Poole v Legal Services Commissioner
[2024] NZHC 732
•8 April 2024
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: DISTRICT COURT ORDER IN [2022] NZDC 10698 PROHIBITING PUBLICATION OF THE DETAILS IN PARAGRAPH [28] OF THAT
JUDGMENT REMAINS IN FORCE.IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-284
[2024] NZHC 732
BETWEEN REX MALCOLM POOLE
Appellant
AND
LEGAL SERVICES COMMISSIONER
Respondent
Hearing: 7 November 2023 Appearances:
T J Jackson for the Appellant
L M Hansen for the Respondent
Judgment:
8 April 2024
JUDGMENT OF PRESTON J
This judgment was delivered by me on 8 April 2024 at pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date……………
POOLE v LEGAL SERVICES COMMISSIONER [2024] NZHC 732 [8 April 2024]
Introduction
[1] Rex Malcolm Poole pleaded guilty in the District Court to a charge of attempted sexual violation but subsequently sought leave to vacate his plea. When the District Court refused leave, Mr Poole appealed. He sought a grant of criminal legal aid to do so.
[2] The Legal Services Commissioner (Commissioner) approved an initial grant for counsel to prepare a summary of issues, but ultimately declined to grant legal aid for the appeal.
[3] Mr Poole applied to the Legal Aid Tribunal (Tribunal) for review. In a reasoned decision the Tribunal confirmed the Commissioner’s decision to decline legal aid.
[4] Mr Poole now appeals that determination, on numerous grounds which essentially reduce to three alleging that the Tribunal:
(a)incorrectly applied or placed insufficient weight on the decision in
Marteley v Legal Services Commissioner;1
(b)erred in its conclusions as to the merits of the proposed appeal; and/or
(c)placed insufficient weight on other mandatory relevant considerations in s 8(2) of the Legal Services Act 2011 (Act).
Procedural Background
A guilty plea followed by an application to vacate
[5] Ten days before his trial was to commence, and two days after instructing his trial counsel he wished to do so, Mr Poole pleaded guilty in the District Court to a charge of attempted sexual violation of a former friend. However, before sentencing was due to take place, he sought leave to vacate the plea. The application was advanced on grounds Mr Poole’s trial counsel was not adequately prepared for trial
1 Marteley v Legal Services Commissioner [2015] NZSC 127, [2016] 1 NZLR 633.
and had coerced or manipulated him into entering the plea. Further, Mr Poole contended he was vulnerable and “worn down” to the point he simply gave up and pleaded guilty.
[6] Judge Lynch conducted a hearing over several days including evidence from Mr Poole and counsel involved in representing him. In a lengthy reasoned decision the Court refused leave to vacate the plea. The Judge was satisfied that Mr Poole’s decision to enter a guilty plea was a considered and fully informed one.2
[7] Mr Poole appealed the District Court’s decision to the Court of Appeal and sought legal aid to do so.
Test for when legal aid may be granted (criminal matters)
[8] Section 8 of the Act governs the provision of legal aid for criminal matters including appeals.
[9] The Commissioner may grant legal aid if it appears to the Commissioner that the interests of justice require that the applicant be granted legal aid. When considering whether that test is met, the Commissioner must have regard to a number of considerations set out in s 8(2)(a) and under s 8(2)(b) may have regard to “any other circumstances that, in the opinion of the Commissioner, are relevant”. The mandatory considerations in s 8(2)(a) include the grounds of the (proposed) appeal.
Legal Services Commissioner’s decision
[10] In Mr Poole’s case, the Commissioner assessed whether the interests of justice required a grant of legal aid and decided they did not. The Commissioner considered that the grounds of appeal were not arguable and no merit was disclosed in the appeal. Further, the Commissioner considered the lack of merit was not outweighed by the other relevant mandatory considerations.
2 R v Poole [2021] NZDC 25469 at [85], [108], [132] and [138].
Reconsideration: review
[11] Mr Poole sought a reconsideration of the Commissioner’s decision.3 The reconsideration recorded the circumstances in which the Court may exercise its discretion for leave to withdraw a guilty plea under s 115 of the Criminal Procedure Act 2011, before summarising the evidence against Mr Poole as “very strong”, having regard to the following:
(a)The complainant’s account that Mr Poole attempted to rape him in his bed.
(b)The complainant’s condition, recorded in a medical report of redness around the anus consistent with the alleged attempted anal penetration.
(c)Mr Poole’s DNA on the complainant’s duvet, consistent with the complainant’s account of Mr Poole’s ejaculation in the bed after he could not achieve penetration.
(d)Corroborating texts sent by the complainant to a witness asking the witness to come and help get rid of Mr Poole because he was in the complainant’s bed.
(e)The witness’s corroborating evidence of arriving at the complainant’s home and opening his bedroom door, seeing Mr Poole naked thrusting himself at the complainant who was lying face down on the bed crying out “no” and “stop”.
(f)Mr Poole’s admission to the police that he was present and alleging the complainant raped him, putting his credibility in issue against both the complainant and the witness.
3 Special advisor to the Commissioner, Mrs Stevens KC, provided an advice in this regard.
[12] The reconsideration summarised and analysed the evidence described in the District Court’s decision refusing leave. This included circumstances surrounding Mr Poole’s discussions with senior counsel prior to requesting a sentence indication at an earlier hearing and of the court appearance when Mr Poole entered his guilty plea, observing that “[t]he history of Mr Poole’s case and the number of counsel he communicated with strongly suggests Mr Poole was fully engaged in the process of entering a plea of guilty and well informed”. The Commissioner noted Mr Poole’s “active and informed engagement in the process”, his own preparation, over a year prior to his plea, of a detailed written outline of his case and his concession that his trial counsel had discussed with him the evidence, possible defence (including advice as to strength of that defence and the requirement for him to give evidence to advance the defence) and the number of options including proceeding to trial prior to him entering his plea in person. In summary, the Commissioner concluded it was not realistically arguable that Mr Poole was coerced into pleading guilty or that his trial counsel was motivated to secure a guilty plea because he was unprepared for trial.
Tribunal determination
[13]Mr Poole applied to review the Commissioner’s decision.
[14] The Tribunal gave a full reasoned decision. It commenced by setting out the background and summarising in detail Judge Lynch’s decision including the factual findings underpinning it, as the District Court’s decision was the subject of the proposed appeal and provided a record of the events and issues informing the review application, and the Commissioner’s response. The Tribunal explained the application for aid to advance the substantive appeal and summarised the parties’ positions.
[15] Mr Poole’s review application argued the Commissioner had wrongly weighed the s 8(2) factors, wrongly assessed the merits of the appeal and “wrongly [relied] on the fact there was no apparent error in the Judge’s decision”. The Commissioner’s position was noted in summary that there was insufficient merit in the proposed appeal to justify a full grant of aid, as there was no tenable argument that Mr Poole was inadequately represented given he had confirmed his instructions to counsel in writing, entered his plea personally and admitted at the hearing that trial counsel had advised
him on his defence. Further, the Crown case was strong and there was no evidence to support the assertion Mr Poole was drugged.
[16] The Tribunal recorded the statutory framework which empowers it to confirm, modify or reverse the Commissioner’s decision if it is manifestly unreasonable or wrong in law.4 It noted that a decision is manifestly unreasonable “where it is shown, clearly and unmistakably, that the decision made by the [Commissioner] went beyond what was reasonable or was irrational or logically flawed”,5 that there is a high threshold for intervention and that it is necessary for the Tribunal to exercise restraint on review.6
[17] The application for review was governed by s 8 of the Act. Noting the mandatory factors under s 8(2) to be considered in assessing whether a grant of legal is in the interests of justice, the Tribunal observed that the Commissioner is required to have regard to the grounds of the appeal, “[h]owever, the nature of this analysis, in particular the [weighting] of the likely prospects of success, requires careful consideration”. The Tribunal then summarised the approach of the Supreme Court majority in Marteley, acknowledging Elias CJ’s dissent in summary, before commencing its discussion of Mr Poole’s review application as follows:7
The majority of the Supreme Court in Marteley rejected that only “truly hopeless cases” would be excluded, or that merits consideration is limited to a preliminary and largely formal check. The majority’s approach requires a careful re-examination of the material available to form a provisional view of the proposed appeal. This provisional view will then be balanced against the factors set out at s 8(2) of the [Act].
In Marteley it was found that even allowing for limitations in the available material, there was sufficient merit in the grounds of appeal that aid was justified. However, in other cases the limitations of the material available to the Commissioner, and subsequently to the Tribunal, may mean that the only reasonable outcome is to direct the Commissioner to obtain further information and reconsider the decision under s 57 of the [Act].
(footnotes omitted)
4 Legal Services Act 2011, ss 52(1) and 56(1).
5 Rex Malcolm Poole [2023] NZLAT 001 at [38] (Tribunal decision), citing Legal Services Agency v Fainu (2002) 17 PRNZ 433 (HC) at [28].
6 Meredith v Legal Services Agency [2012] NZCA 573, [2013] 1 NZLR 517 at [97] & [99].
7 Tribunal decision, above n 5, at [46]-[48].
[18] The Tribunal noted that an appeal against a decision not to give leave to vacate a plea will only be permitted in very rare circumstances and the overriding consideration is whether allowing the plea to stand would produce a miscarriage of justice.8
[19] The Tribunal then identified and considered each of Mr Poole’s substantive grounds of appeal, concluding that each had little merit. Summarised, they are as follows:
First ground: Mr Poole’s plea was wrongfully induced due to trial counsel’s lack of preparation
[20] The Tribunal noted this first ground of appeal, to succeed, would require Mr Poole to persuade the Court of Appeal to overturn the District Court Judge’s findings that trial counsel’s advocacy and advice, while in some respects falling short of best practice, did not induce or coerce his plea. The Tribunal noted the Judge’s findings were based on a “sequence of events which was confirmed by Mr Poole’s own evidence and is captured in the documentary evidence”, including his trial counsel’s prior written communications, to court and to an agent advising the intended guilty plea and written instructions to counsel appearing on the day he entered plea. Mr Poole’s contentions that the plea was induced and he had not properly understood his situation were contradicted by his own statements under oath, and by the evidence of trial counsel and of counsel appearing at the entry of the plea that there was no indication he felt pressured to pleading guilty. The Tribunal noted the advantage of the first instance Judge in assessing the evidence and that his analysis of it was “careful and cogent”.
Second ground: The District Court Judge wrongly took Mr Poole’s demeanour at later hearings into account when assessing mental state at time of plea entry
[21] Mr Poole argued the District Court Judge wrongly concluded Mr Poole’s mental state at the time of his plea was not such as to vitiate the plea, based on his
8 Tribunal decision, above n 5, at [50]-[51], citing Whichman v R [2018] NZCA 519 at [36].
presentation at hearings occurring 15 and 27 months after the plea was entered. The Tribunal carefully considered this ground and said:9
At the hearing Mr Poole contended he was suffering from PTSD and felt overawed at the situation he found himself in when the plea was made. He refers to an alleged assault by police, to being “under extreme duress and trauma” and to feeling pressured by the “system weaponised against [him] in regards to my domestic circumstances with my son”, a reference to a Family Court matter he was involved with.
At paragraph [96] Judge Lynch commented:
I had the opportunity to assess Mr Poole giving evidence on two occasions and have read his lengthy affidavit and other material filed. While his evidence was obviously not given at a time when a jury trial was looming, my assessment of Mr Poole was that he is not a man to be bullied, as he said he felt he had been, nor a man to be manipulated, coerced, or cajoled into doing anything that he does not want to. Mr Poole can be rigid in his thinking and difficult to keep on topic, but [is] not someone who could be made to do something he did not want to do. I do not accept that Mr Poole was so overwhelmed by the situation he says he found himself in that he pleaded guilty. The circumstances simply do not support that contention. From what I observed, it is inconceivable that Mr Poole simple rolled over and entered a guilty plea he did not want to enter.
Reviewing the judgment as a whole, Judge Lynch’s assessment of Mr Poole’s mental state does not rest purely on Mr Poole’s demeanour and his appearances during the hearings. Rather, demeanour is one of several factors on which the Judge made his findings. Other factors included Mr Bamford’s evidence of Mr Poole’s character, Mr Nolan’s impressions of Mr Poole, and the circumstances in which the plea was given.
No evidence was provided of Mr Poole’s psychological state for the hearing before Judge Lynch, or in support of the application for aid, although I note that relevant reports were to have been obtained prior to sentencing. Based on the material available and acknowledging that there may be other evidence available which has not been produced, I conclude that as it stands this ground of appeal has little merit.
(footnotes omitted)
9 Tribunal decision, above n 5, at [60]-[63].
Third ground: Mr Poole’s defence of intoxication
[22] The Tribunal also considered the third ground of appeal had little merit. It rested on the assertion that Mr Poole has a “clear defence” of intoxication, based on indicated fresh evidence from two prison guards who processed Mr Poole on the day of his arrest that he was intoxicated at that time. The tribunal captured this argument as follows:10
Mr Jackson argues that Mr Poole could not have made a considered decision to plead guilty, as Mr Bamford had failed to contact potential witnesses in time for trial. In his submissions Mr Jackson refers to having contacted these witnesses, two prison guards who processed Mr Poole on the day of his arrest, and that they confirm that Mr Poole was intoxicated when the offending occurred. It is argued that based on this evidence Mr Poole has a clear defence of intoxication.
There are two aspects to this ground of appeal:
a.whether the absence of evidence supporting the defence at the time of the plea means Mr Poole was not properly aware of his options when the made the plea; and
b.whether the statements of the two prison guards are fresh evidence which means it would be against the interests of justice to allow the plea to stand …
[23] The Tribunal identified that the relevant inquiry was as to Mr Poole’s awareness of a possible defence and its strengths and weaknesses when set against the prosecution case when the plea was made. The District Court Judge had found Mr Poole was aware of the possible defence of intoxication and that trial counsel would have had time before trial to obtain the necessary evidence from the prison guards.
Other factors considered under s 8(2): mandatory and additional
[24] The Tribunal then considered the other factors in s 8(2) before assessing whether it was in the interests of justice for aid to be granted. The s 8(2)(a) criteria were addressed in sequence:11
10 Tribunal decision, above n 5, at [64]-[65].
11 At [69].
(i)Previous convictions are relevant as it means that an offender has the risk of harsher punishment, tipping the scales towards granting aid. Judge Lynch’s sentencing notes describe [Mr Poole’s] previous offending. However Mr Poole’s previous offending was relevant to another charge, rather than the sexual assault offence.
(ii)The appeal is regarding an offence for which Mr Poole received a sentence of imprisonment. The total sentence for the sexual assault charge is longer than the average term of imprisonment, however, it is a less severe penalty when compared with the 14-year minimum sentence considered in Marteley. Mr Poole is serving the sentence concurrently with other offences, whilst on home detention, and the sentencing decision took into account time spent on remand and on bail.
(iii)As above at (ii).
(iv)These proceedings do not involve a substantial question of law. Rather the issues involve the application of well-established principles for which there is good senior court/appellate authority.
(v)There are not complex factual or legal matters involved.
(vi)Judge Lynch observed that Mr Poole was able to express himself, albeit discursively, before the court. Mr Bamford observed that Mr Poole had read everything and prepared a detailed written outline of his case. Given these observations and the relatively straightforward and well- established issues to be considered I believe that Mr Poole would be able to present his own case.
(vii)Parole is not an issue in this matter.
(viii) The grounds of appeal are discussed above. (footnotes omitted)
[25] Section 8(2)(b) sets out that the Commissioner may have regard to any other circumstances that, in the opinion of the Commissioner, are relevant.
[26] Under this provision, the Tribunal assessed the issue of the fresh evidence and whether if Mr Poole were to be denied the opportunity to have this evidence tested there would be a miscarriage of justice, as he argued. The Tribunal rejected that argument. The evidence was not new; Mr Poole knew of the possibility of the prison guard evidence when he entered his plea and Judge Lynch commented on it. Viewed as a whole, the evidence was not cogent as capable of showing that Mr Poole was so affected by intoxication that he no longer appreciated what he was doing and therefore had lacked intention to wilfully commit the assault. Further, given the prolonged period over which the assault occurred, its continuation after the witness’s
interruption, and the arresting Constable’s observation that Mr Poole was not apparently heavily intoxicated and was calm, the Tribunal did not believe a jury would acquit based on the evidence as a whole and no miscarriage arises by the unavailability of the fresh evidence.
[27] In conclusion, the Tribunal confirmed the decision of the Commissioner, finding it had carefully considered the facts of the application and correctly applied the law; it was not manifestly unreasonable nor wrong in law.
Approach on appeal
[28] An appeal lies to this Court against a determination of the Tribunal. It is restricted to a question of law.12 The focus of the inquiry is on whether the Tribunal’s decision was wrong in law or manifestly unreasonable, not whether the Commissioner’s decision is correct.13
[29] In terms which have some resonance in the present appeal, Fisher J noted the approach on an appeal on an error of law, in Singh v Legal Aid Review Authority (a case decided under the Legal Services Act 1991):14
The difficulty as I see it is that it is so easy for appeals of this sort ostensibly brought on a question of law to slide into what is in substance an appeal on the merits. Expressions for example such as “excessive weight” being given to some particular considerations are in my view a clear indication that one is here talking about value judgements rather than questions of law.
[30]Section 8 of the Act governs the appeal, which is by way of rehearing.
[31]Section 8(2) provides:
When considering whether the interests of justice require that the applicant be granted legal aid, the Commissioner—
(a)must have regard to—
12 Legal Services Act, s 59.
13 Schmidt v Legal Services Commissioner [2022] NZHC 200 at [16], citing Legal Services Agency v Sweeney (2005) 17 PRNZ 767 (HC) at [19]; Legal Services Agency v Brown (2005) 17 PRNZ 523 (HC) at [30].
14 Singh v Legal Aid Review Authority [1997] NZAR 414 (HC) at 416.
(i)whether the applicant has any previous conviction; and
(ii)whether the applicant is charged with or convicted of an offence punishable by imprisonment; and
(iii)whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment; and
(iv)whether the proceedings involve a substantial question of law; and
(v)whether there are complex factual, legal, or evidential matters that require the determination of a court; and
(vi)whether the applicant is able to understand the proceedings or present his or her own case, whether orally or in writing; and
(vii)in any proceeding to which section 6(c) applies, the consequences for the applicant if legal aid is not granted; and
(viii)in respect of an appeal, the grounds of the appeal; and
(b)may have regard to any other circumstances that, in the opinion of the Commissioner, are relevant.
[32] As is evident, the “grounds of the appeal” is one of the factors the Commissioner must consider. In Marteley, the Supreme Court considered the place of merits of a proposed appeal in determining whether to grant or refuse legal aid, holding it was open to the Commissioner to have regard to the apparent merits of an appeal and, depending on the application of the other mandatory criteria in s 8(2), to refuse to grant legal aid for an appeal because it lacked merit.15
Analysis
[33]The appeal is brought on grounds that the Tribunal:
(a)either incorrectly applied, or placed insufficient weight on, the decision in Marteley v Legal Services Commissioner;16
15 Marteley v Legal Services Commissioner, above n 1. The stronger the apparent merits, the more likely it was that the interest of justice would require a grant of legal aid; an affirmative conclusion that an appeal had some merit was not, however, a pre-requisite to a grant of legal aid and grants in such circumstances were not confined to exceptional cases.
16 Marteley v Legal Services Commissioner, above n 1.
(b)wrongly purported to determine the merits of the substantive matter and the appellant’s defence;
(c)placed insufficient weight on other relevant, mandatory, factors, namely:
(i)Mr Poole’s limited means and economic eligibility;17
(ii)the real likelihood of imprisonment if Mr Poole was convicted in conjunction with the seriousness of the charge and effect of conviction, including the fact of conviction;18
(iii)the legal complexity of the proceedings.19
(d)Failed to place weight, or sufficient weight, on other circumstances, said to have been relevant, including:
(i)the possibility of fresh evidence in the substantive matter;
(ii)evidence tending to demonstrate lack of legal resources and possibility of inadequate representation in the substantive matter;
(iii)Mr Poole’s literacy, legal understanding and that he is serving a sentence of home detention;
(iv)the likely need to appoint amicus curiae and associated public cost on the appeal.
[34] As noted, these grounds essentially reduce to three principal complaints, which I now address.
17 Legal Services Act, s 8(1)(b).
18 Section 8(2)(iii).
19 Section 8(2)(v).
Did the Tribunal incorrectly apply or place insufficient weight on Marteley?
[35] First, Mr Jackson for Mr Poole argues the Tribunal wrongly elevated its provisional or “de facto” assessment of the merits of the appeal without considering the remaining criteria, displacing the rest of the interests of justice test in s 8. That is, the Tribunal treated its negative views of the merits as the decisive consideration.
[36] I am unable to accept this submission. A careful reading of the Tribunal’s reasons demonstrates otherwise. The Tribunal did not proceed on an “under-reading” of Marteley, as counsel contends. Rather, in accordance with Marteley it formed a view of the merits. It did so in a careful, considered assessment. The Tribunal concluded there was little merit in any of the grounds. However, this was not the decisive consideration or wrongly prioritised over all other factors. The Tribunal described its approach in these terms:20
I find there is little merit in any of the grounds for appeal. However, those grounds are arguable, therefore, I will proceed with considering the factors set out in s 8(2) and assess whether it is in the interests of justice for aid to be granted.
[37] Whereas Mr Jackson submits that the Tribunal’s assessment of the balance of the s 8(2) factors was “framed” by its conclusion on the merits, this is not so. As is evident from the outline of the determination at [14] to [26] above, the Tribunal considered every criterion in s 8(2) including each of the mandatory factors under s 8(2)(a) and, as a relevant further factor under s 8(2)(b), the proposed fresh evidence. In addition to the mandatory factors, the impact of the fresh evidence was a key plank of Mr Poole’s case on review. It was carefully and correctly analysed on the basis of the information before the Tribunal. Central to that analysis were the first instance findings of the District Court Judge on the key issue that Mr Poole understood the case against him and was aware of the possible defence of intoxication when he pleaded guilty. It is to be recalled Mr Poole had notified, through counsel, his intention to plead guilty two days before doing so. On the day he himself entered his plea, he gave no indication to counsel appearing on his behalf that he felt pressured into the plea. Further, trial counsel’s earlier advice to that lawyer had indicated Mr Poole’s motivation to plead related to the impact on certain courses he was undertaking at the
20 Tribunal decision, above n 5, at [67].
time. Mr Poole himself repeated that indication to the lawyer appearing on the day of the plea.
[38]This ground of appeal fails, accordingly.
Did the Tribunal wrongly determine the merits?
[39] Mr Poole next challenges the Tribunal’s assessment of the merits. Mr Jackson submits there were “at least two plausible areas of appeal”. First, that the Judge erred in determining the guilty plea was considered because Mr Poole was a vulnerable person by dint of various disadvantages. Counsel submits there was enough evidence to leave objective onlookers wondering whether Mr Poole was or felt “abandoned and hopeless” when he entered his plea. Further, counsel submits there was a clear defence of intoxication, having regard to Mr Poole’s suggestion he had been drugged and the proposed fresh evidence.
[40] I accept, as Ms Hansen for the Commissioner submits, the Tribunal carefully considered both issues against the totality of the evidence and found them to have little merit.
[41] As the Tribunal noted, there was no evidence of Mr Poole’s psychological state for the District Court hearing, nor on the application for legal aid. Further, as counsel acknowledges in his written submissions Judge Lynch recognised the vulnerabilities Mr Poole asserts in his decision. Materially, the Tribunal found:21
Reviewing the judgment as a whole, Judge Lynch’s assessment of Mr Poole’s mental state does not rest purely on Mr Poole’s demeanour and his appearances during the hearings. Rather, demeanour is one of several factors on which the judge made his findings. Other factors included Mr Bamford’s evidence of Mr Poole’s character, Mr Nolan’s impressions of Mr Poole, and the circumstances in which the plea was given.
[42] The potential defence was also considered carefully and in context of the applicable law. As the Tribunal correctly identified, the central issue here was whether Mr Poole was aware of the possible defence of intoxication when he made his plea;
21 Tribunal decision, above n 5, at [62].
the District Court Judge found he was. Further, his counsel had time to have obtained evidence from the guard(s) prior to trial.
[43]No error is disclosed in the Tribunal’s conclusion on the merits.
Did the Tribunal place insufficient weight on other mandatory or other relevant considerations?
[44] Mr Jackson submits that the Tribunal under-weighed the true seriousness of the conviction and also the long-term consequences of Mr Poole having a conviction of this nature amongst what is described as his “otherwise relatively minor, if extensive criminal history”. Counsel says there is factual complexity as Mr Poole’s defence would involve expert evidence about drug consumption, his affect and presentation and the characteristics of certain drugs, and argues complexity in the appeal itself was insufficiently recognised.
[45] In so far as Mr Poole’s complaints relate to the Tribunal’s assessment of the other mandatory factors in s 8(2)(a) and s 8(2)(b) as raised before the Tribunal – the fresh evidence point - they are without merit. The Tribunal expressly considered each of the criteria in s 8(2), as was required and is discussed at [24] to [25] above. Mr Poole’s complaint is that some of these factors were under-weighed by the Tribunal but, ultimately, weight is for the decision maker.22
[46] I do not accept that the Tribunal’s decision about Mr Poole’s ability to understand the proceedings or present his own case was, as counsel submits, “somewhat casual” in its reference to Mr Poole’s presentation in the District Court and written instructions to counsel. The issues in the proposed appeal turned on the background to and circumstances in which Mr Poole entered the guilty plea. In particular counsel’s representation, the nature of the intoxication defence and, critically, his understanding of his legal position when he entered the plea. Mr Poole had shown himself to be fully aware of his case including the defence albeit he could offer no alternative narrative for the events due to his lack of recall and had provided an extensive detailed written outline to counsel well before his trial. There was ample
22 Berryman v Solicitor General [2008] 2 NZLR 772 (HC) at [84].
basis for the Tribunal’s assessment, grounded firmly in the District Court Judge’s evidential findings, that Mr Poole was a person able to understand or present his own case, whether orally or in writing.
[47] There are two further matters argued on behalf of Mr Poole as relevant considerations, which were not raised before the Tribunal. First, Mr Jackson submits there is factual complexity arising from the signalled expert evidence. As counsel for the Commissioner identifies, such evidence, if available, would appear to be called in response to the evidence of arresting officers that Mr Poole did not appear intoxicated very shortly after the offending. The Tribunal did not address expert evidence as it was not advanced by Mr Poole on his application for review or at any earlier stage. The potential of such trial evidence from a toxicologist or otherwise does not, in the circumstances of Mr Poole’s appeal grounds, add relevant complexity in terms of s 8(2)(a)(v).
[48] Second, Mr Jackson argues the Tribunal wrongly failed to consider that amicus curiae would need to be appointed on the appeal. Counsel says this was a fiscal consequence of the failure to grant aid which was avoided only by counsel stepping in for Mr Poole’s sake and agreeing to act on the appeal unremunerated. No error is disclosed. The Tribunal was satisfied that Mr Poole would be able to present his own case and, as I have found, the issues on appeal are inherently factual. Any amicus appointment would have been for the Court of Appeal but there is no indication on the information before the Tribunal of any point of law on the appeal or other reason why such as appointment was indicated.23
Result
[49] I have found no error of law in the Tribunal’s approach to or assessment of the relevant criteria in s 8(2) of the Act. Indeed, the Tribunal’s determination carefully and comprehensively considered the Commissioner’s decision. Having done so, the Tribunal was satisfied it was neither wrong in law or manifestly unreasonable.
23 At the time this appeal was argued, the decision in Mr Poole’s appeal to the Court of Appeal, since determined, was pending, see: Poole v R [2023] NZCA 643.
[50]The appeal is dismissed.
………………………………………
Preston J
Solicitors:
JMJ Lawyers Limited, Timaru
Copy to L M Hansen Barrister, Wellington
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