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| NOTE: ORDER MADE IN THE COURT OF APPEAL PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE |
| NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 36/2018 [2018] NZSC 124 |
| BETWEEN | S (SC 36/2018) |
| AND | THE QUEEN |
| Hearing: | 16 October 2018 |
Court: | William Young, Glazebrook, O’Regan, Ellen France and Arnold JJ |
Counsel: | N Levy for Appellant |
Judgment: | 20 December 2018 |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS
| Para No. | |
| William Young, O’Regan and Ellen France JJ | [1] |
| Glazebrook and Arnold JJ | [87] |
WILLIAM YOUNG, O’REGAN AND ELLEN FRANCE JJ
(Given by Ellen France J)
Table of Contents
| Para No. | |
| Introduction | [1] |
| Background facts | [3] |
| The statutory scheme | [12] |
| The decision of the Court of Appeal | [27] |
| Effect of the failure to advise of the choice as to mode of trial | [31] |
| A nullity? | [35] |
| An unfair trial? | [48] |
| An important choice | [49] |
| The application of Abraham | [57] |
| The Canadian authorities | [58] |
| The constitutional place of the jury trial | [74] |
| Real risk outcome affected? | [79] |
| Conclusion | [82] |
| Result | [86] |
Introduction
The appellant was charged with serious sexual offending in relation to two complainants. The effect of s 73 of the Criminal Procedure Act 2011 is that his trial on these charges would be before a judge alone unless he elected trial by jury. It is common ground that his lawyer at trial was unaware a Judge-alone trial was available and so elected trial by jury on the appellant’s behalf without advising the appellant of the choice as to mode of trial that was available to him.
The appellant was convicted following a jury trial. He subsequently learned he could have been tried before a judge alone and appealed against conviction on the basis the absence of an opportunity to elect the mode of trial gave rise to a miscarriage of justice. The Court of Appeal, by a majority, dismissed the appeal on this ground.[1] He appeals with leave to this Court.[2] The question on the appeal is whether the absence of an informed choice as to the mode of trial has given rise to a miscarriage of justice.
Background facts
[1]S (CA377/2017) v R [2018] NZCA 101 (Clifford, Dobson and Collins JJ) [S (CA)]. An appeal against conviction in relation to two charges which were brought out of time was allowed.
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- Case
- [2018] NZSC 124
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