Convictions arising from "the same facts": availability of the special plea of previous conviction

Whether a plea of previous conviction is available depends, in New Zealand, on the application of s 46 of the Criminal Procedure Act 2011. In particular, the phrase “arising from the same facts”: does the present offence arise from the same facts as an offence for which a conviction has been entered?

I used to think that this has the effect of requiring the prosecutor to allege all the relevant offences in the one proceeding, to avoid dragging things out with multiple separate prosecutions.

However, it has been made clear by the Court of Appeal that it is necessary to examine the essence of each charge and to compare the facts needed for proof to see to what extent there is an overlap. Some overlap will occur, but is it an overlap to the extent of giving rise to “sameness”? See Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796.

A clear explanation has been given recently (31 August 2021) in Mitchell v Police [2021] NZCA 417. The Court adopted Venn diagrams as suggested by counsel. The issue was whether a conviction for driving with excess breath alcohol was a bar to conviction for driving on the same occasion contrary to the terms of a zero alcohol licence. The common fact was driving with alcohol in the breath (not per se an offence). The offences were held not to arise from the same facts, because in essence the breath alcohol offence arose from the level of alcohol in the driver’s breath, and the licence offence arose from the zero alcohol terms of the licence.

The Court noted at [36] that it did not favour the analysis which seems to have found favour with the Supreme Court of South Australia in two cases advanced by the appellant: Arthur v Police [2008] SASC 213, (2008) 101 SASR 529 at [42] and Jones v Police [2019] SASC 36, (2019) 135 SASR 255 at [51].

Update: on 14 December 2021 the Supreme Court granted leave to appeal.

Another update (7 July 2023): It is now over a year since the Court heard oral argument on this appeal. In the interests of free discussion, I offer the following observations:

1. In this case the charges were filed at the same time and pleas were taken on the one occasion. Usually, charges would be read and pleas entered, a prosecution summary of facts would be read, and the bench would invite submissions before deciding whether convictions should be entered (and if they were entered, they could nevertheless be provisional if an application for a discharge without conviction was to be made). If convictions were entered, the judicial officer would usually enter those by the speech-act of announcing that "on each charge the defendant is convicted". That is, convictions would be entered simultaneously, not sequentially, and no question of there being a previous conviction would arise. But here, as described at [17] of the CA judgment, the judge suggested a plea of previous conviction to the second charge. This unusual intrusion into the decision on plea set this particular ball rolling. However, it did create an opportunity to resolve an important issue: does sequential entry of pleas on one occasion create opportunities for entry of pleas of previous conviction?

2. The application of the rules concerning previous acquittal and previous conviction in ss 46 and 47 of the Criminal Procedure Act 2011 to sequential, not simultaneous convictions, is apparent in the phrases in (for example) s 46: "has been convicted", "currently charged", "was convicted", and "not readily available ... at the time the charging document for the more serious offence was filed". This reflects the policy of promoting finality, which is the main policy underlying the protections against double jeopardy.

3. The appellant correctly submitted on this appeal that the focus of s 46(1)(b) is on the facts rather than the offending. But the reference is to "those facts", and the issue is how broadly to construe that phrase. It seems to me that this points to the date and time of the commission of that offence and of the obtaining of the information about it by enforcement authorities. This is consistent with the exception delineated in s 46(2)(b). Construing "those facts" broadly in this way is also consistent with the breadth of the expression "any other offence" in s 46(1)(b).

4. In this case the question becomes, what information was obtained when the appellant was apprehended? He was driving on a road, he had an alcohol level over the limit, he was in breach of his zero-alcohol licence.

5. The appellant was properly charged with two offences and could have been simultaneously convicted of both. But it would have been a breach of s 47 if he had been charged with and convicted of one of those offences and later, perhaps after he had served his sentence for that, charged with the other. The second offence arose from the same facts as the first.

Update: Mitchell has been decided, as noted here on 11 August 2023.

Registrars and disputed bail conditions

In New Zealand we have no statutory right of appeal against a decision of a court registrar concerning bail. Registrars may determine what, if any, conditions are to be imposed in a grant of bail, pursuant to s 27(2) of the Bail Act 2000. The relevant appeal provision, s 41, does not refer to appeals against decisions of registrars.

I have always thought that a bit strange. True, registrars can only deal with bail if the prosecutor consents, but what sort of safeguard against onerous bail conditions is that?

And in the real world, a defendant may well decide to sign an onerous bond and get out of court as soon as possible, instead of waiting to have the registrar’s decision challenged. I have heard defendants say, “Nah, fuggit, I’m out of here.”

I asked the Minister of Justice in 2012 whether there should be clarification of this in the Act. After seeking the advice of “officials” she replied to the effect that no action was considered necessary.

The inference is that registrars should only impose bail conditions with the agreement of the defendant - although in the aforementioned reality freedom of choice is somewhat limited. And what if a registrar decided to impose a condition over the objection of the defendant?

Matters such as these have received some clarification in a recent case that is primarily concerned with the inherent power of the judges of the District Court to supervise and direct registrars in the conduct of judicial business: District Court at Christchurch v McDonald [2021] NZCA 353 at [38]: 

“… Parliament’s expectation was that while registrars would assist judges by determining some bail applications, that undertaking would remain subject to usual judicial oversight and supervision.”

Clearly, Parliament failed to put its intention into statutory words, presumably having confidence that we would play the game and guess at this.

Rights of appeal are statutory, and it is most unlikely that anyone would have thought to have resort to submitting that a judge of the District Court has inherent power to hear appeals. Indeed, the position alluded to in McDonald, which was really all about the power of a judge of the Family Court (a division of the District Court) to remove bail decisions from registrars, seems to be that the Chief Judge of the District Court would issue a direction that if a defendant objected to a proposed bail condition the registrar would, instead of making any decision, refer the issue to a judge.

This would avoid the suggestion of any appeal or a review. Indeed, review would be inappropriate because it would assume a degree of discretion exercised by the registrar and the judge would only intervene if that discretion had been exercised unreasonably. Far better for the judge to approach the question of bail de novo.

To ensure the point is not buried in the stack of judgments, a practice direction should be published so that, in the event that a registrar may be unaware of the proper practice, the procedure could be pointed out to that person.

Bail conditions that a defendant may think are onerous are usually imposed to help the defendant avoid getting into further trouble. People for whom that is a rather subtle point would be assisted if it were made by a judge rather than a registrar. McDonald speaks of judges, not mentioning the other judicial officers of the District Court: Justices of the Peace and Community Magistrates. Putting disputed bail matters before judges would be the most efficient course, because judges hear appeals from determinations of the other judicial officers, so the issue will end up with a judge anyway.

Update: The Supreme Court refused leave: McDonald v District Court at Christchurch [2021] NZSC 149 (5 November 2021), saying at [11] that it was not persuaded that it was arguable that the Court of Appeal had been wrong in the way it addressed the issues.