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Signer and others v The Queen [2011] NZSC 109 (16 September 2011)

Last Updated: 16 September 2011

REASONS FOR JUDGMENT OF THE COURT

[1] By judgment delivered on 14 September 2011, this appeal was allowed by consent and the orders for trial by judge alone made in the High Court[1] and affirmed in the Court of Appeal[2] were set aside. The parties were agreed that a change in the circumstances undermined the conclusion reached by the High Court and Court of Appeal in application of s 361D of the Crimes Act 1961 (that the appellants’ rights to trial by jury were outweighed by the likelihood that potential jurors would not be able to perform their duties effectively). The change in circumstances occurred between the granting of leave to appeal in this Court on 6 May 2011[3] and the date of hearing. On that basis it was common ground that the criterion imposed by s 361D(3)(b) was no longer made out and that the appeal should be allowed.
[2] At the hearing, the appellants wished to proceed with the substantive appeal for a determination of their contention that the approach adopted by the High Court and Court of Appeal to the application of s 361D was wrong as a matter of interpretation. The Court was not prepared to accede to this request, which was opposed by the respondent. We now give our reasons for that conclusion.
[3] An appellate court is not deprived of jurisdiction because an appeal is moot.[4] An appellant is not however entitled to have heard an appeal that has been overtaken so that there is no longer an actual controversy requiring the determination of rights and obligations between the parties. The court has a discretion to hear a moot appeal, as all parties to the present appeal accepted. It will be appropriate to exercise the discretion to proceed with an appeal that is moot only where there is sufficient public interest in resolving a question of law for which context is unimportant. Even so, there must be good reason for departing from the general rule that even points of law are best decided in a live controversy because abstract rulings not anchored to the particular facts may overreach or be misleading. Departures from this general approach should be undertaken with caution.[5]
[4] Section 361D of the Crimes Act permits a judge to order trial by judge alone, without the consent of the accused, notwithstanding the right to trial by jury contained in s 24(e) of the New Zealand Bill of Rights Act 1990. The power to dispense with the right arises where “the accused person’s right to trial by jury is outweighed by the likelihood that potential jurors will not be able to perform their duties effectively”.[6] The appellants wished to argue that s 361D(3)(b), properly interpreted in accordance with ss 5 and 6 of the New Zealand Bill of Rights Act, requires a judge to find that it must be “probable” that jurors will not be able to perform their duties effectively.[7] That view is arguable, as Ms Markham for the Crown accepted at the hearing. It appears inconsistent with the view expressed by the High Court that “likelihood” in s 361D(3)(b) means “an appreciable risk” or denotes “something that might well happen”.[8] In that, Winkelmann J was following the approach taken by the Court of Appeal in R v A.[9]
[5] On this appeal, the Court of Appeal did not find it necessary to consider whether “likelihood” was properly something “probable” or whether it was “an appreciable risk”. It took the view that it was undesirable to depart from the statutory language, resulting in “the substitution of one synonym for another”.[10] Rather, what was required by s 361D(3)(b) was “a balancing exercise” which meant that, in the statutory context of s 361D, “likelihood” was not used as “an absolute standard” but was rather “a matter which must be balanced against the right to trial by jury”:[11]

The “likelihood” that the jury may not be able to function effectively therefore has to be assessed in each case.

Given the statutory recognition of the importance of a right to a fair trial, we accept the thrust of the appellants’ submissions that it would be a concern if a right to trial by jury was lightly departed from. But that is not what has occurred here. We accept that, initially, the Judge cites R v A and uses varying language to describe the level of risk. But it is clear from her analysis that the Judge considered the likelihood that the jury would not function effectively as being high, which means that it was a strong case for a judge alone trial. On any articulation of the test the Judge must have concluded that the risk was significant. As the Judge made the point, the case was not a finely balanced one.

[6] The Court of Appeal was careful not to endorse the synonyms used in R v A and adopted by Winkelmann J. It took the view that the section did not prescribe an absolute standard, which might turn on interpretation, but an assessment. It considered that the assessment actually undertaken by the Judge, despite the language “initially” used by her, conformed to s 361D(3)(b).
[7] As the approach of the Court of Appeal indicates, proper application of s 361D(3)(b) is likely to be demonstrated not by refinement of its language but by the assessment actually undertaken. A case in which there is a material difference between what is “probable” and what is “an appreciable risk” is likely to be uncommon. As the Court of Appeal emphasised, since the right to trial by jury is not lightly to be departed from, finely balanced judgments are not to be expected. The determination of the point in dispute is therefore not comparable to the matter of general public importance in issue in R v Gordon-Smith, where the prosecution practice was ongoing and, as a matter of practicality, leaving the point unresolved would inevitably disrupt future trials.
[8] Should there be a case where the difference between the approach suggested in R v A and that urged here by the appellants is material, the matter would of necessity be determined pre-trial, so that the disruption to trial, which was a significant consideration in R v Gordon-Smith, will not arise. An appellate court would then have the advantage of the context of facts against which the abstract differences between what is “probable” and what is “an appreciable risk” (not easily grasped in the absence of illustrations in application) can be grounded. Given the doubts raised by the Court of Appeal in the present case about the approach in R v A,[12] direct appeal to this Court may not be appropriate before the Court of Appeal has had an opportunity for further reconsideration, but that is a matter best assessed in the particular context.
[9] It was not likely that this Court’s determination of the competing contentions now advanced in the abstract would therefore have been useful or have saved effort in future cases. Section 361D(3)(b) describes not a stand-alone standard but a comparative assessment: the assertion of one right must be “outweighed” by the likelihood that another right (the right to a fair trial) will be breached. It may be doubted whether appellate consideration of the word “likelihood”, as is urged by the submissions, is usefully divorced from application of the composite condition established by s 361D(3)(b). As the word “outweighed” indicates, this is not at-large balancing where the court has to decide where a balance gets struck. Nor is it a case where there is a single test that something is “likely” (a contextual assessment). Refining further on the word “likelihood” may not be worthwhile. Section 361D depends on a balance between different objectives of public interest (the right to jury trial and the right to a fair trial). The right to jury trial is outweighed if it is likely that potential jurors will not be able to perform their duties effectively, in which case there will not be a fair trial. It is preferable that any further consideration of the approach required should be undertaken by this Court, if it is necessary, in application in a live controversy.

Solicitors:
Crown Law Office, Wellington

[1] R v Bailey HC Auckland CRI-2007-085-7842, 9 December 2010.
[2] Iti v R [2011] NZCA 114.
[3] Signer v R [2011] NZSC 46.
[4] R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [15]–[16].

[5] R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450 (HL) at 457 per Lord Slynn, cited with approval in R v Gordon-Smith at [15].
[6] Crimes Act 1961, s 361D(3)(b).

[7] It was not argued that a further ground of the appeal (that the Judge should have been satisfied to the standard of proof beyond reasonable doubt) was suitable for determination once there was agreement the appeal would have to be allowed and the order set aside.
[8] At [57].
[9] R v A [2009] NZCA 380 at [22].
[10] At [36].
[11] At [36]–[37].
[12] At [36].