R v T HC Auckland CRI 2006-004-9684
[2007] NZHC 121
•7 March 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-004-009684
THE QUEEN
v
T
Hearing: 7 March 2007
Appearances: AJF Perkins for Crown
R M Mansfield for Accused
Judgment: 7 March 2007
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
7 March 2007 at 4.20 p.m., pursuant to r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.
Copy to:
R M Mansfield, PO Box 2674, Shortland Street, Auckland
R V T HC AK CRI 2006-004-009684 7 March 2007
[1] Mr T is to be tried on three charges laid under the Misuse of Drugs Act
1975. A question has arisen as to whether that trial should take place in the High
Court or the District Court.
[2] There are three charges, namely:
a) A charge laid under s 6(1)(f) of the Misuse of Drugs Act 1975 alleging that he possessed the Class B controlled drug, MDMA for the purpose specified in s 6(1)(c) of the Misuse of Drugs Act. That charge was commenced by an information laid indictably.
b)A charge laid under s 7(1)(a) of the Misuse of Drugs Act alleging that he possessed the Class A controlled drug, methamphetamine. That charge was commenced by an information laid summarily.
c) A charge alleging that he possessed a pipe for the purpose of the commission of an offence against the Misuse of Drugs Act, for consuming methamphetamine, laid under s 13(1)(a) of the Misuse of Drugs Act. Once again, the information was laid summarily.
[3] Because the Crown intended to proceed indictably in relation to the first of the charges mentioned in the preceding paragraph, a preliminary hearing was held in respect of that matter and on 19 January 2007 the defendant was committed for trial in the High Court on that charge. On the same day, the defendant was also committed for trial in this Court on the other two charges.
[4] Ordinarily, a charge alleging possession of a Class B controlled drug for a purpose specified in s 6(1)(c) of the Misuse of Drugs Act 1975 would be the subject of an order under s 168AA(2) of the Summary Proceedings Act that it be tried in the District Court. As is by now tolerably well known, this Court is experiencing considerable difficulties in dealing on a timely basis with the significant number of trials alleging manufacture, importation, or possession for sale and supply of methamphetamine. All are charges that can only be dealt with in this Court. In the
result, the criteria which are applicable under s 168AA(3) of the Summary Proceedings Act 1957 (gravity, complexity, prompt disposal and the interests of justice generally) will generally mean that a charge concerning possession of a Class B drug for supply will be transferred to be tried in the District Court.
[5] In the present case, however, Mr Perkins has raised an issue as to whether or not such an order should properly be made, because of the possibility that the second-mentioned charge, that is possession of the Class A controlled drug, methamphetamine, can also only be tried in this Court. Since all three matters arise out of the same circumstances, if the second charge was required by law to be tried in this Court, that would mean that it would be sensible to deal with all three matters in this Court.
[6] The charges were mentioned in the call-over which took place in the High Court today. In a letter dated 27 February 2007 to the Registrar, Mr Perkins had outlined the reasons which led him, reluctantly, to the view that the second charge would have to be tried in this Court. He noted first that the information had been laid summarily. He maintained that the information could have been laid either indictably or summarily, but that if laid summarily the defendant could nevertheless choose to be tried by jury.
[7] Mr Perkins next referred to s 168A of the Summary Proceedings Act pointing out that under its provisions a defendant must be committed either to the High Court, or to the District Court. In the latter case, committal to the District Court must only be in respect of any offence that a District Court has jurisdiction to try by virtue of s 28A(1)(a) to (e) of the District Courts Act 1947.
[8] Section 28A(1) of the District Courts Act 1947 provides as follows:
28A Extent of jurisdiction under Part 2A of this Act
(1) A Court that is sitting at a city, borough, or place appointed under section 4(2A) of this Act (including any offence against section 128 of the Crimes Act 1961 arising out of an act or omission occurring before 1
February 1986) and is presided over by a trial Judge shall have jurisdiction under this Part of this Act in respect of the following offences:
(a) the indictable offences referred to in section 6(2) of the
Summary Proceedings Act 1957:
(b) the indictable offences described in the enactments referred to in the Schedule 1 to that Act:
(c) any offence for which the accused elects under section 66 of that Act to be tried by a jury:
(d) the indictable offences referred to in Part 1 of Schedule 1A
to this Act:
(e) the indictable offences referred to in Part 2 of Schedule 1A
to this Act, in any case where—
(i)the proceedings are transferred to the Court under section 168AA of the Summary Proceedings Act
1957; or
(ii) a person pleads guilty under section 153A or section
168 of the Summary Proceedings Act 1957, before or during the preliminary hearing, to any such
offence:]
(f) conspiring to commit any indictable offence referred to in
Part 1 or Part 2 of Schedule 1A to this Act:
(g) attempting to commit any indictable offence referred to in Part 1 or Part 2 of Schedule 1A to this Act, or inciting or counselling or attempting to procure any person to commit any such offence which is not committed:
(h) being an accessory after the fact to any indictable offence referred to in Part 1 or Part 2 of Schedule 1A to this Act.]
[9] Mr Perkins argued that s 7 of the Misuse of Drugs Act (under which the second charge was laid) is not caught by any of paragraphs (a) to (e) of the subsection. In that respect, he maintained, correctly, that s 7 is not an offence referred to in s 6(2) of the Summary Proceedings Act, nor referred to in Schedule I to that Act, or Parts 1 or 2 of Schedule IA of the District Courts Act. On this basis, he submitted that offences against s 7 of the Misuse of Drugs Act involving a Class A controlled drug, when being pursued on indictment, are matters which can only be tried in the High Court. He argued that the reason that the High Court is usually not concerned with such charges is that they are normally pursued summarily, or brought in conjunction with other more serious charges that can only be tried in this Court.
[10] I consider that there are a number of flaws in that reasoning. First, the right to elect trial by jury arises under s 66(1) of the Summary Proceedings Act 1957. That subsection provides as follows:
66 Defendant’s right to elect trial by jury where offence punishable by more than 3 months’ imprisonment
(1) 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.
[11] As can be seen, the right to elect jury trial there set out depends upon the maximum term of imprisonment available in respect of the particular offence, not on how the prosecution was commenced. Here, although the indictment alleging a breach of s 7 was laid summarily, because the drug allegedly possessed was a Class A drug, the maximum penalty for the offence would have been a term of imprisonment not exceeding six months (s 7(2)(a)). That being the case, the right to elect trial by jury arose.
[12] Reverting then to s 28A(1) of the District Courts Act 1947, I note that paragraph (c) of the subsection provides for the District Court to have jurisdiction in respect of offences for which the accused elects under s 66 of the Act to be tried by a jury. This is a quite separate conferral of jurisdiction and, plainly, it does not matter if the offence in question is not embraced by any of the other paragraphs in the subsection. Consequently, it is irrelevant that s 7 of the Misuse of Drugs Act is not an indictable offence referred to in s 6(2) of the Summary Proceedings Act 1957, that it is not an indictable offence referred in Schedule I to that Act, and that it is not referred to in Parts 1 or 2 of Schedule IA of the District Courts Act.
[13] I turn next to s 168AA of the Summary Proceedings Act, which provides in subss (1) and (2) as follows:
168AA High Court Judge to determine Court of trial in certain cases
(1) This section applies to every case in which a defendant is committed to the High Court for trial for any offence referred to in Part 2 of Schedule
1A to the District Courts Act 1947.
(2) In each case to which this section applies, a Judge of the High Court shall determine on the papers whether it is more appropriate for the trial to be held in a District Court; and, if the Judge determines that the trial would be more appropriately held in a District Court, the Judge shall, by order, transfer the case to the District Court exercising jurisdiction under Part 2A of the District Courts Act 1947 nearest to the committing Court. No party to the proceedings shall be entitled to be heard by, or to make submissions to, the Judge under this subsection.
[14] Part 2 of Schedule IA of the District Courts Act 1947 is the provision which enables the charge alleging possession of the Class B drug MDMA to be transferred for trial to the District Court. It is not apt to embrace the other charges in the present case. However, reference should now be made to s 28 of the Misuse of Drugs Act
1975. Section 28(1) provides:
Except where this Act otherwise provides, every offence against this Act or against any Regulations made under this Act shall be punishable on summary conviction.
[15] Under s 6(2) of the Act, where there is a breach of s 6(1) (importation, manufacture, supply, sale etc of controlled drugs), the penalties provided in succeeding subsections differ according to whether a person has been convicted “on indictment” or has been convicted summarily. There is a similar distinction in s 12 (knowingly permitting premises to be used for the purpose of the commission of an offence). By contrast, neither s 7 nor s 13 contemplate convictions being entered on charges laid indictably. In my view, offences against ss 7 and 13 are offences to which s 28(1) applies, and are punishable on summary conviction. That does not mean that they cannot be included in an indictment, however, because s 66(5) of the Summary Proceedings Act provides:
(5) Where a defendant who is charged with a summary offence elects under this section to be tried by a jury, the proceedings shall continue as if the offence were an indictable offence not punishable summarily, and, if he is committed for trial or for sentence, he may be dealt with accordingly.
[16] Further, since the maximum penalty in each case would be greater than three months, s 329(1) of the Crimes Act 1961 would also authorise the inclusion of counts laid under ss 7 and 13 in an indictment.
[17] In the result where, as in the present case, an accused elects trial by jury, all relevant charges may be included in an indictment even if some of them could have been tried summarily, and indeed, are charges that were properly laid summarily.
[18] In the case of the second and third charges mentioned in paragraph [2] above, which were commenced summarily, the District Court has jurisdiction in respect of them, not by virtue of s 28A of the District Courts Act, but because they are within that Court’s general summary jurisdiction as a result of s 28(1) of the Misuse of Drugs Act 1975, and s 9(1) of the Summary Proceedings Act 1957. I have already referred to the former. The latter simply enacts that a Court presided over by a District Court Judge has jurisdiction in respect of every summary offence. The expression “summary offence” is defined in s 2 of the Summary Proceedings Act as follows:
Summary offence means any offence for which the defendant may not, except pursuant to an election made under section 66, be proceeded against by indictment; and, where the enactment creating an offence expressly provides that it may be dealt with either summarily or on indictment, includes such an offence that is dealt with summarily.
[19] In my view both ss 7 and 13 of the Misuse of Drugs Act provide for summary offences, as defined. I refer to also to the definition of an “indictable offence” in s 2 of the Act, which reads:
Indictable offence means any offence for which the defendant may be proceeded against by indictment: provided that an offence shall not nbe deemed to be an indictable offence solely because under section 66 the defendant could elect to be tried by a jury.
[20] Plainly, then, the s 66 election does not alter the character of the offence itself. It remains a summary offence, albeit that it is to be tried by jury, and included in an indictment, and the proceedings continue “as if” the offence were an indictable offence, not punishable summarily (s 66(5)).
[21] Consequently, if an order is made under s 168AA transferring the first charge for trial in the District Court, there is nothing to prevent the Crown including the two other charges in the indictment, because those charges are within the District Court’s jurisdiction, and both may be the subject of a jury trial because of the maximum
penalties applicable to each under the relevant provisions of the Misuse of Drugs
Act.
[22] Having regard to the foregoing and noting that there is no aspect of the first charge that warrants a trial of it in this Court (having regard to the considerations set out in s 168AA(3)), I direct pursuant to s 168AA of the Summary Proceedings Act that the charge alleging against Mr T that he possessed a Class B controlled drug for a purpose specified in s 6(1)(c) of the Misuse of Drugs Act 1975 be transferred to the Auckland District Court for trial.
[23] I declare that any indictment presented in respect of that charge may also include the other two charges, which are also to be tried in the District Court and not in this Court.
[24] I record that, at the call-over this morning, I remanded Mr T in custody to be brought before the District Court at Auckland at 2.15 p.m. on Tuesday 20 March
2007.
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