Poole v Legal Services Commissioner - [2024] NZHC 732

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…

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.

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Details

Case: [2024] NZHC 732
Decision Date: 8 April 2024

CaseChat Overview and Summary

Rex Malcolm Poole sought leave to vacate his guilty plea to a charge of attempted sexual violation, but the District Court refused the application. Poole then appealed this decision to the Court of Appeal but sought legal aid to do so. The Legal Services Commissioner approved an initial grant for counsel to prepare a summary of issues but ultimately declined to grant legal aid for the appeal. Poole applied to the Legal Aid Tribunal (Tribunal) for review, which confirmed the Commissioner’s decision. Poole now appeals this decision, on numerous grounds which essentially reduce to three allegations that the Tribunal: (a) incorrectly applied or placed insufficient weight on the decision in Marteley v Legal Services Commissioner; (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. The court found that the Tribunal had carefully and comprehensively considered the Commissioner’s decision and was satisfied it was neither wrong in law or manifestly unreasonable. The appeal was dismissed.

Orders