Jones v Police [2018] NZHC 1373 (11 June 2018)

Last Updated: 24 September 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-0020 [2018] NZHC 1373

BETWEEN	TREVOR ALLAN JONES Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 June 2018
Appearances:	T D Clee of Appellant L E Nunweek for Respondent
Judgment:	11 June 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:

Tudor David Clee, Barrister, Auckland Kayes Fletcher Walker Limited, Auckland

JONES v NEW ZEALAND POLICE [2018] NZHC 1373 [11 June 2018]

[1] Trevor Jones appeals against his conviction of driving under the influence of cannabis. He was found guilty of that charge at a Judge-alone trial in the Pukekohe District Court on 16 January 2018.

[2] He appeals on the basis that he wanted to give evidence at his trial, but was not given the opportunity to do so. He claims his then counsel, Oliver Troon, advised the Court Mr Jones would not be giving evidence contrary to his client’s instructions, and then proceeded to obtain signed written instructions after the fact.

[3] The appeal turns on two core issues:

(a) as a question of fact, did Mr Troon act contrary to or consistent with Mr Jones’ instructions in telling the Court Mr Jones would not give evidence; and

(b) as a question of law, does that error (if it was such) give rise to a real risk that the verdict is unsafe, such that a miscarriage of justice has occurred.

[4] After briefly outlining the legal framework, I address each issue in turn.

Legal framework

—on appeal

[5] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge- alone trial.

[6] Under s 232, I can only allow such an appeal if satisfied the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or “a miscarriage of justice has occurred for any reason”. That provision relevantly provides:

232 First appeal court to determine appeal

...

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

...

(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

(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.

[7] As s 232(4) makes clear, not every “error or irregularity” creates a miscarriage of justice.¹ The error or irregularity must either create a real risk the outcome of the trial was affected – in the words of Tipping J in R v Sungsuwan, “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”² – or have resulted in an unfair trial or a trial that was a nullity. In Sungsuwan, the plurality observed “... the ultimate question is whether injustice has miscarried. ... If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary”.³

[8] Further, I am required to make my own assessment of and form my own opinion on the facts, independently of those found by the District Court Judge.⁴ But in coming to my own view, I must pay appropriate deference to those findings as made with the benefit of seeing and hearing witnesses giving evidence. Still, the appellant, Mr Jones, bears the onus of persuading me the judgment under appeal is wrong.⁵

1. “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].

² R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].

³ At [70].

⁴ Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

⁵ Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].

—on miscarriage of justice

[9] Mr Jones’ new counsel, Tudor Clee, says simply the relied-upon miscarriage of justice is misconduct of counsel in failing to follow instructions, as set out in Sungsuwan.⁶ He submits there is a real risk the failure affected the outcome. Ms Nunweek, for the police, relies on the Court of Appeal’s later decision in Hall v R,⁷ which follows and expands on the Sungsuwan principles in the specific context of instructions to counsel. The Court of Appeal held that where an appeal alleges a failure to follow instructions, there will generally be a miscarriage of justice if the failure is in respect of a “fundamental” decision. Importantly, this includes the election of whether to give evidence.⁸

[10] I view subs (4)(b) as the more sensible pathway for assessing this case, one that is not tied to establishing the potential risk of an unsafe verdict.⁹ The right to a fair trial is an absolute right, affirmed by s 25(a) of the New Zealand Bill of Rights Act 1990.¹⁰ The contrasting approaches in subs (4)(a) and (4)(b) mean an error or irregularity under subs (4)(b) must be of sufficient seriousness to warrant the setting aside of the conviction without further inquiry into the potential effect of the error on the trial’s outcome. Examples include the lack of legal representation,¹¹ deprival of an adequate closing address,¹² as well as trial counsel error on fundamental decisions.¹³

[11] That course also avoids the more difficult question in this case, which is whether Mr Jones’ evidence in chief could have had anything useful to say in response to the police officer’s evidence.

⁶ Sungsuwan, above n 2, at [64].

⁷ Hall v R [2015] NZCA 403

⁸ At [65].

⁹ Wiley v R [2016] NZCA 28 at [37].

¹⁰ Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77].

¹¹ As in Condon, above n 10.

¹² Kaka v R [2015] NZCA 532

¹³ Hall, above n 7.

Issue 1: did Mr Troon act contrary to Mr Jones’ instructions?

[12] Mr Jones’ position is that he wanted all along to give evidence personally but Mr Troon, of his own volition, advised the Court Mr Jones would not give evidence. As he describes in his affidavit dated 2 May 2018:¹⁴

I wanted to give evidence in my Judge Alone Trial. I told my counsel this. I was telling him that as we went into the Courtroom. He told the Judge I was not giving evidence today.

We then left the Courtroom so the Judge could prepare the summing up. We went into an interview room and had a discussion. My partner Tania was with me. He then gave me a waiver to sign that I would not give evidence. The waiver is attached.

I signed the paper even though he had already told the Judge that I wouldn’t give evidence. I felt I had to trust him as he is the professional.

We went back into the Courtroom and the Judge did the summing up.

[13] The police tender affidavit evidence from Mr Troon – along with a law clerk then observing Mr Troon, William Mohammed. The affidavits directly dispute Mr Jones’ evidence. (For completeness, I note we have in evidence a written statement signed by Mr Jones and dated 13 February 2018 in which Mr Jones waives legal privilege with respect to the driving case, and gives Mr Troon permission to discuss and disclose any relevant material.)

[14] Mr Troon, who is a lawyer at the Manukau office of the Public Defence Service, was assigned as Mr Jones’ counsel for his trial on 16 January 2018. Mr Troon deposes to meeting Mr Jones on the afternoon before the trial (with Mr Mohammed also present) and then drafting a brief of evidence in accordance with his instructions. He met with Mr Jones again on the morning of the trial. At this meeting Mr Jones made handwritten amendments to the brief before signing, and he also gave signed instruction for Mr Troon to proceed with the trial. This brief of evidence is before the Court. It ends with the statement:

I understand this Brief of Evidence will be used by my lawyer, Oliver Troon, to conduct my Judge-Alone Trial ... I understand my lawyer will rely on this Brief to cross-examine police witnesses and also to lead my evidence if I decide I want to give evidence.

¹⁴ The structure of this quotation has been altered for readability; the content is unchanged.

During this morning meeting, Mr Troon also took signed instructions from Mr Jones about his wish to proceed with the hearing despite Mr Troon’s advice he had slim prospects of success. This is also provided in evidence.

[15] After conclusion of the police case – during the subsequent lunch adjournment,¹⁵ but also to enable his instructions on whether Mr Jones would give evidence – Mr Troon says he met with Mr Jones in one of the court interview rooms. He advised Mr Jones against giving evidence but reminded Mr Jones he must follow his client’s instructions. Mr Troon says Mr Jones agreed with his assessment, and signed a waiver instructing he did not wish to give evidence. That waiver, dated 16 January 2018, reads:

I have instructed my lawyer, Oliver Troon, having taken his advice, that I do not want to give evidence.

I have made this decision having taken Mr Troon’s advice that there is little I can add by way of evidence that has not already been achieved by cross- examination.

For that reason, having heard the evidence myself, and the cross-examination subsequently, I choose not to give evidence.

[16] According to Mr Troon’s evidence, it was only after obtaining the signed waiver he informed the Court Mr Jones had elected not to give evidence. Mr Troon denies Mr Jones at any point communicated he wanted to give evidence, and insists he would have followed those instructions if they had been communicated.

[17] The affidavit evidence of Mr Mohammed, a law graduate with the Public Defence Service, recounts the events in his own words. It affirms Mr Troon’s evidence in every respect.

[18] The police gave notice they required Mr Jones for cross-examination on his affidavit, in the event Mr Jones did not turn up. The result is that his affidavit, which was bare bones to start with, is not to be tested in any fashion and therefore carries very little weight.

¹⁵ The notes of evidence before Judge S Patel state “Court adjourns: 1:50pm” and “Court resumes: 2:16pm”. Mr Troon advised me he thought the adjournment was taken shortly before 1pm, and certainly longer than 26 minutes.

[19] I find Mr Jones acquiesced in Mr Troon’s advice. Mr Jones’ evidence was not given at trial. But that did not result in an unfair trial or a trial that was a nullity.

Issue 2: a real risk of an unsafe verdict

[20] Had I been required to decide whether there was a real risk of an unsafe verdict I would have gone on to consider Mr Jones’ evidence itself. Mr Jones says he wanted to give evidence to challenge:

(a) the police officer’s evidence he was close enough to Mr Jones’ vehicle to smell the cannabis coming from the vehicle; and

(b) the statement in the Constable’s unsigned notebook, made contemporaneously, that Mr Jones admitted to taking cannabis that morning.

[21] Both pieces of evidence are clearly critical to the case against Mr Jones, quite obviously so in the case of the apparent admission of taking cannabis in the morning. But further, if the police officer could not smell the cannabis, he arguably lacked “good cause to suspect that the person has consumed a drug or drugs” under s 71A of the Land Transport Act. As this is prerequisite condition before an enforcement officer can require a driver of a motor vehicle to undergo a compulsory impairment test, this potentially impugns the test results (which found positive for a component of cannabis).

[22] The police officer was challenged extensively on both aspects of his evidence by Mr Troon’s cross-examination. He questioned the officer on his capacity to smell the cannabis for over two full pages of the Court transcript, including making the direct challenge “I put it to you, Constable, that you didn’t get that close and you couldn’t smell the cannabis coming from the car”, to which the officer responded “No, I could smell the cannabis coming from the vehicle”.

[23] Mr Troon attempted to undermine the credibility of the notebook, making much of the fact that it was unsigned, and attempting to draw the inference the admissions recorded in it were wrong. The transcript records the critical moment:

Q. I put it to you that he denied that he had ta – or he didn’t say that he had taken or used cannabis that morning?

A. No that is incorrect.

Q. I put it to you that he may have accepted that he had taken, he had taken cannabis a month earlier –

A. No.

Q – prior to his surgery.

A. No. He admitted to taking cannabis as per my notes in my notebook, taken at the time. He admitted to cannabis intake that day.

[24] In light of this thorough cross-examination, which directly put Mr Jones’ case in evidence, I fail to see how Mr Jones’ evidence could have furthered his case in any material way. The lack of Mr Jones’ evidence before the trial Judge did not create a real risk the outcome of the trial was affected.

Result

[25] I dismiss the appeal.



—Jagose J