G v Police
[2023] NZHC 1457
•12 June 2023
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 1457
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
Hearing: 15 May 2023 Counsel:
K H Cook for Appellant
S C Baker and Z Zhang for Respondent
Judgment:
12 June 2023
JUDGMENT OF THOMAS J (JURISDICTION)
[1] The Criminal Cases Review Commission (the CCRC) has made its first referral pursuant to the Criminal Cases Review Commission Act 2019 (the CCRC Act) to the High Court in respect of the appellant’s 2001 convictions and sentences in the District Court. The sole purpose of this decision is to address whether the referral was
G v POLICE [2023] NZHC 1457 [12 June 2023]
correctly made to the High Court or whether it should have been made to the Court of Appeal.
Background
[2] The CCRC has referred the appellant’s nine convictions and sentences totalling 11 months’ imprisonment to the High Court pursuant to s 17 of the CCRC Act.
[3] The charges were one charge of male assaults female,1 one of assault,2 one of intentional damage,3 one of resisting a constable acting in the execution of their duty,4 one of assaulting a constable in the execution of their duty,5 two charges of failing to answer bail,6 one of driving with excess breath alcohol,7 and one of unlawfully getting into a motor vehicle.8
[4] All charges were laid summarily pursuant to the Summary Proceedings Act 1957 (the SPA), which then applied.
[5] The appellant pleaded guilty to all charges apart from that of unlawfully getting into a motor vehicle, in respect of which he was found guilty following a defended hearing on 11 December 2001.
[6] The appellant was sentenced to nine months’ imprisonment on the charge of male assaults female and one month imprisonment to be served concurrently on the charges of assault, assault of a police officer and driving with excess breath alcohol. He was sentenced to two months’ imprisonment on the charge of unlawfully getting into a motor vehicle, to be served cumulatively, and convicted and discharged on the other charges.
1 Crimes Act 1961, s 194(b).
2 Summary Offences Act 1981, s 9.
3 Section 11(1)(a).
4 Section 23(1)(a).
5 Section 10.
6 Bail Act 2000, s 37.
7 Land Transport Act 1998, s 56(1).
8 Crimes Act, s 226(2).
[7] The appellant appealed against his sentence on the basis it was manifestly excessive. The appeal was dismissed in February 2002.9
[8] Pursuant to s 17 of the CCRC Act, the CCRC considers it in the interests of justice to refer the appellant’s convictions and sentences to the High Court. It acknowledged that the appellant has not exercised his right of appeal against conviction as he does not deny the offending.10 In its statement of reasons for referral, the CCRC states that the appeal court to which the appellant’s convictions and sentence may be referred is the High Court.11
[9] However, the respondent has identified an issue with the interpretation of the CCRC Act. That is, whether it is correct that s 18 of the CCRC Act means that the appeal court to which the appellant’s convictions and sentence may be referred is the High Court. The alternative is that the referral must be to the Court of Appeal. Both the appellant and respondent accept that Parliament likely intended the referral to be made to the High Court.
The legislative provisions
[10] The issue depends upon the correct interpretation of s 18 of the CCRC Act and how its reference to the Criminal Procedure Act 2011 (the CPA) should be approached. I begin by setting out the relevant provisions of the CCRC Act and CPA.
[11]The purpose of the CCRC Act is:
3 Purpose of this Act
The purpose of this Act is to establish an independent body to investigate and review criminal convictions and sentences and decide whether to refer them under the Act to an appeal court.
[12]Section 18 of the CCRC Act provides:
18 Appeal court to which conviction or sentence may be referred
9 [G] v Police HC Napier AP 1-202, 5 February 2002.
10 Mr Cook noted that the appellant appeals his convictions on the basis that, had the proceedings taken place in the Youth Court, then there were a number of disposal options available which would not have resulted in a conviction.
11 Statement of Reasons for Referral at [3].
(1)The appeal court to which a conviction may be referred is—
(a)the High Court, if the eligible person’s right of first appeal against a conviction under subpart 3 of Part 6 of the Criminal Procedure Act 2011 is to the District Court or the High Court; or
(b)otherwise, the Court of Appeal.
(2)The appeal court to which a sentence may be referred is—
(a)the High Court, if the eligible person’s right of first appeal against a sentence under subpart 4 of Part 6 of the Criminal Procedure Act 2011 is to the District Court or the High Court; or
(b)otherwise, the Court of Appeal.
[13]Section 20 of the CCRC Act is also relevant and provides:
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.
[14] Sections 229 and 230 (subpt 3 of pt 6 of the CPA) apply to appeals against conviction and provide:
229Right of appeal against conviction
(1)A person convicted of an offence may appeal under this subpart to the first appeal court against the conviction.
(2)An appeal against a finding that the convicted person is guilty of a contempt of court must be brought under subpart 5.
230First appeal courts
(1)The first appeal court for an appeal under this subpart is—
(a)the District Court presided over by a District Court Judge, if the appeal is against a conviction entered by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b)the High Court, if the appeal is against a conviction entered by the District Court presided over by a District Court Judge, other than a conviction for—
(i)a category 3 offence after the convicted person elected a jury trial; or
(ii)a category 4 offence; or
(c)either the Court of Appeal or the Supreme Court, in any other case.
(2)For the purposes of subsection (1), if a convicted person elected a jury trial but subsequently withdrew his or her election before trial, the convicted person must be treated as if he or she had not elected a jury trial.
[15] Sections 244 and 247 (subpt 4 of pt 6 of the CPA) apply to appeals against sentence and provide:
244 Convicted person’s right of appeal against sentence
(1)A person convicted of an offence may appeal under this subpart to the first appeal court against the sentence imposed for that offence, unless the sentence is one fixed by law.
(2)An appeal by a person against a sentence imposed on finding the person guilty of a contempt of court must be brought under subpart 5.
…
247 First appeal courts
(1)The first appeal court for an appeal under this subpart is—
(a)the District Court presided over by a District Court Judge, if the appeal is against a sentence imposed by the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b)the High Court, if the appeal is against a sentence imposed by the District Court presided over by a District Court Judge and if—
(i)the sentence was for a category 1 or 2 offence; or
(ii)the sentence was for a category 3 offence and the convicted person did not elect a jury trial; or
(c)the High Court, if the appeal is against a sentence imposed by the District Court presided over by a District Court Judge for a category 3 offence and if—
(i)the convicted person elected a jury trial; and
(ii)the convicted person pleaded guilty to the offence before the trial; and
(iii)the sentence appealed against is not a sentence of imprisonment exceeding 5 years; or
(d)either the Court of Appeal or the Supreme Court, in any other case.
(2)For the purposes of subsection (1), if a convicted person elected a jury trial but subsequently withdrew his or her election before trial, the convicted person must be treated as if he or she had not elected a jury trial.
[16] The issue arises because of the provisions of s 397 of the CPA, which appears in pt 8 of the CPA, and provides:
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.
[17] The charges against the appellant were commenced by the laying of informations under the SPA 1957 in 2001, prior to the commencement date of the CPA on 1 July 2003. The appellant’s appeal against sentence was dismissed in February 2002 but he has not appealed his convictions.
[18] The issue then is whether, if s 397 of the CPA applies in interpreting s 18 of the CCRC Act, the correct appeal court for the appellant’s referral is the Court of Appeal. The argument is that the appellant would not have a right of first appeal against his conviction or sentence according to s 18(1)(a) or (2)(a) because, pursuant to s 397(1), his proceedings commenced and were not finally determined before the commencement of the CPA. Therefore, the appeal court to which the appellant’s conviction and sentence may be referred by the CCRC is “otherwise, the Court of Appeal”.12 In other words, because s 397 means that proceedings under the SPA which have not been finally determined as at the date the CPA came into effect continue to be determined under the SPA and not the CPA, then the appellant does not have a right of first appeal under the CPA and the referral must be to the Court of Appeal.
[19] One point on which counsel agreed was that s 18 is (somewhat) ambiguous. The fact four potential interpretations have been identified confirms this is so. Those four potential interpretations are:
(a)s 18 stands alone and does not require consideration of s 397;
(b)s 397 requires consideration but does not apply;
(c)s 397 requires consideration but does not apply because the referral is a separate and discrete proceeding from any proceeding brought against or by the appellant; or
(d)s 397 does apply, with the result that the referral must be to the Court of Appeal.
12 CCRC Act, s 18(1)(b) and (2)(b).
[20] The arguments for and against the four possible interpretations will now be addressed.
Section 18 stands alone and does not require consideration of s 397
[21] The argument is that s 18 of the CCRC Act refers specifically to pt 6 of the CPA but not the CPA in general. Section 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 under the CCRC Act. Section 18 is not concerned with whether the proceeding was commenced under the CPA or predating legislation, or that the CPA provides a right of appeal. Section 18 is simply telling the CCRC that, when it makes a referral, it should look at subpt 3 or 4 of pt 6 of the CPA and that will tell it to which court the referral is made.
[22] There is simply no need to go beyond s 18 other than to refer to the specifically listed subparts of the CPA. Section 397 is in subpt 4 of pt 8 of the CPA and is not referred to in the CCRC Act. Imposing a requirement to refer to s 397 strains the interpretation of s 18, leading to a result which Parliament cannot possibly have intended. This approach is supported by the fact the CCRC Act unambiguously applies to historical convictions and sentences.13 Schedule 1, cl 2 of the CCRC Act states that the CCRC Act applies to convictions and sentences commenced before and after the commencement date of the CCRC Act. There is therefore no need to refer to transitional provisions of another Act.
[23] Parliament’s intention was for the CPA to determine the referral court irrespective of whether the eligible person in fact had a right of appeal under the CPA. Parliament was clearly alive to the fact that a large number of referrals would involve historical matters which had not been dealt with under the CPA and simply used the CPA to determine the appeal court for the purpose of the referral process. Unless s 18 is interpreted this way, it means any referral in respect of proceedings not commenced under the CPA must be to the Court of Appeal. Had that been intended, it can reasonably be expected that the legislation would have so provided.
13 Criminal Cases Review Commission Act 2019 [CCRC Act], sch 1, cl 2.
[24] The counter argument relies on the strict wording (and perhaps emphasis) of s 18. Section 18(1)(a) and (2)(a) discuss the eligible person’s right of first appeal under the CPA. Section 397 of that Act is therefore relevant and, when applied, means that the appellant does not have a right of appeal against conviction or sentence under the CPA.
[25] Had Parliament intended the CPA to apply for the purpose of a referral process only, s 18 would have read:
(1)The appeal court to which a conviction may be referred is—
(a)the High Court, if the eligible person’s right of first appeal against a conviction under subpart 3 of Part 6 of the Criminal Procedure Act 2011 is, or would be if the Criminal Procedure Act 2011 had applied to the proceeding, to the District Court or the High Court; or
(b)otherwise, the Court of Appeal.
(2)The appeal court to which a sentence may be referred is—
(a)the High Court, if the eligible person’s right of first appeal against a sentence under subpart 4 of Part 6 of the Criminal Procedure Act 2011 is, or would be if the Criminal Procedure Act 2011 had applied to the proceeding, to the District Court or the High Court; or
(b)otherwise, the Court of Appeal.
Section 397 requires consideration but does not apply
[26] This was the stance taken by Mr Cook, for the appellant. In Mr Cook’s submission, s 397 does not apply because the appellant’s proceedings have been finally determined. For ease of reference, s 397(1) provides:
(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.
[27] In Mr Cook’s submission, while the proceedings commenced before the commencement date of the CPA, they were finally determined before that date and therefore s 397 does not apply. He said that the proceedings have been finally
determined on the basis that finality has been achieved “as far as it goes”. That is, the appellant unsuccessfully appealed his sentence and, while he did not appeal his conviction, the time within which his appeal must be filed has elapsed. Therefore, he has effectively exhausted his appeal rights.
[28] The counter to that argument is that the proceedings have not been finally determined because the appellant could apply for leave to appeal his conviction out of time (something that is not an infrequent occurrence). However, it is Mr Cook’s submission that the case of C v Police was wrongly decided.14 That case concerned a 1996 conviction in respect of which the appellant was granted an extension of time to appeal her sentence some 25 years later, in 2021. The High Court described the applicable law—given the conviction was entered before the enactment of the CPA— as the SPA and applied it as if that Act were still in force. On Mr Cook’s analysis, that was the wrong approach because the proceedings had finally been determined under s 397(1)(b) as he contends it should be interpreted.
Section 397 requires consideration but does not apply because the referral is a separate and discrete proceeding from any proceeding brought against or by the appellant
[29] The CCRC, being aware that the respondent had raised this jurisdictional issue, filed a memorandum outlining the reasoning of the CCRC in making the referral to the High Court.
[30] The CCRC’s approach is not dissimilar to that of Mr Cook in that it agrees s 397 requires consideration but, for slightly different reasons, contends it does not apply. Its position is that the referral of convictions and sentences under s 17(1) of the CCRC Act is a separate and discrete proceeding from any proceeding that resulted in the relevant convictions and/or sentences. On that basis, s 397(1)(a) of the CPA does not apply because the referral was not commenced before the commencement of the CPA.
[31] It is the CCRC’s submission that the discrete nature of a referral is illustrated by s 20 of the CCRC Act, which provides that the referral must be heard and
14 C v Police [2022] NZHC 878.
determined as if it were a first appeal. This supports the CCRC’s contention that the referral is a proceeding commenced by the CCRC and is not conceptually an appeal. It says also that this conclusion is reinforced by examining the appellant’s proceedings which have been finally determined, all appeal rights having been exercised. I interpose at this point to note that this is not correct, as the CCRC itself acknowledged in its referral. The appellant has not exhausted his appeal rights in respect of his conviction and could apply for leave to appeal out of time.
[32] The counter to the CCRC’s approach is that s 397 of the CPA itself relevantly provides that a proceeding has commenced if an information has been laid in accordance with the SPA in respect of an offence,15 as is the case here. That suggests that the use of the word “proceedings” is in the context of charges that have been laid. This is reinforced by the provisions of s 4 of the CPA, the overview section, which uses the word “proceedings” in respect of charges beginning in the District Court by the filing of a charging document, whether they be category 1, 2, 3 or 4 offences (as defined under the CPA).
[33] It is helpful at this point briefly to refer to the history of s 397. Clause 389 of the Criminal Procedure (Reform and Modernisation) Bill (which became s 397) was summarised in the Departmental Report for the Justice and Electoral Committee dated 16 May 2011. That included a recommended amendment to make it clear that the term “proceeding” included appeals, retrials and rehearings arising from determination of the original charge. While the recommendation was not carried through into the CPA in those exact terms, s 397(1)(b) effectively achieves the same result by providing that the section applies to proceedings commenced before the CPA commenced, but not finally determined, including any rehearing, re-trial or appeal.
[34] Furthermore, the CCRC relies on the wording of s 20 which provides that a referral must be heard and determined as if it were a first appeal. That argument could equally be used in support of the proposition that s 397(1)(b) does apply and the proceedings have not been finally determined.
15 Criminal Procedure Act 2011 [CPA], s 397(3)(a).
Section 397 does apply, with the result that the referral must be to the Court of Appeal
[35] The argument is that s 397 of the CPA applies because the proceedings against the appellant were commenced in 2001 by the laying of informations under the SPA, well before the date of commencement of the CPA, and they were not finally determined before that date. It then follows that the appellant does not have a first right of appeal under subpts 3 or 4 of pt 6 of the CPA as the previous law applies. This notwithstanding that, under the SPA, the appellant’s first right of appeal is to the High Court and as such his referral must be to the Court of Appeal under s 18(1)(b) and (2)(b).
[36] The counter argument is that, had Parliament intended this outcome, s 18(1) would have read:
If the eligible person has a right of appeal under the Criminal Procedure Act then the appeal court to which a conviction may be referred is determined under the Criminal Procedure Act. Otherwise the referral is to the Court of Appeal.
What is the correct interpretation of s 18?
[37] The parties agreed that, whether or not s 397 applies to the interpretation of s 18, there is scope for a purposive approach given the important context of the CCRC and the logical and practical issues involved.
[38] Whether or not the purpose of an Act is stated in the legislation, the meaning of legislation must be ascertained from its text and in light of its purpose and its context.16
[39] As discussed by the learned authors of Burrows and Carter Statute Law in New Zealand,17 there has been a general change in judicial approach towards statutory interpretation over time. The learned authors describe it loosely as “a change from the literal to the purposive”, saying:18
16 Legislation Act 2019, s 10.
17 R I Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021).
18 At 293.
This certainly does not mean that the plain meaning of statutory provisions is no longer of importance; it means rather that there is no longer the excessive and destructive adherence to the letter that marked some of the older decisions.
And:19
… the modern trend is towards a “purposive” interpretation where the words of the legislation are read in their fullest context, and with a view to giving effect to the purpose of the legislation. Briefly put, there is overall a desire that legislation should work as Parliament intended it to work.
[40] So, in order to determine the correct interpretation of s 18 and what Parliament intended, it is necessary to canvass the legislative history of the provision and the CCRC. This involves considering the parliamentary history of the CCRC Act.20
The prerogative of mercy
[41] The CCRC Act replaced s 406 of the Crimes Act 1961 which provided for the exercise of the prerogative of mercy. The legislative history of s 406 is also of some assistance in interpreting s 18 of the CCRC Act.
[42]Prior to July 2013, s 406 provided:
406 Prerogative of mercy
Nothing in this Act shall affect the prerogative of mercy, but the Governor- General in Council, on the consideration of any application for the exercise of the mercy of the Crown having reference to the conviction of any person by any court or to the sentence (other than a sentence fixed by law) passed on any person, may at any time if he thinks fit, whether or not that person has appealed or had the right to appeal against the conviction or sentence, either—
(a)refer the question of the conviction or sentence to the Court of Appeal or, where the person was convicted or sentenced by a District Court acting in its summary jurisdiction or under section 28F(4) of the District Courts Act 1947, to the High Court, and the question so referred shall then be heard and determined by the court to which it is referred as in the case of an appeal by that person against conviction or sentence or both, as the case may require; or
19 At 286 (footnotes omitted).
20 Something the courts routinely do. See: Burrows and Carter, above n 17, at 362. See also D (SC31/2019) v Police [2021] NZSC 2 at [190]–[199] and [214]–[223]; Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [202]; Ortmon v United States of America [2020] NZSC 120 at [74]–[90] and [240]–[257]; and Pinot Properties Ltd v Vero Insurance New Zealand Ltd [2019] NZHC 2244 at [39].
(b)if he desires the assistance of the Court of Appeal on any point arising in the case with a view to the determination of the application, refer that point to the Court of Appeal for its opinion thereon, and the court shall consider the point so referred and furnish the Governor-General with its opinion thereon accordingly.
[43] Section 406(a) was amended on 1 July 201321 by omitting the words, “where a person was convicted or sentenced by a District Court acting in its summary jurisdiction or under s 28F(4) of the District Courts Act 1947”, and substituting, “where the person’s right of appeal against conviction under s 229 of the Criminal Procedure Act 2011 was to a District Court or the High Court”. Section 406 then allowed the Governor-General to:
…
(a) refer the question of the conviction or sentence to the Court of Appeal or, where the person’s right of appeal against conviction under section 229 of the Criminal Procedure Act 2011 was to a District Court or the High Court, to the High Court, and the question so referred shall then be heard and determined by the court to which it is referred as in the case of an appeal by that person against conviction or sentence or both, as the case may require; or
…
(Emphasis added)
[44] Both the previous s 406 of the Crimes Act and s 18 of the CCRC refer to s 229,22 the provision addressing a person’s right of appeal against conviction. As with s 18, s 406 of the Crimes Act did not refer to s 397 of the CPA and there were no transitional provisions in the CPA relating to s 406.
[45] The result is that the appeal pathways under the prerogative of mercy provisions face the same interpretative difficulty as s 18. If s 397 of the CPA applies to the most recent version of s 406(a), then the appeal pathway would have been governed by the version of s 406(a) that applied when the proceedings originally commenced in accordance with s 397(2). However, if s 397 does not apply, then the same potential jurisdictional issue arises. That is, the person would not have a right of appeal against conviction under s 229 of the CPA, as the right of appeal would be
21 Crimes Amendment Act (No 4) 2011, s 6.
22 I note s 18 refers to subpt 3 of pt 6 that includes s 229 of the CPA.
under the Crimes Act or SPA, with the default position of a referral to the Court of Appeal.
[46] Mr Baker, for the respondent, helpfully referred to a number of referrals to the Court of Appeal under s 406(1)(a) post-1 July 2013.23 Judgments in three of the referrals, Toia v R, Tamahere v R and Montaperto v R referred to the CPA but it does not appear that there was any substantive consideration of jurisdiction. It was not an issue in any of the cases, as the first appeal court was the Court of Appeal regardless. There do not appear to have been any cases which discuss the jurisdictional issue in the context of s 406(1)(a) post-1 July 2013.
Legislative history – the CCRC Act
[47] The policy intent behind the CCRC Act was described in the Departmental Report for the Justice Committee as being to “enhance the independence, timeliness, quality, and fairness of investigations into miscarriages of justice”.24 The primary function of the CCRC is to investigate and review convictions and sentences and decide whether to refer them to the appeal court under s 17.25
[48] Clause 18 of the CCRC Bill has the same wording as s 18 of the CCRC Act.26 The CCRC Bill’s explanatory note provided:27
Clause 18 specifies the relevant appeal court to which the Commission must refer a conviction or sentence on granting an application.
Clause 19 requires the Commission to give the appeal court its reasons for referring the conviction or sentence to the court.
Clause 20 requires the appeal court to which a conviction or sentence is referred to hear that matter as if it were an appeal against the conviction or the sentence.
23 Toia v R [2020] NZCA 416 at [12]; Tamihere v R [2020] NZCA 554 at [3]; Montaperto v R [2021] NZCA 170, (2021) 29 CRNZ 819 at [20]; and Watson v R [2022] NZCA 204, [2022] 3 NZLR 1 at [20].
24 Departmental Report for the Justice Committee: Criminal Cases Review Commission Bill
(Ministry of Justice, 8 August 2019) < CCRC Act, s 11.
26 Criminal Cases Review Commission Bill (106-1).
27 Criminal Cases Review Commission Bill (106-1) (explanatory note).
[49] Of note is the Ministry of Justice’s Departmental Report for the Justice Committee dated 8 August 2019.28 The following extracts are relevant:
Clauses 18 – 20: Court to which referral is made, reasons for decision, and hearing and determination of the appeal
169.Clauses 18 – 20 provide for procedural matters relating to a referral. Clause 18 provides that a referral for conviction or sentence is made to the High Court where a person’s first right of appeal was to the District Court or High Court, or otherwise to the Court of Appeal.
170.Clause 19 requires the Commission to give a statement of its reasons for referral. Clause 20 provides that the appeal courts must hear and determine the matter as if it were an appeal against the conviction or sentence.
…
Comment
175.We do not recommend any changes to clause 18.
176.As we explain below, we agree with the suggested amendment to clause 20 to specify that the reference is heard as a first appeal. The Supreme Court is a supervisory appeal court, there to oversee development of law and correct fundamental errors in courts below. It is not a court of first appeal.
177.The approach of the current process, and that proposed by the Bill is that referral leads to the first fresh appeal. The appellant then has all further appeals that may be available, including to the Supreme Court.
178.We disagree that clause 18 inhibits referral where an error may have been made by the Court of Appeal. Clause 18 indicates to which court a reference should be made in the first instance, based upon where the applicant’s first right of appeal was / would have been in respect of the conviction or sentence concerned.
179.Further, we do not think that a power to make a referral directly to the Supreme Court is necessary or desirable, notwithstanding that it would only be made in exceptional circumstances.
180.The Supreme Court must also grant leave to hear an appeal, rather than the appeal being as of right. Were a reference to be made to the Supreme Court, but the leave declined, the reference would not have achieved its purpose, of a fresh appeal. The Commission, having made the reference already, would also have no alternative procedural course of action to follow. The alternative would be to fetter the Supreme Court’s discretion concerning the grant of leave which would be a significant and, in our view, inappropriate step to take.
28 Departmental Report for the Justice Committee: Criminal Cases Review Commission Bill, above n 24, at 26–27.
181.As indicated above, we agree with the submission by the NZCBA in respect of clause 20, and recommend replacing the word “appeal” with “first appeal” in that clause.
Recommendation 7:
We recommend replacing the word “appeal” in clause 20 with “first appeal”.
[50] The Final Report of the Justice Committee on the Bill, presented on 3 October 2019, includes the following commentary:29
Appeal court’s consideration of referred cases
If the Commission considered it in the interests of justice to do so, it would refer a conviction or sentence to an appeal court as set out in clauses 17 to 20. Under clause 20, the court would have to hear and determine the matter as if it were an appeal against the conviction or sentence.
We think it would not be appropriate for appeals referred by the Commission to be limited by an earlier appeal the convicted person might have made. We recommend amending clause 20 to make it clear that courts should treat a referral from the Commission as a first appeal against the conviction or sentence.
[51] The reprinted Bill as reported from the Justice Committee on 3 October 2019 included an amended clause 20 (this is identical to s 20 of the CCRC Act):30
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
[52] It is notable that, throughout the legislative history, it was plain at all stages that the intention was for a referral to be heard as if it were a first appeal against conviction or sentence. Furthermore, that the purpose of s 18 is to “indicate[s] to which court a reference should be made in the first instance, based upon where the applicant’s first right of appeal was/would have been in respect of the conviction or sentence concerned”.31
29 Criminal Cases Review Commission Bill (106-2) (Select Committee Report) at 3.
30 Criminal Cases Review Commission Bill (106-2).
31 Departmental Report for the Justice Committee: Criminal Cases Review Commission Bill, above n 24, at [178].
Conclusion
[53] Mr Cook referred to the Supreme Court’s comments in Cameron v R about the approach to jurisdictional issues.32 In that case, the Supreme Court considered a jurisdictional question of whether the Court could hear the proposed appeals against conviction. Of note, the majority said:
[25] To date, the approach taken by the Court to jurisdictional questions more generally has been “reasonably expansive”. The Court has however made the point that in the context of appeals brought under the Crimes Act 1961, it was “careful to observe the jurisdictional limitations imposed by Parliament”. Acknowledging that need, the overall approach to jurisdiction needs to be a coherent one. We do not, however, see any reason to take a narrow approach here. Indeed, the policy considerations do not favour that.
[54] Mr Cook submitted that the context and constitutional significance of the CCRC point towards taking a “reasonably expansive” approach here.
[55] I am not convinced that the identified difficulty with s 18 requires a “reasonably expansive approach”. To my mind, the position is relatively straightforward, particularly when the legislative history of the CCRC Act is considered as discussed above.
[56] To return then to the four possible interpretations, dealing with them in reverse order. The proposition that Parliament intended the referral to be to the Court of Appeal when that is not the first appeal court in a case such as this one, under either the CPA or the SPA, can be easily dismissed. Likewise, the proposition that the referral is somehow different from the proceedings. That does not sit comfortably with the use of the term “proceedings” in the CPA. The proposition that s 397 does not apply because the appellant’s proceedings have in effect been finally determined, while having some attraction, carries with it difficulties. As the appellant has not appealed his convictions, it is a strained interpretation, to say the least, and I see no reason to depart from the approach of C v Police.33
[57] The first proposed interpretation of s 18 is the correct one. That is, s 18 stands alone and does not require reference to s 397 of the CPA. The appellant’s appeal
32 Cameron v R [2021] NZSC 110.
33 C v Police, above n 14.
against sentence was to the High Court and any application for leave to appeal the conviction out of time would also be to the High Court under the SPA. Moreover, had the charges been laid under the CPA, the appellant’s appeals against conviction and/or sentence would be to the High Court. Irrespective of the Act governing the charges, the appellant’s appeals against conviction or sentence would be to the High Court. To interpret s 18 such that the appellant’s referral is to the High Court would create a natural symmetry with these appeal rights under the SPA and CPA. Indeed, it would be illogical and contrary to the purpose of s 18 to conclude otherwise and require referrals to be made to the Court of Appeal.
[58] To take another interpretation would mean that s 18 requires a referral to the Court of Appeal except if, and only if, the eligible person has a right of appeal under the CPA to the High Court or District Court. This would be the case regardless of whether the eligible person’s right of appeal under the SPA was also to the High Court or District Court. It is inconceivable that Parliament intended that result. Indeed, the legislative and parliamentary history discussed above show that Parliament clearly intended a referral to be treated as a first appeal. If the first appeal court under the SPA or CPA is the High Court, then a referral – which is to be treated as a first appeal
– must likewise be to the High Court. That s 406 of the Crimes Act was amended in a similar fashion to the wording of s 18 and no issue regarding jurisdiction has been raised in the authorities considering historic convictions and sentences also supports this position.
Result
[59] The CCRC was correct to refer the appellant’s convictions and sentences to the High Court which has jurisdiction to deal with them.
[60] Whether the referral is considered under the CPA or SPA in the substantive proceeding is a different question which requires separate consideration. Mr Cook has already given some thought to this question. I appreciate he would like the opportunity to reflect on those submissions in light of this decision and potentially refine or elaborate on his submissions. Mr Baker has not yet addressed this issue and needs time to do so. In circumstances where Mr Cook has already played his hand, it is
appropriate that Mr Baker files submissions within ten working days of the date of this decision, with those from Mr Cook to follow five working days thereafter.
[61] A copy of this decision is to be sent to the CCRC, with a request it considers whether it wishes to be heard in respect of the process the referral should follow.
Thomas J
Solicitors:
Criminal Cases Review Commission, Hamilton for Appellant Crown Law, Wellington for Respondent
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