THE QUEEN v MICHAEL DAVID REID [2002] NZCA 161 (11 July 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca182/02

THE QUEEN

V

MICHAEL DAVID REID

Hearing:	27 June 2002
Coram:	Keith J Fisher J Paterson J
Appearances:	R A Harrison for the appellant J C Pike for the Crown
Judgment:	11 July 2002

judgment of the court DELIVERED BY PATERSON J

Introduction

[1] Mr Reid was charged indictably, under the provisions of s 294 of the Crimes Act 1961, with wilfully setting fire to a dwelling.His counsel sought a pre-trial ruling on whether Mr Reid, on his version of events, had a defence at law to the charge.District Court Judge Mathers declined to give a ruling but agreed to adjourn the trial.Two days later, Mr Reid pleaded guilty and was convicted.He has not yet been sentenced.Mr Reid appeals against the conviction which was entered on his plea of guilty.

The issue

[2] Counsel for Mr Reid submitted that the question for this Court is whether there is a defence at law on the basis of Mr Reid's version of events.In our view, the issue is whether the Judge was obliged to give the pre-trial ruling sought.If she was not so obliged, Mr Reid has no right to appeal to this Court.

Background

[3] Mr Reid and one other person gained entry to the house by breaking the glass ranchsliders.They had previously removed the fuses from the electrical supply and used lighters to see their way around the interior of the house.

[4] Mr Reid set fire to a couch in the lounge of the house.His associate said to him "Don't do that Mike, that's arson, just do this instead."The two men took steps to extinguish the fire.Thinking they had put the fire out, they left the house.

[5] On the basis of this scenario, Mr Reid's defence was:

(a) When he set fire to the couch, he did not have the requisite intent to burn the house down;

(b) If he had the requisite intent at that time, he would have not put the fire out;

(c) Under s294 of the Crimes Act, Mr Reid did not act wilfully as once he was alerted to the risk of what he was doing, he put the fire out.

[6] Before his trial, Mr Reid applied unsuccessfully for a discharge under s347 of the Crimes Act.At that hearing, before a different Judge, the Crown alleged a different version of facts.It was suggested that Mr Reid returned to the house and started the fire again.The Judge, in dismissing the application, noted that two issues would be put to the jury, namely:

(a) Did Mr Reid commit arson while in the presence of another person when he set fire to the sofa, but then left the house with a reasonably based belief that he and/or the other person had put the fire out which Mr Reid started? or

(b) Did Mr Reid commit arson by returning and re-entering the house where he re-started the fire with the intention of causing injury and/or frightening the occupants to leave the house?

The Judge noted that if the first alternative were accepted by the jury, "it will be solely a technical offence of arson."

[7] Two weeks prior to 4 June 2002, the proposed date of hearing, Mr Reid's counsel asked the Court to make time available to see the presiding Judge in Chambers concerning the defence the appellant wished to run.He was not given an appointment but saw the trial Judge at 9 am on the morning of the proposed trial.At that time, he again advanced the defence that Mr Reid wished to have considered.He did this in an attempt to clarify the earlier s347 decision so that the defence could "proceed on an agreed basis."The Judge was being asked to confirm that a defence existed at law on Mr Reid's version of events.The Judge declined to give a ruling whereupon counsel advised the Judge that Mr Reid was left without a defence.

[8] After a short adjournment, counsel for both Mr Reid and the Crown made an application under s380 of the Crimes Act asking the Judge to reserve a question of law to this Court.This application was made without any supporting argument or authority.The Judge declined the s380 application on the basis that she had no jurisdiction to grant leave at that stage.

[9] Counsel then requested that the hearing be adjourned.The Judge reluctantly agreed to an adjournment so counsel could make whatever applications were appropriate to this Court.In doing so, she made it clear she was not to be thought to consider that there was an appropriate application to be made.

[10] Two days later, Mr Reid pleaded guilty and is due to be sentenced in August.Apparently, the plea was made so Mr Reid could appeal to this Court against his conviction on the grounds that he was entitled to the pre-trial ruling he had applied for.

Discussion

[11] Mr Harrison submitted that his client must be entitled to the ruling sought.The only basis suggested for this submission was Mr Reid's entitlement to the right to a fair and public hearing by an independent and impartial Court in accordance with s25(a) of the New Zealand Bill of Rights Act 1990.

[12] We note that the pre-trial application made by Mr Reid is not one of the applications against which s379A of the Crimes Act 1961 gives a right of appeal before the trial.If Her Honour had given a ruling, Mr Reid would not have had the right to appeal the ruling before trial.Further, it would not have been a ruling upon which an order could have been made under s380 of the Crimes Act reserving for the opinion of this Court a question of law.This is because it would not have been an order made "during or after the trial."Her Honour was correct in concluding that such an application was premature.

[13] There is no statutory provision which entitles an accused to seek a ruling on the law which applies to an accused's version of facts.In England, as noted in R v Vickers (1975) 61 Cr App R 48, such a course offers advantages in cases where the prosecution and defence are able to agree a statement of the facts.The English Court of Appeal in Vickers noted that although that practice was convenient, it had dangers.First, it could become a means of avoiding trial by jury.Secondly, it presents difficulties as to the powers of a Court to allow an appeal.There might not be jurisdiction for an appeal in such a case.The learned authors of Archbold: Criminal Pleadings Evidence and Practice (2000) at p4-91 warn against the dangers of the practice even when there is an agreed statement of facts.

[14] We express no view as to whether in a New Zealand criminal jury trial a Judge can give a binding interlocutory ruling on an agreed statement of facts. Certainly there is no obligation on a Judge to do so.In this case, there was not even an agreed statement of facts and, indeed, there was a factual dispute between the parties.The Judge was, in our view, correct to refuse to give such a ruling.Among other things it is unclear whether, even on Mr Reid's version of events, a conviction for arson would have been avoided.Pursuant to s294(b) of the Crimes Act it would have been arson to wilfully set fire to the couch if at that moment he ought to have known that danger to life was likely to ensue.There were other unresolved aspects of intent.These were squarely matters for the jury.The Judge was being asked to give a ruling on hypothetical facts which might or might not be accepted by the jury.They were not matters upon which there could be an agreed statement of facts.

[15] We know of no principle of law under which an accused is entitled to request a Judge to give a pre-trial ruling on the law, on evidence which an accused proposes to give when that evidence is not accepted by the prosecution. A Judge's role is to give the jury the necessary legal directions on the elements of an offence at the appropriate time and refer them to the relevant evidence after that evidence has been given.It is not to give pre-trial rulings on one party's particular version of the facts.

[16] We do not agree that the refusal to give the ruling infringed Mr Reid's right to a fair trial affirmed in s25(a) of the Bill of Rights.Many of the matters which are essential ingredients in a fair trial are themselves specifically referred to in other parts of s25.None of these was infringed by the refusal to give a ruling.Mr Reid's hearing would have been in public and he would have been tried without undue delay.He would have been presumed innocent until proved guilty.He would have had the right to be present at the trial and to present a defence.He had counsel to advise him on the law which applied to his version of facts.Further, he would have had the right after the evidence was called to have the legal question tested by making an application for a discharge under s347 of the Crimes Act.The Judge, if the s 347 application had not succeeded, would have appropriately directed the jury on the essential elements of the alleged crime, and directed on the application of those elements to the facts.Mr Reid, if convicted, would have been able to challenge that direction on appeal.In summary, Mr Reid was not denied a fair trial by the Judge's refusal.

[17] It follows, in our view, that the appeal must be dismissed.The Judge was entitled to refuse to give the ruling and her refusal to do so does not constitute a ground of appeal.

Future conduct

[18] Mr Pike properly conceded that the Crown, in the circumstances of this case, could not oppose an application by Mr Reid to withdraw his plea of guilty.If Mr Reid wishes to do so, he may apply for permission to withdraw his plea of guilty.The granting of such permission is in the Judge's discretion;see R v Ripia [1985] 1 NZLR 122.The determining factor is the interests of justice.It is unlikely that a Court would decline permission if the application is supported by the Crown.Further, Mr Pike concedes that the steps taken in this case and the Crown's part in them may be relevant factors in the sentencing process if Mr Reid does not apply to withdraw his plea.

Solicitors

Crown Law, Wellington