IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI-2015-404-000039 [2015] NZHC 923 BETWEEN AND LEE RUTH ANDERSON Applicant NEW ZEALAND POLICE Respondent Hearing: 28 April 2015 Appearances: D Schellenberg for Applicant M Harborow and G Hughes for Respondent Judgment: 5 May 2015 JUDGMENT OF WOOLFORD J This judgment is delivered by me on Tuesday, 5 May 2015 at 12:00 pm pursuant to r 11.5 of the High Court Rules.... Registrar / Deputy Registrar Solicitors: Counsel: Crown Solicitor, Auckland D Schellenberg, Auckland ANDERSON v POLICE [2015] NZHC 923 [5 May 2015]
Introduction [1] The applicant, Lee Ruth Anderson, faces one charge of assault with intent to injure in the District Court. She seeks leave to appeal under s 296 of the Criminal Procedure Act (the Act) against a decision of Judge Burns dated 8 December 2014, refusing her leave to elect trial by jury following the abandonment of a part-heard Judge-alone trial. Factual background [2] Ms Anderson first appeared in the District Court on 2 May 2014. On 23 May, she entered a plea of not guilty. No election of trial by jury was recorded at that appearance and therefore her case proceeded as a Judge-alone trial. Ms Anderson says she was not advised of her right to elect trial by jury at the time. At a case review hearing on 3 July, counsel who now represents her advised Ms Anderson of her right to elect trial by jury, but she says that she chose to remain with a Judgealone trial, because she was on a curfew and wanted a prompt trial. [3] On 19 December, a Judge-alone trial before Judge Saunders commenced. The case was part-heard. The trial was aborted due to insufficient court time. A direction was made by the Judge for a further Judge-alone trial. Ms Anderson says that during the course of the hearing, Judge Saunders made inappropriate comments such as she and the complainant were as bad as each other and also made inappropriate suggestions as to how the trial might be resolved, such as her entering into a bond to keep the peace with the complainant. 1 He allegedly stated that he would then dismiss the charge against her, if she agreed to withdraw her complaints against the complainant. [4] Ms Anderson then applied for leave to elect trial by jury out of time. She says that because of Judge Saunders comments, she now wants to be tried by jury, which she now believes, would be fairer in determining her guilt compared to a Judge-alone trial. She says Judge Saunders comments have made her feel that her case should not be heard by a Judge alone. 1 Criminal Procedure Act 2011, s 366.
District Court decision [5] After reviewing the factual background, Judge Burns referred to ss 50 and 51 of the Act, which set out the right to elect trial by jury and the timing of such an election. An election can be made as of right at the time that a not guilty plea is entered, but the leave of the Court is required if a defendant wishes to elect trial by jury after entering a not guilty plea. [6] Sections 50 and 51 of the Act provide: 50 Defendant charged with category 3 offence may elect trial by jury A defendant who is charged with a category 3 offence, and who pleads not guilty to that offence, may elect to be tried by a jury. 51 Timing of election (1) An election under section 50 must be made at the time of entering a not guilty plea, unless the defendant obtains the leave of the court under subsection (2). (2) The court may grant leave to make an election at a later time, but only if the court is satisfied that there has been a change in circumstances that might reasonably affect the defendant's decision whether to elect a trial by jury. (3) The court must not grant leave under subsection (2) after a Judgealone trial has commenced. [7] Judge Burns gave a number of examples of a change of circumstances that might reasonably affect a defendant s decision to elect trial by jury in terms of s 51(2). He then turned to s 51(3), which provides that a Court must not grant leave after a Judge-alone trial has commenced. Judge Burns said it was arguable that a Judge-alone trial had in fact commenced before Judge Saunders, although it had been abandoned. He noted that the subsection did not say commenced and concluded, but simply commenced. In this case, he said that the trial had clearly commenced before a Judge alone before being abandoned. [8] Judge Burns then referred to Judge Saunders reported comments, and the perception now held by Ms Anderson that any Judge who is likely to hear her case could not be relied on to do justice in her situation, describing her view as a long
bow to draw. He noted the wording of s 51(2), which provides that any change of circumstances must reasonably affect the defendant s decision whether to elect a trial by jury. Judge Burns was of the view that Ms Anderson s subjective perception was insufficient, as there must be an objective criteria of reasonableness applied. [9] Judge Burns also referred to issues of delay, cost, the availability of a jury and the question of proportionality. Judge Burns said that the only distinguishing feature separating this case from the many other cases heard by the Court was Ms Anderson s perception of Judge-alone trials, based on what she regarded as inappropriate comments made by another Judge. Judge Burns said he had no way of knowing what those comments were and, therefore, no way of knowing whether they were inappropriate or not. He said that all he had was her perception. Judge Burns noted she was entitled to have a view, but he had to make a decision on the evidence before him. [10] Judge Burns then referred to the delay if a jury trial was elected, which was likely to be a year to 18 months before a jury trial could be heard. He was of the view that it was important to deal promptly with charges of family violence. [11] Commenting on the rationale of s 51(3), Judge Burns said that it made complete sense to him, because otherwise cases could commence and if a defendant did not like the look of the Judge or the way the evidence was unfolding, or had other tactical reasons, then a defendant could elect trial. It could not have been the intention of Parliament to allow tactical decisions. In this case, a trial had commenced and Ms Anderson had obviously seen part of the evidence. Accordingly, Judge Burns was concerned that there was a tactical element to her decision to seek leave of the Court to elect trial by jury. [12] Ultimately, Judge Burns was of the view that he did not have jurisdiction to grant leave to Ms Anderson to elect trial by jury, because a trial had commenced in terms of s 51(3), but that even if he was not correct on the jurisdictional issue, leave should be refused. This was because Ms Anderson s perception was not objectively accurate, and that there was no relevant change of circumstances.
Does the Court have jurisdiction to hear the appeal? [13] A preliminary issue arises. Does this Court have jurisdiction to hear the appeal? The right to appeal on a question of law is set out in s 296 of the Act as follows: 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, appeal under this subpart to that court on a question of law against a ruling by the trial court. (3) The question of law in a first appeal under this subpart must arise (a) (b) in proceedings that relate to or follow the determination of the charge; or 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) (b) arises from a jury verdict; or arose before the trial and has already been decided under subpart 2. [14] The key question is whether the questions of law on which Ms Anderson wishes to appeal arose in proceedings that relate to the determination of the charge in terms of s 296(3)(a). This is one of three avenues through which a question of law must arise for there to be jurisdiction to grant leave to appeal. Counsel for Ms Anderson accepts that the questions of law did not arise through the other two avenues, being in the determination of the charge 2 or in proceedings following the determination of the charge. 3 The determination of a charge simply means its disposition in some way. Subsection 3(b) illustrates that concept by referring to a conviction, an acquittal, the dismissal of the charge under s 147 or a stay of prosecution. There are other forms of disposition, which include the process triggered by s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. 2 3 Summary Procedure Act 2011, s 296(3)(b). Summary Procedure Act 2011, s 296(3)(a).
[15] Counsel for Ms Anderson submits that a decision on the mode of trial relates to the determination of the charge. Counsel for the respondent submits that it cannot be suggested that the mode of trial will be decisive of the future determination of the charge. To do so would be to suggest that a particular mode of trial, be it a Judgealone trial or jury trial, may result in a substantially different determination. [16] The learned authors of Adams on Criminal Law state: 4 The type of rulings that may be the subject of an appeal on a question of law is broad It is possible to appeal on a ruling made before or after the charge is determined, or that arises during the trial. 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 being abolished There is an overlap between subs (3)(a) and (b), although subs 3(b) is primarily aimed at the disposition of a charge. [17] With respect, I am of the view that these comments do not recognise the limitation on the right of appeal under s 296. The words relate to are of importance and should not be overlooked. The words relate to mean to have some relation or an existing connection or a significant association. That relation, connection or association must exist between the proceedings and the determination or disposition of the charge. [18] In this case, Judge Burns was hearing a separate application for leave, under s 51(2) of the Act, to elect trial by jury. Any decision made by Judge Burns on that application did not, in my view, have some relation to, an existing connection with, or significant association with the determination or disposition of the charge against Ms Anderson. The re-trial had not commenced. No evidence had been heard. No decision had been given on any issue which may arise during a trial, such as the admissibility of evidence. The charge had not been determined. Any determination or disposition of the charge is, in fact, a long way off. [19] Subsection (3) is an obvious limitation on subsection (2), which refers broadly to an appeal on a question of law against a ruling by the trial court. If the 4 Bruce Roberson (ed) Adams on Criminal Law Procedure (online looseleaf ed, Brookers) at [CPA296.02].
legislature had intended a broad right of appeal, then it would not have included subsection (3). [20] It is also of significance, in my view, that the legislature chose to provide for a specific right of appeal against the making or refusing of orders under ss 102 and 10, which allow for Judge-alone trials to be held in cases likely to be long and complex or cases involving intimidation of jurors. 5 Comparably, the legislature chose not to provide for a specific right of appeal against the making or refusing of an order under s 51 allowing a defendant to elect trial by jury out of time. [21] Sections 50 and 51 are found in the part of the Act entitled Procedure before trial. Apart from the procedure provided in s 296, there is very limited ability to appeal against pre-trial rulings in a Judge-alone trial. Section 215 provides a right of appeal only against certain pre-trial evidential decisions. According to Adams on Criminal Law: 6 This reflects the different nature of the two forms of trial [judge-alone and jury] and the view that, in a judge-alone case, the balance of convenience is more likely to favour continuing with the trial with any challenge to a pretrial decision being dealt with by way of an appeal at the conclusion of the trial if required. [22] If, at the end of a Judge-alone trial Ms Anderson is convicted, and is of the view that the refusal to grant leave to elect trial by jury resulted in a miscarriage of justice, she may appeal against that conviction under s 232 of the Act. She, therefore, retains the ability to challenge Judge Burns decision, albeit at a later time. A miscarriage of justice is defined in s 232(4) as meaning any error, irregularity or occurrence in or in relation to or affecting the trial that: (a) Has created a real risk that the outcome of the trial was affected; or (b) Has resulted in an unfair trial or a trial that was a nullity. 5 6 Criminal Procedure Act 2011, s 217(2)(c) and (d). Adams on Criminal Law, above n 4, at [CPA 215.01].
[23] Ms Anderson could therefore later argue that the refusal of Judge Burns to grant her leave to elect trial by jury resulted in an unfair trial, under s 232(4)(b) of the Act. [24] There is little case law on the proper interpretation of s 296. In Pritchard v Police 7 I held that the entry of a guilty plea did not determine the charge and, accordingly, there was no jurisdiction to appeal under s 296 against a District Court decision to amend the charge after the plea was entered. In Clarke v Police, 8 Collins J held that the refusal of an application to discharge the defendant under s 147 of the Criminal Procedure Act did not determine the charge and, accordingly, there was no jurisdiction to appeal under s 296 against the District Court refusal to discharge the defendant. [25] Older case law is, in my view, also relevant in interpreting s 296, which replaced ss 78 and 107 of the Summary Proceedings Act 1957. Section 78 provided that on the hearing by a District Court of any information or complaint (now referred to as a charge), the Court could state a case for the opinion of the High Court on any question of law arising in the proceedings. Section 107 provided that where any information or complaint had been determined by a District Court, either party could, if dissatisfied with a determination as being erroneous in point of law, appeal to the High Court by way of case stated for the opinion of that Court on a question of law only. Section 107 required the determination of the charge before a case could be stated, whereas s 78 gave a somewhat broader right for a District Court Judge to seek the opinion of the High Court on a question of law at any time during a hearing. [26] In Police v O Neill, 9 a case decided under the old legislation, Tipping J stated: 10 It is my view that a case should generally be stated under s 78 only if the point of law which arises is (a) clearly necessary for the decision and (b) likely to be decisive one way or the other. 7 8 9 10 Pritchard v Police [2013] NZHC 3278, [2014] NZAR 149. Clarke v Police [2015] NZHC 259. Police v O Neill [1991] 3 NZLR 594. At 9.
This could be seen as similar to the requirement now imposed in s 296 that the question of law must arise in proceedings that relate to the determination of the charge. [27] I am of the view that the decision on the mode of trial does not relate to the determination of the charge. The defendant will face the same charge regardless of whether she is tried by a Judge alone or a jury. The legal elements of the charge to be proved are the same. The trial procedure is essentially the same. The only real difference is the identity of the fact finder. Quite simply, there is therefore no jurisdiction under s 296. I do not consider that the refusal of Judge Burns to grant leave to elect trial by jury related to the determination of the charge and, therefore, this Court does not have jurisdiction to hear this appeal. Substantive appeal [28] The finding that there is no jurisdiction to allow the application for leave to appeal is sufficient to dispose of the application. If, however, I am in error, then I will briefly consider the merits of the application. [29] The primary finding of Judge Burns was that s 51(3) applied and that he had no jurisdiction to grant the application for leave to elect trial by jury because a Judge-alone trial had commenced. I am of the view, however, that Judge Burns fell into error when he found he had no jurisdiction to grant the application. [30] In my view, once the Judge-alone trial was aborted and a new trial ordered, the clock was reset. The words has commenced implies that it is still continuing. This is the preferable rights-based interpretation. Judge Burns primary rationale for s 51(3) accords with this interpretation. 11 [31] Judge Burns referred to a further rationale, of the possibility of a tactical decision being made to elect trial by jury just as a case was finally able to proceed and the Police ready to present evidence. However, this situation is not covered by s 51(3), but instead by s 51(2). There was a right under previous legislation to elect 11 See above at [11].
trial by jury at any time before the charge was gone into, but in terms of s 51(2), leave of the Court is now required. A defendant no longer has a right to elect trial by jury up until the point that a Judge-alone trial starts. [32] The secondary finding of Judge Burns related to s 51(2). Section 51(2) enables a Court to grant leave to make an election at a time later than the entry of a not guilty plea, but only if the Court is satisfied that there has been a change in circumstances that might reasonably affect the defendant s decision whether to elect a trial by jury. Judge Burns referred to Ms Anderson s perception that any Judge who was likely to hear her case could not be relied on to do justice in her situation because of the comments made by Judge Saunders. In effect, Judge Burns found that Ms Anderson s perception did not reasonably affect her decision whether to elect trial by jury, inasmuch as the word reasonably imported an objective criteria into the test. Having found that there was no change of circumstances in terms of s 51(2), Judge Burns nonetheless went on to consider issues of delay, cost and proportionality in determining that leave should not be granted to Ms Anderson to elect a trial by jury, even if he had jurisdiction to do so. [33] Here I am of the view that Judge Burns was on stronger ground. While counsel for Ms Anderson relies on Ms Anderson s perception that any Judge trying her case will show bias against her, it has long been accepted that Courts will not regard a defendant s perception as decisive, but has required that his or her suspicions of bias be objectively justified. 12 Judges swear to do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will. A Judge would therefore be in breach of his or her oath of office if he or she was biased against Ms Anderson on any retrial. [34] While Ms Anderson may have that perception, there is no evidence that another Judge would not conduct the retrial in any manner other than fairly and impartially. 12 See, for example, the emphasis on considering what a reasonable person would have thought in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 1) [2009] NZSC 72, [2010] 1 NZLR 35.
[35] Counsel for Ms Anderson also refers to three other factors, which he says are also changes of circumstances in terms of s 51(2). First, that Ms Anderson was not advised of her right to trial by jury by her previous counsel. Secondly, her curfew was deleted after the aborted Judge-alone trial on 8 December 2014 and by implication, she is now less concerned about the delay inevitably involved in a jury trial. Thirdly, the complainant has subsequently pleaded guilty to two separate and unrelated charges of assaulting Ms Anderson after the date of the alleged offence, which adds to her credibility as to why she had a knife in her possession on the date of the alleged offence. [36] As to the first factor, counsel accepts that once Ms Anderson was told of her right to elect trial by jury, she chose to remain with a Judge-alone trial. The second factor was not addressed in the hearing before Judge Burns. As to the third factor, there are no different rules relating to the admissibility of the complainant s convictions in a Judge-alone or a jury trial. [37] I am, therefore, of the view that it was open to Judge Burns to determine that there had not been a change of circumstances in terms of s 51(2). Although counsel criticises Judge Burns for referring to issues to delay, cost and proportionality, I am of the view that if there has been a change of circumstances that might reasonably affect a defendant s decision whether to elect trial by jury, a residual discretion remains 13 and that issues of delay, cost and proportionality are all proper discretionary factors to be weighed in the balance when making a final decision on an application under s 51(2). Result [38] The appeal is dismissed. There is no jurisdiction to hear it.. Woolford J 13 In that regard, I doubt the ruling of Judge Coyle in New Zealand Police v Joyce (Dunedin District Court, CRI-2013-012-002545, 15 November 2013), that even if there has not been a change of circumstances in terms of s 51(2), a residual discretion remains to grant leave to elect trial by jury. I am of the view that a change of circumstances is a necessary prerequisite.