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Manoj Vohra & Another v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA Nos. 540, 706 of 2017

    Decided On, 01 May 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE KÓS P
    By, THE HONOURABLE MR. JUSTICE MILLER
    By, THE HONOURABLE MR. JUSTICE ASHER
    By, THE HONOURABLE MR. JUSTICE BROWN & THE HONOURABLE MR. JUSTICE GILBERT

    For the Appellant: S.G. Vidal, M.S. Gibson, Advocates. For the Respondent: C.A. Brook, K.L. Kensington, D.A. Ewen, J.A.E. Tausi, Advocates.



Judgment Text

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] These two appeals were set down to determine as a preliminary question the identity of the applicable first appeal court. A Full Court was convened because it was anticipated that the correctness of this Court’s recent decision in Jackson v R might be called into question.[1] However it transpired ultimately that Jackson was not directly engaged by either appeal. In any event for reasons of comity it may not have been appropriate to revisit Jackson in circumstances where a more comprehensive legislative change was in prospect.[2]

First appeal courts

[2] A key principle underlying the approach to appeal pathways in the Criminal Procedure Act 2011 (the Act) was that the Court of Appeal should continue to have a supervisory jurisdiction in jury trial cases. The High Court would have first instance jurisdiction over category 3 offences when jury trial was not elected in the District Court.[3]

[3] The Act gave effect to that policy in a sequence of sections defining first appeal courts. With reference to first appeals against conviction s 230 provided:

230 First appeal courts

The first appeal court for an appeal under this subpart is -

(a) the District Court presided over by a District Court Judge, if the appeal is against a conviction entered by the 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.

[4] The first appeal court in appeals against sentence was specified in s 247:[4]

247 First appeal courts

The first appeal court for an appeal under this subpart is -

(a) the 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 the 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.

[5] While s 53 of the Act continues to permit withdrawals of elections with the leave of the Court, that section did not re-enact the portion of s 66(6) of the Summary Proceedings Act 1957 which related to the reversion to the summary jurisdiction:

(6) A defendant who has elected under this section to be tried by a jury may, by leave of the court at any time before he is committed for trial or for sentence, withdraw his election, and thereupon the court may, notwithstanding anything in section 160, 161, 184I, 184J, or 184M, deal summarily with the case in all respects as if no such election had been made, and the foregoing provisions of this section shall no longer apply. ...

[6] Hence there was an apparent lacuna in proceedings under the Act where a defendant initially elected jury trial but then changed his or her mind. Were appeals in such cases to be heard by this Court notwithstanding that a jury trial had not occurred?

[7] In Jackson this Court answered that question in the affirmative in circumstances where a defendant was convicted at a judge-alone trial in the District Court following the withdrawal of a jury trial election. The Court reasoned as follows:[5]

[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, 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. 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.

(Footnotes omitted).

Vohra CA540/2017

[8] On 7 October 2014 11 charges were filed alleging violent offending by Mr Vohra. On 28 October 2014 he pleaded guilty to one charge of male assaults female ('Charge 1') but on the other ten charges he pleaded not guilty and elected trial by jury. On 18 April 2016 he was acquitted on those ten charges. He was sentenced to nine months’ supervision in respect of Charge 1.

[9] Mr Vohra seeks to appeal against his conviction and sentence in respect of Charge 1 on the basis that he should have been discharged without conviction. Ms Vidal advised that Mr Vohra personally filed an appeal in the High Court but that after Jackson was released counsel filed a new appeal in this Court.

[10] Had Mr Vohra initially pleaded not guilty to Charge 1 and elected trial by jury along with the other charges but subsequently pleaded guilty, the position would have been governed by Jackson. However the issue that arises is different from that considered in Jackson. In Vohra the issue is whether an election on other charges in the same proceeding, which are not the subject of the appeal (because of an acquittal on those charges), dictates appeal pathways in respect of a charge in that proceeding on which no election was ever entered.

[11] The significance of Mr Vohra’s guilty plea to Charge 1 at the outset lies in the fact that the ability to elect trial by jury is conditional on a not guilty plea having first been entered. So, while normally an election of jury trial on one charge would impact on the other charges in the same proceeding by virtue of s 139 of the Act, that could not be the case here because it is simply not possible to elect trial by jury on a charge in respect of which a not guilty plea has never been entered.

[12] In these circumstances Ms Brook for the Crown and Mr Ewen, who was appointed as counsel assisting to present argument on the correctness of Jackson, were in accord that the correct first appeal court is the High Court. We agree. Consequently Mr Vohra’s appeal against conviction and sentence in respect of Charge 1 must lie with the High Court. Mr Brook helpfully advised that the Crown would not oppose an application to revive the abandoned appeal should that be necessary.

McKelvy CA706/2017

[13] Mr McKelvy originally faced 11 charges alleging drug offending laid on various dates between 29 January 2015 and 2 July 2015. It appears that on 16 April 2015 he pleaded not guilty and elected trial by jury on all charges laid at that point.

[14] The Crown solicitor, having assumed responsibility for the charges, ultimately preferred two representative charges. On 19 May 2016 Mr McKelvy pleaded guilty to those charges. On 30 November 2017 he was sentenced to five years and two months’ imprisonment.[6] He seeks to appeal against sentence only.

[15] As in Vohra, the issue here, which is whether an election survives a subsequent amendment of the charge, is also different from that addressed by this Court in Jackson. However on the issue of the correct first appeal court, counsel were not of one mind.

[16] Ms Brook submitted that, like the plea, the election survives the amendment unless the defendant seeks leave to withdraw it. She contended that there are clear practical reasons why that must be the case: the defendant would otherwise be required to re-elect jury trial every time a minor amendment was made to the charge.

[17] For Mr McKelvy Mr Gibson suggested that the reduction of the 11 charges into two representative charges could be characterised as an amalgamation of charges rather than an amendment. If so the case would fall within the four corners of s 247 of the Act.

[18] However Mr Ewen maintained that the High Court is the first appeal court because, while s 134(2) of the Act provides that any pre-trial decisions and determinations made in the proceedings continue to apply after amendment of the charge, an election of trial by jury is not such a determination and hence does not carry over.

[19] In agreement with Ms Brook and Mr Gibson, we consider that the correct first appeal court is determined by a straightforward application of ss 247(c) and (d) of the Act:

* Mr McKelvy elected jury trial;

* he pleaded guilty prior to trial; and

* the sentence appealed against is a sentence of imprisonment exceeding five years.

It follows that this Court is the correct first appeal court.

The prognosis for Jackson

[20] Contrary to initial impression, neither Vohra nor McKelvy involved the particular circumstances with which Jackson was concerned. Consequently, although we heard detailed submissions on the correctness of the conclusion reached in Jackson, it has not proved necessary for the determination of the preliminary question in the current appeals to undertake a reevaluation of Jackson. Suffice to say however, given the manner of expression of the relevant provisions in the Act, we are not satisfied that there was any error in the statutory interpretation exercise undertaken in Jackson.

[21] The present case provides an illustration of Justice Felix Frankfurter’s observation that 'legislatures make law wholesale, judges retail'.[7] Although Jackson is not directly engaged on these appeals, its status for the future is likely to be impacted by the Courts Matters Bill.[8] The Explanatory Note relevantly states:

Clause 34 amends section 219 (which specifies which court is the first court of appeal) by providing that if a defendant elects a jury trial and withdraws his or her elections before trial, the defendant must be treated as if he or she had not elected a jury trial. The intention of the changes made by this clause and clauses 35 to 38 is to reverse the effect of Jackson v R [2016] NZCA 627.

Clauses 35 to 38 make an amendment to sections 230, 247, 272, and 297, respectively, that is similar to that made by clause 34.

[22] The proposed amendment to s 219 would introduce as subs (2) the following provision:

(2) For the purposes of subsection (1), if a defendant elected a jury trial but subsequently withdrew his or her election before trial,-

(a) the defendant must be treated as if he or she had not elected a jury trial; but

(b) any appeal commenced before the date on which the defendant withdrew his or her election must be determined by the appeal court that had jurisdiction to determine the appeal at the time it was commenced.

[23] The proposed amendment to ss 230, 247, 272 and 297 is similar:

(2) For the purposes of subsection (1), if a convicted person elected a jury trial but subsequently withdrew his or her election before trial, the convicted person must be treated as if he or she had not elected a jury trial.

[24] The comprehensive proposed amendments will have the beneficial effect that where, having elected trial by jury, a defendant changes his or her mind, then any appeals from the determination of the proceeding will not come (at least directly) to this Court.[9] However the important policy that this Court should continue to have a supervisory jurisdiction over jury trial cases in the District Court will continue to be implemented.

[25] The fact of Parliament’s current consideration of the Courts Matters Bill incorporating such comprehensive amendments to the definitions of first appeal courts i

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s the reason why, as noted in our introductory comments, as a matter of comity we would not now have been disposed to revisit the reasoning in Jackson. Result [26] Mr Vohra’s appeal is dismissed for want of jurisdiction. The High Court is the correct first appeal court. [27] This Court is the correct first appeal court for Mr McKelvy’s appeal which should now be set down for hearing. ------------------------------------------------------------------------ [1] Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144. [2] Discussed at [21]–[25] below. [3] Ministry of Justice Criminal Procedure (Reform and Modernisation) Bill: Departmental Report for the Justice and Electoral Committee (16 May 2011) at 187. [4] Other provisions specifying first appeal courts are ss 219 (appeals against pre-trial decisions), 297 (appeals on questions of law) and 272 (appeals against decisions on costs orders). [5] Jackson v R, above n 1. [6] The delay appears to be attributable to a disputed facts hearing and several unsuccessful applications to vacate the guilty pleas. [7] Joseph P Lash, From the Diaries of Felix Frankfurter (W W Norton & Company, New York, 1975) at 67 (quoting an unidentified letter from Felix Frankfurter to Justice Hugo Black). [8] Courts Matters Bill 2017 (285-1). [9] Save to the extent proposed for pre-trial decisions.
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