R v Cramp

[2009] NZCA 90

IN THE COURT OF APPEAL OF NEW ZEALAND

CA496/2008
[2009] NZCA 90

THE QUEEN

v

JAN DENISE CRAMP

Hearing:11 February 2009

Court:O'Regan, Hugh Williams and Miller JJ

Counsel:R A B Barnsdale for Appellant

N P Chisnall for Crown

Judgment:26 March 2009 at 11.30 am

JUDGMENT OF THE COURT

AThe application to set aside the notice of abandonment of the appellant’s earlier appeal against conviction is dismissed.

BAn extension of time to appeal against sentence is granted but the appeal is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       On 20 December 2006, Mrs Cramp was found guilty by a jury in the District Court at Hamilton on three charges: abduction of a young person under 16 (a young child, whom we will call “D”), male assaults female, and common assault.  She was sentenced by the trial Judge, Judge D C Clark, to 150 hours’ community work.  An appeal against conviction, filed on 29 March 2007, was subsequently abandoned on 17 October 2007: see R v Lichtwark [2007] NZCA 542 at [16].

[2]       Some months later, Mrs Cramp made an application to cancel her community work sentence or to review that sentence.  After a hearing on 18 July 2008, Judge Clark dismissed the application.  She rejected the submission that a discharge without conviction should have been granted and re-imposed the community work sentence.

[3]       A notice of appeal against sentence was filed on 15 August 2008.  The notice appears to challenge the decision of 18 July 2008 on review of the sentence rather than the original sentence.  Mrs Cramp’s counsel, Mr Barnsdale, submits that the Judge was wrong not to discharge Mrs Cramp without conviction.

[4]       Prior to the hearing of this appeal, it became apparent that Mrs Cramp also wanted to appeal against her conviction for abduction.  The grounds advanced in favour of this intended appeal are that there was a miscarriage of justice because:

(a)A defence to the charge, namely that Mrs Cramp believed, at the time D was removed from the house, that she and her co-offenders had a right to remove him, was not fully put by her trial counsel (not Mr Barnsdale); and

(b)The trial judge misdirected the jury on the nature of her defence under s 210A of the Crimes Act 1961.

[5]       Mrs Cramp has now filed an application for leave to vacate the notice of abandonment of her earlier appeal against conviction.  She also seeks an extension of time to appeal against the original sentence, if that is required.

[6]       Before addressing these issues and the merits of the proposed appeals, it is necessary to set out the circumstances that resulted in Mrs Cramp’s convictions.  A similar summary appears in this Court’s judgment in Lichtwark, which concerned the conviction appeal of a co-offender.  His appeal was dismissed.

Background

[7]       Mrs Cramp’s convictions relate to events that occurred on 11 February 2006.  It was alleged that on that day she, along with her daughter (Gemma Lichtwark), son-in-law (Jason Lichtwark) and her husband (Steven Cramp), abducted D from the home of D’s paternal grandparents.  D, who was four at the time of the abduction, had previously been in the care of Mr and Mrs Lichtwark for most of his life.

[8]       On 26 September 2005 a Care or Protection Plan for Implementation of Order was filed in the Hamilton District Court (“the care and protection plan”).  Under the care and protection plan, the Lichtwarks had custody of D, with D’s father afforded weekly access.  D’s paternal grandparents were also regular visitors to the Lichtwarks’ home.  Soon after implementation of the care and protection plan, communication difficulties arose between the Lichtwarks, D’s father and grandparents, and the assigned social worker, Denise Fleming.

[9]       On 7 October 2005, pursuant to the care and protection plan, a custody order was made in favour of the Chief Executive of the Department of Child, Youth and Family Services (“CYFS”).  Under that order, CYFS had the power to select D’s care-provider.  At that point D remained in the care of the Lichtwarks, i.e. they were the care-providers then chosen by CYFS.

[10]     Matters changed a few weeks later.  On 31 October the Lichtwarks travelled to Australia.  CYFS organised respite care of D for this period by placing him in the care of his grandparents.  When the Lichtwarks returned to New Zealand on 10 November, CYFS decided to leave D in his grandparents’ care.  CYFS explained to the Lichtwarks, during a meeting on 11 November, that D’s grandparents were now D’s caregivers.  After this meeting, a CYFS social worker collected D’s personal effects from the Lichtwarks’ home.  This turn of events, and the manner in which it was handled by the relevant CYFS personnel, caused the Lichtwarks a great deal of distress.  Mr and Mrs Cramp were also distressed.  The conduct of the CYFS personnel appears to have been a significant factor in the events which led to the offending.

[11]     Over the next few months, the Lichtwarks unsuccessfully sought permission from CYFS to visit D.  On Friday 10 February 2006 Mrs Cramp contacted a lawyer, Vaioleti Hokum, for advice in relation to the matter.  Both Mrs Cramp and Ms Hokum gave evidence about this phone conversation at trial.  According to Ms Hokum, Mrs Cramp said that her daughter had legal custody of D, who was then with his grandparents for a period of respite care.  Ms Hokum explained that if this was the case, the Lichtwarks were legally entitled to uplift D.  However, she explained that if CYFS had the custody order, the Lichtwarks were not entitled to take D, and they should instead organise access via D’s social worker.

[12]     The following day, Mrs Cramp, along with Messrs Cramp and Lichtwark and two of Mrs Cramp’s children, went to D’s grandparents’ house.  Their purpose was to uplift D.  (Their stated position was that they wanted to take him to McDonalds and then have him for the weekend until the matter could be brought before a court the following Monday: Lichtwark at [13]). They managed to uplift D after Mr Cramp and Mr Lichtwark had entered the grandparents’ house, although not without some violence occurring. D was put into Mrs Cramp’s car and driven to Hamilton, where Mrs Lichtwark was picked up, and then to Morrinsville. After discovering the police were interested in D’s whereabouts, the Lichtwarks took him to Raglan. Eventually, he was handed over to the police at 5.30 pm on 12 February.

[13]     These events gave rise to the charges of abduction, male assaults female and common assault, which were laid against Mr and Mrs Cramp and Mr Lichtwark.  Mrs Lichtwark was charged only with abduction, as she was not present when D was uplifted.  All were found guilty as charged, but Mrs Lichtwark was discharged without conviction under s 106 of the Sentencing Act 2002.

Should the notice of abandonment be set aside?

[14]     Mr Barnsdale submitted that this Court had power to set aside the abandonment of the appeal against conviction if the circumstances in which the original appeal was abandoned were exceptional.  After the trial, Mrs Cramp’s husband was admitted to the Henry Bennett Centre in Hamilton for depression and was diagnosed with bipolar disorder.  He was discharged to community care in July 2007.  Mrs Cramp says that the pressure of this illness led her to abandon the appeal.  Mr Barnsdale said this was an exceptional situation justifying leave to withdraw the abandonment.

[15]     Ms Cramp’s original appeal was filed (and then abandoned) under the Court of Appeal (Criminal) Rules 2001.  Of most relevance is r 35, which provides:

35       Abandonment of appeal

(1)       An appellant may, at any time, abandon an appeal by filing in the Registry a notice advising that he or she—

(a)       does not intend further to prosecute the appeal; and

(b)      abandons all further proceedings concerning that appeal.

(2)       The notice must be signed by—

(a)       the appellant personally; or

(b)      the appellant's solicitor or counsel.

(3)       If the notice is signed by the appellant personally, the appellant's signature must be witnessed and the witness must add the witness's address and description after the witness's signature.

(4)       A notice under this rule may be in form 7.

[16]     Rule 35 is in material respects the same as its predecessor, r 29 of the Court of Appeal (Criminal) Rules 1997.  Under both of these rules, the legal effect of abandoning an appeal is not made clear.  This may be contrasted with r 44 of the Criminal Appeal Rules 1946, which provided:

An appellant at any time after he has given notice of appeal or of application for leave to appeal, or after he has applied for extension of time for such a notice, may abandon his appeal by giving the Registrar notice to that effect in the form numbered 8 in the Schedule hereto, and upon the giving of such notice of abandonment the appeal shall be deemed to have been dismissed by the Court.

(Emphasis added)

The legal effect of a notice of abandonment under the 2001 Rules

[17]     The legal effect of abandoning an appeal under the 2001 Rules is therefore not entirely clear.  This Court considered the legal effect of a notice of abandonment in R v Curtis CA288/04 17 February 2005.  Given the notice concerned was filed pursuant to the 1946 Rules, the Court’s conclusion at [15] is unsurprising:

[U]nder the 1946 Rules, the effect of a notice of abandonment was the deemed dismissal of the appeal. Since there is no right to file successive appeals, such a deemed dismissal served to extinguish the statutory appeal rights under the Crimes Act 1961.

[18]     The Court did, however, note at [24] that r 35 of the 2001 Rules is expressed in different terms and does “not provide that a notice of abandonment effects a deemed dismissal of the appeal”.  It then made the following comments:

[25]      It is implicit in the scheme of the new rules that an appeal is terminated by abandonment. But given that a notice of abandonment is now merely an act of the appellant and does not result in a deemed dismissal of an appeal by the Court, the res judicata considerations which were so influential in the thinking which underpinned the [R vMedway [1976] QB 779] approach are no longer so obviously applicable. Therefore, in cases similar to this which fall to be determined under the new rules, a different approach may be required. That approach, however, will still have to address the significance of a notice of abandonment and the importance of finality in criminal cases.

[19]     We agree with the Court in Curtis that the change in the wording of the relevant rule does not diminish the intended finality of an abandonment and the importance of finality in criminal cases.

The test for setting aside a notice of abandonment

[20]     We now turn to the test to be applied when the Court is asked to set aside a notice of abandonment, having regard to the silence in r 35 on the consequences of an abandonment.

[21]     Under the 1946 Rules, the leading case was R v MacKay [1980] 2 NZLR 490 in which this Court adopted the test set out in R v Medway [1976] QB 779 (CA). In Medway the English Court of Appeal rejected an argument that a notice of abandonment could be set aside in “special circumstances”, instead holding that the notice of abandonment must have constituted a “nullity”. This test would be satisfied when “the abandonment was not the result of a deliberate and informed decision, in other words the mind of the appellant did not go with his act of abandonment” (at 798).

[22]     In Curtis, this Court observed that the Medway test may require reconsideration to reflect the decision in R v Smith [2003] 3 NZLR 617 (CA). In Smith the Court considered whether it had the power to revisit an appeal that had been disposed of pursuant to a procedure that was later found to have been flawed (see R v Taito [2003] 3 NZLR 577 (PC)). At [36] the Court held that it had “inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice”, but that “[r]ecourse to the power to reopen must not undermine the general principle of finality”.

[23]     The Curtis Court noted that the exceptional circumstances test was at odds with the reasoning that led the Court in Medway to conclude that there was only jurisdiction to set aside a notice of abandonment that was a nullity.  Both tests were discussed, and it was observed that they did not necessarily cover the same ground.  In the end the Court did not reach a concluded position on which test was applicable, instead holding that even on the nullity test (which was more favourable on the facts of the case), the application should be dismissed.

[24]     Prior to the decision in Curtis, this Court considered an application for leave to withdraw a notice of abandonment that had been received pursuant to the 1997 Rules: R v Palmer CA140/04 16 August 2004.  The Court saw the test for granting leave to withdraw an abandonment as whether the notice of abandonment was a nullity or “whether the Court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words the mind of the applicant did not go to the abandonment” (at [13]).

[25]     Subsequently, in R v Bridgeman CA87/04 10 November 2005, the Court considered an application to reinstate an appeal that had been abandoned where the notice of abandonment had been filed under the 2001 Rules.  Having cited Curtis and noted the difference in wording between the 1946 Rules and the 2001 Rules, the Court said:

[8]       In Curtis this Court rejected an argument that a Notice of Abandonment could only be set aside if that Notice amounted to a nullity. The Court determined that, in exceptional circumstances, it has an inherent power to reconsider its decisions (see also R v Smith [2003] 3 NZLR 617).

[9]       In considering whether such exceptional circumstances exist, the Court will have regard to the importance of finality in criminal cases, the circumstances in which the Notice of Abandonment was given, and the necessity for an applicant for such an order to satisfy the Court that the reasons for the application are of an exceptional nature.

[26]     The approach taken by the Court in Bridgeman was foreshadowed rather than decided in Curtis.  However, in light of the decision of this Court in Smith, the comments in Curtis and the decision in Bridgeman, we consider that the position is now that the setting aside of a notice of abandonment is not limited to situations in which the notice of abandonment was a nullity.  The Court has power to set aside a notice of abandonment in exceptional circumstances, having regard to the factors identified in Bridgeman at [9], and if the interests of justice so require: Curtis at [34].

The proposed conviction appeal

[27]     In order to evaluate the application to withdraw the notice of abandonment, we received submissions and heard argument on the merits of the proposed conviction appeal.

[28]     The principal ground for the proposed appeal is that Mrs Cramp’s defence of having an honest and genuine belief that she was entitled to remove D from his grandparents’ home was not clearly put to the jury.  Mr Barnsdale accepted that a defence was fairly put that Mrs Cramp believed that, because Mr and Mrs Lichtwark were designated caregivers under a care and protection plan filed with the District Court, that gave them the right to remove D from his grandparents’ home.  But he said the defence which ought to have been put was that, notwithstanding the removal of D from the care of Mr and Mrs Lichtwark, Mrs Cramp believed that Mr and Mrs Lichtwark were entitled to a chance to say goodbye to D, and that this was the real purpose of the visit to D’s grandparents’ home.  She said that this belief derived from information given to her by a senior CYFS official, Ms Bailey. 

[29]     However, Mrs Cramp’s evidence at the trial was that Ms Bailey had initially indicated that she would arrange for the Lichtwarks to visit D, that Mrs Lichtwark was really excited about it “and then the next day [Ms Bailey] rung and said that, um, no they wouldn’t be allowed the visit”.  We do not see any realistic prospect of an appeal on this ground succeeding, given the inconsistency of Mrs Cramp’s present position with her testimony at the trial. 

[30]     Mr Barnsdale argued that defence counsel should have called Ms Bailey and another CYFS social worker to give evidence, in order to provide a credible basis for Mrs Cramp’s explanation that she thought she was entitled to visit D and to take him to McDonalds so that Mr and Mrs Lichtwark could say goodbye to him.  But given her acceptance at trial that Ms Bailey had told her that no such visit would be permitted, we can see no reason to criticise trial counsel for not calling either CYFS official.  In any event, we accept the evidence of trial counsel that he was not instructed to call Ms Bailey and that after he informed Mr and Mrs Cramp of the reasons against calling her, they agreed she would not be called.  Mr Barnsdale accepted, correctly in our view, that the evidence of the two proposed witnesses carried risks that the proposed defence would be even further undermined. 

[31]     Another proposed ground of appeal is that the Judge misdirected the jury on the defence available under s 210A of the Crimes Act, which provides:

A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against s 209 or s 210 because he or she gets possession of the young person.

[32]     A similar point was taken in the Lichtwark case and dealt with by the Court at [17] – [25]. In short, the Court accepted that the complaint made both in that case and in this case about the way in which the Judge answered a jury question on the topic had some validity, but that there was no miscarriage of justice because Mr Lichtwark had not advanced a defence on this basis.

[33]     In the present case Mr Barnsdale said the position was different because Mrs Cramp did have an expectation that one last visit to D was permitted by the senior social workers.  However, as we have noted above, that is at odds with her evidence at the trial and in those circumstances we can see no basis to distinguish the present case from Mr Lichtwark’s case.  This ground of appeal would have failed for the same reason as it failed in Mr Lichtwark’s case.

[34]     In summary, we do not see the proposed grounds of appeal, which would be pursued if leave to withdraw the notice of abandonment were given, as having merit. 

Conclusion: withdrawal of notice of abandonment

[35]     Drawing these threads together, we are clear that this case is far from exceptional, and that the interests of justice do not require leave to be given to withdraw the notice of abandonment.  While the admission of Mr Cramp to the Henry Bennett Centre would have been a distressing situation for both him and Mrs Cramp, we are unable to accept that that event alone amounts to an exceptional circumstance in relation to Mrs Cramp’s decision to abandon her appeal.  In oral argument Mr Barnsdale suggested that Mrs Cramp may have thought that she was obliged to abandon her appeal if her husband abandoned his appeal, but there is nothing in the evidence before us to indicate that that was the case.  In light of the lack of merit of the proposed grounds of appeal, we are clear that there is no proper basis for allowing withdrawal of the notice of abandonment in this case.  The interests of finality prevail. 

Appeal against sentence

[36]     Mrs Cramp appealed against sentence for the first time in August 2008, apparently in response to the decision of Judge Clark of 18 July 2008 refusing to cancel the original sentence imposed on her.  It was unclear whether the appeal was directed to the original sentence or the decision on the application for cancellation, but as the sentence resulting from that process was the same, it does not make any significant difference in practice.  For the avoidance of any doubt, we extend the time for appealing against the original sentence and proceed to deal with the merits.

[37]     Mr Barnsdale argued on behalf of Mrs Cramp that the Judge ought to have discharged her without conviction under s 106 of the Sentencing Act.  He said that Mrs Cramp was concerned that the conviction may prevent her from working with children as a caregiver, and this was one of only a few sources of possible employment for her (she is currently receiving a benefit).  He said she was also concerned that the conviction could restrict her opportunity of visiting her daughters who worked in home-based care of children.  He said that these factors had not been taken into account by the District Court Judge, and indeed Mrs Cramp’s trial counsel had accepted that he had not put these factors before the Judge, but would have done so if he had been instructed to do so. 

[38]     Mr Barnsdale said other factors indicating the appropriateness of a discharge without conviction were the lack of sensitivity by CYFS in terminating the placement of D with the Lichtwarks, the fact that Mrs Cramp had no previous convictions and the fact that Mr and Mrs Cramp were outstanding members of the community and were remorseful about the events that occurred. 

[39]     We can see no basis for criticism of the Judge in dealing with the factors that were before her, so the sentence appeal turns on the new matters raised with us for the first time, namely the effect of a conviction on Mrs Cramp’s employment prospects and on her ability to visit her daughters. 

[40]     There was no evidence before us that the impact of a conviction would prohibit Mrs Cramp from employment as a caregiver.  Mr Barnsdale accepted there was no evidence to that effect, but said that this was a possible outcome, particularly in the case of children who are under the care of CYFS.  It seems to us that if that is correct, the entry of a discharge without conviction under s 106 may well not solve the problem, because the very heavy involvement in CYFS in the present case means they would be fully aware of the circumstances which had led to the discharge without conviction and, if concerned about it, would be likely, as regards employment or visits, to regard it as having similar significance to the entry of a conviction.  CYFS could also be expected to take into account the stress Mrs Cramp was under when the offending occurred.  The important point is, however, that there is simply no evidence before us of the conviction preventing employment as a caregiver, nor is there any evidence that Mrs Cramp has been prevented from visiting her daughters while they are caring for children.

[41]     In light of the seriousness of the offending and the absence of material before us as to untoward consequences of a conviction being entered, we are unable to conclude that the consequences of the entry of a conviction in this case would be disproportionate to the offending.  In those circumstances, we see no basis for interfering with the Judge’s sentencing decision and therefore dismiss the appeal against sentence.

Solicitors:
Crown Law Office, Wellington