RANGITONGA v PARKER [2016] NZCA 166

RANGITONGA v PARKER [2016] NZCA 166 [3 May 2016]NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA477/2015[2016] NZCA 166BETWEEN NEIHANA JEREMY RANGITONGAAppellantAND SHANNON LAING PARKERRespondentHearing: 2 November 2015Court: Randerson, Lang and Clifford JJCounsel: A F Rickard-Simms for AppellantP J Davison QC and H D L Steele for RespondentJudgment: 3 May 2016 at 11:00 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Introduction[1] Mr Rangitonga's application for leave to appeal raises questions as to the interpretation and application of s 47 of the Criminal Procedure Act 2011 (the CPA). Section 47 is expressed in different terms from its statutory predecessor, s 358 of the Crimes Act 1961. The new section provides:47 Previous acquittalIf a plea of previous acquittal is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been acquitted of—(a) the same offence as the offence currently charged, arising from the same facts; or(b) any other offence arising from those facts.[2] In the High Court, Katz J identified the issue succinctly:1 having been previously acquitted of rape, can Neihana Rangitonga nowbe charged with injuring the complainant with intent to injure her, arising out of events that occurred the same evening?[3] Katz J agreed with the conclusion reached by Judge Ingram in the District Court.2 The injuring charge could still proceed despite the earlier acquittal on the rape charge. In essence, Katz J considered the injuring charge did not arise out of the same facts as the previous rape charge. Rather, she found the alleged rape and assault formed part of a series of events. While those events were closely linked in time and place, they arose out of different incidents, involving different facts which occurred sequentially.3[4] In support of the appeal, Mr Rickard-Simms raised a number of issues but, in essence, the issue is whether the High Court Judge was correct in her conclusions as to the interpretation and application of s 47 of the CPA in the circumstances of the case.[5] An unusual feature of the case is that the proposed injuring charge is brought by the respondent, Ms Parker, as a private prosecution. There is no procedural challenge in that respect.[6] There being no opposition to Mr Rangitonga's application for leave to appeal,we grant the application and proceed to consider the merits of the appeal.1 Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73 at [1].2 Parker v Rangitonga [2015] NZDC 7733.3 Rangitonga v Parker, above n 1, at [97].Background facts[7] Mr Rangitonga met the complainant Ms T in Tauranga on 6 July 2010. They arranged to meet again later and did so. They walked together to a public domain to share cigarettes and wine. In her statement to the police, Ms T said that after talking to Mr Rangitonga for a period she decided to leave. He then attacked her violently, punching her repeatedly in the head. He also placed his hands on her throat, strangling her until she lost consciousness. The Crown case was that he then raped her.[8] The medical evidence at trial was that her injuries were consistent with an assault, including severe strangulation.[9] Mr Rangitonga was arrested and initially faced two charges: one of wounding with intent to cause grievous bodily harm, and one of sexual violation by rape. He pleaded not guilty to both charges but, prior to trial, the Crown withdrew the wounding charge. It appears this was to enable the jury to focus on the rape charge.[10] At trial, Mr Rangitonga elected to give evidence. He admitted assaulting Ms T but said this occurred only after they had engaged in consensual sexual intercourse. He said he lost control after he discovered she had stolen his wallet.[11] As noted, Mr Rangitonga was acquitted of rape, but Ms Parker now seeks to prosecute him on the injuring charge arising from his admitted assault on Ms T.The judgments below[12] Judge Ingram rejected Mr Rangitonga's plea of previous acquittal.4 He concluded s 47 was clearly a remedial provision. It was intended to extend and broaden the gate through which a defendant must pass to obtain the benefit of a plea of previous acquittal. However, the limits of its application had to be worked out on a case by case basis.4 Parker v Rangitonga, above n 2.[13] Judge Ingram considered the elements of the two offences were different.The fact the complainant was injured at Mr Rangitonga's hands, the extent of theinjuries and Mr Rangitonga's state of mind were not facts in issue at the trial. Forpractical purposes, the proper bounds of s 47(b) should be limited to facts required to be included in any formal question trail put to the jury for decision in the first trial. Judge Ingram also rejected an application by Mr Rangitonga for dismissal of the injuring charge on the grounds of abuse of process. That decision is not appealed.[14] In the High Court, Katz J traversed the history of the common law rule against double jeopardy, the interpretation of s 358 of the Crimes Act, the legislative history leading to the enactment of ss 46 and 47 of the CPA, and the approach she considered was appropriate to the interpretation of those provisions.5 The Judge was not persuaded Parliament intended any radical extension in the scope of the special pleas of previous acquittal or previous conviction. However, she considered some change from the equivalent provisions of the Crimes Act was intended.[15] Katz J considered it was necessary to identify the core facts of the original offending and then to consider whether the subsequent charge arose from those facts. Where a common punishable act was central to both offences, they would usually both arise out of the same facts. She concluded:[86] It follows, in my view, that the injuring charge does not "arise from the same facts" as the rape charge. While there is some degree of factualoverlap, it is relatively small. The actus reus of the alleged rape is the act of sexual intercourse. The actus reus of the injuring charge is the punching and strangling. The core punishable acts are significantly different. The two charges do not arise out of the same facts, rather they relate to two incidents that form part of the same broad series of events.[16] In determining the core facts essential to the disposition of the previous offence, Katz J agreed that a jury question trail could provide a helpful starting point. However, she recognised other core facts could form part of the relevant factual matrix including, for example, the facts necessary to support a required inference such as intent. The core facts of each case would necessarily be case specific.5 Rangitonga v Parker, above n 1.The rule against double jeopardy[17] Katz J gave an illuminating summary of the lengthy history of the rule against double jeopardy which underlies ss 46 and 47 of the CPA. We draw upon that summary in what follows. The principle that a person should not be tried more than once for the same crime can be traced as far back as ancient Greek and Roman law. English common law has recognised the rule for over 800 years.6 The rule has also been recognised in the Fifth Amendment to the United States Constitution, art 14(7) of the International Covenant on Civil and Political Rights, art 4 of Protocol No.7 to the European Convention on Human Rights, and in s 26(2) of the New Zealand Bill of Rights Act 1990.[18] The Judge referred to Green v United States, which described the rationale for the rule in these terms:7 the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.[19] Katz J then summarised the underlying basis for the law in these terms:8[39] The rule against double jeopardy therefore places a high value on the importance of finality in criminal proceedings. It recognises the power imbalance that exists between the State and the individual. The rule is also aimed at upholding confidence in the administration of justice. Repeated attempts to prosecute the same offence could result in conflicting judicial decisions, eroding confidence in the justice system.Position at common law[20] The leading case on the common law doctrine known as autrefois acquit is the House of Lords decision in Connelly v Director of Public Prosecutions.9 Four men were charged with a murder in the course of a robbery. They were tried initially for murder alone. One of the men, Mr Connelly, was acquitted of the murder after an appeal and was then charged with robbery. He raised the special plea of autrefois6 See the history of the rule described in Martin Friedland Double Jeopardy (Clarendon Press, Oxford, 1969).7 Green v United States 355 US 184 (1957) at 187–188.8 Rangitonga v Parker, above n 1.9 Connelly v Director of Public Prosecutions [1964] AC 1254 (HL).acquit. Whilst their Lordships were unanimous as to the availability of the plea, they differed as to its scope. The majority in the House held that the scope of the plea was narrow.10 As Lord Devlin put it:11The word "offence" embraces both the facts which constitute the crime andthe legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.[21] On the facts of the case, robbery was not the same offence as murder and the plea was found not to be available. Only Lord Morris took a wider view than that of Lord Devlin, stating:12The principle seems clearly to have been recognised that if someone had been either convicted or acquitted of an offence he could not later be charged with the same offence or with what was in effect the same offence.[22] A little further on, Lord Morris said:13An illustration of the application of the principle would be where after an acquittal upon an indictment for manslaughter there was an indictment for murder in respect of the same killing. In my view, the acquittal on the first indictment would be a bar to the second. It would be the same if the firstindictment resulted in a conviction. The test above referred to is also the test as to whether the new charge is the same as or substantially the same as, or in effect the same as the charge contained in the earlier indictment.[23] His Lordship emphasised that the doctrine operates to prevent a subsequent charge (following acquittal or conviction), the proof of which would essentially involve a challenge to the previous acquittal, or a second conviction for the same offence.[24] The narrow scope of the special pleas of autrefois acquit and autrefois convict at common law was confirmed by the English Court of Appeal in R v Beedie.14 In that case, the occupier of a residential dwelling died of carbonmonoxide poisoning as a result of the appellant's failure to maintain properly a gas fire in the house. The appellant pleaded guilty to summary offences under the Health10 Lord Devlin, Lord Pearce and Lord Reid.11 Connelly v Director of Public Prosecutions, above n 9, at 1339–1340.12 At 1307 (emphasis added).13 At 1310–1311.14 R v Beedie [1998] QB 356 (CA).and Safety at Work Act 1974 (UK) and was convicted. He was later charged with the manslaughter of the occupant. Although the manslaughter charge clearly arose from the same facts, the offences were different and the plea of autrefois convict was found not to be available. However the Court concluded that the subsequent prosecution should be stayed as an abuse of process.Section 358 of the Crimes Act[25] Prior to the passage of the CPA, the special pleas were both reflected in s 358 of the Crimes Act, which provided:358 Pleas of previous acquittal and conviction(1) On the trial of an issue on a plea of previous acquittal or conviction to any count, if it appears that the matter on which the accused was formerly charged is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the offences of which he may be convicted on any count to which that plea is pleaded, the court shall give judgment that he be discharged from that count.(2) If it appears that the accused might on the former trial have been convicted of any offence of which he might be convicted on the count to which that plea is pleaded, but that he may be convicted on that count of some offence of which he could not have been convicted on the former trial, the court shall direct that he shall not be convicted on that count of any offence of which he might have been convicted on the former trial, but that he shall plead over as to any other offence charged.[26] Section 359 added further refinements not relevant for present purposes.[27] Section 358 was expressed in slightly wider terms than the English common law as outlined in Connelly and Beedie. In particular, the special plea could be available if the previous charge upon which the defendant had been acquitted was"the same in whole or in part" as the new charge. As this Court said in Connolly v R, the principle enunciated by Lord Morris has been adopted in New Zealand by this Court in R v Brightwell and, more recently, in R v Morgan.1515 Connolly v R [2010] NZCA 129 at [51]; R v Brightwell [1995] 2 NZLR 435 (CA) at 436–438;R v Morgan [2005] 1 NZLR 791 (CA) at [13].[28] In Connolly, this Court also endorsed the observations of Henry J inBrightwell:16The underlying principle is that a person is not to be prosecuted twice for the same crime. The special plea, however, does not operate where two distinct offences are committed by the one act. The question is not whether the facts or the evidence relevant to both are the same, but whether the offences are the same or substantially the same. In R v Barron [1914] 2 KB 570 Lord Reading CJ said at p 575:It is quite plain that the learned judge did not intend to lay down and did not lay down as a general principle of law that a man cannot be placed twice in jeopardy upon the same facts if the offences are different.[29] Despite the adoption of the "same or substantially the same" formula, it mustbe accepted that the New Zealand courts have generally taken a narrow view of the availability of the special pleas. The focus has been very much on comparing all the legal elements of the previous and new charges. For example, in Smith v Hickson a plea of previous conviction was found not to be available.17 The new charges of exposing liquor for sale and opening premises for the sale of liquor both arose from the same facts as the original charge of selling liquor during closed hours. And, inBrightwell, the new charge of assault with a shotgun arose from the same facts as the original charge of presenting a shotgun at the same victim.18 Again, the plea of previous conviction was not available. In both cases, that was because the new charges were for different offences even though they arose in essence from the same actions by the defendant.[30] In Ministry of Transport v Hyndman a plea of previous acquittal failed where the new charge of driving while under the influence of alcohol arose on the same facts as the original charge of driving with excess breath alcohol.19 And, inConnolly, the new charge under s 129A of the Crimes Act of inducing sexual connection by a threat arose from the same facts as the original charge under the Prostitution Reform Act 2003 (inducing commercial sexual services by a threat). Again, the plea of previous acquittal failed.16 Connolly v R, above n 15, at [52], quoting R v Brightwell, above n 15, at 437–438.17 Smith v Hickson [1930] NZLR 43 (SC).18 R v Brightwell, above n 15.19 Ministry of Transport v Hyndman [1990] 3 NZLR 480 (HC).[31] On the other hand, a plea of previous conviction succeeded in this Court inR v Morgan.20 The appellant stabbed the complainant with a single blow and was charged with wounding with intent and assault with a weapon. The trial Judge didnot accept Mr Morgan's application to have the two counts treated as alternative andhe was convicted on both. This Court held that, in terms of the law and the practical result, the second count was simply a less serious form of the first. The principle against double jeopardy was clearly infringed.The legislative history leading to ss 46 and 47 of the CPA[32] We now turn to the legislative history of the Criminal Procedure (Reform and Modernisation) Bill, which led to the passage of the CPA. The general purposes of the Bill according to the Explanatory Note were to ensure the fair conduct of criminal prosecutions in New Zealand (as reflected in s 25 of the New Zealand Bill of Rights Act 1990); to simplify criminal procedure; and to provide an enduring legislative framework that reduced unnecessary delay, was flexible and able to take advantage of technological developments.21 The Explanatory Note stated that the drafting approach was generally to consolidate existing legislative provisions and to simplify and modernise language.[33] Specifically in relation to the special pleas, the Explanatory Note said:The test for when a plea of previous conviction, previous acquittal, or pardon is available differs from that under the existing law. The new test (see clauses 43 and 44) is intended to bring greater certainty as to the availability of the special pleas.[34] Clauses 43 and 44 of the Bill as introduced were in the same form as ss 46and 47 as enacted except that they referred to "factual circumstances" rather than "facts". The report recommended this change "for the sake of precision and clarity".22 Apart from the change from "factual circumstances" to "facts" there wereno other material changes to cl 44 of the Bill, which ultimately became s 47 of the CPA.20 R v Brightwell, above n 15.21 Criminal Procedure (Reform and Modernisation) Bill 2010 (243–1) (explanatory note) at 1.22 Criminal Procedure (Reform and Modernisation) Bill 2010 (243–2) (select committee report) at 7.[35] In short, the policy goals focussed on fairness, efficiency and clarity of language. The Explanatory Note specifically recognised that the test for the special pleas differed from that under the pre-existing law.23The changes effected by the CPA[36] We now address the changes to the text of the special plea provisions.24 We confine ourselves to the plea of previous acquittal under s 47 other than to note that s 46(1) relating to previous convictions is expressed in identical terms.25[37] Section 47 now concentrates on whether the defendant has been acquitted of:(a) the same offence as the new charge, arising from the same facts; or(b) any other offence arising from those facts.[38] If either of these options is established, the court must dismiss the new charge.[39] The so-called "hypothetical amendment" argument under s 358(1) is no longer a feature of s 47 of the CPA. This was an issue arising from the reference in s 358(1) to the expression "if all proper amendments had been made". Thecomplexities of this expression are discussed by Richard Mahoney in a recent article.26 Professor Mahoney also points out in his article that potential complications under the second limb of s 358(1) and under s 358(2) are no longer an issue under s 47.2723 Katz J referred in her judgment Rangitonga v Parker, above n 1, at [52]–[58] to Departmental briefings and reports but we do not consider these materials provide material assistance and, in any event, they are of doubtful admissibility.24 Sections 45–49 of the Criminal Procedure Act 2011.25 Section 46(2) provides that the special plea of previous conviction is not available if the defendant has been convicted previously of an offence and is currently charged with a more serious offence arising from the same facts and the Court is satisfied the evidence of the more serious offence was not readily available at the time the charging document for the previous offence was filed (compare s 359(1) of the Crimes Act 1961).26 Richard Mahoney "From "The same offence" to "The same facts": the Criminal Procedure Act Suddenly Strengthens the Pleas of Previous Conviction and Previous Acquittal" [2013]NZ L Rev 171 at 182.27 At 193.How is the phrase "arising from the same facts" to be interpreted?[40] We are in general agreement with the approach adopted by Katz J to the interpretation of s 47.[41] We agree that the reference to offences "arising from the same facts" in s 47is intended to apply to cases where there is a common punishable act central to both the previous and new charge. We would add that the same approach should apply to a common punishable omission. The new section focuses on the substance of the facts giving rise to the previous and new charges rather than a fine-grained comparison of each element of the charges.[42] We explain this concept by reference to the present case. The central punishable act for the rape charge was sexual connection without the consent of the complainant. By contrast, the central punishable act for the injuring charge was punching and attempting to strangle the complainant. In these circumstances, the plea of previous acquittal is not available because the current charge does not arise from the same facts as the previous charge.[43] We summarise the reasons for adopting this approach:(a) There is nothing in the relevant Parliamentary materials to suggest that a radical departure from the existing law was intended. Rather, the policy goals were fairness, efficiency and clarity of language.(b) The approach we favour would provide greater clarity and certainty than the alternative approach advanced by the appellant (which we discuss at [44]–[46] below). It would enable decisions on the availability of the plea to be made without undue difficulty. In most cases it ought to be straightforward to identify the central punishable acts or omissions by reference to the essential elements of the offences.(c) By focusing on the substance of the facts giving rise to the previous and new charges, an unduly technical approach to the availability ofthe special plea would be avoided. This would give better effect to the double jeopardy principle recognised by s 47 and by s 26(2) of the New Zealand Bill of Rights Act.(d) An expansive approach to s 47 would not sit well with the recent statutory amendments establishing very limited circumstances in which previously acquitted persons may be re-tried.28(e) There is no room for judicial discretion when the special plea is made out. The court has no alternative other than to dismiss the charge. As Katz J said:29[69] the abuse of process doctrine provides a flexible and effective safety net for dealing with cases that do not fall within the scope of the special pleas, but where the spirit (if not the letter) of the rule against double jeopardy is breached. Given the existence of that jurisdiction there is no need to give the special pleas an expansive interpretation in order to ensure that justice is done in an individual case.[44] In contrast, the alternative approach advanced by the appellant would not be consistent with the policy goals of the new legislation and would be likely to lead to undesirable consequences. In the High Court, Mr Rickard-Simms submitted that the"same facts" embraced all of the evidence adduced at Mr Rangitonga's previoustrial. Alternatively, it should include the facts referred to in the police summary of facts. Both these arguments were rightly rejected by Katz J.[45] Before us, the appellant's case was more refined. Counsel argued that the facts relating to the assault were so interwoven with the facts relating to the rape, that it could be said the new charge arises from the same facts as the previous charge.He pointed out that the Crown had specifically relied on the complainant's evidenceabout Mr Rangitonga's assault on her in order to exclude any issue of consent or reasonable belief in consent. However, on Mr Rangitonga's version of events, theassault occurred after he had consensual sexual intercourse with the complainant and in response to his belief that she had stolen his wallet.28 Sections 151–156 of the Criminal Procedure Act.29 Rangitonga v Parker, above n 1.[46] We are not persuaded that this approach to s 47 is appropriate. First, this approach would require the resolution of factual issues which would lead to undesirable uncertainty. It would involve a close analysis of the evidence in each case in order to determine how closely the facts advanced at the trial of the previous charge are linked in time, place and circumstance with the facts to be advanced at the trial of the new charge. This would be contrary to Parliament's policy goals ofincreasing clarity and certainty. Second, we consider the alternative approach has the potential to broaden the scope of the plea well beyond its availability under s 385. As we have noted, there is no indication in the Parliamentary materials that a radical departure from the existing approach was intended. Third, the fact that the section requires the new offence to be dismissed where the plea is established suggests that a reasonably clear test should be adopted in order to avoid undue restraints on the legitimate prosecution of criminal offending. Fourth, as we discuss at [47]–[48] below, a broader approach has the potential to create significant practical problems, especially in relation to charging practices and severance decisions.[47] The approach advanced by the appellant could involve the unattractive prospect that offending which is merely incidental to the charge upon which the defendant is acquitted could not later be the subject of a prosecution. It is not difficult to identify cases where there is evidence of other uncharged offending occurring in connection with the charged offending which might be said to arise from the same facts. An example is the storage of objectionable material by an alleged sex offender. Assume a case where evidence of the objectionable material was led at a trial of the defendant on sexual offending charges but an acquittal results. If the view were taken that a later prosecution for possession of the objectionable material arose from the same facts as the sexual offending, then s 47 would apply and the court would be obliged to dismiss the charge.[48] A broader approach to the interpretation of s 47 could also result in prosecutors laying charges that would be better dealt with separately merely to avoid the risk of not being able to proceed with a related charge at a later time. Similarly, courts considering under s 138 of the CPA whether severance of charges is desirable in the interests of justice could have their discretion unduly and inappropriatelyconstrained.30 We are satisfied Parliament could not have intended outcomes of that character.Conclusion[49] The application of s 47 in practice will necessarily be fact dependent. The general approach we have adopted of identifying and comparing the central punishable act or omission in the previous and new charges may need to be developed and refined as cases arise. It is to be expected that this approach will have a greater focus on substance than has been the case hitherto.Decision[50] Applying the interpretation we have adopted, we agree with the courts below that Mr Rangitonga is not entitled to invoke the special plea under s 47 of the Criminal Procedure Act to prevent his prosecution on the injuring charge. For the reasons given, we are satisfied that the current offence does not arise from the same facts as the previous offence of rape upon which he was acquitted.[51] Notwithstanding our finding that the special plea is not available to Mr Rangitonga, we have some concerns about the propriety of a private prosecution now proceeding in circumstances where the Crown deliberately withdrew the wounding charge prior to his trial for rape. It has not been suggested there was any indication this charge or any similar charge would or might be re-laid. In these circumstances, Mr Rangitonga may have had grounds to believe he was no longer in jeopardy on any charge related to his assault on the complainant.[52] As noted, there was no appeal from the District Court's refusal ofMr Rangitonga's application for a stay of proceedings on abuse of process groundsbut a further application could be brought if the private prosecutor still intends to proceed with the injuring charge. The outcome of that application is a matter for the District Court in light of all the circumstances.30 See, for example, the course adopted by this Court in Churchis v R [2014] NZCA 281, (2014) 27 CRNZ 257.Result[53] Leave to appeal is granted but the appeal is dismissed.Solicitors:Pacific Coast Law, Papamoa for AppellantCook Morris Quinn, Auckland for Respondent