There are times when the Court of Appeal allows an appeal against conviction but the prosecutor thinks that a mistake of law was made by that Court. If the prosecutor has no right of appeal from that decision, as is usually the case, it would be unsatisfactory if the Court of Appeal’s supposed error were to become a precedent. To meet that, while preserving the result of the appeal that had favoured the defendant (appellant), the Solicitor-General may seek the leave of the Supreme Court to refer a question of law for the decision of that Court.
This happened, leave was granted, and the question of law was answered in Solicitor-General’s Reference (No 1 of 2023) [2023] NZSC 151. The result was that the Solicitor-General’s argument, that the Court of Appeal had made a mistake, was accepted by the Supreme Court.
At its most general, this decision illustrates how both the law and the facts must be considered when determining whether an acquittal for one offence prevents conviction for another [56].
More specifically, the acquittal at jury trial of one person on a charge of robbery by violence did not prevent conviction of another person in the same incident for robbery committed together with that acquitted person. These are different charges: using violence in the course of robbery, and being together with another person and committing robbery. The legislation is set out at [57] of the judgment.
The circumstances of the first person’s acquittal at jury trial were important. Juries do not give reasons for their verdicts, so in the circumstances here the acquittal could have been because use of violence was not proved [61]. Indeed, the defendant at this trial had given evidence that he did not use violence, and this could have been consistent with what a prosecution eyewitness had said [29]-[30]. If that was the reason for the acquittal, there could still have been a robbery, just not one of the kind alleged.
The second person, whose conviction was quashed by the Court of Appeal (and without ordering a retrial because the sentence had been served), had earlier pleaded guilty to the robbery in the “together with” form. Despite his plea, he appealed the conviction. Appeals against conviction after guilty plea are only allowed if maintaining the conviction could amount to a miscarriage of justice [39], [45]-[46].
The Supreme Court held that the Court of Appeal had been wrong to allow the appeal here. The Court of Appeal had thought that the acquittal of the first defendant meant that there had been no robbery [33]-[34], so the second defendant could not have committed a robbery together with that person. The Supreme Court pointed out that two different kinds of robbery were alleged, and that the acquittal of the first person at trial had no effect on the second person’s conviction arising from the plea of guilty.
This was not a controversial result. Counsel appointed to assist the Court [8], was in agreement with counsel for the Solicitor-General [35]-[36]. As the Court emphasised [1], [63], the result did not affect the quashing of the conviction by the Court of Appeal.
Just about everyone was happy.
