The plea of previous conviction: Mitchell v Police [2023] NZSC 104

Protection against double jeopardy can be given by statute and by common law. Statutory protection can exist in the form of provisions for pleas of previous conviction or previous acquittal, and by a right not to be tried or punished for an offence for which a final conviction or acquittal has been entered. Common law protection can take the form of a stay of proceedings to prevent abuse of process, or in the sentencing process by the avoidance of double punishment, or in the plea of autrefois convict to the extent that it has not been replaced by legislation.

Statutory rules concerning the plea of previous conviction can be difficult to interpret and apply. Such difficulties in New Zealand law are surveyed in Mitchell v Police [2023] NZSC 104 (11 August 2023). The relevant provision here is s 46(1)(b) of the Criminal Procedure Act 2011.

The issue is quite simple, as is the Court’s application of its interpretation of the legislation: [2], [68]-[69]. Arriving at the correct interpretation of the legislation was not entirely straightforward, and the Court noted at [63] that there is “some opacity” in the drafting of s 46(1). The phrase “arising from the same facts” marks a change from the previous legislative focus on the elements of the charges, in favour of placing the facts as central to the inquiry. And here, it is “substantial” similarity that is required: in s 46(1)(b), “those facts” means substantially those facts, and what is required is substantial similarity in the acts that make the charges punishable.

So, Mr Mitchell’s charges referred to common acts (driving, with some alcohol in his breath: [67]) and to facts that made each charge punishable (having a breath alcohol level in excess of the legal limit, and having any alcohol in his system in breach of his zero alcohol licence). Those punishable facts were different for each charge, and there was nothing unlawful in his being convicted on each [69].

Substantial sameness does not include single acts that have several victims ([64] and footnote 90). But it probably includes facts which are accompanied by different mental elements ([64] footnote 89, but Ellen France J had some reservations about this [78]).

Section 46(1) has changed the law by reforming the very narrow approach to the availability of the plea of previous conviction that some authorities had applied: [62], [46]. This means that, for example, the following charges (in Hickson, referred to at [46]) would now be held to arise from substantially the same facts: (a) selling liquor in licensed premises when such premises were directed to be closed; (b) exposing liquor for sale in such premises during such a period; and (c) opening such premises for the sale of liquor during such a period.

The Court in Mitchell uses that example to illustrate the former law’s rejection of the plea of previous conviction where a “subtle difference” between the elements of the offences could be discerned [45]. Again, referring at [47] to Brightwell, the offences of presenting a firearm without lawful and sufficient purpose, and by (substantially) the same act threatening to do grievous bodily harm, were a further illustration of the subtle difference that would no longer be recognised. Pursuant to Mitchell, the approach would now be to ask whether the punishable act for each offence is substantially the same, the answer for Hickson and Brightwell being yes it was in those cases.

Ellen France J, concurring but for slightly different reasons, thought it is questionable whether s 46 places a controlling role upon the facts [76]. The point here is that the elements of the offences will “in most cases” (see footnote [94]) assist in defining the necessary facts for the purposes of s 46. She also had reservations about the use of the concept of common punishable act [77].

And, I add for law students to consider: When are the punishable acts “substantially” the same for each offence? If the difference between exposing liquor for sale and selling that liquor is too subtle to exclude the plea of previous conviction (Hickson as reviewed in Mitchell), why isn't the difference between having alcohol in the breath when driving and having excess alcohol in the breath on that occasion too subtle to exclude the plea? Will the rejection of the search for subtle differences in the elements of the offences lead to a search for subtle differences in the punishable acts for each, as grounds for rejecting the plea of previous conviction? And would that be objectionable? Has the precedent value of future cases on this topic been reduced by the mandated emphasis on facts, and, if so, is that consistent with the rule of law?

Fair trials for unrepresented defendants - the use of amici curiae in Canada

In Canada, an amicus curiae may perform a variety of functions, limited by the role of an amicus as a “friend of the court”: R v Kahsai, 2023 SCC 20 (28 July 2023) at [40]. The duty of loyalty to the court must always be upheld, whatever the functions that the judge gives an amicus in an individual case. Therefore, the amicus has no duty of loyalty to a defendant, and is not in a solicitor-client relationship with a defendant. The amicus cannot be dismissed by the defendant. When required to advocate for the defendant, the amicus still does not represent the defendant. The amicus cannot be given functions that undermine the judge’s impartiality, for example by making strategic decisions to assist the defendant ([41]-[42]).

The right of a defendant to self-represent is important, and this may restrict what an amicus can do. Decisions on plea, mode of trial, whether to give or call evidence, and what defence to rely on are decisions that must be left to the defendant. But those decisions must be informed and reality-based, and made within the confines of the law. So, evidence can only be given in accordance with the law of evidence, and only defences that are lawfully available can be advanced by the defendant. Nor can the defendant require an amicus to act unethically. The defendant’s decisions on the conduct of the defence must be respected even though an amicus may have made different decisions. But the judge may require the assistance of the amicus in testing the evidence of prosecution witnesses, although this may require a fine balancing against the defendant’s right to control the defence. Within the limits of the strategic choices made by the defendant, the amicus should always be entitled to test the strength of the prosecution case ([43]-[46], [49]).

Avoiding imbalance in the adversarial process when a defendant is unrepresented by counsel puts a trial judge under a duty to ensure the proceedings respect the defendant’s fundamental rights. However, judicial help must not have the appearance of undermining impartiality [54]. The prosecutor also has duties of ensuring the fairness of trials [55], particularly in relation to ensuring that unrepresented defendants know about their rights to obtain disclosure [56]. The appointing of an amicus may be necessary where the duties of judge and prosecutor in relation to unrepresented defendants cannot go far enough to achieve trial fairness or the appearance of fairness. For example, where a defendant, although fit to stand trial, displays symptoms of mental health challenges, or simply refuses to participate in the trial ([57]-[58]).

Appointments of amici are reserved for exceptional circumstances and are not routine. Relevant considerations will be the nature and complexity of the charges, the mode of trial (judge alone or jury), the attributes of the defendant, the need for assistance in advancing the defence case or in testing the prosecution evidence, and the extent to which the judge and the prosecutor can provide assistance ([60]-[61], [64]-[66]).

In New Zealand we address the ways in which assistance may be given by counsel appointed by the court by categorising such counsel as special advocates, independent counsel, amici curiae, and standby counsel. Read more about this in Jeremy Finn and Don Mathias, Criminal Procedure in New Zealand (3rd ed, 2019, Thomson Reuters Ltd, Wellington) at [11.5]. Go on, you know you want to.