Curtis v The Queen

[2005] NZCA 9

IN THE COURT OF APPEAL OF NEW ZEALAND

CA288/04

THE QUEEN

v

BRIAN JAMES CURTIS

Hearing:8 February 2005

Court:Anderson P, Hammond and William Young JJ

Counsel:A G Speed for Appellant

A M Powell and S E McKenzie for Crown

Judgment:17 February 2005 

JUDGMENT OF THE COURT

The application to set aside the notice of abandonment is dismissed.

REASONS

(Given by William Young J)

Introduction

[1]       In November and December 1991, the appellant stood trial in the High Court at Auckland on charges associated with the importation of LSD into New Zealand. Other people said by the Crown to have been involved with the appellant in the offending were David Squire and Allan Wati.  Wati escaped from custody in early 1991.  He was still at large in November 1991.  Accordingly the Crown went to trial against the appellant and Squire.  The jury found the appellant and Squire guilty on the counts which they faced and they were subsequently sentenced to long terms of imprisonment.  The sentence imposed on the appellant was 18 years imprisonment.

[2]       The appellant appealed against conviction and sentence; this by notice dated 19 January 1992. 

[3]       The challenge to his conviction and sentence was set down for hearing on 11 September 1992 but shortly before the hearing, the appellant abandoned the appeal.

[4]       Wati was later located by the police and he eventually pleaded guilty to a large number of offences including those which the Crown alleged he had committed in concert with the appellant and Squire.  He was subsequently sentenced to 13 years imprisonment.  The sentencing processes associated with Wati resulted in a reported judgment as to his entitlement to speak at his sentencing as well as have the benefit of his counsel’s submissions, see R v Wati [1993] 3 NZLR 475. In the course of that judgment, which was delivered on 4 May 1993, the Judge explained why Wati wanted to speak on his own behalf:

… Upon inquiry … it appeared that there were two significant areas of the sentencing upon which Wati wished to address the Court.  Apparently he wished to argue first that there had been a miscarriage of justice in respect of Curtis and Squire and that they should not have been convicted or sentenced in the way that they were.  Secondly he wished to dispute the police summary of facts.  …

[5]       When Wati was subsequently sentenced (which would appear to have been later in May 1993) he repeated his claim that the appellant and Squire had been wrongly convicted.  We note in passing that the sentencing Judge had also presided at the trial of the appellant and Squire and was particularly dismissive of this claim in his sentencing remarks.

[6]       On 25 October 2002, the appellant applied for rehearing of his appeal pursuant to Part II of the Crimes (Criminal Appeals) Amendment Act 2001.  Although this application was misconceived (as his case is not within the scope of that legislation) it is fair to treat it as his first formal step to resuscitate his appeal.  Eventually the appellant applied to set aside the notice of abandonment and it is this application which we have presently to consider. 

The evidence as to the events surrounding the notice of abandonment

[7]       The appellant’s account of why he signed the notice of abandonment as given by him in his affidavit of 29 April 2004 is in these terms:

2.… I filed an appeal against the conviction and sentence that was eventually set down for hearing in the criminal appeal division in Auckland on 11 September 1992.  At this time I was represented by Mrs M.A. Kennedy.

3.I was declined legal aid and could not afford to pay for Counsel.

4.My Counsel advised me in the week preceding the appeal that because of a lack of funds she was unable to prosecute the appeal on my behalf.  As well there were technical difficulties in obtaining a second opinion about the accuracy of some evidence (tape recorded evidence) which was used against me.  My Counsel advised me that by signing the Notice of Abandonment of Appeal I was not waiving forever my appeal rights.  I was told that I could file a fresh appeal if either funding or fresh evidence came to light. 

5.Therefore when I signed the Notice of Abandonment of Appeal I did not intend to abandon forever my appeal rights in this case.  When I signed the Notice of Abandonment of Appeal I relied specifically upon my Counsel’s advice. 

[8]       In her affidavit of 13 October 2004, Ms Kennedy provided some support for his evidence:

8.I am unable to recollect now exactly why the appeal was abandoned.  I do however recall discussing with Brian Curtis the difficulties of forensically analysing the relevant portion of the number [sic] tape that was played in the High Court.  This, in my opinion, is one of the likely reasons that the appeal was abandoned.

9.I have read Brian Curtis’ affidavit.

10.I accept that I may have advised Brian Curtis to this effect and do not dispute his recall of our conversation, and my advice that a Notice of abandonment of appeal did not mean that his appeal rights were irrevocably abandoned.

11.I was aware that the Appellant maintained his innocence and wanted to pursue an appeal.

[9]       If Ms Kennedy gave advice in the terms suggested by the appellant’s affidavit, it was plainly wrong. This is because the notice of abandonment effected a dismissal of the appeal, a point to which we will refer later.

Subsequent events

[10]     On 19 August 1993, the appellant escaped from Paremoremo Prison.  He was to remain at large for eight or nine years.

[11]     In September 1993, that is the month after the appellant escaped from Paremoremo Prison, Mr Gregory Denholm, an Auckland barrister, received a fifty‑eight page hand-written statement which purports to have been written by Wati. Although there was not extensive evidence before us as to the authenticity of the statement, there is no reason to suppose that it was not written by Wati.  At this time (ie in September 1993) he was in prison.

[12]     The statement sets out Wati’s assertions as to his involvement in the events which led to the appellant and Squire facing charges associated with the importation of LSD into New Zealand.  It is exculpatory of the appellant (and indeed Squire). 

[13]     The appellant was eventually located in the Philippines and was returned to New Zealand in 2001 or 2002.

The legal test for setting-aside a notice of abandonment

[14]     The appellant’s notice of abandonment was given under r 44 of the Criminal Appeal Rules 1946 which provided:

44.      An appellant at any time after he has given notice of appeal or of application for leave to appeal, or after he has applied for extension of time for such a notice, may abandon his appeal by giving the Registrar notice to that effect in the form numbered 8 in the Schedule hereto, and upon the giving of such notice of abandonment the appeal shall be deemed to have been dismissed by the Court.

[15]     So, under the 1946 Rules, the effect of a notice of abandonment was the deemed dismissal of the appeal.  Since there is no right to file successive appeals, such a deemed dismissal served to extinguish the statutory appeal rights under the Crimes Act 1961.

[16]     There was no express provision in the legislation or the rules to permit the setting aside of a notice of abandonment.  So any jurisdiction to do so must lie in the implied or inherent powers of the Court. 

[17]     In all relevant respects, the New Zealand legislative scheme as it was in 1992 corresponded to that in force, at the time, in England and Wales.  This makes relevant the decision of the English Court of Appeal in R v Medway [1976] QB 779 as to when a notice of abandonment might be set aside. Rejecting the argument that a notice of abandonment could be set aside in “exceptional circumstances”, that Court held that a notice of abandonment of appeal could only be set aside if it was a “nullity”. That test would be satisfied if “the abandonment was not the result of a deliberate and informed decision, in other words that the mind of the appellant did not go with his act of abandonment” (at 798 per Lawson J).

[18]     Although the Medway approach was adopted by this Court in R v MacKay [1980] 2 NZLR 490, 491 at lines 37-50 and has been applied in other cases, it may require re-consideration in light of the more recent decision of this Court in R v Smith [2003] 3 NZLR 617. In Smith at [36], this Court held that it has “the inherent power to revisit its decisions in exceptional cases”, a conclusion which it reached after referring to English and Australian decisions which came after Medway.  The existence of an “exceptional circumstances” jurisdiction to set aside decisions might be thought to be inconsistent with the premises which underlie the key reasoning in Medway.

[19]     A complicating factor is that the decision which was set aside in Smith could fairly be described as a “nullity” and it may be that the language used in the judgment must be read in light of that reality.  On the other hand, one of the cases relied on in Smith, Taylor v Lawrence [2003] QB 528, involved a decision of the Court of Appeal which could not fairly be regarded as having been a nullity. Lord Woolf CJ observed at [54]:

… The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation.  The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.

[20]     If the Medway approach may arguably be too narrow (as depending upon a finding of nullity rather than exceptional circumstances) there is another respect in which it might appear to be too broad.  On a literal approach to the language of nullity used in that case, the appellant might be thought to be entitled to have his original appeal set down for hearing if he can demonstrate that, as a result of mistaken advice given to him by Ms Kennedy, his mind did not go with his act when he signed the notice of abandonment.  On this literal approach, the notice of abandonment, being a “nullity”, is of no effect and the appellant is entitled, without more, to have his appeal heard.

[21]     We doubt if the Court which decided Medway would have subscribed to so literal an approach.  As Lawson J recognised in Medway at 786:

We have referred to “nullity” as a convenient label for the first approach. This is because we do not think that the expression “nullity,” which, as will be seen, has been employed in a number of relevant cases, necessarily indicates the presence of factors which would be required to establish that from the point of view of the civil, as opposed to the criminal, law a transaction was null and void as distinct, for example, from one which was voidable, such as a contract procured by fraudulent representation or undue influence. The cases illustrate that the expression “nullity” has been used in a very wide sense indeed.

[22]     As Smith convincingly demonstrates, even an “invalid” decision of this Court must stand until it is set aside by the Court.  The deemed dismissal which resulted from the appellant’s notice of abandonment remains in place unless and until it is set aside by this Court.  So, whether the jurisdiction is seen as resting in the nullity approach taken in Medway or the exceptional circumstances test adopted in Smith, an affirmative decision by this Court to set aside the abandonment is required before the appeal can be set-down for hearing.

[23]     The task for us in determining whether or not to set aside the abandonment is akin to that carried out by the High Court when it decides whether or not to set aside “invalid” decisions by administrative bodies.  In the present context, this discretion must necessarily be exercised in light of broad considerations of justice.  We note in passing that the British Columbia Court of Appeal took a similar approach in R v Clymore (1999) 134 CCC (3d) 476.

[24]     The Criminal Appeal Rules 1946 are no longer in force.  Under the Court of Appeal (Criminal) Rules 2001, provision is still made for the abandonment of appeals, see r 35.  But the rules do not prescribe the consequence of an abandonment and in particular do not provide that a notice of abandonment effects a deemed dismissal of the appeal.

[25]     It is implicit in the scheme of the new rules that an appeal is terminated by abandonment.  But given that a notice of abandonment is now merely an act of the appellant and does not result in a deemed dismissal of an appeal by the Court, the res judicata considerations which were so influential in the thinking which underpinned the Medway approach are no longer so obviously applicable.  Therefore, in cases similar to this which fall to be determined under the new rules, a different approach may be required.  That approach, however, will still have to address the significance of a notice of abandonment and the importance of finality in criminal cases.

Is there jurisdiction to set aside the notice of abandonment?

[26]     There is scope for some scepticism about aspects of the appellant’s case as to how he came to sign the notice of abandonment, in particular:

(a)The precision of the appellant’s recollection as to the detail of the advice given to him by Ms Kennedy;

(b)Why Ms Kennedy would have made so radical an error in the advice which she gave ; and

(c)The significance of the alleged misunderstanding in the decision to abandon the appeal.

But the appellant was not challenged on his evidence by the Crown and it would therefore be wrong for us not to accept it.

[27]     The misunderstanding which the appellant claims is just the sort of misunderstanding which, on the nullity approach, might warrant the setting aside of the notice of abandonment. 

[28]     The Court in Medway plainly thought an exceptional circumstances test to be less exacting than the nullity approach.  Yet, in the present context, an exceptional circumstances test might be more difficult for the appellant to satisfy.  We suspect that many of those who abandoned appeals under the Criminal Appeal Rules did so without recognising that the consequence was a deemed dismissal precluding any further appeals.  If so, the mistake which the appellant claims he made may not have been exceptional.

[29]     For the purposes of this judgment we are prepared to accept that there is jurisdiction to set aside the notice of abandonment.  We do so because we think it is fair to give the appellant the benefit of the more favourable of the two approaches available in relation to the issue.  Further, we very much suspect that if the appellant had sought to resuscitate his appeal in say mid-1993 he would have been permitted to do so, at least in relation to the challenge to his convictions.

The conviction appeal

[30]     The appellant wishes to argue his appeal against conviction on the following grounds:

(a)Alleged inaccuracies in the transcription of intercepted conversations to which he was a party.

(b)Wati’s statement is new evidence which warrants a retrial.

[31]     Neither of these grounds seem particularly compelling, or, in the present context, meritorious:

(a)The accuracy of the transcriptions of the intercepted communications was in issue in the trial.  It was, in the end, a matter for the jury to determine. Nothing tangible has been put before us to suggest that the transcriptions were wrong.  This ground of appeal was advanced in 1992, and the abandonment of the appeal might be thought to suggest a lack of confidence in its cogency.

(b)Wati has not sworn an affidavit verifying his September 1993 statement.  Mr Speed was unable to obtain an affidavit from him although Mr Powell for the Crown told us that the police do not understand that Wati has gone to ground.  Given that his initial statements to the police incriminated the appellant - as it did, at least according to the affidavit of Mr Raftery who was the prosecutor at the trial - he would not seem to be a credible exculpatory witness for the appellant.  The circumstances surrounding the making of the statement in terms of the appellant’s then recent escape from prison call out for explanation which has not been forthcoming.  From the chronology of events which we have given, it is apparent that Wati was available and willing to assist the appellant as early as April 1993.  In light of this, the appellant’s escape from Paremoremo Prison in August 1993 provides an inauspicious context for his now very belated attempt to rely on Wati for exculpation.

[32]      Nearly 10 years elapsed between the notice of abandonment and the first indication by the appellant that he wished to resuscitate the appeal.  It would be an affront to common sense and public policy for the appellant to be allowed to justify that delay on the basis of his escape from prison.

[33]      This delay has necessarily affected the ability of the Crown to respond to the proposed grounds of appeal.  There was no specific evidence before us as to whether the original prosecution files and exhibits are still available.  It is not clear whether the master tapes of the intercepted communications are still in existence.  We know that Squire is now dead and it may well be that other participants in the November/December 1991 trial are either dead or no longer available.  Whatever the precise problems which might arise, it is perfectly clear that the possibility of sensible and fair consideration of an appeal against conviction must have been hindered appreciably by the elapse of time.  Similar considerations apply with even greater force in relation to whether there could be a fair re-trial of the appellant on the charges upon which he was found guilty.

[34]     In those circumstances, the broad considerations of justice which necessarily apply in this context dictate that the appellant can no longer be permitted to challenge his convictions.

Sentence appeal

[35]     Mr Speed did not make much, in his argument before us, of the merits of the sentence appeal beyond noting what is obvious, namely that 18 years imprisonment is a long sentence and the appellant is now 71.

[36]     In one respect the proposed challenge to the sentence is less meritorious than the proposed challenge to the convictions.  This is because, in relation to the proposed challenge to the convictions, the appellant can at least point to something which arose after his notice of abandonment was filed which may be material, that is the willingness of Wati to provide an exculpatory statement.  Nothing has really changed in relation to the sentence appeal which therefore stands in no better light than it did in 1992.

[37]     On the other hand, the lapse of time since the notice of abandonment is not so critical to the fair consideration of a sentence appeal as it would be to a conviction appeal.

[38]     Despite what we have just said in the preceding paragraph, it would, nonetheless, be an artificial exercise for this Court to sit on appeal from a sentence imposed over 13 years ago.  This is particularly given that Squire and Wati were both sentenced by the same Judge for the same offending and received sentences which that Judge imposed in light of the sentence imposed on the appellant.  Further, it would not be altogether easy for members of this Court to put themselves in the sentencing frame of mind appropriate to consider a sentence imposed in 1991.  Legislation and practice have moved on considerably since then.

[39]     These considerations would not necessarily be decisive if we could see any substantial merit in the appellant’s challenge to his sentence.  We accept that the sentence imposed was, to say the least, stern.  But it was imposed in a context in which the appellant had earlier been sentenced to life imprisonment for other offending involving Class A drugs, a sentence which was reduced in this Court to 16 years.  The appellant must have been on parole in relation to that sentence at the time of the offending in issue in this case.  The abandonment of the appeal very much suggests that the appellant, as at 1992, did not rate his chances of persuading the Court to reduce the sentence.

[40]     In those circumstances, considerations associated with the finality of litigation seem to us to be of controlling importance.

Result

[41]     The application is dismissed.

Solicitors:
Crown Law Office, Wellington