R v Taylor
[2023] NZHC 3181
•10 November 2023
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2023-012-1083
[2023] NZHC 3181
THE KING v
ROBERT FRANCIS TAYLOR
Hearing: 3 October 2023 Appearances:
R D Smith for the Crown
J A Westgate for the Defendant
Judgment:
10 November 2023
JUDGMENT OF HARLAND J
Introduction
[1] On 27 May 2023, a car driven by Robert Taylor was involved in an accident, as a result of which his friend Michael McClelland died. Mr Taylor was subsequently charged with four charges, two of which are the subject of this judgment.1 The first charge alleges driving with excess blood alcohol causing Mr McClelland’s death2 and the other alleges manslaughter.3 Neither are laid as alternatives.
1 The remaining charges comprise a charge of burglary and another of driving dangerously causing injury to another occupant of the vehicle.
2 Land Transport Act 1998, ss 61(1)(b) and 61(3AA); maximum penalty 10 years’ imprisonment or a fine not exceeding $10,000 and disqualification for one year or more.
3 Crimes Act 1961, ss 171, 160(2)(a) and 177; maximum penalty life imprisonment.
R v TAYLOR [2023] NZHC 3181 [10 November 2023]
[2] Mr Taylor has purportedly pleaded guilty to the excess blood alcohol charge, which I will refer to in this judgment as “the EBA charge”. He applies to dismiss or stay the manslaughter charge under s 147 of the Criminal Procedure Act 2011 (CPA) or in the inherent jurisdiction of the Court.
[3] The Crown opposes and intends to apply to amend the EBA charge to record that it is an alternative to the manslaughter charge.
[4] I have decided to dismiss Mr Taylor’s application. This judgment sets out my reasons for doing so.
The factual narrative
[5] The background to the charges is set out in a Police Summary of Facts. For this reason, the following facts are alleged only and should be read in that context.
[6] On Saturday 26 May 2023, Mr Taylor, the deceased and three others were together and had been drinking. They ran out of alcohol and decided to go to the Bottle-O liquor store at Hillside Road, Dunedin to steal some alcohol. Mr Taylor drove the group to the Bottle-O liquor store in a stolen vehicle which had stolen registration plates attached to it. This vehicle had been stolen from a Dunedin address on 21 April 2023. Mr Taylor remained in the vehicle while others are alleged to have stolen crates of beer from the liquor store, in the process activating the burglar alarm. A member of the public confronted one of those who was alleged to have taken the alcohol and called the Police.
[7] Mr Taylor, who had turned the vehicle lights off while the burglary was occurring, continued to drive the vehicle with the headlights off, turning into Hillside Road. A Police patrol observed the vehicle and activated its blue and red flashing lights.
[8] Mr Taylor failed to stop and accelerated away from the Police, travelling through a number of streets at speed. The vehicle finally travelled through into a chicane at speed, striking the curb, at which time control of the vehicle was lost causing it to yaw clockwise. The vehicle narrowly missed the front of a dwelling house on the corner and mounted a footpath before crashing into a power pole, splitting it and a concrete garage wall, as well as knocking the wall over.
[9] Mr McClelland was in the rear left passenger seat and died at the scene from the injuries he sustained in the crash. Two of the occupants were significantly injured but Mr Taylor left the vehicle on foot. Mr Taylor was subsequently located by a Police dog handler tracking. Breath and blood alcohol testing procedures were undertaken, and the analysis of the blood specimen obtained disclosed that Mr Taylor’s blood alcohol level was 153 milligrams of alcohol per 100 millilitres of blood.
[10] On 29 May 2023, Mr Taylor and the other occupants of the vehicle were charged with burglary. Mr Taylor appeared in the District Court and was initially remanded in custody and granted interim name suppression. He was granted bail on 20 June 2023, but the interim suppression of his name lapsed at that point. He was remanded to appear back in the Dunedin District Court on 4 July 2023.
[11] On 4 July 2023, Police laid three additional charges against Mr Taylor including dangerous driving.4 The other two charges which concern this application are the charges of excess blood alcohol causing death and manslaughter referred to above. Neither the manslaughter charge nor the EBA causing death charge were laid as alternatives; in fact, the charging documents specifically record that the charges were not laid as alternatives.
[12] Since the appeal, an affidavit has been filed by Detective Henderson which outlines that he drafted the charges and was responsible for laying them but, while he intended the lesser charge to be laid in the alternative to the more serious charge of manslaughter, he accepts that he failed to record this on the charging documents when finalising them for filing in Court.
[13] On the same day as the charges were laid, namely 4 July 2023, Mr Taylor appeared before Judge Turner in the District Court at Dunedin. Mr Westgate indicated he had instructions to waive the reading of the EBA charge and that Mr Taylor pleaded guilty to it.
4 Land Transport Act, s 36(1)(b); maximum penalty five years or a fine not exceeding $20,000 and disqualification for one year or more.
[14] The Judge queried what was to happen with the manslaughter charge and said that he was not prepared to take Mr Taylor’s plea to the EBA charge. Mr Westgate submitted that, because the EBA charge was a standalone non-alternative charge to manslaughter, effectively, Mr Taylor’s guilty plea could and should be entered to it.
[15] Judge Turner was not prepared to accede to Mr Westgate’s request. He remanded Mr Taylor to the High Court on all charges without plea. 5
The application
[16] Mr Taylor’s application is to stay and/or dismiss the manslaughter charge. He relies on s 147 of the CPA and the Court’s inherent jurisdiction to provide the authority for this to occur. Mr Westgate submitted that to proceed with the prosecution of the manslaughter charge would be an abuse of process and unfair to Mr Taylor.
[17] The Crown opposes the application. It intends to amend the EBA charge but has refrained from doing so because this would have rendered what was potentially an arguable application by Mr Taylor immediately redundant. Nonetheless, the Crown case is that the EBA charge is intended to be laid in the alternative and the Crown seeks to continue with the charge of manslaughter, having regard to the facts of the alleged offending.
The issues
[18]I consider the following are the issues I need to determine:
(a) was a guilty plea in fact entered in relation to the excess blood alcohol charge?
(b) if it was, what impact does this have on the charge of manslaughter?
Was a guilty plea entered to the EBA charge?
[19] As I have outlined above, the District Court Judge declined to enter Mr Taylor’s guilty plea to the EBA charge. Mr Taylor submits that he entered a guilty plea to the
5 Criminal Procedure Act 2011, s 139(1)(b).
EBA charge and it is immaterial whether the Judge chose to accept it as this does not change the fact of his plea. In response, the Crown submitted the Judge had a discretion to refuse to accept Mr Taylor’s guilty plea because a more serious charge was before the Court. The Crown cited s 37(1) of the CPA in support of this submission.
[20]Section 37 of the CPA provides:
37 Defendant may enter plea
(1) At any time before the court requires a plea under section 39 the court
may receive a plea from the defendant.
(2) The defendant may plead either guilty or not guilty, or enter a special plea.
(3) If the defendant is not represented by a lawyer,—
(a)the court must be satisfied that the defendant—
(i)has been informed of his or her rights to legal representation, including the right to apply for legal aid under the Legal Services Act 2011; and
(ii)has fully understood those rights; and
(iii)has had a reasonable opportunity to exercise those rights; and
(b)the substance of the charge must be read to the defendant.
(4) A defendant who is represented by a lawyer may plead not guilty or enter a special plea by filing a notice in court.
(5) The Registrar must notify the prosecutor if a notice is received under subsection (4) from the defendant.
(6) If the defendant is not before the court but indicates that he or she intends to plead guilty, the defendant must be brought before the court to enter a plea.
(7) A Registrar may exercise the power of the court under this section to receive a not guilty plea from a defendant charged with a category 1, 2, or 3 offence.
(emphasis added)
[21] In terms of s 37(1), the facts of this case do not require s 39 to be considered because this was not a situation where the Court was requiring a plea from the defendant, rather, the defendant was wanting the Court to accept his plea of guilty to the EBA charge.
[22] Section 37(1) clearly enables the court, in its discretion, to receive a plea from a defendant. It is easy to see, when s 37 is looked at in its totality, why that would be the case. Where a defendant is not represented by a lawyer, s 37(3) requires the defendant to be given an opportunity to be informed about his or her rights and the substance of the charge must be read to him or her. These requirements must be met before the court may receive a plea from a defendant. If the court did not have a discretion under s 37(1) to receive a plea, the rights of a defendant, as outlined in subs (3), would not be met. But does the discretion extend to refusing to accept a plea from a defendant who is legally represented?
[23] The heading to the section places the emphasis on the fact that it is a defendant who may enter a plea. Section 10 of the Legislation Act 2019 states that the meaning of legislation must be ascertained from its text and in light of its purpose and context. The text of the legislation includes indications provided in the legislation, one example of which is a heading. But, more fundamentally in my view, it is the right of a defendant to enter a plea as soon as he or she wishes to do so subject to the safeguards provided for in s 37 which deal with the rights of unrepresented defendants.
[24] It is difficult to see what other situations would arise where a court would be justified in refusing to accept a plea of guilty from a defendant who was represented and in respect of which there were no outstanding issues about the capacity of the defendant to understand the legal advice they had received about a plea.
[25] Despite this, the wording of subs (1) is clear and unambiguous. The court has a discretion whether to receive a plea from a defendant or not. But the circumstances of the exercise of the discretion must be principled. In most cases, the court will accept a guilty plea from a defendant where they are represented. But, if a Judge in their discretion decides not to do so, in my view, the reasons for the exercise of this discretion should be clearly articulated. Without reasons, it is not possible to understand the basis for the Judge’s decision. This did not occur in this case.
[26] Having said this, this case presented some difficulties for the Judge. On the one hand, he was not required to fix an elementary error made by the Police in failing to lay the EBA charge as an alternative to the more serious charge of manslaughter. On the other hand, the error was a human error – a mistake by the Police officer concerned, and if there was a basis for the more serious charge, and it seems there is, then the public interest in that charge proceeding was also a consideration. But, as well and inevitably, because of the manslaughter charge, all charges were required to be transferred to the High Court.
[27] On the facts, in my view, the justice of the case required the Judge to exercise his discretion to accept the defendant’s plea of guilty to the EBA charge because the EBA charge at that stage was (and currently remains) a stand-alone charge rather than an alternative to the charge of manslaughter. But that is not the end of the matter, nor does it prevent the manslaughter charge proceeding because no conviction was required to be entered upon receipt of the guilty plea and because of the matters I outline below.
What impact does the guilty plea have on the charge of manslaughter?
[28] The CPA requires that where two or more charges are to be heard together and at least one of those charges is required to be tried in the High Court, then all must be tried in the High Court.6 This means the District Court Judge was required by law to transfer all charges to the High Court and could do so because the EBA charge has not been finally determined for the reasons I now outline.
[29] Even though the Judge was obliged to accept the plea to the EBA charge, under s 114 of the CPA, he was not obliged to enter a conviction in respect of it before transferring the proceeding to the High Court. The ability to postpone a final determination of the charge until other charges against a defendant have been dealt with is available to a Judge. The statutory language itself demonstrates that a plea and a conviction are two distinct concepts. Entry of a guilty plea does not equate to a conviction.7
6 Criminal Procedure Act, s 139(1)(b).
7 Blakemore v Waitakere District Council [2004] NZAR 115 (CA) at [10]; and Pritchard v Police
[2013] NZHC 3278.
[30] Because the option not to convict was open to the Judge, no conviction was entered (and appropriately so), the EBA charge has not been finally determined.
[31] However, the issue remains that the EBA charge is not laid as an alternative charge to the manslaughter charge, even though it was intended to be so and despite Mr Taylor’s guilty plea in relation to it.
[32] Mr Taylor cannot be convicted of both charges because a defendant cannot be convicted for the same offending twice. To avoid double jeopardy, either Mr Taylor’s guilty plea to the EBA charge must be accepted and a conviction entered, or the Crown must be permitted to amend the EBA charge as an alternative to the manslaughter charge. Whether the Crown is permitted to do so relies upon the EBA charge being a permissible alternative and the Crown’s ability to amend the charge.
[33] I now consider whether the EBA charge is a permissible alternative to the manslaughter charge. This requires considering whether the charges are mirror or overlapping charges.
Are the charges mirror charges or overlapping?
[34] The basic principle that overlapping charges must be laid in the alternative does not need to be disturbed as neither counsel challenge it, and rightly so. The defence however submit that the charges are mirror charges.
[35] I do not agree that the charges are mirror charges. Although both arise from the same factual scenario, the elements the Crown must prove in respect of each are different. The charges overlap but they are different in terms of their culpability and seriousness, and I agree with Mr Smith that they may be permissibly prosecuted in the alternative without any confusion as to the distinction between the two.
[36] Driving with excess blood alcohol causing death requires the Crown to prove that the defendant drove a motor vehicle with an excess blood alcohol and, in doing so, caused the death of the deceased. The Crown is not required to prove culpable driving, that is driving below the standard that would be expected of an ordinary road user.
[37] Manslaughter, on the other hand, requires the Crown to prove that the defendant did not take reasonable care when assessed with reference to the standard of care expected of a reasonable person while he was in control of his motor vehicle, constituting a failure to discharge the legal duty to take care when in control of dangerous things.8
[38] Alternatively, manslaughter can involve the killing of a person by an unlawful act.9 The unlawful act in this case is dangerous driving.
[39] In either case of manslaughter, the Crown must prove that the defendant’s conduct amounted to a major departure from the standard of care expected. The Crown need not prove that the defendant had a blood alcohol level in excess of the legally permitted limit in order to prove the manslaughter charge, even if that is part of the factual matrix.
[40] As the elements of both charges the Crown is required to prove beyond a reasonable doubt are different, they are, in my view, true alternatives. The facts relied upon to prove each charge will be different. For the manslaughter charge, the facts surrounding his manner of driving, such as his speed, his failure to stop both for Police and at intersections, driving through narrow residential streets, and his near misses of other vehicles and home dwellings, will all be directly relevant. In contrast, for the EBA charge, all that must be proven is that he drove with excess blood alcohol and in doing so caused the death of Mr McClelland.
[41] In Signal v R, the charges faced by the appellant “entirely overlapped, and for each of the three charges [the appellant’s] conduct was the same”.10 The Court of Appeal, in deciding to quash the conviction to avoid double jeopardy, applied by analogy s 26(2) of the New Zealand Bill of Rights Act 1990 that no one who has been convicted of an offence should be tried or punished for it again.11 The Court also cited Mitchell v Police, where the Supreme Court emphasised that repetitive prosecution for
8 Crimes Act, s 156.
9 Section 160.
10 Signal v R [2023] NZCA 549 at [65].
11 At [66].
what is substantially the same offence is prescribed by the rule against double jeopardy.12
[42] I agree with the Crown that the distinguishing factor from the cases cited by defence counsel is that here, the context is different because the Crown is not seeking to proceed with the manslaughter and EBA charges as stand-alone charges. Rather, it is acknowledged the fact the charges, which do overlap, were incorrectly laid separately instead of as alternatives. If the Crown intended to proceed with the EBA charge and the charge of manslaughter separately, this would amount to double jeopardy and one charge would have to be dropped. However, that is not the case here. It would be artificial to treat this case in line with those authorities when the present situation is so distinguishable.
Is the Crown able to amend the EBA charge?
[43] Having found the EBA charge is a permissible alternative, the final issue turns on the Crown’s ability to amend the charge, bearing in mind that for Mr Taylor’s case this is to be considered in the context of an error having been made by the officer in charge by failing to record this on the charging document.
[44]Section 187 of the CPA provides:
187 Assumption of responsibility for Crown prosecutions by Solicitor-
General
(1) The Solicitor-General must assume responsibility for and conduct every Crown prosecution from the time or stage in the proceedings prescribed in regulations.
(2) The Solicitor-General’s duty under subsection (1) may be performed by any Crown prosecutor.
…
[45] Category 4 offences are Crown prosecutions pursuant to reg 4 of the Crown Prosecution Rules 2013 (CPR) and extends to any other proceeding transferred to the High Court. Pursuant to reg 5(a) of the CPR, the Crown assumes responsibility from the time the proceeding is adjourned following the first appearance.
12 Mitchell v Police [2023] NZSC 104 at [37].
[46] Applied here, the Crown assumed responsibility for the manslaughter and EBA charges following Mr Taylor’s appearance in the District Court on 4 July 2023 after he had attempted to enter a plea, which the Judge declined to do.
[47] Section 190 of the CPA confers on the Crown prosecutor (or Solicitor-General) the power to amend charges. This section provides:
190 Power of Solicitor-General or Crown prosecutor to amend charge
(1) Without the leave of the court, the Solicitor-General or a Crown prosecutor may, on filing a notice under section 189 in relation to a proceeding, or before the trial and within any prescribed period after filing that notice, file in the court hearing the proceeding a notice to amend any charge to which that proceeding relates.
(2) On receipt of a notice to amend a charge under subsection (1) the court hearing the proceeding must amend the charge in accordance with the notice.
(3) Nothing in this section prevents the Solicitor-General or a Crown prosecutor at any other time requesting that the court amend a charge under section 133.
(4) The power to amend a charge under subsection (1) includes a power to substitute one offence for another offence, in which case section 134(2) applies.
(emphasis added)
[48] Regulation 6(1)(a) of the CPR stipulates that the notice period under subs (1) is the period ending with the date of the case review hearing.
[49] Consequently, the Crown can, as of right, amend charges that have not been finally determined from the time the proceeding is adjourned until the time of the case review hearing. Mr Taylor’s EBA charge has not been finally determined for the reasons outlined above. If the Crown was prohibited from amending the charge upon assuming responsibility because Mr Taylor had entered a guilty plea, but for which no conviction had been entered, then its power under s 190 would be made effectively redundant. This would be in direct contradiction to s 190(2) which states the court must amend the charge in accordance with the notice given by the Crown prosecutor.
[50] If the conviction had been or ought to have been entered, then the charge would have been finally determined and in turn, the Crown’s ability to amend the charge would be compromised. This is because a plea of prior conviction would apply. Under
s 46 of the CPA, a plea of prior conviction bars any subsequent charge of the same offence arising from the same facts or any other charge arising from the same facts. In that instance, the court must dismiss the subsequent charge under s 147 of the CPA, as Mr Taylor has requested be done here.13 However, a guilty plea not followed by entry of a conviction does not provide a basis for a plea of prior conviction.14 This special plea is not available for Mr Taylor. Therefore, the key here is that the charge has not been finally determined.
[51] The amendment here is sought by the Crown because of what was essentially an administrative error. In addition to the fact the Crown’s ability to amend the charge remains because it is not finally determined, in my view, it is also in the interests of justice that the amendment be allowed. It was evident to the Judge the EBA charge was intended to be laid as an alternative charge. Although procedural matters in any court proceeding are important and must be adhered to, it is inevitable that, at times, human error will intervene. The reason the Crown wants to amend the charge in this case is neither improper nor an abuse of process. The Crown only assumed responsibility at the defendant’s first appearance. It did not have an opportunity prior to Mr Taylor attempting to enter a guilty plea to amend the EBA charge. The Crown sought to do so at the earliest opportunity possible. No real prejudice to Mr Taylor has occurred as a result. This would only arise if a conviction had been entered, which for reasons discussed above, would result in the Crown being prohibited from amending the EBA charge. As a result, I find that the Crown has the ability to amend the EBA charge on the facts of this case.
Conclusion
[52] I conclude that the District Court should not have exercised its discretion to refuse Mr Taylor’s plea to the EBA charge but that it was open to the Judge, if he had taken the plea, to not enter a conviction pursuant to s 114 of the CPA in relation to it. Further, it was appropriate in this case, on its facts, for no conviction to be entered despite the guilty plea.
13 Criminal Procedure Act, s 46(1).
14 Jeremy Finn and Don Mathias, Criminal Procedure in New Zealand (online ed, Thomson Reuters) at [21.6.4].
[53] Because a conviction was not entered, the charge has not been finally determined and s 147 cannot apply. This means the Crown’s ability to amend the EBA charge as of right stands.
[54] I also conclude that the EBA charge is a permissible alternative charge to the charge of manslaughter.
[55] My conclusion effectively binds Mr Taylor to his guilty plea on the EBA charge. Assuming the Crown amend the charge as they intend to, this would mean that the trial would effectively proceed on the basis of the manslaughter charge. The fact that Mr Taylor has pleaded guilty to the EBA charge would be of no consequence. It is no different from a situation at trial where alternative charges of a more serious and lesser nature are laid or are inherent in the charge itself, but a defendant accepts at the outset of the trial that they are guilty of the lesser charge. For example, it is not uncommon in murder trials for a defendant to acknowledge that they are guilty of manslaughter but defend the murder charge. Should Mr Taylor be found not guilty of the manslaughter charge, then the fact he has indicated an early guilty plea to the EBA charge would mean his discount for an early plea will remain.
Result
[56] Mr Taylor’s application for stay of the manslaughter charge is dismissed. His application under s 147 is also dismissed because of my finding there is no double jeopardy.
Harland J
Solicitors:
RPB Law, Dunedin
John Westgate, Barrister, Dunedin.