Clarke v Legal Services Commissioner

[2012] NZHC 1305

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-000012 [2012] NZHC 1305

UNDER  the Legal Services Act 2011

BETWEEN  NEIL MARTIN CLARKE Appellant

ANDLEGAL SERVICES COMMISSIONER Respondent

Hearing:         8 June 2012

Appearances: Appellant in Person

D Consedine for Respondent

Judgment:      11 June 2012

JUDGMENT OF VENNING J

This judgment was delivered by me on 11 June 2012 at 2.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Law, Wellington

Copy to:            N M Clarke, Tauranga

CLARKE V LEGAL SERVICES COMMISSIONER HC TAU CIV-2012-470-000012 [11 June 2012]

Introduction

[1]      Mr Clarke seeks to appeal against the decision of the Legal Aid Tribunal [2011] NZLAT 048 confirming the decision of the Legal Services Commissioner (the Commissioner) to refuse Mr Clarke a grant of legal aid in relation to the criminal charges he faces.

Background

[2]      Mr Clarke faces one charge pursuant to s 24(b)(i) of the Summary Offences Act 1981 of making a false statement that an offence had been committed.   The offence carries a maximum sentence of three months’ imprisonment or a $2,000 fine.

[3]      The summary of facts alleges that on 5 August 2011 Mr Clarke called 111 from a cell phone owned by his mother.  He reported to the police there was a fight involving an off duty police officer at the Matamata Workingmen’s Club.  He said there were 30 or more motorbikes at the premises and that the attending police staff would likely need batons and pepper spray.  He said he had seen the incident.  As a result  of  the  call  the  Police  Communications  Centre  dispatched  the  on  duty Matamata  police  to  the  area.    Three  patrol  cars,  including  four  sworn  staff, responded.  Upon arrival at the premises the police learned that there had been no disturbance.  Mr Clarke was identified as the person making the call.  When spoken to by the police he admitted calling the police but said he was acting on information he had received.   He denied that the call was false.   He said he had been on the phone to a male staff member at the club and heard fighting in the background.

[4]      Mr Clarke has a number of previous convictions, most of which can be classed as of a nuisance character.

[5]      Mr Clarke applied for legal aid.   On 10 August 2011 the Commissioner advised him that his application for legal aid had been refused. The reasons given by the Commissioner were:

We have looked at your finances and the maximum prison term.

The maximum prison term for your charge(s) is less than 6 months, and the interests of justice do not require that you be granted legal aid. We made this decision after considering the matters in s 8(2) of the Legal Services Act

2011.

As your charge has a maximum prison term of 3 months legislation requires we find interests of justice factors before legal aid can be granted for your case.

We have looked at the information on your application, your case does not appear to be complex and we have not found a real likelihood of imprisonment in this instance.

[6]     Mr Clarke then submitted an application for reconsideration of the Commissioner’s  decision.    On  24 August  2011  the  Commissioner  wrote  to  the applicant and advised him that his application for reconsideration had been considered, the original decision had been confirmed and his application for legal aid remained refused.

[7]      Mr Clarke then sought a review from the Legal Aid Tribunal.  The Tribunal reviewed the matter and concluded that:

[21]      Having  regard  to  the  relatively  minor  nature  of  the  charge,  the absence  of  any complex factual  evidential or legal matters and the  low likelihood of a term of imprisonment being imposed, the decision to refuse a grant of legal aid was one which was reasonable for the Commissioner to make.   The Commissioner took into account all of the relevant factors in section 8(2) of the Act.  The applicant has not provided any information to demonstrate the interests of justice require legal aid to be granted in this case.

[8]      For those reasons the Tribunal confirmed the Commissioner’s decision.

The appeal

[9]      A preliminary issue arises.  Mr Clarke’s appeal is out of time.  The decision of the Tribunal was dated 26 October 2011.  The Legal Services Act does not limit the  time  prescribed  for  bringing  an  appeal.     The  High  Court  Rules  apply: r 20.4(2)(b).   The appeal should have been brought within 20 days.   The appeal documents are date stamped by the receipt in the Registry on 13 January.  They are out of time.  Further, the appeal was not served.

[10]     The Court may by special leave extend the time prescribed for the appeal:

r 20.3. The respondent opposes leave being granted in this case.

[11]     The only explanation offered by Mr Clarke for the delay is that this was the first application of an appeal to the High Court under the new Act.  In the course of submissions he also said he had been imprisoned for seven days during the appeal period.  I accept the submission for the respondent that there has been no adequate explanation for the delay or failure to serve the respondent.  Unlike Commissioner of

Inland Revenue v Dick[1]  this is not a case where the wrong procedure was relied

upon.  The appellant simply failed to take any steps to lodge an appeal prior to 13

January and thereafter failed to serve the respondent.

[1] Commissioner of Inland Revenue v Dick (2000) 14 PRNZ 378 (HC).

[12]     Nevertheless, as the appellant is self represented and as the delay was not particularly egregious (given the Christmas break) if the merits of the appeal were sufficiently strong then it might be appropriate to grant leave in this case.  For that reason I propose to consider the merits of the proposed appeal.

[13]     An appeal from a decision of the Legal Aid Tribunal to this Court can only be on a question of law:  s 59 Legal Services Act 2011.

[14]     In his notice of appeal Mr Clarke identified the following grounds of appeal:

(i)       a right to legal assistance “without cost” under section 24(f) of

the New Zealand Bill of Rights Act 1990;

(ii)      the  “interests  of  justice”  are  not  served  by  the  Tribunal’s

decision because there is a real likelihood of imprisonment;

(iii)the  decision  was  wrong  in  that  the  Commissioner  did  not directly assess my financial circumstances;

(iv)     s 24(f) of the New Zealand Bill of Rights Act 1990;

(v)      in reliance on Clarke v Police;[2]

[2] Clarke v Police HC Wellington AP109/02, 11 July 2002, Ronald Young J.

(vi)     an extrajudicial article attributed to the Chief Justice of 14

October  2011,  which  Mr  Clarke  characterised  as  taking  a veiled swipe at the Government’s justice policies and their effect on the independence of the judiciary.

[15]     In addition, in his submissions/amended notice of appeal Mr Clarke referred to R v Taito.[3]

Decision

[3] R v Taito [2003] 3 NZLR 577.

[16]     The only question of law that could possibly arise in this case is whether s 24(f) of the New Zealand Bill of Rights Act (NZBOR) requires the state to provide legal assistance without cost to a person charged with criminal offending despite the provisions of s 8 of the Legal Services Act 2011.

[17]     Mr Clarke argued that s 24(f) was “black and white”.  Its purpose was clear.

It entitled him to legal aid.

[18]     Section 24(f) of the NZBOR provides:

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; ...

[19]     The right  guaranteed  by s 24(f) is  not  an  absolute right  to  receive legal assistance without cost.   It is qualified by the need for the interests of justice to require legal assistance without cost or the provision of state funded representation.

[20]     In Condon v R the Supreme Court discussed fair trial rights and the ancillary rights under s 24, including s 24(f) as follows:[4]

[66]     Section  25(a)  of  the  Bill  of  Rights  guarantees  to  every  person charged with an offence the right to a fair hearing. Such a person also has the rights under s 24(c), (d) and (f) to consult and instruct a lawyer, to adequate time  and  facilities  to  prepare  a  defence  and  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 provisions of the Legal Services Act 2000 pertaining to criminal matters are the means chosen by Parliament to fulfil the Crown’s obligation under s 24(f).

[4] Condon v R [2007] 1 NZLR 300 at [66].

[21]     As noted the Supreme Court confirmed that the provisions of the then Legal Services Act  2000  were  the  means  chosen  by  Parliament  to  fulfil  the  Crown’s obligations under s 24(f).  The provisions of the Legal Services Act 2011 now fulfil that role.

[22]     Section 8 of the Legal Services Act 2011 as relevant provides:

8         When legal aid may be granted: criminal matters

(1)      The Commissioner may grant legal aid to an applicant in respect of proceedings to which section 6 applies (criminal matters) if—

(a)       the applicant is a natural person charged with or convicted of an offence; and

(b)       it appears to the Commissioner 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 Commissioner that the interests of justice require that the applicant be granted legal aid.

(2)      When considering whether the interests of justice require that the applicant be granted legal aid, the Commissioner—

(a)      must have regard to—

(i)       whether the applicant has any previous conviction;

and

(ii)      whether the applicant is charged with or convicted of an offence punishable by imprisonment; and

(iii)     whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment; and

(iv)      whether   the   proceedings   involve   a   substantial question of law; and

(v)       whether   there   are   complex   factual,   legal,   or evidential matters that require the determination of a court; and

(vi)     whether the applicant is able to understand the proceedings or present his or her own case, whether orally or in writing; and

(vii)     in any proceeding to which section  6(c) applies, the consequences for the  applicant if legal aid is  not granted; and

(viii)    in respect of an appeal, the grounds of the appeal;

and

(b)      may have regard to any other circumstances that, in the opinion of the Commissioner, are relevant.

[23]     The relationship between s 8 of the Legal Services Act and s 24(f) of the NZBOR has also been considered by the Court of Appeal.  In R v Whitelaw the Court of Appeal confirmed:[5]

In practical terms, the interests of justice test provided for in s 24(f) of

NZBORA is now spelt out in the current s 8 of the Legal Services Act.

[5] R v Whitelaw [2008] NZCA 307 at [26].

[24]     In that case the Court went on to consider what the position would have been if the appellant’s actions had triggered his rights under s 24(f).  The Court directed itself to the criteria in s 8 and concluded that the interests of justice in that case did not require a grant of legal aid noting that:[6]

Whether legal representation is required primarily turns on the seriousness of the charge and the complexity of the case.

[6] At [25].

[25]     In another case Clark v Registrar of The Manukau District Court the Court of Appeal effectively confirmed that where a person is rightly refused legal aid there will be no breach of s 24 rights:[7]

[7] Clark v Registrar of The Manukau District Court [2012] NZCA 193

[23]      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. ...

.

[25]     The Supreme Court [in Condon] 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.

[26]     The wording of s 24(f) of the NZBOR and s 8 of the Legal Services Act, taken with the decisions of the Supreme Court and Court of Appeal are sufficient to dispose of the proposed question Mr Clarke seeks to raise on appeal.  The right to legal assistance without cost is not an unqualified right.  Both s 24(f) of NZBOR and s 8 of the Legal Services Act expressly provide for consideration of whether the interests  of  justice  require  the  provision  of  legal  assistance  without  cost.    The sections are not inconsistent.  The issue will essentially be a question of fact in each case.

[27]     However, I deal briefly with the remaining matters referred to by Mr Clarke in his notice of appeal.  Mr Clarke argues the interests of justice test was not served by the Tribunal’s decision because there was a real likelihood of imprisonment.  That is an assessment of fact rather than a question of law.  Again, for completeness I address it.   The issue is whether there is a real likelihood that, if convicted the applicant would be sentenced to imprisonment for that offence.  While the applicant does have a previous conviction for misuse of a telephone that related to an incident in February 2007.  At that time he was ordered to come up for sentence if called upon.  In the present case, apart from wasting the resources of the police (which is the essence of the offence) there is no suggestion of any threats, intimidation or any other aggravating factors in the summary of facts before the Court.   In the circumstances the Commissioner (and the Tribunal) were entitled to take the view that, even though the appellant was subject to a sentence at the time of the alleged offending, it could not be said there was a real likelihood that, if convicted Mr Clarke would be sentenced to imprisonment for that particular offending.

[28]     Next  the  appellant  says  the  Commissioner  failed  to  correctly  assess  his financial circumstances.  Again, that is not a matter of law.  It is also plain that the focus of the Tribunal was on the interests of justice test, not Mr Clarke’s financial position.

[29]     Then the appellant referred to an earlier case heard by Ronald Young J in the Wellington High Court where the Judge applied s 22 of the New Zealand Bill of Rights Act.  That section has no relevance to the current appeal.  The case, however, does demonstrate Mr Clarke is able to successfully represent himself before the Court.

[30]     Next, Mr Clarke referred to the extrajudicial writing of the Chief Justice.  The answer to that must be that the Supreme Court has addressed the significance of s 24(f) and the Government’s response to that judicially in the case of R v Condon.

[31]     Finally, Mr Clarke’s reference to R v Taito does not assist him.  In Taito, the Privy Council  held  that  the procedure adopted  by the Court  of Appeal  did  not comply with the relevant legislative provisions.    In the present case, the Commissioner and Tribunal have followed and applied the relevant legislature provisions.

[32]     Although it is strictly unnecessary to do so, as any appeal must be on a question  of  law,  I  have  also  reviewed  the  matter,  on  its  merits.   Although  the appellant has previous convictions and is charged with an offence punishable by imprisonment (three months) there is no real likelihood that, if convicted, he will be sentenced to imprisonment.  The proceedings do not involve any substantial question of law nor any complex factual legal or evidential matters.  The appellant is able to understand the proceedings and present his own case as has been shown by his ability to present his argument to the Court.   I am satisfied that the Tribunal was correct to conclude that the interests of justice did not require a grant of legal aid in this case.

Result

[33]     The application for leave to appeal out of time is dismissed.

Venning J