C(CA40/2023) v R [2023] NZCA 453

C(CA40/2023) v R [2023] NZCA 453 [18 September 2023]NOTE: INTERIM DISTRICT COURT ORDER PROHIBITINGPUBLICATION OF NAME, OCCUPATION, AND IDENTIFYINGPARTICULARS OF THE APPLICANT REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA40/2023[2023] NZCA 453BETWEEN C (CA40/2023)ApplicantAND THE KINGRespondentCourt: Miller, Brown and Wylie JJCounsel: A J Bailey for the ApplicantB F Fenton for the RespondentJudgment:(On the papers)18 September 2023 at 11 amJUDGMENT OF THE COURTThe application for leave to appeal the decision of the District Court is to berejected by the Registrar and returned to the applicant.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The applicant, C,1 faced 12 charges of sexual offending. On 8 July 2021 heentered a not guilty plea to eight of the charges and elected trial by jury. He enteredguilty pleas to the four remaining charges and convictions were entered.1 C has been granted interim name suppression until trial by the District Court. This was notdisputed before us and we have therefore anonymised his name in this judgment.[2] By application dated 20 October 2021, C sought to vacate the guilty pleas andto proceed to trial on all 12 charges.[3] The application to vacate the pleas came before Judge Neave in theDistrict Court at Christchurch. The Judge gave an initial results ruling and then, on7 December 2022, a reasons ruling.2 He declined C's application to vacate the guiltypleas.3[4] C seeks to appeal this decision. He filed a notice of application seeking leaveto appeal under s 296 of the Criminal Procedure Act 2011 with this Court on25 January 2023. The proposed question of law is as follows:Whether the Judge was correct to conclude that the advice provided to [C] byhis counsel resulted in [C's] guilty pleas being entered on an informed basis.[5] The Registry treated the application as being a notice of appeal againstconviction.[6] In a minute issued on 16 February 2023, Courtney J recorded that the Registryhad been correct to treat the appeal as an appeal against conviction.4 She noted that"[b]ecause the proposed appeal relates to category 3 offending and no election of ajury trial in the District Court was made, the High Court is the first appeal court" andthis Court does not have jurisdiction to hear the appeal.5 She invited the parties, ifthey had a different view on jurisdiction, to file memoranda.[7] Mr Bailey, counsel for C, filed an initial memorandum on 24 February 2023.He maintained that C is seeking leave to appeal on a question of law, that s 296(3)(a)of the Criminal Procedure Act applies and that C "does have jurisdiction to seek leaveto appeal the proposed question of law". He relied on a decision of this Court —O (CA419/2015) v R.62 R v [C] [2022] NZDC 18570.3 At [44].4 [C] v R CA40/2023, 16 February 2023.5 At [2].6 O (CA419/2015) v R [2015] NZCA 525 at [10].[8] Courtney J then issued a further minute,7 referring to a more recent decision ofthis Court — Vohra v R8 — and noting that in similar circumstances, it was held thatthe correct first appeal court is the High Court.[9] Mr Bailey then filed a further memorandum, discussing the case law and ss 296and 297 of the Criminal Procedure Act, disputing Courtney J's conclusion andsubmitting that a panel of three judges should consider the matter.[10] The Crown filed a memorandum on 31 March 2023. It also discussed the caselaw and the relevant statutory provisions and argued that the High Court is the firstappeal court.[11] Courtney J issued a further minute directing that the jurisdictional issue shouldbe heard separately from C's appeal and that the issue should be set down for hearing.9[12] On 19 July 2023, Mr Bailey filed further submissions in support of C'sargument that this Court is the first appeal court. The Crown responded by emailadvising that it does not intend to file further submissions.[13] The matter has come before us on the papers.Submissions[14] Mr Bailey submitted that this Court has jurisdiction to hear the appeal unders 296 of the Criminal Procedure Act. He sought to distinguish Vohra, on the basis thatMr Vohra's appeal was a standard post-sentence conviction appeal and therefore of noprecedential value. Further, he maintained that the Judge's decision was a ruling madein the context of proceedings involving a number of charges alleging category 3offending and after C had elected a jury trial on the remaining charges. He argued thatthe charges to which guilty pleas were entered cannot be divorced from the charges towhich not guilty pleas were entered. He submitted that the Judge's ruling dismissing7 [C] v R CA40/2023, 8 March 2023.8 Vohra v R [2018] NZCA 128.9 [C] v R CA40/2023, 8 May 2023.the application to vacate the guilty pleas was thus a ruling made in proceedings forcategory 3 offending after C had elected a jury trial.[15] Mr Bailey also relied on s 297 of the Criminal Procedure Act to support hissubmission. He noted that the section uses the word "proceedings", whereas ss 230and 247, in relation to appeals against conviction and sentence respectively, do not.He submitted that this supports his submission that the election of a jury trial for theother eight charges is sufficient to establish the election of a jury trial for the chargesin respect of which pleas were entered because "those charges [all 12] collectivelyform the proceeding".[16] Ms Fenton for the Crown argued that the High Court is the appropriate firstappeal court. She submitted that a conviction appeal is the orthodox manner ofchallenging a refusal to allow the vacation of guilty pleas and that it is not clear whyC has pursued an appeal under s 296 instead. She commented that this seems anawkward fit, given that a conviction appeal is available and capable of addressing therelevant issues.[17] She went on to submit that whatever the merits of C's application seeking leaveto appeal under s 296, and whether or not C pursues that route or a conviction appeal,the High Court is the first appeal court. Ms Fenton argued that C pleaded guilty to thecharges to which the appeal relates before making any election on those charges andthat his case is therefore analogous to Vohra. She suggested that the fact that Vohrainvolved conviction and sentence appeals is immaterial.[18] Further, Ms Fenton argued that the use of the word "proceedings" in s 297 ofthe Criminal Procedure Act simply reflects the fact that appeals with leave on pointsof law under s 296 can cover broader territory than conviction and sentence appeals,which are directed at specific stages of criminal proceedings. She argued that the focusof s 297(1)(b)(i) is on the offence to which the ruling relates — in this case, the chargesto which guilty pleas were entered before and without any jury trial election.Analysis[19] C has chosen to seek leave of the first appeal court to appeal on a question oflaw against the Judge's ruling. Assuming that the proposed question noted above is aquestion of law,10 it is open to C to invoke s 296. The case relied on by Mr Bailey —O (CA419/2015) v R — is authority for this proposition.11 An application to vacate aguilty plea follows from a determination of the charges, the plea having been enteredand a conviction recorded. It does not however follow that this Court has jurisdictionto deal with the leave application or any appeal if leave is granted.[20] Section 297 sets out the appropriate first appeal court for dealing withapplications under s 296. Relevantly, it provides as follows:297 First appeal courts(1) The first appeal court for an appeal under this subpart is—(b) the High Court, if the appeal is against a ruling by theDistrict Court presided over by a District Court Judge, otherthan a ruling—(i) made in proceedings for a category 3 offence afterthe defendant elected a jury trial; or(c) either the Court of Appeal or the Supreme Court, in any othercase.[21] In O (CA419/2015) v R, it was accepted, citing Anderson v R, that s 296 couldapply to a decision made in the District Court refusing to allow an applicant to vacatea guilty plea.12 This Court went on to decline the application for leave. The issue ofjurisdiction does not seem to have been argued. Rather it appears that it was assumedby all involved that this Court had jurisdiction.10 See Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].11 O (CA419/2015) v R, above n 6, at [9] and [10]; and see Mathew Downs (ed) Adams on CriminalLaw – Procedure (online ed, Thompson Reuters) at [CPA 296.02(3)].12 O (CA419/2015) v R, above n 6, at [10] citing Anderson v R [2015] NZCA 518, [2016] 2 NZLR321.[22] The issue arose directly in Vohra.13 It was heard by a full Court. Elevencharges had been filed alleging violent offending by Mr Vohra. He pleaded guilty toone charge — charge one — but not guilty to the other ten charges, for which heelected trial by jury. He was subsequently acquitted on those charges but sentenced tonine months' supervision in respect of charge one. He sought to appeal his convictionand sentence in relation to this charge, arguing that he should have been dischargedwithout conviction. The issue before the Court was whether an election on othercharges in the same proceeding, which were not the subject of the appeal, dictated theappeal pathway in respect of the charge in that proceeding for which no election hadever been entered. This Court noted as follows:[11] The significance of Mr Vohra's guilty plea to Charge 1 at the outsetlies in the fact that the ability to elect trial by jury is conditional on a not guiltyplea having first been entered. So, while normally an election of jury trial onone charge would impact on the other charges in the same proceeding by virtueof s 139 of the [Criminal Procedure] Act, that could not be the case herebecause it is simply not possible to elect trial by jury on a charge in respect ofwhich a not guilty plea has never been entered.[12] In these circumstances Ms Brook for the Crown and Mr Ewen, whowas appointed as counsel assisting were in accord that the correct firstappeal court is the High Court. We agree. Consequently Mr Vohra's appealagainst conviction and sentence in respect of Charge 1 must lie with theHigh Court. [23] We do not consider that there is anything in the point made by Mr Bailey thatVohra concerned a conviction and sentence appeal. Appeals against conviction aregoverned by ss 229 and the immediately following provisions. The first appeal courtprovision is s 230, which is in substantially similar terms to s 297(1)(b). Appealsagainst sentence are governed by ss 244 and following provisions. Section 247dictates the first appeal court for any such appeal. Again, the section is in substantiallysimilar terms to s 297(1)(b).[24] Nor do we consider that there is anything in the use of the word "proceedings"in s 297(1)(b). The right to elect to be tried by a jury arises pursuant to s 50 of theCriminal Procedure Act, when a defendant is charged with a category 3 offence andpleads not guilty to that offence. The right of election is conferred in respect ofindividual charges, not in respect of proceedings. Pursuant to s 139(1), if two or more13 Vohra v R, above n 8.charges against a defendant are being heard together, if one charge is being tried byjury, all charges must be tried by a jury. This however is a matter of administrativeconvenience, designed to protect a defendant. It does not compel the conclusion thatan election on charges where not guilty pleas are entered can extend to charges whereguilty pleas are entered and no election is made. We do not consider that the word"proceedings" in s 297 is used in any technical sense or that the use of the word altersthe plain meaning of s 297(1)(b)(i).[25] In our view Vohra is directly on point. It is a decision of the Full Court ofAppeal in which the matter in issue was expressly addressed. O (CA419/2015) v Rwas a decision of a Divisional Court, where it appears that jurisdiction was assumed.We apply Vohra and decline to follow O (CA419/2015) v R in so far as it suggests thatthis Court has jurisdiction to deal with appeals from the District Court in relation toapplications to vacate guilty pleas entered in respect of category 3 offences where therewas never an election of jury trial in respect of the relevant charges.[26] For the reasons we have set out, we have concluded that this Court does nothave jurisdiction in respect of C's application for leave to appeal.Results[27] The application for leave to appeal the decision of the District Court is to berejected by the Registrar and returned to the applicant.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent