Rangitonga v Parker
[2015] NZHC 1772
•30 July 2015
For a Court ready (fee required) version please follow this link
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE APPEAL PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-470-000002 [2015] NZHC 1772
BETWEEN NEIHANA RANGITONGA
Appellant
AND
SHANNON LAING PARKER
Respondent
Hearing: 1 July 2015 Counsel:
T Rickard-Simms for appellant
P Davison QC and H Steele for respondentJudgment:
30 July 2015
JUDGMENT OF KATZ J
This judgment was delivered by me on 30 July 2015 at 11:30 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Pacific Coast Law, Papamoa
Cook Morris Quinn, Auckland
Counsel: P Davison QC, Barrister, Auckland
RANGITONGA v PARKER [2015] NZHC 1772 [30 July 2015]
Table of Contents Paragraph
Number
Introduction [1]
Background [7]
The events of 6 July 2010 [7]
The District Court rejects Mr Rangitonga’s plea of
previous acquittal
Does s 296 of the CPA allow a defendant to appeal against a decision not to dismiss a charge under s 147 of the CPA?
The rule against double jeopardy and the special pleas –
legislative and common law history
[13] [19]
[28]
History of the rule against double jeopardy [30] Rationale for the rule against double jeopardy [37] Double jeopardy and abuse of process [40] Predecessor provisions in the Crimes Act 1961 [43] Recent statutory inroads into the special pleas [45]
Legislative history of ss 46 and 47 of the CPA [51]
What does the term “arising from the same facts” in s 47
mean?
[62]
Are the relevant facts all of the facts adduced in evidence at the rape trial?
[63]
Are the relevant facts the elements of the charge? [71]
Does the injuring charge arise out of the same facts as the alleged rape?
Does the term “any other offence” in s 47 include only those offences which might be deemed an included charge of the original, or can it be extended to other offences?
[83] [91]
Summary and conclusion [94]
Result [98]
Introduction
[1] This appeal concerns the correct interpretation of the special plea of previous acquittal, which is now contained in s 47 of the Criminal Procedure Act 2011 (“CPA”). In particular, having been previously acquitted of rape, can Neihana Rangitonga now be charged with injuring the complainant with intent to injure her, arising out of events that occurred the same evening?
[2] In his seminal text on double jeopardy, Martin Friedland describes the history of the rule against double jeopardy as the history of criminal procedure. No other procedural doctrine, he says, is more fundamental or all-pervasive.1 The principle that a defendant should not be tried more than once for the same crime can be traced back as far as ancient Greek and Roman law. In 355 BC the Greek statesman and orator, Demosthenes, is reported as saying that “the laws forbid the same man to be tried twice on the same issue …”2 English common law has recognised the rule against double jeopardy for over 800 years.
[3] The special pleas of previous conviction (autrefois convict) and previous acquittal (autrefois acquit) are a key feature of the rule against double jeopardy. In New Zealand the special pleas have been codified and are now found in ss 46 and
47 of the CPA.3 Those provisions, however, are worded very differently to their
predecessor provisions under the Crimes Act 1961.
[4] Section 358 of the Crimes Act, as interpreted by the courts, only barred a subsequent prosecution where the second offence was the same or substantially the same as an offence in respect of which the defendant had previously been convicted or acquitted. The CPA provisions require, however, that the current offence “arise from the same facts” as the previous offence. Professor Richard Mahoney has described the new CPA test as a “dramatic break from orthodoxy”, further observing
that:4
1 Martin Friedland Double Jeopardy (Oxford University Press, United Kingdom, 1969) at 3.
2 Demosthenes Orations 20: Against Leptines (Harvard University Press, Cambridge/ebook,
2014), translated by J H Vince, at 589. Cited by Rehnquist J in Whalen v US 445 US 684 (1980)
at 699.
3 When I refer to the “special pleas” I am referring solely to the special pleas of previous conviction and previous acquittal, and exclude the special plea of pardon.
4 Richard Mahoney “From ‘The Same Offence’ to ‘The Same Facts’ – the Criminal Procedure Act
In enacting ss 46 and 47 of the [CPA] Parliament has struck out on a path that has taken the special pleas into uncharted territory, unprecedented here or abroad.
[5] The issues raised by this appeal require me to traverse at least some of that uncharted territory. This appeal also raises the scope of the appeal rights in s 296 of the CPA, which also differ significantly from the comparable provisions in the Crimes Act 1961. I will accordingly address the following issues in turn, after first outlining the relevant factual background and the history and rationale of the special pleas:
(a) Does s 296 of the CPA permit (with leave) a pre-trial appeal by a defendant from a decision not to dismiss a charge under s 147 of the CPA? If it does, should leave be granted to pursue such an appeal in this case?
(b) What does the term “arising from the same facts” in s 47 of the CPA
mean?
(c) Does the term “any other offence” include only those offences which might be deemed an included charge of the original charge?
[6] The first issue is a threshold procedural issue. The second two issues are the questions of law in respect of which Mr Rangitonga seeks leave to appeal.
Background
The events of 6 July 2010
[7] Mr Rangitonga met the complainant, Tamsin Trainor, on a bus in Tauranga on
6 July 2010.5 Ms Trainor mentioned her plan to later go to a particular bar to play gaming machines. When Ms Trainor arrived at the bar, Mr Rangitonga was already
there. Ms Trainor went outside for a cigarette. Mr Rangitonga followed her and
suddenly strengthens the pleas of previous conviction and previous acquittal” [2013] 2 NZ L Rev 171 at 198.
5 Ms Trainor has waived her statutory right to suppression of her identity.
they agreed to walk to the Wharepai Domain together to share cigarettes and some wine. What happened next is a matter of some dispute.
[8] Ms Trainor told the police that after talking to Mr Rangitonga for a while in the Domain, she decided to leave. Mr Rangitonga then attacked her violently, punching her repeatedly in the head. He also placed his hands on her throat, strangling her until she lost consciousness. He then raped her. Ms Trainor received multiple abrasions and bruises to her face and head, as well as burst blood vessels in both eyes and ears. The medical evidence at trial was that her injuries were consistent with an assault, including severe strangulation.
[9] Mr Rangitonga was arrested. He initially faced two charges, one of wounding with intent to cause grievous bodily harm, and one of sexual violation by rape. He pleaded not guilty to both charges. Prior to trial, however, the Crown withdrew the wounding charge. This was apparently to enable the jury to focus on the rape charge.
[10] Mr Rangitonga elected to give evidence. He admitted assaulting Ms Trainor, but denied that this had occurred as a precursor to rape. Rather, he said, he had assaulted Ms Trainor after they had had consensual sexual intercourse, in response to her stealing his wallet. Mr Rangitonga’s evidence at trial included the following passages:
She’s not saying anything to me, nothing and I just lost it. Stuck my hand in, as soon as I felt my wallet I lost it, I grabbed her by the throat and I think it’s number 18 again, that tree there, I grab her by the throat and roughly slam her up against that tree and smack her in the side of the head and grab my wallet out. Once I’ve got my wallet in my pocket I’m losing control. I’m just smacking her over.
I’m losing control; I’m just smacking her over…
I just remember punching her in the side of the head. I’ve got her up against that tree and that, I’m pushing her in to the tree just going, “You fuckin bitch”, I just remember I was losing it, you know, I was telling her, “Fuckin”
– okay, I lost the plot.
I put my hand underneath her throat and I push her up against the tree and just lean into her.
I take full responsibility for those injuries.
I’m losing the plot, I’m strangling her and punching her in the side of the
head…Then I let her go, she slumps down against the tree, I walk off.
[11] Mr Rangitonga was acquitted of rape. As the wounding charge had been withdrawn, he (obviously) could not be convicted on that charge.
[12] Following Mr Rangitonga’s acquittal, the respondent sought to bring a private prosecution against him, on behalf of and with the consent of Ms Trainor. After two initial attempts at framing a charge were rejected by the District Court, leave was ultimately granted to bring the current injuring with intent to injure charge.
The District Court rejects Mr Rangitonga’s plea of previous acquittal
[13] Judge Ingram rejected Mr Rangitonga’s plea of previous acquittal. He noted that the key question was whether Mr Rangitonga had been acquitted of “any other offence” arising from the same facts as the proposed charge. He concluded from a comparison of the elements of the offending, however, that the charges were significantly factually different.
[14] Judge Ingram considered whether the charge of rape had incorporated the facts on which the current charge of injuring with intent is based. He noted that the Crown’s case was run on the basis that an assault had occurred prior to the sexual offending, which was used to demonstrate a lack of reasonable belief in consent. Mr Rangitonga’s defence, however, was that the assault had occurred after consensual sex had taken place. The Judge considered that the Crown case relied on the assault, but that neither of the factual determinations which the jury was required to make required ruling on whether Mr Rangitonga had injured Ms Trainor with intent to injure her, as the only issue in dispute was consent.
[15] The Judge acknowledged that the scope of s 47 was unclear, and that the CPA gave no practical guidance as to how broadly to interpret the plea of previous acquittal. The Judge found, however, that Mr Rangitonga’s prior acquittal did not fall within s 47. While the timing of the assault was in issue in the rape trial, the fact of the resulting injuries and the defendant’s intentions when he caused them were not in issue. Nor were they the subject of a jury determination. The Judge held that the
proper bounds of s 47 should be limited to the facts required to be included in any question trail put to the jury for decision in the earlier trial.
[16] The Judge went on to consider whether the charge should be dismissed under s 147 in any event, notwithstanding that the plea of previous acquittal was unavailable. In particular, he considered whether any useful purpose would be served by continuing the proceedings. He noted that Mr Rangitonga had spent
21 months on remand awaiting trial and, even if the maximum sentence of five years were applied for the injuring with intent charge (which Judge Ingram saw as unlikely on the facts), he would have been eligible for parole at 20 months.
[17] Ultimately, the Judge concluded that the interests of justice went beyond punishment for the offender. He considered the need for Ms Trainor ’s complaint to be heard, and the fact that conviction on the current charge would be significant to the Parole Board in determining Mr Rangitonga’s eligibility for parole on similar charges that he is currently imprisoned on. Those charges apparently relate to a subsequent incident where Mr Rangitonga abducted a woman from a fast-food outlet for sexual purposes and threatened to kill her before she was able to fight him off.
[18] Further, the Judge considered there was a public interest in Mr Rangitonga’s criminal record reflecting his past deeds, taking into account the strength of the case against him, given he had admitted the offending on oath in court. His Honour also noted that the costs of the trial to the Crown would be minimal, given the involvement of a private prosecutor. There would also be little or no prejudice to Mr Rangitonga, since he had admitted his assault of Ms Trainor on oath and took responsibility for her injuries. Balancing all of those matters, Judge Ingram concluded that the interests of justice did not require the exercise of his discretion to stay or dismiss the injuring charge under s 147.
Does s 296 of the CPA allow a defendant to appeal against a decision not to dismiss a charge under s 147 of the CPA?
[19] The first issue I must determine is whether this Court has jurisdiction to consider a pre-trial appeal from Judge Ingram’s decision not to dismiss the injuring with intent charge against Mr Rangitonga.
[20] Prior to 2008, it was not possible for either the prosecution or the defence to appeal a decision under s 347 of the Crimes Act 1961 (the predecessor to s 147 of the CPA). That position changed in 2008, when s 381A was inserted into the Crimes Act. It provided for appeals by the prosecution on questions of law, by way of case stated, where a defendant was discharged under s 347 or a prosecution was stayed. No provision was made, however, for an appeal against a pre-trial decision not to discharge a defendant. Rather, the remedy for an aggrieved defendant in such circumstances was to file an appeal against conviction, post-trial, and address any alleged errors of law in that context.
[21] The CPA includes specific provisions providing for appeals, as of right, from certain pre-trial decisions, mainly relating to evidential issues.6 The relevant provisions do not, however, include a specific right of appeal in respect of a decision under s 147. Any such appeal (by either prosecutor or defendant) can therefore only be brought if it falls within the ambit of s 296, which provides:
Section 296 – Right of appeal
(1) This section applies if a person has been charged with an offence.
(2) The prosecutor or the defendant may, with the leave of the first appeal court,7 appeal under this subpart to that court on a question of law against a ruling by the trial court.8
(3) The question of law in a first appeal under this subpart must arise—
(a) in proceedings that relate to or follow the determination of the charge; or
(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(4) The question of law must not be one that—
(a) arises from a jury verdict; or
(b) arose before the trial and has already been decided under subpart 2.
6 Criminal Procedure Act 2011, ss 215, 217, 218.
7 In this case, the High Court.
8 In this case, the District Court.
[22] Section 381A of the Crimes Act is essentially carried forward into s 296(3)(b) of the CPA, which expressly allows a prosecutor the right to appeal against the dismissal of a charge. In this case, however, the appeal is not from the dismissal of a charge under s 147, but is a defence appeal from a decision not to dismiss a charge. Any appeal must therefore fall within s 296(3)(a).
[23] Different views have been expressed regarding whether the CPA has changed the law in this area, allowing such an appeal to now be brought pre-trial. In Clarke v Police, it was held that s 296 did not provide jurisdiction to appeal a decision declining a dismissal application under s 147, noting the availability of a post-trial
appeal against conviction in such circumstances.9 This may be contrasted, however,
with the decisions of Ronald Young J in Clarke v Ministry of Social Development10 and Moore J in Mihinui v Police,11 which both appear to support the view that s 296 provides a general right of appeal in respect of decisions under s 147.
[24] The learned authors of Adams on Criminal Law are also of the view that it is possible under s 296 to appeal a ruling made before or after a charge is determined, or that arises during the trial. Adams states that the previous restriction in the indictable jurisdiction, that there had to be a trial before a question of law in an indictable proceeding could be reserved, has been abolished under the CPA, noting R v Grime as an example of the previous approach.12
[25] The authors of Criminal Procedure in New Zealand express a contrary view, at least in relation to s 147 appeals, stating that while the prosecution may appeal the dismissal of charges under s 147, there is no comparable right of appeal against a refusal to dismiss a charge.13 Rather, any matters alleged to justify dismissal of charged can be advanced on an appeal against conviction. The two cases cited in
support of that proposition, however, both pre-date the CPA.14
9 Clarke v Police [2015] NZHC 259 at [22] – [23].
10 Clarke v Ministry of Social Development [2014] NZHC 1830.
11 Mihinui v Police [2015] NZHC 1127.
12 Adams on Criminal Law (online looseleaf edition, Westlaw) at [CPA296.02]; R v Grime [1985]
2 NZLR 265 (CA).
13 Jeremy Finn and others Criminal Procedure in New Zealand (Thomson Reuters, Wellington,
2013) at [8.7.5].
14 R v Grime, above n 12and R v Harrison [2007] NZCA 588.
[26] In my view it is clear from the wording of s 296 itself, and the broader statutory framework, that it is possible (with leave) to appeal pre-trial rulings that relate to the determination of the charge, on error of law grounds. Such an appeal must be filed within 20 working days of the ruling (s 298(3)). Section 301(1) (which had no counterpart in the Crimes Act) provides for the adjournment or deferral of a trial where an application for leave to appeal such a ruling has been filed. The new procedure can be contrasted with the “case stated” procedure under the Crimes Act, in which an appeal on a question of law could not be heard until after the proceedings were concluded.
[27] The present appeal therefore falls squarely within the scope of s 296. Leave is, however, required. A grant of leave was not opposed and it is appropriate, in my view, that it be granted. That is because the legal questions raised by this appeal are potentially determinative of the outcome of these proceedings.
The rule against double jeopardy and the special pleas – legislative and common law history
[28] Both of Mr Rangitonga’s questions of law relate to the correct interpretation of s 47 of the CPA, which provides:
47 Previous acquittal
If a plea of previous acquittal is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been acquitted of—
(a) the same offence as the offence currently charged, arising from the same facts; or
(b) any other offence arising from those facts.
Section 46 (relating to the plea of previous conviction) is expressed in the same terms.
[29] Sections 46 and 47 are open to a number of possible interpretations, ranging from very narrow to very broad. The sections themselves contain little or no clue as to which interpretation is to be preferred. A focus on the “plain meaning” of the words is therefore of limited assistance. Accordingly, in order to help determine whether a narrow or broad interpretation is to be preferred, I will consider the current
provisions in their historical context. I will consider in turn the history of the special pleas at common law, their underlying rationale, their statutory predecessors, and the specific legislative history of ss 46 and 47.
History of the rule against double jeopardy
[30] As I have already noted, the rule that a defendant should not be tried more than once for the same crime can be traced back as far as ancient Greek and Roman law.
[31] Common law recognition of the rule against double jeopardy appears to have been prompted by the conflict between civil and ecclesiastical law that came to a head in 12th century England. Henry II’s attempts to assert jurisdiction of the secular courts over the clergy was resisted by Thomas Beckett, Archbishop of Canterbury. Thomas Becket claimed that dual jurisdiction would violate a maxim observed in ecclesiastical courts, nemo bis in idipsum (no man ought to be punished twice for the same offence). The Church ultimately prevailed, with Henry II renouncing his claim to dual jurisdiction over the clergy in 1176, several years after Becket’s murder.15
[32] In 1789 Sir William Blackstone summarised the scope of the pleas as follows:16
The pleas of autrefois acquit and autrefois convict…must be upon a prosecution for the same identical act or crime, or for such charge as that, by statute or otherwise, the defendant might have been convicted upon it of the identical act and crime subsequently charged against him.
[33] In the leading 20th century English case of Connelly v Director of Public
Prosecutions, Lord Devlin explained the ambit of the plea of autrefois acquit as follows:17
15 Friedland, Double Jeopardy, above n 1, at 6.
16 William Blackstone Commentaries on the law of England: A Facsimile of the First Edition of
1765-1769 (Vol IV) (University of Chicago Press, Chicago, London, 1979) at 330; cited with approval in Pearce v R [1998] HCA 57, [1998] 194 CLR 610 at 641 per Kirby J.
17 Connelly v Director of Public Prosecutions [1964] AC 1254 (HL) at 1339-1340.
The word “offence” embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.
Lord Morris stated that the principle would also apply where the offences were substantially the same.18
[34] In Connelly the plea of autrefois acquit was held not to protect an accused from being tried for robbery, after being acquitted of a murder committed in the course of the robbery.19 Lord Devlin observed, however, that even where the special pleas were not available, proceedings could still be stayed on abuse of process grounds in appropriate cases.
[35] The narrow scope of the special pleas was confirmed in R v Beedie.20 In that case the defendant failed to properly maintain a gas fire in a house he owned. The occupant died of carbon monoxide poisoning. Mr Beedie pleaded guilty to summary offences under the Health and Safety at Work Act 1974 and was convicted on those charges. He was then charged with the manslaughter of the occupant. As the offences were different, the plea of autrefois convict was not available. The Court in Beedie did, however, conclude that the manslaughter prosecution should be stayed as an abuse of process.
[36] Accordingly, at English common law, the special pleas were (and are) only a bar to prosecution for the same or substantially the same offence. The special pleas did not prohibit successive prosecutions where distinct offences arose out of the same act.
Rationale for the rule against double jeopardy
[37] The rule against double jeopardy is recognised in both civil and common law legal systems. It is also recognised in the United States Constitution, the International Covenant on Civil and Political Rights, the European Convention on
Human Rights and, closer to home, the New Zealand Bill of Rights Act 1990.
18 Connelly v DPP, above n 17, at 1305 per Lord Morris of Borth-y-Gest.
19 Connelly v DPP, above n 17.
20 R v Beedie [1998] QB 356 (CA).
[38] In the often cited United States Supreme Court decision of Green v United
States, the rationale for the rule was said to be as follows:21
The State with all of its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
[39] The rule against double jeopardy therefore places a high value on the importance of finality in criminal proceedings. It recognises the power imbalance that exists between the State and the individual. The rule is also aimed at upholding confidence in the administration of justice. Repeated attempts to prosecute the same offence could result in conflicting judicial decisions, eroding confidence in the justice system.
Double jeopardy and abuse of process
[40] In both Connelly and Beedie, the English Courts recognised that the courts’ inherent power to stay proceedings for abuse of process could be used to stay proceedings that in substance offended double jeopardy principles, even if the special pleas were unavailable.22
[41] The case law is replete with examples of subsequent prosecutions that have been stayed where the Court has taken the view that the principles underpinning the rule against double jeopardy have been infringed, despite a plea of previous conviction or previous acquittal not being available. One of the most high profile New Zealand examples is Amery v Solicitor-General where two French agents had pleaded guilty to manslaughter for their part in the bombing of the Greenpeace
vessel “Rainbow Warrior”.23 Subsequent charges of wilful damage arising from the
same bombing were stayed, on the application of the Solicitor-General.
21 Green v United States 355 US 184 (1957) at 187 – 188. In Pearce v R, above n 16, at 614 the High Court of Australia said that if there were a single rationale for the rule against double jeopardy “it is that described by Black J in Green v The United States”.
22 R v Beedie, above n 20, at 364 - 365; Connelly v DPP, above n 17at 1360 and 1362. See also (in a New Zealand context) Moevao v Department of Labour [1980] 1 NZLR 464 (CA) and Fox v Attorney-General [2002] 3 NZLR 62 (CA).
23 Amery v Solicitor-General [1987] 2 NZLR 292 (CA). Other cases that have considered abuse of process principles in a double jeopardy context include R v Harrington [1976] 2 NZLR 763 (SC); Bryant v Collector of Customs [1984] 1 NZLR 280 (CA); Ferris v Police [1985] 1 NZLR
[42] I note that, in this case, the issue of whether these proceedings are an abuse of process has already been considered and determined. Pursuant to s 26 of the CPA, the District Court was required to consider whether the bringing of a private prosecution would be an abuse of process when deciding whether to accept the charging documents for filing. Judge C J Harding was satisfied that the proposed
prosecution was not an abuse of process.24 There was no appeal from that decision.
Nor has there been any appeal from those aspects of Judge Ingram’s decision which traverse abuse of process related issues (such as whether the prosecution will serve any useful purpose).
Predecessor provisions in the Crimes Act 1961
[43] In some jurisdictions, including New Zealand, the special pleas have been codified. Prior to the enactment of the CPA, the key provision was s 358 of the Crimes Act. That section, while clearly intending to encapsulate the key features of the common law, was not easy to follow. Indeed one commentator has described the special plea provisions in the Crimes Act as “some of the oldest and most incomprehensible in the entire Act and possibly across the whole of criminal law”.25
[44] Section 358 was judicially interpreted in a manner broadly consistent with English common law, as I have outlined it above.26 As a result, the question was not simply whether the facts or evidence underpinning the two charges was the same. Rather, the comparison between the charges was required to embrace “both the facts which constitute the crime and the legal characteristics which make it an offence”.27
Only if both of those elements were satisfied would a special plea be available
(subject to the other requirements of s 358, such as the risk of jeopardy at the earlier trial, also being met).
314 (HC); R v Roberts (1992) 10 CRNZ 172 (CA); R v Wilson [1997] 2 NZLR 161 (CA); Turipa v R [2004] 2 NZLR 706 (HC); R v Beedie, above n 20at 364-365 and R v E HC Hamilton T014054, 9 April 2002
24 Parker v Rangitonga DC Tauranga CRI-2010-070-005829, 4 September 2014; Parker v
Rangitonga DC Tauranga CRI-2014-070-004228, 14 November 2010 at [14] – [15].
25 Ian Murray A Practical Guide to Criminal Procedure in New Zealand (LexisNexis, Wellington,
2013) at 53.
26 R v Brightwell [1995] 2 NZLR 435 (CA). See also R v Morgan [2005] 1 NZLR 791 (CA);
R v Taylor [2008] NZCA 558, [2009] 1 NZLR 654 at [59] and [126]; Connolly v R [2010] NZCA
129 at [53] (citing with approval Connelly v Director of Public Prosecutions above n 17, at
1339) and G v District Court at Auckland CA 199/03, 1 December 2004.
27 R v Brightwell above n 26, at 437 – 438.
Recent statutory inroads into the special pleas
[45] I have outlined the rationale for the rule against double jeopardy at [37] to [39] above. The values underlying the rule, however, potentially conflict with other values that are also recognised as important in developed legal systems. The tension between the rule against double jeopardy and other important societal values was noted by Gleeson CJ and Hayne J in R v Carroll in the following terms:28
It is, nonetheless, important to recall that the four considerations which we have mentioned (the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality) are not the only considerations which find reflection in the criminal law system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment.
[46] The tension between ensuring that offenders are held accountable for their crimes (on the one hand) and not subjecting people to successive prosecutions for the same offending (on the other) is not always easy to reconcile. Societal and legislative views as to where the balance should be struck have shifted somewhat in recent years, partially reflecting an increased focus on victim “rights” as well as individual rights.
[47] High profile cases in a number of common law jurisdictions prompted significant public concerns regarding the operation of the rule against double jeopardy.29 For example, to what extent should a defendant who has secured an acquittal by perjuring themselves be entitled to hide behind the shield of double jeopardy? In addition, scientific advances in recent years (including in relation to
DNA evidence) can now result in compelling evidence of a person’s guilt coming to
28 R v Carroll [2002] HCA 55, [2002] 213 CLR 635 at 639.
29 Cases that have prompted legislative reform of aspects of the rule against double jeopardy include the racially motivated murder of Stephen Lawrence in 1993 in England; the sexual assault and killing of a young girl, allegedly by Raymond Carroll, in Australia; and a gang
killing allegedly committed by Kevin Moore in New Zealand (who was subsequently convicted
of conspiracy to pervert the course of justice in relation to evidence given at his trial). The Moore case culminated in a report by the New Zealand Law Commission on various options for reform of the rule against double jeopardy: see Law Commission Acquittal Following Perversion of the Course of Justice: A Response to R v Moore (NZLC PP42, 2000) and Acquittal Following Perversion of the Course of Justice (NZLC R70, 2001).
light many years after they have been acquitted. This runs counter to the historical position that evidence tended to decrease in terms of both availability and reliability with the passage of time.
[48] In response to these types of issues and concerns, legislatures in many jurisdictions (including England and Wales, Ireland, Scotland, Australia, Canada and New Zealand) introduced statutory exceptions to the rule against double jeopardy in the early years of the 21st century. New Zealand’s reforms were enacted between
2008 and 2011. As I have noted above, one aspect involved the introduction of
prosecution rights of appeal from an acquittal or pre-trial dismissal of a charge.30
This significantly altered the historic asymmetric appeal rights that had operated to protect the finality of acquittals.
[49] In addition, Parliament amended the Crimes Act in 2008 by inserting new provisions (ss 378A – 378F) providing for two exceptions to the rule against double jeopardy.31 As a result, an acquitted person can now face retrial if:
(a) the acquittal was “tainted”, for example through perjury or the fabrication of evidence; or
(b)the offence is punishable by life or by imprisonment for 14 years or more and new and compelling evidence, implicating the acquitted person, has become available since trial.
[50] These statutory reforms are notable as being the first significant inroads into the special pleas in New Zealand. As a result, an acquittal is no longer an absolute bar to a subsequent prosecution for the same offence.
Legislative history of ss 46 and 47 of the CPA
[51] The CPA significantly overhauled the special plea provisions. The Criminal
Procedure (Reform and Modernisation) Bill (“Bill”) was introduced into Parliament
30 Initially introduced in 2008 as s 381A of the Crimes Act 1961, now incorporated into s 296(3)(b)
of the CPA.
31 Those provisions have now been incorporated in ss 151-156 of the CPA.
in November 2010, based on reports and recommendations from a comprehensive project on criminal procedure in New Zealand, undertaken by the Law Commission and Ministry of Justice.
[52] The Ministry and the Law Commission’s initial briefing on the Bill to the Justice and Electoral Select Committee (“Committee”) stated, in relation to the special plea provisions, that:32
Clauses 42 to 47 concern the special pleas of previous conviction and previous acquittal. This is where a person charged with an offence pleads that it is one for which he or she has previously been convicted or acquitted, Currently the common law test for determining whether to allow these special pleas (that the later charge is “substantially similar” to the earlier charge) is unclear. The Bill codifies and clarifies the test (providing that the later charge must arise from “the same factual circumstances” as the earlier one).
[53] The expressed intent to “codify and clarify” the existing test tends to suggest that no significant change in the scope of the special pleas was intended. The use of words such as codify or clarify would normally indicate that status quo was intended to continue, albeit with some clarification in legislative drafting.
[54] The Ministry’s report for the Committee on the various submissions received on the bill (“Departmental Report”) casts doubt on that proposition, however. It included the following passages:33
425. The purpose of both the existing law and the proposed provisions is to ensure that persons finally convicted or acquitted may not be charged with the same offence or a sufficiently related offence, however defined.
426. The test for when a plea of previous conviction, previous acquittal, or pardon is available differs from that under the existing law. The new test…is intended to bring greater certainty as to the availability of the special pleas.
…
432. The proposed provisions are designed to ensure, subject to the amendment proposed below, that the Crown cannot later charge an offender with another offence for which a legal and factual basis existed at the time of the initial charge. The “same factual circumstances” test will provide far greater certainly than the existing law, which relies on “substantial
32 Ministry of Justice Initial Briefing on the Criminal Procedure (Reform and Modernisation Bill)
(10 February 2011) .
33 Ministry of Justice Departmental Report on the Criminal Procedure (Reform and Modernisation
Bill) (19 May 2011) at [425].
similarity” between the original offence for which the defendant was convicted or acquitted and the offence for which that person is facing a further charge…
433. However, advisers recommend that it would be clearer to substitute “factual circumstances” with “facts”. This will ensure that a more serious charge can be laid following an earlier conviction or acquittal if it is based on essentially a different set of facts, even if it is part of the same series of events. For example, it would enable a defendant acquitted of assault subsequently to be charged with murder if the victim dies after the acquittal and the defendant is found to have been a party to the events leading to the murder, although not an active participant in it.
…
436. James Richardson (39a) submits that clause 44 could lead to unmerited acquittals if an inappropriate charge has been laid. Better Police charging practice and earlier Crown solicitor involvement should reduce the prospect of inappropriate charges being laid. However, in the event that inappropriate charges are still laid and lead to a dismissal or an acquittal, it is the intent of these provisions that the prosecution cannot then have a further run at the case using a different charge. That policy intent is consistent with the underlying rationale of the common law rule against double jeopardy and with section 26(2) of the Bill of Rights Act 1990.
…
[55] A subsequent comment in the Departmental Report, rejecting a wording change proposed by the New Zealand Bar Association, stated that it was preferable to retain the current drafting, to make clear that the plea relates to the same facts, not the nature of the charge.34 The Departmental Report also recommended changing the original wording of “the same factual circumstances”35 to the “same facts”. That
change was implemented at the Select Committee stage and was said by the Committee to be “for the sake of precision and clarity”.36 The learned authors of Adams on Criminal Law describe this change from the very broad “factual circumstances” as “suggest[ing] a narrower interpretation of the special plea
provisions”.37
34 Ministry of Justice Departmental Report on the Criminal Procedure (Reform and Modernisation
Bill) (19 May 2011) at [445].
35 Criminal Procedure (Reform and Modernisation) Bill 2010 (No 243-1), cl 44.
36 Criminal Procedure (Reform and Modernisation) Bill 2010 (No 243-2) (select committee report)
at 7.
37 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf edition, Westlaw) at
[CPA45.02].
[56] Unfortunately, this legislative history raises as many questions as it answers. For example, paragraphs 425 and 426 of the Departmental Report are somewhat difficult to reconcile. Paragraph 425 states that the purpose of both the existing law and the proposed provisions is to “ensure that persons finally convicted or acquitted may not be charged with the same offence or a sufficiently related offence”. This suggests that the CPA provisions were not intended to herald any significant departure from the previous approach under the Crimes Act, which focussed on whether the current and previous offence were the same or substantially similar. Paragraph 426, however, then goes on to say that the proposed test in the CPA differs from that under existing law.
[57] Paragraph 432 is also somewhat difficult to follow. The first sentence states that the proposed provisions “are designed to ensure… that the Crown cannot later charge an offender with another offence for which a legal and factual basis existed at the time of the initial charge”. Such an intent, if implemented, would have extended the ambit of the special pleas far beyond their historic scope. They would potentially extend not only to the situation where both offences arise from the same facts (the actual wording adopted in the CPA) but also to where a second offence, based on different facts, could have been charged at the same time as the first offence. Such a scenario has never fallen within the ambit of the special pleas.
[58] This particular statement in the Departmental Report echoes comments made by Lord Devlin in Connelly. In particular, his Lordship envisaged that the abuse of process principles he enunciated in that case could apply not only where the second prosecution relates to the same conduct (the double jeopardy situation) but also where it relates to different conduct that could have been charged at the same time as the original offence. The United Kingdom Law Commission, in its 2001 Paper on
Double Jeopardy, strongly doubted such a proposition, stating that:38
6.42 We are still in doubt as to the true width of the principle. Our doubts are based on the fact that the principle itself lay dormant for 20 years before being resurrected in Beedie – it had been thought that the true ratio of Connolly lay in the other speeches. Beedie itself was a double jeopardy case, and the judgment does not indicate that the court saw the principle as
38 United Kingdom Law Commission Double Jeopardy and Prosecution Appeals (LAW COM 267,
2001).
extending beyond double jeopardy. We are not aware of a single case not involving double jeopardy in which Lord Devlin’s principle has been applied. We have not considered whether it ought to apply to such cases. We did not consult on the point. In these circumstances we clearly cannot recommend, in a report on double jeopardy, the codification of a rule which is applicable to cases not involving double jeopardy, which (though there is high authority for it) has never to our knowledge been applied, and which, if widely applied, might well cause great difficulty for prosecutors.
[59] In any event, even on the most liberal interpretation, ss 46 and 47 cannot in my view be interpreted as extending beyond the “same facts” scenario to encompass offending based on different facts that “could have been charged” at the same time as the original charge.
[60] Despite some internal inconsistencies in the legislative history, some guidance can be gleaned from the relevant documents, including that:
(a) The new “arising from the same facts” test was intended to differ from the existing test under s 358 of the Crimes Act. The aim was to provide greater certainty than the previous statutory test, which required that the two offences be the same or substantially similar.
(b)It was intended that the new test bar the prosecution of not only the same offences but also different offences arising out of the same facts (“the prosecution cannot then have a further run at the case using a different charge”). The test was therefore clearly intended to be broader than the Crimes Act test.
(c) It was not envisaged, however, that a “series of events” would fall within the scope of the phrase “arising from the same facts”.
[61] Although the aim of introducing greater certainty into the interpretation of the special pleas was clearly a laudable one, the substitution of an entirely new test has, unfortunately, done little to achieve that aim. In this respect I agree with Professor Mahoney’s observation that, “[i]n enacting ss 46 and 47…Parliament has struck out
on a path that has taken the special pleas into uncharted territory, unprecedented here or abroad”.39
What does the term “arising from the same facts” in s 47 mean?
[62] Taking into account all of the background material I have outlined above, I
now turn to focus on the first question I have been asked to determine, which is:
Does the term “arising from the same facts” limit the District Court Judge to considering the elements of the charge to be proved, or does it extend to meaning the facts and evidence adduced at trial?
Are the relevant facts all of the facts adduced in evidence at the rape trial?
[63] I will first consider Mr Rickard-Simms’ proposed interpretation of the same facts test, which is that it encompasses all of the evidence adduced at Mr Rangitonga’s rape trial. As that includes evidence relating to the alleged assault, the plea of previous acquittal would, under that interpretation, bar the current prosecution.
[64] Alternatively, Mr Rickard-Simms submitted that whether a subsequent charge involved the “same facts” could be assessed with reference to the facts set out in the police summary of facts, as that is the document against which a plea is entered. Where there is no trial (for example because a guilty plea was entered) the summary of facts would necessarily be the document that set out the relevant facts for the purposes of the charge.
[65] In my view, such an approach takes too broad a view of the “same facts” test. It would constitute a radical departure from the previous law, in a way that I do not believe was intended by Parliament. On the approach advocated by Mr Rickard- Simms, the scope of the previous acquittal plea would extend far beyond scenarios in which there is a collateral challenge either to the original acquittal or to facts central
to it.
39 Richard Mahoney “From ‘The Same Offence’ to ‘The Same Facts’”, above n 4, at 198.
[66] Extensive contextual evidence is often given during the course of a criminal trial. For example, in a drug-related homicide case, evidence might be adduced of the defendants’ role in a methamphetamine manufacturing and distribution operation. Evidence may also emerge of tax evasion, threats against others involved in the drug ring, and a wide range of other criminal activity. Propensity evidence may also be led, some of which may relate to matters in respect of which there has not (yet) been a conviction.
[67] Sections 46 and 47 cannot have been intended to give the defendant an “immunity card” in respect of all such matters, simply as a result of them being referred to in evidence at trial. Indeed, if that were the case, defendants would be incentivised to refer, when giving evidence, to as much “related” criminal activity as possible. This would help to set up a future plea of previous acquittal or previous conviction.
[68] Further, as Mr Davison pointed out, the broad interpretation advanced on behalf of Mr Rangitonga could result in pleas of prior acquittal being made in respect of charges laid at the same time as the original charge, but where some charges were plead to earlier. It would also prohibit retrials of defendants in cases where there has been a hung jury on some charges, but full acquittal or conviction on others.
[69] The special pleas are technical pleas. If they apply, then there will be an absolute bar to the subsequent proceedings. There is no room for judicial discretion. The pleas are not dependent on the merits or justice of a particular case. As I have outlined above, the abuse of process doctrine provides a flexible and effective safety net for dealing with cases that do not fall within the scope of the special pleas, but where the spirit (if not the letter) of the rule against double jeopardy is breached. Given the existence of that jurisdiction there is no need to give the special pleas an expansive interpretation in order to ensure that justice is done in an individual case.
[70] Further, a radical expansion in the scope of the special pleas would run contrary to other legislative initiatives during the same period that introduced
exceptions to the special pleas and enabled the prosecution, in some cases, to challenge the finality of an acquittal by way of appeal.
Are the relevant facts the elements of the charge?
[71] The alternative proposition raised in the question on appeal is that the relevant facts equate to the elements of the charge.
[72] The only appellate case that has to date considered the correct interpretation of ss 46 and 47 is Pratt v R.40 In that case Dobson J considered the correct interpretation of s 46 (the plea of previous conviction) which uses the same test of “arising from the same facts” as s 47. His Honour concluded that the new special plea provisions did not herald any material change in approach to the special pleas. Rather, he described s 358 of the Crimes Act 1961 as being “in materially the same terms” as ss 46 and 47 of the CPA. He accordingly followed the approach set out in
the s 358 case law to the new provisions.
[73] Applying this approach, Dobson J considered that the question he had to answer was whether two separate offences had been committed, or whether the later charge was based on the same facts necessary to constitute the elements of the first charge.41 Since the Crown could have failed to establish the elements of the first crime, but still made out the second charge, Dobson J held that a plea of previous conviction under s 46 of the CPA was not available. Pratt accordingly carried over
the pre-CPA approach to the previous conviction plea, and essentially required that the elements of the offence to be the same in both charges in order for a plea of prior conviction to be available.
[74] Judge Ingram’s approach, was somewhat similar, albeit with more of a factual focus. He concluded that the relevant facts for the purposes of the phrase “arising from the same facts” are the points that would have been put to the jury for
determination, as set out in the jury question trail.
40 Pratt v R [2014] NZHC 2237.
41 At [20].
[75] Mr Rickard-Simms submitted that such an approach was flawed, as the points that are put to the jury in a jury question trail are simply a breakdown of the elements of the charge, not the facts of the offending. I do not accept that submission. The key facts of the offending and the elements of the charge are not mutually exclusive concepts. On the contrary, in most cases the “elements of the charge” will form the basis of a jury question trail setting out the key facts the jury is required to determine. The elements of an offence will usually comprise the actus reus of the offence (a factual issue) together with the requisite mens rea (the existence of which is also a factual issue). In addition, the jury question trail may also include further factual questions relating to any specific defences, such as self defence.
[76] In this case the jury question trail at Mr Rangitonga’s rape trial would likely have looked something like this:
(a) Are you sure that Mr Rangitonga’s penis penetrated the complainant’s genitalia on or about 6 July 2010?
(b) Are you sure that the complainant did not consent to that act?
(c) Are you sure that Mr Rangitonga did not believe, on reasonable grounds, that the complainant was consenting?
[77] These are all factual issues, based on the key elements of the offence of rape. They are the facts that the Crown was required to prove beyond reasonable doubt in order for Mr Rangitonga to be convicted of rape.
[78] However, if the phrase “arising from the same facts” simply requires that all of these core facts be present before any subsequent charge is barred, then there has been little or no change from the previous law. The only subsequent charge that would be precluded would be one of rape. As I have noted above it is clear from the legislative history that some change in the scope of the special pleas was intended.
[79] In my view, determining the “core facts” of the original offence, possibly
with reference to a jury question trail, provides a helpful starting point to
ascertaining whether an offence is based on the “same facts”. Whether the “same facts” test has been made out, however, is likely to require other facts to also be considered, particularly where these are likely to have underpinned the fact finder’s decision making. An example would be the key facts the Crown relies on to infer a particular intent. In addition, aggravating features of the offending may also form part of the relevant factual matrix, particularly if such facts are taken into account at sentencing.
[80] Once all of the core facts of the offending have been identified it would then be necessary to consider whether the subsequent charge “arises” from those facts. Difficult issues will no doubt arise as to what degree of common facts is necessary in order to found a special plea. It seems unlikely that it would be necessary to establish that all of the core facts are the same, as this would essentially mean that only an identical offence would be barred.
[81] If the same core punishable act (or actus reus) underpins the two charges, will that be sufficient? For example, if Ms Trainor had been under 16 at the time of the alleged rape, could Mr Rangitonga now be charged with sexual conduct with a young person under 16?42 The act of sexual intercourse would be the punishable act that is common to both charges, although the intention requirements would be different (intention being a matter of fact). In particular, Mr Rangitonga would need to prove in relation to the subsequent charge that he believed on reasonable grounds that the complainant was over 16.
[82] In my view, where a common punishable act is central to both offences, they will usually both arise out of the same facts. On this basis, a number of previous decisions under the Crimes Act, or under English common law, would need to be decided differently under the new CPA provisions. R v Beedie, discussed above at [29], is a prime example. The common punishable act in R v Beedie was the failure to maintain a gas fire in a residential dwelling. The initial charge was a summary offence under the Health and Safety at Work Act 1974. The subsequent charge was manslaughter. The subsequent charge was not barred, at common law, by the plea of
autrefois acquit (although the proceedings were stayed as an abuse of process).
42 Crimes Act 1961, s 134.
Similarly, under s 358 of the Crimes Act the subsequent manslaughter prosecution would not have been barred, because the offences are different. The position would presumably be different under the CPA “same facts” test. As noted at [54] above, the view of the authors of the Departmental Report was that, under the new test, if “inappropriate” charges are laid the prosecution cannot then “have a further run at the case using a different charge”.
Does the injuring charge arise out of the same facts as the alleged rape?
[83] The core facts of the alleged rape are that Mr Rangitonga and Ms Trainor had sexual intercourse, that Ms Trainor did not consent to that act, and that Mr Rangitonga did not believe on reasonable grounds that she did. The actus reus, or core punishable act, is the act of sexual intercourse. The assault forms part of the broader factual matrix to the extent that it was relevant to the issue of consent. However, as Judge Ingram identified, the sole issue for the jury in relation to the assault was the timing of it. It can be inferred from the jury’s decision that they concluded that the Crown had not proved beyond reasonable doubt that the assault preceded the rape.
[84] The actus reus of the injuring charge is different. It is alleged that Mr Rangitonga punched and strangled Ms Trainor. At Mr Rangitonga’s trial on the injuring charge, the jury will be required to determine whether the alleged assault occurred and, if it did, whether Mr Rangitonga intended to injure Ms Trainor when he assaulted her. Those are not factual issues that the jury was required to determine at the rape trial, in order to determine the issue of consent or otherwise. Conversely, at the trial of the injuring charge the timing of the alleged assault (either before of after the act of sexual intercourse) will not be a factual issue that requires determination.
[85] The position may have been different if Mr Rangitonga had not given evidence regarding the assault. In that situation, the jury at the rape trial would have been required to determine if the assault occurred at all, in order to determine the issue of consent. If the jury had acquitted in those circumstances, it could reasonably be inferred that they had concluded that the assault had not been proven.
In that event it could be argued that the facts of the two charges overlapped to such an extent that s 47 should apply. Alternatively, a stay could have been sought on abuse of process grounds. Given Mr Rangitonga’s evidence, however, the jury did not need to consider whether the assault occurred, but only the timing of it.
[86] It follows, in my view, that the injuring charge does not “arise from the same facts” as the rape charge. While there is some degree of factual overlap, it is relatively small. The actus reus of the alleged rape is the act of sexual intercourse. The actus reus of the injuring charge is the punching and strangling. The core punishable acts are significantly different. The two charges do not arise out of the same facts, rather they relate to two incidents that form part of the same broad series of events.
[87] The authors of the Departmental Report envisaged that a separate incident, even if occurring as part of the same series of events, would not meet the “same facts” test, stating that:43
However, advisers recommend that it would be clearer to substitute “factual circumstances” with “facts”. This will ensure that a more serious charge can be laid following an earlier conviction or acquittal if it is based on essentially a different set of facts, even if part of the same series of events.
(emphasis added)
[88] Mr Rangitonga described a series of events in which he had consensual sex with Ms Trainor, she stole his wallet, he discovered she had stolen his wallet, and he then seriously assaulted and strangled her. Accordingly, while the assault may have formed part of the same series of events as the alleged rape it was, in my view, a separate and distinct incident. The current charge is not a collateral attack on any factual findings that would have been made by the jury (expressly or impliedly) at
the previous trial.
43 Ministry of Justice Departmental Report on the Criminal Procedure (Reform and Modernisation
Bill) (19 May 2011) at [433].
[89] Professor Mahoney, in his very helpful New Zealand Law Review article, made the following observations regarding the interface between cases involving “the same facts” or “a series of events”:44
… it does suggest the example of a series of offences, such as three robberies of different victims within a brief period of time, or multiple burglaries committed in the same general location within minutes of each other. Do the resulting charges arise from the same facts? An offhand remark in the Ministry of Justice’s Report45 assumes that offences committed in a series do indeed arise from different facts, but it may be that not everyone will reach a similar conclusion. This is, after all, a typical exercise of the law having to draw the boundaries as one concept (the same facts) blends into another (a series of events). Who can say what our appellate courts will end up deciding about situations such as multiple robberies of individual guests at a single party or numerous assaults committed in one overall melee? The history of the special pleas has shown us that courts are understandably hesitant in upholding a special plea if the result is that a defendant avoids any assessment of an allegation of his or her criminal conduct. This may lead to the conclusion that a series of offences such as are referred to above will be treated as arising from different facts, despite the obvious connections among the group.
(footnotes omitted)
[90] The present case is one of those identified by Professor Mahoney, where one concept (the same facts) blends into another (a series of events). Despite the obvious connections between the two events, it is my view that this case falls on the “series of events” side of the line. The assault and the alleged rape formed part of the same series of events, but did not both arise out of the same facts.
Does the term “any other offence” in s 47 include only those offences which might be deemed an included charge of the original, or can it be extended to other offences?
[91] I now turn to consider Mr Rangitonga’s second question of law, which is:
Does the term “any other offence” include only those offences which might be deemed an included charge of the original, or can it be extended to other offences?
44 Richard Mahoney “From ‘The Same Offence’ to ‘The Same Facts’”, above n 4, at 194.
45 This is a reference to the quote set out at [87] above, from the Ministry of Justice Departmental
Report on the Criminal Procedure (Reform and Modernisation Bill) (19 May 2011) at [433].
[92] This question overlaps very significantly with Mr Rangitonga’s first question of law and, in essence, I have already answered it.
[93] There is no reason, on a natural reading of the phrase, to imply any limitation on the scope of the phrase “any other offence”, other than the limitation imposed by statute, namely that is must arise from the same facts. Different offences, provided they arise out of the same facts, may be captured by the special pleas.
Summary and conclusion
[94] This appeal concerns the correct interpretation of the special plea of previous acquittal in s 47 of the CPA. Having been previously acquitted of rape, does s 47 prohibit Neihana Rangitonga now being charged with injuring the complainant with intent to injure her, arising out of events that occurred the same evening?
[95] At its narrowest, the phrase “arising from the same facts” in s 47 could be interpreted as being essentially the same as the previous “same offence” test. At its broadest, the phrase could be interpreted as referring to all of the evidence adduced at trial. If so, the special plea provisions in the CPA are radically wider than the predecessor provision in the Crimes Act, or the common law.
[96] In my view the correct interpretation of ss 46 and 47 lies somewhere on the spectrum between these two competing extremes, albeit towards the narrower rather than the broader end of the spectrum. Identifying the key facts that the fact finder at the first trial was required to determine (possibly with reference to a jury question trail) provides a helpful starting point. In addition, in many (possibly most) cases, other core facts will also form part of the relevant factual matrix including, for example, the facts necessary to support a required inference (such as intent). The core facts of each case will necessarily be case specific.
[97] In this case, I have not been persuaded that the injuring charge “arises out of the same facts” as the previous rape charge. Rather, the alleged rape and the alleged assault formed part of a “series of events.” While those events are closely linked in time and place, they arose out of different incidents, involving different facts, which occurred sequentially. The injuring charge is not a collateral attack on any factual
findings made by the jury at the rape trial. Judge Ingram was accordingly correct to conclude that the plea of previous acquittal was not available.
Result
[98] The appeal is dismissed.
[99] I make an order prohibiting publication of the judgment and any part of the appeal proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest is permitted. This order is made in order to protect the defendant’s fair
trial rights.
Katz J
7
7
1