ANGUS v R [2019] NZCA 396

ANGUS v R [2019] NZCA 396 [29 August 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA190/2019[2019] NZCA 396BETWEEN MELISSA JANE ANGUSApplicantAND THE QUEENRespondentHearing: 20 August 2019Court: French, Collins and Stevens JJCounsel: F E Geiringer and J K Mahuta-Coyle for ApplicantC A Brook for RespondentJudgment: 20 August 2019 at 2.30 pmReasons: 29 August 2019JUDGMENT OF THE COURTThe application to extend the time for filing an appeal is declined for want ofjurisdiction.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] The applicant, Mrs Angus, wishes to appeal against 13 convictions enteredagainst her in the District Court of being a party to theft by a person in a specialrelationship and/or by failing to account.1 There is no appeal against sentence.1 Crimes Act 1961, ss 220, 222 and 223.[2] The appeal is advanced on the grounds that the District Court, in a pre-trialruling, erred in law by declining to grant a stay of the prosecution as the necessaryremedy having found a breach of Mrs Angus's right to trial without undue delay.2[3] Following receipt of the above pre-trial ruling, Mrs Angus sought, and wasgranted, leave to withdraw the election she had previously made for trial by jury.The change of election occurred on 2 June 2017 when Mrs Angus opted in favour ofa judge alone trial. Subsequently, the week before her trial was due to commence,Mrs Angus received a sentence indication. Thereupon Mrs Angus entered guilty pleasand was sentenced in the District Court to six months' home detention with $10,000reparation to be paid at $100 per week.3[4] The circumstances of this case give rise to a question whether the appealMrs Angus wishes to advance should be filed in the High Court rather than in thisCourt. This turns on the appropriate appeal pathways as set out in the applicableprovisions of the Criminal Procedure Act 2011 (the CPA) as amended bythe Courts Matters Act 2018 (the CMA). This issue came before us as a discretequestion of jurisdiction, separate from the substance of the appeal.[5] We have concluded that the appeal should have been filed in the High Court.This Court lacks jurisdiction to determine the appeal, given the procedural courseadopted when the case was before the District Court.[6] When the application was heard on 20 August 2019 we were able to issue aresults judgment with reasons to follow. These are our reasons.Factual background[7] Mr and Mrs Angus ran a funeral business, Omega Funeral Services andMemorials (Omega), from 1998 until 2005 in Wainuiomata. One of the servicesoffered was pre-paid funerals. Between 28 May 1998 and 9 August 2004 Mr andMrs Angus received $93,259 from various people for pre-paid funeral services, on the2 R v Angus [2017] NZDC 8675 at [42].3 R v Angus [2019] NZDC 1245 at [14].basis that the funds would be held in a trust account and could not be accessed for anypurpose other than to carry out the complainants' funeral instructions.[8] When Omega went into liquidation in July 2005, it became apparent the fundshad not been held on trust and they had in fact been used for the daily running ofthe company as well as the personal expenditure of Mr and Mrs Angus. A policeinvestigation began in October 2005.4 In mid-2007, however, Mr and Mrs Angusdeparted for Australia. In 2009 they were asked to return to New Zealand to discussthe allegations, but refused. This refusal, combined with limited police resources,resulted in the investigation being put on hold.5[9] In 2014, Mr and Mrs Angus returned to New Zealand. They came to theattention of the police in September of that year, and the criminal investigationrecommenced.6 In early 2016, the police charged them jointly with ten charges oftheft by a person required to account and three charges of theft by a person in a specialrelationship. By this stage, five of the complainants who provided statements haddied.[10] This necessitated an application by the prosecution for a pre-trial ruling thatthe statements of the deceased complainants were admissible at the trial.Judge Tompkins was satisfied that the circumstances relating to the complainants'statements provided reasonable assurance as to their reliability.7 The statements'probative value also outweighed the risk that they would have an unfairly prejudicialeffect on the proceedings.8 The Judge ruled the statements admissible.9[11] On appeal this Court agreed with the Judge's analysis and concluded: "If theseparticular statements were not admissible under s 18, it is difficult to imagine whatstatement would be."104 R v Angus, above n 2, at [6].5 At [7]–[8].6 At [12(e)].7 R v Angus [2017] NZDC 10666 at [22].8 At [23].9 At [25].10 Angus v R [2017] NZCA 454 at [7].[12] Mrs Angus had also applied for a stay on the basis of undue delay which wassaid to give rise to specific prejudice. Judge Tompkins referred to CT v R11 for theproposition that the ultimate question is whether a fair trial is possible.12 The Judgewas satisfied that, while the delay in bringing the matter to trial was undue, it was notegregious; nor had there been prosecutorial misconduct.13 The Crown case was foundto be strong, relying on "an abundance of documentation".14 The Judge concludedthat "it is likely the delay will not cause significant prejudice to the defendants intrial".15[13] Mrs Angus applied for judicial review of the stay ruling. The High Courtconcluded that the Judge had properly turned his mind to an evaluation of the effectof delay on Mrs Angus's right to a fair trial.16 The Court found no error justifying itsintervention.17[14] Mrs Angus received the sentence indication referred to at [3] above just beforeher trial was due to commence. The Judge took a starting point of two and a half years'imprisonment and applied discounts of 15 per cent for good character, 20 per cent forthe undue delay to trial, 15 per cent for guilty pleas, and a "slight" further reductionfor the offer to pay reparation at $100 a week. Having received such sentencingindication, Mrs Angus entered guilty pleas and was sentenced by Judge Harrop in linewith the sentence proposed.Preliminary point regarding appropriate appeal court[15] Mrs Angus wishes to appeal against conviction. Having filed the appeal inthis Court, counsel for Mrs Angus, Mr Mahuta-Coyle, realised that the coming intoforce of the CMA on 14 November 2018 raised the issue of whether the appeal hadbeen properly filed in this Court. Counsel for the parties have co-operated to facilitatethe hearing of a preliminary point to determine this jurisdictional issue.11 CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [30].12 R v Angus, above n 2, at [13].13 At [42].14 At [42].15 At [42].16 Angus v District Court [2017] NZHC 2879 at [35].17 At [36].[16] The appeal was filed approximately two months out of time. Althoughthe Crown has suffered no prejudice and does not oppose an extension of time,we consider that it would not be appropriate to grant such extension if there is nojurisdiction to hear the appeal.Background to the jurisdictional issue[17] Prior to the enactment of the CMA, s 230 of the CPA provided that this Courtwas the first appeal court for an appeal against conviction in a category 3 matter"after the convicted person elected a jury trial". Otherwise, appeals would be heardby the High Court.[18] In Jackson v R this Court held that the words "elected a jury trial" meant justthat, and "[t]he election, not the actual mode of subsequent trial, is the governing orcontrolling event".18 Thus, even a withdrawn election would therefore continue toaffect appeal pathways. A Full Court of this Court upheld Jackson in Vohra v R.19[19] This interpretation led to anomalies. Ms Brook for the Crown invited us toconsider the position of two hypothetical appellants: A and B charged with categorythree offences who were remanded for plea entry on the same date. On that dateA pleaded not guilty and was remanded for a case review hearing (CRH). B pleadednot guilty, elected trial by jury, and was remanded for a CRH on the same date as A.At the CRH, A maintained his not guilty plea and was remanded for a judge alone trial.B maintained his not guilty plea, was granted leave to withdraw his election of jurytrial, and was also remanded for a judge alone trial. Both were convicted at trial.A's appeal against conviction would lie to the High Court. It seems clear that, applyingthe approach in Jackson, B's appeal would lie to this Court, despite the fact theirprosecutions had, in substance, followed identical procedural paths.[20] The response of Parliament to such anomalies came in the CMA whichamended ss 219, 230, 247, 272 and 297 of the CPA by adding an additional subsectionto each section providing that a withdrawn election should be treated as never having18 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [19].19 Vohra v R [2018] NZCA 128 at [20].been made, except where an appeal has already been filed prior to the election beingwithdrawn.20 As this Court has recently observed in Wirihana v R:21 the CMA amended ss 230 and 247 by specifying that an election that hasbeen withdrawn is to be treated as never having been made. The explanatorynote to the Courts Matters Bill stated that these amendments were intended to"reverse the effect of Jackson" by "providing that if a defendant elects a jurytrial and withdraws his or her elections before trial, the defendant must betreated as he or she had not elected a jury trial". The result would be thatappeals in such cases would be heard in the High Court rather than this Court.(Footnotes omitted.)[21] The fact these were the only changes regarding elections made by the CMA,suggests that Parliament otherwise agreed with this Court's approach to that issue inJackson. Thus an election that has not been withdrawn continues to determinethe appeal pathway for an appeal, even if no jury trial is actually held. This Court inWirihana held that the amending provisions of ss 230(2) and 247(2) of the CPA do notapply where the appellant, having previously elected trial by jury, entered a plea ofguilty without having formally withdrawn the election under s 53 of the CPA. In sucha case any appeal would be heard in this Court.22[22] In Wirihana, this Court did not need to consider the question of which appealsbefore this Court are subject to the amendments introduced by the CMA.23We therefore must consider that issue, specifically whether the CMA amendmentsapply to the present case.Our analysis[23] There are no transitional provisions in the CMA in relation to ss 40–44 of thatAct.24 For the Crown, Ms Brook drew our attention to s 23 of the Interpretation Act1999 which provides that an amending enactment becomes part of the enactment itamends. Section 7 of the Interpretation Act provides that enactments do not have20 Courts Matters Act 2018, ss 40–44.21 Wirihana v R [2019] NZCA 368 at [13].22 At [25]–[26].23 At [27].24 Except for the specification in the amendments to ss 219, 272 and 297 of the Criminal ProcedureAct that any appeal commenced before the date on which the defendant withdrew his or herelection must be determined by the court that had jurisdiction to determine the appeal at the timeit was commenced.retrospective effect.25 Hence the Crimes Act 1961 and Summary Proceedings Act1957 continue to govern appeals in pre-CPA matters. Moreover, the CMAamendments do not apply to appeals which have already been filed prior to14 November 2018, when the CMA came into force.[24] Accordingly, for prosecutions commenced after 1 July 2013, the CMAprovisions will apply to all appeals filed on or after 14 November 2018, regardless ofthe date upon which charges were laid or elections were entered or withdrawn.While appeals filed prior to 14 November 2018 will continue to be determined inaccordance with Jackson, in other contexts the CMA provides that it may apply toproceedings already extant as at the 14 November 2018 commencement date.However, that is not the case with the appeal pathway provisions.26 An appeal will begoverned by the law applicable at the time it was filed in the usual way. This is becausean appeal is a separate (although related) proceeding from the underlyingprosecution.27[25] The present appeal was filed on 1 May 2019, well after the 14 November 2018commencement date. The CMA amendments therefore apply. We can see no legal orpolicy reason why the amendments should not apply, notwithstanding the fact that theelection was withdrawn on 2 June 2017 well prior to the 14 November 2018commencement date. The amendments are purely procedural and do not have anysubstantive effect on the applicant's right of appeal against conviction. Her right is tohave an appeal heard and determined; not to have it determined by any particularcourt.28[26] For the above reasons we are satisfied that this Court has no jurisdiction to dealwith the appeal. The High Court is the correct first appeal court pursuant to s 230 ofthe CPA.25 The Courts Matters Act amendments only apply to appeals from decisions made in prosecutionsthat were commenced since 1 July 2013.26 See schs 1, 4 and 5 of the Courts Matters Act.27 While a prosecution may comprise a number of pre-trial applications and other interlocutorymatters, an appeal is obviously filed in a different court to the prosecution and is given its owncase reference number.28 Foodstuffs (Auckland) Ltd v Commerce Commission [2002] 1 NZLR 353 (CA); and R v Bain[2008] NZCA 585.Result[27] The application to extend the time for filing an appeal is declined for want ofjurisdiction.Solicitors:Crown Law Office, Wellington for Respondent