Churchis v The King
[2024] NZCA 262
•24 June 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA391/2015 [2024] NZCA 262 |
| BETWEEN | STEVEN RAY CHURCHIS |
| AND | THE KING |
| CA455/2016 | ||
| BETWEEN | TYSON-TAINUI RUKUWAI TE TOMO | |
| AND | THE KING | |
| Court: | Goddard and Cooke JJ |
Counsel: | S K Green for Appellants |
Judgment: | 24 June 2024 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for a joint oral hearing of the appeals is declined.
BWe make the directions set out at [19] and [20] of this judgment.
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REASONS OF THE COURT
(Given by Cooke J)
By memorandum dated 25 March 2024 the appellants in these appeals seek directions that their substantive appeals and associated applications be dealt with together at an oral hearing.
Mr Churchis has filed an application to withdraw a notice of abandonment of his sentence appeal that was filed in 2016. He also seeks a direction that his former counsel, Mr Pyke, not be required to file evidence in relation to that application. In addition, he applies under r 23(2) of the Court of Appeal (Criminal) Rules 2001 (the Rules) to review an earlier decision of Collins J that this application be dealt with separately on the papers. He seeks a direction that there be an oral hearing in accordance with s 329 of the Criminal Procedure Act 2011.
There are no such additional directions sought in relation to Mr Te Tomo’s appeal. He filed an appeal against sentence in 2016 which has not been determined or abandoned. He accordingly does not need leave to withdraw any notice of abandonment, and neither is there an existing decision that his appeal be determined without an oral hearing. His application is limited to an application that his appeal be heard together with that of Mr Churchis. Ms Green acts for both appellants.
The respondent opposes the applications made by Mr Churchis. It is argued that the notice of abandonment should be dealt with separately on the papers, and that it will be necessary for Mr Pyke to give evidence to explain the abandonment. In the case of Mr Te Tomo, the respondent argues the position is more straightforward as an undetermined notice of appeal against sentence exists. The respondent accepts that Mr Te Tomo is entitled to an oral hearing of this appeal and that it should be set down at the earliest convenience. The respondent abides the decision of the Court in relation to the scheduling of the appeals but contends that Mr Churchis’ leave application should be heard and determined first.
Relevant background
Mr Churchis was found guilty of murder following a jury trial in 2014. He was 17 years of age at the time of the offending. On 17 September 2014, he was sentenced to life imprisonment with a minimum period of imprisonment of 11 years and six months.[1] On 17 July 2015, he filed an appeal against both conviction and sentence. This was nine months out of time but he filed an affidavit explaining the delay, which included him saying that his previous lawyer did not accept instructions to file an appeal. He said that his new counsel, Mr Pyke, advised him of his options. He was then allowed to pursue the appeals.[2] When Mr Pyke subsequently advanced Mr Churchis’ appeal his written submissions only addressed the appeal against conviction and that was the only matter addressed in the Court’s judgment where the appeal was dismissed.[3] It was subsequently realised that his sentence appeal technically remained extant. This was drawn to Mr Pyke’s attention and a notice of abandonment dated 18 July 2016 was then filed.
[1]R v Churchis [2014] NZHC 2257 at [33].
[2]Churchis v R [2016] NZCA 264 at [2].
[3]At [54].
More than seven years later, on 14 November 2023, Mr Pyke filed a notice of appeal against sentence. When he was reminded by the Registry of the earlier abandonment an application for leave to withdraw the notice of abandonment was filed. On 4 December 2023, Collins J then directed that the application for leave should be dealt with separately on the papers.
For Mr Churchis, Ms Green argues that both appeals involve arguments that the sentence is manifestly excessive in the circumstances, particularly because of the age of the appellants. She says the appeals raise similar issues to the cases recently addressed by this Court in Kriel v R.[4] She indicates that in each case leave to file fresh evidence will be sought directed to age-related and personal considerations. She submits that addressing the right to bring the appeal separately, and without an oral hearing, will mean the right to appeal reflected in s 25(h) of the New Zealand Bill of Rights Act 1990 and s 244 of the Criminal Procedure Act will be denied. Such an approach would be rule-bound and not focussed on the end result or the merits of the appeal against sentence.
[4]Kriel v R [2024] NZCA 45.
Ms Green further argues that counsel involved for Mr Churchis need not file affidavits. She submits that it is “axiomatic” why they did not advance an application for a finite sentence or advance an argument that the sentence imposed was manifestly excessive. There has been a change to the approach to sentencing since this Court’s decision in Dickey v R.[5] The approach of Mr Churchis’ counsel can be gleaned from the memoranda they filed before the Court.
[5]Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405.
Ms Brook argues that the application for leave to withdraw the notice of abandonment should be dealt with separately, with evidence from counsel provided, and that the application should be determined on the papers in the normal way. That application is unlikely to be successful as granting leave to withdraw a formal abandonment after more than seven years would undermine the principle of finality and the merits of the proposed appeal are not strong.
Assessment
As this Court’s decision in Kriel demonstrates, permitting appeals against sentence to be pursued many years out of time requires careful consideration balancing the strength of the potential appeal against the principle of finality of criminal proceedings.[6] In that decision only one of the five applications to pursue an appeal out of time was granted. Each proposed appellant advanced similar arguments to what is proposed to be advanced here —that the appellant was young at the time of his offending and the impacts of youth were not properly appreciated given subsequent decisions concerning youth offending. The Court in Kriel addressed these questions in advance of any substantive appeal. The judgment also provides guidance on how such applications, including the application made by Mr Churchis, should be considered.
[6]Kriel v R, above n 4, at [79]–[87].
There is force in Ms Brook’s submission that, applying the approach in Kriel, Mr Churchis’ proposed appeal is unlikely to have sufficient merit to justify it being advanced so many years later. In common with the cases where leave to do so was declined in Kriel, Mr Churchis’ case involved the application of s 104 of the Sentencing Act 2002. In Kriel, the Court found that for this reason the proposed appellants’ cases were distinguishable from those addressed in Dickey v R.[7]
[7]At [106(a)], [109(a)], and [117]. See in contrast [112(a)] where s 104 was not engaged, and the application for an extension of time was granted.
The position appears even clearer in relation to Mr Churchis because he filed a notice of abandonment of a sentence appeal. This suggests that the position was considered by Mr Churchis and his counsel at the time and a decision was made not to pursue a sentence appeal. It will likely be more difficult for Mr Churchis to obtain leave to pursue his appeal some ten years after the sentence was imposed, in those circumstances.
For these reasons we conclude that it is necessary for Mr Churchis’ application to withdraw the notice of abandonment to be dealt with separately from any substantive appeal.
We also agree with the respondent’s submission that it will be necessary for there to be evidence from Mr Churchis addressing the notice of abandonment. The circumstances of the abandonment will need to be explained. Rule 12A of the Rules will apply if there is any complaint about the conduct of Mr Churchis’ lawyers at sentencing, and by extension that approach will also apply to a complaint concerning counsel instructed on the sentence appeal. Mr Churchis will also need to consider whether to provide a waiver of privilege. These principles will also be relevant to the foreshadowed application to file fresh evidence, as it will be necessary for Mr Churchis to explain why the relevant evidence was not available earlier, and why it could not with reasonable diligence have been provided at sentencing.[8] The respondent should also then be given an opportunity to respond to the evidence filed by Mr Churchis, which may include filing evidence from Mr Pyke if Mr Churchis has not already done so. We accordingly decline to direct that no evidence from Mr Pyke is required: that is a matter for each party to consider, having regard to the issues raised by the application to withdraw the notice of abandonment.
[8]See Watson v R [2023] NZCA 552 at [26]–[27].
Mr Churchis’ application that these matters all be dealt with orally at the hearing of his appeal, reviewing the earlier direction of Collins J, is accordingly also dismissed. We consider that the application to withdraw the notice of abandonment should be dealt with separately from the appeal. Given the approach outlined by this Court in Kriel we consider that this application should be dealt with on the papers. However we reserve leave for either party to renew an application that this matter be dealt with at an oral hearing as a consequence of the content of evidence that is filed in relation to the application. An oral hearing may be required if there is a need for cross‑examination to fairly deal with the application, for example.
The position in relation to Mr Te Tomo is less complicated. Unlike Mr Churchis (who filed a notice of abandonment of his sentence appeal) or the appellants addressed in Kriel (who had not filed sentence appeals), Mr Te Tomo filed a sentence appeal which technically remains extant. He is entitled to pursue that appeal. In those circumstances he is entitled to have his sentence appeal set down for hearing. If he wishes to have that hearing delayed until the position concerning Mr Churchis is determined, with his appeal heard together with Mr Churchis should Mr Churchis’ application be successful, he can apply for them to be heard together at that stage.
We understand that Mr Te Tomo will wish to make an application to file fresh evidence, however. Rule 12B, including sub-r (3), will apply if he does so.
Result
The application for a direction that there be a joint oral hearing of the appeals is declined.
We make the following directions in relation to Mr Churchis’ applications:
(a)Mr Churchis is to file and serve his evidence in support of his application for leave to withdraw his notice of abandonment within 20 working days of this judgment.
(b)If Mr Churchis wishes to waive privilege under section 65 of the Evidence Act 2006 in respect of communications with his trial lawyer and/or the lawyer previously instructed by him on his appeal, Mr Churchis must within 20 working days of this judgment provide to the prosecutor a written waiver of privilege in respect of all communications of that kind.
(c)The respondent is to file and serve any evidence in response within 15 working days thereafter.
(d)Any application that there be an oral hearing of that application must be filed and served 10 working days after service of the respondent’s evidence.
(e)Mr Churchis’ submissions in support of his application should be filed and served within 20 working days from the date for service of the respondent’s evidence.
(f)The respondent’s submissions in opposition should be filed and served within 15 working days of the service of the applicant’s submission.
We make the following directions in relation to Mr Te Tomo’s appeal:
(a)Any application to file fresh evidence under r 12B of the Rules must be filed and served within 20 working days of this judgment.
(b)Any evidence from the respondent in response must be filed and served 15 working days thereafter.
(c)The Registrar is to consult with counsel for Mr Te Tomo to establish whether she wishes the appeal to be set down for hearing or await the outcome of Mr Churchis’ application.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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