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Court of Appeal of New Zealand |
Last Updated: 6 January 2017
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IN THE COURT OF APPEAL OF NEW ZEALAND
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JUDGMENT OF THE COURT
(Jurisdiction)
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1] These three appeals raise a common jurisdictional issue: which is the first appeal court – the High Court or this Court – for conviction or sentence appeals where an appellant has been convicted in the District Court following his or her withdrawal of an election of a jury trial, substituted by an election of trial by judge alone?
[2] One of the three appeals raises an additional jurisdictional issue, which we shall address first: is an appeal against a refusal to discharge an appellant without conviction an appeal against conviction, an appeal against sentence, or both?
[3] Winkelmann J directed that all appeals be set down for hearing together to determine the preliminary question of jurisdiction only: the substantive appeals will be heard later. The direction was made on the assumption that the underlying issue would be contested. However, Taulauniu Mafua, the appellant in CA314/2016, did not participate and Mr Gotlieb and Ms Vidal, respectively counsel for Martyn Jackson and Chloe Syme, the appellants in CA256/2016 and CA469/2016, did not challenge Ms Brook’s submissions for the Crown. In the absence of argument, and given our independent agreement with the Crown’s position, we are able to address the issues with relative brevity.
Facts
[4] Ms Syme appeals against, first, the refusal of a District Court Judge to grant her a discharge without conviction and, second, if that fails, her sentence of five months of community detention and 180 hours of community work. She originally faced three category 3 charges of knowingly permitting her house and car to be used between January and August 2015 for the purpose of selling methamphetamine. She elected trial by jury in the District Court. However, at a pretrial hearing two of the original charges were withdrawn and the remaining charge, to which she pleaded guilty, was amended to cover a period from 15 to 29 August 2015.
[5] Messrs Jackson and Mafua appeal against their convictions and sentences of imprisonment imposed following guilty pleas in the District Court. For present purposes, it is sufficient for us only to set out the procedural background in Mr Jackson’s case. Mr Jackson and a co-offender originally faced numerous category three charges of producing and supplying methamphetamine. They elected trial by jury. After his cooffender pleaded guilty to most of the supply charges Mr Jackson was granted leave to vacate his original election and elect trial before a judge alone. Judge Bergseng convicted Mr Jackson on 10 counts of manufacturing methamphetamine, four of supplying methamphetamine and one of conspiring to manufacture methamphetamine.
Decision
Ms Syme
[6] Ms Syme’s appeal raises a preliminary jurisdictional question about the nature of her appeal: is it against conviction, or sentence, or conviction and sentence?
[7] The power to discharge without conviction a person who is found or pleads guilty to a charge is contained in s 106(1) of the Sentencing Act 2002. By virtue of s 106(2), the discharge is deemed to be an acquittal. On discharging an offender under s 106(1) the court may make a range of orders for costs or compensation for any order that the court is required to make on conviction.[1] Before the enactment of the Criminal Procedure Act 2011 (the CPA) rights of appeal against conviction or sentence imposed in the District Court were governed by pt 4 of the Summary Proceedings Act 1957 (the SPA). The consensus of authority in the High Court was that an appeal under the SPA against a refusal to discharge without conviction was properly characterised as an appeal against both conviction and sentence, even where it was filed technically against sentence alone.[2]
[8] We agree with that line of authority and its rationale, which applies equally to the CPA.[3] If it is considered in conceptual terms, without examining the relevant statutory provisions, an appeal against the refusal to discharge without conviction must, at the very least, be characterised as an appeal against conviction. The essence of the challenge is to the entry of a conviction; that is the nature of the decision against which the appeal is brought. The setting aside of the conviction is both the necessary prerequisite to and objective of the appeal.
[9] In the event an appeal against a refusal to discharge without conviction is unsuccessful, an appellant like Ms Syme would pursue her secondary or contingent appeal against sentence alone. Thus her appeal is properly characterised as being against conviction and sentence.
[10] Is that conceptual analysis affected by the prescriptive terms of pt 6 of the CPA? The first appeal courts for an appeal against conviction are defined by s 230 in this way:
230 First appeal courts
The first appeal court for an appeal under this subpart is—
(a) a District Court presided over by a District Court Judge, if the appeal is against a conviction entered by a District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b) the High Court, if the appeal is against a conviction entered by a District Court presided over by a District Court Judge, other than a conviction for—
(i) a category 3 offence after the convicted person elected a jury trial; or
(ii) a category 4 offence; or
(c) either the Court of Appeal or the Supreme Court, in any other case.
[11] The grounds upon which an appeal against conviction are to be determined are set out in s 232, which provides:
232 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a) in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3) The first appeal court must dismiss a first appeal under this subpart in any other case.
(4) In subsection (2), miscarriage of justice means 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) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[12] Ms Brook relies principally on the grounds set out in ss 232(2)(b) or (c). While it may be seen as straining the statutory definition of a miscarriage of justice, we are satisfied that the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
[13] The appellate court must set aside the conviction if it is satisfied that either error is established, with the result that the sentence appeal will not require determination. A discharge under s 106 of the Sentencing Act 2002 is deemed to be an acquittal. But, if the conviction appeal fails, the Court will then proceed to the second stage of determining whether the correct sentence was imposed.
[14] The court must allow a sentence appeal under s 250 if satisfied there “is an error in the sentence imposed on conviction” and “a different sentence should be imposed”. Under s 251 its powers are to impose another sentence or vary the sentence. That power does not extend to the separate remedy of discharging without a conviction.
[15] In this respect a discharge without conviction is not a sentence because s 212 of the CPA defines a sentence as including “any method of disposing of a case following conviction”. In an appeal such as that brought by Ms Syme, where the primary challenge is to entering a conviction, the method of disposition is relevant only to the second or contingent stage of a challenge to the sentence itself. The court’s power is limited to substituting the sentence imposed with another “sentence”, thus excluding the possibility of a discharge without conviction. These provisions confirm the conceptual point that the appeal is principally against conviction.
[16] In our judgment Ms Syme’s appeal is properly characterised as a composite appeal against conviction and sentence.
All appeals
[17] The second question common to all appeals is which of the two available courts — this Court or the High Court — is the appropriate first appeal court? An appeal against sentence is governed by s 247, which materially provides:
247 First appeal courts
The first appeal court for an appeal under this subpart is—
(a) a District Court presided over by a District Court Judge, if the appeal is against a sentence imposed by a District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b) the High Court, if the appeal is against a sentence imposed by a District Court presided over by a District Court Judge and if—
(i) the sentence was for a category 1 or 2 offence; or
(ii) the sentence was for a category 3 offence and the convicted person did not elect a jury trial; or
(c) the High Court, if the appeal is against a sentence imposed by a District Court presided over by a District Court Judge for a category 3 offence and if—
(i) the convicted person elected a jury trial; and
(ii) the convicted person pleaded guilty to the offence before the trial; and
(iii) the sentence appealed against is not a sentence of imprisonment exceeding 5 years; or
(d) either the Court of Appeal or the Supreme Court, in any other case.
[18] By virtue of ss 230(b)(i) and 247(c), governing an appellant’s rights of appeal against conviction and sentence respectively, a defendant’s election of a jury trial triggers all consequential rights of appeal. As is made clear by the Ministry of Justice’s departmental report which preceded the CPA,[4] the assumption underlying these provisions is that this Court should retain supervision over jury trials, whether in the High Court or District Court. However, that policy rationale for retaining this Court as the first appeal court on either a conviction or sentence appeal disappears where a defendant changes his or her election from trial by jury in the District Court to a judge alone trial.
[19] Nevertheless, we agree with Ms Brook that the plain words of both provisions dictate jurisdiction according to the election, not subsequent events. The election, not the actual mode of subsequent trial, is the governing or controlling event despite the defendant’s subsequent withdrawal of an election of jury trial. That is so, even where the consequence is a trial before a judge alone or no trial at all following a plea of guilty.[5] While the High Court is normally the first appeal court against a conviction entered by a District Court judge, the statutory exception substituting this Court as the first appeal court could not be more plainly expressed.
[20] In reaching this conclusion we are conscious that we are differing from a view expressed in a minute issued by a Divisional Court of this Court in Rongonui v R.[6] However, counsel who appeared for the Crown on that appeal advanced a construction of s 230 which was directly contrary to Ms Brook’s argument before us. Mr Rongonui’s counsel agreed. In fairness to the Court in Rongonui we have had the benefit of what appears to be a more carefully considered argument by the Crown.
[21] It is relevant also that in Rongonui this Court observed those responsible for drafting the CPA did not apparently contemplate what occurred in that appeal and in two of these appeals — a defendant initially electing a jury trial and then withdrawing that election with leave and electing a trial by Judge sitting alone.[7] In apparent recognition of this anomaly Ms Brook advised us that the Ministry intends to promote a law change which will align the relevant CPA provisions with the decision reached in Rongonui.
[22] It follows that this Court is the first appeal court for the purposes of determining all three appeals.
Solicitors:
Southern Law, Arrowtown for Appellant
(CA469/2016)
Crown Law Office, Wellington for Respondent
[1] Sentencing Act 2002, s 106(3).
[2] See for example Dickey v Police HC Auckland A112/02, 3 September 2002; and Rutherford v Papakura District Council HC Auckland CRI-2005-404-162, 20 September 2005.
[3] Lawrence v Police [2016] NZHC 148 at [7].
[4] Ministry of Justice Criminal Procedure (Reform and Modernisation) Bill: Departmental Report for the Justice and Electoral Committee (16 May 2011) at 185–187.
[5] Subject to the express provision in Criminal Procedure Act 2011, s 247(c).
[6] Rongonui v R CA575/2014, 11 June 2015 (Minute of the Court).
[7] At [8].
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URL: http://www.nzlii.org/nz/cases/NZCA/2016/627.html