IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2018-404-187
[2018] NZHC 3202	

BETWEEN	SUMIT KUMAR
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	13 November 2018	
Counsel:	J A Kincade and A Shendi for Appellant
R M A McCoubrey and A C L Palmer for Respondent	
Judgment:	11 December 2018	

JUDGMENT OF BREWER J

This judgment was delivered by me on 11 December 2018 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Auckland) for Respondent

KUMAR v POLICE [2018] NZHC 3202 [11 December 2018]

Introduction

[1]	On 23 March 2018, following a Judge alone trial, Judge PA Cunningham convicted Mr Kumar on a charge of indecent assault.1

[2]	Mr Kumar appeals his conviction. He contends justice miscarried because he was not told he had a right to trial by jury and because he was not given adequate advice on whether he should give evidence at his trial (he elected not to give evidence).

[3]	My task is to decide whether a miscarriage of justice has occurred:2

… miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)	has created a real risk that the outcome of the trial was affected; or

(b)	has resulted in an unfair trial or a trial that was a nullity.

Background

[4]	Mr Kumar and the complainant worked at a fast-food shop. On 2 June 2017, after the shop had closed, Mr Kumar and the complainant started to clean up and put food into refrigerators. The complainant said Mr Kumar at one point blocked her path and kissed her, putting his tongue inside her mouth and putting his hand inside her t- shirt, pushing it down the waistline of her pants to her buttock. The complainant said she tried to push Mr Kumar away but he persisted and groped her breast, unhooking her bra. The complainant threatened to make trouble for Mr Kumar if he persisted and he stopped what he was doing.

[5]	When spoken to by the Police, Mr Kumar denied touching the complainant but said she had asked him for money and he had refused to give it to her.

The Appeal

[6]	Mr Kumar’s appeal is not brought on the basis justice miscarried because the trial Judge either misunderstood the evidence or made decisions not properly founded

1	Police v Kumar [2018] NZDC 5829.
2	Criminal Procedure Act 2011, s 232(4).

by the evidence. An appeal on that basis could not succeed. The Judge heard evidence from the complainant, the restaurant owner (who was told of the incident and gave evidence of what both parties told him about it), the owner’s wife, and the police officer who spoke to Mr Kumar and arrested him. The Judge also had the benefit of propensity evidence about a very similar incident which occurred on 1 August 2016. Mr Kumar was charged with indecent assault in respect of that incident. The charge was later transmuted to one of common assault and Mr Kumar was discharged without conviction shortly before the incident with which this appeal is concerned. There can be no challenge to Mr Kumar’s conviction by Judge Cunningham on the basis of the evidence before the Judge and how she appraised it.

[7]	Instead, Mr Kumar’s appeal is based on a denial of proper process. He had a right to elect trial by jury and he says he was deprived of this right because he was never told about it. Further, he had the right to give evidence at his trial, and he contends his trial counsel failed to advise him properly as to whether he should or not. As a result, he says, he decided not to give evidence, under the mistaken impression the Judge would have his brief of evidence to refer to, and accordingly lost the opportunity to put his side of the case.

Trial by jury

[8]	As I have said, Mr Kumar had recently been discharged without conviction in relation to a similar incident. He was represented then by Mr Harder. At the trial before Judge Cunningham, Detective Constable Ball gave evidence that after she arrested Mr Kumar on 15 June 2017, she took him to the Auckland Police Station. Mr Kumar asked if he could speak to his lawyer and showed the Detective Constable Mr Harder’s card. The officer gave Mr Kumar time to speak to Mr Harder by telephone in private and afterwards Mr Kumar declined to make a statement on DVD. Mr Kumar did give a brief oral account of his side of the incident. He said the complainant asked for money, she became angry at his refusal, he swore at her, but did not touch her. He said:

Why would I do this? I have just finished the Court. I couldn’t sleep for eight months because of it.

[9]	Mr Kumar appeared in the District Court later that day. He was seen by a duty lawyer who helped him to fill out a legal aid form. Mr Kumar’s case was then called, the duty lawyer entered a plea of not guilty to the charge and Mr Kumar was remanded to a case review hearing to take place on 7 September 2017.

[10]	It seems clear from the Court record that the duty lawyer made no election as to mode of trial. Accordingly, by default, Mr Kumar’s case was assigned to the Judge alone jurisdiction.

[11]	Ms Soondram of the Public Defence Service was assigned to act for Mr Kumar. She, and her junior counsel, Mr Redwood, first met with Mr Kumar on 24 August 2017 to get his initial instructions and to prepare for the case review hearing scheduled for 7 September 2017.

[12]	Mr Kumar is an Indian national. His first language is Hindi. He has a basic grasp of English but for anything requiring a fluent knowledge of English he needs an interpreter. He did not have one at the meeting with Ms Soondram and Mr Redwood on 24 August 2017.

[13]	Ms Soondram formed the impression that Mr Harder had advised Mr Kumar and had represented him at the first call of the case. Ms Soondram asked Mr Kumar about his election for mode of trial and Mr Kumar said he was unsure what had been elected. Ms Soondram said  she  would  inquire  with  the  Court.  Later  that  day, Ms Soondram telephoned the Court and was told Mr Kumar had entered a not guilty plea and had not elected trial by jury.

[14]	The case management memorandum for the case review hearing was prepared and filed, confirming the trial would be Judge alone.

[15]	Ms Soondram, Mr Redwood and Mr Kumar gave evidence before me. I take it from what Ms Soondram said and from what Mr Redwood said that at the first meeting with Mr Kumar it appeared Mr Kumar did not know what election had been made about mode of trial. Ms Soondram told me the advice she was given over the telephone by the Court was there had been no election made at the first call of the case

and she understood this meant the trial would automatically go along the Judge alone route. Ms Soondram thought this was as a result of advice by Mr Harder who she thought had represented Mr Kumar:

Q. I mean, it’s fair to say that you thought, so far as you were concerned, that Mr Kumar had been advised by Mr Harder on that topic?
A.	Correct.

Q.	And that the decision had been made on that first appearance at Court?
A. Yes, I wasn’t aware that he only had one appearance before the Court. Yeah, my understanding had been that he had been privately paying Mr Harder and was no longer able to pay and that’s why he applied for legal aid.

[16]	I am also satisfied Ms Soondram did discuss, in a general way, with Mr Kumar the reasons why a person might elect trial by jury as opposed to a Judge alone trial. Ms Soondram’s evidence was:

A. I would have advised him that because this is a matter where the maximum penalty is over two years, he does have the right of election and therefore in matters, usually my advice to someone if there’s an indecency, a charge, it would be to go down the path of a jury trial. Having said that there were a number of matters regarding his case where this was something he obviously needed to consider a bit more. But like I said, I would have only had a brief discussion with him about it and my impression and this was based upon what he said to me was that Mr Harder had acted for him, I believe that he had had full legal advice prior to making that decision.

THE COURT:

Q.     The point being that because of that you weren’t saying to him words to the effect, “Well look you know Mr Kumar, you can still elect trial by jury if you wanted to. Here are the pros and cons, next time we meet you tell me whether you still want to go down Judge alone” there was nothing like that?
A.	No that’s correct.

[17]	Mr Redwood’s evidence was:

Q. And if I may before we get to the trial, was there any discussion at the very first meeting on the 24th of August, I’m sorry to everybody for going back in time, about the advantages and disadvantages of jury trial as opposed to Judge alone trial?
A. Well, one thing that sticks in my memory from that meeting, and it is possibly more to do with propensity evidence, but my recollection is that this was as part of an explanation as to why advice would be given for a Judge alone jurisdiction rather than jury is because of the high likelihood that the Crown would have to bring a propensity application, although one was brought in this case, and that is advice

that we sometimes give our clients, that the Crown are more likely to do  so,  and  the  reason  I  do  remember  this  is  because  it  was  Ms Soondram used an example, I think it was to do with strawberry milk or a strawberry milkshake, saying if you were in the lunchroom every day and every day you had a cup of strawberry milkshake and then the next week a cup of strawberry milkshake was left behind, whose would it likely to be? That was the explanation of propensity and I thought that was quite a good explanation that stuck in my mind and that was certainly from the 24th of August, although I accept I didn’t write down notes of the strawberry milkshake analogy.

[18]	Mr Kumar’s evidence was that the first he knew of a right to elect trial by jury was after he had been convicted and was instructing Mr Harder to take an appeal. I reject that evidence. Election of mode of trial is a decision which must be made invariably in cases of indecent assault. All counsel are aware of it, and of its significance. Ms Soondram telephoned the Court to find out what election had been made and she did that because she asked Mr Kumar about it and he could not tell her. I accept her evidence and that of Mr Redwood.

[19]	I am satisfied that Ms Soondram misunderstood what Mr Kumar told her about Mr Harder’s involvement. Ms Soondram thought Mr Harder had advised Mr Kumar on mode of trial and had allowed the case to go down the Judge alone route deliberately. Ms Soondram gave some brief general advice to Mr Kumar about the differences between the two modes of trial. But she did not give advice specific to the case. Ms Soondram simply accepted the Judge alone mode without further inquiry.

[20]	The right to elect trial by jury is enshrined within s 24(e) of the New Zealand Bill of Rights Act 1990:

Everyone who is charged with an offence shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for 2 years or more.

[21]	Similarly, s 50 of the Criminal Procedure Act 2011 (the CPA) provides:

A defendant who is charged with a category 3 offence, and who pleads not guilty to that offence, may elect to be tried by a jury.

[22]	The right to elect trial by jury was described by John Hansen J as “one of the most fundamental rights in our criminal law”.3 More recently, the Supreme Court in Siemer v Solicitor-General said:4

[19]	… The primary and most important function of the jury in a criminal trial is to determine the relevant facts of a case and to apply the law to reach a verdict of guilty or not guilty. In exercising that function jurors bring a diverse range of perspectives, personal experiences and knowledge to bear in individual cases which judges may lack. As fact finders, jurors determine which of the admissible evidence presented at a trial is to be believed and acted upon. Juries ultimately decide whether the facts fit within a particular legal definition, according to community standards. In this way they reflect the attitude of the community in their determination of guilt or innocence.

[20]	The right to trial by jury is also generally seen as providing a safeguard against the arbitrary or oppressive enforcement of the law by the government. It is a common perception that when jurors perceive that a prosecution has these characteristics they are likely to acquit. The same point is made about trials where a law sought to be applied itself may be thought to be arbitrary or oppressive by a jury. For these reasons the jury is seen as standing between the accused and the state in a way that judges, who are sworn to apply the law, are not always able to do.

(Citations omitted)

[23]	The forerunner to s 50 of the CPA contained a provision that the Court was obliged to inform a defendant of their right to elect trial by jury in circumstances where that right was engaged. This was s 66(2) of the Summary Proceedings Act 1957. In Abraham v District Court at Auckland, the Court of Appeal held that non-compliance with s 66(2) did not automatically invalidate the proceeding.5 Instead, the Court approached the matter in terms of whether a miscarriage of justice resulted.

[24]	In Abraham, the issue was whether the District Court should have allowed the defendant to withdraw his guilty plea in circumstances where he had not been informed of his right to elect trial by jury. The Court of Appeal held that the defendant’s lack of knowledge of his right to trial by jury may have influenced his decision to plead guilty. Because the right to a jury trial was such a significant right the decision to enter a guilty plea without knowledge of the right was sufficient to constitute a miscarriage of justice:

3	Stoves v Police HC Christchurch CRI-2003-409-067, 28 October 2003 at [19].
4	Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.
5	Abraham v District Court at Auckland [2007] NZCA 598, [2008] 2 NZLR 352.

[51]	Obviously, the right to elect trial by jury is an important right in our system of criminal justice… Accordingly, the importance of the Court’s obligation under s 66(2) to advise of the right should not be minimised.

[52]	However, s 66 does not impose an absolute obligation on the Court to advise of the right to elect. This is clear from the fact that s 66(1) is subject to s 66(7). Section 66(7) allows a defendant’s lawyer to advise the Court of the defendant’s election, in the defendant’s absence (or presence) if the election is for summary trial, but only in the defendant’s presence if the election is for trial by jury. Presumably, this is based on an assumption that the lawyer will have discussed the options with the defendant and obtained instructions beforehand. The fact that the defendant’s lawyer may inform the Court of the election on the defendant’s behalf suggests that, as far as Parliament was concerned, what is important is that the defendant understands the available options. Whether the defendant acquires that knowledge through the Court or through counsel is incidental.

[53]	Further, the obligation under s 66(2) is to advise “before the charge is gone into”. This allows some flexibility in the sense that the required advice can be given at any time before the trial commences or a guilty plea is entered, rather than at some set point in the process.

[54]	We consider that these two features of s 66 provide some support for the view that a Court’s failure to inform in breach of s 66(2) is not to be regarded as resulting in a nullity but is to be dealt with by means of the miscarriage proviso…

(Emphasis added)

[25]	Since Abraham was decided, a number of High Court decisions have considered whether a defendant was sufficiently informed of his right to elect trial by jury, subsuming the matter within a miscarriage of justice inquiry. All the decisions were made prior to the enactment of the CPA and therefore involved s 66 of the Summary Proceedings Act. However, I consider their analyses are still relevant.

[26]	In Lose v Police, the appellant had been convicted in the District Court of driving with excess breath alcohol.6 He appealed on the basis he was never informed, either by the Court or his counsel, of his right to elect trial by jury. On appeal, the appellant’s counsel confirmed he did not discuss the right to a jury trial with him. In assessing whether a miscarriage of justice had occurred, Woolford J made a number of points:7

(a)	The right to election should be given primacy.

6	Lose v Police HC Auckland CRI-2010-404-500, 4 July 2011.
7	At [19]-[21]

(b)	There is no principled distinction with the situation in Abraham; defendants who are not informed of their right to elect trial by jury and who are convicted after Judge-alone trial should not be treated differently to those who pleaded guilty without knowing of their right to jury trial.

(c)	The defendant’s likelihood of success at trial should be given little weight. Even in cases where the likelihood of success is minimal, a more principled approach stresses the “fundamental currency” of the right to trial by jury.

[27]	Justice Woolford concluded:

[23]   … Although the result of a jury trial may not have been any different to the summary trial, I am of the view that the right to jury trial is fundamental and unless there is good reason for approaching the matter in some other way, an appeal should normally be allowed in circumstances such as these whereby that right has been clearly denied to the appellant.

[28]	A similar result was reached in Byrt v Police.8 In that case the appellant had been convicted of wilfully committing an indecent act in a public place. He had been seen by two schoolgirls masturbating in a car. On appeal, the appellant swore an affidavit stating he was not advised of his right to elect trial by jury. He also obtained an affidavit from his counsel, where she stated that her usual practice was to advise her clients of their right to elect trial by jury and to obtain their written instructions so there was a clear record on file. In this case, she checked the file and there was no record, so she was unable to refute the appellant’s contention he had received no such advice.

[29]	Justice Gilbert found the appellant was not advised of his right of election, going on to comment:

[19]	[The appellant] submitted that the Court could not be confident that the result would have been the same had the trial been conducted before a jury instead of a judge alone. Given the issue was a purely factual one, I accept there is some force in this submission.

8	Byrt v Police [2012] NZHC 340.

[20]	[The respondent] submitted that it follows from the Court of Appeal’s approach in Abraham that not every failure to advise a defendant of the jury trial election will result in a miscarriage of justice. That may be so but, in the circumstances of this case, I am satisfied that there has been a miscarriage of justice and the appeal must therefore be allowed on this ground.

[30]	The case most similar to the current one is Parker v Police.9 The appellant, Ms Parker, was charged with burglary. She pleaded not guilty and was subsequently convicted by Judge McNaughton at the North Shore District Court. As with the other decisions I have discussed, the appellant appealed her conviction on the basis she was not offered the opportunity to elect trial by jury.

[31]	Justice Clifford summarised the background to the proceeding.10 I will give some detail because it is similar to Mr Kumar’s situation:

(a)	The Court file did not record any election made by Ms Parker.

(b)	Ms Parker provided an affidavit, and was cross-examined. Ms Parker was adamant she had not, as the Court record showed, ever herself elected trial by jury or instructed her counsel to make such an election. She said she was unaware of the right, and assumed the Police decided who was to be tried before a jury. Ms Parker, moreover, maintained the question of a possible jury trial had never been discussed between her and Mr Utting (who was assigned as counsel for Ms Parker just prior to her status hearing) until during the trial. At this time Mr Utting told her the Judge had said it might have been a good idea if she had elected trial by jury.

(c)	Affidavits were provided both by Mr Utting and by a duty solicitor who appeared on Ms Parker’s behalf when she entered her not guilty plea. Mr Utting was cross-examined at the hearing of the appeal.

(d)	In her affidavit, the duty solicitor deposed she had little memory of her dealings with Ms Parker. However, her usual practice was to seek a

9	Parker v Police [2012] NZHC 1231.
10	At [10].

remand without plea, but she would enter a plea where a person insisted on pleading not guilty. She would never enter an election as to trial jurisdiction when acting as a duty lawyer. She confirmed she did not elect summary jurisdiction for Ms Parker.

(e)	In his affidavit and in his evidence, Mr Utting confirmed that when he was representing Ms Parker she was neither offered her election nor did he, on her behalf, make an election. By the time Mr Utting was assigned, at Ms Parker’s request, to act for her, her case had already been allocated to the summary jurisdiction. He proceeded on that basis. Mr Utting said, however, that the possibility of a jury trial had been briefly discussed by him and Ms Parker during one pre-trial meeting.

[32]	Justice Clifford went on to summarise the judgments in Abraham, Lose and
Byrt.11 However, he said that the factual situation facing him was somewhat different:

[17]	… As noted Ms Parker in her affidavit says, and maintained under cross-examination, that not only was she never offered her election by the Court, but also that she had no idea of her right to trial by jury. In their affidavits Ms Abernethy and Mr Utting confirm that the Court never offered her her election, and nor did they exercise it on her behalf. However, in his affidavit Mr Utting stated that he recalled discussing with Ms Parker at one meeting with her the fact that she had the option to trial by jury. Ms Parker denied that. Under cross-examination, Mr Utting confirmed that any discussion of the right to trial by jury had been brief and informal. He had not actually given Ms Parker any legal advice as regards the significance of the right or her entitlement to exercise it. Rather, as best as he could recall – and I have to observe that his recollection was not impressive – he most likely mentioned the option in passing, and in the context that he could not act for her were she to have a jury trial (he does not have the relevant Legal Aid recognition) and that a jury trial would delay the resolution of the case against her.

[18]	Taking Mr Utting’s evidence at its best, I am not persuaded that the conversation he refers to can be regarded as being sufficient to prevent there being a miscarriage of justice…

[19]	What the Court [in Abraham] recognised as important is that the defendant understands the available options so as to be able to exercise their election through their lawyer. Where the election is offered in Court, and exercised by the accused in Court or – in their absence – by their lawyer, that formal process will generally establish the requirements of s 24(e) of the New Zealand Bill of Rights. Where such formal procedures have been followed it is unlikely, although not perhaps impossible, that a miscarriage of

11	At [12]-[16].

justice would arise because of “election” issues. Here the required formal statutory procedures were not followed. At best the evidence here suggests that the possibility of a jury trial was discussed in passing but without advice being given, instructions taken or – I note – the election having been exercised at all. This is not, in my view, sufficient to prevent the type of miscarriage of justice that the Courts in Abraham, and more recently Lose and Byrt, have recognised as occurring when the formal procedures are not followed.

[33]	Similarly, in Khan aka Rafiq v Police, Courtney J held that a miscarriage of justice occurred because the appellant was not advised of his right to elect trial by jury when defending a charge under the Harassment Act 1997.12 There was no record of him being advised of this right and the Crown accepted this was grounds for a miscarriage. Justice Courtney held that proving the charge required the determination of Mr Khan’s knowledge, specifically whether he knew that his conduct was likely to cause the complainant to reasonably fear for their safety. These were “quintessential jury questions” and therefore the failure to advise Mr Khan of his right of election resulted in a miscarriage.13

[34]	Conversely, in Holley v Police, Courtney J found a failure to advise a defendant of a right to elect trial by jury did not result in a miscarriage.14 Mr Holley was convicted of driving with excess alcohol, but argued he was not advised he could elect trial by jury. In dismissing the appeal, Courtney J noted:

[6] Recent cases have suggested that the failure to advise of the right to a trial by jury will generally give rise to a miscarriage of justice. In this case, however, I am satisfied that no miscarriage of justice arose from the Judge’s failure to advise Mr Holley of his right to a trial by jury. This was not a case in which the credibility or reliability of any witness was in issue. The defence focused on procedural errors alleged to have been made by the police officer, including the form of the summons  issued and the erroneous spelling of    Mr Holley’s name on certain forms. These were matters on which a jury would have been directed regarding the legal position. As a result, the identity of the fact finder could not have affected the outcome.

(Citations omitted)

Has the Criminal Procedure Act 2011 changed things?

[35]	All of these cases predated the CPA. The cases were decided against a background of a right to be tried by jury and a positive obligation on the Court to

12	Khan aka Rafiq v Police [2012] NZHC 2884.
13	At [10].
14	Holley v Police [2012] NZHC 3431.

advise a defendant of that right. But, there was no definition of “miscarriage of justice”. The preponderance of the authority was that while ignorance of the right to elect jury trial did not automatically invalidate a conviction, it would very likely do so if the issues in the trial were the sorts of issues that a jury was suited for. These are issues such as whether the charged act occurred, or whether key witnesses were credible or reliable. In such cases, the Courts found a miscarriage of justice because positive rights had not been afforded and because of the central and constitutional role of jury trial in our system of justice.

[36]	The issue is whether the statutory definition of “miscarriage of justice” in      s 232(4) of the CPA changes the law. I repeat the definition:15

… miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)	has created a real risk that the outcome of the trial was affected; or
(b)	has resulted in an unfair trial or a trial that was a nullity.

[37]	The Court of Appeal in Wiley v R considered the legislative history behind the enactment of s 232 and concluded no substantive change to the law was intended.16 The Court nevertheless considered the differences in the way s 232 is expressed compared to its predecessor, s 385 of the Crimes Act 1961.

[38]	One of the differences is that s 385 did not have “unfair trial” as a specific ground of appeal. But that was nevertheless a well understood ground of appeal:

[34] The unfair trial ground is not specifically mentioned in s 385(1) of the Crimes Act but was nevertheless a well understood ground of appeal even before the introduction of the NZBORA which affirms the right to a fair and public hearing by an independent and impartial court. In Condon the Supreme Court described the right to a fair trial as an absolute right. A breach of the right for any reason means that the conviction must be quashed. The Court cited with approval the observations of Deane J in Jago v District Court of New South Wales:
The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law.
(Citations omitted)

15	Quoted at [3].
16	Wiley v R [2016] NZCA 38, [2016] 3 NZLR 1 at [22].

[39]	The Court in Wiley also reiterated that:

[35]  Not every error, irregularity or occurrence will result in an unfair trial as the Supreme Court in Condon pointed out. The assessment is to be made in relation to the trial overall. The Supreme Court referred to Lord Bingham’s observation in Randall that there will come a point when a departure from good practice is so gross, or so persistent, or so prejudicial, or so irremedial, an appellate court will have no choice but to condemn the trial as unfair and quash the conviction as unsafe.

(Citations omitted)

[40]	The Court concluded its discussion on this area as follows:

[41]	We do not consider it would necessarily be helpful to suggest expressions such as those identified at [35] above to characterise what might be regarded as giving rise to an unfair trial. All that can usefully be reiterated is that the error, irregularity or occurrence must be of sufficient seriousness to warrant the verdict being set aside without further inquiry. The courts will no doubt have regard to examples of such cases under the former s 385 as a guide in appeals under the new provision.

[41]	Wiley was not a case involving an election of mode of trial. In S v R, election of mode of trial was a central issue, but the failure was the opposite of this case.17 In S, the appellant was convicted by jury and one ground of appeal was that he had not been advised of his right to elect trial by Judge alone. The majority of the Court contrasted the right to trial by jury with the ability to waive that right and elect trial by Judge alone. It was the contrast which persuaded the majority that S’s trial was not unfair. I am concerned with the converse situation and so the Court’s discussion of the right to trial by jury is relevant:

[31] The different constitutional status afforded to a trial by jury as compared to a JAT owes its origins to the historical significance that the common law placed upon trial by jury as a bulwark against the potentially oppressive powers of the state. Throughout most of English legal history, from the abolition of trial by ordeal until 1827, trial by jury was the only mode of trial in criminal cases. Trial by jury was described by Brennan J in Brown v R as “the chief guardian of liberty under the law and the community's guarantee of sound administration of criminal justice”. In the same case, Wilson J referred to trial by jury as a safeguard against “the oppressive power of the King and the arbitrary or partial judgment of the court”. Deane J described the unique nature of a jury as “a panel of ordinary and anonymous citizens, assembled as representative of the general community, at whose hands neither the powerful nor the weak should expect or fear special or discriminatory treatment”. The historic justification for trial by jury helps explain why the

17	S v R [2018] NZCA 101.

right to trial by jury is, in relation to qualifying offences, guaranteed by the NZBORA.

(Citations omitted)

[42]	Justice Clifford dissented. His Honour did not take issue with the majority’s discussion of the importance of the right to trial by jury. Rather, he stressed the importance of the right of the defendant to understand the available options for mode of trial and to make an informed choice between them:

[103] On that basis, I consider the choice under the CPA to be no less significant than that under previous legislation. The failure to be given the opportunity to consider the available options renders Mr S’s trial unfair. It is not necessary to focus on the credibility of Mr S and his assertion that he would have chosen a judge alone trial had he been advised of that option. What is important is the clear and uncontested evidence that he was not advised of the option of a judge alone trial.

[43]	In Mr Kumar’s case I am satisfied there has been a miscarriage of justice. The Court record shows that the duty lawyer who represented Mr Kumar at first call did not make any election as to mode of trial. Ms Soondram asked Mr Kumar at their first meeting what election had been made. He did not know, and Ms Soondram telephoned the registry to find out. Ms Soondram, at the first meeting, gave Mr Kumar some general advice on electing a trial by jury, but did not tailor the advice to Mr Kumar’s situation.

[44]	I take into account that Mr Kumar is not fluent in English, there was no interpreter at his first meeting with Ms Soondram, and a discussion on mode of trial requires a  good grasp of English.  It  is evident that the language difficulty led to  Ms Soondram concluding that Mr Kumar had been represented previously in this case by Mr Harder when he had merely given Mr Kumar advice over the telephone when Mr Kumar was arrested. It contributed also to Ms Soondram’s belief that Mr Harder appeared for Mr Kumar when the plea was entered and that the Judge alone route was the result of Mr Harder’s considered advice to Mr Kumar.

[45]	The net result was that Mr Kumar did not make an election. His trial by Judge alone occurred by default and through misunderstanding on the part of his counsel. He did not have the available options explained to him to an extent sufficient to enable him to exercise his right to make an election.

[46]	In my view, in these circumstances Mr Kumar’s trial was unfair. I respectfully agree with Clifford J in S that unfairness in this situation arises from the failure to provide the defendant the opportunity to consider the available options for mode of trial. And, in Mr Kumar’s case, an option he did not have the chance to consider was trial by jury. The right to choose that option is recognised by s 24 of the New Zealand Bill of Rights Act 1990. It is a right that is historically and currently a cornerstone of our system of criminal justice. A failure to be given the opportunity to exercise the right has almost always been met by the Courts with a finding of miscarriage of justice. I do not see anything in the s 232(4) definition of ‘miscarriage of justice’ which should change that. Mr Kumar’s case was one involving issues commonly considered jury issues: whether the alleged act occurred, and associated issues of credibility.

[47]	Mr Kumar’s prospects of success had his case come before a jury are not relevant to my decision. Section 232(4)(a) deals with errors creating a real risk that the outcome of the trial was affected. I am concerned with s 232(4)(b); if a trial is unfair then there is a miscarriage of justice.

[48]	It follows I will allow the appeal on this ground.

Election not to give evidence at trial

[49]	I will discuss Mr Kumar’s second point of appeal briefly.

[50]	Ms Soondram met with Mr Kumar on 7 September 2017 at the case review hearing. There were two further meetings prior to trial for the purpose of briefing  Mr Kumar’s evidence. This was largely the responsibility of Mr Redwood and at both further meetings  a  Hindi  interpreter  was  present  to  assist.  Ms Soondram  and  Mr Redwood represented Mr Kumar at trial. Again, a Hindi interpreter was present.

[51]	At the conclusion of the Crown case there was a 20-minute adjournment so Ms Soondram could speak to Mr Kumar about whether Mr Kumar should give evidence. Mr Kumar’s position is summarised in Ms Kincade’s submissions:

51.10	[Mr Kumar] states in his affidavit that he really wanted to give evidence. He further states that that (sic) the Judge would find him guilty if she did not hear his side of what happened on the night in

question. This is not unusual given it is a classic case of ‘he said, she said’. He was ‘ready to speak to the Judge’ at the conclusion of the Police case. [Mr Kumar] further states that during the break to discuss his election he was told that the case was not proved, that he did not need to worry and that he could make a statement but it would be better for him not to give evidence.

51.11	[Mr Kumar] was not advised whether or not his case can be effectively advanced without his testimony. He instructs that when he informed [Ms Soondram] of the need for him to give evidence so the Judge can hear his side of the story, the advice he received was that his brief of evidence was already before the Court and therefore the Court had his ‘story’. This is acknowledged by [Ms Soondram] at paragraph 33 of her affidavit dated 31 August 2018.

51.12	[Mr Kumar] erroneously believed that the Judge had been given a copy of his instructions that he had provided to [Ms Soondram]. This was obviously a misunderstanding, but an important one so far as [Mr Kumar] was concerned as it was why he thought that he did not need to speak directly to the Judge and ‘agreed’ with the advice that he did not need to give evidence.

[52]	Ms Soondram’s evidence is based on her memory, supplemented by reference to her usual practice. The effect of Ms Soondram’s evidence before me can be taken from the following passage:

Q.   So if you were only briefly in the meetings in the run up to trial and   this was before the trial, before the trial starts on the 21st of March would it be fair to say Ms Soondram that you hadn’t had any real conversation with him about the pros and cons of giving evidence?
A. I understand that that was discussions which Mr Redwood would have also had with him. Having said that, from the outset it would have been clearly explained to him that the brief of evidence basically is how the whole trial runs. In the event that he wishes to give evidence and he was advised of this throughout numerous times that that brief of evidence was how we would then question him on. For instance it would start off, “What is your full name? What happened on this date?” So I don’t accept that he wasn’t aware of that.

Q. Well that’s more about how the evidence would  run  if  he  gave evidence, but did you have any discussions with him about the advantages and disadvantages of giving evidence?
A.  I can’t recall seeing any file notes on that but I believe that I would   have.

Q.   And would you be able to assist the Court as what sort of advantages and disadvantages you set out to Mr Kumar?
A. Well for instance the advantages would be that, one, and this is one  which often matters a lot to defendants is if they have the opportunity to have their story heard, that they can articulate words more in their own words. It just means that they can give a clearer picture to the Court and like essentially have their day in Court more clearly. The pros of it obviously would be that he would be subject to cross-

examination, and I think it always depends on the defendant in terms of the ability to withstand that, to the detriment or otherwise.

[53]	Subsequently, Ms Soondram was cross-examined on the belief Mr Kumar deposed to that the trial Judge had his brief of evidence to refer to. In her affidavit of 3 September 2018, Ms Soondram said:

33.   I advised Mr Kumar that that was the end of the Police case, and it    was now his opportunity to give evidence. I advised him that there was no requirement to do so, as it is the prosecution that need to prove the charge. I explained that as he had his brief of evidence, his ‘story’ was already before the Court, but he could still give evidence. He was also advised that if he chose to give evidence, he would then be subject to cross examination.

[54]	In Ms Soondram’s supplementary affidavit of 1 November 2018, she gave this clarification:

9.     At paragraph 13 (sic) of the first affidavit when I stated ‘I explained  that as he had his brief of evidence, his ‘story’ was already before the Court, but he could still give evidence’, at no stage would I ever have stated that his actual signed brief of evidence was given to the court or to any party.

[55]	In cross-examination by Ms Kincade, Ms Soondram explained further:

A. … I can’t remember exactly what words were used but it would have been to the effect that we had prepared his brief of evidence, that was, and this is something that he would have been repeated throughout the trial, is that brief of evidence basically forms the basis of the entire trial, the cross-examination and how the defence was run based on the theory of the case. In that sense his version was before the Court, and as the prosecution and the Court should have known but his defence was namely in this case that nothing which had alleged had actually occurred. Yeah there’s nothing ever been like okay your brief of evidence was given to anyone.

Q.  No and I don’t suggest that you would have said the brief of evidence was given to anyone but would you agree that you used words with him along those lines, that his story, his version was before the Court, as you’ve said here?
A.     I may have said his version of events, I can’t recall exactly, there was an interpreter who was interpreting it as we went through. So he wasn’t relying on my English.

[56]	A little later in the evidence, there is the following exchange between me and Ms Soondram:

Q.   I’m interested in this, let’s – if I’m Mr Kumar, we’ve taken this break, do you say to me, “Well Mr Kumar now is the time for you to decide whether to give evidence or not, we’ve discussed that in the past, it’s entirely up to you, what are you going to do?” Do you say that or do you say, “Well Mr Kumar the time’s come to decide, now here’s how I think the case is going. This is what the Court knows about your side of things. If you give evidence now the risk that the cross- examination will bring...” I mean which method do you go through? Because the one is just simply saying, “What do you want to do?” The other is “As your counsel this is my advice.” So which do you do?
A. From memory it would have been maybe closer to the first but not that simple. I would have discussions with him from the beginning regarding evidence. And when it comes down to the wording of “You’re (sic) version is before the Court” that would have been more in reference to him querying if there was a need for him to give evidence. And then I would have advised him that he does not have to as the prosecution are the one who have to show that he has you know, done the alleged offending as alleged. Having said that I don't recall him ever saying that he definitely wanted to give evidence.

Q. So you don’t give your clients any assistance at all in making this vital decision?
A.   Well I think that in certain defences it’s more imperative for them to  give evidence, such as this I suppose it’s a matter of self-defence. Having said that he would have been aware that his evidence would have provided simply repetition of what was already been put forward in cross-examination, namely he did not do this, this and this.

[57]	I record at this point it is common ground that, although the document cannot be found, Ms Soondram had Mr Kumar sign a document confirming his decision not to give evidence.

[58]	Ms Soondram accepted that the document which was signed did not contain any detail specific to the case and, in particular, did not record any advice as to what evidence would not be before the Court if Mr Kumar did not give it. Ms Soondram accepted that the purpose of the adjournment was for Mr Kumar to make his decision and to tell Ms Soondram what it was.

[59]	Mr Redwood could not take matters much further because he too was relying on his memory:

A. Yes I certainly remember, the conclusion of the police case, the Judge has, well we’ve called for an adjournment of a short period of time and the purpose for that was so that we can take instructions from Mr Kumar as to whether he will or will not give evidence.

Q.      And before that point in time, do you recall any discussions with      Mr Kumar as to the advantages and disadvantages of him giving evidence?
A.	Before that time I can’t recall.

Q.	So in that adjournment that’s the only discussion that you recall about whether or not he should give evidence?
A.	It’s the only one I can clearly recall about giving evidence.

Q.	And again, sorry to labour the point but you don’t have any notes of any other discussion?
A.	No I don’t, no.

[60]	The decision about whether or not to give evidence ultimately rests with the defendant, not counsel.18 However, that is not to say that counsel is required to stay silent on the matter. The Court of Appeal has said that the proper role of counsel is to put before their client all the pros and cons of giving evidence to ensure they make an informed choice;19 and to ensure that they have the necessary information, conveyed in an appropriate and timely way.20 Advice should also include an assessment of whether a defendant is likely to be a sound witness and whether there is evidence they can give that is not already before the decision-maker.21

[61]	Counsel may give advice in firm terms.22 However, it should also be made absolutely clear that the client is free to reject counsel’s advice if they so choose.23

[62]	When there are questions raised as to the adequacy of counsel advice regarding the decision to give evidence, the essential inquiry will be whether there has been a miscarriage of justice, focussing on the processes of the trial and its outcome rather than on the characterisation of counsel conduct.24 Thus it was said by the Supreme Court in Sungsuwan v R:25
[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary. But

18	See R v Accused [1988] 2 NZLR 385 (CA) at 390; Stewart v R [2017] NZCA 253 at [26].
19	R v K (CA421/08) [2009] NZCA 176 at [41].
20	Tarring v R [2016] NZCA 452 at [26].
21	Chambers v R [2011] NZCA 218 at [15].
22	Chambers v R at [5].
23	R v K at [41].
24	Tarring v R at [26].
25	Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.

whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[63]	The fact that a defendant’s informed choice not to give evidence is revealed by hindsight to have been the wrong choice will not of itself amount to a miscarriage of justice.26 Similarly, a defendant who knows of the right to give evidence and freely adopts firmly expressed advice from counsel not to testify is unlikely to be able to argue successfully that a miscarriage has occurred.27 The threshold is even higher where counsel refrains from giving affirmative advice.28

[64]	I do not find that a miscarriage of justice has occurred under this ground. That is because:

(a)	Mr Kumar knew he had the right to give evidence.

(b)	Mr Kumar knew the decision was his to make.

(c)	Ms Soondram did not give Mr Kumar direct advice in that she did not firmly state what she thought he should do. However, the pros and cons of giving evidence were made clear to him. He was advised there would be no real utility in him doing so. Throughout the briefing process Ms Soondram told Mr Kumar that if he did elect to give evidence it would be on the basis of his brief. Further, I am satisfied Ms Soondram told Mr Kumar during the adjournment that his version of events was already before the Judge, as indeed substantially it was – particularly through the evidence of the employer and through the police officer who recounted what Mr Kumar had told her on his arrest.

(d)	The matter was not broached with Mr Kumar at the eleventh hour. I accept Ms Soondram’s evidence that she discussed the possibility of

26	Nightingale v R [2010] NZCA 473 at [12].
27	R v Le CA208/00, 14 September 2000 at [30].
28	R v Palmer [2007] NZCA 113 at [17].

giving evidence with him throughout the hearing and in advance of the time when the decision needed to be made.

[65]	Therefore, I do not find on this ground that anything went wrong (to put it simply) that created a real risk the outcome of the trial was affected. Nor, on this ground, was the trial unfair.

Decision

[66]	Mr Kumar was deprived of his right to elect trial by jury, resulting in a miscarriage of justice through an unfair trial.

[67]	His conviction for indecent assault is quashed and a retrial ordered.

Brewer J