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• Court Review Of Indictable Matters: Section 347 Of The Crimes Act 1961

6. Court review and supervision of the discretion to prosecute

139 ONCE A DECISION TO PROSECUTE has been made it is important

that the court retains adequate control and supervision over the cases that it is asked to adjudicate. Sometimes, it will be quite proper for the court to dismiss a prosecution as unwarranted, vexatious or oppressive. However, while maintaining a power to supervise and review the cases that it will hear, it is important that the court itself does not undermine the independence of the decision to prosecute by substituting its own decision. Nor should the court make the ultimate decision of guilt or innocence when it is not asked to do so. These competing factors must be balanced.

140 The Discussion Paper identified several mechanisms designed to ensure court oversight of prosecutions once they have begun: the New Zealand Bill of Rights Act 1990, the doctrine of abuse of process, control over the trial process itself, costs awards, and through section 347 of the Crimes Act 1961. In relation to section 347, the Discussion Paper noted the differing approaches that could be taken and asked a fundamental question: how should the power to discharge an accused be exercised? In this chapter we consider section 347 of the Crimes Act 1961 and make our recommendations upon the approach the courts should take. We also consider whether, and to what extent, the section 347 discretion should itself be the subject of review through Crown appeal rights and judicial review. Finally, we consider mechanisms for court oversight of summary prosecutions.

COURT REVIEW OF INDICTABLE MATTERS: SECTION 347 OF THE CRIMES ACT 1961

The preferred approach for exercise of the section 347 discretion: evidential sufficiency

141 The primary purpose of section 347 is to screen out weak and inappropriate cases. Before the trial commences the judge has the power under section 347(1) of the Crimes Act 1961 to direct that no indictment be filed or that the defendant not be arraigned on the indictment. In either case the judge may discharge the defendant. The judge may also direct the defendant be discharged at any stage of the trial.[71] Any discharge under section 347 is deemed to be an acquittal.[72]

142 However, the general language of section 347 has resulted in varying judicial views as to how the discretion should be correctly exercised. In the Discussion Paper we therefore asked whether the power should be exercised similarly to the English appellate procedure under the Criminal Appeal Act 1968 (UK). Section 2(1)(a) of that Act provides that the Court shall allow an appeal against conviction if it thinks that the conviction is unsafe.[73] This is a very flexible test that provides the Court with a wide discretion when considering whether to set aside the conviction. Judges must ask themselves the subjective question, whether they are content to let the matter stand as it is, or whether there is not some lurking doubt in their minds making them wonder whether an injustice has been done. That reaction may not be based strictly on the evidence as such; it can be produced by the general feel of the case as the court experiences it.[74]

143 If the English procedure were applied to the section 347 discretion, the test would become whether a reasonable jury, properly directed, would find it unsafe (or unsatisfactory) to convict.

144 There is no test expressed in section 347 for the judge to apply when exercising the discretion. A number of tests that focus upon evidential sufficiency as the appropriate measure have been developed as a matter of practice by the courts, based upon the English decision in R v Galbraith.[75] The test accepted in these cases is whether a properly directed jury could properly convict on the prosecution evidence. If not, then the judge should stop the case. It has been generally accepted that this formulation does not require, or indeed entitle, a judge to consider the credibility of witnesses or the reliability of their evidence when applying

the test. The Galbraith test has been expressly adopted in

New Zealand.[76]

145 However, some High Court judges have not applied the Galbraith test. For example, in R v Myers,[77] the Court stated the test under section 347 thus:

[I]f after reading the depositions, the Judge is satisfied that it is unlikely that any jury, properly directed, would convict, or, a fortiori, that it would be wrong for a jury to convict the accused, it appears that the discretion may be properly exercised.

Clearly, the test of whether a jury would be unlikely to convict is a more exacting standard than the Galbraith test of whether a jury could convict. By considering whether it would be wrong for the jury to convict, the test thus framed incorporates a subjective element similar to the English unsafe conviction test; the Myers test suggests a judge can and should assess the reliability of evidence when determining whether to grant a discharge.

146 In Long v R,[78] a medical manslaughter case, Hammond J reviewed several cases in which section 347 was discussed. He preferred a pragmatic test similar to that in Myers:

In the end I doubt if any satisfactory intrinsic test(s) can be adopted. A pragmatic approach is the more intellectually honest, and feasible. The first concern must always be evidential ... Is there evidence on which – if it is given proper directions – a jury could properly convict? ... The second inquiry is as to the “justice” of the case. Even if there is evidence on which it “could” convict, in all the circumstances pertaining to the case at the time of the application, would it be unjust to have the case proceed to trial?[79]

147 In R v H,[80] Baragwanath J preferred the Galbraith approach when considering a section 347 application. He specifically rejected the Myers test because the first limb (it is unlikely that any jury properly directed could convict) entails judicial prediction of what a jury might do, which is no function of the court, and because the second limb (it would be wrong for a jury to convict) is also uncertain in its application. He also observed that the ‘pragmatic’ test in Long, if it differs from that in Myers, is also too uncertain as a test of whether there is enough evidence for a case to be left to a jury.

148 The Commission agrees with the comments of Lord Lane CJ in Galbraith,[81] that a judge, in considering whether a conviction will be ‘unsafe’, is likely to consider the weight and reliability of the evidence. Such evaluation is properly the function of the tribunal of fact, and should not be entertained by a court embarking upon a section 347 enquiry. For the same reason, we reject the test in Myers. We also consider that the pragmatic test in Long is unworkable for reasons of certainty and practicality. In our view, the correct balance is not struck by permitting a court to examine the merits and reliability of the evidence when considering the section 347 discretion. In indictable matters issues of credit are always for the jury, and there is no reason to believe that juries are less well equipped than the judge to make such an assessment.

The preferred approach for exercise of the section 347 discretion: abuse of process

149 Other judges have interpreted section 347 in a manner that permits policy considerations to be taken into account. In R v E T E[82] Holland J stated that:

... it is not desirable for the Judges to place a fetter on the unfettered discretion vested in the Judges by Parliament.

In that case, the issue was whether it would be appropriate to discharge an accused under section 347 if the accused established that the complainants’ delay in reporting alleged offences to the police constituted an abuse of process. Holland J held:[83]

An applicant under s 347 Crimes Act may be able to establish that there has been an abuse of process of the Court. I see no reason why a Judge should not exercise his discretion under s 347 if such facts are established. If a Judge is satisfied that a delay has been so great, and the prejudice to an accused is of such a nature that it would be quite unfair or unjust for the prosecution to be allowed to continue, then the Court may discharge an accused under the provisions of s 347.

The issue of whether a properly directed jury could or would be likely to convict did not arise.

150 Section 347 may also be used to grant a discharge on the basis of public interest factors even though the evidential sufficiency test is met. According to Adams on Criminal Law,[84] the discretion may also be exercised on the following grounds:

• No useful purpose would be served by the continuation of the proceedings.

• Continuation of the proceedings would be unfair, oppressive or otherwise damaging to the maintenance of public confidence in the administration of justice. This category includes unconscionable conduct during the investigation of an offence, unfair conduct by the prosecution, and unreasonable delay.

In our view, it is important to preserve the alternative use of the discretion.

CONCLUSION

151 We consider that section 347 should be and is legitimately used in two ways:

• to filter prosecutions by ensuring there is sufficient evidence to continue with the prosecution. Of the models developed by the courts to assess evidential sufficiency the Galbraith test, as applied in Re Fiso, of whether there is evidence on which a properly directed jury could convict, is to be preferred. This test does not require the judge to assess the reliability or weight that should attach to the evidence; a function in our view reserved exclusively for the jury or tribunal of fact. The test also avoids the difficult task of judicial prediction of what a jury might do;

• to ensure that the continuation of prosecutions conforms with the public interest. The Commission considers it appropriate that the section 347 discretion be exercised in cases where there are such factors as unfair or unconscionable conduct by the police or prosecution, undue delay, or proceedings that create a risk of unfairness, even though an evidential sufficiency test has been met. New Zealand case law reveals that the discretion has been used in this way for some time, and we approve this practice. In such cases, section 347 is merely one mechanism that the court can utilise to dispose of inappropriate prosecutions. The discretion conveniently reflects and confirms other common law powers of the court, such as the power to grant a stay for abuse of process.

SHOULD THE CROWN HAVE A RIGHT OF APPEAL FROM SECTION 347 DECISIONS BASED ON A QUESTION OF LAW?

152 Section 380 of the Crimes Act 1961 provides that at any time either during or after a trial, whether the result of the trial is conviction or acquittal, the judge may reserve for the opinion of the Court of Appeal any question of law related to the case. If the result of the trial is acquittal the accused shall be discharged, subject to being arrested again if the Court of Appeal orders a new trial.[85]

153 However, there is no similar power in relation to discharges under section 347. A section 347 discharge is deemed to be an acquittal[86] and the Crown has (outside of section 380) no right to contest an acquittal. A section 347 discharge can occur either before or after the commencement of the trial. But even if it occurs after the commencement of the trial it is not subject to the section 380 procedure. The Court of Appeal has held[87] that a discharge under section 347 is not reviewable under section 380 because it cuts the trial short; so it cannot be said that the result of the trial is acquittal for the purposes of section 380.

154 In our Discussion Paper we asked (paragraph 176) whether there should be a right (which clearly would be exercised by the Crown) to appeal a section 347 discharge. We concluded there should be if a discharge is based upon a question of law rather than fact. However, it would be undesirable to have a general right of appeal, because an accused person should either be acquitted finally and conclusively or know that he or she has a conditional discharge because of a point of law. Thus a section 380 procedure would be more appropriate for contesting a section 347 discharge than a general appeal.

155 It has been suggested that, despite an accused being discharged under section 347, it may still be possible to use section 380:

... the appropriate course is for the Crown to urge that the Judge direct the jury to return a verdict of “Not Guilty” in respect of which the case stated procedure of s 380 would then apply.[88]

156 The Commission considers the practice of a directed verdict to be an unnecessary complication. The Crown should have recourse to a section 380 procedure where there has been a section 347 discharge on a point of law only. The current practice of directed verdicts could then be abandoned. We note that the Ministry of Justice is investigating whether the Crown should have a limited right of appeal, on a point of law, against a section 347 discharge – in contrast to the position in R v Grime. The police and the National Collective of Rape Crisis both agree that the prosecution should have the right of appeal against a discharge under section 347.

157 We also make the point that, although the section 380 procedure is not available in cases of section 347 discharge, judicial review of the decision is available, but only if the decision is made by a District Court judge.[89] Judicial review is not available for a section 347 discharge by a High Court judge. Other than jurisdictional differences between the District Court in contrast to the High Court, there is no reason in principle to support this difference. The Commission considers this is another anomaly that points to the need for statutory reform.

158 We therefore recommend that section 347 of the Crimes Act 1961 be amended to provide the Crown with the right to reserve a point of law so that the discharge is conditional upon the ultimate determination of that reservation.[90]

159 We have also considered whether the accused should have a right of appeal against a refusal to grant a section 347 discharge. This is only an issue pre-trial, because if it is alleged that a mistake of law was made during the trial the accused has a general right of appeal following conviction. It is strongly arguable that whether a citizen should stand trial at all is a fundamental matter of justice, and if that principle is to be recognised by allowing the Crown to appeal on a reserved point of law following a pre-trial section 347 discharge, then the accused should have the same facility.

160 The argument against a defence right of appeal to a pre-trial refusal to grant a section 347 discharge is the practical one of delay. It would also require the Court of Appeal to review an entire case in the same way that the court of committal and the court of indictable jurisdiction had already done. Given that an accused has a right of general appeal following a conviction, and given that the right of the State to put a person on trial will have been considered at both the preliminary hearing and trial stage, the Commission is of the opinion that it is unnecessary to have a third pre-trial opportunity to review a case. The Crown is in a different position because it has no right of general appeal at the end of a trial and currently has no redress when a High Court judge orders a section 347 discharge pre-trial.

Should a power equivalent to section 347 be available to a judge sitting in the summary jurisdiction?

161 The reason the section 347 procedure is available in the indictable jurisdiction is that the indictable procedure requires the Crown to first prove that it has a prima facie case at a preliminary hearing before a jury can be troubled by it. Therefore, a written record of the Crown’s case is available to a court of higher jurisdiction to consider if the defence wishes to, in effect, appeal the committal decision. We have recommended (see paragraph 188 below) the abolition of routine preliminary hearings so that the committal decision will be largely administrative and made on the basis of disclosure pursuant to a statutory regime.

162 In the past, the summary jurisdiction could not have had an equivalent of the section 347 procedure. The jurisdiction was truly ‘summary’, in that procedures were swift and simple; the information was laid, a plea was taken, a date was set for hearing and the trial proceeded. At the end of the prosecution case the defence could submit that there was no case to answer, and if that submission was upheld the trial ended at that point. If not, the defence would have the option of calling evidence. However, the ‘summary’ procedure is no longer truly summary. The prosecution (by judicial practice) is required to make disclosure of material in its hands relevant to the case, to prepare full written briefs for the prosecution witnesses and to file and serve those in advance of trial.[91] This procedure is now well-established and accepted. It would be expedient, therefore, to give District Court judges the power to consider a ‘no case to answer’ submission once the prosecution has filed its briefs of evidence.

163 The test to be applied by a judge in the summary jurisdiction in considering a submission, that there is no case to answer, is the same as that applied by a judge sitting with a jury:[92]

At the conclusion of the prosecution’s case what has to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then, and then only, is he justified in finding [no case to answer].

This test reflects our preferred enquiry under section 347 for evidential sufficiency (see paragraph 151 above).

164 One objection that may be raised to the extension of the section 347 procedure to the summary jurisdiction is that it will be used routinely by defence counsel for the purposes of delaying trial. However, in practice it seems to us unlikely that the procedure will be used often. The papers will usually show that there is a case to answer; usually it is only under the challenge of cross-examination that the evidence will be shown to be lacking.

165 One advantage of introducing this procedure in the summary jurisdiction is that it would act as a control on private prosecutions. In the Discussion Paper, we discussed the need for reform to preserve the right of citizens to prosecute privately, while ensuring adequate safeguards against vexatious and oppressive conduct by private prosecutors. If the Summary Proceedings Act 1957 were amended to provide that any informant must provide the accused, before a hearing date is set, with copies of all witness briefs and the accused is permitted to make a ‘no case to answer’ submission prior to trial, then this would protect the citizen from the vexatious or commercially predatory private prosecutor while not inconveniencing the police, who already make this disclosure.

166 Accordingly we recommend that the Summary Proceedings Act 1957 be amended to provide that:

(a) a District Court judge may require an informant to provide the accused, before a hearing date is set, with disclosure of all material in its possession relevant to the case and copies of briefs of evidence of all witnesses whom it proposes to call; and

(b) once that information has been provided, a procedure equivalent to section 347 shall be available to the accused.

Quashing the indictment under section 345

167 Section 345 of the Crimes Act 1961 provides:

(5) Except where an indictment is [filed] under subsection (3) of this section, the accused may, at any time before he is given in charge to the jury, apply to the Court to quash any count in the indictment, on the ground that it is not founded on the evidence disclosed in the depositions; and the Court shall quash that count if satisfied that it is not so founded.

(6) If at any time during the trial it appears to the Court that any count is not so founded, and that injustice has been or is likely to be done to the accused in consequence of that count remaining in the indictment, the Court may quash that count and discharge the jury from finding any verdict on it; but the Court shall not do so unless it is satisfied that justice requires it.

168 Subsections (5) and (6) of section 345 were not discussed in our Discussion Paper, but have been raised by the peer reviewers of this report. Upon further consideration, we have concluded that they serve no practical function that cannot be achieved by the broader section 347 provision, and are seldom used in practice. Therefore they should be revoked.

169 There are a number of significant differences between these subsections and section 347,[93] in particular:

(a) A section 345(5) application can only be made after the presentment of the indictment and before the accused is given in charge. A section 347 application can be made at any time after committal, even after verdict.

(b) Section 345(5) is mandatory, section 347 is discretionary.

(c) Under sections 345(5) and (6), the court is limited to the evidence disclosed in the depositions. Section 347 has no such limitation.

(d) Quashing charges under section 345(5) (and presumably also under section 345(6)) does not amount to an acquittal.[94] The Crown is free to lay fresh charges. No doubt this is why the sections are seldom used, and an application under section 347, which does result in an acquittal, is preferred.

170 Accordingly, the Commission recommends that sections 345(5) and (6) of the Crimes Act 1961 be revoked.