JONES v NEW ZEALAND POLICE [2018] NZHC 1373

JONES v NEW ZEALAND POLICE [2018] NZHC 1373 [11 June 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2018-404-0020[2018] NZHC 1373BETWEEN TREVOR ALLAN JONESAppellantAND NEW ZEALAND POLICERespondentHearing: 11 June 2018Appearances: T D Clee of AppellantL E Nunweek for RespondentJudgment: 11 June 2018ORAL JUDGMENT OF JAGOSE JSolicitors:Tudor David Clee, Barrister, AucklandKayes Fletcher Walker Limited, Auckland[1] Trevor Jones appeals against his conviction of driving under the influence ofcannabis. He was found guilty of that charge at a Judge-alone trial in the PukekoheDistrict Court on 16 January 2018.[2] He appeals on the basis that he wanted to give evidence at his trial, but was notgiven the opportunity to do so. He claims his then counsel, Oliver Troon, advised theCourt Mr Jones would not be giving evidence contrary to his client's instructions, andthen proceeded to obtain signed written instructions after the fact.[3] The appeal turns on two core issues:(a) as a question of fact, did Mr Troon act contrary to or consistent with MrJones' instructions in telling the Court Mr Jones would not giveevidence; and(b) as a question of law, does that error (if it was such) give rise to a realrisk that the verdict is unsafe, such that a miscarriage of justice hasoccurred.[4] After briefly outlining the legal framework, I address each issue in turn.Legal framework—on appeal[5] Section 229 of the Criminal Procedure Act 2011 sets out a person's right toappeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge-alone trial.[6] Under s 232, I can only allow such an appeal if satisfied the District CourtJudge "erred in his or her assessment of the evidence to such an extent that amiscarriage of justice has occurred", or "a miscarriage of justice has occurred for anyreason". That provision relevantly provides:232 First appeal court to determine appeal(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error,irregularity, or occurrence in or in relation to or affecting the trialthat—(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.[7] As s 232(4) makes clear, not every "error or irregularity" creates a miscarriageof justice.1 The error or irregularity must either create a real risk the outcome of thetrial was affected – in the words of Tipping J in R v Sungsuwan, "a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong"2 – or have resulted in an unfair trial or a trial that was anullity. In Sungsuwan, the plurality observed " the ultimate question is whetherinjustice has miscarried. If the matter could not have affected the outcome anyfurther scrutiny of counsel's conduct will be unnecessary".3[8] Further, I am required to make my own assessment of and form my ownopinion on the facts, independently of those found by the District Court Judge.4 But incoming to my own view, I must pay appropriate deference to those findings as madewith the benefit of seeing and hearing witnesses giving evidence. Still, the appellant,Mr Jones, bears the onus of persuading me the judgment under appeal is wrong.51 "A miscarriage is more than an inconsequential or immaterial mistake or irregularity": Matenga vR [2009] NZSC 18 at [30].2 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].3 At [70].4 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].5 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].—on miscarriage of justice[9] Mr Jones' new counsel, Tudor Clee, says simply the relied-upon miscarriageof justice is misconduct of counsel in failing to follow instructions, as set out inSungsuwan.6 He submits there is a real risk the failure affected the outcome. MsNunweek, for the police, relies on the Court of Appeal's later decision in Hall v R,7which follows and expands on the Sungsuwan principles in the specific context ofinstructions to counsel. The Court of Appeal held that where an appeal alleges a failureto follow instructions, there will generally be a miscarriage of justice if the failure isin respect of a "fundamental" decision. Importantly, this includes the election ofwhether to give evidence.8[10] I view subs (4)(b) as the more sensible pathway for assessing this case, onethat is not tied to establishing the potential risk of an unsafe verdict.9 The right to afair trial is an absolute right, affirmed by s 25(a) of the New Zealand Bill of RightsAct 1990.10 The contrasting approaches in subs (4)(a) and (4)(b) mean an error orirregularity under subs (4)(b) must be of sufficient seriousness to warrant the settingaside of the conviction without further inquiry into the potential effect of the error onthe trial's outcome. Examples include the lack of legal representation,11 deprival of anadequate closing address,12 as well as trial counsel error on fundamental decisions.13[11] That course also avoids the more difficult question in this case, which iswhether Mr Jones' evidence in chief could have had anything useful to say in responseto the police officer's evidence.6 Sungsuwan, above n 2, at [64].7 Hall v R [2015] NZCA 4038 At [65].9 Wiley v R [2016] NZCA 28 at [37].10 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77].11 As in Condon, above n 10.12 Kaka v R [2015] NZCA 53213 Hall, above n 7.Issue 1: did Mr Troon act contrary to Mr Jones' instructions?[12] Mr Jones' position is that he wanted all along to give evidence personally butMr Troon, of his own volition, advised the Court Mr Jones would not give evidence.As he describes in his affidavit dated 2 May 2018:14I wanted to give evidence in my Judge Alone Trial. I told my counsel this. Iwas telling him that as we went into the Courtroom. He told the Judge I wasnot giving evidence today.We then left the Courtroom so the Judge could prepare the summing up. Wewent into an interview room and had a discussion. My partner Tania was withme. He then gave me a waiver to sign that I would not give evidence. Thewaiver is attached.I signed the paper even though he had already told the Judge that I wouldn'tgive evidence. I felt I had to trust him as he is the professional.We went back into the Courtroom and the Judge did the summing up.[13] The police tender affidavit evidence from Mr Troon – along with a law clerkthen observing Mr Troon, William Mohammed. The affidavits directly dispute MrJones' evidence. (For completeness, I note we have in evidence a written statementsigned by Mr Jones and dated 13 February 2018 in which Mr Jones waives legalprivilege with respect to the driving case, and gives Mr Troon permission to discussand disclose any relevant material.)[14] Mr Troon, who is a lawyer at the Manukau office of the Public DefenceService, was assigned as Mr Jones' counsel for his trial on 16 January 2018. Mr Troondeposes to meeting Mr Jones on the afternoon before the trial (with Mr Mohammedalso present) and then drafting a brief of evidence in accordance with his instructions.He met with Mr Jones again on the morning of the trial. At this meeting Mr Jonesmade handwritten amendments to the brief before signing, and he also gave signedinstruction for Mr Troon to proceed with the trial. This brief of evidence is before theCourt. It ends with the statement:I understand this Brief of Evidence will be used by my lawyer, Oliver Troon,to conduct my Judge-Alone Trial I understand my lawyer will rely on thisBrief to cross-examine police witnesses and also to lead my evidence if Idecide I want to give evidence.14 The structure of this quotation has been altered for readability; the content is unchanged.During this morning meeting, Mr Troon also took signed instructions from Mr Jonesabout his wish to proceed with the hearing despite Mr Troon's advice he had slimprospects of success. This is also provided in evidence.[15] After conclusion of the police case – during the subsequent lunchadjournment,15 but also to enable his instructions on whether Mr Jones would giveevidence – Mr Troon says he met with Mr Jones in one of the court interview rooms.He advised Mr Jones against giving evidence but reminded Mr Jones he must followhis client's instructions. Mr Troon says Mr Jones agreed with his assessment, andsigned a waiver instructing he did not wish to give evidence. That waiver, dated 16January 2018, reads:I have instructed my lawyer, Oliver Troon, having taken his advice, that I donot want to give evidence.I have made this decision having taken Mr Troon's advice that there is little Ican add by way of evidence that has not already been achieved by cross-examination.For that reason, having heard the evidence myself, and the cross-examinationsubsequently, I choose not to give evidence.[16] According to Mr Troon's evidence, it was only after obtaining the signedwaiver he informed the Court Mr Jones had elected not to give evidence. Mr Troondenies Mr Jones at any point communicated he wanted to give evidence, and insistshe would have followed those instructions if they had been communicated.[17] The affidavit evidence of Mr Mohammed, a law graduate with the PublicDefence Service, recounts the events in his own words. It affirms Mr Troon's evidencein every respect.[18] The police gave notice they required Mr Jones for cross-examination on hisaffidavit, in the event Mr Jones did not turn up. The result is that his affidavit, whichwas bare bones to start with, is not to be tested in any fashion and therefore carriesvery little weight.15 The notes of evidence before Judge S Patel state "Court adjourns: 1:50pm" and "Court resumes:2:16pm". Mr Troon advised me he thought the adjournment was taken shortly before 1pm, andcertainly longer than 26 minutes.[19] I find Mr Jones acquiesced in Mr Troon's advice. Mr Jones' evidence was notgiven at trial. But that did not result in an unfair trial or a trial that was a nullity.Issue 2: a real risk of an unsafe verdict[20] Had I been required to decide whether there was a real risk of an unsafe verdictI would have gone on to consider Mr Jones' evidence itself. Mr Jones says he wantedto give evidence to challenge:(a) the police officer's evidence he was close enough to Mr Jones' vehicleto smell the cannabis coming from the vehicle; and(b) the statement in the Constable's unsigned notebook, madecontemporaneously, that Mr Jones admitted to taking cannabis thatmorning.[21] Both pieces of evidence are clearly critical to the case against Mr Jones, quiteobviously so in the case of the apparent admission of taking cannabis in the morning.But further, if the police officer could not smell the cannabis, he arguably lacked "goodcause to suspect that the person has consumed a drug or drugs" under s 71A of theLand Transport Act. As this is prerequisite condition before an enforcement officer canrequire a driver of a motor vehicle to undergo a compulsory impairment test, thispotentially impugns the test results (which found positive for a component ofcannabis).[22] The police officer was challenged extensively on both aspects of his evidenceby Mr Troon's cross-examination. He questioned the officer on his capacity to smellthe cannabis for over two full pages of the Court transcript, including making the directchallenge "I put it to you, Constable, that you didn't get that close and you couldn'tsmell the cannabis coming from the car", to which the officer responded "No, I couldsmell the cannabis coming from the vehicle".[23] Mr Troon attempted to undermine the credibility of the notebook, makingmuch of the fact that it was unsigned, and attempting to draw the inference theadmissions recorded in it were wrong. The transcript records the critical moment:Q. I put it to you that he denied that he had ta – or he didn't say that he hadtaken or used cannabis that morning?A. No that is incorrect.Q. I put it to you that he may have accepted that he had taken, he had takencannabis a month earlier –A. No.Q – prior to his surgery.A. No. He admitted to taking cannabis as per my notes in my notebook, takenat the time. He admitted to cannabis intake that day.[24] In light of this thorough cross-examination, which directly put Mr Jones' casein evidence, I fail to see how Mr Jones' evidence could have furthered his case in anymaterial way. The lack of Mr Jones' evidence before the trial Judge did not create areal risk the outcome of the trial was affected.Result[25] I dismiss the appeal.—Jagose J