The Queen v John Tahu Henare

[2000] NZCA 140

IN THE COURT OF APPEAL OF NEW ZEALAND CA 187/00

THE QUEEN

V

JOHN TAHU HENARE

Hearing:	26 July 2000 (at Auckland)
Coram:	Thomas J Anderson J Robertson J
Appearances:	S J O’Driscoll for Appellant M A Woolford for Crown
Judgment:	26 July 2000

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

1. The appellant was arraigned before a District Court Judge and jury on an indictment alleging that on 18 September 1999 at Dunedin, being armed with an offensive weapon, namely a pistol, and being together with Robyn Frances Dennison and a person unknown, he robbed a taxi driver of approximately $200 in cash.  The Crown case was that Mr Henare and the other two were passengers in the taxi and that after robbing the driver the three offenders absconded.  Ms Dennison pleaded guilty and the third person was not identified.

2. On the trial of the appellant the Judge was summing-up to the jury when his attention was drawn to a discussion between counsel for the Crown and the police officer in charge of the case.  In the absence of the jury the Judge inquired about the matter and was informed that a young man had approached the police that morning to confess that he was the third person in the taxi and that the appellant was one of the offenders.  The Judge held that the evidence now available had not been available to the police previously and had come to their attention only part way through the summing-up.  He considered this was one of the rare cases which required the Court to declare a mistrial under s 374(1) of the Crimes Act 1961 as it was in the interests of justice that the matter be further investigated.  He held that it was not appropriate to re-open the case for further evidence at that point and did not consider that an adjournment of the summing-up was likely to be helpful.  He accordingly discharged the jury from giving a verdict and ordered a new trial.

3. Section 374(1) of the Crimes Act 1961 provides as follows:-

   Subject to the provisions of this section, the Court may in its discretion, in the case of any emergency or casualty rendering it, in the opinion of the Court, highly expedient for the ends of justice to do so, discharge the jury without their giving a verdict.

4. By virtue of s 374(8) a discretion exercised in terms of s 374(1) is not reviewable.  Nevertheless, as this Court recognised in R v Tatana (1994) 11 CRNZ 708, this Court may examine whether the jurisdictional basis for the exercise of the Court’s discretion existed.  The discretion is not capable of being exercised in any particular case unless the jurisdictional condition of “emergency” or “casualty” exists.  If there is plainly no emergency or casualty, any purported exercise of the discretion will be invalid.  That is why this Court in R v Tatana accepted that where an appellant had been convicted on a new trial, ordered upon the discharge of a jury in reliance on s 374(1), the essential validity of the purported exercise of that discretion was relevant to the appeal against conviction.  In that case, however, this Court held that the circumstances leading to the exercise of the discretion under s 374(1) came within the definition of “casualty”.  The Court made these observations at p711:-

   The words “emergency” and “casualty” are common words.  It would be difficult to conclude that the circumstances in this case amounted to an “emergency”.  “Casualty”, however, is defined in the New Shorter Oxford Dictionary as being “a chance occurrence, an accident, a mishap, a disaster”.  The circumstances in which it may be desirable in the interests of justice to discharge a jury under s 374 are multifarious and possibly indefinable.  We do not see any need to adopt a strained or limited interpretation of “casualty”.

5. The Oxford English Dictionary, Second Edition 1989, defines “emergency” in its modern use, in the following terms:-

   A juncture that arises or “turns up”; esp. a state of things unexpectedly arising, and urgently demanding immediate action.

6. It defines “casualty” as:-

   A chance occurrence, an accident; esp. an unfortunate occurrence, a mishap.

7. In the present case the circumstances were plainly both an “emergency” and a “casualty”.  That being so the exercise of the discretion cannot be challenged.  Accordingly if this appeal fell to be determined on its merits it would fail.  There is, however, a more fundamental barrier to its success.  This Court has no jurisdiction to entertain an appeal against the making of the order for new trial.  Such an order is not within the contemplation of s 379A of the Crimes Act 1961.  It is not brought under the aegis of a general appeal.  Nor does it come by way of a question of law reserved following a verdict, or at all.  Both for want of merit and for want of jurisdiction the appeal ought be dismissed and it is.

Solicitors

O’Driscoll & Marks, Dunedin, for Appellant
Crown Solicitor, Auckland, for Crown