R v Smith
[2013] NZHC 1315
•10 June 2013
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2013-412-000011 [2013] NZHC 1315
BETWEEN THE CROWN Applicant
ANDREMA SMITH Respondent
Hearing: 20 May 2013
Counsel: L C Preston for Applicant
S A Saunderson-Warner for Respondent
Judgment: 10 June 2013
JUDGMENT OF MILLER J
[1] The Crown seeks the Court’s permission under s 345(3) of the Crimes Act
1961 to file an indictment charging Mr Smith with sexual violation by rape.
[2] Mr Smith resists on the ground that only by order of the Court of Appeal may he be tried. He relies on a District Court decision under s 345(5), in which that Court quashed an earlier count alleging the same offence. Because an order under s 345(5) is an acquittal for purposes of s 378D of the Crimes Act, which permits the retrial of an acquitted person in certain circumstances, he says that he may be tried only if the Court of Appeal accepts there is new and compelling evidence and finds a
“further trial” in the interests of justice.
R v REMA SMITH [2013] NZHC 1315 [10 June 2013]
[3] The application effectively does double duty as an appeal from a second District Court judgment1 in which a relaid information was stayed for want of authorisation from the Court of Appeal.
The narrative
[4] By information laid on 4 April 2012 Mr Smith was charged with sexual violation by rape, along with another man. He pleaded not guilty. Although s 345 still speaks of depositions, the committal process now involves no judicial assessment of charges against the evidence. Rather, committal statements having been filed, Mr Smith was routinely committed for trial on 7 June.
[5] The Crown means to adduce DNA and text evidence implicating Mr Smith. That evidence is for present purposes admittedly sufficient to disclose a triable offence of sexual violation. But it was not included in the committal statements. Rather, the Crown signalled in July 2012, shortly after committal, that ESR witnesses would be called. The Crown might have filed the evidence with the
committal statements, or sought an extension of time for filing them,2 or moved to
add them to the committal evidence,3 but it did none of these things.
[6] On 10 September Mr Smith moved for an order quashing the sexual violation count under s 345(5), asserting that the committal statements contained no evidence of penetration. (It appears that the complainant was grossly intoxicated when allegedly raped, so she cannot recount the attack or identify her attackers.) The application was granted in a judgment delivered on 12 December.4
[7] In the meantime, on 26 November, a second information containing the same allegation of sexual violation had been laid. As soon as the s 345(5) order was granted Mr Smith asked the District Court to stay the second prosecution, arguing that the first indictment had been quashed and the Crown had not obtained consent
under s 378D to retry him.
1 Police v Smith DC Dunedin CRI-2012-012-3952, 8 March 2013.
2 Section 168(2) Summary Proceedings Act 1957.
3 Section 184U Summary Proceedings Act 1957.
4 R v Smith DC Dunedin CRI-2012-012-1275, 12 November 2012.
[8] In a judgment delivered on 8 March 2013 the District Court granted the stay application. The essence of the Judge’s reasoning is that s 378D applies, such that only with the consent of the Court of Appeal may Mr Smith be tried. In reaching that conclusion, the Judge recognised that an order under s 345(5) would not amount to an acquittal but for an extended definition of the term in section 378B. The Judge also observed that orders under s 345(5) are rare, and this one could have been avoided had the police followed the routine course of seeking an extension of time for the committal. He added that if he was wrong the Crown might apply to this Court for permission to file an indictment.
[9] The Crown continues to resist the notion that s 378D applies to such a case as this. It also recognises that, for reasons I will explain later, it risks not getting permission from the Court of Appeal. Hence the present application.
The rule against double jeopardy
[10] The rule against double jeopardy is recorded in s 26 of the New Zealand Bill of Rights Act 1990, which provides that no one who has been “finally acquitted or convicted” of an offence shall be tried again for it. The rule is given effect in ss 357-
359 of the Crimes Act, in which the ancient pleas of autrefois acquit, autrefois convict and pardon assume statutory form. The history of these provisions in New Zealand law was discussed in R v Taylor, in which Chambers J observed that they “bristle with difficulties” and were overdue for legislative reform.5
[11] The Crimes Act does not define a “previous acquittal”, and it contemplates that a Judge will dispose alone of the question whether the plea is available. In general terms, an acquittal is a dismissal on the merits at trial before a court of competent jurisdiction. More particularly, a valid plea of previous acquittal requires a sufficient degree of similarity between the former and new charges, prior jeopardy of conviction at a former trial, and a final determination of the former charge. Jeopardy
arises only when the accused is arraigned at trial or, perhaps more strictly, put in
5 R v Taylor [2008] NZCA 558 at [28]. The special pleas now appear, in revised form, in ss 45-49 of the Criminal Procedure Act 2011.
charge of the jury.6 Again speaking generally, the rule against double jeopardy does not extend to the many other ways in which a criminal proceeding can end without either a conviction or a not guilty verdict.7
Section 345
[12] In s 345 are found:
a) the general power to file an indictment alleging any charge founded on the evidence disclosed in depositions:
(1) Where any person is committed for trial, or any 2 or more persons are so committed, whether jointly or severally, an indictment may be filed in the High Court or in a District Court (as the case may require) for any charge or charges founded on the evidence disclosed in any depositions taken against such person or persons.
(2) An indictment under subsection (1) of this section may be filed by the Attorney-General or a Crown Solicitor in any case, or by the informant in the case of a private prosecution.
b) this Court’s power to authorise the filing of an indictment for any offence:
(3) Notwithstanding anything in subsection (1) of this section, the Attorney-General, or any one with the written consent of a Judge of the High Court or of the Attorney-General, may file an indictment for any offence.
(4) It shall not be necessary to specify any such consent as aforesaid in the indictment; and any objection to an indictment for want of such consent shall be taken by motion to quash the indictment before the accused is given in charge to the jury.
c) a trial Court’s power to quash a charge pre-trial or during trial on the ground that it is not founded on evidence disclosed in the depositions:
(5) Except where an indictment is filed under subsection (3) of this section, the accused may, at any time before he is given in charge to the jury, apply to the Court to quash any count 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.
(6) If at any time during the trial it appears to the Court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of that count remaining in the indictment, the Court
6 R v Taylor [2008] NZCA 558 at [36] per Chambers J, and at [116], [118], per Panckhurst J.
7 UK Law Commission Double Jeopardy and Prosecution Appeals (UKLC R267, 2001) at [6.22].
may quash that count and discharge the jury from finding any verdict on it;
but the Court shall not do so unless it is satisfied that justice requires it.
d) and lastly, a prohibition on filing an indictment except as authorised by s 345:
(7) No indictment shall be filed except as hereinbefore provided.
[13] An order under s 345(5) can only be made before the accused is put in charge of the jury at trial, and the court is confined to the evidence given at a depositions hearing or, now, in the committal statements.8 It forms part of a very old process intended to ensure that citizens are protected from trial on charges insufficiently supported by evidence.9 Unsurprisingly then, the courts have long held that such order does not sustain a plea of previous acquittal or preclude the Crown from bringing a fresh charge if further evidence justifies it.10
[14] The present application requires that I consider whether ss 378A-F, which came into force in 2008, disturbed this settled state of affairs, and if so, to what extent.
Retrial of previously acquitted persons
[15] The new provisions were introduced not to extend the double jeopardy rule but to create two exceptions to it. They permit the “retrial” or “further trial” of an acquitted person where the first acquittal was tainted, or where there is compelling new evidence. Mr Smith says that the Crown must bring this case within the second of these exceptions.
[16] Section 378D must be set out in full:
378D Order for retrial may be granted by Court of Appeal if new and compelling evidence discovered
(1) The Court of Appeal may, on the application of the Solicitor-General made in accordance with rules of Court, order that an acquitted
8 Pickering v R [2012] 3 NZLR 498 (CA).
9 C v District Court at Wellington [1996] 2 NZLR 395 (CA) at 397.
10 R v Grime [1985] 2 NZLR 265; C v District Court at Wellington [1996] 2 NZLR 395 (CA).
person be retried for a specified serious offence, if the Court of
Appeal is satisfied that—
(a) there is new and compelling evidence to implicate the acquitted person in the commission of the specified serious offence; and
(b) a further trial of the acquitted person is in the interests of justice.
(2) In determining whether a retrial of the acquitted person is in the interests of justice, the Court of Appeal is to have particular regard to the following matters:
(a) whether before or during the proceedings that led to the acquittal of the acquitted person for the specified serious offence all reasonable efforts were made to obtain and present all relevant evidence then available:
(b) the length of time since the acquitted person is alleged to have committed the specified serious offence:
(c) whether the police and the Solicitor-General acted with reasonable speed in making the application after obtaining new evidence against the acquitted person:
(d) the interests of any victim of the specified serious offence alleged to have been committed:
(e) whether the retrial for which leave is sought can be conducted fairly.
(3) The Court of Appeal may, if it thinks it just to do so, exclude from its consideration any evidence against the acquitted person that has been obtained in contravention of section 378C.
(4) The Solicitor-General may apply under this section only if satisfied of the matters stated in subsection (1)(a) and (b).
(5) If the Solicitor-General makes an application under this section,—
(a) the Solicitor-General must take all reasonable steps to serve a copy of the application on the acquitted person, and must file in the office of the Court notice that the copy has been served or that a copy has not been served but all reasonable steps to do so have been taken:
(b) the defendant is entitled to be heard at the hearing of the application, which must not be held less than 14 days after notice is filed in the office of the Court under paragraph (a):
(c) if the application is granted, and the acquitted person is again acquitted, the Solicitor-General may not make any further application for an order for the retrial of the person
for the specified serious offence that was the subject of the application.
(6) This section does not apply if the acquitted person was acquitted of the specified serious offence before the commencement of this section.
[17] Section 378B defines “acquittal” for purposes of s 378C and s 378D so as to
include an order under s 345(5):
378B Meaning of terms used in sections 378C and 378D
(1) In sections 378C and 378D,—
acquittal
—
(a) includes—
(i) a discharge under section 347 or 369A; and
(ii) the setting aside of a conviction on appeal, without an order for retrial; and
(iii) the quashing of a count under section 345(4) or (5); but
(b) does not include a discharge without conviction
acquitted person
means a person who has previously been acquitted of a specified serious offence
specified serious offence
in relation to an acquitted person,—
(a) means an offence that is punishable by a term of imprisonment of 14 years or more and for which the person has previously been acquitted; and
(b) includes any offence for which the person may not be tried because of that acquittal.
[18] Several points may be made about the workings of these provisions. First, “acquittal” here applies only for the purposes of s 378C (which deals with the consent of the Solicitor-General to further investigations for purposes of an application under s 378D) and s 378D. A marginally wider definition is used in
s 378A (tainted acquittal), confirming if it were necessary to do so that the definitions are bespoke.
[19] Second, the definition must be read with the definition of “acquitted person”, which again is tailor-made; it means a person who has been acquitted of a specified serious offence, which term is in turn defined to mean an offence punishable by 14 years imprisonment or more, and includes any offence for which the person may not be tried because of that acquittal.
[20] Third, the definition is unambiguously broader than the traditional meaning of acquittal for double jeopardy purposes. Acquittals include not only orders under ss
345(4) and (5) but also discharges under s 347, to which I must return, and s 369A.
[21] Fourth, certain orders under s 345 are acquittals as defined, but not others. Subsection (6), which allows a trial court to quash a count during trial where it is not founded in the committal statements and its retention in the indictment is likely to cause injustice, is excluded, but ss (4) and (5), which deal with orders made before the accused is given in charge, are included. Ms Preston characterised this as a drafting error, reasoning that subsection (4) does not confer a power to quash an indictment for want of evidence in the committal statements, and suggesting that the drafter must have intended to refer to subsections (5) and (6). That submission is not self-evidently correct: subsection (4) does allow the trial court to quash an indictment where the consent of this Court was required but had not been obtained, and like subsection (5) it deals with counts quashed before trial.
[22] Fifth, discharges under s 347 or s 369A (prosecution electing not to proceed when the trial court orders that the identities of certain witnesses be disclosed) are included in the definition although they can be given before trial. (Like orders under ss 345(4) and (5), s 347(1) discharges can be given at any time after committal.)
Why did the legislature adopt an extended definition of acquittal?
[23] Ms Preston was prepared if necessary to attribute a mistake to the legislature in the very inclusion of s 345 orders in the definition.
[24] It is true that by reference to the legislature’s purpose the Court may correct obvious drafting errors, but that hardly ever happens. Courts work to interpret legislation, not to write it, so they will ignore or substitute language only if sure of the legislature’s intended purpose, the drafter’s error in giving voice to the purpose, and what the legislature would have said in substance, had the error been noticed.11
[25] In this case the argument falls at the first of these hurdles, for the legislature’s intended purpose is obscure. Neither counsel could explain why a definition wider than that required for a plea of previous acquittal might have been adopted, still less why it should include some orders made at trial (those under s 347) but exclude others (those under s 345(6)). The extended definition was not mentioned in the earlier Law Commission report or the Parliamentary record. It appeared for the first time in the drafting process and was enacted without comment. Of course it quite clearly was deliberately done. The language is both new and precise. But I cannot discern from the statutory language or the record what the drafter’s objective might have been.
[26] One possibility is that s 378D was designed to extend the double jeopardy rule, and hence the availability of a plea of previous acquittal. Why would the legislature require the Crown to get permission to retry someone unless that person was otherwise entitled to plead previous acquittal? But Ms Saunderson-Warner eschewed that argument when pressed. I think she was right to do so. The amendments were controversial, and the record suggests rather that they were designed only to create limited exceptions to the existing double jeopardy rule. Consistent with that, the definition is expressly confined to ss 378C and 378D. This would be a strangely indirect way to set about expanding a rule of no small importance.
[27] I observe in passing that this conclusion has an important consequence; Mr Smith can complain about the Crown’s failure to get permission from the Court
of Appeal only if on its true construction s 378D applies to his case.
11 Inco Europe Ltd and others v First Choice Distribution (a firm) and others [2000] 1 WLR 586 at
592 per Lord Nicholls.
[28] An alternative view, which Ms Saunderson-Warner did advance, is that the legislature has chosen for whatever reason to take an over-inclusive approach to s
378D, which merely requires, after all, that the Crown get permission to retry someone. But that takes the Court no further in the quest to identify the legislature’s objective unless it can identify a subset of s 345(5) orders that would result in charges never being heard were it not for the Crown’s right to pursue a retrial under s 378D. As I have already noted, s 345(5) orders have never precluded the Crown from re-laying charges. In such a case the accused person might seek a stay for abuse of process in reliance upon this Court’s inherent jurisdiction, but on such application the Court could consider all the circumstances, including the reasons for the s 345(5) order and the strength of the Crown case on the evidence available when
the stay was heard.12
Can s 378D be made to apply to this case?
[29] Ms Saunderson-Warner found herself walking a fine line when addressing this question. She will resist any attempt to get the permission of the Court of Appeal under s 378D, but I must also be satisfied that the section governs this case. Of course it is not for me to predict what the Court of Appeal might decide on the merits.
[30] In Taylor, to which I have already referred, the Court of Appeal was concerned with s 347, which provides that a discharge under it is deemed to be an acquittal.13
After reviewing the legislative history the Court concluded that such a discharge would not sustain a plea of previous acquittal where it was given before trial, for there had been no “former trial” for purposes of s 358. The accused had never stood trial at all, and had never been in prior jeopardy of conviction.
[31] Section 378D also contemplates a former trial; it speaks of “retrial” and a
“further trial”. Further, Mr Smith has never been in jeopardy of conviction. How
12 The jurisdiction was discussed in R v Aitken HC Rotorua CRI-2008-070-6480, 13 June 2011, in which Williams J considered, but did not need to decide, whether a stay would amount to an acquittal for purposes of s 378A-F.
13 Section 347(4). The judgment in Taylor was delivered after s 378A-F came into force, and the alleged acquittal in that case predated the legislation so those provisions did not apply. Thus the drafter did not have the benefit of the Court’s interpretation of “acquittal” in s 347.
then can it be said that s 378D applies here? Regrettably, it does. By expressly defining acquittal to include pre-trial orders under s 345(5), the legislature has ruled out the construction that the Court of Appeal subsequently adopted in Taylor.
[32] I tested this issue by inquiring of counsel how the Crown might sustain an application under s 378D. Manifestly this is no obvious case of new and compelling evidence coming to light after trial. Section 378D(2)(a) contemplates that a new trial will normally be ordered only if all reasonable efforts had been made to obtain all available evidence before or during the proceedings that led to the acquittal. In this case the DNA and text evidence was obtained before the order under s 345(5). Counsel noted that the Crown can argue that the new evidence is both “new”, as that term is specifically defined in s 378B, and compelling. Still, as I mentioned earlier, the Crown understandably fears that it might not get permission from the Court of Appeal, the obvious substantive merit in Mr Smith facing trial notwithstanding.
[33] However, I do not think there is anything I can do to relieve the Crown of that risk. Nor is there any policy reason to strain the legislation, for the Crown’s difficulties are not inherent in the committal regime, which offers several means by which a s 345(5) order might have been avoided. For my purposes, the important conclusion is that the Court of Appeal has jurisdiction under s 378D in the present circumstances.
Can this Court authorise an indictment under s 345(3) anyway?
[34] Under s 345(3) this Court may authorise an indictment where there is evidence on which a jury might properly convict, notwithstanding that such evidence might not be found in the depositions or committal statements.14 It can be used where
evidence has come to light since committal, as in this case.15 But although
unfettered on its face, the discretion must of course be exercised according to law. Where s 378D applies, the legislature has provided that only with the consent of the Court of Appeal may the accused be “further” tried. I have reluctantly held that s
378D does apply. To permit the Crown to invoke s 345(3) in such cases must be to
14 Wallace v Abbott [2003] NZAR 42 (HC).
15 R v Gray HC Wellington CRI-2006-485-50, 6 September 2006.
defeat whatever objective the legislature had in mind when including them in the
‘acquitted defendants retrials’ regime. I do not think that it is open to me to act under s 345(3) in these circumstances. I record that were I free to do so, I would grant the Crown’s application.
Decision
[35] The application is dismissed, for reasons substantially the same as those of the District Court Judge. If the Crown still wishes to try Mr Smith it must seek permission from the Court of Appeal.
Miller J
Solicitors:
Crown Solicitor’s Office, Dunedin for Applicant
Aspinall Joel, Dunedin for Respondent
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