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IN THE SUPREME COURT OF NEW ZEALAND
SC 66/2005 [2006] NZSC 62
ROBERT JOHN CONDON
v
THE QUEEN
Hearing:30 May 2006
Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:N J Sainsbury and M Snape for Appellant
B J Horsley and C Curran for Crown
Judgment:23 August 2006
JUDGMENT OF THE COURT
A.The sentence appeal is dismissed for non-prosecution in accordance with s 383A(3) of the Crimes Act 1961.
B.The conviction appeal is allowed and the convictions are quashed.
C.There is to be no retrial.
REASONS
(Given by Blanchard J)
Table of Contents Para No
No jurisdiction for sentence appeal................................................... [1] Facts..................................................................................................... [5]
The appeal to the Court of Appeal.................................................. [11] Section 30 of the Sentencing Act 2002............................................ [14]
Legal representation and the right to a fair trial........................... [34]
(g).. New Zealand................................................................................ [66]
The jurisprudence in summary....................................................... [73] The proper approach in New Zealand............................................ [76] Mr Condon’s case............................................................................. [83] Result................................................................................................. [90]
No jurisdiction for sentence appeal
[1] Mr Condon was found guilty by a jury at his trial in the District Court at Timaru on counts of threatening to kill and attempting to pervert the course of justice. He was sentenced on 10 September 2003 to 18 months imprisonment. He has appealed against his sentence, which he has long since completed,[1] claiming that it was imposed in breach of s 30 of the Sentencing Act 2002 which reads:
[1] The application for leave to appeal to this Court was not filed until 25 October 2005.
30 No sentence of imprisonment to be imposed without opportunity for legal representation
(1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).
(2) Subsection (1) does not apply if the court is satisfied that the offender—
(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and
(b) fully understood those rights; and
(c) had the opportunity to exercise those rights; and
(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.
(3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—
(a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or
(b) quash the conviction and direct a new hearing or trial, or make any other order that justice requires.
(4) For the purposes of this section, an offender refuses or fails…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Condon v R [2006] NZSC 62
Case
[2006] NZSC 62
Decision Date
CaseChat Overview and Summary
This is an appeal by Robert John Condon against his conviction and sentence for threatening to kill and attempting to pervert the course of justice. The appeal to the Supreme Court was heard on 30 May 2006. The Supreme Court dismissed Mr Condon's appeal against sentence for non-prosecution. It allowed his appeal against conviction. The convictions were quashed. Mr Condon's appeal against sentence was dismissed because his appeal against sentence was not heard before he completed serving his sentence. This triggered s 383A(3) of the Crimes Act 1961, which means that an appeal against sentence that is not heard before the convicted person completes serving the sentence is dismissed for non-prosecution. The appeal against conviction was allowed because Mr Condon's trial was unfair. Mr Condon had no legal representation at trial. The absence of representation resulted in a substantial miscarriage of justice. The Supreme Court concluded that there was no good reason to order a new trial because the sentence had been served.