20 December 2018
MEDIA RELEASE – FOR IMMEDIATE PUBLICATION
S (SC 36/2018) v THE QUEEN
(SC 36/2018)  NZSC 124
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the
reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the
judgment and reasons can be found at Judicial Decisions of Public Interest www.courtsofnz.govt.nz
A suppression order made by the Court of Appeal under section 200 of the Criminal Procedure Act 2011 prohibiting the
publication of the name, address, occupation or identifying particulars of the appellant remains in force. In addition,
the publication of the names, addresses, occupations or identifying particulars of complainants or persons under the age
of 18 who appeared as a witness is prohibited by sections 203 and 204 of the Criminal Procedure Act.
In issue in this appeal is whether a miscarriage of justice arose because Mr S was denied the right to elect to be tried
by a judge without a jury (a Judge-alone trial) under section 50 of the Criminal Procedure Act 2011.
Mr S was convicted following a jury trial in the District Court of serious sexual offending against two complainants. Mr
S’s lawyer at trial had elected a jury trial on his behalf not realising that Mr S could have elected a Judge-alone
trial. Mr S’s lawyer said, however, that had she realised there was an election, she would have advised Mr S to elect a
jury trial because his defence was that the complainants consented.
After his conviction, Mr S said he learned that he could have elected a Judge-alone trial. He appealed to the Court of
Appeal on the basis that, among other things, he had been denied the right to elect a Judge-alone trial and therefore he
should be given the opportunity to re-elect. By a majority, the Court of Appeal dismissed his appeal on this ground.
Supreme Court decision
The Supreme Court granted leave on the question whether the Court of Appeal was right to dismiss the appeal on the mode
of trial point.
It was common ground between the parties that the mistake by Mr S’s lawyer was an error or irregularity. The appellant’s
case was that the error had led to an unfair trial. In support of this submission, Mr S argued that the choice as to the
mode of trial is an important election within the scheme of the Criminal Procedure Act and that he was entitled to some
advice as to which mode of trial was to be preferred in his case. In the alternative, Mr S argued that the trial was a
nullity and therefore of no effect because he was denied a fundamental choice.
In response, the Crown argued the error did not give rise to any unfairness and there was no nullity.
The Supreme Court has dismissed Mr S’s appeal and upheld the convictions. The Court unanimously agreed that, while the
election as to mode of trial was an important decision, the failure to make that election did not affect the
jurisdiction of the District Court to try the proceedings and did not constitute a nullity. The Court was also agreed
that there was nothing to support the conclusion that the error had created a real risk that the outcome of the trial
was affected. Nor was the trial unfair. The Court did not need to decide whether the position was different where a
defendant was denied the right to elect a jury trial.
In addressing the fairness of the trial William Young, O’Regan and Ellen France JJ said that, in assessing the
importance of the absence of informed choice in this case, any advice about the mode of trial would involve experience
and impression and so necessarily involve a degree of speculation. Further, William Young, O’Regan and Ellen France JJ
saw it as relevant that Mr S had been given the rights protected in the New Zealand Bill of Rights Act 1990 which
include the right to trial by jury in certain cases. Nor could it be said Mr S had received an inferior process where
there was no criticism of the conduct of the trial other than the absence of an informed choice as to whether to elect a
Glazebrook and Arnold JJ, writing separately, differed in some aspects of the reasoning. They considered that a trial
where the defendant lost the ability to choose the mode of trial could be characterised as unfair if the defendant could
show with something other than hindsight that a different mode of trial would have been elected. They considered that in
this case no other basis was provided.
Scoop copy of judgment: 2018NZSC124SvR.pdf