Lawler v R - [2013] NZSC 92

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

SC 77/2013
[2013] NZSC 92

BETWEEN	STEPHEN JOHN LAWLER Applicant
AND	THE QUEEN Respondent

Court:	McGrath, Glazebrook and Arnold JJ
Counsel:	T Ellis and G K Edgeler for the Applicant B Keith for the Respondent
Judgment:	3 October 2013

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS

Introduction

Mr Lawler seeks leave to appeal against a decision of the Court of Appeal dismissing his appeal against convictions for sexual offending in 1987, 1990 and 1994 and against the imposition of a sentence of preventive detention.[1]
[1]Lawler v R [2013] NZCA 308. The Court did grant leave to appeal out of time.
Mr Lawler applied for a recall of the Court of Appeal’s decision. That application was dismissed on 4 September 2013.[2]

Grounds of leave application

[2]Lawler v R [2013] NZCA 415.

The application for leave to appeal with regard to Mr Lawler’s convictions is made on the basis that there had been an absence of proper and full disability reporting to the various courts that had dealt with Mr Lawler in the past. It is also based on the alleged failure of the Court of Appeal to call for more reports. It is asserted that Mr Lawler was unfit to plead at the dates on which he was convicted, being intellectually disabled with an IQ of 61.
On sentence, it is asserted that preventive detention was not warranted on the material before the sentencing Court and that the sentence has not been properly administered, including that there has been a lack of opportunities for rehabilitation. Mr Ellis also points to a decision of the High Court of Australia,[3] which had not been considered by the Court of Appeal.[4]
[3]Yates v R [2013] HCA 8.
[4]This decision had not been referred to the Court at the time it decided the substantive appeal but was referred to the Court in the recall application.
Mr Ellis on behalf of Mr Lawler, applies to add a further ground of appeal following the Court of Appeal’s refusal to recall its decision. He submits that the Court of Appeal lacked independence at the appeal hearing. This is on the basis that the discretionary recognition of a currently serving judge’s judicial work through the Honours system jeopardises the independence of the judiciary.[5]

The approach of the Court of Appeal on the conviction appeal

[5]Mr Ellis also asserts that a new coram should have heard the recall application. The Court, however, has no jurisdiction to hear an appeal against the Court of Appeal’s refusal to recall a judgment in a criminal appeal: de Mey v R [2005] NZSC 27 [3]–[4]; affirmed Blick v R [2012] NZSC 108, [3]–[4].

In the Court of Appeal a report was filed by a clinical psychologist, Ms Visser, on behalf of Mr Lawler. Her…

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.

Continue reading Lawler v R

Details

AGLC: Lawler v R [2013] NZSC 92
Case: [2013] NZSC 92
Decision Date: 3 October 2013

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Stephen John Lawler sought leave to appeal against a decision of the Court of Appeal that dismissed his appeal against convictions for sexual offending in 1987, 1990, and 1994, and against the imposition of a sentence of preventive detention. The Court of Appeal had previously granted leave to appeal out of time. The appeal raised issues concerning the adequacy of disability reporting, the fitness of Mr. Lawler to stand trial at the time of his convictions, the appropriateness of the sentence, and the independence of the Court of Appeal.

The legal issues before the Court included whether there had been an absence of proper and full disability reporting to the courts involved, whether the Court of Appeal should have called for more reports, and whether preventive detention was warranted. Additionally, it was argued that the Court of Appeal lacked independence due to the discretionary recognition of a judge's work through the Honours system. The Court of Appeal had concluded that there was no proper basis for intervening in the convictions, as the contemporaneous documents suggested Mr. Lawler was assessed as fit to plead at the time of his convictions. Regarding the sentence, the Court of Appeal found that the sentencing judge had a valid basis for imposing a sentence of preventive detention.

The Court found that Mr. Lawler had not demonstrated bias or apparent bias on the part of the Court of Appeal. The Court also concluded that the proposed issues raised in the appeal did not involve any matter of public importance or risk of miscarriage of justice. Therefore, the application for leave to appeal was declined.

The final orders of the Court were that the application for leave to appeal was declined, and no further appeal would be entertained. The Court's reasoning was based on the assessment of the evidence and the Court of Appeal's findings, which indicated that there was no proper basis for intervening in the convictions or sentence imposed.

Orders