Clark v Registrar of The Manukau District Court
[2012] NZCA 193
•15 May 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA396/2011 [2012] NZCA 193 |
| BETWEEN REBECCA SHARLENE CLARK, RUTH AFAKASI AND HATENI VAENUKU |
| AND THE REGISTRAR OF THE MANUKAU DISTRICT COURT |
| AND THE LEGAL SERVICES AGENCY |
| Hearing: 14 March 2012 |
| Court: Randerson, Harrison and Wild JJ |
| Counsel: T Clee for Appellants |
| Judgment: 15 May 2012 at 3 p.m. |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellants, jointly and severally, must pay to the second respondent costs as for a standard appeal on a band A basis and usual disbursements.
___________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Table of Contents
| Para No | |||
| Introduction | [1] | ||
| The circumstances of the individual appellants | [6] | ||
| A preliminary point | [10] | ||
| The change from the preferred lawyer system | [13] | ||
| The right to counsel generally | [23] | ||
| The statutory framework | [27] | ||
| The Legal Services Act 1991 (the 1991 Act) | [30] | ||
| The Legal Services Act 2000 (the 2000 Act) | [37] | ||
| The Legal Services Act 2011 (the 2011 Act) | [45] | ||
| Is the decision of this Court in R v Heemi still good law? | [49] | ||
| Decisions under Article 6(3) of the European convention | [52] | ||
| Article 14, paragraph (3)(d) of the ICCPR | [70] | ||
| Canadian and Australian authorities | [76] | ||
| Authorities in the United States | [84] | ||
| Conclusions in relation to s 24(c) and (f) of the Bill of Rights Act | [86] | ||
| The provision of legal assistance “without cost” | [98] | ||
| Conclusion | [102] |
Introduction
The issue in this appeal is whether legally-aided defendants in criminal proceedings are entitled to choose the counsel assigned to represent them. The appellants all faced criminal charges in the Manukau District Court and were eligible for the grant of legal aid in respect of category 1 and 2 offences.[1] They each brought judicial review proceedings in the High Court seeking declaratory and other relief on the grounds that they had been wrongly denied their choice of counsel by the second respondent, the Legal Services Agency (the LSA).[2]
[1]Criminal charges are categorised by the LSA into one of four different criminal proceedings categories. Categories 1 and 2 apply to charges with maximum penalties of less than ten years imprisonment and categories 3 and 4 apply to charges with maximum penalties of ten years imprisonment or more.
[2]Afakasi v Registrar of Manukau District Court HC Auckland CIV-2010-404-8017, 27 May 2011; Clark v Registrar of Manukau District Court HC Auckland CIV-2010-404-8019, 27 May 2011; Vaenuku v Registrar of Manuaku District Court HC Auckland CIV-2010-404-8453, 27 May 2011.
The appellants relied particularly on the rights expressed in s 24(c) and (f) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act) which provides:
Everyone who is charged with an offence:
…
(c) Shall have the right to consult and instruct a lawyer; and
…
(f)Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance;
…
The issue arose after the LSA changed its policy on assignment of counsel with effect from 29 November 2010 in respect of category 1 and 2 offences. Instead of allowing legally aided persons to choose their counsel (sometimes referred to as the preferred lawyer policy), the LSA adopted a policy of allocating counsel by rotation from a list of approved lawyers.
In the High Court, Ellis J found against the appellants. The Judge reviewed existing authorities in New Zealand and overseas in which comparable international instruments have been interpreted. She concluded that the authorities pointed overwhelmingly against the case advanced by the appellants. Whether the rights conferred by s 24(c) and (f) of the Bill of Rights Act were viewed separately or together, they could not be construed as conferring on legally aided defendants either a partial or an absolute right to counsel of their choice. While a presumption of choice could be said to exist under s 24(c) where legal aid was not sought, no such presumption existed under s 24(f) in relation to legally aided defendants.
The appellants challenge the Judge’s conclusions in a number of respects. In particular, they submit that overseas authority supports the proposition that a state-funded defendant in a criminal case is entitled to choose his or her counsel.
The circumstances of the individual appellants
Ms Clark faced two charges of breach of community work against a background of previous breaches. She applied for legal aid on 29 November 2010, nominating Mr Clee to act on her behalf as he had previously acted for her and knew her history. Mr Clee was not assigned to her case.
Ms Afakasi faced three charges of theft and applied for legal aid on 12 November 2010. She did not nominate a preferred lawyer. Legal aid was granted and a member of the Public Defence’s Service assigned. Ms Afakasi stated in an affidavit that she had intended to nominate a preferred lawyer but could not remember the lawyer’s name. When she reappeared in court on 29 November 2010, she was advised she could no longer nominate a preferred lawyer.
Mr Vaenuku faced one charge of driving with excess breath or blood alcohol on a third or subsequent occasion. He first applied for legal aid on 14 October 2010. He did not nominate a specific lawyer but said he would prefer a Tongan lawyer or at least an interpreter. Legal aid was granted and Mr Sharan assigned. On 21 October 2010, Mr Vaenuku applied again for legal aid through his preferred lawyer, Mr Tupou. On 29 November 2010, Mr Vaenuku requested that his case be reassigned to Mr Tupou but the LSA rejected this request on the ground that legal aid had already been granted and counsel assigned.
The grant of aid to Ms Clark was not subject to any repayment obligation but the grants for Ms Afakasi and Mr Vaenuku were subject to repayment obligations. We later address the implications of the repayment obligations when considering s 24(f) of the Bill of Rights Act.
A preliminary point
For the second respondent, Mr Powell submitted that the appeal was moot on two grounds. First, two of the appellants had ultimately been represented on a pro bono publico basis by Mr Clee (counsel of their choice) and the third had been represented by a lawyer assigned from the Public Defence Service. Mr Powell submitted that the appellants no longer required legal aid and were not pursuing the applications for legal aid on which the proceeding was based. Secondly, he submitted that the utility of interpreting the Legal Services Act 2000 was questionable given that it has now been replaced by the Legal Services Act 2011.
We accept that, in general, an appellate court must carefully consider whether to determine an appeal when there is no longer a live issue arising. As the Supreme Court has recently observed in Gordon-Smith v R,[3] the primary responsibility of the courts is to determine live controversies between citizens and to develop the law of New Zealand in that context. However, as the Supreme Court also noted, that concern is met if the question is one of significant public importance which is highly likely to come before the court again at some point.
[3] Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721 at [24].
We have concluded that the issue arising in this case is one which is likely to come before the courts again and that it is an issue of real importance in the administration of criminal justice in this country. As Mr Powell accepted, the resolution of this appeal does not turn upon the interpretation of the Legal Services Acts of 2000 or 2011. Rather, it depends upon whether the legal aid scheme administered by the LSA breaches the appellants’ rights under s 24(c) and (f) of the Bill of Rights Act. On that footing, we are satisfied that the decision of this Court on appeal will have enduring application to future cases even if it will not directly assist the present appellants.
The change from the preferred lawyer system
In 2009, the legal aid system was subject to a Ministerial review, chaired by Dame Margaret Bazley. In her final report, Dame Margaret said the preferred lawyer policy caused distortions by interfering with the efficient allocation of cases.[4] She added that the preferred lawyer system:[5]
… enables lawyers to take on too many cases, with no effective oversight of their caseload. Those lawyers who lack effective support systems do not always refer files on, and instead end up using court scheduling to manage their time, which leaves the court at their mercy.
[4]Dame Margaret Bazley Transforming the Legal Aid System – Final Report and Recommendations (Ministry of Justice, Wellington, 2009).
[5] At 448.
Dame Margaret rejected an argument promoted by the New Zealand Law Society that the ability to choose one’s lawyer was important in order to build a relationship of trust between lawyer and client. It was said this was essential to the smooth running of cases and the effective resolution of disputes. While Dame Margaret accepted the force of this argument for mental health, domestic violence and family law cases, she considered that the abuses of the system which had been related to her outweighed the benefits of the preferred lawyer system. She recommended that the preferred lawyer policy be dispensed with in “standard low-cost cases”.[6]
[6] At 450 and 451.
This recommendation was adopted by the Minister of Justice as part of a number of reforms to the legal aid system. The 2011 Act was passed to implement those reforms requiring legislative amendment.
The LSA developed a new case assignment policy and undertook public consultation. A submission made by the New Zealand Law Society said:
The Society’s Criminal Law Committee supports a strict rotation policy for all categories provided the rotational lists have integrity (see discussion below on Quality). The Society is aware of some abuses of the current system and that some legal aid providers are taking on an unmanageable number of cases under the preferred lawyer policy. In the Manukau District Court half of all assignments go to ten of the 167 lawyers who received assignments. From 01.05.09 to 30.04.10 these ten lawyers received on average 267 cases. One lawyer undertook 599 cases in one year. Putting aside whether or not a competent lawyer could manage this number of cases, such a high allocation causes significant scheduling problems and delays for the courts.
The Law Society submission went on to express concerns about the quality of legal representation in some cases. This led it to question whether it was prudent to remove choice of counsel for category 3 and 4 cases where clients face serious penalties such as life imprisonment. The submission noted that a number of lawyers were more accepting of strict rotation for category 1 and 2 cases with a preferred lawyer policy for category 3 and 4 cases.
After completion of the consultation process, the LSA adopted the rotational assignment policy for certain legal aid cases, effective from 29 November 2010. In criminal cases falling within categories 1 and 2, lawyers are now assigned by rotation from assignment lists maintained by the responsible authority. It is intended that, as far as possible, the listed lawyers will receive an even number of cases. The preferred lawyer policy continues to apply to category 3 and 4 criminal cases.
The policy in respect of category 1 and 2 criminal cases has limited exceptions where the aided person:
(a)Is already receiving aid for active charges;
(b)Is subject to the Mental Health (Compulsory Assessment and Treatment Act) 1992 or the Intellectual Disability Compulsory Care and Rehabilitation Act 2003; or
(c)Has received initial advice from a Police Detention Legal Assistance (PDLA) lawyer outside usual working hours.
None of these exceptions applies to the appellants.
The new policy allows for limited reassignment of cases to another lead provider where there has been a genuine breakdown in the relationship between the aided person and the provider; where the provider is required to withdraw for ethical reasons; where the categorisation of the case changes; where a case has been assigned in error; or where other exceptional circumstances exist.
The preferred lawyer policy continues to apply to civil and family matters.
The right to counsel generally
The right to a fair trial is guaranteed by s 25(a) of the Bill of Rights Act. It is an absolute right. A fundamental feature of a fair trial is the right to legal representation under s 24(c) of the Bill of Rights Act. The importance of the right to legal representation in criminal trials has been underlined by the Supreme Court in Condon v R.[7] The Court concluded[8] that the common premise in the authorities (both in New Zealand and elsewhere) is that representation by a lawyer at trial is nearly always necessary in order for a trial for a serious offence to be fair. In consequence, an accused person must have legal representation or at least have been afforded a reasonable opportunity of attaining it when charged with a serious offence. Specifically in relation to s 24 of the Bill of Rights Act, the Supreme Court said the section:[9]
… does not guarantee the provision of a lawyer for the defence in all cases, even when the charge being faced by the accused is of a serious crime. An accused has the right to employ a lawyer, but the state does not guarantee to provide the lawyer’s services – in this respect its role is passive, in the sense that it must not impede the exercise of the right by the accused. The exception is under s 24(f), when the accused does not have sufficient means to provide for legal assistance. Even in such a case, however, it is the accused who must take the necessary steps to obtain assistance under the Legal Services Act.
[7] Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.
[8] At [73].
[9] At [76].
The Supreme Court agreed with the conclusion of the High Court of Australia in Dietrich v R[10] that, other than in exceptional circumstances, an accused who conducts his or her own defence to a serious charge, without having declined or failed to exercise the right to legal representation, would not have had a fair trial. In the absence of waiver or forfeiture as contemplated by s 30 (2) and (4) of the Sentencing Act 2002, if legal counsel is not available at trial, there will have been a breach of one or more of the subsidiary rights in s 24 of the Bill of Rights Act and prima facie, an unfair trial will have resulted from that breach. A conviction obtained in such circumstances would be quashed unless the Crown is able to satisfy the appeal court that the trial was actually fair in terms of s 25(a). The conclusion that the trial was fair is not one to which a court would easily be drawn.[11]
[10] Dietrich v R (1992) 177 CLR 292 (HCA).
[11] Condon above n 7 at [79].
The Supreme Court went on to state that, in contrast, there will be no breach of the s 24 rights if an accused makes an informed choice to go to trial without legal representation. Similarly if an accused is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay in holding the trial is not to be tolerated. Even so, an appeal court must also examine the overall fairness of the trial.[12]
[12] At [80].
Before leaving this overview of the right to counsel, it is important to record that, in terms of s 354 of the Crimes Act 1961, an accused person has every right to represent himself or herself at trial without legal assistance, even if this might be considered to be an unwise choice.
The statutory framework
Ellis J traversed the historical background to the ability of parties in civil and criminal proceedings to instruct counsel. It is unnecessary for us to repeat her analysis which is largely of historical interest. As the Judge noted, legislation in the United Kingdom in the 19th century provided for forms of criminal legal aid.[13] In New Zealand, a limited form of legal aid was introduced by way of amendment to the Justices of the Peace Act 1912. The Judge observed that there were no constraints on choice in the early legislation and concluded that it could be assumed that the right to choose one’s counsel was implicit, at least insofar as the relevant prisoner could afford to exercise that right.
[13] The Prisoners Counsel Act 1836 (UK) and the Poor Prisoners Defence Act 1903 (UK).
The Judge also said, correctly in our view, that the right to choose counsel for those who can afford to do so, has been anchored in the concept of a fair trial. She saw that outcome as the most fundamental object of the right.
We now refer briefly to the Legal Services Acts of 1991, 2000 and 2011.
The Legal Services Act 1991 (the 1991 Act)
Under the 1991 Act, the grant of legal aid was undertaken by the registrar of the court in which the trial was to occur. The registrar was responsible for assigning a practitioner to act for any person entitled to legal aid. The practitioner would be assigned from a list of approved practitioners who, in the opinion of a district law society, were fit and proper persons for the task.[14]
[14] Legal Services Act 1991, ss 17 and 18.
This Court had occasion in R v Heemi[15] to consider whether an accused person granted aid under the 1991 Act had the right to counsel of choice. Counsel for Mr Heemi contended that the right to a fair trial affirmed in s 25(a) of the Bill of Rights Act required the defendant in a criminal trial to be placed on a footing of equality with the prosecution. In consequence, it was contended, Mr Heemi was entitled to choose the lawyer who was to represent him.
[15] R v Heemi (1998) 16 CRNZ 221 (CA).
In rejecting this contention, this Court agreed with an earlier decision by Cartwright J in Bailey v Whangarei District Court[16] that the intention of Parliament was clear from the natural and ordinary meaning of the 1991 Act. The purpose of the legislation was to make legal assistance and legal services more readily available to persons of insufficient means. The registrar’s obligation was to assign (appoint) a person selected by the registrar from the list of approved practitioners. If the legislature had intended to give an accused a choice of counsel under the 1991 Act, Parliament would have used other language.[17]
[16] Bailey v Whangarei District Court (1995) 13 CRNZ 231, 2 HRNZ 275 (HC).
[17] At pages 226–227.
The Court in Heemi went on to consider s 24(c) and (f) of the Bill of Rights Act and similar provisions in Art 14, para 3(d) of the International Covenant on Civil and Political Rights (the ICCPR) and Art 6(3)(c) of the European Convention on Human Rights (the European Convention) as well as relevant international authorities. In particular, this Court noted that the Human Rights Committee of the United Nations had not interpreted Art 14, para 3(d) of the ICCPR as entitling the accused to choose counsel provided free of charge.[18]
[18]Referring to Pratt and Morgan v Jamaica, Communication No. 210/1986 & 225/1987, CCPR/C/35/D/225/1987 (7 April 1989) at [13.2]; and Kelly v Jamaica, Communication No. 253/1987, CCPR/C/41/D/253/1987 (10 April 1991) at [5.10].
This Court also observed[19] that the European Commission on Human Rights had “consistently held” that Art 6(3)(c) of the European Convention does not provide the right for legally aided applicants to choose their legal representative.[20]
[19] At 228.
[20] Referring to Application No 9728/87 v UK (1983) 6 EHRR 345 (ECHR).
The Court concluded that the 1991 Act was not capable of a meaning which would allow for a choice of lawyer by the appellant. The Court agreed with Cartwright J, and with a submission by counsel for the Crown, that there were a number of practical reasons to support this conclusion:
It was in the interests of all legally aided accused to ensure that counsel appointed were not over-burdened with work and that less experienced lawyers gained experience in appropriate cases.
Additional expense would be incurred if accused persons were entitled to select counsel from other areas, when appropriately qualified representation was available locally.
By reason of counsel’s conflicting engagements, allowing legally aided persons free choice had the potential to cause delays and cause serious problems in the despatch of court business, a matter in which the community has a legitimate interest.
Mr Clee submitted on behalf of the appellants that Heemi was either wrongly decided or could be distinguished. We will return to this submission after consideration of the Legal Services Acts of 2000 and 2011.
The Legal Services Act 2000 (the 2000 Act)
The legal aid system is the statutory mechanism through which the state’s obligation under s 24(f) of the Bill of Rights Act is fulfilled. Relevantly, the purpose of the 2000 Act was to promote access to justice by providing a legal aid scheme that assisted people who had insufficient means to pay for legal services to nonetheless have access to them.[21] The 2000 Act established the LSA and gave it responsibility (amongst other things) for administering legal aid schemes “in as consistent, accountable, inexpensive, and efficient a manner as is consistent with the purpose of this Act”.[22]
[21] Legal Services Act 2000, s 3(a).
[22] Legal Services Act 2000, s 92(a).
The 2000 Act established a legal aid scheme by Part 2 of the Act. As well, it provided for the continuation of the Duty Solicitor and Police Detention Legal Assistance schemes developed under earlier legislation. The LSA was also empowered to develop pilot schemes for the delivery of legal aid and to hire salaried lawyers for that purpose.[23] The Public Defence Scheme began as a pilot under that provision.
[23] Legal Services Act 2000, ss 80 and 100.
Legal aid was available under the 2000 Act for criminal cases provided the applicant met certain threshold requirements. Those which applied to the appellants were that:[24]
…
(b)it appears to the Agency that the applicant does not have sufficient means to enable him or her to obtain legal assistance; and
(c)either –
(i)the offence to which the application relates is punishable by a maximum term of imprisonment of 6 months or more; or
(ii)it appears to the Agency that the interests of justice require that the applicant be granted legal aid.
[24] Legal Services Act 2000, s 8(1).
Between November 2001 and November 2010, the LSA operated a preferred lawyer policy when assigning lawyers for criminal legal aid. Under that policy, an applicant for legal aid could nominate a preferred lawyer. All things being equal, the case would be allocated to the preferred lawyer provided he or she was on the relevant legal services list. Where the applicant did not state a preference, a lawyer would be assigned on a rotational basis.
The only provision in the 2000 Act which Mr Clee could point to in support of the choice of counsel argument was s 14(1). Under that provision the LSA could grant or refuse aid or “request further information from the applicant, the proposed lead provider, or both”.[25] However, we agree with the Judge that the reference to the proposed lead provider does not imply that an applicant had a right to choose his or her lawyer under the 2000 Act.
[25] Legal Services Act 2000, s 14(1)(c).
The lead provider was defined in the 2000 Act as “the listed provider identified in the grant as the lead provider for that matter”.[26] When aid is granted, the 2000 Act required the LSA to specify conditions and identify the lead provider from a list of approved lawyers established and maintained by the LSA.[27] Beyond the listing requirement, the 2000 Act was silent as to how a lead provider would be identified. The reference to the “proposed lead provider” in s 14(1)(c) related to a stage before aid was granted or refused. The LSA could request further information either from the applicant or the proposed lead provider or both. At that juncture, the LSA might or might not have indicated who it proposed as the lead provider. We accept it is possible that the applicant could have requested a particular lawyer to be the lead provider if he or she saw fit to do so. However, we agree with the Judge that there was nothing in the 2000 Act which obliged the LSA to comply with any such request.
[26] Legal Services Act 2000, s 4.
[27] Legal Services Act 2000, ss 14(2)(b), 69 and 70.
In summary, the 2000 Act did not mandate a preferred lawyer policy, but nor did it preclude such a policy. In contrast to s 17 of the 1991 Act, the 2000 Act did not specify how the lead provider of aid would be identified. The preferred lawyer policy was developed by the LSA under the powers conferred on it by the 2000 Act supplemented by the broad powers available to it under the Crown Entities Act 2004 under which the LSA could do any act for the purpose of performing its statutory function.[28]
[28] Crown Entities Act 2004, ss 16–18.
As the Judge put it:[29]
Thus the [2000] Act does not prescribe how the [LSA] is to allocate legal aid assignments among the lawyers who are on its list. Rather, that is a matter of policy, subject only to the ambit of the [LSA’s] broad powers under the Crown Entities Act 2004, its functions under s 92 of the [2000 Act] and (of course) the dictates of any statute of general application such as [the Bill of Rights Act].
The Legal Services Act 2011 (the 2011 Act)
[29]Afakasi v Registrar of Manukau Dsitrict Court HC Auckland CIV-2010-404-8017; Clark v Registrar of the Manukau District Court HC Auckland CIV 2010-404-8019; Vaenuku v Registrar of Manukau District Court HC Auckland CIV-2010-404-8453 at [32].
The 2011 Act came into force on 1 July 2011 (with the exception of certain sections not relevant for present purposes). It applies to aid granted under the 2000 Act as if it had been granted under the 2011 Act.[30] Responsibility for the administration of legal aid is transferred from the LSA to the Secretary for Justice with the support of the Legal Services Commissioner.
[30] Legal Services Act 2011, s 132.
Like its predecessor, the 2011 Act requires the Secretary for Justice to identify a lead provider, but does not specify how the assignment takes place.[31] The Secretary is required by s 68 to “establish, maintain and purchase high-quality legal services”. In performing that function, the Secretary may:[32]
[31] Legal Services Act 2011, s 16(2).
[32] Legal Services Act 2011, s 68(2).
…
(c)determine the method or methods for the delivery of legal services; and
(d) determine the allocation of legal services –
(i)on the basis of the method or methods of delivery that the Secretary considers appropriate for the type of legal service to be provided, or
(ii)in any other manner that the Secretary considers appropriate;
…
The 2011 Act provides for an appointment of a Legal Services Commissioner whose functions are set out in s 71. Amongst other functions, the Commissioner is “to assign a provider of legal services … to an aided person.”[33] The Commissioner is required to “identify the lead provider”.[34] As was the case with the 2000 Act, the method of assignment or identification of a lawyer is not specified.
[33] Legal Services Act 2011, s 71(1)(c).
[34] Legal Services Act 2011, s 16(2)(b).
It is evident that the 2011 Act continues the statutory policy of conferring upon the responsible authority substantial flexibility in determining the method by which legal services may be delivered under the Act. There is nothing in the Act to suggest that legal aid recipients are entitled to choose who will provide those services.
Is the decision of this Court in R v Heemi still good law?
Ellis J accepted a submission made on behalf of the appellants that the statutory regime under the 2000 Act was materially different from that considered in Bailey and Heemi. She noted in particular that the words “assign” and “assignment” used in the 1991 Act were entirely absent from the 2000 Act as was “any analogous concept”. The Judge also took into account that the LSA had operated a preferred lawyer regime over the period 2001 to 2010. This indicated there was nothing in the 2000 Act which precluded a policy that permitted recipients of legal aid being able to choose their counsel if they wished to do so.[35]
[35] At [33].
In view of Mr Clee’s submission that the international jurisprudence (both before and after 1998) supported the appellants’ position, the Judge was prepared to look at the relevant jurisprudence afresh.[36]
[36] At [67]–[69].
Given the identified changes in the legislation from that existing when the choice of counsel issue was considered by this Court in Heemi and the existence of a number of relevant international authorities since that time, we intend to discuss whether there is any basis to revisit the conclusion reached in Heemi. We commence by reference to provisions in the international instruments which are equivalent to s 24(c) and (f) of the Bill of Rights Act, although not necessarily expressed in identical terms.
Decisions under Article 6(3) of the European Convention
Article 6(3) of the European Convention relevantly provides that:
Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
…
Ellis J discussed four decisions given by the European Commission on Human Rights (the ECHR) on Art 6(3)(c): M v United Kingdom,[37] Re Application No. 127/55,[38] X v Republic of Germany,[39] and F v Switzerland.[40]
[37] M v United Kingdom (1984) 36 DR 155.
[38] Re Application No. 127/55 24 ILR 368.
[39] X v Republic of Germany (1976) 6 DR 114.
[40] F v Switzerland (1989) 61 DR 171.
We do not intend to refer to these decisions in detail since they are fully canvassed in the High Court judgment.[41] It is enough to say that the ECHR has consistently held that Art 6(3)(c) does not provide the right for a legally aided applicant to choose his legal representative.
[41] At [72]–[81].
As the ECHR observed in X v Republic of Germany, Art 6(3)(c) does not guarantee a right even to be consulted with regard to the choice of a state-appointed defence counsel. And, in F v Switzerland, the ECHR confirmed that the primary focus of the right to free legal assistance is on the adequacy or effectiveness of the representation provided. At this point, we also need to emphasise that the ECHR was only in existence from the years of 1954 to 1998 and acted as a secondary body that determined whether applicants should be allowed access to have their case heard by the European Court of Human Rights (the European Court). The ECHR’s decisions are therefore, less authoritative than those of the European Court.
Ellis J also considered a series of decisions made by the European Court in relation to Art 6(3)(c). Mr Clee placed particular reliance upon the European Court’s decision in Pakelli v Germany.[42] He submitted that this Court in Heemi had been wrong not to refer to Pakelli. He drew our attention to [31] of the European Court’s judgment which states:
…a ‘person charged with a criminal offence’ who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing; if he does not have sufficient means to pay for such assistance, he is entitled under the Convention to be given it free when the interests of justice so require.
[42] Pakelli v Germany (1983) 6 EHRR 1 (ECHR).
Mr Clee submitted that the reference to “such assistance” and the reference to the entitlement of the person charged to be given “it” free, relates back to the earlier expression “legal assistance of his own choosing”. It followed, Mr Clee argued, that a person who had insufficient means to pay was entitled to legal assistance of his or her own choosing.
However, as Ellis J noted, the issue before the European Court was not whether Mr Pakelli was entitled to choose his own lawyer but whether he had been denied a lawyer when appealing his conviction on narcotics charges. The Judge also pointed out that, earlier in the same paragraph, the European Court held that:
Article 6 para 3(c) … guarantees three rights to a person charged with a criminal offence: to defend himself in person, to defend himself through legal assistance of his own choosing and, on certain conditions, to be given legal assistance free.
It is evident from this passage that the granting of legal assistance free of charge was not linked to the right of an accused person to defend himself through legal assistance of his or her own choosing. Therefore, while Pakelli may accurately be cited as the first authoritative pronouncement of the European Court indicating the desirability of legally aided litigants being provided with counsel of their choice, it also foreshadowed early on that the ability to choose counsel is necessarily subject to certain conditions where legally aided litigants are concerned.
More importantly, as Ellis J also found, the subsequent decisions of the European Court do not support the interpretation of the Pakelli judgment contended for by Mr Clee. Instead, they affirm the need for legal aid counsel appointments to be subject to various limitations. Chief amongst these authorities is the decision of the European Court in Croissant v Germany.[43] In Germany, the court appoints counsel for the accused person. At the time of the appointment, the ability of the accused to meet the cost of counsel is not in issue. The only question is whether the interests of justice require the appointment of counsel to represent the accused. The issue of payment does not arise until after the trial when the court considers the sufficiency of the accused’s means.
[43] Croissant v Germany (1993) 16 EHRR 135 (ECHR).
Mr Croissant had three lawyers appointed to represent him. Two of these were of his own choice. But Mr Croissant objected to the appointment of the third on the grounds that he had no confidence in the lawyer. A dispute arose after orders were made requiring Mr Croissant to reimburse the state for the fees and disbursements of all three counsel. In that context, Mr Croissant raised the issue of an accused’s right to choose counsel in terms of Art 6(3)(c), arguing he should not have to pay for the lawyer he did not choose.
As Ellis J noted, the judgment in Croissant focuses on the right to choose a lawyer but it does so in the context of court-appointed counsel, not state-funded legal aid. In particular, the court in Croissant said:[44]
It is true the Article 6 para 3(c) … entitles “everyone charged with a criminal offence:” to be defended by counsel of his own choosing (see the Pakelli v Germany judgment of 25 April 1983, Series A no. 64, p 15, para 31). Nevertheless, and notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where, as in the present case, it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant’s wishes; indeed, German law contemplates such a course (Article 142 of the Code of Criminal Procedure; see paragraph 20 above). However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.
[44] At [29] (emphasis added).
This passage makes two things clear. First, the right to counsel of choice provided for in the first part of Art 6(3)(c) is not absolute and may be overridden where the interests of justice require. Secondly, where state-funded legal assistance is involved, the right to choose counsel is necessarily subject to limitations.
Ellis J went on to note that the statement by the European Court in Croissant that there are limitations on the right to choose counsel where free legal aid is involved has been repeated by the Court in three subsequent decisions: Lagerblom v Sweden,[45] Mayzit v Russia,[46] and Vozhigov v Russia.[47] In each of these cases, the issue of the freedom of choice of counsel for legally aided persons was directly at issue. The principles established in Croissant were applied in each case.
[45] Lagerblom v Sweden (26891/95) Section IV, ECHR 14 April 2003 at [54].
[46] Mayzit v Russia (63378/00) Section I, ECHR 20 January 2005 at [66].
[47] Vozhigov v Russia (5953/02) Section III, ECHR 26 April 2007 at [41].
In Mayzit the Court also commented:[48]
Article 6-3(c) guarantees that proceedings against the accused will not take place without an adequate representation for the defence, but does not give the accused the right to decide himself in what manner his defence should be assured. The decision as to which of the two alternatives mentioned in the provision should be chosen, namely the applicant’s right to defend himself in person or to be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, depends on the applicable legislation or rules of court.
[48] Mayzit v Russia above n 46 at [65].
In summary, we agree with the High Court Judge that none of these authorities supports the proposition that a recipient of legal aid in criminal cases has a right to counsel of his or her choice. Mr Clee correctly submitted that, in Vozhigov, the counsel appointed was one of three Mr Voshigov had proposed but we accept Mr Powell’s submission that the decision does not hold that Mr Voshigov had a right to choose his counsel.
At best, the decisions of the European Court support the proposition that, when appointing defence counsel, the national courts must have regard to the defendant’s wishes. However, that statement is made in a very different legal, political and social context. The European cases have often involved court-appointed counsel where no distinction is made at the time of appointment between accused who are able to afford counsel and those who cannot. It is evident that the court may override the wishes of the accused where the interests of justice require.
The decisions of the European Court also support the proposition (echoed by the Supreme Court in Condon), that the right to counsel is to be viewed as an aspect of an accused person’s right to a fair trial. For that purpose, the focus is on the ability of counsel to afford the accused a competent and effective defence.[49]
[49] See, for example, Vozhigov v Russia above n 46 at [39]–[41].
For these reasons, we do not view the decisions of the ECHR or the European Court as supporting a right of choice of counsel in state-funded cases. Importantly, there are also differences of expression in the New Zealand Bill of Rights Act which further differentiate the New Zealand position from that which exists under the European Convention. We discuss this further below.
Article 14, paragraph (3)(d) of the ICCPR
Article 14, para (3) of the ICCPR relevantly provides that:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
…
(d)To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.
In Heemi, this Court referred to two decisions of the Human Rights Committee (HRC) of the United Nations on Art 14, para (3)(d) of the ICCPR. Both of these decisions were concerned with the competence of state-funded lawyers rather than the choice of lawyers. However, both referred to choice of counsel. In Pratt and Morgan v Jamaica, the HRC observed that:[50]
Although persons availing themselves of legal representation provided by the state may often feel that they would have been better represented by counsel of their own choosing, this is not a matter that constitutes a violation of article 14, paragraph 3(d), by the State party.
[50] Above n 18 at [13.2].
And in Kelly v Jamaica, the HRC said it was:[51]
… of the opinion that while Article 14, paragraph 3(d), does not entitle the accused to choose counsel provided to him free of charge, measures must be taken to ensure that counsel, once assigned, provides effective representation in the interests of justice.
[51] Above n 18 at [5.10].
Ellis J also referred to Teesdale v Trinidad and Tobago.[52] Mr Teesdale complained that he was assigned an attorney under the relevant legal aid scheme who lacked experience and was unfamiliar with the case. Despite his objection, the case was not reassigned. Mr Teesdale also complained that the lawyer did not effectively represent him. In relation to choice of counsel, the HRC held that:[53]
Article 14, paragraph 3(d) [of the ICCPR], stipulates the right to defend oneself in person or through legal assistance of his own choosing. However, the [HRC] recalls its previous jurisprudence that an accused is not entitled to choice of counsel if he is being provided with a legal aid lawyer, and is otherwise unable to afford legal representation.
[52]Teesdale v Trinidad and Tobago, Communication No. 677/1996, CCPR/C/74/D/677/1996 (1 April 2002).
[53] At [9.6].
Mr Clee endeavoured to distinguish this decision on the basis that the legal assistance provided to Mr Vaenuku and Ms Afakasi was not free. We do not see this as a valid distinction for reasons we discuss below.
Ellis J also referred to a further decision of the HRC in Pinto v Trinidad and Tobago.[54] We are satisfied that the Judge correctly distinguished this decision. Mr Pinto was convicted of murder. Despite his objection, his trial lawyer was reappointed on legal aid for the purposes of his appeal even though Mr Pinto had arranged another lawyer to represent him. Mr Pinto was never consulted about the grounds of appeal. The HRC decided there had been a violation of Art 14, para 3(d), of the ICCPR on the basis that Mr Pinto had not received effective representation during the appeal proceedings. The case did not turn on the allegation that he had been denied his choice of counsel. The HRC noted in passing, however, that “the State party should have accepted [Mr Pinto’s] arrangements for another attorney to represent him for the purposes of the appeal, even if this would have entailed the adjournment of the proceedings”.[55] However, it is reasonable to infer from the statement of facts given by the HRC that the alternative lawyer arranged by Mr Pinto was not legally aided.[56]
Canadian and Australian authorities
[54]Pinto v Trinidad and Tobago, Communication No. 232/1987 CCCPR/C/39/D/232/1987 (21 August 1990).
[55] AT [12.5].
[56] At [11.2].
The Canadian Charter of Rights and Freedoms (the Charter) does not include rights equivalent to those afforded by s 24(c) and (f) of the Bill of Rights Act. The Charter accords an accused person the right to a fair and public hearing[57] and a right to retain and instruct counsel upon arrest or detention.[58]
[57] Clause 11(d).
[58] Clause 10(b).
The High Court Judge was referred to Panacui v Legal Aid Society of Alberta,[59] a decision of the Queen’s Bench of Alberta. The Alberta Legal Aid Society scheme did not provide for any choice of counsel unless the applicant was charged with murder. Mr Panacui was charged with serious offences which did not include murder. The Court held[60] that a person charged with serious offences who cannot afford to retain counsel, has a constitutional entitlement to have counsel provided to him at the expense of the state. However, the Court found that it was not essential to the fulfilment of the underlying objective of ensuring a fair trial that an accused person should have a choice of counsel.
[59] Panacui v Legal Aid Society (Alberta) [1987] 80 AR 137 (ABQB).
[60] At 67.
The Court had this to say about the issue of freedom of choice and the confidence which might arise from that choice:[61]
Freedom of choice – if it results in the counsel chosen being willing and able to act – may increase the degree of confidence which the accused has in the effectiveness of his legal representation. That heightened degree of confidence may or may not be justified, depending upon the reliability and accuracy of the information upon which the accused acts in choosing his counsel. However, in the case of the non-indigent accused the purposes of ss 7, 10(b) and 11(d) of the Charter do not rest upon the desirability of satisfying the subjective needs of a particular accused or of accused persons in general, but rather upon the search for objective fairness in the process of the prosecution of persons for the commission of offences.
[61] At 68.
We agree with these observations. Choice of counsel will not necessarily result in better or more effective legal representation. Rather, the focus should be upon the fairness of the accused’s trial considered objectively in all the circumstances actually pertaining.
We were referred to a decision of the New Brunswick Court of Appeal which is not cited in the judgment under appeal. In R v Koumoutsidis[62] the Court set aside an order made in the Court of Queen’s Bench directing the New Brunswick Legal Aid Services Commission to provide a lawyer of choice for the accused, Mr Koumoutsidis. He had objected to the Commission’s assignment of one of its salaried employees and had sought a lawyer of his choice from the private bar. The Court of Appeal adopted a summary of legal principles given by LaVigne J in parallel proceedings involving Mr Koumoutsidis.[63]
[62] R v Koumoutsidis 2006 NBCA 32, [2006] 297 NBR (2d) 186.
[63] R v Koumoutsidis 2006 NBQB 33.
LaVigne J had reviewed a number of Canadian decisions at appellate level supporting the proposition that an accused who is entitled to state-funded counsel is not entitled to counsel of his or her choice. The Court also adopted LaVigne J’s statement that, absent compelling reasons such as a disqualifying conflict of interest or incompetence, the court should not interfere with the choice of counsel assigned by the responsible legal aid authority.
In Australia, only the Australian Capital Territory and Victoria have adopted legislation affirming international human rights norms. The only decision of which we are aware which bears on the matter at issue is that of Refshauge J in Hakimi v Legal Aid Commission (ACT).[64] Section 22(2) of the Human Rights Act 2004 (ACT) relevantly provided that anyone charged with a criminal offence is entitled to:
…
(b) … communicate with lawyers or advisers chosen by him or her;
…
(d)… defend himself or herself personally, or through legal assistance chosen by him or her;
(e)… be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her;
(f)… have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance.
[64] Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48.
The Judge held that the omission of the words “chosen by him or her” in s 22(2)(f) was deliberate. He concluded, with support from the international jurisprudence including Heemi, that s 22(2)(f) did not confer any entitlement to choice of counsel.
Authorities in the United States
The Judge reviewed decisions of the Supreme Court of the United States interpreting the right guaranteed by the Sixth Amendment to the US Constitution guaranteeing an accused the right “to have the Assistance of Counsel for his defense”. We do not intend to review these authorities. None held that an accused person receiving state-funded legal assistance was entitled to counsel of choice.
Of course, as Mr Clee submitted, the United States is not a party to the ICCPR or other human rights conventions supported by New Zealand. However, we accept Mr Powell’s submission that the Judge was entitled to take this jurisprudence into account on the footing that there is no inconsistency in the United States jurisprudence on this topic. Rather, as the Judge pointed out, the authorities in the United States have also consistently emphasised the purpose of the right to counsel, namely the right to an effective defence.
Conclusions in relation to s 24(c) and (f) of the Bill of Rights Act
We consider Heemi remains good law, unaffected by the changes since the Legal Services Act 1991. We accept Mr Powell’s submission that the changes effected by the 2000 and 2011 Acts were intended to confer upon the LSA and the Secretary for Justice respectively a substantial degree of flexibility in developing and implementing methods for the delivery of legal services for those lacking sufficient means to obtain legal assistance.
The 2000 and 2011 Acts do not prescribe the method by which the lead provider of the legal services is to be identified or assigned. Parliament has left that task to the LSA or the Secretary for Justice to determine as considered appropriate. In this case, the LSA has adopted a new policy of rotational assignment of counsel from a list of approved legal providers for category 1 and 2 criminal cases. That policy has been determined after consultation with affected parties, including the New Zealand Law Society. The policy is supported by reasons which are objectively rational and which are not challenged as unreasonable in the proceedings brought by the appellants.
It follows that the resolution of this appeal stands or falls upon the appellants’ submission that the policy is unlawful for breach of s 24(c) or (f) of the Bill of Rights Act. No authority has been cited for the proposition advanced by the appellants that those provisions mandate freedom of choice of counsel for accused persons to whom legal aid is granted.
We agree with the Judge that the authorities point overwhelmingly in the opposite direction, supporting the conclusion that the Bill of Rights Act does not contemplate any right to choice of counsel where accused persons are in receipt of state-funded legal assistance. This conclusion is also supported by the leading New Zealand texts on human rights.[65]
[65]Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at [22.7.13] and Rishworth et al The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 547.
Neither the text nor the purpose of s 24(c) and (f) support the proposition the appellants advance. Unlike the equivalent provisions of the ECHR and the ICCPR, s 24(c) and (f) make no reference to choice of counsel, even for those who are able to afford counsel. A further linguistic difference is that the rights under s 24(c) and (f) are separately stated rather than bundled together as they are in their counterparts in the ECHR and ICCPR.
Care should be taken not to place undue weight on linguistic differences, particularly when the rights under s 24 are cumulative. But we consider the differences of expression between the rights under s 24(c) and (f) and the equivalent rights under the European Convention and ICCPR are such as to provide stronger support for the conclusion that no choice of counsel is intended in state-funded legal aid cases.
We accept that a distinction may properly be drawn between the rights under s 24(c) and (f). Under the former, we have no difficulty in agreeing with the Judge that a presumptive choice of counsel may be inferred where an accused has sufficient means to retain counsel. Freedom of choice is socially desirable and is consistent with the view that the state ought not to intervene in a private professional relationship between lawyer and client which does not impose any resource obligation on the state.
Even so, the right to counsel of choice for a paying client is not absolute. Just as an accused person is not obliged to accept legal representation and may defend himself or herself in person, so a lawyer is not obliged to act for the person charged if there are proper professional reasons not to do so. These might include, for example, non-availability, lack of relevant experience, conflict of interest or ethical reasons.
In contrast, the state assumes a positive obligation under s 24(f) to fund legal assistance for those charged with an offence if the interests of justice so require and the person does not have sufficient means to provide for that assistance. It is for the state to determine the means by which it will meet that obligation. The courts will be reluctant to interfere with the policies adopted in the absence of clear evidence that the purpose of the right is not being fulfilled.
We accept Mr Powell’s submission that choice of counsel for accused persons funded by legal aid is not a logical corollary of the right to be provided with legal assistance where the conditions under s 24(f) are satisfied. It is to be remembered that the rights afforded by s 24 are important but subsidiary rights intended to support the overall objective of ensuring that accused persons receive a fair trial in accordance with the right guaranteed by s 25(a) of the Bill of Rights Act. There is no rational basis to suggest that this objective cannot be achieved by the rotational policy adopted by the LSA. While we accept that, in some cases, a choice of counsel may result in a higher level of trust and confidence between lawyer and client, the existence of such a relationship will not necessarily result in a higher level of confidence or effectiveness in the legal proceedings than would occur under the rotational policy.
In developing the rotational policy, the LSA was entitled to take into account the positive benefits it is expected to achieve. These include a more even distribution of work amongst listed providers (which is intended to avoid the risks inherent in practitioners assuming too great a caseload), a more efficient system of allocation of cases, and the avoidance of unnecessary adjournments to suit the availability of counsel.
Issues of competence are appropriately addressed through the standards required of practitioners under the Lawyers and Conveyancers Act 2006 and the code of professional conduct and client care promulgated thereunder. Any breakdown in the professional relationship between lawyer and client can be remedied by the assignment of fresh counsel as the legal aid policy envisages. The need for an interpreter may be important in some cases,[66] but this can be addressed by the court as required on a case by case basis. Language difficulties do not require a choice of counsel or legal aid.
The provision of legal assistance “without cost”
[66]As recently emphasised by the Supreme Court in R v Abdula [2011] NZSC 130, [2012] 1 NZLR 534.
It remains to deal with Mr Clee’s submission that the obligation under s 24(f) to provide legal assistance “without cost” was not met in the case of Ms Afakasi and Mr Vaenuku who were required, as a condition of the grant of aid, to repay by instalment the aid they were to receive.[67] Putting to one side counsel’s advice that he represented Mr Vaenuku on a pro bono basis, we do not accept the proposition that a condition imposed upon a legal aid grant which requires repayment of all or part of the amount of aid over a period of time breaches s 24(f). The obligation to fund legal assistance without cost under s 24(f) is conditioned upon two things. First, that the interests of justice so require and, secondly, that the person does not have sufficient means to provide for that assistance. Both requirements must be met before the obligation on the state arises.
[67]Under the 2000 Act, the LSA could impose conditions on the grant of legal aid. In addition, all grants were subject to the condition that the aided person must repay the LSA the sum that is calculated in accordance with s 18 of the Act: Legal Services Act 2000, s 15.
It is for the state to determine whether these two conditions are met. Obviously, the assessment of the sufficiency of the applicant’s means will vary. Some may have no means at all of paying for legal assistance while others may have limited means and could make a partial contribution to the cost. Others may not have any immediate means to pay but could make a partial or full repayment given time. This commonly arises where the applicant has an asset such as a home or motor vehicle but no available cash. In drafting s 24(f), Parliament could not have intended that any shortfall of means would require the state to assume the full burden of the cost of legal assistance irrespective of the ability of the applicant to make a partial contribution or even to repay the full amount over time.
Sections 36 and 37 of the 2000 Act provide an elaborate regime for assessment of the means of the applicant and permit the LSA to impose conditions requiring payment at a later date of all or part of the grant. The LSA also has a discretion to decide not to pursue the applicant for the debt in prescribed circumstances, including where, to do so, would cause serious hardship to the aided person.[68]
[68] Similar provisions exist in ss 42 and 43 of the 2011 Act.
We are satisfied that s 24(f) permits the state to assess the sufficiency of means of an applicant for legal aid and to provide assistance to the extent required to satisfy the insufficiency. The obligation on the state to provide aid free of cost extends no further than is necessary to meet the identified insufficiency of means. In the cases in point, the LSA concluded that Ms Afakasi and Mr Vaenuku lacked sufficient means to meet the cost of legal assistance immediately, but could do so by instalment payments over time. There is no challenge to those factual conclusions. It was entirely open to the LSA to proceed on this basis. The conditions imposed on the grant were not in breach of s 24(f).
Conclusion
For the reasons given, the appeal is dismissed. Since security for costs has been paid by the appellants, we see no reason not to make the usual award of costs in favour of the second respondent as the successful party. Accordingly, we order that the appellants, jointly and severally, must pay to the second respondent the costs as for a standard appeal on a band A basis together with usual disbursements.
Solicitors:
Crown Law Office, Wellington for Second Respondent
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