Fair process and choice of mode of trial

In S(SC 36/2018) v R [2018] NZSC 124, (the Court of Appeal decision is noted here on 5 May 2018) the defendant had not been told that a judge-alone trial was available, and he was convicted following trial by jury.

The Supreme Court delivered two judgments: William Young, O’Regan and Ellen France JJ jointly (delivered by Ellen France J, paras [1]-[86]), and a concurring judgment by Glazebrook and Arnold JJ (delivered by Glazebrook J, paras [87]-[99]). The appeal was dismissed.

The error was not jurisdictional ([46], [91]), for the court had jurisdiction to try the charges by either mode, and the error did not render the jury trial a nullity. It was a procedural error, and the issue on appeal was whether it had rendered the jury trial unfair. Was it unfair to try the defendant by jury, when he had not been aware of his right to a judge-alone trial?

The jury trial had been conducted fairly ([34], [96]). The defendant would have been advised to elect trial by jury ([54], [98]). There was no reason to think this was unsound advice ([56]). He had not demonstrated that he would have rejected that advice at the time it was given. On these facts there was nothing to suggest that an unfair procedural course had been taken ([83], [98]).

On different facts, if a defendant had been unaware of the right to elect trial by jury, that would amount to loss of an important statutory right, and such an error might, depending on the circumstances, amount to an unfair process rendering the judge-alone trial unfair ([99]).

So there could be circumstances where absence of advice on election of mode of trial would result in unfair process, but those did not exist in the present appeal ([96]).

There are some areas of vagueness. As far as nullity is concerned, a threshold is mentioned ([45]-[46]). This suggests some flexibility in the concept of nullity, and the cases cited indicate differing approaches and various circumstances. Nothing was resolved about that in this appeal, so the references to some of the other cases could be called excessive and perhaps even confusing. Cases interpreting different legislation need to be shown to be relevant, and older references to the overlapping of nullity and miscarriage of justice, and to degrees of nullity, do not seem relevant to s 232 in which attention is confined to three alternative ways in which a miscarriage of justice may occur: where there is a real risk that the outcome of the trial was affected, or where the trial was unfair, or where the trial was a nullity. Too much discussion of authorities calls to mind the amusing confession of having heard, “second hand”, that “a former clerk once referred to one of my judgments as ‘over-researched as usual’”: see Justice Susan Glazebrook, “Academics and the Supreme Court” (2017) 48 VUWLR 237 at 239. In this case it's the other judgment that seems rather overwrought.