Angus v The Queen
[2019] NZCA 396
•20 August 2019 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA190/2019 [2019] NZCA 396 |
| BETWEEN | MELISSA JANE ANGUS |
| AND | THE QUEEN |
| Hearing: | 20 August 2019 |
Court: | French, Collins and Stevens JJ |
Counsel: | F E Geiringer and J K Mahuta-Coyle for Applicant |
Judgment: | 20 August 2019 at 2.30 pm |
Reasons: | 29 August 2019 |
JUDGMENT OF THE COURT
The application to extend the time for filing an appeal is declined for want of jurisdiction.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
The applicant, Mrs Angus, wishes to appeal against 13 convictions entered against her in the District Court of being a party to theft by a person in a special relationship and/or by failing to account.[1] There is no appeal against sentence.
[1]Crimes Act 1961, ss 220, 222 and 223.
The appeal is advanced on the grounds that the District Court, in a pre‑trial ruling, erred in law by declining to grant a stay of the prosecution as the necessary remedy having found a breach of Mrs Angus’s right to trial without undue delay.[2]
[2]R v Angus [2017] NZDC 8675 at [42].
Following receipt of the above pre-trial ruling, Mrs Angus sought, and was granted, leave to withdraw the election she had previously made for trial by jury. The change of election occurred on 2 June 2017 when Mrs Angus opted in favour of a judge alone trial. Subsequently, the week before her trial was due to commence, Mrs Angus received a sentence indication. Thereupon Mrs Angus entered guilty pleas and was sentenced in the District Court to six months’ home detention with $10,000 reparation to be paid at $100 per week.[3]
[3]R v Angus [2019] NZDC 1245 at [14].
The circumstances of this case give rise to a question whether the appeal Mrs Angus wishes to advance should be filed in the High Court rather than in this Court. This turns on the appropriate appeal pathways as set out in the applicable provisions of the Criminal Procedure Act 2011 (the CPA) as amended by the Courts Matters Act 2018 (the CMA). This issue came before us as a discrete question of jurisdiction, separate from the substance of the appeal.
We have concluded that the appeal should have been filed in the High Court. This Court lacks jurisdiction to determine the appeal, given the procedural course adopted when the case was before the District Court.
When the application was heard on 20 August 2019 we were able to issue a results judgment with reasons to follow. These are our reasons.
Factual background
Mr and Mrs Angus ran a funeral business, Omega Funeral Services and Memorials (Omega), from 1998 until 2005 in Wainuiomata. One of the services offered was pre-paid funerals. Between 28 May 1998 and 9 August 2004 Mr and Mrs Angus received $93,259 from various people for pre-paid funeral services, on the basis that the funds would be held in a trust account and could not be accessed for any purpose other than to carry out the complainants’ funeral instructions.
When Omega went into liquidation in July 2005, it became apparent the funds had not been held on trust and they had in fact been used for the daily running of the company as well as the personal expenditure of Mr and Mrs Angus. A police investigation began in October 2005.[4] In mid-2007, however, Mr and Mrs Angus departed for Australia. In 2009 they were asked to return to New Zealand to discuss the allegations, but refused. This refusal, combined with limited police resources, resulted in the investigation being put on hold.[5]
[4]R v Angus, above n 2, at [6].
[5]At [7]–[8].
In 2014, Mr and Mrs Angus returned to New Zealand. They came to the attention of the police in September of that year, and the criminal investigation recommenced.[6] In early 2016, the police charged them jointly with ten charges of theft by a person required to account and three charges of theft by a person in a special relationship. By this stage, five of the complainants who provided statements had died.
[6]At [12(e)].
This necessitated an application by the prosecution for a pre-trial ruling that the statements of the deceased complainants were admissible at the trial. Judge Tompkins was satisfied that the circumstances relating to the complainants’ statements provided reasonable assurance as to their reliability.[7] The statements’ probative value also outweighed the risk that they would have an unfairly prejudicial effect on the proceedings.[8] The Judge ruled the statements admissible.[9]
[7]R v Angus [2017] NZDC 10666 at [22].
[8]At [23].
[9]At [25].
On appeal this Court agreed with the Judge’s analysis and concluded: “If these particular statements were not admissible under s 18, it is difficult to imagine what statement would be.”[10]
[10]Angus v R [2017] NZCA 454 at [7].
Mrs Angus had also applied for a stay on the basis of undue delay which was said to give rise to specific prejudice. Judge Tompkins referred to CT v R[11] for the proposition that the ultimate question is whether a fair trial is possible.[12] The Judge was satisfied that, while the delay in bringing the matter to trial was undue, it was not egregious; nor had there been prosecutorial misconduct.[13] The Crown case was found to be strong, relying on “an abundance of documentation”.[14] The Judge concluded that “it is likely the delay will not cause significant prejudice to the defendants in trial”.[15]
[11]CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [30].
[12]R v Angus, above n 2, at [13].
[13]At [42].
[14]At [42].
[15]At [42].
Mrs Angus applied for judicial review of the stay ruling. The High Court concluded that the Judge had properly turned his mind to an evaluation of the effect of delay on Mrs Angus’s right to a fair trial.[16] The Court found no error justifying its intervention.[17]
[16]Angus v District Court [2017] NZHC 2879 at [35].
[17]At [36].
Mrs Angus received the sentence indication referred to at [3] above just before her trial was due to commence. The Judge took a starting point of two and a half years’ imprisonment and applied discounts of 15 per cent for good character, 20 per cent for the undue delay to trial, 15 per cent for guilty pleas, and a “slight” further reduction for the offer to pay reparation at $100 a week. Having received such sentencing indication, Mrs Angus entered guilty pleas and was sentenced by Judge Harrop in line with the sentence proposed.
Preliminary point regarding appropriate appeal court
Mrs Angus wishes to appeal against conviction. Having filed the appeal in this Court, counsel for Mrs Angus, Mr Mahuta-Coyle, realised that the coming into force of the CMA on 14 November 2018 raised the issue of whether the appeal had been properly filed in this Court. Counsel for the parties have co-operated to facilitate the hearing of a preliminary point to determine this jurisdictional issue.
The appeal was filed approximately two months out of time. Although the Crown has suffered no prejudice and does not oppose an extension of time, we consider that it would not be appropriate to grant such extension if there is no jurisdiction to hear the appeal.
Background to the jurisdictional issue
Prior to the enactment of the CMA, s 230 of the CPA provided that this Court was the first appeal court for an appeal against conviction in a category 3 matter “after the convicted person elected a jury trial”. Otherwise, appeals would be heard by the High Court.
In Jackson v R this Court held that the words “elected a jury trial” meant just that, and “[t]he election, not the actual mode of subsequent trial, is the governing or controlling event”.[18] Thus, even a withdrawn election would therefore continue to affect appeal pathways. A Full Court of this Court upheld Jackson in Vohra v R.[19]
[18]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [19].
[19]Vohra v R [2018] NZCA 128 at [20].
This interpretation led to anomalies. Ms Brook for the Crown invited us to consider the position of two hypothetical appellants: A and B charged with category three offences who were remanded for plea entry on the same date. On that date A pleaded not guilty and was remanded for a case review hearing (CRH). B pleaded not guilty, elected trial by jury, and was remanded for a CRH on the same date as A. At the CRH, A maintained his not guilty plea and was remanded for a judge alone trial. B maintained his not guilty plea, was granted leave to withdraw his election of jury trial, and was also remanded for a judge alone trial. Both were convicted at trial. A’s appeal against conviction would lie to the High Court. It seems clear that, applying the approach in Jackson, B’s appeal would lie to this Court, despite the fact their prosecutions had, in substance, followed identical procedural paths.
The response of Parliament to such anomalies came in the CMA which amended ss 219, 230, 247, 272 and 297 of the CPA by adding an additional subsection to each section providing that a withdrawn election should be treated as never having been made, except where an appeal has already been filed prior to the election being withdrawn.[20] As this Court has recently observed in Wirihana v R:[21]
… 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.
(Footnotes omitted.)
[20]Courts Matters Act 2018, ss 40–44.
[21]Wirihana v R [2019] NZCA 368 at [13].
The fact these were the only changes regarding elections made by the CMA, suggests that Parliament otherwise agreed with this Court’s approach to that issue in Jackson. Thus an election that has not been withdrawn continues to determine the appeal pathway for an appeal, even if no jury trial is actually held. This Court in Wirihana held that the amending provisions of ss 230(2) and 247(2) of the CPA do not apply where the appellant, having previously elected trial by jury, entered a plea of guilty without having formally withdrawn the election under s 53 of the CPA. In such a case any appeal would be heard in this Court.[22]
[22]At [25]–[26].
In Wirihana, this Court did not need to consider the question of which appeals before this Court are subject to the amendments introduced by the CMA.[23] We therefore must consider that issue, specifically whether the CMA amendments apply to the present case.
Our analysis
[23]At [27].
There are no transitional provisions in the CMA in relation to ss 40–44 of that Act.[24] For the Crown, Ms Brook drew our attention to s 23 of the Interpretation Act 1999 which provides that an amending enactment becomes part of the enactment it amends. Section 7 of the Interpretation Act provides that enactments do not have retrospective effect.[25] Hence the Crimes Act 1961 and Summary Proceedings Act 1957 continue to govern appeals in pre‑CPA matters. Moreover, the CMA amendments do not apply to appeals which have already been filed prior to 14 November 2018, when the CMA came into force.
[24]Except for the specification in the amendments to ss 219, 272 and 297 of the Criminal Procedure Act that any appeal commenced before the date on which the defendant withdrew his or her election must be determined by the court that had jurisdiction to determine the appeal at the time it was commenced.
[25]The Courts Matters Act amendments only apply to appeals from decisions made in prosecutions that were commenced since 1 July 2013.
Accordingly, for prosecutions commenced after 1 July 2013, the CMA provisions will apply to all appeals filed on or after 14 November 2018, regardless of the date upon which charges were laid or elections were entered or withdrawn. While appeals filed prior to 14 November 2018 will continue to be determined in accordance with Jackson, in other contexts the CMA provides that it may apply to proceedings already extant as at the 14 November 2018 commencement date. However, that is not the case with the appeal pathway provisions.[26] An appeal will be governed by the law applicable at the time it was filed in the usual way. This is because an appeal is a separate (although related) proceeding from the underlying prosecution.[27]
[26]See schs 1, 4 and 5 of the Courts Matters Act.
[27]While a prosecution may comprise a number of pre-trial applications and other interlocutory matters, an appeal is obviously filed in a different court to the prosecution and is given its own case reference number.
The present appeal was filed on 1 May 2019, well after the 14 November 2018 commencement date. The CMA amendments therefore apply. We can see no legal or policy reason why the amendments should not apply, notwithstanding the fact that the election was withdrawn on 2 June 2017 well prior to the 14 November 2018 commencement date. The amendments are purely procedural and do not have any substantive effect on the applicant’s right of appeal against conviction. Her right is to have an appeal heard and determined; not to have it determined by any particular court.[28]
[28]Foodstuffs (Auckland) Ltd v Commerce Commission [2002] 1 NZLR 353 (CA); and R v Bain [2008] NZCA 585.
For the above reasons we are satisfied that this Court has no jurisdiction to deal with the appeal. The High Court is the correct first appeal court pursuant to s 230 of the CPA.
Result
The application to extend the time for filing an appeal is declined for want of jurisdiction.
Solicitors:
Crown Law Office, Wellington for Respondent
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