placed considerable weight, and indeed his whole case is based, upon the submission that the Judge was wrong to say that

“the standard required to be reached to successfully withstand an application under s345(5) is lower than that required to withstand that under s347. In  my view, there is some evidence in the depositions against Palu in relation to counts two and three.”

He submits that this was the wrong test.

[13]      The test the Judge adopted was whether there was “some evidence” in the depositions that an  accused  is  guilty  of  the  offence  contained  in  the  counts.  Mr Ewen contends that test is not supported by authority and that the proper test is “the prima facie case test”. I asked him what “prima facie” meant and his  submission was that it meant evidence “sufficient to put the plaintiff on trial”.

[14]      On behalf of the Crown, Mr Powell contended that s345(5) applications are entirely statutory and require a count to be founded on the evidence. They may be contrasted with the s347 “test” derived from judicial decision. But he accepted that there has to be a determination on whether the evidence contained in the depositions is sufficient to found a count. He accepted that the Judge did not appear to direct himself to assess whether the evidence was such that a jury properly instructed could reasonably convict, and accepted that if all that was required “some evidence” then the test applied may have been too broadly expressed. Further, counsel submitted that the Judge was clearly looking at the evidence in the depositions that pointed towards or established guilt, so was considering the qualitative or probative value of the evidence rather than merely confirming its existence. The Crown submitted that on the authorities the approach should not be significantly different.

Discussion

[15]Section 345(5) provides that:

“…the accused may, at any time before he is given in charge of the jury, apply to the Court to quash any Court in the indictment, on the ground that it is not founded on the evidence disclosed in the depositions; and the Court shall quash that count if satisfied that it is not so founded.”

[16]      A s345(5) application, is to be made before an accused is given in charge of a jury. So obviously the criteria must be whether the deposition evidence founds or provides a basis upon which a count in the indictment could tenably be included. “Founded” means have a basis or support from the evidence. To provide a basis for  a count, the deposition evidence has to be “sufficient” to do so. If the time comes (whether before, during a trial, or at the completion of the Crown case) that a s347 application is made the test still is one of sufficiency of evidence. But it is sufficiency of the evidence as it then stands, and if the evidence is sufficient in law,

if accepted to prove the case, then the Judge is required to leave the case to the jury, unless the s347 order is justified on grounds other than insufficiency of evidence; Parris v Attorney-General [2004] 1 NZLR 519 (CA); R v Flyger [2001] 2 NZLR

721 (CA).

[17]      So the “sufficiency” criterion is the same, but in the former case, it relates to sufficiency to provide a foundation or basis for a count; and in the second situation it is sufficiency to enable a jury, if properly directed, to convict.

[18]      The Judge’s decision, when read in its entirety, and his remarks placed in context, make it clear that he was alive to the distinction between ss347 and 345(5). He clearly was concerned with the sufficiency of evidence required to successfully withstand the 345(5) application. That is because apart from observing that there must be some evidence that the plaintiff is guilty of the counts set out in the indictment, he goes into some detail in analysing the evidence which he says (correctly) supports the Crown case.

[19]      Whether the test could be said to be “lower” than that required for a s347 application is not helpful, and indeed the Crown says there should not be any significant difference. But the test is sufficiency of evidence viewed at different times.

[20]      Likewise use of the phrase “prima facie case” or “no case to answer” is not particularly helpful as was observed by Tipping J in R v Parris (supra), when dealing with s347 applications. I think the same observation applies also when dealing with s345 applications.

[21]      Under s345(3) which relates to obtaining the consent of a Judge to file an indictment, the application has as its starting point, whether the evidence at the preliminary hearing was sufficient to put an accused on trial. Counsel generally agreed that there was no effective difference between the approach to be adopted in considering that question and the approach encountered under s347 namely, that on the depositions no jury properly directed could convict (e.g. see Wallace v Abbott (2002) 19 CRNZ 585 at 592).

[22]      But for there to be committal for trial it is always said, and s168 of the Summary Proceedings Act 1957 so provides, that the committing Court must find evidence “sufficient to put the defendant on trial for an indictable offence”. Thereafter it is the prerogative of the Crown to determine what counts for what indictable offences are to be included in the indictment provided there is evidence in the depositions to provide a base (so that the count is “founded”). If the evidence is not sufficient to provide such a base or support the count is not so founded.

[23]      Both ss345 and 347 fulfil a different function, and although they may coincide, the former involves a specific statutory test and the latter a principle developed by the Courts in decisions such as R v Flyger [2001] 2 NZLR 721, Parris v Attorney-General [2004] 1 NZLR 519 and the well known dicta of Lord Lane CJ, in R v Galbraith [1981] 1 WLR 1039, 1042, [1981] 2 All ER 1060 at p1062:

“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown’s evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

[24]      The issue is whether in applying the s345(5) statutory test, the approach should be the same as in s345(3) and s347. Decisions, not cited to the Judge, on the forerunners to s345 include, R v Johnston [1959] NZLR 271 where F B Adams J said, at p272, 273:

“Where an accused person is committed for trial in this Court, the proceedings here rest, not on the charge upon which the accused has been formally committed, but rather upon the evidence disclosed in the depositions….The only question to be considered is whether the bill of indictment that is preferred is, or is not, properly founded on the facts or

evidence disclosed in the depositions…I do not propose to say a word about the facts of this particular case, but shall merely express my opinion, formed after a perusal of the depositions, that the charge in question is sufficiently founded on the facts or evidence so disclosed. The Court is not here concerned with the question whether guilt is conclusively proved by the depositions, or proved to such a degree that conviction ought to follow. It is merely concerned with the question whether, on the facts disclosed in the depositions, there is or is not a sufficient prima facie case to go to a jury. I am satisfied that in this case, whatever may be the ultimate decision of the jury on the question, there is a prima facie case which will leave it open to the jury to consider this charge, and to convict upon it if they think fit. I desire to guard myself against being understood as making any suggestion, either that the jury ought to do so, or that there is no convincing ground for doing so. Those questions are not before me, and are not ones on which I should offer any comment whatever. I merely hold that, on the depositions, there is, in my opinion, a prima facie case such as ought to go to a common jury for decision.”

[25]      “Prima facie” in this context simply means at first sight sufficient to entitle a guilty verdict. The Court of Appeal in R v Carberry [1992] 2 NZLR 184 adopted that approach, although dealing with the issue of the Crown being able to include a count not specifically the subject of the preliminary hearing. But the authorities suggest, as the Crown agrees, that the Court in considering whether under s345(5) a count was founded on evidence given in depositions, should not merely note the existence of evidence, but it should make an assessment of whether the evidence is sufficient to put the applicant to trial on that count. That is because for a count to be “founded” upon depositions, such evidence has to be sufficient for that purpose. As the Judge said, evidence that the accused is guilty must exist. It has to be sufficient evidence, including any reasonable inferences open to be drawn from it, to enable a finding of guilt to reasonably be made.

[26]      In this case the Judge correctly said that there had to be some evidence that the accused was guilty of the counts. He them summarised the Crown’s contention  as to common purpose parties. He then reviewed some of the deposition evidence, in a qualitative sense, in fact assessing its sufficiency. It is his saying that the standard to be applied was “lower” than that required to withstand a s347 challenge that led to the challenge. The fact is that the evidence to which he refers (and I have read all  the deposition evidence) seems to well meet the standard of “sufficiency”, whether for committal, or to found the counts, or resist a s347 application. And, the s347 standard or test as judicially developed could be described as “very low” because it

is only when the Crown evidence taken at its highest is so inadequate that a jury could not convict, that a s347 discharge is justified. If one were to use the terms “lower” or “higher” – which are not appropriate in this context – it is hard to see how any other test could be “lower”.

[27]      I think the Crown is correct in its concession that the approach to be adopted when dealing with a s345(3) application is not to apply a “lower test” than with a s347 application. The test relates to sufficiency of evidence, as then may exist, for different purposes. But, if evidence (and inferences able to be drawn from it) is insufficient to justify a count being left to a jury for its decision, then it could hardly be sufficient to provide a basis or “found” such a count. There has to be sufficiency to put an accused on trial, whether by committal or by consent given under s345(3) (see e.g. Wallace v Abbott (2002) 19 CRNZ 585) in respect of the particular count alleged. If the evidence is not sufficient to found, or justify, such a count being included in the indictment then it has to be quashed. It is not helpful to categorise  the approach as “lesser or higher” tests. I do not accept Mr Ewen’s contention that the evidence has to be “substantial”. But there has to be some evidence, including inferences that might be open to the jury (see e.g. R v Carberry [1992] 2 NZLR 184,

185) to provide a basis for the count and whether a properly directed jury could reasonably convict.

[28]      Although the Judge may well be correct in his conclusion, namely that there was some evidence that the accused was guilty of the counts (and he refers to some of the evidence and inferences which supports the view that the evidence was indeed sufficient) his statement that the standard or test to be applied was lower than that required to withstand a s347 application was, as the Crown concedes, in error. To that extent there was error of law. I am not sure that in the end it would have made any difference at all, given that on my review of all the deposition evidence (and indeed, the reasons given by the Judge), there was sufficient evidence in the depositions to found the particular counts, especially as the “common enterprise” aspect of s66 was relied upon by the Crown.

[29]      So, the question is whether remedy by way of judicial review should be granted in the Court’s discretion given that the likely outcome may not be different.

As I have said any quashing of the decision does not alter the position that the counts remain in the indictment, but of course the plaintiff would be able to re-argue, if he wished, the application under s345(5). Such an application can be argued at any  time before an accused is given in charge to the jury. I think an accused is entitled to have that application heard by a Judge presiding in the Court to which he is committed and it may, in many instances, be before the Judge scheduled to preside over the trial. For my part I would have been satisfied that the evidence is sufficient to found the counts. But it is not proper that I substitute, or impose, my view.

[30]      Whilst in some judicial review cases the Court may substitute its view for that of the inferior tribunal I do not think it is appropriate in a criminal matter such as this for the reviewing Court to substitute its own discretion. As it happens my view as to the outcome is the same as the Judge, applying the proper approach. But it would be wrong for me “remake” a substantive decision in a criminal matter involving the rights of an accused to have a trial Judge or the Court to which he is committed, rule upon the content of the indictment that he is to face in the Court. The decision ought not be one of a Judge on review but left to be determined by the Court which tries the accused. Accordingly, the matter should be reheard before the District Court if the plaintiff seeks to pursue it.

[31]      To make it clear: the consideration of the Judge is not as to whether any particular test is “higher” or “lower” than any other test. The Judge is required only to determine as best he or she can whether the evidence disclosed in the depositions, and any reasonable inferences available from it, is sufficient to found (that is provide support for), the counts in the indictment so that a properly directed jury might reasonably convict.

Conclusion

[32]      Accordingly, the plaintiff succeeds in that the decision dismissing his application is set aside. The direction that the matter be referred for reconsideration is not required as the application remains extant in the District Court or, if not, it can be brought again now or at any time prior to the accused being in the charge of the jury.

[33]Costs are reserved.

…………………………….

J W Gendall J

Solicitors:

Ertel & Co, Wellington for Plaintiff

Crown Law Office, Wellington for Defendants