Fair multiplicity

A routine point of criminal law was the reason for the unopposed allowing of the appeal in Mason v R [2010] NZSC 129 (3 November 2010): s 329(6) of the Crimes Act 1961 provides that “Every count shall in general apply only to a single transaction.” Here, the transaction covered two assaults, and these should have been charged separately to avoid unfairness: the accused may have had a defence to one assault, and on sentencing it would be necessary to know what had been proved beyond reasonable doubt especially because the assaults varied in seriousness.

The conviction was quashed and the Crown did not seek a retrial.

This rather elementary point had been overlooked in the Court of Appeal, where the appellant had represented himself and the Court had misunderstood his argument as applying only to the determination of facts for sentencing.

Mr Mason will no doubt be pleased he did not have to go to the trouble and expense of trying to appeal to the Privy Council. This was a minor case, alleging punching in the face and ear-pulling, committed against one of the accused’s sons. It was only interesting because of the huge attention that the use of force in domestic discipline has recently received, and this was regarded as a test case for new legislation, s 59 Crimes Act 1961.

There are occasions where a count can allege offending over an extended period, and there may be many alleged incidents which a complainant cannot be specific about. In those cases (often, but not necessarily, alleging sexual misconduct) the jury must, before it can find guilt, agree on at least one incidence of the alleged offence.

A leading authority is R v Accused (CA160/92) [1993] 1 NZLR 385; (1992) 10 CRNZ 152 (CA), where the judgment of the Court of Appeal was delivered by Cooke P (later, Lord Cooke of Thorndon). On the requirement of trial fairness, his Honour said

“The basic ingredients of a fair trial remain. There are limits to custodial interrogation and in some circumstances Bill of Rights protections; the accused is entitled to know the substance of that with which he is charged; he has statutory and common law rights regarding the disclosure of certain information; he has detailed notice before the trial of the evidence to be called by the prosecution; he has the right at the trial of cross-examining the Crown witnesses, subject to some reasonable restraints; he has the right to give evidence himself, so that the jury may compare his evidence with that of the complainant or his other accusers; and he has the benefit of the doubt, invariably underlined by trial Judges in emphatic directions that the prosecution must establish its case beyond reasonable doubt. In the event of a conviction the accused has the right of appeal on grounds including the basic one, miscarriage of justice. There is the safety net for exceptional cases of the Royal prerogative and s 406 Crimes Act: see Burt v Governor-General unreported, 16 July 1992, CA175/88.

“On the general question of the fairness of criminal trials in New Zealand it is not to be overlooked that other developments, some of them with no particular bearing on sexual charges, have also moved the balance towards the prosecution. These include statutory provisions for electronic surveillance; DNA testing; a more liberal judicial attitude to “similar fact” evidence and hearsay evidence. But they have been accompanied, at least since Police v Hall [1976] 2 NZLR 678  and R v Hartley [1978] 2 NZLR 199, with affirmation of the Court’s inherent jurisdiction to prevent unfair trials; and that jurisdiction would be available if truly needed in a case in the present field.

“It is possible to imagine a case in which allegations of sexual misconduct are so vague or relate to a time so long ago, without justification for the delay, that it would be unfair to place an accused on trial upon them. Then the possibility of exercising the protective inherent jurisdiction would fall for consideration in all the circumstances of the particular case.”

This comes down to the avoidance of vagueness and the avoidance of prejudicial or unconscionable delay. Logical difficulties may persist, as mentioned in the discussion of the use of specimen or sample counts in Tyack v. The State (Mauritius) [2006] UKPC 18 (29 March 2006) at 18-21. The problem is one of framing legislation that permits inclusion of more than one occurrence of an offence in one count, while still complying with the right to a fair trial. The New Zealand provision, s 329(6) above, is not absolute, but applies “in general” to a single “transaction”. In Mason the Supreme Court said of this:

” [9] … The qualification “in general” and the relatively indefinite word “transaction”, which can encompass both a single event or a course of conduct, recognise the difficulty of application of any precise rule to the charging of the many different fact situations in which acts of offending may occur. They indicate the need for some flexibility. The essential requirement emerging from case law is that, if particular acts of alleged offending can sensibly be charged separately without undesirably lengthening the indictment (overcharging), then that should be done. It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count. On the one hand, the use of a multiplicity of counts is to be avoided where fewer would suffice for the interests of justice. On the other, overly complex counts may prejudice the defence or make it difficult to frame fair and accurate directions to the jury. If necessary trial Judges should intervene if either problem arises.

“[10] We repeat what Anderson J said for this Court in R v Qiu [[2007] NZSC 51, [2008] 1 NZLR 1 at [8] ].The Court endorsed the practice of not charging as separate offences a continuing course of conduct which it would be artificial to characterise as separate offences. But the Court said that it was another thing to charge as a single count repetitive acts which can be distinguished from each other in a meaningful way, even if they relate to more than one act of a certain class or character. The Court added something which the present case vividly illustrates:

‘Separate counts facilitate fairness in the conduct of the trial by focusing attention on matters of fact and law which can and need to be distinguished for the purposes of different counts. In the event of conviction, they assist the sentencing Judge by indicating the extent of culpability.‘”

Some delicate calculations may need to be made, as appears to have been the position in Mason, where experienced defence counsel had not sought severance of the count. Presumably this was because the chances of a successful defence to the lesser allegation were thought to be low, and that even if successful, splitting off the lesser allegation would merely highlight the more serious one and would prevent a sentencing submission that the facts should be assessed as less serious than they could have been. Fairness to the defence is not always easy for the defence to accept, as was seen earlier in these notes in relation to leaving alternative counts to the jury: “Fairer than you may want” .

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