R v Lualua

[2007] NZCA 114

NOTE:  PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

237/06 [2007] NZCA 114

THE QUEEN

v

PILI TILO LUALUA

Hearing:         20 February 2007

Court:            William Young P, Randerson and Harrison JJ Counsel:          G Boot for the Appellant

K Raftery for the Crown

Judgment:      3 April 2007         at 3pm   

JUDGMENT OF THE COURT

A          We answer the questions stated by Judge Burnett as follows:

(1)What  was  the  status  (if  any)  of  the  jury’s  verdict  on  the alternative count 5?  Answer – it was valid.

(2)What was the status (if any) of the jury’s verdict on count 5 following my ruling to set it aside? Answer – it remains valid.

(3)As a consequence to the answers to questions (1) and (2), can the accused be tried again on counts 4 and 5?  Answer – no.

R V LUALUA CA 237/06  3 April 2007

BWe direct that the appellant is not to be retried on count four but rather is to be sentenced on count five.

C          The sentence appeal is adjourned.

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]      Pili Lualua was tried in the District Court before Judge Burnett and a jury on five counts alleging sexual offending associated with two separate incidents.   In relation to the first incident (which was alleged to have occurred between 29 April and 19 May 2005) he faced:

(a)      Count 1 – sexual violation by unlawful sexual connection (digital penetration); and

(b)      Count 2 – assault with intent to sexually violate by rape. The second incident (29 May 2005) gave rise to:

(a)      Count 3 – sexual violation by unlawful sexual connection (digital penetration);

(b)      Count 4 – sexual violation by rape; and

(c)      Count 5 (as an alternative to count 4) – assault with intent to sexually violate by rape.

The jury were unable to agree on the rape count (count four) but returned verdicts of guilty on all other counts.  Judge Burnett later purported to recall the conviction on count five;  this to clear the way for a retrial on count four.

[2]      The appellant filed a general appeal which challenged the sentence imposed by the Judge on other counts and the purported recall of the conviction on count five. As well, the Judge stated a case for the opinion of this Court on the following questions:

(1)What  was  the  status  (if  any)  of  the  jury’s  verdict  on  the alternative count 5?

(2)What was the status (if any) of the jury’s verdict on count 5 following my ruling to set it aside?

(3)As a consequence to the answers to questions (1) and (2), can the accused be tried again on counts 4 and 5?

[3]      The appellant’s general appeal is misconceived in its challenge to the Judge’s purported setting aside of the conviction (as such a challenge is not provided for by s 385 of the Crimes Act 1961).  Further, the appeal against sentence cannot sensibly be determined at the moment and must be adjourned for further consideration.  On the  other  hand,  the  case  stated  procedure  provides  a  reasonable  mechanism  for sorting out the procedural imbroglio which has now developed, see ss 380 and 382 of the Crimes Act.

[4]      Because the questions posed by the Judge do not provide an entirely apt framework for discussion of the underlying issues we propose to address the case under the following headings:

(a)     Was  the  District  Court  Judge  entitled  to  accept  the  verdict  on  the alternative count 5?

(b)     Did the Judge have jurisdiction to set aside the conviction? (c)    Should we set aside the conviction on count 5?

(d)     If the conviction on count 5 remains valid, is it open for the Crown to retry the appellant on count 4?

Before we deal with those questions directly, we will discuss in more detail what happened in the District Court.

What happened in the District Court

[5]      In the course of its deliberations, the jury indicated that it could not reach a unanimous decision on count four.   After discussing the matter with counsel and with their consent, Judge Burnett invited the jury to return a verdict on count five. Shortly afterwards, the jury returned verdicts of guilty on counts one, two, three and five and confirmed that they were not able to agree on count four.  The note taken by the Court taker on the indictment records the verdicts along with the disagreement on count four and goes on:

Convict RIC Sentence 30.3.06

Sentence @ 11.45am

…

Count 4 RIC 30.3.06

For Crown to consider whether retrial

“RIC” stands for “remanded in custody”.

[6]      When the prosecutor consented to the taking of a verdict on count five, he assumed that it would still be open to the Crown both to seek a retrial on count four and to proceed with such a retrial.  Defence counsel anticipated that the Crown could seek a retrial albeit that such a retrial might not happen.  There is nothing to suggest that either counsel or the Judge appreciated that the taking of a verdict on count five might preclude a retrial on count four.   But, before the appellant came to be sentenced, it became apparent that the verdict on count five might prove something of a problem for the Crown in relation to such a retrial.

[7]      The  Crown  therefore  applied  to  Judge  Burnett  to  set-aside  the  verdict /

conviction on count five.

[8]      On 1 May 2006, Judge Burnett sentenced the appellant on counts one, two and  three  to  five  and  half  years  imprisonment  (with  a  minimum  term  of imprisonment of three and half years) and indicated that she would be setting aside

the conviction on count five.  This she duly purported to do by a Minute which she released on 9 May 2006 in which she said that she “recalled” the conviction.   In effect, she took the view that the taking of the verdict was such a gross error that the conviction was a nullity, that she had power to set it aside (relying on, inter alia, R v Smith [2003] 3 NZLR 617 (CA)) and that she should exercise that power.

Was the District Court Judge entitled to accept the verdict on the alternative count 5?

[9]      Section 3 of the Crimes Act provides:

3        Meaning of “convicted on indictment”

For the purposes of this Act, a person shall be deemed to be convicted on indictment if—

(a)      He pleads guilty on indictment; or

(b)      He is found guilty on indictment; or

(c)      He is committed to the High Court for sentence under section 44 or section 153A or section 168 of the Summary Proceedings Act 1957; or

(d)      After having been committed for trial, he pleads guilty under section

321 of this Act.

[10]     Despite the relatively simple language of the section, the concept of what constitutes  “conviction  on  indictment”  is  not  always  easy  to  apply,  particularly where alternative counts are proffered and especially where a defendant purports to plead guilty to an alternative count.  The courts do not usually permit a defendant’s tactical plea to an alternative charge to preclude a subsequent trial on the primary count (although cf R v Lee [1973] 1 NZLR 13 (CA)). Further, even where the case concerns the taking of a verdict of guilty, there is an element of flexibility as to whether the Judge must accept the verdict, see for instance R v Ramstead CA428/96

12 May 1997, R v Downing CA311/99 23 November 1999 and R v Reddy (2004) 20

CRNZ 1063 (HC).

[11]     In the present case, there is nothing to suggest that the jury’s verdict on count five was not accepted.  Indeed the notations made by the court taker suggest that the

Judge  did  record  (or  purport  to  record)  convictions  in  relation  to  the  counts (including count five) on which verdicts of guilty were returned.   In those circumstances, we see no reason why s 3 should not be applied in accordance with its terms.  This means that the appellant must be treated as having been convicted in relation to count five when the verdict was recorded.

[12]     In  her  Minute  in  which  she  purported  to  “recall”  the  conviction,  Judge Burnett acted on the basis that she should only have taken a verdict in relation to count five if the jury had returned a verdict of not guilty on count four.   As will become apparent, we think that the course which she took at trial was open to her.

[13]     There has been debate as to whether a Judge can accept a verdict on a lesser alternative charge which is “included” in the primary count (eg as manslaughter usually is in a count alleging murder) where the jury cannot agree on the primary charge.

[14]     The House of Lords in R v Saunders [1988] AC 148 held that it is open to the Judge to do so. In that case, the Judge (with the consent of counsel on both sides) had accepted a verdict of manslaughter where the jury were divided on whether the defendant was guilty of murder. Indeed, the House of Lords held that his right to take a verdict in relation to manslaughter did not depend on the consent of the prosecution and defence. Lord Ackner (at 161) summarised the position in this way:

In a trial on an indictment for murder, where manslaughter is a possible verdict, the jury’s task is first to consider whether or not they are satisfied that the accused is guilty or murder.   It is only when they have made the positive determination that the accused is not guilty of murder that they should  then  proceed  to  consider  the  lesser  offence  of  manslaughter. However,  there is  no legal  principle which  prevents this impediment  to considering  the  lesser  offence  being  removed  by  judicial  intervention, namely by discharging the jury from the obligation of returning a verdict on the major offence, if the justice of the case so requires.

[15]     In R v Dwight [1990] 1 NZLR 160, Cooke P (at 166) expressed reservations as to whether Saunders should be followed in New Zealand given s 374(6) of the Crimes Act.  Section 374 relevantly provides:

374      Discharge of jury

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

(2)       Without limiting subsection (1) of this section, where a jury has remained in deliberation for such period as the Judge thinks reasonable, being not less than 4 hours, and does not agree on the verdict to be given, the Judge may discharge the jury without their giving a verdict.

…

(6)       Where the Court discharges a jury under this section, it shall either direct that a new jury be empanelled during the sitting of the Court, or postpone the trial on such terms as justice requires.

Cooke P’s concern in Dwight seems to have been that the effect of these provisions is that where a jury is discharged from giving a verdict, s 374(6) requires there be a new trial and does not contemplate the taking of a verdict on an included charge.

[16]     That view rests on a literal reading of s 374.  It is axiomatic that this section applies on a count by count basis, ie a jury which agrees on some counts can return verdicts on those counts despite disagreeing on others.   We think it is clear that s 374(6) does not completely occupy the ground in terms of what a Judge must do when there has been a disagreement.   On this point we refer to the remarks of Henry J in R v Barlow [1998] 2 NZLR 477 at 478 (CA), where he commented on s 374 and s 378 (which permits the Solicitor-General to grant a stay) and he went on:

There is no other express statutory provision governing procedure following a disagreement, and accordingly the Court’s power to give relief from an order under s 374(6) could only arise under s 347, the inherent jurisdiction to prevent an abuse of its process, or possibly the New Zealand Bill of Rights Act 1990.

Logic suggests that this list of exceptions is itself too limited.  What if the practical effect of accepting a verdict on a lesser charge is to preclude a retrial on the primary count (for instance where the defendant is charged with the substantive offence and convicted of an attempt, see s 338(2), discussed below)?  For present purposes, the remarks of Henry J are sufficient because, as will become apparent, we are satisfied that a further trial on count four would be an abuse of process.

[17]     Against that background, we conclude that where the jury has disagreed on the primary count, the Judge may nonetheless take a verdict on a lesser alternative count (whether included or set out explicitly in the indictment as an alternative count).  On the other hand, we are inclined to think that it would probably only be in exceptional circumstances (perhaps where the Judge intended to discharge the defendant on the primary count under s 347) that it would be appropriate to do so without the Crown’s consent.  We see this as consistent with the spirit of s 374(6) and, as well, with the principle that the prosecution will usually be entitled to a verdict on the primary count if it insists.  Here, however, it is indisputable that the Crown and the defendant agreed with the verdict being taken on count five.  It was therefore open to the Judge to take the verdict.

Did the Judge have jurisdiction to set aside the conviction?

[18]     It follows from what we have just said that the verdict and the resulting conviction cannot be regarded as nullities.  It also follows that the Judge did not have jurisdiction to set aside the conviction.  Indeed we have reservations as to the utility of her entertaining the application to set aside the conviction as we consider that the more appropriate course for her to have taken was to state a case for the opinion of this Court.

Should we set aside the conviction on count 5?

[19]     In his written submissions to us, Mr Raftery for the Crown maintained that the verdict on count five was a nullity and that the Judge was entitled to set it aside. We do not accept these contentions.   He also developed two other propositions which formed the primary focus of his oral argument:

(1)The assumption of counsel (and the Judge) that the taking of a verdict on count five did not preclude a retrial on count four was correct with the result that the third question posed in the case stated should be answered in favour of the Crown;  or

(2)If that assumption was wrong, the errors made by counsel should be attributed to the Judge with the result that her decision to take a verdict on count five should be regarded as affected by legal error and thus susceptible to review under ss 380 and 382 of the Crimes Act.

As will become apparent, we consider the conviction on count five to be an insuperable obstacle to a retrial on count four.  So that leaves in play the second of the arguments, in effect, that we should set aside the conviction on count five.

[20]     We accept that the case stated by Judge Burnett at least implicitly puts in issue the correctness of her decision to take the verdict on count five.   We also accept that the language of ss 380 and 382 of the Crimes Act is wide enough to permit this Court to set aside a conviction at the instance of the Crown.  Indeed, if Judge Burnett had taken a verdict on count five over the objections of the Crown we would have been disposed to set the resulting conviction aside.

[21]     The difficulty for the Crown, however, is that the primary reason why the Judge took  the  verdict  was  that  the  Crown  and  defence  consented.    Given  the adversary process, we are of the view that it was not for her to review, revise or second guess the prosecutor’s reasons.  In that context it seems to us that it would be somewhat forced to treat her decision to take the verdict as erroneous.

[22]     In those circumstances, we are of the view that we should not interfere with the jury’s verdict under ss 380 and 382.

If the conviction on count 5 remains valid, is it open for the Crown to retry the appellant on count 4?

[23]     Obviously the appellant cannot be tried again on count five as the conviction on that count must be treated as still standing.  But more difficulty arises in relation to count four.

[24]     In her Minute of 9 May 2006, Judge Burnett expressed scepticism as to whether the appellant could rely on a plea of autrefois convict as against an attempt

by the Crown to retry him on count four.  She doubted whether a conviction without sentence would support such a plea (see the judgment of Randerson J in R v Stagg HC AK T69/98 29 May 1998) and also whether the offences of sexual violation by rape and assault with intent to commit sexual violation by rape are sufficiently similar to enable the appellant to invoke s 358 and 359 of the Crimes Act.   Not addressed by the Judge in her minute, however, was whether it would be an abuse of process for the Crown to proceed with a retrial.

[25]     Before we address this question, there are two contextual issues to which we should refer:

(a)      Count four was very much a late starter in the case.  The complainant had initially said that she was not sure that the appellant had placed his penis in her genitals.  It was only in the week before trial that she alleged that he had done so.  This resulted in a late amendment of the indictment so that it included count four.  Given this history, it is not altogether surprising that the jury were not able to reach a verdict of guilty on count four.

(b)As there was at most limited penetration and in the context of the other convictions (including sexual violation by digital penetration in relation to the same incident), the distinction between counts four and five was of limited materiality to an assessment of the overall culpability of the appellant.

[26]     As  indicated,  count  five  alleged  assault  with  intent  to  commit  sexual violation.   This is an offence created by s 129(2) of the Crimes Act 1961.   That section is in these terms:

129     Attempted sexual violation and assault with intent to commit sexual violation

(1)      Every  one  who  attempts  to  commit  sexual  violation  is  liable  to imprisonment for a term not exceeding 10 years.

(2)Every one who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.

The two offences which are created do not completely overlap, see for instance R v Hassan [1999] 1 NZLR 14 (CA). But in this case, the appellant could equally as well have been prosecuted under s 129(1). Had count five been laid under s 129(1), a retrial on count four would have been precluded by s 338 which provides:

338      Crime proved when attempt is charged

(1)       Where an attempt to commit a crime is charged, but the evidence establishes the commission of the full crime, the accused may be convicted of the attempt.

(2)       After a conviction for that attempt the accused shall not be liable to be  tried  again  for  the  crime  which  he  was  charged  with  attempting  to commit.

[27]   Section 338 seems to be based on very particular double jeopardy considerations.   In general (although with limited exceptions, eg murder) a person who is guilty of a substantive offence must necessarily have attempted to commit that offence as well.  But it would not do to have prosecutors obtaining verdicts for both  the substantive offence and  the  included  attempt  –  essentially  getting  two convictions for the same offending.  We accept that the word “attempt” in s 338 is to be read literally and thus as not encompassing a charge under s 129(2), but we think that the policy underlying s 338 nonetheless applies in this case.   We say this because it is difficult to conceive of an offence of sexual violation which would not, as well, involve an assault with intent to commit sexual violation.

[28]     It is important to recognise that there may well be practical difficulties if the Crown is able to proceed to a retrial on count four.   It would not be possible to confine the retrial to the issue of penetration.  What if the jury concludes that there was penetration but acquits the appellant nonetheless (on the basis that the Crown has not negatived consent for belief on reasonable grounds)?  In that context there would be inconsistent verdicts.  Depending on the course events take (for instance the defence which is run or questions posed by the jury), that inconsistency might not just be latent.

[29]     There is comparatively little authority directly on this issue but such limited authority as there is suggests that s 338(2) is consistent with a broader principle that it would be an abuse of process for the Crown to seek a retrial in the present circumstances:  see the tentative view expressed in R v Velasquez [1996] 1 Cr App R

155 at 161 and 162 (CA) and the remarks of Lord Ackner in Saunders at 161-162.

[30]     In those circumstances we are of the view that it would be an abuse of process to retry the appellant on count four.   So the answer to the third question posed by the Judge is no.

Orders

[31]     We answer the questions asked in the case stated as follows:

(1)What was the status (if any) of the jury’s verdict on the alternative count 5?  Answer – it was valid.

(2)What was the status (if any) of the jury’s verdict on count 5 following my ruling to set it aside? Answer – it remains valid.

(3)As a consequence to the answers to questions (1) and (2), can the accused be tried again on counts 4 and 5?  Answer – no.

We direct that the appellant is not to be retried on count four but rather is to be sentenced on count five.   His sentence appeal is adjourned and is not to be heard until the appellant has been sentenced on count five.

Solicitors:

Gavin Boot Law, Hamilton for Appellant

Meredith Connell, Auckland for Crown