S (CA377/2017) v R [2018] NZCA 101

S (CA377/2017) v R [2018] NZCA 101 [19 April 2018]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA377/2017[2018] NZCA 101BETWEEN S (CA377/2017)AppellantAND THE QUEENRespondentHearing: 27 November 2017Court: Clifford, Dobson and Collins JJCounsel: N Levy for the AppellantS K Barr for the RespondentJudgment: 19 April 2018 at 12.45 pmJUDGMENT OF THE COURTA The appeal against conviction is allowed in part.B The convictions on charges 10 and 11 are quashed. No retrial is ordered.C The convictions on charges 1, 2, 4, 5, 6, 7, 8, 9, 12, 13, 14 and 15 stand.D The appeal against sentence is allowed in part.E The concurrent sentences of 16 years' imprisonment imposed on charges 13and 14 are quashed and replaced with concurrent sentences of 14 years andsix months' imprisonment.F The sentences imposed on charges 1, 2, 4, 5, 6, 7, 8, 9, 12 and 15 stand.G The minimum period of imprisonment of eight years and six months isquashed and replaced with a minimum period of imprisonment of eightyears.H Order prohibiting publication of name, address, occupation or identifyingparticulars of appellant pursuant to s 200 of the Criminal Procedure Act2011.____________________________________________________________________REASONSDobson and Collins JJ [1]Clifford J (dissenting) [91]DOBSON AND COLLINS JJ(Given by Dobson J)Table of ContentsThe circumstances of the alleged offending [5]Error as to the mode of trial [10]Grounds for a miscarriage of justice [18]Status of the error [24]The relevance of counsel's error [37]Joinder/propensity [44]Sentence appeal [59]Minimum period of imprisonment [80]Result [83][1] At the conclusion of a jury trial in the District Court at New Plymouth, theappellant was found guilty of serious sexual offending against two complainants. Hewas subsequently sentenced by Judge Barkle to 16 years' imprisonment with aminimum period of imprisonment (MPI) of eight and a half years.1[2] The appellant has appealed both the convictions and sentence.[3] The grounds advanced for the conviction appeal are, first, that the appellantwas unaware of the option of having his trial before a judge alone, and that the absenceof an opportunity to consider that alternative and decide upon a judge alone trial (JAT)1 R v [S] [2017] NZDC 6894 [Sentencing notes].constituted a miscarriage of justice. Second, that Judge Sygrove wrongly orderedjoinder of the charges in respect of each of the two complainants, having erred inholding that the evidence to be adduced about his alleged offending against each ofthe complainants bore sufficiently unusual similarities so as to be admissible aspropensity evidence.2[4] The ground advanced for the sentence appeal is that the end sentence wasmanifestly excessive due to an incorrect assessment of the aggravating features of theoffending.The circumstances of the alleged offending[5] The complainant in respect of the more recent offending, HS was 15 years old.Late one night in January 2016, HS and two male companions were offered a lift bythe appellant into the town. HS and her companions were dropped outside her home,but HS was persuaded to get back into the appellant's vehicle and was driven to anisolated spot. Despite spirited protests and screaming, the appellant violated HS byanal and vaginal rapes. During his forceful activities with HS, he also assaulted herby choking her and inflicted unseemly love bites by sucking her neck. Thecircumstances of taking the complainant gave rise to a charge of abduction for thepurposes of sexual violation. He was also charged with counts of rape, sexual violationby penetrating HS's anus with his penis, assault by choking and assault by sucking herneck.[6] After these events occurred, the appellant returned HS to her home. When hertwo male companions observed her distress, they confronted the appellant. Heassaulted one by punching him, and the other by causing him to fall to the groundwhilst holding the door handle of the appellant's vehicle as the appellant drove away.The appellant pleaded guilty to these two charges.[7] The second complainant, HK, had married the appellant in 2002. Theyseparated in 2015. Following the complaint to the police by HS about the offendingin January 2016, HK made a complaint about a course of violent and sexual offending2 R v [S] [2016] NZDC 18010.by the appellant that had occurred throughout their relationship. That complaint ledto charges of rape on a specific occasion, and charges of assault by punching HK inthe face and pushing and holding her against a wall. Further, there were representativecharges of rape, sexual violation by penetrating HK's anus with his penis, arepresentative charge of assault by choking which had occurred during sexual activity,and a charge of indecent assault involving the touching of HK's genitalia, which hadoccurred subsequent to their separation. The appellant was convicted on all of thesecharges.[8] The appellant was discharged under s 147 of the Criminal Procedure Act 2011(the CPA) on one other count involving HS.[9] On appeal, the Crown accepted that two convictions for assaulting HK thatdated from 2005 were brought out of time. (The appellant had pleaded guilty to oneof these charges.) The Crown therefore proposed that those two convictions bequashed, and we do so.Error as to the mode of trial[10] Throughout the proceedings in the District Court the appellant was representedby Ms Hughes QC, who has completed an affidavit as to the circumstances in whichthe election for trial by jury occurred. Ms Hughes has deposed that she elected a jurytrial on the appellant's behalf in respect of the charges involving HS on11 February 2016, and the charges involving HK on 5 May 2016. Ms Hughesconfirmed that she did not discuss with the appellant whether it was preferable for himto have a JAT or a jury trial. She deposed that her mistaken belief was that he wouldbe ineligible for a JAT, because she focused on the maximum penalty applicable to themost serious charges of 20 years' imprisonment. Her understanding was that a JATcould not be ordered unless the maximum penalty was less than 10 years'imprisonment.3 The majority of trials for serious sexual offending are conductedbefore a judge and jury and Ms Hughes deposed that if the trial issue in alleged sexual3 This appears to reflect an imperfect recollection of the former position under the SummaryProceedings Act 1957. The Criminal Procedure Act 2011 provides a default alternative to have aJAT for category 3 offences. It is only mandatory to have a jury trial for category 4 offences.offending is consent (which it was here in the case of both complainants) she wouldusually recommend a jury trial.[11] The appellant also completed an affidavit, complaining of the absence of anydiscussion with him about the decision on mode of trial. He deposed:I believe I would have chosen a judge-alone trial if I had been given a choice.This is because I think that a judge would have been more likely to considerthe evidence and apply the law to it without having a lot of emotional stuffgoing on. For example, at one stage in my trial there was a delay of about halfan hour because one of the jurors was crying in the jury room.I also think that it would have been easier to convince one person that I wasnot guilty, than 12 people [12] Ms Levy, for the appellant, submitted that these circumstances led to amiscarriage of justice because the appellant was deprived of what Ms Levycharacterised as his right to a JAT. She invited analogy with a number of decisions inwhich the converse situation arose of defendants not being afforded an opportunity toelect trial by jury where they were entitled to. Such outcomes have either constituteda miscarriage of justice or been treated as a failure capable of constituting amiscarriage of justice.4[13] In her written submissions, Ms Levy additionally submitted that there was nojurisdiction for the seven common assault charges to be tried before a jury becausethey were category 2 offences under the CPA. She submitted that the trial of thosecharges was accordingly a nullity. If tried separately, the less serious charges wouldnot qualify as charges in respect of which the appellant had a right to elect trial by jury.However, where category 2 charges are being tried with category 3 charges in respectof which a right to elect trial by jury does exist, and that election is made, then s 139of the CPA provides that all the charges will be heard by a jury. Once the Crown citeds 139(1) of the CPA, Ms Levy accepted at the hearing that her submission as to theoutcome on those charges could not be sustained.[14] Ms Levy argued that Ms Hughes' decision to make the election on behalf ofthe appellant without discussing it with him deprived him of a critical right to choose4 Parker v Police [2012] NZHC 1231 at [13]–[19]; and Abraham v District Court at Auckland[2007] NZCA 598, [2008] 2 NZLR 352 at [66].the mode of trial so that an unfair trial occurred which constitutes a miscarriage ofjustice.[15] She argued that an adequately informed choice made by a defendant as to modeof trial was one of fundamental importance. The circumstances in which a defendantis deprived of the opportunity to make that election are arguably irrelevant and theconsequence is a miscarriage of justice without the Court needing to inquire into theimpact of it on a trial that ensues other than in accordance with an informed electionmade by the defendant. Ms Levy did not cite any authority in which a miscarriage ofjustice has been recognised where an election has been made on behalf of a defendantto have trial by jury, and where the defendant subsequently claims that, if informed ofthe option, he or she would have opted for a JAT.[16] It is not possible to meaningfully assess the genuineness of the appellant'sopinion, expressed after he was convicted, as to the mode of trial he would havepreferred. The indication conveyed by Ms Levy that, in the event of a re-trial, hewould opt for a JAT is not a commitment to which he could be held. The emotionalresponse he cites from one juror during the course of the trial may not have beenperceived by him as relevant in pre-trial dialogue with his counsel. No such dialogueoccurred, and it would be speculative and certainly irrelevant to consider what his pre-trial view would have been if he had received advice from Ms Hughes on theconventional wisdom on his election.[17] Further, the appellant's thought that it would be easier to convince one personthan 12 that he was not guilty reflects a misconception of the role of either a jury or ajudge as finders of fact in a criminal trial. The more limited relevant defence tactic ofraising a reasonable doubt in the minds of a small number of jurors about the Crown'sability to disprove consent is likely to be a factor for the majority of those chargedwith such offending where consent is the defence and who opt for trial by jury. Again,however, we put that matter to one side.Grounds for a miscarriage of justice[18] The issue on this aspect of the conviction appeal is the status that is to beattributed to the absence of an informed opportunity for the appellant to consider thealternatives of a jury trial or a JAT (the error). The immediate relevance is whetherthe error comes within s 232(4) of the CPA. Section 232(2) provides that an appealsuch as this must be allowed if the court is satisfied that a miscarriage of justice hasoccurred for any reason. That phrase is defined in s 232(4) in the following terms:232 First appeal court to determine appeal(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[19] If an error or irregularity affecting the trial is sufficient to have rendered thetrial unfair, then it is unnecessary to consider the impact of the error on the outcome.On the other hand, if the error or irregularity does not have that status, then anappellant has to establish that there is a real risk that the outcome of the trial wasaffected as a result.[20] It is on the characterisation of the error that we disagree with Clifford J, leadingto our different conclusion on the outcome of the conviction appeal. Our reasons forrejecting Ms Levy's submission that the error necessarily resulted in an unfair trial areexplained below, taking into account the different approach Clifford J has expressedin his dissent.[21] The provisions recognising the relevant rights are ss 24(e) and 25(a) of theNew Zealand Bill of Rights Act 1990 (the NZBORA). Those provisions provide:24 Rights of persons chargedEveryone who is charged with an offence—(e) shall have the right, except in the case of an offence undermilitary law tried before a military tribunal, to the benefit ofa trial by jury when the penalty for the offence is or includesimprisonment for 2 years or more; 25 Minimum standards of criminal procedureEveryone who is charged with an offence has, in relation to thedetermination of the charge, the following minimum rights:(a) the right to a fair and public hearing by an independent andimpartial court [22] For the Crown, Mr Barr submitted that the present circumstances did notinvolve any breach of s 24(e) of the NZBORA. Cases considering the consequencesof a breach of that right are arguably not relevant in present circumstances. On theCrown's analysis, an error by counsel which deprived the appellant of an informedopportunity to decide not to exercise his right to elect trial by jury is potentially abreach of the right to a fair hearing under s 25(a). The relief, if any, that follows froma breach of that right will depend on the consequences for the defendant in theparticular circumstances of his trial and its outcome. Where any compromise of theappellant's right to a fair hearing occurred because of counsel error, the court is toconsider what flowed from that error. Mr Barr submitted that, in the present case, theerror made no difference because the strength of the Crown case meant that there wasno reasonable prospect of a different outcome had the matter proceeded to a JAT.[23] Ms Levy resisted any obligation to make out the prospect of a differentoutcome. She submitted it was an appropriate case for a JAT because of theinevitability of illegitimate prejudice from the trials of the charges relating to bothcomplainants being heard together. In essence, her submission was that this was acircumstance in which the Court could not safely assume that a jury would follow theJudge's directions not to make improper use of propensity evidence. Arguably a morerobust analysis of the evidence supporting the Crown case by a judge sitting alone onthe separate charges in relation to each complainant would have materially improvedthe prospects of the Crown not being able to make out its case. Ms Levy argued thatit was impossible to reconstruct the strength of the evidence against the appellant froma reading of the transcript because the impact of the evidence would have been largelyimpressionistic.Status of the error[24] The status of such an error appears not to have been considered inNew Zealand. It has, however, been considered by the Supreme Court of Canadawhere the corresponding right is expressed in the Canadian Charter of Rights andFreedoms (the Canadian Charter) in the same terms, confirming the right of everyperson charged with an offence "to the benefit of trial by jury". The terms of s 11(f)of the Canadian Charter provide that right where the maximum penalty is five years'imprisonment or more, whereas the New Zealand provision extends the right to trialby jury where the penalty includes imprisonment for two years or more.[25] In R v Turpin, the Supreme Court of Canada considered the status of an accusedperson's entitlement not to exercise that right in a case of defendants jointly chargedwith murder in Ontario.5 In that Province, provisions of the Criminal Codemandatorily required murder charges to be tried before a jury. In a pre-trial ruling, thetrial Judge had accepted that the effect of the right in the Canadian Charter to thebenefit of trial by jury included the right for an accused person to elect whether to betried by a jury or by judge alone. The Judge therefore acceded to the request for a JAT.Subsequent to the acquittal of one of the accused following a JAT, the Crown appealedsuccessfully to the Court of Appeal of Ontario, which held that the trial Judge hadconducted the trial without jurisdiction. That decision was further appealed to theSupreme Court of Canada.[26] The Supreme Court of Canada focused on the constitutional right as being tothe benefit of a jury trial, so that an entitlement to waive the right to that benefit canbe implied. The Chief Justice explained that this meant "right" in a loose sense. Thefollowing passage of his judgment is particularly relevant:6There is no constitutional right to a non-jury trial. There is a constitutionalright to a jury trial and there may be a "right", using that term loosely, in anaccused to waive the right to a jury trial. An accused may repudiate his or hers 11(f) right but such repudiation does not, in my view, transform theconstitutional right to a jury trial into a constitutional right to a non-jury trialso as to overcome the mandatory jury trial provisions of the Criminal Code. Ibelieve that the appellants, if they are to succeed in having the impugnedsections of the Criminal Code struck down as being in violation of their s 11(f)5 R v Turpin [1989] 1 SCR 1296.6 At 1321.constitutional right, must succeed in elevating their "right", or perhaps moreaccurately their power, to waive their s 11(f) right into a constitutional right toa non-jury trial.[27] In dealing with the provision in the Criminal Code that mandatorily requiredmurder charges to be tried by a jury, and the appellant's criticism of that as inconsistentwith the right recognised in the Canadian Charter, the Supreme Court characterisedthe conduct by an accused person wishing to have a JAT in such a case in the followingway:7Simply put, waiver does not confer rights, it repudiates them. If you waiveyour right to A, it does not mean that you are entitled to B. It means only thatyou are no longer entitled to A. What you are entitled to may then have to befound elsewhere, as in this case, in the Criminal Code.[28] The Supreme Court of Canada referred to consideration of this point by boththe United States Supreme Court and the High Court of Australia. The context inwhich the right to a jury trial for criminal defendants is expressed differently in thosejurisdictions but the approach to understanding that right in one such decision of theUnited States Supreme Court is nonetheless helpful:8The ability to waive a constitutional right does not ordinarily carry with it theright to insist upon the opposite of that right. For example, although adefendant can, under some circumstances, waive his constitutional right to apublic trial, he has no absolute right to compel a private trial, although hecan waive his right to be tried in the State and district where the crime wascommitted, he cannot in all cases compel transfer of the case to anotherdistrict, and although he can waive his right to be confronted by thewitnesses against him, it has never been seriously suggested that he canthereby compel the Government to try the case by stipulation.(Footnotes omitted.)[29] We agree with that analysis. The entitlement to waive the benefit of the rightto trial by jury does not create a complete equivalence between the right to a jury trialas preserved in s 24(e) of the NZBORA, and the default alternative of a JAT. It followsthat where the NZBORA-protected right to the benefit of a jury trial has been electedin error, the consequence is not a deprivation of an equivalent right to a JAT.7 At 1324.8 Singer v United States 380 US 24 (1965) at 790.[30] This analysis involves a distinction between the right confirmed in theNZBORA to elect jury trial, which has that formal status, and the absence of equivalentstatus for the default alternative of JAT where a defendant has waived enforcement ofthe right. However, we are not to be taken as suggesting that the former provides atrial process that is necessarily or inevitably superior to the latter. We accept that therewill be cases in which defendants will reasonably perceive their interests to be betterserved by opting for a JAT.[31] The different constitutional status afforded to a trial by jury as compared to aJAT owes its origins to the historical significance that the common law placed upontrial by jury as a bulwark against the potentially oppressive powers of the state.Throughout most of English legal history, from the abolition of trial by ordeal until1827, trial by jury was the only mode of trial in criminal cases.9 Trial by jury wasdescribed by Brennan J in Brown v R as "the chief guardian of liberty under the lawand the community's guarantee of sound administration of criminal justice".10 In thesame case, Wilson J referred to trial by jury as a safeguard against "the oppressivepower of the King and the arbitrary or partial judgment of the court".11 Deane Jdescribed the unique nature of a jury as "a panel of ordinary and anonymous citizens,assembled as representative of the general community, at whose hands neither thepowerful nor the weak should expect or fear special or discriminatory treatment".12The historic justification for trial by jury helps explain why the right to trial by jury is,in relation to qualifying offences, guaranteed by the NZBORA.[32] We also note that in some jurisdictions, the provision of jury trials is seen asbeing provided not solely for the advantage of defendants, but also as serving benefitsfor the community as a whole. Decisions in the United States and Australia justifyconstraints on the right of defendants to elect not to be tried by a jury as reflecting thecommunity interest in having important trials determined by a jury of lay people.[33] In Patton v United States, Sutherland J remarked:139 At 786.10 Brown v R (1986) 160 CLR 171 (HCA) at 197.11 At 186.12 At 202.13 Patton v United States 281 US 276 (1930) at 312. the maintenance of the jury as a fact finding body in criminal cases is ofsuch importance and has such a place in our traditions, that, before any waivercan be effective, the consent of government counsel and the sanction of thecourt must be had, in addition to the express and intelligent consent of thedefendant.[34] In Brown v R, Deane J explained that s 80 of the Australian Constitution didnot just confer a privilege, rather it made trial by jury mandatory:14It is true that the peremptory prescription of trial by jury represents animportant constitutional guarantee against the arbitrary determination of guiltor innocence. That constitutional guarantee is, however, for the benefit of thecommunity as a whole as well as for the benefit of the particular accused.[35] To the extent that this point has been considered in New Zealand, it isrecognised that the choice as between modes of trial is essentially an issue to bedetermined reflecting the interests of the defendant.15 Heron J made that observationin R v Narain, in the context of a severance application, under s 361B of theCrimes Act 1961, to have 17 lesser charges tried in a JAT while the eight most seriouscharges, for which there was no option to apply for a JAT, would be tried by a jury.Section 361B(4) gave the court a discretion to deny an application for a JAT if a JATwould not be in the interests of justice. Heron J also recognised that otherconsiderations were relevant to the exercise of that discretion, including matters ofgeneral principle and the cost and inconvenience of holding two trials. Theobservations in that context do not alter the status of the absence of an opportunity toelect not to have a jury trial.[36] Because the mode of trial that occurred was not in breach of a right to analternative mode, we are not satisfied that the error caused a trial that was unfair in theterms of s 232(4)(b). What occurred was that the appellant did have a fair trial,16 albeitone conducted by a mode which he subsequently complains was chosen for himbecause of a lack of awareness of his entitlement not to exercise the right to the benefitof that mode of trial.14 Brown v R, above n 10, at 201.15 R v Narain [1988] 1 NZLR 580 (HC) at 589.16 This assumes rejection of the challenge to the joinder/propensity ruling which we deal with at[44]–[57].The relevance of counsel's error[37] Where a miscarriage is said to have arisen because of counsel error, theappellant has to make out that the error created a real risk that the outcome of the trialwas affected. Counsel's error must have led to a real risk of an unsafe verdict.17 ThisCourt has ranked the potential impact of different types of counsel error in Hall v R.18In that appeal, this Court accepted the characterisation of three types of error arisingwhere counsel fail to follow instructions as being fundamental.19 Those relate toinstructions on pleas, on elections whether to give evidence, and to advance a defencebased on the accused person's version of events.20[38] That list did not purport to be exhaustive, but it is relevant that each of thosetypes of error can be linked to fair trial rights that are identified in the NZBORA.Informed decisions by defendants as to whether to plead guilty or not guilty involvethe rights to be presumed innocent until proven guilty and not to be compelled toconfess guilt, which are rights acknowledged in s 25(c) and (d) of the NZBORA.Next, the decision on whether or not to give evidence involves the right not to becompelled to be a witness and the right to present a defence, which are recognised ins 25(d) and (e). The right to advance a defence based on the accused person's versionof events is a fundamental form of the right to present a defence recognised in s 25(e)of the NZBORA.[39] The analysis in Hall related to criticisms where it was claimed on appeal thatcounsel failed to follow instructions. Here, the error is not a positive one ofdisregarding the defendant's instructions, but rather an error of omission in notidentifying the alternative to electing trial by jury, and obtaining adequately informedinstructions on the election before it was made. Nonetheless, the absence of the failureto comply with instructions on the election as to mode of trial from the list of counselerrors treated as fundamental suggests that it is not, without more, a fundamental error.17 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].18 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.19 At [65].20 At [65].[40] We consider that counsel's error in this case was not a fundamental one in thesense identified in Hall. Its impact therefore has to be analysed by deciding whetherit created a real risk that the outcome of the trial was affected.[41] Ms Levy cautioned that it is very difficult to make an assessment from thetranscript of the measure of difference that a judge as finder of the facts would make.She submitted that there may be some scope for doubting a complainant whocontinued in a marriage and maintained a largely consensual sexual relationship withthe appellant throughout a lengthy period. Despite that, HK's evidence is credible onthe extent to which she was forced, sometimes violently, to submit to vaginal and analintercourse where the absence of consent was clear. The evidence is more thansufficient to make out the Crown case on the counts of sexual and violent offendingagainst her. So too, with HS's description of the events on the single night giving riseto the charges in respect of which she was the complainant.[42] Anticipating our rejection of the challenge to the joinder/propensity rulingexplained below, the appellant's propensity for particular conduct of the same typewith each complainant can be taken into account. That evidence bolsters thecredibility and reliability of each complainant in their version of the circumstances inwhich the sexual activity occurred, and their denials that it occurred with their consent.[43] Giving primacy to the interests of the defendant and respecting his post-conviction preference for the alternative mode of trial, that preference cannot, of itself,create a real risk that the mode of trial adopted affected the outcome. It follows thatwe do not find there to have been a miscarriage of justice in this case arising out of theabsence of an opportunity for the appellant to decide to proceed by way of a JAT.Joinder/propensity[44] The Crown made a pre-trial application under s 138 of the CPA for the joinderof the eight charges in respect of HS with three charges in respect of HK.21 The issuesof joinder are routinely tied to considerations of the admissibility of evidence on onegroup of charges as propensity evidence for the other.21 It appears four more were added with respect to HK following the s 138 application.[45] The prospect of joinder raises issues of efficiency of the determination ofcriminal charges for the court and for all involved. Notions of efficiency, however,may be relegated below concerns for undue prejudice to a defendant. This may ariseif evidence of separate alleged offending exposes the finders of fact to illegitimatelyprejudicial evidence of unrelated conduct if it is not properly admissible as propensityevidence under s 43 of the Evidence Act 2006. Accordingly, the propensity analysistends to dominate considerations on such joinder applications.[46] Admitting evidence of facts that are unrelated to the charge in issue can onlybe justified if the unrelated conduct reflects a propensity by the alleged offender to actin a particular manner in given circumstances so that the linkage of such repetitions ofconduct increases the level of coincidence that they occurred. Inherent in this is thatthe propensity must be in relation to a matter that is in issue at trial. If the similaritiesarise in respect of an element of the charges that the defendant does not contest, thenit is not relevant for the finder of fact to hear that that admitted conduct has occurredbefore.22[47] The offending alleged in relation to both complainants involved forceful analrapes, as well as vaginal rapes and choking of the complainants. Judge Sygroveconsidered the combination of those features to be sufficiently unusual that therequisite degree of linkage or coincidence was present. In the terms of Mahomed v R,it would give the propensity evidence a probative value that was important because itshowed a tendency for the defendant to act in a particular way, or to have a particularstate of mind.23 The Judge considered that the similarities had a measure of specificityabout them. A jury might reasonably consider this combination of features to beunusual.[48] What the Judge did not do was measure the relevance of these similarities inthe allegations by both complainants by reference to the elements that would be inissue at trial. For the most part, the appellant admitted the sexual conducted alleged,but claimed that it was consensual in all respects. The issue therefore is whether twocomplainants' allegations that they were choked in the course of being raped by the22 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.23 At [3].appellant, and that those rapes were both vaginal and anal, is relevant to their denialsof his claims that all such conduct was consensual.[49] Had the defence been a denial that sex occurred with both complainants,Ms Levy would be inclined to accept that the evidence of each complainant would belegitimate propensity evidence on the charges of offending against the othercomplainant. However, she emphasised that the matters in issue at this trial were verydifferent from that. She argued that the appellant's belief in consent to all the activitybeing given by one of the complainants had no relevance to the propensity of a beliefthat the other complainant had also consented to what occurred. Arguably, any patternin the appellant pursuing both vaginal and anal intercourse, and choking thecomplainants at the same time, could not be relevant for propensity purposes becausethe appellant accepted the essence of what was described by both complainants.[50] Ms Levy submitted that there would be substantial illegitimate prejudicearising from the lurid nature of the similarities described by both complainants, andthis would distract the jurors from giving appropriate recognition to the dissimilaritybetween the context in which the two sets of offending were alleged to occur. For HK,the conduct occurred during a 15-year marriage where there was a pattern of frequentconsensual sex, mixed with the appellant's alleged insistence on forcing sex on HK onoccasions, and similarly insisting on anal intercourse despite HK's objections.[51] In contrast, HS was a teenage girl with whom the appellant was not previouslyfamiliar. The offending was a one-off occurrence in a single late-night incident. Thefocus on the similarities would be likely to detract from the point that the offendingagainst HK occurred on approximately four to six occasions over a 15-year periodwhere the sexual relationship was otherwise consensual, albeit sometimes withvarying degrees of reluctance on that complainant's part.[52] For the Crown, Mr Barr did not accept that the trial issue was confined toconsent on the part of the complainants, or the appellant's reasonable grounds forbelief in consent. On the nature of the choking that occurred, HK complained that itwas strong and sustained to the extent that she blacked out on one occasion, whereasthe appellant said it was only ever "light choking". With HS, the appellant deniedthere was any choking at all, whereas she complained that there had been aggressivechoking that frightened her.[53] On the extent of anal penetration that occurred with HS, the appellant statedthat there had been a small degree of penetration which stopped once HS objected,whereas she stated that it occurred multiple times, was painful and accompanied bychoking. Accordingly, it was wrong to characterise the issues arising on the trialsbeing confined to consent or the appellant's reasonable basis for belief in it. Therewere differences between the recollections on points that were material to whathappened, and to the prospect that the complainants either did consent to what wasoccurring, or gave the appellant reasonable grounds for believing that they did.[54] We are satisfied that the evidence of each complainant was admissible aspropensity evidence in the trial of the charges brought in relation to the othercomplainant. The differences between the version of events admitted by the appellantand those described by the complainants included matters that were likely to berelevant to the jury on whether or not the activities were consented to. For instance,with HK, the circumstances in which she acquiesced to her husband's sexual activitieswith her are likely to be more limited if she was subjected to severe choking ratherthan the "light choking" admitted to.[55] In the absence of any suggestion of collusion between the complainants, theprospect of the 15-year-old HS consenting to vaginal and anal intercourse on a firstmeeting with an older man would be assessed differently if that activity occurred eitherwith or without choking her.[56] No criticism was made of the terms of the Judge's direction to the jury on thelimited use that could be made of the propensity evidence. The jury was directed inconventional terms as to the limits on legitimate reliance on the propensity evidence,and the respects in which it would be wrong to base any further reliance on it. Nothingwas drawn to our attention in terms of the trial process that would cast doubt on theability of the jury to comply with those directions.[57] For all those reasons, although we differ from the Judge's approach in thepre-trial ruling, we are satisfied that his decision on the admissibility of the propensityevidence was correct. The manner in which it was left with the jury did not give riseto relevant concerns.[58] By consent, we quash the two convictions for assaulting HK that dated from2005. In all other respects, the appeal against conviction is dismissed.Sentence appeal[59] An appeal was also bought against the sentence of 16 years' imprisonment andan MPI of eight and a half years. The grounds for appeal were set out briefly inMs Levy's written submissions, and addressed similarly succinctly in her oralsubmissions. Her submission was that the end sentence was manifestly excessivebecause the sentencing Judge had overstated the aggravating factors and failed toacknowledge, in respect of HK, that the offending occurred in the context of anotherwise consensual and ongoing sexual relationship.[60] The Crown endorsed the sequence of considerations taken into account by theJudge and submitted that neither the components nor final outcome reflected any error.[61] The concurrent sentences imposed for the two assault convictions dating from2005 which are being quashed were six months' imprisonment in each case.24 In thecomponent contributions to starting points, those assaults and a specific rapeconviction were jointly treated as justifying an uplift of 15 months' imprisonment.25The contribution of those sentences to the overall outcome is relatively minor, but oncethose convictions are quashed, the safer course in the circumstances of this appeal isto reconsider the components and final sentences to assess whether the outcome wasa sentence of manifestly excessive length.[62] Apart from Ms Levy's concern that the Judge failed to consider the context ofthe appellant's ongoing relationship with HK, which included a long standing partiallyconsensual sexual relationship, neither counsel questioned the Judge's characterisation24 Sentencing notes, above n 1, at [42].25 At [37].of the features of the offending against each complainant. We would be reluctant tovary any aspect of that characterisation when its detail was all open to the Judge whohad the advantage of hearing the evidence at trial.[63] In ranking the offending against HS on the criteria in R v AM (CA27/2009,26Judge Barkle listed five aggravating features:27(a) Premeditation and planning, which were present to a modest extent;(b) violence;(c) the vulnerability of HS on account of her young age;(d) the extent of harm the offending has caused her; and(e) the number of serious offences committed in the course of a singleincident.The last four were present to a moderate to high level.28[64] The Judge's analysis placed the offending against HS at the top of band 2 oron the cusp of band 3 from R v AM. The ranges of appropriate starting points for thosebands are seven to 13 years, and 12 to 18 years respectively.29 The Judge set a startingpoint for that offending at 12 years' imprisonment.30 The Judge treated the assaultconvictions on HS's friends at the end of the incident as warranting a six-monthuplift.31[65] For the offending against HK, the Judge first assessed starting points for therepresentative charges that occurred between January 2008 and July 2015. Thoseinvolved a pattern of forced vaginal and anal intercourse, which persisted despite clear26 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.27 Sentencing notes, above n 1, at [30].28 At [31].29 R v AM, above n 26, at [90].30 Sentencing notes, above n 1, at [31].31 At [32].objections.32 On occasions they were accompanied by episodes of choking. On thefeatures from R v AM, the Judge treated them as involving ongoing planning andpre-meditation.33 A second feature was the level of violence, treated by the Judge asbeyond that inherent in any sexual violation.34 A third was the harm with adversepsychological effects on HK and detrimental impacts on the couple's threedaughters.35 Fourth, the scale and degree of the offending over a protracted periodincreased culpability.36 Fifth, the circumstances of the offending involved a breach oftrust.37[66] The Judge treated these five aggravating features as being present to either amoderate or serious degree, placing the representative charges from the 2008 to 2015period within band 3 from R v AM.38 The Judge set a starting point for that componentof the offending of 14 years and six months' imprisonment.39 That was then upliftedfor the specific convictions dating from 2005 which involved one specific charge ofrape, and the two convictions for assault which we have now quashed.40 The Judgeallocated an uplift of 15 months' imprisonment.41[67] The most recent offending against HK had been an indecent assault thatoccurred after separation. On an occasion when he returned to the family home topick up his daughters, the appellant placed his hand on HK's genitalia. The Judgeuplifted the starting point by three months' imprisonment for that conviction, makinga total starting point for all the offending against HK of 16 years' imprisonment.42[68] The cumulative starting points were therefore 28 and a half years'imprisonment.43 These were reviewed by the Judge by application of the totalityprinciple. That produced a starting point of 16 years' imprisonment which was the32 At [34].33 At [34(a)].34 At [34(b)].35 At [34(c)].36 At [34(d)].37 At [34(e)].38 At [36].39 At [36].40 At [37].41 At [37].42 At [39].43 At [40].final sentence imposed for the most serious convictions on the representative chargesof rape and anal rape against HK, with concurrent 12 year sentences for rape andunlawful sexual connection by anal rape of HS.44 Lesser sentences, including sevenyears' imprisonment for sexual violation of HS, were imposed concurrently for theremaining convictions.[69] Neither the Judge on sentencing nor counsel in their appeal submissionsreferred to any sentencing decisions other than the guideline in R v AM. That isunderstandable given the very wide range of combined circumstances that makeranking relative seriousness of various forms of sexual offending an unusually case-specific task. Nonetheless, this Court must have regard to consistency of sentencings,to the extent they can be compared on relevant criteria.[70] Bearing in mind that it is the end sentence that counts, and not constituentcomponents or the process by which the sentencing Judge arrived at it, our ownconsideration follows the conventional sequence adopted by the Judge.[71] The offending against HK was prolonged, involved violence of a moderate tohigh degree and has resulted in psychological harm to a moderate to high degree.Aspects of the appellant's conduct, such as the level of violence and the extendedperiod during which the offending occurred, reflect a number of the features describedin R v AM as aggravating the seriousness of sexual offending. There is a concern notto allow double counting of a single aspect that aggravates the relative seriousness.We agree with the Judge that it falls within band 3 from R v AM. A starting point of13 years and six months' imprisonment for all the offending against HK would beappropriate.[72] Placing the offending against HS at the top of band 2 or on the cusp of band 3warrants a starting point for that offending somewhat below 12 years. We consider11 years would be adequate. An analogy can be drawn to the appeal in Galvin v R.45In that case, the defendant abducted a 14-year-old girl off the street, dragged her backto his house, raped her and attempted to rape her anally. He pleaded guilty to rape and44 At [41].45 Galvin v R [2017] NZCA 22.other charges were dropped. This Court confirmed the offending was within the higherend of band 2, due to pre-meditation, vulnerability, abduction, detention, force andharm. Also important were the appellant's predatory nature and attempted anal rape.This Court confirmed the 11-year starting point as appropriate.[73] The assaults of HS's companions involved punching in one case, and causingminor harm by moving the motor vehicle the second friend was holding on to in theother. In the context of the sentencing exercise, a three-month uplift is sufficient sothat a starting point for the totality of the January 2016 incidents would be 11 yearsand three months' imprisonment. For cumulative sentences, the total length wouldtherefore be 24 years and nine months' imprisonment.[74] Before considering the totality principle, it is instructive to compare theapproach adopted in a number of recent sentence appeals where offending againstseparate complainants has some similarities.[75] In Parkinson v R, the offender was found guilty of eight out of 19 counts ofsexual and violent offending against his former partner.46 He also pleaded guilty tofive counts of sexual offending against his former partner's daughter. The sentencingJudge characterised the offending as on the cusp of bands 2 and 3 of R v AM. The levelof violence against the principal victim was higher than in this case, with incidents ofpunching the victim's stomach whilst she was pregnant and breaking her arm. Theoffender was sadistic in inflicting pain. A reduction was applied for guilty pleas onthe sexual offending against the partner's daughter. The Judge had reduced a totalsentence of 16 years and four months to 14 years on a totality basis, and this Courtupheld both a starting point and the overall sentence. As a comparator for theappellant's offending against HK, the aggravating features are present in differentlevels of seriousness, but overall the offending in Parkinson appears somewhat moreserious than that against HK.[76] In T (CA561/2014) v R, the appellant had been convicted of 29 violent andsexual offences against his wife and children.47 The offending included ongoing46 Parkinson v R [2015] NZCA 618.47 T (CA561/2014) v R [2016] NZCA 235, (2016) 28 CRNZ 17.domestic violence and abuse over 10 years. There were representative charges of rapeand unlawful sexual connection and one of indecent assault of a girl under 12. Theoffending had been treated as being at the top of band 3 from R v AM, although thisCourt found that it could have been in band 4.48 It upheld a 15-year starting point forthe offending against the wife with a two-year uplift for the violent offending againstthe children. That case appears more serious than the present.[77] Applying the totality principle to reflect the culpability of the overalloffending, and having regard to other recent appeals involving serious sexualoffending against more than one victim, we consider that the 16-year final sentencewas manifestly excessive. Ms Levy submitted that if we reached that view, theappropriate substitute would be a sentence of 13 years.[78] We consider that 14 years and six months' imprisonment is the appropriatelength. We appreciate that if the starting point we have suggested for the offendingagainst HK remained without adjustment, an uplift of only one year to take account ofthe separate offending against HS would appear to be inadequate. In the circumstancesof this appeal, that approach would frustrate the application of the totality principle inthe manner in which we consider it should apply. For a substantial finite sentence ofthis length, a reflection of the relative seriousness of the offending is moreappropriately marked by the allocation of the individual concurrent sentences that areto be imposed.[79] We quash the two concurrent sentences of 16 years' imprisonment imposed onthe representative charges of rape and unlawful sexual connection by anal rape of HKand replace those sentences in each case with 14 years and six months' imprisonment.The concurrent sentences for shorter terms on all remaining convictions are notchanged.Minimum period of imprisonment[80] The Judge determined that an MPI was necessary to hold the appellantaccountable for the harm he had done, not only to the complainants but also to the48 At [64].community.49 The Judge considered denunciation to be important given theappellant's denials of his conduct and that it was necessary to protect the communityfrom him. The Judge imposed an MPI of eight and a half years.[81] We received no separate submissions on this aspect of the sentencing. It isappropriate to revisit the length of the MPI, given the reduction in the finite sentenceand that an MPI must not exceed two thirds of the full term of the sentence.[82] We endorse the sentencing Judge's decision on the appropriateness of an MPI.In proportionate terms, we consider the reasons for imposing an MPI justify a levelnearer the permitted maximum. We accordingly quash the MPI imposed and substitutefor it an MPI of eight years.Result[83] The appeal against conviction is allowed in part.[84] The convictions on charges 10 and 11 are quashed. No retrial is ordered.[85] The convictions on charges 1, 2, 4, 5, 6, 7, 8, 9, 12, 13, 14 and 15 stand.[86] The appeal against sentence is allowed in part.[87] The concurrent sentences of 16 years' imprisonment imposed on charges 13and 14 are quashed and replaced with concurrent sentences of 14 years and six months'imprisonment.[88] The sentences imposed on charges 1, 2, 4, 5, 6, 7, 8, 9, 12 and 15 stand.[89] The minimum period of imprisonment of eight years and six months is quashedand replaced with a minimum period of imprisonment of eight years.49 Sentencing notes, above n 1, at [46].[90] To protect the identity of HK, we make an order prohibiting publication ofname, address, occupation or identifying particulars of appellant pursuant to s 200 ofthe Criminal Procedure Act 2011.CLIFFORD J[91] I dissent.[92] I agree with the majority that the District Court Judge did not err in his findingson propensity evidence and joinder. I also agree that Mr S's sentence appeal shouldbe allowed, to the extent the majority recognise. Where I disagree with the majorityis that I conclude Ms Hughes' error did, as Ms Levy argued for Mr S, result in Mr S'strial being unfair. Hence his convictions were, in my view, the result of a miscarriageof justice and should be quashed.[93] The charges Mr S faced included ones which are known under the CPA ascategory 3 offences. Accordingly, Mr S was to be tried before a judge alone unless,pursuant to s 50 of the CPA, he elected to be tried by a jury at the time he entered hisnot guilty pleas. As Ms Hughes states, she elected trial by jury on Mr S's behalf.50She never discussed with him whether it was preferable for him to have a judge alonetrial or a jury trial. That was because of her mistaken belief he was not eligible for ajudge alone trial.[94] Thus, Mr S was not aware of the option of a judge alone trial. The questionfor us is the consequence of that fact.[95] In my view some guidance as to the correct answer to that question can befound from the previous scheme for election for trial by a judge alone, found in theSummary Proceedings Act 1957 and the Crimes Act 1961.50 The circumstances in which this took place are unclear. Section 50 of the Criminal Procedure Actstates that the defendant may elect trial by jury. Unlike previous legislation, there is no referenceto the defendant's lawyer being allowed to elect trial by jury on the defendant's behalf. Adefendant may enter a not guilty plea by filing a notice under s 37(4) of the Criminal ProcedureAct. There was nothing to suggest Mr [S] had done that.[96] That scheme was complex. Essentially, for a range of moderately seriousoffences the presumptive form of trial (by jury or judge alone) depended on the wayin which the prosecution was begun. If by indictment, the trial would be before a juryunless the defendant applied for trial before a judge alone. If in summary form, thereverse applied: that is, the trial would be before a judge alone unless trial by a jurywas elected.[97] Under those arrangements, ss 168C of the Summary Proceedings Act and 361Bof the Crimes Act dealt with the option of a defendant who had been charged on anindictable basis to waive their right to trial by jury, and to choose to be tried by a judgealone. Section 168C required written notice to be given to such a defendant of her"right to apply to a judge of the High Court or a trial judge of the District Court"for an order that she be tried before a judge without a jury. Section 361B provided fora defendant to give written notice of her desire to be tried before a judge without ajury: where such notice was given, the judge was to so order unless "having regard tothe interests of justice" the judge determined that the defendant should be tried beforea judge with a jury. The notice provisions of s 361B were supplemented by thosefound in s 361C whereby, following committal, a defendant could apply with leave toa judge for an order that she be tried before the judge without a jury.[98] Where a defendant proceeded against summarily had a right to elect trial byjury, s 66 of the Summary Proceedings Act established that right and provided theprocedures for its exercise. Those procedures included the requirement found ins 66(2) for the court to advise the defendant of that right.[99] There are a number of cases concerning the defendant's "right to apply for trialbefore a Judge without a jury" when charged indictably.51 The test under s 361B ofthe Crimes Act was whether it was "in the interests of justice" that the defendant betried before a judge alone. In R v Narain, Heron J said that "the Court will generallyassume that, on advice, the accused is the best judge of the interests of justice so faras he is concerned".52 If it became apparent that the defendant was not notified of thatright pursuant to s 168C of the Summary Proceedings Act, then the Judge could grant51 Summary Proceedings Act 1957, s 168C.52 R v Narain, above n 15, at 589 (emphasis added).the defendant leave to apply for a judge alone trial.53 See R v Darwish, where thedefendant filed an affidavit to the effect that their former counsel did not discuss thematter with them and that they were unaware of their rights in relation to a judge alonetrial.54 Winkelmann J was satisfied that this comprised a "good and sufficient" reasonas to why the defendant had not exercised their right earlier, and granted leave to applyfor an order that the trial be by way of judge alone.[100] There are also cases considering the defendant's right to elect trial by jury whencharged summarily. In Abraham v District Court at Auckland, this Court said s 66(2)of the Summary Proceedings Act did not impose an absolute obligation on the courtto advise the defendant of the right to elect trial by jury — so a failure by the Court todo so did not render the trial a nullity.55 But, it was important that the defendantunderstood the available options (after being advised by either the court or counsel).That was clear from the fact that the legislation allowed the defendant's lawyer toinform the court of the election on the defendant's behalf — "as far as Parliament isconcerned, what is important is that the defendant understands the availableoptions".56 If the defendant did not, then that was capable of constituting a miscarriageof justice.[101] As can be seen, under previous legislation, the choice between a judge alonetrial or a jury trial was clearly an important one for a defendant. The cases, particularlyAbraham v District Court, emphasise the importance of the defendant being advisedabout the available options.[102] The current legislation recognises that there are circumstances when ajudge-alone trial may be appropriate — see ss 102 and 103 of the CPA. Similarly, ifthe defendant has elected a jury trial, "but there is a change in circumstance that mightreasonably affect the defendant's decision" to so elect, then they can obtain the leaveof the court to withdraw the election — see s 53 of the CPA. See also this Court'sdecision in Anderson v R that "the decision as to whether the trial is to be by a judgealone or by jury" is "one closely linked to disposition or determination" of the trial53 R v Mihaka [1997] DCR 377.54 R v Darwish HC Auckland, CRI-2003-004-044644, 25 May 2005.55 Abraham v District Court, above n 4, at [54].56 At [54].such that a judge's decision not to withdraw the election under s 53 of the CPA can beappealed.57[103] On that basis, I consider the choice under the CPA to be no less significant thanthat under previous legislation. The failure to be given the opportunity to consider theavailable options renders Mr S's trial unfair. It is not necessary to focus on thecredibility of Mr S and his assertion that he would have chosen a judge alone trial hadhe been advised of that option. What is important is the clear and uncontested evidencethat he was not advised of the option of a judge alone trial.[104] In reaching a contrary conclusion, the majority point to the recognition in theNZBORA of a defendant's right to the benefit of trial by jury, and the omission of anyreference to a right to or option of a judge alone trial. Noting the historic significanceof the recognition of the right to trial by jury, they conclude the option to elect trial bya judge alone is not of equivalent significance. Therefore, the fact that Mr S was notaware of that right or option does not of itself render his trial unfair. They point to thediscussion of the significance of certain types of counsel error in Hall v R as supportingthat conclusion.58[105] I recognise that the provisions now found in the CPA giving a defendant theoption or right to elect trial by judge alone do not have the same historic significanceas the right affirmed by s 24 of the NZBORA to the benefit of a jury trial. In my view,however, that is not to say that right is not a component of the fair trial right affirmedin s 25 of the NZBORA.[106] In addition to pointing to the historic significance of the right to a jury trial, themajority rely on various aspects of the decision of the Canadian Supreme Court inTurpin.59 I am not persuaded by the majority's reliance on various aspects of Turpin.[107] That case considered two issues. The first was whether the "right to the benefitof a jury trial" implicitly provided the defendant with the right to decline that benefit.57 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [56].58 Hall v R, above n 18.59 R v Turpin, above n 5.The Canadian Supreme Court answered that question in the affirmative. In my view,that supports the conclusion I have reached.[108] The second was whether that was a constitutional right, so as to renderunconstitutional provisions that mandate a jury trial for certain offences. TheCanadian Supreme Court answered that question in the negative. It was in that contextthe Court made the observation referred to at [26] of the majority judgment. The"constitutionality" in a Canadian sense of the implied right to waive the benefit of ajury trial is not relevant in this case. Mr S is not asserting a constitutional right to ajudge alone trial in the face of a mandatory jury trial. What is relevant in this case isthat the legislation provides the defendant with a clear choice between a judge alonetrial and a jury trial. Mr S was not advised of this and was deprived of the ability toelect his preferred mode of trial.[109] Unlike the majority, I do not find the observations of the United StatesSupreme Court and the High Court of Australia, as to the significance of thecommunity's interest in trial by jury, to be of assistance. As the CanadianSupreme Court observed, the relevant constitutional provisions (art 3, s 2 of theUnited States Constitution and s 80 of the Australian Constitution) "do not address thejury trial in the context of the rights of accused individuals but as a proceduralrequirement for certain trials".60 In Turpin, the Court approved Dawson J's followingcontrast of the American provisions with s 11(f) of the Canadian Charter:61The position in the United States may be contrasted with that in Canada. Therethe Canadian Charter of Rights and Freedoms in the Constitution Act, 1982provides in s 11(f) that any person charged with an offence has the right to thebenefit of trial by jury where the maximum punishment for the offence isimprisonment for five years or a more severe punishment. Quite clearly thisprovision is couched in terms of a personal guarantee and the courts have soregarded it, allowing an accused to waive trial by jury in accordance with thosesections of the Criminal Code which provided for waiver both before and afteradoption of the Charter of Rights and Freedoms.[110] The Canadian Supreme Court concluded:6260 At 1317.61 At 1319, citing Brown v R, above n 10.62 At 1319.To prevent an individual from waiving his or her right to the benefit of a jurytrial is clearly to elevate the interests of society, over the interests of theindividual. This is normally achieved under the [Canadian] Charter throughthe application of s 1 and not through reading a limit into the right itself.I would conclude therefore that the American and Australian authorities donot provide a sound basis for denying an accused the right to waive his s 11(f)right having regard to the significantly different structure of the CanadianCharter.[111] In New Zealand, s 5 of the NZBORA performs a similar role to s 1 of theCanadian Charter. Hence, the proposition is that the difference between the status ofthe right to elect trial by jury, and to waive that right, is not one of status, but ratherone found in the concept of justified limits, as recognised in s 5 of the NZBORA.[112] Nor am I persuaded that the absence of any reference in Hall to an error suchas the one Ms Hughes made supports that conclusion. There is no mention in Hall ofthe status of an error of counsel in, as could be done under the old procedures,63electing trial by judge alone in the absence of an accused, without instructions orcontrary to instructions. Yet it must be that such an error would render the subsequentjudge alone trial unfair. The characterisation of the co-relative error, such as occurredhere, is in my view similarly not affected by Hall. Moreover, and as has been observedon many occasions, counsel error is not itself a ground for a conviction appeal: theissue is miscarriage of justice.64[113] Given my categorisation of the error as one rendering the trial unfair, it is alsounnecessary to consider whether Mr S would have secured a more favourable verdicton any of the charges had he elected to be tried by a judge alone.[114] Moreover, and on that point, I am fortified in my conclusion by the followingconsiderations. As they acknowledge, the approach the majority takes requires aninquiry into the effect of Ms Hughes' error. But, were such an inquiry to reveal someactual error by the jury, then that error itself could be assessed in terms of effect andmiscarriage in the ordinary way. If no such error is identified, the only argumentavailable to a person in Mr S's position is that some category of offence or of trial is63 Summary Proceedings Act, s 66(7).64 Ross v R [2017] NZCA 587 at [31].in some way, inherently and objectively, more likely to receive a fair trial before ajudge than it is before a jury. Hence, where the error is made in the context of thatcategory of offence or trial, then the error may have given rise a miscarriage. In myview, however, that line of reasoning is untenable.[115] The law proceeds on the basis that trials before a jury and before a judge aloneare equally capable of constituting fair trials. In my view, Mr S's trial was either unfairfor the reasons I have identified because of Ms Hughes' error, or it was not. If myreasoning is not correct, then I do not see how Ms Hughes' error alone could be aground of appeal. Rather, Mr S would need to look for an actual error by the jury, notfor some theoretical possibility that the jury might not have approached the matter inthe way a judge would.Conclusion[116] In the result, I would allow the appeal, quash Mr S's convictions, and order are-trial.Solicitors:Crown Law Office, Wellington for Respondent