Drollet v Police [2003] CKCA 2; CA 10.2003 (2 October 2003)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND NEW ZEALAND

CA 10/03

IN THE MATTER OF
Article 60(1), 60(2)(c) and (d) and
60(3) and Part IVA of the
Constitutions and Rule 17 of the
Court of Appeal Rules

BETWEEN:

EDWARD DROLLET
Applicant

AND:

THE POLICE
Respondent

Hearing: 26 September 2003.

Coram: Casey JA (Presiding)
Smellie JA
Williams JA)

Appearances: N. George for Applicant
J L Mullineux for Respondent

Judgment: 2 October 2003

JUDGMENT OF THE COURT

Background

[1] The Applicant/Appellant faced seven separate counts with a co-accused under ss 5 and 6 of the Secret Commissions Act of 1994/5 and joint charges of forgery under s287 of the Crimes Act 1969. Both accused pleaded not guilty and elected trial by judge alone.

[2] The trial commenced before Smith J in the High Court Rarotonga on 30 June 2003. Evidence was led for the prosecution from a number of witnesses but on the 2 July 2003, approximately three quarters of the way through the hearing of the prosecution's evidence, both accused changed their pleas and pleaded guilty to all charges. However, on the 3 July 2003 the Appellant, who had by then terminated the retainer of his two counsel and retained present counsel, applied by way of a formal written application for leave "to abandon all pleas of guilty to all charges... and to enter a plea of not guilty to all charges and to elect a trial by jury." The application was based on the explicit contention that there would be a totally new trial.

[3] The trial judge, in the exercise of his discretion under s68 of the Criminal Procedure Act, granted the application for leave to amend the plea but decided pursuant to s16 of the Judicature Act that the trial must proceed to its end before him. Section 16 of the Judicature Act reads as follows:

(1) On the trial of any defendant for any offence punishable by imprisonment for a term exceeding 6 months, not being an offence to which section 14 of this Act applies, the person charged may before the charge is gone into but not afterwards, elect whether the Judge shall sit with or without a jury. Before the defendant is called upon to make his election under this subsection, the substance of the charge shall be stated to him.

The Judge ruled that since the charge had been gone into there was no jurisdiction to allow the change in the election.

[4] The Appellant on 22 July 2003 applied for special leave to appeal against the refusal of the Judge to:

[1] order a new trial; and

[2] allow fresh election, of trial by jury, after allowing new pleas of not guilty to be entered; and

[3] to recuse himself from the trial after being privy to the guilty pleas.

[5] The application for leave to appeal was advanced:

UPON THE GROUNDS of the general right of Appeal pursuant to article 60(1) of the Constitution, as of right pursuant to articles 60(2)(c) and (d) and a further right to appeal pursuant to article 60(3), AND UPON THE FURTHER GROUNDS that his Honour's decision has disadvantaged the Applicant to a fair trial guaranteed by part IVA of the Constitution's Declarations of Fundamental Human Rights and Freedoms article 64(1)(b) of the Cook Islands Constitution Act 1964 as amended by the Constitution Amendment Act (No. 9) 1980-81 and UPON THE FURTHER GROUNDS THAT:

1. THE LEARNED judge failed to give proper weight to the fact that the Applicant was successful in obtaining an order granting him leave to withdraw his plea of guilty.

2. The learned Judge failed to give proper weight to the reasonable apprehensions that it would be difficult for the Applicant to obtain a fair trial from a Judge who was aware that he had previously pleaded guilty and was ready to sentence the Applicant on the 2^nd of July 2003 but for the intervention of defence counsel to ask for a probation report which would otherwise conclude the trial.

3. The interest of justice require that the Applicant be given an opportunity to be tried by a jury who do not know that he has previously pleaded guilty.

4. To the extent that it was proper to permit the Applicant to change his pleas, it follows that he should have the benefit of a fresh trial before a tribunal, which could not be thought to be influenced by the fact of his change of plea.

5. An accused who pleads not guilty is entitled to be tried by a tribunal of fact, which has no knowledge of any prior inconsistent plea.

6. Where there are reasonable grounds for concluding that the Applicant might not have been properly advised in relation to his plea and the advice he received in relation to the election for trial by a Judge alone was from the same source, he ought to be permitted to change his election especially if the interests of justice are not substantially prejudiced.

7. The Applicant is entitled to a re-trial upon the grounds that a co-defendant had changed his plea in the course of the trial, where to continue the trial would result in an injustice to the Applicant.

8. Due to the unsatisfactory nature of witness cross examination where critical issues such as witness bias and unprofessional conduct were not tested by defence counsel, it is the wish of the new counsel for the defence to apply a recall of all witnesses for further cross examination which if all matters are taken into account for a fair and just trial to take place, a new trial may as well be ordered, taking into account all surrounding facts and circumstances.

THIS APPLICATION is made in reliance on Articles 60(1), 60(2)(c) and (d) and 60(3) and Part IVA of the Constitution and Rule 17 of the Court of Appeal Rules.

Jurisdiction

[6] In the course of argument it became clear that the sole and only possible basis for suggesting jurisdiction was the combined effect of Article 62(2)(e), and Article 60(3). Article 60 reads as follows:

60(1) Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to hear and determine any appeal from a judgment of the High Court.

(2) Subject to the provisions of this Constitution, and except where under any Act a judgment of the High Court is declared to be final, an appeal shall lie to the Court of Appeal from a judgment of the High Court-

(a) As of right, if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of this Constitution;

(b) As of right, from any conviction by the High Court in the exercise of its criminal jurisdiction whereby the appellant has been sentenced to death or to imprisonment for life or for a term exceeding 6 months or to a fine of not less than $200 and from any such sentence (not being a sentence fixed by law);

(c) As of right, when the matter in dispute on the appeal amounts to or is of the value of $400 or upwards;

(d) As of right, from any judgment of the High Court involving any question as to the interpretation or application or effect of any provision of Part IVA of this Constitution;

(e) With the leave of the High Court in any other case, if in the opinion of that Court the question involved in the appeal is one which by reason of its general or public importance, or of the magnitude of the interest affected, or for any other reason, ought to be submitted to the Court of Appeal for decision.

[(3) Notwithstanding anything in subclause (2) of this Article, and subject to such limitations as may be prescribed by Act, the Court of Appeal may in any case in which it thinks fit and at any time, grant special leave to appeal to that Court from any judgment of the High Court, subject to such conditions as to security for costs and otherwise as the Court of Appeal thinks fit.]

(4) In this Article the term "judgment" includes any judgment, decree, order, writ, declaration, conviction, sentence, or other determination.

[7] In his submission before this Court counsel for the Respondent noted that the Cook Islands Court of Appeal, like the New Zealand Court of Appeal is a creature of statute and has only the powers of appeal provided for by statute: R v Watson [1999] NZCA 110; [1999] 3 NZLR 257 at 258 para 4. He submitted that there was no right of appeal at this stage of the proceedings. To qualify under article 60(3) via article 60(2)(e), the question must be one of "general or public importance" or affect some sizeable interest or "for any other reason." This last ground must, it was submitted, be treated sui generis as implying some element of considerable legal significance if it is not to amount to a general right of appeal on any ground whatsoever. Counsel for the Respondent further submitted that the point at issue could not be described as of any importance. Moreover, considerations of legal policy militated against the interpretation of Article 60(3) as providing a right of appeal against any order during the trial. It was contended that the following reasoning from a full bench of the New Zealand Court of Appeal in R v Coleman [1996] 2 NZLR 525 at 527-528 relating to pre-trial appeals applied mutatis mutandis to the present situation of appeals in the course of a trial:

There are good reasons for confining the availability of s379A [ie granting rights of appeal to the NZ Court of Appeal] and restricting appeals against pre-trial rulings. The importance of trials being processed expeditiously is now well recognised. The achievement of that aim is not helped by the proliferation of pre-trial applications, sometimes not designed to that end, and the need to accommodate subsequent appeals if the intermediate right to appeal is generally available.

[8] The Court considers that there is much force in these contentions and it would be loath to establish a precedent which might encourage pre or mid-trial appeals in criminal cases. However, it accepts that the right to elect a trial by jury is an important right. As was said by Haslam J in Ratu v Harlow [1960] NZLR 861 at 864:

While there is no necessity to embark upon a critical assessment of the history and place of the jury in the administration of our criminal law, a field adequately surveyed in recent times by Sir Patrick Devlin in Trial by Jury (Hamlyn Lecture series), it is sufficient to repeat that where the Legislature has not in clear language reduced the privileges of an accused person in that regard, the relevant enactments may safely be construed in a manner that preserves the long established right to have his guilt or innocence determined by twelve fellow citizens.

[9] Nevertheless, there is no doubt that this fundamental right to elect trial by jury was accorded to the appellant at the commencement of his trial and he duly made his election. What was in essence being submitted on his behalf was that a second fundamental right arose on a change of plea to guilty followed by a reversion to a plea of not guilty. On this footing we do not consider that the matter is of sufficient general importance to justify granting leave to appeal under Article 60(3). Nevertheless, we have decided that it would be appropriate to express our views on the substantive issue since there appear to be no authorities on the matter either in the Cook Islands or in New Zealand and because it is desirable that some guidance should be given in case such a situation arises again.

The precise sequence of events

[10] Before addressing the legal contentions of the Appellant it is desirable to record the precise sequence of events when the Appellant changed his plea. Fortunately there is a complete record of what occurred, amplified in one minor respect by the agreed recollection of counsel. When the matter came before Smith J on 3 July 2003 Mr George made the application to which reference has already been made in paragraphs [4]-[5] above. The grounds of the application were:

[1] First, that there was a right to change the plea with leave of the Court pursuant to s68 of the Criminal Procedure Act 1980-81.

[2] Secondly, that the Applicant held the view that his case had not been adequately handled by his former counsel and that his original decision to elect trial by judge alone and a change of plea of guilty was that of his counsel and not himself.

[3] Third, when evidence in his defence was presented before Judge and Jury he had a reasonable chance of being acquitted and that there were legal and factual defences available to him which would be utilised for his defence at a future trial.

[11] The learned Judge first dealt with the right to change of plea and readily granted the application. At that point the Judge asked the accused to stand so that the charges could be read. The Court clerk read the first charge and when asked to plead the appellant entered a plea of not guilty. At that stage it appears that, by agreement between counsel and the Court, it was resolved not to read out all of the charges. The Court record states:

Court: You are not guilty on all of the charges against you?

Mr Drollett: Yes.

[12] Thereafter the Court invited submissions from counsel for the prosecution in respect of the application to change the election. Counsel submitted that there was no provision for a stop in the trial and referred to s16 of the Judicature Act.

[13] On this basis counsel for the prosecution submitted that "there is nothing to be done for the accused, he must wait until the trial is over and then if he is unhappy with the result he must bring an appeal but the trial must proceed to its end as the law provides". In response, counsel for the Appellant argued that "the trial ended last Tuesday". The Court then drew attention to the fact that section 16 said that a plea could only be changed before the case is gone into which counsel for the Appellant replied-

"Well, your Honour, our interpretation is that we are about to embark upon a new trial, that the other trial was over...."

[14] Counsel for the appellant referred to various elements of the articles of the Constitution and the right to fairness but the Judge ruled that the question of fairness went both ways. The prosecution had not completed giving its evidence and the plea of guilty had pre-empted the rest of the evidence. He ruled that the prosecution were entitled now to bring that evidence and bring the trial to a close. The trial had not ended and he was bound to continue the case. At that point counsel for the Appellant placed on record that the ruling would be appealed.

[15] It is readily apparent that the major hurdle facing the appellant is the statutory qualification on the change of election namely that the election, may only be changed "before the charge is gone into but not afterwards". In Ratu v Harlow [1960] NZLR 861 the circumstances were that before the charges were gone into, the defendant was informed of his right to elect trial by jury. The defendant at that stage was not represented by counsel and elected to be dealt with summarily and pleaded guilty to both charges. He was duly convicted on his plea of guilty and remanded to appear for sentence. He then retained counsel and after investigation counsel formed the opinion that the defendant had a defence. Accordingly he applied for leave to withdraw the pleas of guilty. This was refused by the Magistrate who held that he had no jurisdiction to grant an accused person the right to change an election once a plea had been made. In the High Court it was held that it was open to the defendant to elect trial by jury having changed his plea even though he had earlier elected to be tried summarily. Haslam J said at page 861:

The phrase "before the charge is gone into" also appears in s66(l) and (2). It is the customary practice to take the election before asking for the plea (R v Cockshott (supra)), but, in my view, a defendant who has been allowed to withdraw his plea of guilty and thereupon is entitled to claim that, for practical purposes, the charge has not been gone into, can also claim to be still entitled to exercise his right of election. Such a construction best ensures the attainment of the object of the sections under review.

[16] Counsel for the Appellant relied on the fact that one of the charges had been put to the Appellant by the Court. He contended that having done so he was bound by s16(2) to put the election.

[17] On this basis it was submitted that the failure to address the election paved the way for a new trial after the guilty plea was withdrawn so long as it had been done, as it had here, before sentencing. It was further submitted that:

11. ...after the guilty pleas, it would be difficult to persuade the trial Judge to take a fresh approach to defence arguments and could lead to a miscarriage of justice, unless the trial Judge is recused from further participation. It would be an uphill task to persuade the trial Judge to disregard evidence which may be unfair, prejudicial or untested by defence counsel at the earlier hearing.

12. A fresh trial with a new Judge presiding, will mean there will be no prejudging of known facts.

13. It is submitted that the interests of justice require the appellant to be given the opportunity to elect a new trial by jury, otherwise there will be a substantial miscarriage of justice.

[18] We are unable to accept these submissions and we accept the Respondent's contention that the learned Judge had no power to discontinue the trial. The trial was not concluded until sentence had been passed: R v Ripia [1985] 1 NZLR 122 at 126 where the Court said:

But we are here concerned with an earlier stage in the proceedings - the power of the High Court to allow a change of plea before sentence has been imposed in that Court itself. In such a case no question of appeal against conviction arises...

[19] We uphold the Respondent's submission that where a plea of guilty has been changed to not guilty all the previous issues between the Crown and the defence that have not been specifically admitted are thereby resurrected. Logically the situation is that the trial stops when the plea of guilty renders it unnecessary (for it removes the issues between the Crown and the Defence). The trial resumes when the altered plea resurrects the issues. As for the earlier pleas they are treated as if they had never been made.

[20] In the particular circumstances of this case it is impossible for the Appellant to suggest that the charges had not been gone into. As Haslam J said in Ratu v Harlow in the passage already cited, a practical approach must be taken to the question of whether the charge has been gone into. In this case it would be fanciful to suggest that the charges had not been gone into.

[21] Moreover, the Appellant's assertion that in the circumstances of cases like the present a second right of election is available would create absurd results. One can instance a criminal trial which had been underway for three months before a Judge alone when a plea of guilty is entered. Then leave is given to change back to a not guilty plea with the accused also wishing to elect to trial by jury. On the basis of the Appellant's argument the whole trial would have to recommence before a jury. The Court considers that the critical phrase "before the charge is gone into but not afterwards" is designed to avoid precisely these difficulties.

[22] For all these reasons the Court finds that the Appellant's argument is untenable. The trial must resume before Smith J. The formal order of the Court will be that leave to appeal under Article 60 is refused.

Casey JA
Smellie JA
Williams JA