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IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA737/2018
 [2019] NZCA 368

	
BETWEEN	
URIAH WHETU MONTY WIRIHANA
Appellant	
	
AND	
THE QUEEN
Respondent	

 CA752/2018	
	
BETWEEN	
ANNIKE RENEE PIENEMAN
Appellant	
	
AND	
THE QUEEN
Respondent	

 CA787/2018	
	
BETWEEN	
JORDAN STRATTON-PINEAHA
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
24 July 2019	

Court:	
Gilbert, Courtney and Wild JJ	

Counsel:	
E R Fairbrother QC for UWM Wirihana
S Brickell for A R Pieneman
J G Krebs for J Stratton-Pineaha
C A Brook for Respondent	

Judgment:	
16 August 2019 at 2.30 pm	

JUDGMENT OF THE COURT

This Court is the first appeal court for the purposes of these three appeals.  The appeals are to be set down for hearing.  
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)
Introduction 
[1]	The appellants in each of these appeals elected trial by jury in the District Court but subsequently entered guilty pleas and were sentenced in that Court.  They have filed appeals against conviction or sentence or both in this Court. 
[2]	A preliminary hearing was set down to determine the following questions about the correct jurisdictional pathways for appeals in light of amendments to the Criminal Procedure Act 2011 (CPA) made by the Courts Matters Act 2018 (CMA):
(a)	Is the High Court or this Court the first appeal court for conviction and sentence appeals where an appellant has been convicted in the District Court following a jury trial election being overtaken by a guilty plea?  This question turns on whether the entry of a guilty plea can or should be treated as a withdrawal of the jury trial election for the purposes of ss 230(2) and 247(2) of the CPA. 
(b)	How does the CMA apply to appeals that come before this Court including, for example, to appeals where: the charging documents were filed after 14 November 2018; the jury trial election was made after that date; determinations appealed from were made after that date; or the appeals were filed in this Court after that date.  
[3]	The relevant circumstances of each appellant are:
(a)	Mr Wirihana elected a jury trial on 9 October 2017 but subsequently pleaded guilty on 9 October 2018 to two charges of possessing methamphetamine for supply.  He was sentenced in the District Court at Napier to three years and seven months’ imprisonment.  He appeals one of those convictions on the ground that his offending did not constitute the offence of possession for supply in law.  He also appeals his sentence.
(b)	Ms Pieneman elected a jury trial on 29 December 2017 but subsequently pleaded guilty on 26 April 2018 to theft by a person in a special relationship.  She was sentenced in the District Court at Auckland to six months’ supervision, 80 hours’ community work and ordered to pay reparations of $1,360.  She appeals her conviction and sentence on the basis that she should have been discharged without conviction.
(c)	Mr Stratton-Pineaha elected a jury trial on 13 April 2018 but subsequently pleaded guilty to aggravated robbery on 25 September 2018.  He was sentenced in the District Court at Napier to five years and two months’ imprisonment.  He appeals his sentence.
[4]	Ms Pieneman and Mr Stratton-Pineaha both contend that the correct jurisdictional pathways for their appeals lie to this Court.  Mr Wirihana contends that his appeal lies to the High Court. 
Jurisdictional pathways for appeals
The statutory provisions
[5]	This Court has always had supervisory jurisdiction over jury trial matters so that appeals against jury verdicts have historically been heard by this Court regardless of whether the trial was held in the District Court or the High Court.  Prior to the introduction of the CPA this was achieved through a jurisdictional pathway that saw appeals in respect of convictions on indictment heard in this Court, whether or not trial by jury was elected.
[6]	The CPA abolished the indictable jurisdiction but retained the appeal pathway to this Court for jury trial matters.  Jurisdictional pathways for appeals are generally determined by whether the defendant elected a jury trial.  Appeals against pre-trial decisions made in the District Court, convictions entered in the District Court, costs orders made in the District Court and appeals on questions of law from a District Court ruling all lie to this Court if the defendant elected trial by jury.  For sentence appeals, an appeal by an appellant who elected trial by jury and did not plead guilty before trial lies to this Court, as does an appeal by an appellant who elected trial by jury but pleaded guilty before trial if the sentence exceeds five years’ imprisonment (if the sentence is less than five years it is heard in the High Court).  An appeal from the District Court where the appellant did not elect trial by jury lies to the High Court, regardless of the sentence. 
[7]	Under the CPA jurisdictional pathways for appeals against conviction and appeals against sentence are provided for in ss 230 and 247 respectively.  Prior to the introduction of the CMA these pathways (and the pathways for appeals of the nature mentioned above) were determined without specific reference to the effect of a defendant’s withdrawal of a jury trial election.  The CMA inserted ss 230(2) and 247(2).  They specifically address the situation where a person, having elected a jury trial, subsequently withdraws that election as provided for by s 53 of the CPA.  They do not, however, address the situation where a person who has elected a jury trial subsequently enters a guilty plea without formally withdrawing the jury trial election.
[8]	Section 53 of the CPA provides a formal process for withdrawing a jury trial election:

53	Withdrawal of election 
(1) 	A defendant may not withdraw his or her election to be tried by a jury unless the defendant obtains the leave of the court under subsection (2).
(2) 	A court may grant leave to a defendant to withdraw the defendant’s election to be tried by a jury, but only if—
(a) 	the court is satisfied that there has been a change in circumstances that might reasonably affect the defendant’s decision to elect a trial by jury; or
(b) 	the court is satisfied that the withdrawal of the defendant’s election is unlikely to cause a delay in the defendant’s trial being concluded; or
(c) 	in the case of a defendant who is to be tried by a jury under section 139(2)(a), the defendant’s co-defendant is, or co‑defendants are, no longer to be tried by a jury.
(3) 	The court must not grant leave under subsection (2) after the jury trial has commenced.
[9]	Section 230 provides the jurisdictional pathway for appeals against conviction:
230 	First appeal courts 
(1) 	The first appeal court for an appeal under this subpart is—
(a) 	the District Court presided over by a District Court Judge, if the appeal is against a conviction entered by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b) 	the High Court, if the appeal is against a conviction entered by the District Court presided over by a District Court Judge, other than a conviction for—
(i) 	a category 3 offence after the convicted person elected a jury trial; or
(ii) 	a category 4 offence; or
(c) 	either the Court of Appeal or the Supreme Court, in any other case.
(2) 	For the purposes of subsection (1), if a convicted person elected a jury trial but subsequently withdrew his or her election before trial, the convicted person must be treated as if he or she had not elected a jury trial.
[10]	Section 247 provides the jurisdictional pathway for appeals against sentence:
247	First appeal courts 
(1) 	The first appeal court for an appeal under this subpart is—
(a) 	the District Court presided over by a District Court Judge, if the appeal is against a sentence imposed by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b) 	the High Court, if the appeal is against a sentence imposed by the District Court presided over by a District Court Judge and if—
(i) 	the sentence was for a category 1 or 2 offence; or
(ii) 	the sentence was for a category 3 offence and the convicted person did not elect a jury trial; or
(c) 	the High Court, if the appeal is against a sentence imposed by the District Court presided over by a District Court Judge for a category 3 offence and if—
(i) 	the convicted person elected a jury trial; and
(ii) 	the convicted person pleaded guilty to the offence before the trial; and
(iii) 	the sentence appealed against is not a sentence of imprisonment exceeding 5 years; or
(d) 	either the Court of Appeal or the Supreme Court, in any other case.
(2) 	For the purposes of subsection (1), if a convicted person elected a jury trial but subsequently withdrew his or her election before trial, the convicted person must be treated as if he or she had not elected a jury trial.
The position prior to the Courts Matters Act: Jackson v R
[11]	Jackson v R concerned three appeals in which the question was whether the appellants’ election of a jury trial affected the appeal pathway even if it had been withdrawn or where a guilty plea had been entered.  One appellant had elected trial by jury in the District Court but at a pre-trial hearing, at which some charges were withdrawn and the remaining charge amended to cover a more limited time period, pleaded guilty to the amended charge.  The second appellant did not participate.  The other appellant (Mr Jackson) and a co-offender faced numerous charges of manufacturing and supplying methamphetamine.  They both elected trial by jury, but Mr Jackson’s co-offender subsequently pleaded guilty to certain charges and Mr  Jackson was granted leave to vacate his election and elect trial before a judge alone. 
[12]	On the question of whether the appeals lay to the High Court or to this Court, the Court held that if a jury trial election was either withdrawn or overtaken by a guilty plea, this Court was the correct appeal court because:
[18]	By virtue of ss 230(b)(i) and 247(c), governing an appellant’s rights of appeal against conviction and sentence respectively, a defendant’s election of a jury trial triggers all consequential rights of appeal. As is made clear by the Ministry of Justice’s departmental report which preceded the CPA, the assumption underlying these provisions is that this Court should retain supervision over jury trials, whether in the High Court or District Court.  However, that policy rationale for retaining this Court as the first appeal court on either a conviction or sentence appeal disappears where a defendant changes his or her election from trial by jury in the District Court to a judge alone trial.
[19]	Nevertheless, we agree … that the plain words of both provisions dictate jurisdiction according to the election, not subsequent events. The election, not the actual mode of subsequent trial, is the governing or controlling event despite the defendant’s subsequent withdrawal of an election of jury trial. That is so even where the consequence is a trial before a judge alone or no trial at all following a plea of guilty. While the High Court is normally the first appeal court against a conviction entered by a District Court judge, the statutory exception substituting this Court as the first appeal court could not be more plainly expressed. 
(Footnotes omitted). 
The Courts Matters Act
[13]	The CMA came into force on 14 November 2018.  As noted, the CMA amended ss 230 and 247 by specifying that an election that has been withdrawn is to be treated as never having been made.  The explanatory note to the Courts Matters Bill stated that these amendments were intended to “reverse the effect of Jackson” by “providing that if a defendant elects a jury trial and withdraws his or her elections before trial, the defendant must be treated as he or she had not elected a jury trial”.  The result would be that appeals in such cases would be heard in the High Court rather than this Court. 
[14]	Whilst the amendment did reverse the effect of Jackson in relation to appeals that follow the withdrawal of a jury trial election, it did not specifically address the situation in which the election was not formally withdrawn but, rather, a guilty plea simply entered before trial. 
The effect of a guilty plea following jury trial election on the appeal pathway
[15]	One view of the effect of the CMA amendments is that a guilty plea following a jury trial election in the District Court is an implicit withdrawal of the election. If correct, that would mean that the appellant who simply pleads guilty after electing a jury trial in the District Court would be treated as never having made the election in the same manner as if he or she had formally withdrawn the election under s 53.  As a result, the High Court would be the first appeal court. 
[16]	This is the position taken by Mr Fairbrother QC, for Mr Wirihana.  He argued that Parliament’s intention was for the High Court to have exclusive jurisdiction as the first appeal court under s 247 (and similar provisions of the CPA) to advance the purpose of the amendments to the CPA of improving the efficiency, effectiveness and timeliness of criminal processes in the criminal jurisdiction.  He pointed out the greater convenience for parties in the High Court being the first appeal court because of easier physical access to High Court centres and the consequent economies associated with conducting appeals in those centres. 
[17]	Mr Fairbrother also pointed out the potential for manipulation of appeal pathways if the result in Jackson prevailed in cases where there was no formal withdrawal of the election but only a guilty plea because a defendant could “select” a desired appeal pathway through either withdrawing the election under s 53 or simply entering a guilty plea. 
[18]	Although we see the force in these points, we think there are flaws in this approach, which are evident when one considers the alternative view contended for by Mr Brickell, for Ms Pieneman and Ms Brook, for the Crown, with which Mr Krebs, for Mr Stratton-Pineaha concurred.  They argued that the amendment does not apply to appeals in which a jury trial election is followed by a guilty plea without the election having been withdrawn formally.  In such cases, the appeal pathway is as set out in ss 230(1) and 247(1).  In the present case, that would result in all three appeals being heard in this Court.  We agree with this approach.
[19]	First, one would expect that the reference in ss 230(2) and 247(2) (and the other amendments mentioned in this judgment) to the withdrawal of a jury trial election to be a reference to the formal statutory process available under s 53.  Withdrawal under s 53 is available only with the leave of the court and in only in specified circumstances.  Whether leave is granted frequently depends on the extent of delay that will result and the circumstances of co-defendants.  Further, an election cannot be withdrawn after the trial has commenced (for obvious reasons).  In comparison, s 42 of the CPA permits a defendant to change a not guilty plea to one of guilty at any time, including during trial. 
[20]	The withdrawal of an election under s 53 is predicated on the assumption that there will still be a trial; in comparison, a guilty plea eliminates that possibility.  Treating both as if they were instances in which the appellant “withdrew his or her election” is not consistent with the language of the Act because it would see “withdraw” in s 53 and “withdrew” in ss 230(2) and 247(2) as having different meanings.  There is no basis on which to conclude that Parliament intended its reference to withdrawal to encompass such an entirely different step in the criminal process. 
[21]	Secondly, treating a guilty plea as a withdrawal of a jury trial election would cut across s 247(1)(c) and (d) which expressly provide for the situation where an appellant elects trial by jury but then later pleads guilty.  In that situation the first appeal court where the sentence was imposed by a District Court judge is the High Court if the defendant elected a jury trial but then pleaded guilty and was sentenced to a term of imprisonment not exceeding five years.  But in any other case, the first court of appeal is this Court or the Supreme Court.  
[22]	Mr Stratton-Pineaha’s appeal is a good example of the difficulties that would arise if the interpretation contended for by Mr Wirihana was adopted.  As noted, Mr Stratton-Pineaha elected a jury trial and later pleaded guilty and was sentenced to more than five years in prison.  Under s 247(1)(c) and (d) the first court of appeal would be this Court.  But if s 247(2) applied to his situation, it would be the High Court.  If s 247(2) were intended to capture this situation there would be no need for s 247(1)(c) at all.
[23]	 Thirdly, as Ms Brook submitted, although the continued determination by this Court of appeals where a guilty plea has been entered may seem unnecessary there is a public interest in the Court doing so.  The time constraints imposed on counsel and parties by the CPA mean that a jury trial election is a common default position, even if it is likely that a guilty plea will ultimately be entered.  Section 51 of the CPA requires a jury trial election to be made at the time a not guilty plea is entered unless leave is obtained.  If s 247(2) were interpreted as applying to sentence appeals arising where a guilty plea was entered following a jury trial election a good many appeals that would otherwise be heard in this Court would not reach it. 
[24]	Appeals from conviction following a guilty plea are not uncommon and can arise, for example, in the context of appeals against the refusal to grant a discharge without conviction (as in the case of Ms Pieneman) and situations such as that asserted by Mr Wirihana.  Such appeals and appeals against sentence for serious offending allow this Court to provide appellate guidance on the issues arising.  In relation to sentence appeals, in particular, there is benefit to first instance courts in appellate guidance on sentencing levels and other matters relevant to sentencing, such as discounts for mitigating factors. 
[25]	We are therefore satisfied that ss 230(2) and 247(2) of the CPA (and the equivalent amendments to ss 219, 272 and 297) do not apply to appeals that arise where the appellant entered a guilty plea, having previously elected a jury trial and where that election was not formally withdrawn under s 53.  Those provisions only apply where there has been a formal withdrawal of the jury trial election under s 53.
[26]	The result is that ss 230(2) and 247(2) do not apply to the three appeals with which we are concerned, all of which will be heard in this Court. 
Application of Courts Matters Act for transitional period
[27]	There are no transitional provisions in the CMA in relation to ss 40–44 of that Act.  A question therefore arises as to which appeals before this Court the amendments introduced by the CMA apply to.  However, as a result of our conclusion that the entry of a guilty plea does not amount to the withdrawal of a jury trial election for the purposes of ss 230(2) and 247(2), the appeal pathways that apply to these appeals are those set out in ss 230(1) and 247(1).  Under those provisions all the appeals lie to this Court.  The second question therefore has no impact on these appeals and, in anticipation of the issue being considered in more depth by this Court in an impending appeal, we prefer not to express any conclusive view on this matter. 
Result 
[28]	This Court is the first appeal court for the purposes of these three appeals.  The appeals are to be set down for hearing. 

Solicitors: 
Crown Law Office, Wellington for Respondent