R v Taylor
[2008] NZCA 558
•17 December 2008
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA61/2008
[2008] NZCA 558THE QUEEN
v
ARTHUR WILLIAM TAYLOR
Hearing:3 July 2008
Court:Chambers, Panckhurst and Fogarty JJ
Counsel:Appellant in Person
K Raftery for Crown
Judgment:17 December 2008 at 4 pm
JUDGMENT OF THE COURT
A An extension of time for appealing is granted.
B The appeal is dismissed.
REASONS
Chambers J [1]
Panckhurst J [112]
Fogarty J (dissenting in part) [131]CHAMBERS J
Table of Contents
Para No
A prisoner escapes [1]
Issues on the appeal [10]
Should Mr Taylor’s pleas of previous acquittal have been accepted? [25]
What was the effect, if any, of the judge’s failure to deal
with the “previous acquittal” dispute at the start of the trial? [60]
Did count 1 (the escape count) disclose a crime? [65]
Who did determine and who should have determined whether
Mr Taylor was “in lawful custody” at the time of the
car park incident? [72]
Was Mr Taylor “in lawful custody” at the time of the car park incident? [78]
Were the verdicts inconsistent? [83]
Did the fact that the sentencing took place in a different city from the trial
have any legal effect? [95]
Was Mr Taylor’s sentence too high compared with Mr Royal’s? [105]A prisoner escapes
[1] In early 2005, Child, Youth & Family Services became involved in the care arrangements of the young son of Arthur Taylor, the appellant, and a former partner of his. Mr Taylor at the time was a serving prisoner. The service scheduled a family group conference for 22 March 2005 in Wellington. Attendance at the conference was not compulsory and for that reason no order to produce Mr Taylor was issued under s 26 of the Penal Institutions Act 1954.
[2] Mr Taylor indicated a wish to attend the conference, which the prison authorities respected. Three prison guards accompanied Mr Taylor to the conference; Mr Taylor was handcuffed to one of them. When the quartet reached the basement garage of the Wellington central city building where the conference was to take place, they were greeted by one Manu Royal armed with an air pistol. The prison guards believed it was a pistol capable of firing bullets and either injuring or killing them. Messrs Taylor and Royal forced one of the guards to unlock the handcuffs. They then handcuffed two of the prison guards together.
[3] Messrs Taylor and Royal then escaped. The police caught them a short time later.
[4] The Crown subsequently filed an indictment against Mr Taylor containing eight counts. There were three counts of aggravated wounding under s 191(1)(a) of the Crimes Act 1961: one count relating to each prison guard. There were three counts of kidnapping under s 209(1)(b) of the Crimes Act: again, one count for each prison guard. There was one count of having an airgun with intent to commit an offence, contrary to s 55 of the Arms Act 1978: it was the Crown case that Mr Taylor was the instigator of the escape plan, had got Mr Royal involved, and had arranged for him to obtain an airgun for the purpose of facilitating the plan. Finally, there was a count of escaping from lawful custody, an offence under s 120 of the Crimes Act.
[5] Shortly before the trial was to start, the Crown decided to drop the three counts of aggravated wounding. Mr Stone, at that time the Wellington Crown Solicitor, advised the trial judge, Ronald Young J, that the Crown would offer no evidence on the three aggravated wounding counts. He invited the judge to discharge the accused on those three counts under s 347 of the Crimes Act, which the judge then did. That left Mr Taylor facing the five remaining counts.
[6] Mr Taylor was then arraigned. When asked how he pleaded to the three kidnapping counts, he said “previous acquittal”. He pleaded not guilty to the remaining counts. The basis of Mr Taylor’s previous acquittal pleas was his deemed acquittals on the aggravated wounding counts: see s 347(4). Mr Stone disputed the pleas were available to Mr Taylor in the circumstances. Ronald Young J decided not to resolve the issue at that time. With the agreement of Mr Stone and Mr Taylor, who was by choice appearing for himself, the judge advised the jury that they would proceed with the trial on the basis that Mr Taylor had pleaded not guilty to the kidnapping counts. The judge advised the jury that before the end of the trial he would rule on whether as a matter of law pleas of previous acquittal were available to Mr Taylor. The judge did so rule later in the trial; the ruling was that the pleas were not available.
[7] In due course, the jury returned verdicts of guilty on four of the charges. The jury found Mr Taylor not guilty on the Arms Act charge.
[8] The judge subsequently sentenced Mr Taylor to an overall sentence of four years’ imprisonment. He directed Mr Taylor was to serve a minimum period of imprisonment of two years. The new sentences were to be cumulative on the existing sentences Mr Taylor was serving.
[9] Mr Taylor has now appealed against his convictions and sentence.
Issues on the appeal
[10] Mr Taylor chose to argue the appeal himself. He took seven points on the appeal against conviction.
[11] The first was whether his pleas of previous acquittal should have been accepted.
[12] The second related to how the judge had dealt with the dispute whether pleas of previous acquittal were open to Mr Taylor. The judge dealt with the matter in the way I have outlined at [6] above, not in the end giving his ruling until the close of the Crown case. Unfortunately, neither Mr Stone nor Mr Taylor had drawn the judge’s attention to s 357(3) of the Crimes Act at the time the dispute arose. That subsection reads as follows:
The pleas of previous acquittal, or previous conviction, and pardon may be pleaded together, and if pleaded shall be disposed of by the Judge, without a jury, before the accused is called on to plead further; and, if every such plea is disposed of against the accused, he shall be allowed to plead not guilty.
[13] The issue that now arises is the effect, if any, of the judge’s failure to deal with the “previous acquittal” dispute at the start of the trial.
[14] The third issue is whether count 1 (the escape count) disclosed a crime.
[15] Mr Taylor’s fourth point also related to count 1. He disputed he could be guilty of escaping as he was not “in lawful custody” at the time. Mr Taylor complained that the judge had determined this question, whereas it was a matter that should have been left to the jury. Mr Raftery, for the Crown, responds that the judge did leave this question to the jury. Who is right?
[16] This leads on to Mr Taylor’s fifth issue. Regardless of who did determine or should have determined whether he was “in lawful custody” at the time, was he? Mr Taylor says he was not.
[17] The sixth issue is whether the judge was correct in his directions on the elements of the escape charge. This issue, as Mr Taylor conceded, is contingent on his argument under the third issue succeeding.
[18] The final issue is whether the verdicts were inconsistent.
[19] The appeal against sentence was to some extent contingent on what happened with respect to the conviction appeal. If some of the guilty verdicts were knocked out, then the overall sentence would need to be recalibrated. Even if, however, the conviction appeal failed, Mr Taylor raised two points on sentence.
[20] The first related to the fact the judge decided, for reasons we shall later explain, to sentence Mr Taylor in Auckland rather than in Wellington, where the trial had taken place. Mr Taylor argues that this change of venue was improperly obtained. The issue could perhaps be stated thus: did the fact that the sentencing took place in a different city from the trial have any legal effect?
[21] The second matter Mr Taylor raised was whether his sentence was too high compared with that his co-offender, Mr Royal, received.
[22] The panel is unanimous in its response to all issues other than the first. On all issues other than the first, therefore, the reasons that follow are the court’s reasons; it is appropriate, therefore, that I talk about “we” when referring to our thoughts and reasons in respect of them. On the first issue, however, we are divided. Panckhurst J and I consider Ronald Young J was correct to reject Mr Taylor’s pleas of previous acquittal; Fogarty J disagrees. I have read Panckhurst J’s separate reasons for judgment on the first issue. As he says, the difference between us on this topic is no more than one of emphasis. The essential nature of our joint reasoning is the same.
[23] We shall now deal with the above issues in turn. Before doing that, we should note that Mr Taylor filed his appeal in this court late. This is because he attempted to leap‑frog the Court of Appeal under s 14 of the Supreme Court Act 2003. That leap‑frog appeal was unsuccessful: [2008] NZSC 43. Following the dismissal by the Supreme Court of his application for leave to appeal, Mr Taylor belatedly sought to bring his appeal, which would have been as of right if timely, in this court. The Crown did not oppose Mr Taylor being granted an extension of time. We grant it.
[24] There has been delay in the release of this judgment. Following the hearing, we found we needed further submissions on the first issue. Mr Taylor’s submissions with respect to that matter were not received until 29 October. The Crown’s submissions in response were received on 31 October. The delay since then has arisen from the difficulties thrown up by the first issue. As will be apparent, we have, in the end, not been able to find common ground with respect to that issue.
Should Mr Taylor’s pleas of previous acquittal have been accepted?
[25] The answer to this question involves a close analysis of ss 356-360 of the Crimes Act. The drafting of these sections is curious and archaic.
[26] The starting point is s 356. It provides that, when the accused is called upon to plead, he or she may plead “either guilty or not guilty, or such special pleas as are hereinafter provided for”. One of those “special pleas” is the plea of previous acquittal: see s 357(1). If it is to be pleaded, it must be pleaded “according to the provisions hereinafter contained”. Those provisions are set out in subss (3) and (4). The court must then determine whether the plea is to be allowed.
[27] Nearly always there will need to be a “trial” as to whether the plea of previous acquittal (or previous conviction, as the case may be) can be pleaded because that question will be in dispute. After all, the Crown would not be bringing the fresh charge if it thought the accused was entitled to plead a special plea. This “special pleas trial”, as I shall call it, is to be conducted “by the Judge, without a jury”: see s 357(3). The Act envisages that evidence will be called as to what happened at the former trial which is said to have resulted in the relevant acquittal or conviction, including the evidence given at that trial: see s 360.
[28] Sections 358 and 359 represent a codification of the circumstances in which pleas of previous acquittal and conviction might succeed. They are a carry-over from ss 403 and 404 of the Crimes Act 1908; those sections were in turn simply carried over from ss 379 and 380 of the Criminal Code Act 1893, our first statutory criminal code. The sections bristle with difficulties, meticulously exposed by Professor Mahoney in his scholarly article, “Previous Acquittal and Previous Conviction in New Zealand: Another Kick at the Cheshire Cat” (1989) 7 OLR 222, to which I am indebted. The sections are well overdue for legislative reform.
[29] Be that as it may, the special pleas trial, if successful from the accused’s perspective, will, depending on the circumstances, result in:
(a)the court giving judgment that the accused be discharged from the count: see ss 358(1) and 359(3); or
(b)the court directing that the accused not be convicted on the count of any offence of which he or she might have been convicted on the former trial, but directing the accused “plead over” as to any other offence charged: see s 358(2); or
(c)the previous acquittal or conviction being a bar to the indictment: see s 359(1) and (2).
[30] If, on the other hand, the judge finds against the accused – or, in the words of s 357(3), “if every such plea is disposed of against the accused” – then the accused is allowed to replead and may, of course, enter a plea of not guilty.
[31] Both before Ronald Young J and before us, argument focused on s 358(1). That subsection reads as follows:
(1)On the trial of an issue on a plea of previous acquittal or conviction to any count, if it appears that the matter on which the accused was formerly charged is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the offences of which he may be convicted on any count to which that plea is pleaded, the Court shall give judgment that he be discharged from that count.
[32] At the hearing before Ronald Young J, the parties concentrated on whether the aggravated wounding charges were “the same or substantially the same” as the kidnapping charges in terms of their elements.
[33] His Honour concluded that the two charges were “quite distinct”: HC WN CRI2005-085-5744 3 September 2007 at [14]. He continued:
The aggravated wounding charge is concerned with violently rendering an individual incapable of resistance to facilitate the commission of a crime. Kidnapping is concerned with the unlawful detention of an individual.
[34] Having concluded the two charges were quite distinct, the judge ruled that Mr Taylor’s discharge on the counts of aggravated wounding did not allow him to plead previous acquittal to the kidnapping charges.
[35] Mr Taylor advanced before us the same argument he had put to Ronald Young J, namely that the two charges were substantially the same. Mr Raftery sought to uphold the judge’s reasoning. Following the hearing, it occurred to us that neither side had addressed the second element which must be satisfied under s 358(1) before a plea of previous acquittal or conviction is permitted. That is, it must be shown that the accused “might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the offences of which he may be convicted on any count [in the present trial] to which [the special] plea is pleaded”. We caused a minute to be sent out, seeking further submissions. We are grateful for the submissions subsequently filed.
[36] In the end, I have concluded we do not need to determine whether the aggravated wounding charges and the kidnapping charges were the same or substantially the same. That is because I am satisfied that, in the circumstances of this case, the second criterion for a s 358(1) discharge was not fulfilled. There was no “former trial”. That term is not defined, but clearly a trial does not commence prior to the accused’s arraignment: see s 355. (Where an accused is arraigned prior to trial at a callover, a practice seemingly condoned by this court in R v Ratu CA22/06 19 July 2006, the trial, for these purposes, would not commence until the process of empanelling jurors started, the phase of the trial immediately following the traditional act of arraignment.) Mr Taylor’s discharge had already occurred by the time of his arraignment. He was never in jeopardy of conviction on the aggravated wounding charges. It is a question for another day as to how far the original trial must have progressed before it will count for the purposes of s 358(1), but, as Professor Mahoney said, it “must have progressed at least to the point where it can be said that the accused was in jeopardy of conviction”: at 253.
[37] I am aware that this interpretation does mean that there will be rare circumstances in which a deemed acquittal will not qualify as a “previous acquittal” for the purpose of s 358(1), although, interestingly enough, it would probably count for the purposes of s 359(1) and (2). The circumstances in which it will not count arise where the accused is discharged under s 347(1) prior to trial. Such a discharge is a deemed acquittal in terms of s 347(4), but not an acquittal at a “former trial” for the purposes of s 358(1).
[38] How has this mismatch come about? Under the Criminal Code Act 1893 and the Crimes Act 1908, the only way in which an accused could be “acquitted” was at a trial. There was no way in which an accused could be “acquitted” prior to trial. It was entirely logical, therefore, that the forerunners of s 358 (s 379 of the 1893 Act and s 403 of the 1908 Act) should refer to a “former trial” as the place at which the acquittal should have occurred. Both Acts provided for discharges of accused both pre-trial and at trial, but such discharges, while having “the effect of an acquittal”, were not actually acquittals: see Higgins v Hart [1955] NZLR 1202. It was not until 1960 that a judicial discharge under the then equivalent of s 347 became a deemed acquittal: see the amendment to s 42 of the Criminal Justice Act 1954 effected by s 10 of the Criminal Justice Amendment Act 1960. That amendment – creating the deemed acquittal – was then carried over the next year into s 347 of the new Crimes Act 1961. It is obvious that the drafters of this amendment in 1960 and 1961 did not think through the potential implications for s 358(1), which was simply carried over unchanged.
[39] I have carefully considered whether we should interpret s 358(1) as if the reference to “former trial” should be expanded to cover the situation where an accused has formerly been discharged prior to trial under s 347(1). In the end, I have decided such an interpretation is simply not possible. It strains too far the wording of s 358(1); indeed, I do not know how one would rewrite the second criterion of that subsection. Further, if “former trial” were to be given an extended meaning in s 358(1), the same term in s 358(2) and s 359(3) would have to be given the same expanded meaning – and both of those subsections are just impossible to apply in circumstances where there has not actually been a former trial! Obviously too, the expanded meaning gives rise to difficulties under s 360.
[40] In short, if there is to be change, it must be legislative change. Indeed, I consider ss 356-360 need considerable rethinking, particularly for the reasons Professor Mahoney gave in his article.
[41] Having said that, I do not think any injustice has occurred in this case. This is because I do not think Mr Taylor should have been discharged under s 347 at all! Section 347 draws a clear distinction between the position pre-trial and at trial. The latter situation is governed by s 347(3), which reads as follows:
The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.
[42] It is clear, from numerous High Court trials, that this power may be exercised on a count by count basis. So, during trial, the judge may discharge an accused on count 1 but leave count 2 to the jury. The discharge is deemed to be an acquittal: see s 347(4).
[43] At pre-trial, however, a different regime applies. If a defendant considers a particular count in an indictment is unsustainable, he or she can apply to the court to have that count quashed under s 345(5). If the prosecution wishes to drop a charge, it can apply to do so under s 345D. Neither application, if successful, leads to a deemed acquittal. If, on the other hand, the entire indictment is unsustainable, then the appropriate procedure is an application under s 347(1). Under that subsection, the court has two primary powers:
(a)it can direct that no indictment be filed; or
(b)if an indictment has been presented, it can direct that the accused not be arraigned thereon.
[44] If the court makes either order, it may then go on to direct the accused be discharged. Such a discharge, like a discharge under s 347(3), gives rise to a deemed acquittal.
[45] There is one other pre-trial scenario I should mention for completeness. Sometimes the Crown and the accused will agree that, if the accused pleads guilty to count 1, the Crown will drop or present no evidence on count 2. Although the Crimes Act does not envisage or sanction “deals”, there is at least one way in which this rather common scenario can be satisfactorily handled under the Act. The accused should sign a request advising his or her wish to plead guilty to count 1: see s 321. The accused is then called before the court. The accused is asked to plead either guilty or not guilty to count 1. If the accused pleads guilty, the court can then sentence the accused on that matter. The accused is treated as if he or she had on arraignment pleaded guilty to the charge on an indictment duly presented. Only one charge (count 2) would now remain. The prosecutor in these circumstances could then apply under s 347(1) either for a direction that no indictment be filed or, if an indictment has been presented, for a direction the accused not be arraigned on it. The court, if it agreed, could then make the appropriate direction and discharge the accused on the remaining count on the indictment.
[46] In my view, Mr Stone adopted the wrong procedure in this case. He wanted to drop only the aggravated wounding counts, not the indictment as a whole. He should have applied under s 345D. Had he done so, he would almost certainly have been granted leave to file an amended indictment, with the aggravated wounding charges removed. Instead, the matter seems to have been dealt with, at least formally, under s 347(1), even though the Crown sought neither of the primary remedies available under that subsection. Nor did the judge make a direction that Mr Taylor not be arraigned. On this point, I agree with Panckhurst J that neither s 347(1) nor s 347(3) is “a comfortable fit”. Maybe Ronald Young J did not look at the section before ruling.
[47] As it turns out, in practical terms, the matter was dealt with exactly as it would have been had Mr Stone taken the s 345D route. The indictment he presented to the court did not contain the aggravating wounding charges; it contained only the five counts remaining, which were described as “first count” through to “fifth count”. Each juror was, at the start of the trial, given a jury folder containing the indictment in that amended form.
[48] If my view is correct, then Mr Taylor wrongly got the benefit of a deemed acquittal under s 347(4). What should have happened is the aggravating wounding charges should simply have been “removed” from the indictment. Had the correct course been followed, the question of pleas of previous acquittal would not have even been on the table for consideration, as there would not have been any acquittals.
[49] Be that as it may, Mr Taylor was discharged, whether rightly or wrongly, under s 347(1). It would be unfair now to deprive him of his deemed acquittals on the aggravated wounding charges. I have proceeded on the basis he was formerly acquitted on those charges.
[50] Nor do I think my refusal to give s 358(1) an “expanded” interpretation will generally give rise to injustice. The mismatch that exists between s 347 and 358(1) is minimal. A discharge under s 347(3) – that is, a discharge at trial – will count under s 358(1). A discharge on individual counts pre-trial, if the above argument is right, will not count for s 358(1) purposes, as such discharges are not deemed acquittals. The only possible mismatch will arise in circumstances where the entire indictment is thrown out pre-trial. That would be a deemed acquittal but, because there would not have been a trial, s 358(1) could not be called in aid by an accused in the unlikely event a fresh indictment was brought. I am not certain a fresh indictment could be presented in such circumstances – we have heard no submissions on that – but, even if it could be, I think there are other mechanisms by which the court could restrain improper relitigation of a failed indictment. In these circumstances, I am satisfied that the court could, if the Crown sought to lay an identical or near-identical charge after a s 347(1) discharge, stay the later prosecution. The situation is well summarised in Robertson (ed) Adams on Criminal Law (looseleaf ed) at [Ch4.3.06]:
It is well established that in certain circumstances it may be an abuse of the process of the Court to re-litigate issues which are substantially the same as those which have already been litigated in previous proceedings, even though the circumstances may not fall strictly within the principles of autrefois acquit or autrefois convict. An attempt to challenge an earlier decision “by a side-wind” is often referred to as a “collateral attack”.
In Connelly v DPP [1964] AC 1254; 2 All ER 401 (HL), the House of Lords recognised that such a jurisdiction existed, but declined to apply it in the circumstances of the case.
The discretion was exercised in R v Beedie [1998] QB 356; [1997] 2 Cr App R 167, at p 177, where a manslaughter charge was stayed where it had been laid after the defendant had already been convicted of a less serious offence arising from the relevant conduct, even though a plea of prior conviction was not available.
[51] What I have said so far is sufficient to dispose of this issue against Mr Taylor: the judge was correct in not accepting Mr Taylor’s pleas of previous acquittal as the requirements of s 358(1) were not fulfilled. In the minute we sent out after the hearing, however, we referred Messrs Taylor and Raftery to three English cases and to a decision of the High Court of Australia (on appeal from the New South Wales Court of Criminal Appeal). We invited comment, among other things, on the applicability of those cases to New Zealand. On further reflection, we do not consider any of these cases to be of direct relevance as neither England nor New South Wales has a statutory equivalent of our s 358. The circumstances in which pleas of previous acquittal and previous conviction may be entered are, in those jurisdictions, still determined by the common law.
[52] Having said that, however, I am satisfied that the same conclusion I have reached under s 358(1) would have been reached under the common law, as it has developed. That tends to reinforce the underlying justice of our interpretation of the statutory provision.
[53] Because the English and Australian authorities which we referred to Messrs Taylor and Raftery have no direct application here, I mention them only briefly. The leading English authority appears to be R v Dabhade [1993] 1 QB 329. In that case, the Court of Appeal considered in depth a number of authorities as to when pleas of previous acquittal and previous conviction were available. The court then set out four propositions which it said it had “been able to glean” from the authorities: at 341. The first of those propositions was this:
1.For the principle of [previous acquittal or previous conviction] to apply, the defendant must have been put in jeopardy. Quite apart from all other requirements, he must demonstrate that the earlier proceedings that he relies upon must have been commenced – that is, by plea in summary proceedings, or by his being put in charge of the jury in a trial on indictment.
[54] Thus, Mr Taylor would have been equally stymied under English common law, as he was never put in jeopardy on the aggravated wounding charges, they having been withdrawn prior to his being put in charge of the jury.
[55] Dabhade has since been considered by the English Court of Appeal in R v Brookes [1995] Crim LR 630 and R v G(autrefois acquit) [2001] 1 WLR 1727. There has been debate as to whether Brookes incorrectly extended Dabhade. I find it unnecessary to get into that debate, since none of the English cases is binding or even necessarily persuasive, given we are operating in a statutory setting, not a common law one.
[56] The Australian High Court decision I have considered is Island Maritime Limited and Kulkarni v Filipowski (2006) 226 CLR 328. In that case, the owner and master of a ship had been charged with discharging oil contrary to s 27(1) of the Marine Pollution Act 1987 (NSW). At the conclusion of the prosecutor’s case, counsel for the defendants made a submission that there was no case to answer based, among other things, on a construction of the Marine Pollution Act according to which s 27 could not apply to a discharge to which Part 2 or Part 3 of the Act applied. Talbot J, the trial judge, upheld the submission on that basis and dismissed both summonses. Subsequently, the prosecutor initiated fresh proceedings relating to the same oil discharge, this time, however, alleging contraventions of s 8 of the Marine Pollution Act. The defendants applied for an order permanently staying the new proceedings on the basis of the double jeopardy rule (prior acquittals) and abuse of process. Bignold J dismissed the applications, a decision subsequently affirmed by the New South Wales Court of Criminal Appeal and later the High Court of Australia. The High Court held that the appellants had never been in jeopardy on the first trial, as they had been charged under the wrong section.
[57] I accept immediately the circumstances in Island Maritime were different from the circumstances here: the aggravated wounding charges here were not defective in the way the original charges were defective in the Australian case. But the underlying principle of the Australian decision accords with the position under our statutory provision, namely that defendants should not be able to plead previous acquittal if they were not truly in jeopardy under the earlier charges. In our case, Mr Taylor was not in jeopardy because the aggravated wounding charges were withdrawn before his arraignment; in Island Maritime, the appellants were never in jeopardy in the relevant sense because of the defective nature of the original charges.
[58] Since preparing the above, I have read the opinion of Fogarty J dissenting on this point. I do not accept there is a conflict between s 347 and s 358. I agree s 347 was almost certainly introduced into our criminal code without proper thought being given to its relationship with s 358, but that does not mean the sections are necessarily in conflict. It has never been the case under either the common law or our criminal code that an acquittal has, in all circumstances, been able to sustain subsequently a plea of previous acquittal. The English and Australian cases cited above are proof of that, as are other cases cited in them.
[59] As Panckhurst J has explained, the principle of double jeopardy is at the heart of the previous acquittal regime. The strained interpretation Fogarty J is forced to give s 358(1) does not seem to be underpinned by any particular policy or justice consideration: why should an accused be able to plead previous acquittal if he or she has never previously, in truth and fact, been in jeopardy of conviction? Fogarty J acknowledges that the prosecutor could and should have achieved his desired aim by a statutory means which would not have given rise to an acquittal or the possibility of a plea of previous acquittal. There seems no pressing reason why the law should be strained so that Mr Taylor can reap an undeserved benefit in circumstances where both prosecutor and trial judge simply looked at the wrong section in the Act.
What was the effect, if any, of the judge’s failure to deal with the “previous acquittal” dispute at the start of the trial?
[60] It is common ground that the judge should have ruled on the availability of a previous acquittal plea at the time and before the trial proceeded.
[61] Panckhurst J and I have concluded that previous acquittal pleas were not available to Mr Taylor. That was the conclusion to which Ronald Young J also came, albeit not until the end of the Crown case. We do not consider His Honour’s delay in giving his ruling led to the trial being a nullity. But did the delay lead to a miscarriage of justice in terms of s 385(1)(c) of the Crimes Act?
[62] We asked Mr Taylor to identify any prejudice he suffered from the delay, assuming the ruling, when it came, was right. The only matter he could point to was the possibility the jury might have thought the judge had ruled against Mr Taylor’s being able to plead previous acquittal because, by the end of the Crown case, the judge thought the Crown case a strong one. In other words, the jury might have concluded the judge’s view of the case was favourable to the Crown.
[63] Unfortunately, the judge did not keep a record of what he said to the jury. We have no account of how he explained his decision to them. But the suggestion Mr Taylor now makes is mere speculation. In any event, the judge in his summing‑up gave the jury the standard warning that it was their job to decide the facts. He added:
So if during the course of what I say to you, I seem to express a view of the facts that’s different from your view, you hold on to your view. That’s only right and proper because at the end, you’re going to decide the verdict here, not me. So the facts are for you and for you alone. Of course, as part of the analysis of facts, you will need to consider the witnesses, which of the witnesses you believe, which you don’t believe, which witnesses you think are reliable and which witnesses you think are unreliable. You may decide part of a witness’s evidence is true, none of it’s true, or all of it’s true. It’s entirely a matter for you, which parts you think are truthful or otherwise. The evidence is for you.
[64] The delay in resolving the “previous acquittal” dispute did not cause a miscarriage of justice.
Did count 1 (the escape count) disclose a crime?
[65] Count 1 of the indictment read as follows:
THE CROWN SOLICITOR AT WELLINGTON CHARGES that ARTHUR WILLIAM TAYLOR on or about the 22nd day of March 2005, at Wellington, being in lawful custody did escape from such custody.
[66] The side-note gave a reference to the Crimes Act 1961, s 120.
[67] Section 120 reads as follows:
120Escape from lawful custody
(1)Every one is liable to imprisonment for a term not exceeding 5 years who,‑
(a)having been convicted of an offence, escapes from any lawful custody in which he may be under the conviction; or
(b)whether convicted or not, escapes from any prison in which he is lawfully detained; or
(ba)being subject to an order or direction made under any of sections 38, 42, and 44 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 or section 171(2) of the Summary Proceedings Act 1957, escapes from the place in which he or she is required to stay under the order; or
(c)being in lawful custody otherwise than aforesaid, escapes from such custody.
(2)For the purposes of this section, custody under an illegal warrant or other irregular process shall be deemed to be lawful.
[68] Mr Taylor submitted that that section creates four separate offences. His submission appears to be that the indictment did not comply with any of them. Rather, he was charged with “a non-existent offence”.
[69] We would have thought it clear that the Crown relied on s 120(1)(a). There was no dispute that, as at 22 March 2005, Mr Taylor was in prison serving a sentence in respect of an offence for which he had been convicted.
[70] But we need to take this point no further, as the Supreme Court has ruled on it when dismissing Mr Taylor’s application for his proposed leap-frog appeal. He raised this same argument in the submissions he made to the Supreme Court. They responded at [3]:
There is nothing in this point. Although the indictment may not have followed the precise wording of s 120, it plainly alleged that Mr Taylor had escaped from lawful custody and had thereby committed an offence under that section.
[71] Our dismissal of Mr Taylor’s argument on this point also determines his sixth issue, which was contingent on the success on the above argument.
Who did determine and who should have determined whether Mr Taylor was “in lawful custody” at the time of the car park incident?
[72] Mr Taylor submitted that the judge had determined whether he was “in lawful custody” at the relevant time. He submitted this was a matter which should have been left to the jury. But it was. Mr Raftery is quite correct on that. This matter is clear from [8] of the judge’s summing-up and from the jury handout the judge provided. That specified, as the first thing the Crown had to prove on count 1, that “the accused was in lawful custody”. That is the short answer to this point.
[73] We may add, however, that we think the judge was wrong to leave this matter to the jury. He should have determined, as a matter of law, whether Mr Taylor was in lawful custody. That is what this court held in R v Keane [1921] NZLR 581 and in R v Otto [1951] NZLR 602 at 604 (SC), approved on appeal at 611-614. In the former, Mr Keane was found guilty of assisting a prisoner (McCan) in escaping or attempting to escape from lawful custody. McCan, who was a prisoner, walked away from a prison quarry without being observed and reached an Auckland city hotel. He met there Mr Keane, who took McCan to his lodgings and lent him a suit of clothes, which McCan put on. At trial, Stout CJ held that McCan was in lawful custody at the time he met Mr Keane, with the consequence that, if the jury found Keane and McCan had agreed to exchange clothes in order to facilitate McCan’s escape, the jury ought to find Mr Keane guilty: at 582. The Court of Appeal disagreed with the Chief Justice and allowed the appeal. They held McCan had already escaped from lawful custody before Mr Keane became involved. The important point for present purposes, however, is that both courts agreed the question of whether McCan was in lawful custody was a question for the judge, not the jury. Keane was followed in R v Kafka [1962] NZLR 351, where the trial judge ruled that the prisoner whom Mr Kafka was alleged to have helped escape was in lawful custody at the relevant time.
[74] Otto is to similar effect. It was followed by Miller J when he was dealing with a pre-trial application brought by Mr Taylor’s wife: see R v (Carolyn) Taylor [2007] NZCA 318. Mrs Taylor had been charged with various offences relating to Mr Taylor’s escape, including unlawful possession of an airgun and assisting escape. She made an application under s 347 of the Crimes Act for a discharge on the basis that Mr Taylor was not in lawful custody at the time of the escape, with the consequence that she could not be convicted of assisting his escape from lawful custody. Miller J ruled that, as a matter of law, Mr Taylor was in lawful custody. As a consequence of that ruling, Mrs Taylor pleaded guilty. She then appealed against her convictions. As this court said at [5], in essence, she sought to vacate her guilty pleas. The appeal turned on whether “there [was] an arguable mistake of law in Miller J’s assessment of the lawfulness of Mr Taylor’s custody”. This court held there was not.
[75] Mr Raftery submitted the judge had been correct to leave this matter to the jury. In his written submissions, he did not refer to Keane or Otto or this court’s decision in Mrs Taylor’s case. Rather, he relied on the Privy Council’s advice in Dillon v R [1982] AC 484, on appeal from the Court of Appeal of Jamaica. That case is not authority for the proposition that determining whether someone is in lawful custody for Crimes Act purposes is a jury question. Mr Dillon, a police constable, was charged with having negligently permitted two prisoners lawfully in his custody to escape. He was tried before a magistrate. The Crown, by error, failed to call any evidence to prove that the prisoners were in lawful custody. The question was whether the Crown did have to prove the prisoners were in lawful custody or whether they could rely either on the maxim that “everything is presumed to be right and duly performed until the contrary is shown” or on a particular statutory provision, which, in certain circumstances, deemed prisoners to be lawfully confined. For reasons which are not currently material, the Privy Council held neither the maxim nor the statutory provision was available to the Crown. In those circumstances, the Crown did have to establish, as “a necessary pre-condition for the offence of permitting escape”, that the detention was lawful: at 487. Since the trial had been before a magistrate, nothing turned on whether that was a judge question or a jury question.
[76] We have no doubt that Dillon was correctly decided. But it is not authority for the proposition that it is for the jury to determine, on a s 120 charge, whether the escapee was “in lawful custody”.
[77] As it turns out, no miscarriage of justice in the present case arose from the judge leaving this question to the jury. That is because, as we shall discuss in the next section, Mr Taylor was in lawful custody at the relevant time. We know from the fact that the jury convicted Mr Taylor on count 1 but they too must have been satisfied he was in lawful custody. As it turns out, they came to a conclusion which conformed with the law.
Was Mr Taylor “in lawful custody” at the time of the car park incident?
[78] Mr Taylor submitted that he should not have been found guilty on the s 120 charge as he was not “in lawful custody” at the time of the car park incident. He gave his reasons for that submission.
[79] We do not need to detail these, as this question has been conclusively determined by both this court and the Supreme Court.
[80] First, exactly the same argument as Mr Taylor ran before us was advanced by Mr Tennet on Mrs Taylor’s behalf, as we have noted above (at [74]). This court held that Miller J had been right to rule that Mr Taylor was “in lawful custody” at the time of the car park incident. This court considered Mr Taylor was in lawful custody in terms of s 16(2) of the Penal Institutions Act 1954: at [37]‑[40]. Even if that were wrong, this court said, the custody would nonetheless be deemed to be lawful under s 121(4) of the Crimes Act: at [33]-[36]. We are bound by that reasoning. It is directly applicable to Mr Taylor, with only one tweak. In his case, the provision deeming his custody to be lawful is s 120(2) rather than s 121(4). Section 120 is the section dealing with escaping; s 121 deals with those who assist others to escape. But the two subsections referred to are in identical terms.
[81] If that were not enough, we also have the guidance of the Supreme Court, as this was a point Mr Taylor sought to take on his leap-frog appeal. The Supreme Court described this argument as “hopeless” and one that could not possibly succeed: at [2]. The Supreme Court went on to uphold this court’s decision on this point in Mrs Taylor’s case.
[82] Bound by these authorities, we hold Mr Taylor was “in lawful custody” at the time of the car park incident.
Were the verdicts inconsistent?
[83] Both Mr Taylor and Mr Raftery were agreed on the appropriate test for inconsistent verdicts. The primary authority relied on by Mr Taylor was R v Irvine [1976] 1 NZLR 96 at 99 (CA):
The question which we must ask ourselves is whether the acquittal on count one, in all the circumstances of this particular case, renders the verdict of guilty in respect of count two unsafe, in the sense that no reasonable jury could have arrived at different verdicts on the two different counts.
[84] In arriving at that test, this court followed decisions in R v Stone [1955] Crim LR 120 (CA), R v Drury (1971) 56 Cr App R 104 (CA), R v Durante [1972] 1 WLR 1612 (CA), and Koury v R (1964) 43 DLR (2d) 637 (SC).
[85] Mr Raftery cited this court’s recent decision in R v Shipton [2007] 2 NZLR 218 at [75]:
The general principle has long been that a conviction is unsafe if no reasonable jury, properly instructed, could have arrived at the conclusion which was in fact reached (R v Stone [1955] Crim LR 120 per Devlin J). The burden is on the accused to demonstrate that the only explanation for the inconsistency must be that the jury was confused or adopted the wrong approach, thus making the verdict unsafe. Only this can warrant the intervention of an appellate Court and generally there ought to be a curial reluctance to interfere with a jury verdict (R v H [2000] 2 NZLR 581 at p 589 per Keith J).
[86] The tests in Irvine and Shipton are substantially the same. Where Mr Taylor and Mr Raftery parted company was on the application of that test to the verdicts in this case.
[87] Mr Taylor submitted that it was the Crown case that he had been involved in the planning of the escape. He had arranged for his wife to purchase the airgun used in the escape.
[88] Mr Taylor said that, when he gave evidence at trial, he had denied the existence of any plan and had said that he had left the prison officers because he feared for his safety. In essence, he had decided to go along with Mr Royal because he feared for the consequences if he did not.
[89] He further submitted that his acquittal on the Arms Act charge must mean that the jury concluded he was not part of any plan to escape because “the use of a weapon was in the circumstances an essential integral part of any such plan”. He said that, if the jury accepted his evidence he was not part of any plan to escape, “then the only logical reason for them to disbelieve [him] on the escape and kidnapping charges would be if they reasoned that, even though not part of any plan, [he] had taken advantage of Manu Royal’s appearance with the airgun to escape”. Such a conclusion, he submitted, was not how the Crown had put its case to the jury. Such reasoning would be illogical and therefore unreasonable.
[90] We do not accept that submission. There was no direct evidence that Mr Taylor knew specifically of the gun. This may have caused the jury to entertain a reasonable doubt as to whether he had arranged for Mr Royal to obtain the airgun. But that does not mean the jury were not satisfied about his involvement in the plan to escape. There was plenty of evidence by way of telephone calls to suggest that he had been involved in such planning. The circumstances of the incident itself also suggested Mr Taylor knew that an attempt to free him was to be made.
[91] In any event, while it was the Crown case that Mr Taylor was involved in the planning of the escape, the Crown did not have to prove such involvement as part of the kidnapping and escape charges. Mr Taylor could quite properly have been found guilty of kidnapping and escaping even if he had decided only when seeing Mr Royal in the car park to take advantage of Mr Royal’s plan. The jury was not bound to convict only if they accepted in full the Crown thesis of the case.
[92] We may add that, of the two explanations of the jury’s verdicts, we think the former by far the more likely. The Crown case was overwhelming that Mr Taylor did know of the escape plan in advance and indeed had been a willing participant in it. The explanation for the acquittal on the Arms Act charge is almost certainly that there was a reasonable doubt as to whether he knew one specific of the plan, namely the use of the air gun.
[93] The verdicts were not inconsistent. The convictions are not unsafe on that ground.
[94] All Mr Taylor’s grounds of appeal against the convictions fail. We now turn to the sentence appeal.
Did the fact that the sentencing took place in a different city from the trial have any legal effect?
[95] Mr Taylor’s trial took place in the High Court at Wellington. Shortly before sentencing, the Crown applied for an order that sentencing take place in the Auckland High Court. The basis of the application was that Mr Taylor was at the time an inmate in the Auckland Maximum Security Prison. He was serving a sentence of eight years’ imprisonment for serious offending, including possession of firearms and explosives. He had been imprisoned on at least 122 occasions. He had a history of escapes: he had escaped from prison twice, in 1975 and 1998, and had escaped from lawful custody on five occasions. He had the highest security classification within the prison system.
[96] The Crown assessed Mr Taylor as presenting “an extreme risk of escape”. If Mr Taylor was to be sentenced in Wellington, then he would have to be transported there either by charter plane in conditions of restraint or by vehicle, with escort, again under conditions of restraint. The Department of Corrections was not prepared to transport Mr Taylor by any form of public transport.
[97] Mr Taylor opposed the application. On this occasion, he was represented by counsel.
[98] Ronald Young J granted the application: HC WN CRI2005-085-5744 4 December 2007. He considered the transfer was in the interests of justice. He found that Mr Taylor did present an extraordinary risk of escape. While sentencing in Auckland would not eliminate risk, it would reduce it, as the transport time would be considerably reduced.
[99] His Honour noted that, while the crime had occurred in Wellington, it could not be said that it was offending which had a particular attachment to the Wellington area. He assumed that shifting the sentencing from Wellington might cause some inconvenience to Mr Taylor’s family, although no details as to any such inconvenience had been provided. He acknowledged some jurors might be interested in attending the sentencing. While that was a factor to be taken into account, he considered they would be able to read media reports of the sentencing. As well, he proposed to arrange for a copy of his sentencing notes to be sent to each of the jurors so that they were aware of what he said at sentencing.
[100] Mr Taylor submitted to us that the Crown application had been designed “to demonise [him] to the court and inflame prejudice”. He disputed some of the information that the Department of Corrections had given the court. In short, he categorised the application as “an attempt by Corrections to inflame the Court against [him] and to ratchet up the seriousness of the matter and thus any likely sentence”.
[101] We do not accept this submission. The judge clearly had jurisdiction to move the sentencing. He explained his reasons for doing so. They commend themselves to us.
[102] We do not accept that the Crown’s application was designed to inflame the court against Mr Taylor. We believe the grounds for the change of venue were advanced in good faith.
[103] In any event, if the sentence imposed is manifestly excessive, we shall correct it. In this regard, it is noteworthy that, on the sentence appeal itself, Mr Taylor takes only one point, namely that his sentence was too high compared with Mr Royal’s.
[104] There is nothing in this ground of appeal.
Was Mr Taylor’s sentence too high compared with Mr Royal’s?
[105] Mr Taylor’s final point was that his sentence was too high compared with Mr Royal’s. He pointed out that Mr Royal had pleaded guilty to carrying an airgun with criminal intent and unlawful possession of an airgun, whereas he (Mr Taylor) had been found not guilty on the Arms Act charge he faced. Yet, Mr Taylor submitted, both he and Mr Royal were each sentenced to four years’ imprisonment. He submitted Ronald Young J had in effect “nullified” his (Mr Taylor’s) acquittal on the Arms Act charge.
[106] Mr Royal was sentenced by Miller J. We have read his sentencing notes: HC WN CRI 2005-085-5744 15 December 2006. There is no discrepancy between Mr Taylor’s sentence and Mr Royal’s, still less a disparity so marked and unjustified as “to bring the administration of justice into disrepute” and to warrant appellate intervention: R v Lawson [1982] 2 NZLR 219 (CA).
[107] Ronald Young J adopted a starting point of four years’ imprisonment. He applied an uplift of six months for Mr Taylor’s record of similar offending. He then, however, perhaps somewhat generously, deducted six months for “totality” reasons. This brought him back to four years. There were no mitigating factors, with the consequence that four years’ imprisonment became the sentence.
[108] Miller J, on the other hand, adopted a five year starting point. That no doubt reflected the additional Arms Act offending to which Mr Royal had pleaded not guilty. His Honour then added one year to reflect the fact Mr Royal had “previous convictions of the same type”: at [18]. So, Mr Royal was now up to six years. That would have been his sentence, but for the fact he had “accepted [his] role in the offending from the outset and [had] pleaded guilty to the lead offence at an early opportunity”: at [20]. He had also handed himself in to the police. Because of those mitigating factors, he received a discount of two years (33%). That is the standard discount for an early guilty plea. His end sentence therefore came to four years’ imprisonment.
[109] By coincidence, that is the same sentence Mr Taylor received, but as the above analysis makes clear, it was reached by a different route. Mr Taylor could have received a substantially shorter sentence than he did had he, like Mr Royal, pleaded guilty at an early stage.
[110] The two sentences, far from being out of line with one another, are neatly aligned.
[111] We dismiss the appeal against sentence.
PANCKHURST J
Introduction
[112] I agree with the formal judgment of the Court and with the reasons for judgment prepared by Chambers J. On one topic, however, I have decided to write separately: whether the appellant’s pleas of previous acquittal were rightly disallowed in the High Court. On that, I agree with Chambers J’s conclusion, but my reasons for holding they were rightly disallowed differ to some extent from his, at least in emphasis.
[113] I gratefully adopt Chambers J’s narrative of the events at trial and description of the statutory background. My observations may be gathered under four headings: was the appellant discharged on the aggravated wounding counts under s 347(1), the requirement of jeopardy, the history of ss 358 and 347 and rationalisation of the statutory conflict.
Was Mr Taylor discharged pursuant to s 347(1)?
[114] Since the discharge order was made before trial Chambers J considered the likelihood was that s 347(1) was invoked (not s 347(3)). Neither subsection was a comfortable fit. The former is a pre-trial power to direct that no indictment be filed, or that there be no arraignment if an indictment is already filed. The latter is a power to direct a discharge during trial, which order may be with reference to single or multiple counts.
[115] I doubt it can be said with any confidence that the discharge of the appellant was pursuant to s 347(1). Undoubtedly, the proper course was for the Crown to seek leave to file an amended indictment. When the appropriate course was not adopted I fear the discharge was directed without thought as to which limb of s 347 was being employed. Whichever limb it was the discharge was deemed to be an acquittal: s 347(4). But, the conclusion that the discharge was pursuant to s 347(1) is of relevance to the availability of the special plea. This shall become evident in a moment.
The requirement of jeopardy
[116] I consider that there are three prerequisites to a valid plea of previous acquittal. These are:
(i)a sufficient degree of similarity between the original charge giving rise to the acquittal (or conviction) and the further charge to which the plea is entered,
(ii)prior jeopardy of conviction at a former trial, and
(iii)a final determination of the original charge.
In arriving at this division of the elements, and in other respects, I acknowledge the assistance I have derived from Professor Mahoney’s article (see above at [28]).
[117] Section 358 does not use the word jeopardy. It speaks of a former trial at which the accused might have been convicted of the same, or substantially the same, offence which he is faced with again. But I think it preferable to refer to the second requirement as prior jeopardy (not as a requirement of a previous trial). The fact of a previous trial is not necessarily a watershed event. For example a full trial but in relation to charges found to be defective to the point of being incapable of founding a conviction does not involve jeopardy: Island Marine v Filipowski (2006) 226 CLR 328.
[118] Further, it is only at a certain point in the criminal process that a trial encompasses jeopardy for present purposes. A defendant at a preliminary hearing is not in jeopardy. Non-committal for trial does not bar a further prosecution: R v Pepper [1963] NZLR 424 (SC). Even an order pursuant to s 345(5), quashing a count in an indictment on the grounds that it is not founded on the evidence disclosed in the depositions, does not satisfy the requirement of prior jeopardy. It remains open for the Crown to bring fresh charges if further evidence warrants that course: R v Grime [1985] 2 NZLR 265 (CA). The point in the trial process at which an accused is in jeopardy is upon arraignment pursuant to s 355, or perhaps more exactly when the accused is put in charge of the jury.
[119] This exposes the problem in the present case. The relevant events occurred before trial. The Crown indicated its abandonment of the wounding counts, the Judge approved that course and directed the appellant’s discharge pursuant to s 347. The discharge gave rise to a deemed acquittal. Yet, because this occurred before arraignment, the appellant was never in peril of conviction in relation to the wounding counts. This suggests that ss 347 and 358 are incongruent. Although an acquittal was ordered, the requirement of prior jeopardy is not met. How can this be?
The history of ss 347 and 358
[120] Under the Criminal Code Act 1893 and the Crimes Act 1908, the only way in which an accused could be acquitted was at a trial. There was no way in which an accused could be acquitted prior to trial. It was entirely logical, therefore, that the forerunners of s 358 (s 379 of the 1893 Act and s 403 of the 1908 Act) should refer to a “former trial” as the place at which the acquittal should have occurred. Although both Acts provided for discharges of accused pre-trial and at trial, such discharges, while having “the effect of an acquittal”, were not actually acquittals: see Higgins v Hart [1955] NZLR 1202. It was not until 1960 that a judicial discharge under the then equivalent of s 347 became a deemed acquittal: see the amendment to s 42 of the Criminal Justice Act 1954 effected by s 10 of the Criminal Justice Amendment Act 1960. That amendment – creating the deemed acquittal – was then carried over the next year into s 347 of the new Crimes Act 1961. It is obvious that the drafters of this amendment in 1960 and 1961 did not think through the potential implications for s 358(1), which was simply carried into the new Act unchanged.
[121] How, then, is the conflict to be rationalised? Where an accused has been discharged and therefore deemed to be acquitted before trial pursuant to s 347(1), must a plea of previous acquittal be available, regardless that there was no previous trial, nor therefore previous jeopardy in the required sense?
Resolution of the conflict
[122] I am in agreement with Chambers J’s conclusion that, rightly or wrongly, the appellant was discharged under s 347, and the deemed acquittals on the three wounding counts must stand. Recently, in R v Holt [2008] NZCA 388 this Court at [42]-[58] considered when a discharge ordered pursuant to s 347 may be a nullity, and not therefore final and binding. The present case is not one where fraud, bad faith or fundamental mistake afflicted the order for discharge, such that it may be characterised as a nullity. Nor may an order for discharge be overturned since there is no right of appeal from a ruling under s 347: see [59] of Holt.
[123] Pared to its essentials the statutory conflict is between the words “a discharge under this section shall be deemed to be an acquittal” (s 347(4)), and the words so “that he might on the former trial, if all proper amendments had been made … have been convicted of all the [present] offences …” (s 358(1)). Which words should prevail? Does a deemed acquittal trump the requirement of prior jeopardy? I do not think so. For this outcome to prevail the operative words in s 358(1) would have to be ignored – not given effect to.
[124] The point is free of authority. Authorities from other countries do not provide assistance. We have gone our own way and codified the requirements for the pleas of previous acquittal and previous conviction, albeit s 358 is based upon the 1887 Stephen code which, although drafted there, was never adopted in England.
[125] Section 347 governs the power to discharge an accused both before and at trial, such that the accused is deemed to be acquitted. An order, once made, is final. There can be no going back – here the wounding charges were finally resolved. An argument can be made that assuming the wounding and kidnapping charges are substantially similar, previous acquittal must apply regardless that the appellant was never in jeopardy of conviction on the wounding charges. Otherwise, a normal incident of an acquittal (its ability to found a special plea) is not being extended to the appellant.
[126] But I do not consider it is appropriate for s 358 to bend in order to accommodate s 347 in this way. For over 100 years the plea of previous acquittal has been dependent upon the existence of three cumulative requirements, sufficient similarity of charges, prior jeopardy and a final determination. The former requirement extends the ambit of the plea. The remaining two requirements reflect the very rationale for the plea’s existence, that no-one should be placed in jeopardy of conviction on essentially the same matter on a second occasion. To ignore the requirement of previous jeopardy would be to ignore the very foundation of the plea. This I think would be unprincipled.
[127] However, a problem remains. Take the example of a case where pre-trial a Judge directs that no indictment be presented (or arraignment occur), following argument and a reasoned determination on the merits. In this situation the accused will not have been in prior jeopardy in terms of s 358(1). Yet, it is unthinkable that the Crown could be permitted to relay the charges, or substantially similar ones, in these circumstances. I agree with Chambers J that a fresh proceeding would be susceptible of being characterised as an abuse of process. A stay would result.
[128] This I regard as the means of rationalising the conflict between the sections. Pre-trial discharge orders pursuant to s 347(1) remain final, but do not found a special plea. The s 358(1) requirement of prior jeopardy remains intact. But where a discharge was on the merits, a stay will substitute for a plea of previous acquittal, if required. If, however, the discharge was not on the merits (and the order was probably inappropriately made in the first place), no remedy beyond the final order itself will result. Thereby opportunistic pleas of previous acquittal do not arise. The plea in this case was of that nature.
A final word
[129] Like Holt, this case demonstrates the pitfalls which can arise from the use of s 347 orders, particularly at an early stage in a criminal trial. Holt was not dissimilar, to the extent that the Crown wished to shed various counts in an indictment, although that was because the accused was prepared to plead guilty to remaining counts which sufficiently covered the criminality of the offending. Problems then arose when the guilty pleas were vacated and the Crown wished to revert to the original indictment, but could not do so. As this Court observed ([64]) the making of the s 347 order for discharge should have been deferred until sentencing occurred on the counts to which the guilty pleas had been entered.
[130] Similarly here the problem would have been avoided if leave to file an amended indictment was sought and obtained. The wounding counts would thereby have been removed. The question of a discharge would not have arisen.
FOGARTY J
[131] I disagree with my brother Judges as to the solution to the problem posed by Mr Taylor’s pleas of previous acquittal.
[132] With reference to Panckhurst J’s summary in [123], I think that pared to essentials there is potentially a statutory conflict, on the facts of this case, between the words:
A discharge under this section shall be deemed to be an acquittal (s 347(4))
And the words:
… that he might on a former trial, if all proper amendments had been made … had been convicted of all the [present] offences … (s 358(1)).
[133] Where I disagree with Panckhurst J is that I do not think one should bring as a necessary prerequisite, to s 358, prior jeopardy of conviction at a former trial (see [117] and [118]). The concept of prior jeopardy is a common law concept. I agree that ss 357-359 of the Crimes Act need to be read against the common law but I do not consider they should be approached as a codification of the common law, so as to implicitly carry through to the Act the standard of “jeopardy”.
[134] My point of difference with the reasoning of Chambers J is crystallised in his [37] and [50]. I think this Court should look carefully at any solution which requires reading down the deeming language of s 347(4) and requiring the Court to exercise its inherent powers to prevent abuse of process, following a discharged under that section.
[135] To my mind, the facts of this case raise a possible statutory conflict and impose a choice on the Court of either reading down s 347(4) or reading liberally the phrase: “on the former trial” in s 358(1).
[136] It is my opinion that the latter should be preferred to the former. I have come to this view essentially because I think it is more consistent with the scheme of the Crimes Act.
[137] As Panckhurst J has explained in [120] Parliament has strengthened the consequences of discharges from having “the effect of an acquittal” to “deemed to be an acquittal”.
[138] Where there is in fact an acquittal there has been a former trial. Where an acquittal is “deemed” that language is capable of including the deeming of a “former trial”.
[139] As I read s 347, Parliament intended that any persons obtaining a discharge under that section are entitled to all the benefits of being the discharge being deemed to be an acquittal.
[140] Section 358(1) does not contain within it any concept of there being a plea of previous acquittal but there having been no former trial. Rather, it must be assumed that where there has been a previous acquittal there will of course have been a former trial. I do not read the phrase “and that he might on the former trial” as reflecting any intention at all on the part of Parliament to put previous acquittals into two different classes depending on whether there had been a former trial. Rather, previous acquittals or convictions are put into different classes depending upon whether “the matter on which the accused was formerly charged is the same in whole or in part on that which is proposed to give him in charge …”. Therefore, the application of s 358(1) does not depend on a threshold enquiry into whether or not there has been “previous jeopardy”, a common law concept. To be sure that concept underpins the common law on double jeopardy. The Crimes Act, however, has replaced the common law, albeit sympathetically, with a set of provisions. They are a “statutory reworking”, to use Professor Richard Mahoney’s language: see 222. Incidentally he does not examine the relationship between s 347 and s 358.
[141] In my view s 358(1) and s 347(4) can be read consistently provided one gives full effect to the concept of deeming in the latter subsection, so as to deem a former trial. There is no doubt that Parliament intended full effect to be given to the concept of deeming. In Higgins v Hart the appellant had pleaded guilty to a charge of attempted unlawful carnal knowledge of a girl. About a year previously he had pleaded guilty to a similar charge but had been discharged by the Magistrate under s 18 of the Offenders Probation Act 1920. Subsection (2) of that section provided:
A discharge under this section shall have all the effect of an acquittal of the accused.
The Chief Justice held that that section did not operate to prevent the appellant from being treated as a “previous offender”. That decision was followed by the statutory policy being strengthened by adopting the deeming concept. See above at [121].
[142] My brother Judges did not have to examine whether or not the other elements of s 358(1) applied. The question here is whether or not “the matter on which the accused is formerly charged is the same in whole or in part as that on which it is proposed to give him in charge”: see above at [4], [31]-[34].
[143] The heading of s 191 “Aggravated wounding or injury” is to a degree a misnomer. It includes persons who wishing to commit or facilitate the commission of any crime by violent means render any person incapable of resistance. The counts of kidnapping under s 209(b) are against any person who detains another person without his or her consent with intent to cause him or her to be confined or imprisoned.
[144] As is explained in [2] above, the prison guards were detained or confined by Mr Royal pointing a pistol at them. Proof of that matter suffices for the conviction in both charges, assuming the common need to prove Mr Taylor was a party to Mr Royal’s conduct. It was an intentional threat of violence to facilitate the commission of the crime of escaping, and so a violent means of detaining the guards and making them incapable of resistance. The very same facts prove the guards were detained without their consent, which is sufficient to prove kidnapping under s 209, without the need to prove any additional matter.
[145] Ronald Young J differentiated the offences by reason of being of the opinion that these two provisions required different criminal intents:
· an intention “to detain”
· an intention “to deliberately cause them thereby to be confined”
See his decision at [14]. I do not think those states of mind are materially different, and on these facts there was no difference.
[146] Laying both counts of aggravated wounding and counts of kidnapping was in the circumstances duplicitous. It was in breach of s 10(3) of the Crimes Act which provides:
10 Offence under more than one enactment
…
(3) Where an act or omission constitutes an offence under 2 or more provisions of this Act or of any other Act, the offender may be prosecuted and punished under any one of those provisions.
…
[147] To my mind the Crown Prosecutor recognising belatedly that the two charges were duplicitous and so in breach of s 10, decided one set of charges should be dropped. However, in correcting that error the learned Crown Prosecutor failed to take the steps provided for in the Act by s 345D, as Chambers J has explained at [46]. In sum, the predicament we are facing has arisen only because the prosecution made two mistakes. In my view the presence of those two mistakes does not justify reading down the full effect of s 347(1) to result in an outcome whereby a deemed acquittal under s 347 sometimes justifies a special plea of previous acquittal and sometimes does not.
[148] I would allow the special plea and set aside the convictions for kidnapping.
Solicitors:
Crown Law Office, Wellington
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