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High Court of Niue |
IN THE HIGH COURT OF NIUE
(CRIMINAL DIVISION)
Application No. CR 36/2012
IN THE MATTER: IAN HIPA
AND:
THE POLICE
Court: C T Coxhead J
Hearing: 15 May 2012
Appearances: Mr McCoy and Mr Starling for the applicant
Judgment: 22 May 2012
JUDGMENT OF THE COURT
Introduction
Applicant
(a) That s 252(1) and/or s 281(3) provide the Court with jurisdiction after considering depositions filed by the Prosecution and after hearing the submissions from the parties to discharge the Defendant before the commencement of the trial; and
(b) That unlike in New Zealand, there is no division between indictable and summary offences in Niue law, but while many provisions in the Niue Act have no counterpart in New Zealand law, Niue does recognise the committal for trial procedure, and that s 252 and/or s 281(3) empower the Court to discharge a defendant before his trial; and
(c) While the defendant can also submit that there is no case to answer at the end of the prosecution case at trial, Niue law does not confine the defendant to have to wait until the end of the prosecution stage before seeking a judicial ruling that the evidence to be presented cannot justify putting the defendant on trial. The expression "after the inquiry into the circumstances" means an examination of the prosecution witness statements and evidence.
Respondent
(a) That the power to discharge without conviction under s 281(3) is not equivalent to the discretion given to New Zealand trial judges in the indictable jurisdiction to discharge an accused under s 347(1) of the New Zealand Crimes Act.
(b) Rather, that s 281 of the Niue Act is equivalent to s 106 of the New Zealand Sentencing Act 2002 and both relate to the power to discharge without conviction. That the common wording of the provisions show that the power to discharge without conviction was intended to apply where, after inquiry into the circumstances of the case, the Court would otherwise have found the charge proved and convicted the defendant, and that this is supported by the placement of s 281 within other sentencing provisions of the Niue Act. And that the power to discharge without conviction "after inquiry into the circumstances of the case" compel the conclusion that this provision is only available after the Court has heard the evidence of the prosecution.
(c) That the power to discharge under s 347(1) in New Zealand is exercised on the basis of the committal hearing and depositions. There is no equivalent procedure in the law of Niue, and therefore until the evidence is given at the hearing of the charge there is no proper evidential basis on which there can be an inquiry into the circumstances. A submission of no case to answer is possible after that has occurred.
Section 281 Niue Act
Niue Act, s 281 Conviction without sentence or discharge without conviction
(1) If on any criminal trial the Court thinks that the charge, though proved, is in the particular case of so trifling a nature or was committed under such circumstances that no punishment should be imposed, the Court may convict the accused and discharge him without sentence, either unconditionally or on such conditions as the Court thinks fit to impose.
(2) If any person who is so convicted and discharged on conditions commits any breach of those conditions, he shall be guilty of an offence punishable in the same manner as the offence of which he was so previously convicted.
(3) Without limiting the powers conferred on the High Court by subsection (1) of this section, where any person is accused of any offence, the High Court, after inquiry into the circumstances of the case, may in its discretion discharge him without convicting him, unless by any enactment applicable to the offence a minimum penalty is expressly provided for. A discharge under this subsection shall be deemed to be an acquittal.
(4) The High Court, when discharging any person under subsection (3) of this section, may, if it is satisfied that the charge is proved against him, make any order for the payment of costs, damages, or compensation, or for the restitution of any property, that it could have made under any enactment applicable to the offence with which he is charged if it had convicted him and sentenced him, and the provisions of every such enactment shall apply accordingly.
New Zealand Sentencing Act, s 106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal.
(3) A court discharging an offender under this section may-
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered-
(i) loss of, or damage to, property; or
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c) make any order that the court is required to make on conviction.
(3A) Sections 32 to 38A apply, with any necessary modifications, to an order under subsection (3)(b) as they apply to a sentence of reparation.
Section 252
252 Committal for trial
(1) When any person arrested with or without warrant under the foregoing provisions is brought before a Judge or the Registrar, the Judge or Registrar may, after such preliminary inquiry (if any), and after giving the prisoner an opportunity of being heard, by warrant either discharge the prisoner, or commit him to prison to await trial by the High Court for the offence for which he was arrested, or admit him to bail, with or without sureties, conditioned to appear before the High Court in due course for trial for the offence.
(2) No such discharge shall amount to an acquittal so as to preclude the prosecution and trial of the accused in the High Court for the offence for which he was so arrested.
Section 347 New Zealand Crimes Act
New Zealand Crimes Act, s 347 Power to discharge accused
(1) Where any person is committed for trial, the Judge may, in his discretion,-
(a) Of his own motion or on the application of the prosecutor or the accused; and
(b) After giving both the prosecutor and the accused reasonable opportunity to be heard on the matter; and
(c) After perusal of the depositions and consideration of such other evidence and other matters as are submitted for his consideration by the prosecutor or the accused - direct that no indictment shall be [[filed]], or, if an indictment has been [[filed]], direct that the accused shall not be arraigned thereon; and in either case direct that the accused be discharged.]
(2) Where an indictment is [filed] by the Attorney-General, or by any one with the consent of the Attorney-General, under subsection (3) of section 345 of this Act, the Judge may in his discretion, after perusal of the statements of the witnesses for the prosecution, or after hearing those witnesses, direct that the accused shall not be arraigned on the indictment, and direct that he be discharged.
(3) The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.
(3A) Every direction under this section shall be given in open Court.
(4) A discharge under this section shall be deemed to be an acquittal.
(5) The provisions of [section 106(3) of the Sentencing Act 2002] shall extend and apply to a discharge under this section.
(6) Nothing in this section shall affect the power of the Court to convict and discharge any person.
[I]s not an unqualified power susceptible of arbitrary exercise. It must be taken to be a power exercisable in the interests of justice. The nature and circumstances of a case will inform the interests of justice ... The Judge's function in these circumstances is not to attempt to predict the outcome...
We consider that the correct judicial approach to an application pursuant to s 347 based on alleged insufficiency of evidence is the same as dealing with an application of no case.
...
In a Judge alone trial the interests of justice indicate that, as a generality, the Judge should not form a view, possibly that the Crown evidence is conclusive of guilt, without the benefit of considered argument on the whole of the case, and before evidence adduced by an accused has been heard. There is an unacceptable risk of injustice, and certainly of the appearance of it, in a Judge forming and declaring a settled view on proof of guilt, at a premature, or potentially premature, stage of the trial.
Decision
Section 252 — Section 347
Sections 252 and 281(3)
Dated at Rotorua, New Zealand this 22nd day of May 2012
C T Coxhead J
[1] R v Flyger [2001] 2 NZLR 721, (2000) 18 CRNZ 624 (CA) at [13] - [15]
[2] Ibid, at [16] and [23].
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