Parker v Police

[2012] NZHC 1231

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-449 [2012] NZHC 1231

SHANNON LAING PARKER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 May 2012

Appearances: G Newell for the appellant

A Longdill and S Beswick for the respondent

Judgment:      1 June 2012

JUDGMENT OF CLIFFORD J

Introduction

[1]      On 7 February 2011 the appellant, Shannon Laing Parker, was arrested and charged with burglary.   Ms Parker pleaded not guilty.   Her trial took place in the summary jurisdiction before District Court Judge McNaughton at North Shore District Court on 8 and 10 August and 16 September 2011.   On 20 October 2011

Judge McNaughton delivered a reserved decision convicting Ms Parker on the single charge of burglary.   On 8 December 2011 Ms Parker was sentenced to a term of imprisonment of two years.

[2]      Ms Parker now appeals her conviction and sentence.

PARKER v POLICE HC AK CRI-2011-404-449 [1 June 2012]

Facts

[3]      On the evening of 6 February 2011 security guards working in the Omaha area located a male, Mr Julian Lemmon, hiding in bushes outside 14 The Southern Isle.  As I understand it, Mr Lemmon acknowledged to the security guards that he was there to act as a lookout whilst another person, Ms Parker, burgled the property. Ms Parker was arrested at approximately 4.35am the next morning.   At her trial, Mr Lemmon was a principal witness.   Evidence was also given by some 14 other witnesses.  In essence, the Judge accepted Mr Lemmon’s evidence and did not accept that of Ms Parker or a person she called in her defence, Ms Dyson.

[4]      Something of the view the Judge took of Ms Parker can be taken from his sentencing  notes.     Having  noted  that  she  continued  to  blame  “the  witless Mr Lemmon” he went on to comment:[1]

As I said in that decision, the detailed and elaborate construction of your totally perjured defence was nothing short of brilliant.  I have no doubt that you  were  the  architect  of  that  defence,  and  you  co-opted  your  witness Ms Dyson  also  to  commit  perjury  to  support  that  defence.[2]    You  are obviously very intelligent, determined and thoroughly devious and, in my assessment, quite a dangerous person.

[1] Police v Parker DC North Shore CRI-2011-044-000724, 8 December 2011 at [1].

[2] Although the position was not absolutely clear, I understand that Ms Parker may at one point have faced a charge of perverting the course of justice relating to events in 2009 when she

pleaded guilty to burgling a property in connection with a dispute she had with a Sergeant

Haughey.  It is simply not possible or helpful – given the very limited information provided to me, to consider or speculate further on the significance of those matters.  Clearly they are an issue  for  Ms  Parker  and,  moreover,  the  way  Mr Utting  handled  the  cross-examination of Sergeant Haughey is also an issue for her. As I said, however, I put those matters to one side as I am not in a position to do anything else.

[5]      Ms Parker appeals against her conviction on the basis that, given that the burglary charge she faced attracts a maximum penalty of 10 years’ imprisonment, she was not offered to elect trial by jury as required by s 66(1) of the Summary Proceedings Act 1957.  Section 66(1) provides as follows:

Any person charged under this Part of this Act with an offence which is punishable by imprisonment for a term exceeding 3 months shall be entitled, before the charge is gone into but not afterwards, to elect to be tried by a jury.   Before the defendant is called upon to make his election under this subsection, the substance of the charge shall be stated to him.

[6]      Subject to s 66(7), ss 66(2) requires the Court to inform a defendant of the right to trial by jury:

Except in any case in which subsection (7) of this section or section 66A(1) applies, the Court shall, before the charge is gone into in respect of an offence  to  which this  section applies,  inform the  defendant of  the  right conferred on him by subsection (1) of this section by causing him to be addressed to the following effect:

“This case is one where you have a choice of being tried here in this Court or of being tried by a Judge and jury ... Do you wish to be tried by a jury or by this Court?”

[7]      Section 66(7) allows a barrister or solicitor to make the election on behalf of a defendant for whom that barrister or solicitor appears:

Any barrister or solicitor who appears for the defendant may (whether or not the defendant is personally present) inform the Court on his behalf that the defendant does not elect to be tried by a jury, or may (where the defendant is personally present) inform the Court on his behalf that the defendant does elect to be so tried, and thereupon the Court may proceed as if the defendant had personally made the election.

[8]      An election under s 66(7) must, obviously, be preceded by instructions from the defendant concerned as to whether they elect the summary or jury trial jurisdiction.

[9]      Section 66(1) reflects s 24(e) of the New Zealand Bill of Rights Act 1990:

24       Rights of persons charged

Everyone who is charged with an offence─

...

(e)       Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months.

[10]     It is acknowledged by the Police that Ms Parker was not afforded her right to elect  trial  by  jury  under  s 66(1)  of  the  Summary  Proceedings Act  1957.    The background to that acknowledgement is as follows:

(a)      Ordinarily the election under s 66(2) or (7) would be made at the time

a plea of not guilty is entered.   In the appellant’s case a plea of not

guilty was entered on 7 February 2011.  However, the Court file does not record any election – at that or any other time.

(b)Ms Parker provided an affidavit, and was cross-examined.   In her affidavit, and in cross-examination, Ms Parker was adamant that she had not, as the Court record shows, ever herself elected trial by jury or instructed her counsel to make such an election.   She said she was unaware of the right, and assumed that the Police decided who was to be tried before a jury.  Ms Parker, moreover, denied that the question of a possible  jury trial  had  ever been  discussed  between  her  and Mr Utting until, during the trial, Mr Utting told her that the Judge had thought it might have been a good idea if she had elected trial by jury.

(c)      Affidavits have been provided both by Ms Abernethy, a duty solicitor who appeared on Ms Parker’s behalf when she entered her guilty plea, and Mr Utting who represented Ms Parker at her defended hearing. Mr Utting was assigned as counsel for Ms Parker just prior to her status  hearing  on  24  March  2011.    Mr Utting  also  provided  an affidavit and was cross-examined at the hearing of this appeal.

(d)In  her  affidavit,  Ms Abernethy  records  that  she  has  little  actual memory of her dealings with Ms Parker.  However, her usual practice is to seek a remand without plea, but she will enter a plea where a person insists on pleading not guilty.  She never enters an election as to trial jurisdiction when acting as a duty lawyer.  She confirms that she did not elect summary jurisdiction for Ms Parker.

(e)      In his affidavit, and in his evidence, Mr Utting confirms that when he was representing Ms Parker she was neither offered her election nor did he, on her behalf, make an election.  By the time Mr Utting was assigned, at Ms Parker’s request, to act for her, her case had already been allocated to the summary jurisdiction.   He proceeded on that basis.  Mr Utting said, however, that the possibility of a jury trial had been briefly discussed  by him  and Ms Parker  during one pre-trial meeting.  I return to that evidence, and its significance, below.

Analysis

[11]     There can be little doubt of the importance and significance of the right of an accused person to elect trial by jury.   That has been confirmed by the Courts on many occasions.  In Stoves v New Zealand Police the right was, for example, referred to by John Hansen J as “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”.[3]

[3] Stoves v New Zealand Police HC Christchurch CRI-2003-409-067, 28 October 2003 at [19].

[12]     The effect of a failure to advise a defendant of the right to elect trial by jury was considered by the Court of Appeal in Abraham v District Court at Auckland. The Court commented:[4]

[4] Abraham v District Court at Auckland [2007] NZCA 598, [2008] 2 NZLR 352 (CA) at [52]- [54].

However, s 66 does not impose an absolute obligation on the Court to advise of the right to elect.   This is clear from the fact that s 66(1) is subject to s 66(7).  Section 66(7) allows a defendant’s lawyer to advise the Court of the defendant’s election, in the defendant’s absence (or presence) if the election is for summary trial, but only in the defendant’s presence if the election is for trial by jury.  Presumably, this is based on an assumption that the lawyer will have  discussed the  options  with  the  defendant  and obtained  instructions beforehand.  The fact that the defendant’s lawyer may inform the Court of the election on the defendant’s behalf suggests that, as far as Parliament was concerned, what is important is that the defendant understands the available options.  Whether the defendant acquires that knowledge through the Court or through counsel is incidental.

Further, the obligation under s 66(2) is to advise “before the charge is gone into”.  This allows some flexibility in the sense that the required advice can be given at any time before the trial commences or a guilty plea is entered, rather than at some set point in the process.

We consider that these two features of s 66 provide some support for the view  that  a  Court’s  failure  to  inform in  breach  of  s 66(2)  is  not  to  be regarded as resulting in a nullity but is to be dealt with by means of the miscarriage proviso ...

[13]     Abraham has therefore been cited as authority that a failure on the part of the Court to advise of the right to elect does not render the subsequent proceeding a nullity.  I do note, with respect to that authority, that the Court expressed the view that the two features of s 66 it had identified “provided some support” for that view.

Moreover, in Abraham the Court was dealing with a failure to advise, in the context

of a guilty plea, not – as here – a failure to elect in the context of a defended hearing. It is not clear to me that Abraham is, therefore, authority for the proposition that where there has been a failure to offer the right of election where a not guilty plea is entered, a subsequent trial is not a nullity.  In my view, the significance of the right may be greater where a person maintains their innocence and wants to go to trial than where they accept their guilt and proceed on that basis.  That point was not, however, argued before me and I take it no further.   But, even if the Abraham authority does not go that far, I do not think that is the end of the matter here.

[14]     In Abraham, the issue was whether the District Court should have permitted the  defendant  to  vacate  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.

[15]     In Lose v New Zealand Police, Woolford J held that there is no distinction in principle between a defendant who pleads guilty without knowing of his or her right to elect trial by jury and a defendant who maintains his not guilty plea in the same circumstances.[5]   Further, the Court held that a defendant’s prospects of success, had the matter proceeded to a jury trial, carry little weight when determining whether a miscarriage of justice has occurred, commenting:[6]

[5] Lose v New Zealand Police HC Auckland CRI-2010-404-500, 4 July 2011 at [20].

[6] At [21] and [23].

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.

...

... 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.

[16]     A similar view of the importance of the election, and in turn of the right to trial by jury, was taken in Byrt v Police.[7]   There the Court allowed an appeal against conviction on a charge of wilfully committing an indecent act in a public place on the basis that the defendant had not been informed of his right to trial by jury.  As in Lose, the evidence was clear that the defendant was unaware of that right.

[7] Byrt v Police [2012] NZHC 340.

[17]     Here the factual position is somewhat different.  As noted Ms Parker in her affidavit says, and maintained under cross-examination, that not only was she never offered her election by the Court, but also that she had no idea of her right to trial by jury.  In their affidavits Ms Abernethy and Mr Utting confirm that the Court never offered her her election, and nor did they exercise it on her behalf.  However, in his affidavit Mr Utting stated that he recalled discussing with Ms Parker at one meeting with her the fact that she had the option to trial by jury.   Ms Parker denied that. Under cross-examination, Mr Utting confirmed that any discussion of the right to trial by jury had been brief and informal.  He had not actually given Ms Parker any legal advice as regards the significance of the right or her entitlement to exercise it. Rather, as best as he could recall – and I have to observe that his recollection was not impressive – he most likely mentioned the option in passing, and in the context that he could not act for her were she to have a jury trial (he does not have the relevant Legal Aid recognition) and that a jury trial would delay the resolution of the case against her.

[18]     Taking  Mr Utting’s  evidence  at  its  best,  I  am  not  persuaded  that  the conversation he refers to can be regarded as being sufficient to prevent there being a miscarriage of justice.  In Abraham, the Court of Appeal observed, referring to the fact that s 66(7) allows a defendant’s lawyer to advise the Court of the defendant’s election and to do so in the defendant’s absence if the election is for summary trial:[8]

Presumably, this is based on an assumption that the lawyer will have discussed the options with the defendant and obtained instructions beforehand.  The fact that the defendant’s lawyer may inform the Court of the election on the defendant’s behalf suggests that, as far as Parliament was concerned, what is important is that the defendant understands the available options.  Whether the defendant acquires that knowledge through the Court or through counsel is incidental.

[8] At [52].

[19]     What the Court recognised as important is that the defendant understands the available options so as to be able to exercise their election through their lawyer. Where the election is offered in Court, and exercised by the accused in Court or – in their absence – by their lawyer, that formal process will generally establish the requirements of s 24(e) of the New Zealand Bill of Rights.   Where such formal procedures have been followed it is unlikely, although not perhaps impossible, that a miscarriage of justice would arise because of “election” issues.   Here the required formal statutory procedures were not followed.  At best the evidence here suggests that the possibility of a jury trial was discussed in passing but without advice being given, instructions taken or – I note – the election having been exercised at all.  This is not, in my view, sufficient to prevent the type of miscarrige of justice that the Courts in Abraham, and more recently Lose and Byrt, have recognised as occuring when the formal procedures are not followed.

[20]     Furthermore, and as Mr Utting acknowledged, by the time he was instructed the dye had, in effect, been cast:  Ms Parker was proceeding to a defended summary hearing.  Mr Utting was acting for her.  Mr Utting could not, in fact, have acted for her at a jury trial.  He confirmed, in fact, that he had never elected trial by jury on behalf of a defendant he represented.

[21]     I  accept,  on  the  basis  of  the  Judge’s  assessment,  that  the  prospects  for Ms Parker  on  an  appeal  may  not  be  strong.    That,  however,  is  not  decisive. Moreover, and although this matter was not approached on the basis of counsel incompetence and therefore  I have not considered it necessary to undertake the analysis required in those circumstances in terms of the Supreme Court’s decision in

Sungsuwan,[9]  I do observe that aspects of Mr Utting’s representation of Ms Parker

did not, in terms of the evidence I heard from him, impress me.

[9] Sungsuwan [2005] NZSC 57.

[22]     This appeal is therefore allowed and the matters is remitted to the District Court for Ms Parker to be offered her election and for there to be a re-trial in terms of that election.

“Clifford J

Solicitors:

G Newell, Barrister, Auckland for the appellant ([email protected])
The Crown Solicitor, Auckland for the respondent ([email protected])