On rare occasions you read a dissenting judgment that is reasoned with such brilliant clarity that you may bruise your hands in applauding.
So it is with S (CA377/2017) v R [2018] NZCA 101 (19 April 2018).
Counsel had not told the defendant that there was the option of having a judge alone trial (JAT) and, without consulting the client on the matter elected jury trial on his behalf.
After being convicted at trial the client became aware that he could have had a JAT, and deposed that he would have chosen that mode of trial if the matter had been discussed with him.
What was the status of the error? Under s 232 of the Criminal Procedure Act 2011, if it rendered the trial unfair it would be unnecessary to show that it had affected the outcome of the trial.
The majority two judges of the Court of Appeal held that the error did not render the trial unfair, and this was the point on which one judge dissented.
In the absence of local case law, the majority were guided by the Supreme Court of Canada in R v Turpin [1989] 1 SCR 1296, the Supreme Court of the United States in Singer v United States 380 US 24 (1965), and the High Court of Australia in Brown v R (1986) 160 CLR 171.
This led to the position that, as there was no “right” to a JAT, but only a right to elect jury trial (with JAT being the default position – what one might think of as the factory setting), the trial was not unfair in terms of s 232(4)(b). Patience with subtlety is necessary to follow the reasoning.
Nor, said the majority, was the error fundamental because it had not been included in a list of fundamental errors compiled in an earlier decision of the Court. (But, as the dissenter observed, neither had it been specifically excluded.)
And there was nothing to indicate that the error had affected the outcome of the trial.
It would be wrong for counsel to rely on the majority judgment as permission to avoid taking instructions on election of jury trial whenever there is a choice to be made, pending resolution of the issue in the Supreme Court (in this or a similar case). The Court certainly did not intend to give permission to make errors.
The dissent essentially takes the position that, just as it would be a fundamental error to fail to inform a defendant of the right to elect jury trial, so too is it a fundamental error to fail to inform a client of the option of judge alone trial. It fits with other fundamental errors identified in Hall v R [2015] NZCA 403 at [65]: decisions as to plea, giving evidence, and presenting a defence, and with the duty referred to at [71].
There was no doubt that the jury trial that happened in this case was in its substance fair. What s 232(4) relevantly requires, to amount to a miscarriage of justice, is an error in relation to the trial that resulted in an unfair trial. An “unfair trial” is not defined, but there could be two types of unfairness: substantive and procedural. Is a trial procedurally fair if it proceeds in a mode that was not, when there was a choice, chosen by the defendant?
Another, and probably better, way of looking at this is to ask whether the error rendered the jury trial a nullity. Is the defendant's decision a jurisdiction-creating act? The default mode of trial, judge-alone, occurs without a decision from the defendant, and the jury mode is only activated by the defendant's election. This legislative scheme is consistent with jurisdiction to have a jury trial being created by the defendant's act, and such a trial being a nullity in the absence of such act. At this point you may well be asking, "But Don, what about the Kable case you discussed here on 7 June 2013?"
Update: on 30 July 2018 the Supreme Court granted leave to appeal on the question whether the Court of Appeal was right to dismiss the appeal on the mode of trial point: [2018] NZSC 64, and on 20 December 2018 the Court dismissed the appeal: S (SC 36/2018) v R [2018] NZSC 124, noted here.
