Tutu v The Queen
[2012] NZCA 294
•5 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA15/2012 [2012] NZCA 294 |
| BETWEEN SANTANA DENICE TUTU |
| AND THE QUEEN |
| Hearing: 18 June 2012 |
| Court: Randerson, Lang and Clifford JJ |
| Counsel: A M Simperingham for Appellant |
| Judgment: 5 July 2012 at 10 a.m. |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
REASONS OF THE COURT
(Given by Clifford J)
Introduction
The appellant, Ms Tutu, was found guilty by a jury in the District Court at Gisborne on one count of burglary (s 231(1)(a) Crimes Act 1961), one count of receiving stolen property the value of which exceeds $1,000 (ss 246 and 247(a) Crimes Act), one count of receiving stolen property the value of which exceeds $500 but not $1,000 (ss 246 and 247(b) Crimes Act) and two counts of receiving stolen property the value of which does not exceed $500 (ss 246 and 247(c) Crimes Act).
Ms Tutu now appeals against her convictions on the two counts of receiving stolen property the value of which does not exceed $500. She does so on the single ground that those two counts, being – she says – purely summary offences, were unlawfully included in the indictment on which she stood trial contrary to s 329(1) of the Crimes Act.
Facts
Ms Tutu originally faced an indictment containing three counts against her. Two further counts, those relating to the receipt of stolen goods the value of which does not exceed $500, were added shortly before the trial commenced. On Ms Tutu’s behalf, Mr Simperingham raised the objection which forms the basis of this appeal. He submitted that under s 329 an indictment may not contain a count for an offence punishable by a term of imprisonment for three months or less because an accused person does not have the right to elect trial by jury under s 66 of the Summary Proceedings Act 1957 for such an offence.
In his ruling Judge Perkins recorded his preliminary view that the two counts in question should not remain in the indictment.[1] But he considered himself bound by two High Court decisions, Young v Police and R v Nichols,[2] which, in line with submissions from the Crown, he found to have held to the contrary. This appeal therefore involves this Court revisiting the question the Judge ruled on.
Mr Simperingham’s concession
[1] R v Tutu DC Gisborne CRI-2010-082-681, 28 September 2011 at [12].
[2]Young v Police (1994) 11 CRNZ 304; R v Nichols HC Auckland T273/96, 19 December 1996.
At the commencement of the hearing of this appeal Mr Simperingham said that he was forced to acknowledge the strength of the Crown submissions opposing the appeal. In doing so he accepted that s 2(2) of the Crimes Act provides that any act which gives rise to liability to punishment under that Act is, subject to the provisions of that Act, a crime. The two counts in question therefore did charge crimes and hence were lawfully included in the indictment Ms Tutu faced. Notwithstanding that concession, however, Mr Simperingham did not abandon his appeal. In effect he maintained it on the basis that we might reach a contrary view. We therefore consider the point.
Analysis
Section 329(1) of the Crimes Act provides as follows:
329 Contents of counts
(1)Every count of an indictment shall contain and shall be sufficient if it contains in substance a statement that the accused has committed either some crime therein specified or, except where the indictment contains a count specifying a crime for which an offender may be proceeded against only by indictment, some offence therein specified that is punishable by imprisonment for a term exceeding 3 months; and for the purposes of this section and of sections 330 to 344 of this Act the term “crime” shall be deemed to include any such offence as aforesaid.
Mr Simperingham based his original argument on the proposition that because the maximum punishment under s 247(c) is three months imprisonment, the offence of receiving stolen goods the value of which does not exceed $500 is a purely summary offence. It is therefore one which s 329(1) means may not be included in an indictment.
In our view this is to misconstrue the current scheme under the Crimes Act and the Summary Proceedings Act 1957 as it relates first to crimes and offences and secondly to indictable and summary offences.[3]
[3]The Criminal Procedure Act 2011 will, by no later than 17 October 2013, abolish the categorisation of offences as summary or indictable.
The Crimes Act draws a distinction between crimes and offences. In s 2(1) those terms are defined, unless the context otherwise requires, as follows:
crime means an offence for which the offender may be proceeded against by indictment
offence means any act or omission for which any one can be punished under this Act or under any other enactment, whether on conviction on indictment or on summary conviction
Thus, all crimes are offences, but not all offences are crimes. As defined, crimes are found not only in the Crimes Act but include offences created by other Acts that may be tried on indictment. Section 11(1) of the Crimes Act makes that clear:
Every Act shall be read and construed as if any offence therein mentioned for which the offender may be prosecuted by indictment (however the offence may be therein described or referred to) were described or referred to as a crime; and all provisions of this Act relating to crimes generally shall apply to every such offence.
The term indictment is not itself separately defined in the Crimes Act. Nor is there any express provision in the Crimes Act requiring crimes to be prosecuted on indictment. Rather:
(a)Section 345(1) provides that an indictment may be filed where a person or persons have been committed for trial;
(b)Section 345(7) provides that no indictment is to be filed otherwise than as provided in s 345; and
(c)Section 328 requires every indictment to be in form 4 of Schedule 2 to the Crimes Act or to the like effect.
The significance of proceeding by way of indictment is reflected in the definition of the phrase “is liable” found in s 2(1) of the Crimes Act. There that phrase is defined to mean “is liable on conviction on indictment”. In other words, the general scheme of the Crimes Act is to impose liability on indictment. There are, as Mr Downs pointed out, a limited number of provisions in the Crimes Act which expressly provide for offences which give rise to liability on summary conviction.[4]
[4]See ss 314D(1), 317AB(1) and 317B(7), all of which are punishable on summary conviction by way of a fine only.
Section 2(2) provides as follows:
When it is provided in this Act that anyone is liable to any punishment for doing or committing any act, every person doing or omitting that act is, subject to the provisions of this Act, guilty of a crime.
As regards the concept of a crime, therefore, we think the position can be summarised as follows:
(a)A crime is an offence, whether under the Crimes Act or any other Act, that may be proceeded on indictment.
(b)All offences under the Crimes Act are crimes except those which in terms of the provisions of the Crimes Act itself are punishable on summary conviction. It is because of the existence of those offences that s 2(2), by the use of the words “subject to the provisions of this Act”, recognises that there are acts made punishable under the Crimes Act which do not constitute crimes.
The distinction between summary and indictable offences is made in s 2(1) of the Summary Proceedings Act 1957. Thus, in the Summary Proceedings Act and unless the context otherwise requires:
Summary offence means any offence for which the defendant may not, except pursuant to an election made under section 66, be proceeded against by indictment; and, where the enactment creating an offence expressly provides that it may be dealt with either summarily or on indictment, includes such an offence that is dealt with summarily.
Indictable offence means any offence for which the defendant may be proceeded against by indictment: provided that an offence shall not be deemed to be an indictable offence solely because under section 66 the defendant could elect to be tried by a jury.
Reflecting that distinction, s 2(1) of the Summary Offences Act 1981 provides that, in that Act, the phrase “is liable” means – again unless the context otherwise requires – is liable on summary conviction. That is, conviction following the laying of an information and after trial before a Judge alone.
Completing the picture for these purposes are the provisions of ss 6 and 66 of the Summary Proceedings Act.
Section 6 provides that the indictable offences specified in Schedule 1 of that Act may be prosecuted summarily in the District Court. Included in Schedule 1 is the offence (crime) stipulated in ss 246 and 247(c). Thus, the Crown may choose to prosecute that offence summarily or indictably.
Section 66 of the Summary Proceedings Act provides for the right to trial by jury. In effect, any person charged summarily with an offence which is punishable by imprisonment for a term exceeding three months (whether or not that is a summary or indictable offence) is entitled to elect to be tried by a jury. Thus, for example, a person charged with the summary offence of common assault or assaulting a constable in the execution of his duty, each of those being offences which attract a maximum sentence of six months imprisonment, may elect trial by jury: that is trial on indictment.
Mr Simperingham was therefore correct to make the concession that he did. As Mr Downs put it for the Crown, the true distinction drawn by s 329(1) as to the type of offence that may be included in an indictment is a crime or an offence that is punishable by imprisonment for a term exceeding three months. The fact the maximum punishment for receiving stolen property the value of which does not exceed $500 is three months imprisonment, does not make that offence a summary offence. There being no provision to the contrary in the Crimes Act, the Crown may lay an indictment charging the offence created by ss 246 and 247(c). Such an offence is, therefore, a crime. That conclusion is confirmed by the use of the phrase “is liable” in s 247.[5] But, if the Crown chooses to prosecute the offences created by ss 246 and 247(c) of the Crimes Act summarily, the accused would not have a right to elect trial by jury under s 66 of the Summary Proceedings Act, because that offence is not punishable by imprisonment for a term exceeding three months. However, again, that does not make that offence a summary one.
[5]As already noted, the expression “is liable” is defined in s 2 of the Crimes Act 1961 as meaning “is liable on conviction on indictment”, unless the context requires otherwise.
We conclude that s 329(1) does not preclude a prosecution under ss 246 and 247(c) of the Crimes Act from proceeding by way of indictment.
Result
Ms Tutu’s appeal against conviction on the two charges of receiving stolen property the value of which did not exceed $500 is therefore dismissed.
Solicitors:
Woodward Chrisp, Gisborne for the Appellant
Crown Law Office, Wellington for Respondent
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