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S (SC 36/2018) v The Queen

S (SC 36/2018) v The Queen

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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
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 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) Appellant
AND	THE QUEEN Respondent

Hearing:	16 October 2018
Court:	William Young, Glazebrook, O’Regan, Ellen France and Arnold JJ
Counsel:	N Levy for Appellant B J Horsley and M J Lillico for Respondent
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.

[2]S (SC 36/2018) v R [2018] NZSC 64.

It is useful to begin by saying…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZSC 124
Decision Date: 20 December 2018

CaseChat Overview and Summary

The Supreme Court dismissed the appeal of the appellant, S, who was convicted of serious sexual offending. S argued that the failure of his counsel to advise him of his choice as to the mode of trial, i.e., whether to be tried by a jury or a judge alone, led to a miscarriage of justice. The Court held that while it is important for a defendant to have an informed choice, the absence of such advice in this case did not result in an unfair trial or a trial that was a nullity. The Court emphasised that S had the benefit of both the rights protected by the New Zealand Bill of Rights Act 1990: a trial by jury and a "fair and public hearing by an independent and impartial court". The Court also noted that the deprivation of choice provided under the Criminal Procedure Act could cause a trial to be characterised as unfair, but in this case, the deprivation of choice did not mean that S's trial was unfair as his counsel would have advised a jury trial based on the nature of the case.

Orders