G v Police

[2023] NZHC 2294

NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT AND OF THEIR CLAIM OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.  SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2022-485-76

[2023] NZHC 2294

UNDER

The Criminal Cases Review Commission Act 2019

IN THE MATTER

Of a referral to the High Court by the Criminal Cases Review Commission of the convictions and sentences of the appellant

BETWEEN

G

Appellant

AND

NEW ZEALAND POLICE

Respondent

On the papers

Counsel:

K H Cook for Appellant

S C Baker and Z Zhang for Respondent

Judgment:

23 August 2023

JUDGMENT OF THOMAS J

(LEGISLATION GOVERNING THE REFERRAL)

[1]    The Criminal Cases Review Commission (the CCRC) has referred the appellant’s 2001 District Court convictions and sentences to the High Court. The charges to which the referral relates were laid and dealt with under the Summary Proceedings Act 1957 (SPA). By my judgment of 12 June 2023, I determined that the

G v POLICE [2023] NZHC 2294 [23 August 2023]

referral was correctly made to the High Court.1 This decision addresses the question of whether the referral should be considered under the Criminal Procedure Act 2011 (CPA) or the SPA.

[2]    The appellant contends that the CPA governs the referral, whereas the respondent submits that it should be heard and determined in accordance with the SPA.

[3]    The CCRC did not wish to be heard in respect of process on the basis it is now functus officio.

The legislation

Criminal Cases Review Commission Act 2019 (CCRC Act)

[4]    The CCRC Act provides that the appeal court to which a referral has been made must hear and determine it as if it were a “first appeal”. Section 20 provides:

20       Hearing and determination of appeal

The appeal court to which the Commission refers a conviction or sentence must hear and determine the matter as if it were a first appeal against the conviction or sentence.

[5]    Mr Cook, for the appellant, submits that the use of the words “first appeal” means that Parliament must have intended any referral to be dealt with under the current appeal procedure under the CPA. However, the CPA itself contains a specific provision addressing the conduct of proceedings commenced and not finally determined before the CPA came into force, as is the case with the appellant’s proceedings.

Criminal Procedure Act

[6]    The CPA provides, in s 397, that proceedings commenced before the commencement date of the CPA (1 July 2013) must continue in accordance with the law as it was before the commencement date. Section 397 provides:

1      G v Police [2023] NZHC 1457 [Jurisdiction decision].

397     Proceedings commenced before commencement date

(1)This section applies to proceedings—

(a)commenced before the commencement date; and

(b)not finally determined (including any rehearing, retrial, or appeal) before the commencement date.

(2)Subject to sections 399 and 400, and to the other provisions of this subpart, the proceeding must continue in accordance with the law as it was before the commencement date.

(3)For the purposes of subsection (1), a proceeding has commenced if—

(a)an information has been laid in accordance with the Summary Proceedings Act 1957 in respect of an offence:

(b)a complaint has been made in accordance with the Summary Proceedings Act 1957:

(c)particulars of a charge have been set out in a charge sheet under section 12(2) of the Summary Proceedings Act 1957:

(d)a person has been served with a summons issued under section 19A of the Summary Proceedings Act 1957 but no information had yet been laid in respect of the offence:

(e)a person has been served with a summons under section 19B of the Summary Proceedings Act 1957 but no information had yet been laid in respect of the offence:

(f)a notice of prosecution has been filed under section 20A(2) of the Summary Proceedings Act 1957 in respect of a minor offence:

(g)a notice of hearing has been filed under section 21(8) of the Summary Proceedings Act 1957:

(h)an indictment has been filed under section 345(3) of the Crimes Act 1961 in respect of the offence.

Analysis

[7]    Mr Cook relies on the fact that the words “first appeal” appear in the CPA but not in s 397. This must mean, in his submission, that a referral must be dealt with as if it were a first appeal under the CPA.

[8]    I am satisfied that the reference to a “first appeal” is simply a reference to a first appeal in time.

[9]    While s 20 of the CCRC Act provides that a referral must be heard and determined as if it were a first appeal, the CCRC Act does not define “first appeal”. Section 18 of the CCRC Act also refers to “first appeal” in the context of the appeal court to which a conviction may be referred. Section 18 was considered in some detail in my decision addressing the correct appeal court for the referral.2 The relationship of s 18 of the CCRC Act and s 397 of the CPA was considered and I concluded that  s 18 imports into the CCRC Act only the provisions specifically mentioned in s 18 for the purpose of establishing a clear and easy way to determine to which court a case should be referred. It was not concerned with whether the proceeding was commenced under the CPA or pre-dating legislation, or that the CPA provides a right of appeal.

[10]   In his submissions, Mr Baker helpfully discusses the legislative history of s 20 of the CCRC Act. An analysis of the CCRC Bill as introduced, the Ministry of Justice Departmental Report for the Justice Committee3 and the final Report4 shows that the word “first” was added to s 20 to make it clear that referrals from the CCRC were to be such that a convicted person would have all further appeal rights that might be available and would not be “limited” by any earlier appeal the convicted person might have made.

[11]   I agree with Mr Baker that, had Parliament intended all referrals by the CCRC to be heard and determined under the CPA, then the CCRC Act would have said that in clear terms.

[12]   Furthermore, I note that the term “first appeal” has been referred to by appeal courts prior to the CPA to denote a first appeal in time.5

2      G v Police [Jurisdiction decision], above n 1.

3      Ministry of Justice Departmental Report for the Justice Committee: Criminal Cases Review Commission Bill (8 August 2019) at 26-27.

4      Criminal Cases Review Commission Bill (106-2) (select committee report) at 3.

5      See: R v Elwin [2002] 1 NZLR 702 at [20]; R v Howse [2003] 3 NZLR 767 at [13]; R v Taito [2005] 2 NZLR 815 at [84]; R v Smail [2008] 2 NZLR 448 at [55]; and Ross v R [2013] NZCA 25 at [8].

[13]   The appellant’s proceedings commenced prior to the date on which the CPA came into force, and they have not been finally determined. “Proceedings” includes any re-hearings, re-trials and appeals arising from the determination of the original charge.6 Section 397 of the CPA therefore applies to the referral, meaning it must be considered in accordance with the law before the CPA commenced. This is consistent with the approach taken in a number of cases by appellate courts.

[14]   Mr Baker is correct in pointing out that, if the CPA were to apply to the substantive hearing of any referral of a proceeding commenced before 1 July 2013, then it would mean the referral would be heard and determined in accordance with different legislation from that applying to any appeal that had already been determined and, if the convicted person had not already exhausted their appeal rights, any future appeal. As he says, if the appellant were to seek an extension of time to pursue a conviction appeal, this would be heard and determined by the High Court under the SPA, as would the substantive appeal. I am satisfied that Parliament cannot have intended that any CCRC referral be heard and determined under different legislation from that applying to any appeal in respect of the same charges.

[15]   I apprehend that Mr Cook’s concern focuses on whether there might be a difference between the tests governing a first appeal under the SPA as compared to the CPA. I consider any such concern is misplaced, given that, in respect of both conviction and sentence appeals, the Court of Appeal has found that the CPA has not made any material change to the approach previously taken to either conviction or sentence appeals.7

Result

[16]   The CCRC’s referral of the appellant’s convictions and sentences shall be heard and determined in accordance with the SPA.

6      Criminal Procedure Act 2011, s 397(1)(b).

7      Simon France (ed) Adams on Criminal Law (online ed, Thompson Reuters) at [CPA250.01]. See also Haunui v R [2020] NZSC 153 at [44]-[68], adopting the approach in Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.

[17]   Counsel are to confer and provide a joint memorandum to the Court within one week after the date of this judgment setting out the time estimate for the substantive hearing of the referral and any other directions sought. Orders for setting down the substantive hearing and timetabling will then be made on the papers.

Thomas J

Solicitors:

Criminal Cases Review Commission, Hamilton for Appellant Crown Law, Wellington for Respondent