R v Graham Ashley Robert Palmer

[2003] NZCA 260

IN THE COURT OF APPEAL OF NEW ZEALAND

CA109/02

THE QUEEN

v

GRAHAM ASHLEY ROBERT PALMER

Hearing:12 November 2003

Coram:Blanchard J
Tipping J
Glazebrook J

Appearances:  R M Lithgow and A Shaw for Appellant

J C Pike for Crown

Judgment:12 November 2003 

Reasons for Judgment:        13 November 2003                

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. The Court has ordered that there should be a rehearing of Mr Palmer’s application for leave to appeal against his conviction and sentence on 25 charges involving GST fraud, theft, conspiracy to pervert the course of justice, forgery and commercial fraud.  He pleaded guilty to those charges on 18 December 1987.  The High Court refused him leave to change his pleas on 30 March 1988.  In a judgment delivered on 22 August 1989 this Court varied the term of imprisonment, substituting concurrent terms of five years eight months for terms of six years, but otherwise dismissed the application for leave to appeal.  The hearing was conducted on the papers.

2. Mr Lithgow, appearing for Mr Palmer with Mr Shaw, raised in written submissions a number of challenges to the processes by which this Court dealt with Mr Palmer’s application in 1989.  We found it necessary to hear oral argument from Mr Pike on only one point which seemed to us, on the basis of the written submissions, to be irrefutable by the Crown.  Mr Pike was unable to persuade us to the contrary.  We express no view on the other matters raised for the appellant or upon the merits of the substantive application for leave.

3. The point upon which Mr Palmer succeeded is this.  He was refused legal aid under the Offenders Legal Aid Act 1954.  He was also refused leave to be present at a hearing of his application.  That was a decision made by a single Judge of this Court.  In that circumstance s393 of the Crimes Act 1961 provided that he was entitled to have his application for leave to be present determined by the Court, i.e by three Judges.  A form had been prescribed for use by the Registrar in conveying advice of the decision of the single Judge and of the entitlement to have the application determined by the Court: Form No. 6 Criminal Appeal Rules 1946.  Mr Palmer was never, however, given advice in this or any equivalent form.  Indeed, the advice given to him was positively misleading as it indicated that the decision had been made by the Court.  He apparently remained unaware of his right under s393.

4. Whilst it is very possible that the result of a consideration by three Judges would have been the same, there is an appearance that in this respect Mr Palmer was denied due process.  It is therefore appropriate that he should have his application for leave to appeal reheard.  The Registrar is directed to set the matter down for hearing.

Solicitors:
Crown Law Office, Wellington