WIRIHANA v R [2019] NZCA 368

WIRIHANA v R [2019] NZCA 368 [16 August 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA737/2018[2019] NZCA 368BETWEEN URIAH WHETU MONTY WIRIHANAAppellantAND THE QUEENRespondentCA752/2018BETWEEN ANNIKE RENEE PIENEMANAppellantAND THE QUEENRespondentCA787/2018BETWEEN JORDAN STRATTON-PINEAHAAppellantAND THE QUEENRespondentHearing: 24 July 2019Court: Gilbert, Courtney and Wild JJCounsel: E R Fairbrother QC for UWM WirihanaS Brickell for A R PienemanJ G Krebs for J Stratton-PineahaC A Brook for RespondentJudgment: 16 August 2019 at 2.30 pmJUDGMENT OF THE COURTThis Court is the first appeal court for the purposes of these three appeals. Theappeals are to be set down for hearing.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] The appellants in each of these appeals elected trial by jury in the District Courtbut subsequently entered guilty pleas and were sentenced in that Court. They havefiled appeals against conviction or sentence or both in this Court.[2] A preliminary hearing was set down to determine the following questions aboutthe correct jurisdictional pathways for appeals in light of amendments to the CriminalProcedure Act 2011 (CPA) made by the Courts Matters Act 2018 (CMA):1(a) Is the High Court or this Court the first appeal court for conviction andsentence appeals where an appellant has been convicted in the DistrictCourt following a jury trial election being overtaken by a guilty plea?This question turns on whether the entry of a guilty plea can or shouldbe treated as a withdrawal of the jury trial election for the purposes ofss 230(2) and 247(2) of the CPA.(b) How does the CMA apply to appeals that come before this Courtincluding, for example, to appeals where: the charging documents werefiled after 14 November 2018;2 the jury trial election was made afterthat date; determinations appealed from were made after that date; orthe appeals were filed in this Court after that date.[3] The relevant circumstances of each appellant are:1 Pieneman v R CA752/2018, 20 June 2019 (Minute of Gilbert J).2 Being the date the relevant provisions of the Courts Matters Act 2018 came into force.(a) Mr Wirihana elected a jury trial on 9 October 2017 but subsequentlypleaded guilty on 9 October 2018 to two charges of possessingmethamphetamine for supply. He was sentenced in the District Courtat Napier to three years and seven months' imprisonment.3 He appealsone of those convictions on the ground that his offending did notconstitute the offence of possession for supply in law. He also appealshis sentence.(b) Ms Pieneman elected a jury trial on 29 December 2017 butsubsequently pleaded guilty on 26 April 2018 to theft by a person in aspecial relationship. She was sentenced in the District Court atAuckland to six months' supervision, 80 hours' community work andordered to pay reparations of $1,360.4 She appeals her conviction andsentence on the basis that she should have been discharged withoutconviction.(c) Mr Stratton-Pineaha elected a jury trial on 13 April 2018 butsubsequently pleaded guilty to aggravated robbery on 25 September2018. He was sentenced in the District Court at Napier to five yearsand two months' imprisonment.5 He appeals his sentence.[4] Ms Pieneman and Mr Stratton-Pineaha both contend that the correctjurisdictional pathways for their appeals lie to this Court. Mr Wirihana contends thathis appeal lies to the High Court.Jurisdictional pathways for appealsThe statutory provisions[5] This Court has always had supervisory jurisdiction over jury trial matters sothat appeals against jury verdicts have historically been heard by this Court regardlessof whether the trial was held in the District Court or the High Court. Prior to the3 R v Wirihana [2018] NZDC 24961.4 Police v Pieneman [2018] NZDC 25889.5 R v Stratton-Pineaha [2018] NZDC 26238.introduction of the CPA this was achieved through a jurisdictional pathway that sawappeals in respect of convictions on indictment heard in this Court, whether or not trialby jury was elected.6[6] The CPA abolished the indictable jurisdiction but retained the appeal pathwayto this Court for jury trial matters. Jurisdictional pathways for appeals are generallydetermined by whether the defendant elected a jury trial. Appeals against pre-trialdecisions made in the District Court, convictions entered in the District Court, costsorders made in the District Court and appeals on questions of law from a District Courtruling all lie to this Court if the defendant elected trial by jury.7 For sentence appeals,an appeal by an appellant who elected trial by jury and did not plead guilty before triallies to this Court, as does an appeal by an appellant who elected trial by jury butpleaded guilty before trial if the sentence exceeds five years' imprisonment (if thesentence is less than five years it is heard in the High Court).8 An appeal from theDistrict Court where the appellant did not elect trial by jury lies to the High Court,regardless of the sentence.9[7] Under the CPA jurisdictional pathways for appeals against conviction andappeals against sentence are provided for in ss 230 and 247 respectively. Prior to theintroduction of the CMA these pathways (and the pathways for appeals of the naturementioned above) were determined without specific reference to the effect of adefendant's withdrawal of a jury trial election. The CMA inserted ss 230(2) and247(2).10 They specifically address the situation where a person, having elected a jurytrial, subsequently withdraws that election as provided for by s 53 of the CPA.They do not, however, address the situation where a person who has elected a jury trialsubsequently enters a guilty plea without formally withdrawing the jury trial election.[8] Section 53 of the CPA provides a formal process for withdrawing a jury trialelection:6 Crimes Act 1961, s 383 (repealed by s 6 of the Crimes Amendment Act (No 4) 2011.7 Criminal Procedure Act 2011, ss 219, 230, 272, and 297 respectively.8 Section 247(1)(c) and (d).9 Section 247(1)(b).10 Courts Matters Act, ss 41 and 42. Equivalent amendments to ss 219, 272 and 297 were also made.53 Withdrawal of election(1) A defendant may not withdraw his or her election to be tried by a juryunless the defendant obtains the leave of the court under subsection(2).(2) A court may grant leave to a defendant to withdraw the defendant'selection to be tried by a jury, but only if—(a) the court is satisfied that there has been a change incircumstances that might reasonably affect the defendant'sdecision to elect a trial by jury; or(b) the court is satisfied that the withdrawal of the defendant'selection is unlikely to cause a delay in the defendant's trialbeing concluded; or(c) in the case of a defendant who is to be tried by a jury undersection 139(2)(a), the defendant's co-defendant is, orco-defendants are, no longer to be tried by a jury.(3) The court must not grant leave under subsection (2) after the jury trialhas commenced.[9] Section 230 provides the jurisdictional pathway for appeals against conviction:230 First appeal courts(1) The first appeal court for an appeal under this subpart is—(a) the District Court presided over by a District Court Judge, ifthe appeal is against a conviction entered by the District Courtpresided over by 1 or more Community Magistrates or 1 ormore Justices of the Peace; or(b) the High Court, if the appeal is against a conviction enteredby the District Court presided over by a District Court Judge,other than a conviction for—(i) a category 3 offence after the convicted personelected a jury trial; or(ii) a category 4 offence; or(c) either the Court of Appeal or the Supreme Court, in any othercase.(2) For the purposes of subsection (1), if a convicted person elected a jurytrial but subsequently withdrew his or her election before trial, theconvicted person must be treated as if he or she had not elected a jurytrial.[10] Section 247 provides the jurisdictional pathway for appeals against sentence:247 First appeal courts(1) The first appeal court for an appeal under this subpart is—(a) the District Court presided over by a District Court Judge, ifthe appeal is against a sentence imposed by the District Courtpresided over by 1 or more Community Magistrates or 1 ormore Justices of the Peace; or(b) the High Court, if the appeal is against a sentence imposed bythe District Court presided over by a District Court Judge andif—(i) the sentence was for a category 1 or 2 offence; or(ii) the sentence was for a category 3 offence and theconvicted person did not elect a jury trial; or(c) the High Court, if the appeal is against a sentence imposed bythe District Court presided over by a District Court Judge fora category 3 offence and if—(i) the convicted person elected a jury trial; and(ii) the convicted person pleaded guilty to the offencebefore the trial; and(iii) the sentence appealed against is not a sentence ofimprisonment exceeding 5 years; or(d) either the Court of Appeal or the Supreme Court, in any othercase.(2) For the purposes of subsection (1), if a convicted person elected a jurytrial but subsequently withdrew his or her election before trial, theconvicted person must be treated as if he or she had not elected a jurytrial.The position prior to the Courts Matters Act: Jackson v R11[11] Jackson v R concerned three appeals in which the question was whether theappellants' election of a jury trial affected the appeal pathway even if it had beenwithdrawn or where a guilty plea had been entered. One appellant had elected trial byjury in the District Court but at a pre-trial hearing, at which some charges werewithdrawn and the remaining charge amended to cover a more limited time period,pleaded guilty to the amended charge. The second appellant did not participate. Theother appellant (Mr Jackson) and a co-offender faced numerous charges of11 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144, upheld by a full court of the Court of Appealin Vohra v R [2018] NZCA 128.manufacturing and supplying methamphetamine. They both elected trial by jury, butMr Jackson's co-offender subsequently pleaded guilty to certain charges andMr Jackson was granted leave to vacate his election and elect trial before a judgealone.[12] On the question of whether the appeals lay to the High Court or to this Court,the Court held that if a jury trial election was either withdrawn or overtaken by a guiltyplea, this Court was the correct appeal court because:[18] By virtue of ss 230(b)(i) and 247(c), governing an appellant's rightsof appeal against conviction and sentence respectively, a defendant's electionof a jury trial triggers all consequential rights of appeal. As is made clear bythe Ministry of Justice's departmental report which preceded the CPA, theassumption underlying these provisions is that this Court should retainsupervision over jury trials, whether in the High Court or District Court.However, that policy rationale for retaining this Court as the first appeal courton either a conviction or sentence appeal disappears where a defendantchanges his or her election from trial by jury in the District Court to a judgealone trial.[19] Nevertheless, we agree that the plain words of both provisionsdictate jurisdiction according to the election, not subsequent events. Theelection, not the actual mode of subsequent trial, is the governing orcontrolling event despite the defendant's subsequent withdrawal of an electionof jury trial. That is so even where the consequence is a trial before a judgealone or no trial at all following a plea of guilty. While the High Court isnormally the first appeal court against a conviction entered by a District Courtjudge, the statutory exception substituting this Court as the first appeal courtcould not be more plainly expressed.(Footnotes omitted).The Courts Matters Act[13] The CMA came into force on 14 November 2018.12 As noted, the CMAamended ss 230 and 247 by specifying that an election that has been withdrawn is tobe treated as never having been made.13 The explanatory note to the Courts MattersBill stated that these amendments were intended to "reverse the effect of Jackson" by12 Courts Matters Act, s 2(1). The exception to this is a number of sections specified in s 2(1) and(2) as coming into force on a date appointed by the Governor-General by Order in Council. Thosesections are not relevant for the purposes of this appeal.13 Along with ss 219, 272 and 297. The amendments to ss 219, 272 and 297 (made by ss 40, 43 and44 of the Courts Matters Act) also provided that appeals commenced before the date on which thedefendant withdrew his or her election must be determined by the appeal court that had thejurisdiction to determine the appeal at the time it was commenced. This was not replicated inss 230 and 247."providing that if a defendant elects a jury trial and withdraws his or her electionsbefore trial, the defendant must be treated as he or she had not elected a jury trial".14The result would be that appeals in such cases would be heard in the High Court ratherthan this Court.[14] Whilst the amendment did reverse the effect of Jackson in relation to appealsthat follow the withdrawal of a jury trial election, it did not specifically address thesituation in which the election was not formally withdrawn but, rather, a guilty pleasimply entered before trial.The effect of a guilty plea following jury trial election on the appeal pathway[15] One view of the effect of the CMA amendments is that a guilty plea followinga jury trial election in the District Court is an implicit withdrawal of the election.If correct, that would mean that the appellant who simply pleads guilty after electinga jury trial in the District Court would be treated as never having made the election inthe same manner as if he or she had formally withdrawn the election under s 53. As aresult, the High Court would be the first appeal court.[16] This is the position taken by Mr Fairbrother QC, for Mr Wirihana. He arguedthat Parliament's intention was for the High Court to have exclusive jurisdiction as thefirst appeal court under s 247 (and similar provisions of the CPA) to advance thepurpose of the amendments to the CPA of improving the efficiency, effectiveness andtimeliness of criminal processes in the criminal jurisdiction.15 He pointed out thegreater convenience for parties in the High Court being the first appeal court becauseof easier physical access to High Court centres and the consequent economiesassociated with conducting appeals in those centres.[17] Mr Fairbrother also pointed out the potential for manipulation of appealpathways if the result in Jackson prevailed in cases where there was no formalwithdrawal of the election but only a guilty plea because a defendant could "select" a14 Courts Matters Bill 2017 (285–1) (explanatory note) at 8.15 At 1.desired appeal pathway through either withdrawing the election under s 53 or simplyentering a guilty plea.[18] Although we see the force in these points, we think there are flaws in thisapproach, which are evident when one considers the alternative view contended for byMr Brickell, for Ms Pieneman and Ms Brook, for the Crown, with which Mr Krebs,for Mr Stratton-Pineaha concurred. They argued that the amendment does not applyto appeals in which a jury trial election is followed by a guilty plea without the electionhaving been withdrawn formally. In such cases, the appeal pathway is as set out inss 230(1) and 247(1). In the present case, that would result in all three appeals beingheard in this Court. We agree with this approach.[19] First, one would expect that the reference in ss 230(2) and 247(2) (and the otheramendments mentioned in this judgment) to the withdrawal of a jury trial election tobe a reference to the formal statutory process available under s 53. Withdrawal unders 53 is available only with the leave of the court and in only in specifiedcircumstances.16 Whether leave is granted frequently depends on the extent of delaythat will result and the circumstances of co-defendants. Further, an election cannot bewithdrawn after the trial has commenced (for obvious reasons).17 In comparison, s 42of the CPA permits a defendant to change a not guilty plea to one of guilty at any time,including during trial.[20] The withdrawal of an election under s 53 is predicated on the assumption thatthere will still be a trial; in comparison, a guilty plea eliminates that possibility.Treating both as if they were instances in which the appellant "withdrew his or herelection" is not consistent with the language of the Act because it would see"withdraw" in s 53 and "withdrew" in ss 230(2) and 247(2) as having differentmeanings. There is no basis on which to conclude that Parliament intended itsreference to withdrawal to encompass such an entirely different step in the criminalprocess.16 Criminal Procedure Act, s 53(2).17 Section 53(3).[21] Secondly, treating a guilty plea as a withdrawal of a jury trial election wouldcut across s 247(1)(c) and (d) which expressly provide for the situation where anappellant elects trial by jury but then later pleads guilty. In that situation the firstappeal court where the sentence was imposed by a District Court judge is theHigh Court if the defendant elected a jury trial but then pleaded guilty and wassentenced to a term of imprisonment not exceeding five years.18 But in any other case,the first court of appeal is this Court or the Supreme Court.19[22] Mr Stratton-Pineaha's appeal is a good example of the difficulties that wouldarise if the interpretation contended for by Mr Wirihana was adopted. As noted,Mr Stratton-Pineaha elected a jury trial and later pleaded guilty and was sentenced tomore than five years in prison. Under s 247(1)(c) and (d) the first court of appealwould be this Court. But if s 247(2) applied to his situation, it would be the HighCourt. If s 247(2) were intended to capture this situation there would be no need fors 247(1)(c) at all.[23] Thirdly, as Ms Brook submitted, although the continued determination by thisCourt of appeals where a guilty plea has been entered may seem unnecessary there isa public interest in the Court doing so. The time constraints imposed on counsel andparties by the CPA mean that a jury trial election is a common default position, evenif it is likely that a guilty plea will ultimately be entered. Section 51 of the CPArequires a jury trial election to be made at the time a not guilty plea is entered unlessleave is obtained. If s 247(2) were interpreted as applying to sentence appeals arisingwhere a guilty plea was entered following a jury trial election a good many appealsthat would otherwise be heard in this Court would not reach it.[24] Appeals from conviction following a guilty plea are not uncommon and canarise, for example, in the context of appeals against the refusal to grant a dischargewithout conviction (as in the case of Ms Pieneman) and situations such as that assertedby Mr Wirihana. Such appeals and appeals against sentence for serious offendingallow this Court to provide appellate guidance on the issues arising. In relation tosentence appeals, in particular, there is benefit to first instance courts in appellate18 Section 247(1)(c).19 Section 247(1)(d).guidance on sentencing levels and other matters relevant to sentencing, such asdiscounts for mitigating factors.[25] We are therefore satisfied that ss 230(2) and 247(2) of the CPA (and theequivalent amendments to ss 219, 272 and 297) do not apply to appeals that arisewhere the appellant entered a guilty plea, having previously elected a jury trial andwhere that election was not formally withdrawn under s 53. Those provisions onlyapply where there has been a formal withdrawal of the jury trial election under s 53.[26] The result is that ss 230(2) and 247(2) do not apply to the three appeals withwhich we are concerned, all of which will be heard in this Court.Application of Courts Matters Act for transitional period[27] There are no transitional provisions in the CMA in relation to ss 40–44 of thatAct.20 A question therefore arises as to which appeals before this Court theamendments introduced by the CMA apply to. However, as a result of our conclusionthat the entry of a guilty plea does not amount to the withdrawal of a jury trial electionfor the purposes of ss 230(2) and 247(2), the appeal pathways that apply to theseappeals are those set out in ss 230(1) and 247(1). Under those provisions all theappeals lie to this Court. The second question therefore has no impact on these appealsand, in anticipation of the issue being considered in more depth by this Court in animpending appeal,21 we prefer not to express any conclusive view on this matter.Result[28] This Court is the first appeal court for the purposes of these three appeals.The appeals are to be set down for hearing.Solicitors:Crown Law Office, Wellington for Respondent20 Except for, as mentioned above at n 13, the specification in the amendments to ss 219, 272 and297 of the Criminal Procedure Act that any appeal commenced before the date on which thedefendant withdrew his or her election must be determined by the court that had jurisdiction todetermine the appeal at the time it was commenced.21 Angus v R CA190/2019. This case is due to be heard by a permanent court on 20 August 2019.