Graham v The Queen
[2020] NZCA 236
•15 June 2020 at 2 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA211/2020 [2020] NZCA 236 |
| BETWEEN | CHEYENNE GRAHAM |
| AND | THE QUEEN |
| Court: | French, Gilbert and Collins JJ |
Counsel: | G H Vear and H J Croucher for Appellant |
Judgment: | 15 June 2020 at 2 pm |
JUDGMENT OF THE COURT
The appellant’s application, to transfer to this Court his appeal against 73 convictions currently before the High Court, is declined.
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REASONS OF THE COURT
(Given by Gilbert J)
On 24 April 2020, the appellant, Mr Graham, filed a notice of appeal against three convictions for aggravated robbery. He was sentenced to 12 months’ imprisonment on the first of these charges in the District Court at Otahuhu on 30 October 1997. He was later sentenced to six months’ imprisonment on the other two charges in the District Court at Manukau on 8 December 2000. Mr Graham appeals to this Court against these convictions on the sole ground that he was not fit to stand trial due to his intellectual disability.
Mr Graham has also appealed to the High Court on the same basis against 73 other convictions. His appeal to the High Court was filed on 7 June 2019 and is set to be heard on 10 August 2020.
By memorandum dated 24 April 2020, Mr Graham applied for the High Court appeal to be “moved into this Court” so that both appeals could be dealt with together. The suggestion is that three judges of this Court would sit as judges of the High Court and exercise the powers of the High Court in respect of the 73 convictions that are the subject of the appeal to that Court. The present appeal against the other three charges would be dealt with at the same time by the same three judges forming the panel for the appeal to this Court.
The Crown opposes the application.
The parties request that the application be dealt with on the papers.
Mr Graham relies on the decisions of this Court in R v Cruden and Harvey v R as support for the course he proposes.[1] However, these cases are distinguishable from the situation before us.
[1]R v Cruden [2001] 2 NZLR 338 (CA); Harvey v R [2015] NZCA 420.
In Cruden, this Court was faced with an appeal against sentence on two charges of attempted burglary, the second of which was committed while Mr Cruden was on bail awaiting retrial on the first. Because Mr Cruden pleaded guilty summarily on the second charge, it was accepted that this Court lacked jurisdiction to deal with the appeal against sentence on that charge only. Accordingly, this Court issued its judgment on the appeal relating to the first charge, which was within the Court’s jurisdiction because the guilty plea was entered on indictment. The same three judges then issued a separate judgment, as a judgment of the High Court, allowing the appeal on the second charge with the same effect as the other judgment.[2]
[2]R v Cruden, above n 1, at [25].
Harvey is closer to the present situation, but nevertheless distinguishable. Mr Harvey appealed to this Court in 2015 against his convictions for rape, indecent assault and unlawful sexual connection. He had pleaded guilty to these charges in 2012 but alleged on appeal that he was unfit to plead. Mr Harvey also filed a notice of appeal against his conviction for assault on a child, to which he had pleaded guilty in 2006. This appeal was based on the same ground of unfitness to plead. Wild J directed that this notice of appeal should be accepted for filing by this Court, even though the appeal lay to the High Court, so that it could be dealt with at the same time. There was no opposition to this course. Counsel agreed that the Judges dealing with the matter should constitute themselves Judges of the High Court for the purpose of dealing with the 2006 conviction.[3] Unlike the present case, no appeal was filed in the High Court and the matter was able to be dealt with pragmatically, by consent, and on the papers. All convictions were quashed by consent and the matter was remitted to the District Court.
[3]Harvey v R, above n 1, at [10].
The High Court is the first appeal court for the appeal that has been quite properly lodged in that court in respect of 73 of Mr Graham’s convictions. There is no provision in the Criminal Procedure Act 2011 for that appeal to be transferred (or “moved”) to this Court. This is not a situation like Cruden where the Court has heard an appeal only to find later that it lacks jurisdiction in respect of an aspect of the appeal. In that situation, the only sensible course was to sit as judges of the High Court to determine that aspect of the appeal within its jurisdiction. We note that the problem confronted in Cruden has now been addressed by the enactment of s 321 of the Criminal Procedure Act. If the same situation arose today, both appeals would be heard and determined in this Court because of this “drag-along” provision for related appeals.
There is no jurisdiction for this Court to transfer the High Court appeal to this Court. The statutory appeal pathways cannot be subverted in the manner proposed. The application must accordingly be dismissed. In any case, we consider the interests of justice are best served by the High Court appeal proceeding on the scheduled date of 10 August 2020. This will enable that appeal to be dealt with at the earliest opportunity and preserve the normal statutory appeal rights. If Mr Graham’s appeal succeeds in the High Court and the Crown does not seek to challenge the decision, the appeal to this Court may be able to be dealt with expeditiously, possibly by consent. Alternatively, if the High Court dismisses the appeal, Mr Graham may seek leave to appeal to this Court. If such leave is granted, both appeals would no doubt be heard together.
Result
The appellant’s application, to transfer to this Court his appeal against 73 convictions currently before the High Court, is declined.
Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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