GRACE v R [2018] NZCA 254

GRACE v R [2018] NZCA 254 [16 July 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA699/2017[2018] NZCA 254BETWEEN ROBERT JOHN SOLOMON GRACEAppellantAND THE QUEENRespondentHearing: 21 May 2018 (further material received on 6 June 2018)Court: French, Ellis and Woolford JJCounsel: L A Andersen for AppellantC A Brook for RespondentJudgment: 16 July 2018 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal against sentence is dismissed.C The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Mr Grace was convicted at trial on charges of wounding with intent to injureand injuring with intent to injure.1 Those two charges were put to the jury as1 He was sentenced to three years and six months' imprisonment: R v Grace [2017] NZDC 21509.alternatives to the original charges of wounding with intent to cause grievous bodilyharm and injuring with intent to cause grievous bodily harm, respectively.2 He nowappeals his conviction on the ground that the two alternative charges were improperlyadded to the charge list during the course of the trial. He says the convictions arenullities.[2] The appeal was filed out of time. Because the delay was short and has beenexplained, an extension of time was not opposed and we grant it accordingly.[3] Mr Grace's sentence appeal was not pursued before us and is thereforedismissed.BackgroundThe offending[4] Mr Grace was friends with Ms Brownlie. On the night in question he,Ms Brownlie and the complainant, Mr Howley, had been drinking at Mr Grace'shouse. Mr Grace became angry with Mr Howley for reasons to do with their respectiverelationships with Ms Brownlie. We do not need to venture into the details here.According to Mr Howley, Mr Grace hit him about four times about the head with asharp weapon of some kind. One of the blows cut Mr Howley's right index finger andone cut his forehead. Both cuts required medical attention.[5] Mr Howley then fled the house. He knocked over a wheelie bin full of bottlesas he left. Later, he returned briefly to take Ms Brownlie back to her own house, whichwas a short distance away.[6] At about 5 am the next morning, Mr Grace went to Ms Brownlie's housecarrying a cricket bat. He banged on the front door but it was locked. Ms Brownlieand Mr Howley (who were in bed together) ignored him. Mr Grace climbed in anunlocked side window. He later said he had done this many times before, during hisfriendship with Ms Brownlie.2 Mr Grace also faced a charge of threatening to kill and a charge of aggravated burglary.[7] Mr Grace entered the bedroom where Ms Brownlie and Mr Howley were. Hebegan hitting Mr Howley with the cricket bat. He directed the blows at Mr Howley'shead, re-opening the cut on his forehead. Eventually Mr Howley managed to get outof the bed and stop the assault.[8] Mr Grace denied that events had unfolded in the way described by Mr Howleyand Ms Brownlie. He said Mr Howley's injuries must have been caused when he fellover the recycling bin.The trial[9] Mr Grace's trial began on 28 August 2017. The jury was given a "Jury Book"containing the charge list, admission of facts, a map of the area where the offendingtook place and a witness list. The charges on the charge list were:(a) charge one: wounding with intent to cause grievous bodily harm;(b) charge two: threatening to kill;(c) charge three: aggravated burglary (entering a building with a weapon);and(d) charge four: injuring with intent to cause grievous bodily harm.[10] On the morning of 30 August 2017, after discussions with counsel in chambers,the Judge dismissed the charge of threatening to kill under s 147 of the CriminalProcedure Act 2011 (the CPA). At the instigation of Mr Grace's lawyer, it was alsoagreed that the lesser offences of wounding with intent to injure and injuring withintent to injure should be given to the jury as alternatives. An amended charge sheetwas then created, which contained the following charges:(a) charge one: wounding with intent to cause grievous bodily harm;(b) charge two: wounding with intent to injure ("as an alternate charge");(c) charge three: aggravated burglary;(d) charge four: injuring with intent to cause grievous bodily harm; and(e) charge five: injuring with intent to injure ("as an alternate charge").[11] Shortly thereafter, the Judge advised the jury:Now, a further review of the evidence has meant that charges 1 and 4, as theyare framed are remaining but there are included in that charge alternatives.So what the Crown have done, with my leave, is prepared a new charge listwhich takes out the threaten to kill charge but incorporates two alternativecharges, so if that could now be distributed please.So charges 2 and 5. Charge 2 is an alternative to charge 1, and charge 5 is analternative to charge 4. Now what has to happen is that Mr Grace has to pleadto those two charges, so we're now going to reads the charges to him and askhim to plead to those two charges and then we will resume and when I sum upthe case to you and when counsel address you about the cases respectively,they will address you in respect of the alternatives, and I'll tell you how todeal with those when you go and consider your verdicts.[12] Mr Grace was then asked to plead to the alternate charges. He pleadednot guilty.[13] Later that day, the Crown closed on the basis charges two and five werealternatives to charges one and four. Defence counsel closed on the same basis.[14] In his summing up the Judge said:In this case, charges 1 and 4 in your question trail have alternative charges —charges 2 and 5. You have to consider charge 1 first and if you reach a decisionthat the defendant is not guilty of that charge, you then consider the alternativecharge 2. If, however, you find the defendant guilty on charge 1, you do notconsider charge 2. The same applies to charge 4. You first consider charge 4and only if you consider that the defendant is not guilty of that charge wouldyou then consider the alternative charge. So if you find him guilty of charge 4,then you do not consider charge 5. If you find him not guilty of charge 4, thenyou must consider charge 5.[15] At the end of his summing up, the Judge returned again to this topic:I just want to state again that you only need to consider the alternative charges,that is charges 2 and 5, if you do not reach guilty verdicts on charges 1 and 4.So if you find the defendant not guilty on charge 1, then you consider charge 2Similarly, if you find him not guilty on charge 4, then you consider charge 5.Otherwise you do not consider charges 2 and 5.[16] The conclusion of the question trail for charge one told the jury that if theyfound Mr Grace guilty of charge one, they were to go to the alternative charge two.The question trail for charge two identified charge two as an alternative charge.The end of the charge four question trail advised the jury that if they found Mr Gracenot guilty of charge four, they were to go to the alternative charge five. Apart fromthose references, the question trail did not contain a specific direction to only considercharges two and five if they reached not guilty verdicts on charges one and four.[17] At 1.05 pm the following day, the Judge received a note from the jury advising:We are at a standstill and we would like some direction please.[18] After speaking to counsel, the Judge sent a message to the jury asking whetherthey were stuck on all charges or just some. The jury's response was that they werestuck on four charges, "of which one is a majority". The Judge then called the juryback and gave them a majority verdict direction, as follows:[3] You may deliver a majority verdict on any charge. If any one jurordisagrees on a charge, you may deliver your verdict. If more than one jurordisagrees on a charge, you cannot deliver your verdict on that charge.However, you should try to reach unanimity until it is probable this will nothappen.[4] Before you can deliver a majority verdict on a charge, your forepersonwill be asked in open Court to confirm it is not probable you will reach aunanimous verdict on that charge, and to confirm you have reached a majorityverdict. You can bring in a unanimous verdict on one or more charges, and amajority verdict on one or more charges.[5] So that you and your foreperson know what to expect when you cometo deliver your verdicts, this is the procedure that would be followed for eachcharge. The registrar will ask:Members of the jury, on charge 1, have you reached aunanimous verdict, that is one on which all 12 of you agree?[6] If the answer is yes, you will be asked whether your verdict is guiltyor not guilty. If the answer is no, the question will be:Members of the jury, is it probable that you can reachunanimous verdict, that is one on which all 12 of you agree?[7] If the answer is yes, then no verdict would be taken. If the answer isno, then the question would be:Members of the jury, have you reached a verdict on which allof you agree except one?[8] If the answer is no, then no verdict will be taken. If the answer is yes,then you will be asked:Do you find the defendant guilty or not guilty?[9] So your task, members of the jury, is to go back into the jury room tosee whether or not you can reach unanimous verdicts, and if you cannot reachunanimous verdicts, whether or not you can reach majority verdicts.[19] It seems that at 3.45 pm the Judge sent a note to the jury which read:Have you reached unanimous or majority verdicts on any charges?Charge 1 Yes Or NoCharge 2 Yes Or NoCharge 3 Yes Or NoCharge 4 Yes Or NoCharge 5 Yes Or NoI do not want to know what the verdicts are.Are you likely to reach either unanimous or majority verdicts on any chargesthat you have not already reached verdicts? Yes or NoYou will also be asked these questions in open court but I need to know tomake a decision about the continuation of your deliberations.[20] At around 4 pm that afternoon the jury returned and verdicts were taken. Thetranscript shows that there was some confusion during that process, although that maybe because the Judge had received a written response to his questions (the file doesnot make this clear). In summary:(a) on charge one the jury:(i) said that they could not, and were unlikely to, reach aunanimous verdict; but(ii) were not then asked by the Registrar whether they had reacheda verdict on which all but one of them agreed;(b) on charge two they returned a unanimous guilty verdict;(c) on charge three they:(i) advised that they could not, and were unlikely to, reach aunanimous verdict; but(ii) were not then asked whether they had reached a verdict onwhich all but one of them agreed;(d) on charge four they:(i) advised that they could not, and were unlikely to, reach aunanimous verdict; but(ii) were not then asked whether they had reached a verdict onwhich all but one of them agreed;(e) on charge five they:(i) advised that they could not, and were unlikely to, reach aunanimous verdict;(ii) were asked whether they had reached a verdict on which all butone of them agreed; and(iii) returned a majority guilty verdict.[21] Then, the Judge said:Thank you. Mr Grace, on charges 2 and 5, as a result of the jury's verdictsyou will be convicted on those two charges. If you would just stand down incustody and I will deal with you shortly, thank you.Now Madam Foreperson, members of the jury, I want to thank you for yourtask. You have obviously applied yourself to these charges. I need to discusswith counsel what will happen with charge 3, but your findings on charge —charges 1 and 4, will mean that those two charges will be dismissed, I wouldsuggest, I'm not sure, but that's probably what will happen, because they werealternative charges and it will be subject to the Crown's position. More likelythan not Mr Grace will face another trial on the aggravated burglary charge,that's just the way the system operates. I know that you have tried hard and Ithank you on behalf of the community, it's not easy to sit as 12 unknownpeople as judges of another citizen and you have applied yourself and I thankyou very much.[22] After the jury had left the Courtroom, the Judge had the following exchangewith the prosecutor:THE COURT: Right, now Mr Donnelly, I might have overstepped the markthere but I suspect that the reality is that with charge 2 and 5 —MR DONNELLY: I suspect, Sir, and what I'm going to ask just so I makesure I go through the process properly, is for the matter to be called againtomorrow. I just want to speak to the [officer in charge] and the complainant.I would, again I'm not, I don't want to be bound by this, but my view, at thistime, is that we wouldn't proceed, I mean the two physical acts there's beenguilty verdicts of those, although the lesser but that's —THE COURT: Yeah —MR DONNELLY: — and also the aggravated burglary, I mean again it's, it'sa yeah, I think it would likely be that we don't proceed on that again –THE COURT: Right —MR DONNELLY: — but I just want to make sure I do the proper process —THE COURT: — yes, sure, I understand that.MR DONNELLY: I think 1 and 4 remain live because they weren't notguilties.THE COURT: That's right, they do remain live and I realised that when I wassaying it to the jury and I thought, "now hang on a minute, they do remainlive," but — because they haven't found him not guilty on that charge.MR DONNELLY: No, no, they're just unable to reach a verdict so THE COURT: Yes, so —MR DONNELLY: But I'll be in a position to answer that, whether the Crownwishes to proceed on 1, 4 — 1, 3 and 4 tomorrow.[23] The next day the Crown advised that they did not wish to pursue a retrial onthe other charges and, at that point, they were dismissed.The appeal[24] As initially formulated, Mr Grace's appeal can relatively quickly be dealt with.We have little hesitation in agreeing with Ms Brook for the Crown that:(a) The "new" charges are properly regarded as (and were clearly intendedto be) lesser "included" (and alternative) charges,3 as is permitted bys 143 of the CPA, which provides:If the commission of the offence alleged (as described in theenactment creating the offence or in the charge) includes thecommission of any other offence, the defendant may beconvicted of that other offence if it is proved, even if thewhole offence in the charge is not proved.(b) The amendment of the charge list in this way did not amount to"adding" charges against him.[25] In this latter respect, we also record our agreement with Ms Brook that a chargelist simply summarises the charges in a convenient form for the jury. Unlike a chargingdocument, it has no legal status; it is not constitutive of the charges faced by thedefendant. Indeed, as she pointed out, the only statutory reference to charge lists canbe found in r 5.9 of the Criminal Procedure Rules 2012, as follows:(3) After the jury has been sworn, the prosecutor must provide a copy ofthe charge list to each juror and each defendant, and the defendantmust be asked to plead to each charge on the charge list.(4) The charge list must itemise the first charge on which the defendant ischarged as "charge 1" and any further charges sequentially in the samemanner.(5) If there are multiple charges, the Judge may direct the manner inwhich the charges are put to the defendant.(6) The defendant must be given in charge to the jury after the jurors haveeach received a charge list.3 An included charge is one that is necessarily included in the actual charge, either by reason of itsdefinition, or how the charge is laid in the charge sheet. Burglary is an included charge whenaggravated burglary is the actual charge.[26] We acknowledge that in contrast to the position that pertained under theCrimes Act 1961, there is no power under the CPA to add new charges during a trial.4But that is not what happened here. The charges were alternative charges and onlyincluded in the charge sheet to assist the jury. A charge list has no legal status andtherefore the absence of a power to amend it is irrelevant.[27] As the hearing before us developed, however, it became apparent that other,more substantive, issues were raised by what occurred here. In particular, it becameapparent that (as we have set out above):(a) Mr Grace had been asked to plead to the included charges;(b) the jury had given verdicts on the included charges without firstdelivering a verdict on the original charges to which they werealternatives;5 and(c) Mr Grace had been convicted on the included charges while the originalcharges remained "live".[28] Those are the issues to which we now turn.Discussion[29] We begin by noting that the "verdicts" on the charges which did not ultimatelyresult in convictions (charges one, three and four) were clearly irregular. Indeed, theywere not verdicts at all. But the guilty verdicts on charges two and five were not4 Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters)at [CPA136.02]. The Crown may add new charges without leave up until the case review hearing,or the time the trial callover memorandum is filed (depending upon the applicable pre-trialprocedure). After that date has passed but before trial, new charges may be added with leave ofthe court: Criminal Procedure Act 2011, s 191; and Crown Prosecution Regulations 2013, reg 6.But there is no mechanism to add charges during a trial, other than by commencing a newproceeding by way of filing charging documents and formally joining them to the existingproceeding.5 Because they were hung on the original charges.irregular. The verdict on charge two was unanimous. And the verdict on charge fivecomplied with s 29C(2) of the Juries Act 1981 (the JA):(a) the jury had been deliberating for more than four hours (from theafternoon of 30 August until 4 pm on 31 August);(b) the jury had not reached a unanimous verdict;(c) the foreperson stated in open court that the jury was not likely to reacha unanimous verdict, but had reached a verdict on which all but one ofthe jurors agreed; and(d) it is clear from the Judge's acceptance of the verdicts that he consideredthe jury had had a reasonable period of time for deliberation havingregard to the nature and complexity of the trial.[30] This is not, therefore, a case like Taula v R, where the appellant's convictionswere quashed because non-compliance with one of the s 29C preconditions renderedthe verdicts nullities.6[31] Nor do we consider that any risk of miscarriage arises from requiring Mr Graceseparately to plead to the included offences. At most, that is an irregularity that couldbe cured by s 379 of the CPA.[32] In our view, the only real issue here relates to taking verdicts on the includedcharges without first taking verdicts on the original, more serious, charges. We soughtand received further written submissions on this point after the hearing.[33] The starting and, we think, the end point is the analysis by this Court in Lualuav R.7 In that case the jury had been unable to agree on count four in the indictment buthad returned a guilty verdict on count five, which was an alternative, included, charge.It appears that the Judge and counsel at the time did not consider that taking that6 Taula v R [2017] NZCA 469 at [24] and [30].7 Lualua v R [2007] NZCA 114.verdict (and entering a conviction) would preclude a retrial on count four. Whenthe Crown later signalled that it wished to pursue a retrial, however, the Judge"recalled" the conviction on count five in order to permit that to occur.[34] One of a number of issues considered on appeal was whether the District CourtJudge was entitled to accept the verdict on the alternative count five.8[35] The Court's analysis of that issue is both comprehensive and directly on point.After noting that there was nothing to suggest that the jury's verdict on count five wasnot accepted or (accordingly) that Mr Lualua had, indeed, not been convicted on thatcount,9 William Young P for the Court went on:[13] There has been debate as to whether a Judge can accept a verdict on alesser alternative charge which is "included" in the primary count (eg asmanslaughter usually is in a count alleging murder) where the jury cannotagree on the primary charge.[14] The House of Lords in R v Saunders [1988] AC 148 held that it isopen to the Judge to do so. In that case, the Judge (with the consent of counselon both sides) had accepted a verdict of manslaughter where the jury weredivided on whether the defendant was guilty of murder. Indeed, theHouse of Lords held that his right to take a verdict in relation to manslaughterdid not depend on the consent of the prosecution and defence. Lord Ackner(at 161) summarised the position in this way:In a trial on an indictment for murder, where manslaughter isa possible verdict, the jury's task is first to consider whetheror not they are satisfied that the accused is guilty or murder.It is only when they have made the positive determination thatthe accused is not guilty of murder that they should thenproceed to consider the lesser offence of manslaughter.However, there is no legal principle which prevents thisimpediment to considering the lesser offence being removedby judicial intervention, namely by discharging the jury fromthe obligation of returning a verdict on the major offence, ifthe justice of the case so requires.[15] In R v Dwight [1990] 1 NZLR 160, Cooke P (at 166) expressedreservations as to whether Saunders should be followed in New Zealand givens 374(6) of the Crimes Act. Section 374 relevantly provides:374 Discharge of jury(1) Subject to the provisions of this section, the Courtmay in its discretion, in the case of any emergency or8 At [9] and following.9 At [11].casualty rendering it, in the opinion of the Court,highly expedient for the ends of justice to do so,discharge the jury without their giving a verdict.(2) Without limiting subsection (1) of this section, wherea jury has remained in deliberation for such period asthe Judge thinks reasonable, being not less than4 hours, and does not agree on the verdict to be given,the Judge may discharge the jury without their givinga verdict.(6) Where the Court discharges a jury under this section,it shall either direct that a new jury be empanelledduring the sitting of the Court, or postpone the trialon such terms as justice requires.Cooke P's concern in Dwight seems to have been that the effect of theseprovisions is that where a jury is discharged from giving a verdict, s 374(6)requires there be a new trial and does not contemplate the taking of a verdicton an included charge.[16] That view rests on a literal reading of s 374. It is axiomatic that thissection applies on a count by count basis, ie a jury which agrees on somecounts can return verdicts on those counts despite disagreeing on others.We think it is clear that s 374(6) does not completely occupy the ground interms of what a Judge must do when there has been a disagreement. On thispoint we refer to the remarks of Henry J in R v Barlow [[1998] 2 NZLR 477(CA) at 478], where he commented on s 374 and s 378 (which permits theSolicitor-General to grant a stay) and he went on:There is no other express statutory provision governingprocedure following a disagreement, and accordinglythe Court's power to give relief from an order under s 374(6)could only arise under s 347, the inherent jurisdiction toprevent an abuse of its process, or possibly the New ZealandBill of Rights Act 1990.Logic suggests that this list of exceptions is itself too limited. What if thepractical effect of accepting a verdict on a lesser charge is to preclude a retrialon the primary count (for instance where the defendant is charged with thesubstantive offence and convicted of an attempt, see s 338(2), discussedbelow)? For present purposes, the remarks of Henry J are sufficient because,as will become apparent, we are satisfied that a further trial on count fourwould be an abuse of process.[17] Against that background, we conclude that where the jury hasdisagreed on the primary count, the Judge may nonetheless take a verdict ona lesser alternative count (whether included or set out explicitly in theindictment as an alternative count). On the other hand, we are inclined to thinkthat it would probably only be in exceptional circumstances (perhaps wherethe Judge intended to discharge the defendant on the primary count unders 347) that it would be appropriate to do so without the Crown's consent.We see this as consistent with the spirit of s 374(6) and, as well, with theprinciple that the prosecution will usually be entitled to a verdict on theprimary count if it insists. Here, however, it is indisputable that the Crownand the defendant agreed with the verdict being taken on count five. It wastherefore open to the Judge to take the verdict.[36] Since Lualua was decided, s 374 has been repealed. The equivalents toss 374(1), (2) and (6) can now be found in ss 22(1), (3) and 22A(4) of the JA. Therehas been no material amendment to the provisions and so the analysis in Lualuacontinues to apply.[37] Mr Andersen for Mr Grace rightly accepted that there is no statutory barrierpreventing a Judge from accepting conviction on an included or alternative chargewhere the jury is unable to agree on the principal charge. But, he said, the Judgeshould not exercise his or her discretion to accept a conviction on an included oralternative charge while the principal charge remains live and therefore subject tos 22A of the JA. He said that one of the following should first have occurred:(a) a formal discharge on the principal charge; or(b) the Crown agreeing to accept the verdict on the alternative charge onthe basis that it will not proceed with the principal charge.[38] But in our view, however, the present case is indistinguishable from Lualua.More particularly in both cases:(a) the jury could not agree on the principal charges and no verdicts onthem were taken;(b) verdicts were taken on the included charges;(c) the defendants were immediately convicted of the included charges;(d) the juries were discharged;(e) no objection was made by the Crown to any of those steps; but(f) the Judge and the Crown (mistakenly) believed that a retrial on theprincipal charges might be possible and so the defendants were notimmediately discharged on those charges.[39] The short point is that a scenario such as the present could only give rise to amiscarriage in terms of s 232 of the CPA if the Crown sought to pursue a retrial on theprincipal charges. Unlike in Lualua (where this Court held that pursuit of thosecharges would be an abuse of process)10 that did not happen here. The next daythe Crown advised that a retrial would not be pursued and the principal charges weredismissed. There is no miscarriage.Result[40] The application for an extension of time is granted.[41] The appeal against sentence is dismissed.[42] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent10 Lualua, above n 7, at [29]–[30].