R v Huang
[2009] NZCA 527
•11 November 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA577/2007
[2009] NZCA 527IN THE MATTER OF An application for recall of judgment by Mr Comeskey
THE QUEEN
v
XIAO HUI HUANG
Hearing:12 October 2009
Court:Glazebrook, Potter and Wild JJ
Counsel:E R Fairbrother for Mr Comeskey
S B W Grieve QC and J S Clark, Amici Curiae
Judgment:11 November 2009 at 11.30 am
JUDGMENT OF THE COURT
The application for recall is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
Procedural aspects [3]
Background [7]
Senior Sergeant Chenery’s affidavit [15]
Mr Comeskey’s recall application [19]
Jurisdiction [21]
Comments relating to the backpack issue [22]
Comments on misleading the Court [29]Transcript [31]
Mr Fairbrother’s submissions [34]
Was the Court misled? [36]
Was there a breach of natural justice? [45]Comments on sentencing submissions [57]
Impugned comments [57]
Mr Fairbrother’s submissions [58]
Our assessment [60]Result [62]
Introduction
[1] On 5 March 2008, in R v Huang [2008] NZCA 46, this Court dismissed Ms Huang’s appeal against her conviction on various drugs charges as well as the related appeal against her sentence of 12 years imprisonment. In the course of the judgment on Ms Huang’s appeal the Court (Glazebrook, John Hansen and Wild JJ) made a number of criticisms of Mr Comeskey who was Ms Huang’s counsel for that appeal.
[2] On 18 December 2008, the Complaints Committee No 2 of the Auckland District Law Society charged Mr Comeskey with misconduct in his professional capacity on the basis that Mr Comeskey misled this Court during the conduct of Ms Huang’s appeal. On 25 May 2009, Mr Comeskey applied for the recall of the Court’s judgment on the appeal, on the basis that the criticisms of him in this Court’s judgment were unjustified.
Procedural aspects
[3] On 27 May 2009, Mr Comeskey was directed to serve his recall application on the Crown, the New Zealand Law Society and Ms Huang. None of these parties wished to be heard. The Crown did, however, object to certain of the amendments to the judgment sought by Mr Comeskey. Mr Comeskey agreed not to seek those amendments. The Crown also provided a copy of an affidavit by Senior Sergeant Chenery, which had been filed in the disciplinary proceedings relating to Mr Comeskey before the New Zealand Law Practitioners Disciplinary Tribunal.
[4] No affidavits were filed by or on behalf of Mr Comeskey. The Court did, however, in the course of hearing the recall application, offer Mr Comeskey the option of giving viva voce evidence. He decided not to do so, being content to rely on the material before the Court, which included a full transcript of the appeal hearing. No objection was taken to the affidavit of Senior Sergeant Chenery and no application was made to cross-examine him.
[5] Because no other party wished to be heard in relation to the application, Mr Grieve QC and Ms Clark were appointed as amici curiae to assist the Court. We are very grateful for their assistance.
[6] Due to the retirement from the Bench of John Hansen J, Potter J joined Glazebrook and Wild JJ on the panel hearing the recall application.
Background
[7] In order to understand the context of the Court’s criticisms of Mr Comeskey, some more background is required.
[8] Ms Huang’s conviction followed the seizure by Customs of three cartons sent from China to an address in Wellington. Concealed in the cartons were 26 heat sealed packages of methamphetamine with an estimated street value of around $8 million. Customs and the police substituted a placebo for all but some 20 grams of the methamphetamine and the cartons were delivered to Mr Ng, the co-accused of Ms Huang, at the Wellington address.
[9] At around the time the cartons were to arrive, Ms Huang flew from Auckland to Wellington. She travelled by taxi to Raumati where she booked a motel. She then returned to Wellington and rented a large safety deposit box. Following a telephone call from Mr Ng, she then went to a motel in Lyall Bay where Mr Ng handed her the 26 packages and a set of scales. She took these to a Wellington hotel. She was apprehended shortly after leaving the hotel.
[10] In an interview with the police, Ms Huang denied knowing the packages contained methamphetamine. She said that a friend had given her $2,000 to pick up the packages which she thought, from the smell, feel, colour and look, contained milk powder.
[11] Before trial, Mr Comeskey had been told by the Crown prosecutor that the placebo used to replace the methamphetamine was milk powder. However, on the second day of the trial, 17 April 2007, a Customs officer gave evidence that the placebo was a combination of milk powder and Thai sugar. This was used so the placebo would look visually the same as the drug it was replacing. The sugar gave the placebo a crystalline look, with the milk powder giving it a yellowish tinge.
[12] In his written submissions in support of Ms Huang’s appeal, two factors were relied on by Mr Comeskey. The first was the lack of disclosure of the composition of the placebo. The second was a complaint about the closing address of the prosecutor which suggested that Ms Huang had separated a portion (six bags) of the drugs with a view to travelling to Raumati to sell them from the motel she had earlier booked. Mr Comeskey asserted that submission was not supported by the evidence.
[13] In the course of the hearing of the appeal a further issue arose. The police had found 20 of the bags in a backpack in a cupboard in the room at Ms Huang’s hotel and the remaining six bags in a grey plastic shopping bag near the backpack. In her statement to the police, Ms Huang said that she had put the six bags into a bag of her own because there was not enough room for all 26 bags in the backpack she had been given. She had also been given some scales. She said that she had put the flat bottom of the scales into the backpack and the round weighing bowl into her own bag.
[14] At trial, a police witness, Detective McKay, said that the 26 bags, the scales and the bowl would fit comfortably into the backpack. Mr Comeskey asserted that this was contrary to the evidence at depositions where the officer had said that the backpack “was full with 20 heat-sealed plastic bags containing a yellow powder”.
Senior Sergeant Chenery’s affidavit
[15] In the affidavit referred to above at [3], Senior Sergeant Chenery deposed that, during Ms Huang’s trial, an issue arose as to whether 26 bags, some scales and a glass bowl could fit in the backpack. He said that, on 17 April 2007, he had arranged for Detective McKay to bring these items to the High Court for Mr Comeskey to inspect. Senior Sergeant Chenery made an entry in his notebook on 17 April 2007 which states:
Roscoe to bring bag to Court for Mr Comeskey to view @ 9.30 am.
[16] Senior Sergeant Chenery does not remember now whether he offered to have these items brought to the Court or whether Mr Comeskey requested them. Detective McKay came to the High Court with the items on 18 April 2007. Senior Sergeant Chenery said that he was present with Mr Comeskey when Detective McKay brought the backpack into the witness room that the police were using outside the courtroom.
[17] All 26 bags, the scales and the glass bowl were in the backpack when Detective McKay brought it into the room. Senior Sergeant Chenery said that he can recall Mr Comeskey picking up the backpack and making a comment that it was heavy. He also recalls that it was pointed out to Mr Comeskey that all the items clearly fitted into the backpack.
[18] After Mr Comeskey had seen the backpack and the other items, they were not taken into Court and formally produced as exhibits. Senior Sergeant Chenery says that they were secured in the witness room that was being used by the police until the conclusion of the trial.
Mr Comeskey’s recall application
[19] Mr Comeskey objects to a number of comments made by this Court in the judgment in Ms Huang’s appeal. These comments can be divided into three categories:
(a)comments relating to the backpack issue;
(b)comments about misleading the Court; and
(c)comments on Mr Comeskey’s sentencing submissions.
[20] We deal with each in turn but, before we do, we deal with the question of whether we have jurisdiction to recall the judgment.
Jurisdiction
[21] We accept the submission (made both by Mr Grieve QC and by Mr Fairbrother) that, on the principles set out by this Court in R v Smith [2003] 3 NZLR 617 at [36], this Court has jurisdiction to recall its judgment. There is no alternative remedy available for third parties (including counsel) should the Court make unjustified criticism of them in a judgment.
Comments relating to the backpack issue
[22] Mr Comeskey applied to have [31] of the judgment excised on the basis that the backpack issue was raised in response to the Court’s intervention and was not a further ground of appeal. That paragraph of our judgment reads as follows:
[31] What Mr Stone [the prosecutor] said to the jury about the 26 plastic packages all fitting into the backpack is the basis for Mr Comeskey’s third, unheralded, ground of appeal against conviction. We refer to it in the next section of this judgment.
[23] For the same reasons, the removal of [38] was also sought. That paragraph reads:
[38] This was Mr Comeskey’s third ground of appeal against conviction. Although making the point that it was not foreshadowed, Ms Guy Kidd was content to deal with it.
[24] Crown counsel, in a memorandum filed on 10 June 2009, indicated that the Solicitor-General accepted that the reference in [38] to this being a third “ground of appeal” is inexact, given that the sole ground of appeal as stated in the notice of appeal was prosecutorial misconduct. The Crown suggested that the word “ground” could be amended to “issue advanced in support”.
[25] Mr Comeskey as a consequence now seeks an amendment to [38] to read:
This was Mr Comeskey’s third issue advanced in support of appeal against conviction. Although making the point that it was not foreshadowed, Ms Guy Kidd was content to deal with it.
[26] We do not accept that the description of the submission about the six bags and the backpack as a ground of appeal was inaccurate. It is true that the notice of appeal stated that the only ground of appeal was prosecutorial misconduct. However, this was a generalised ground of appeal. Normally the Court would require an appellant to file fully particularised grounds of appeal identifying with precision the actual instances of prosecutorial misconduct alleged. That this did not occur in this case does not mean that each actual instance of alleged prosecutorial misconduct finally identified is not accurately described as a ground of appeal.
[27] Even if the description as a ground of appeal was inaccurate, however, it can be of no moment and would certainly not justify the recall of the judgment. The issue of whether the six bags would fit into the backpack and the alleged misleading disclosure in that regard was raised by Mr Comeskey at the oral hearing and relied on by him with regard to the appeal. It had not been contained in his written submissions. The important point was that the issue was unheralded and that the Crown had had no chance to respond: for example by placing before the Court an affidavit similar to the one sworn by Senior Sergeant Chenery which is now before us.
[28] Having said that, we accept Mr Fairbrother’s submission that this matter occurred to Mr Comeskey in the course of the oral hearing because of questioning from the Bench. We are not to be taken as suggesting that Mr Comeskey had deliberately omitted the backpack issue from his written submissions (or indeed from the notice of appeal) in order to “ambush” the Crown. It was also perfectly proper for Mr Comeskey to raise the issue (even belatedly) if he thought it would assist his client’s appeal (although it would of course have been better if he had done so in his written submissions at the latest).
Comments on misleading the Court
[29] It is probably fair to say that Mr Comeskey’s main concern was with the comments made at [46] of the judgment, relating to his alleged misleading of the Court:
[46] As pointed out in [14], it emerged that Mr Comeskey’s submissions to us on this third ground were more misleading than inept. Responding to the appeal for the Crown, Ms Guy Kidd informed us that the backpack and packages had been brought to Court by the detective and made available to Mr Comeskey. She said that, if necessary, the Crown could call the detective who would state that Mr Comeskey had inspected the backpack, partially unpacking the packages from it. Replying, Mr Comeskey accepted that he had indeed looked at the backpack and packages, although he said only briefly. Thus, Mr Comeskey initially misled us. Need we mention the fundamental importance of counsel accurately stating the position, and being absolutely candid and forthright with the Court?
[30] The paragraph, [14], referred to at [46], reads as follows:
[14] As we explain in [46], during the hearing before us it emerged that Mr Comeskey had looked at the placebo (or at least had the opportunity to do so), after requesting that the backpack and packages containing the placebo be brought to Court during the trial. Mr Comeskey did not request that the placebo be released for the purposes of analysis, nor did he ask for any adjournment, or for leave to recall Ms Reid for further cross-examination. Nor did Mr Comeskey ask that the placebo be shown to the jury so that they could judge for themselves whether it looked, felt and smelt like milk powder, as Ms Huang had maintained in her explanation to the Police.
Transcript
[31] In order to understand what led to the comments in [46], we set out extracts from the transcript of the hearing of the appeal.
[32] The backpack issue arose after John Hansen J raised the issue of the six separated out packages. Mr Comeskey then referred to his client’s explanation for the separation of the six packages and to the officer’s deposition statement, which he said contrasted with what was said at trial, as outlined above at [14]. John Hansen J asked Mr Comeskey to take the Court to his questions in cross-examination on that topic. The following exchange then took place:
MR COMESKEY:
The bags weren’t there, none of the objects were there.
JUSTICE JOHN HANSEN:
No, no, I’m asking you take us to your questioning.
MR COMESKEY:
Well I’m saying how do you cross-examine when you don’t have the exhibits in front of you. ...
JUSTICE JOHN HANSEN:
And are you saying that these bags were never disclosed to the defence.
MR COMESKEY:
No, only photographs. And the photograph booklet ...
JUSTICE JOHN HANSEN:
You never had the opportunity to see these?
MR COMESKEY:
I had the opportunity at trial to see on the basis of the milk powder issue, to have a look myself, I had a fleeting glance in a room out the back.
JUSTICE JOHN HANSEN:
But you chose not to cross-examine on what you say is a contradiction between his brief and the evidence he gave at trial?
MR COMESKEY:
Well, let’s go back to first principles ...
JUSTICE JOHN HANSEN:
That’s what I’m trying to do.
MR COMESKEY:
The Crown give you a brief of evidence saying that bag was full with the 20 bags. You take instructions from your client. Your client tells us the same thing she’s told the Police in interview that they all wouldn’t fit into the Rockford bag so some had to go into a Louis Vuitton bag. Now you get to trial and that’s not the evidence that’s led. The evidence ...
...
JUSTICE JOHN HANSEN:
If this was critical to the defence case I just can’t understand why you would not cross-examine on it.
MR COMESKEY:
Well you expect on fundamental points that the disclosure can be relied upon. What you seem to be saying Sir, is that no you just take what you get at trial.
JUSTICE JOHN HANSEN:
No, I’m not at all. I’m saying if somebody gives you a brief and when they give evidence its different to it at trial, you’re perfectly entitled to cross examine them as to the discrepancy and indeed I would have thought it was critical to the defence, obliged to cross-examine on them.
MR COMESKEY:
Well, you might, but you might not be keen to do that in the absence of the bag and the exhibits at stake.
JUSTICE JOHN HANSEN:
But you said you’d seen the bag out the back and you had the opportunity to see it.
MR COMESKEY:
I’d seen it for a different purpose. I’d seen it for the purpose over [sic] whether it had a strong apparent odour of milk powder.
JUSTICE JOHN HANSEN:
Well did you send a (indecipherable) down to look at it ...
JUSTICE GLAZEBROOK:
Yes exactly.
JUSTICE JOHN HANSEN:
... bring the bag into Court ...
MR COMESKEY:
Sorry?
JUSTICE JOHN HANSEN:
... or did you ask the Judge to stand the matter down to have another look at the bag, to have the bag brought into Court and exhibited if it wasn’t an exhibit. Did you do any of those things?
MR COMESKEY:
No, I didn’t do any of those things. It would seem that counsel can not have reliance upon the accuracy of disclosure. It’s for them to fix the errors of the wrongful information that they give.
JUSTICE JOHN HANSEN:
Well with respect Mr Comeskey, it seems to me fundamentally misunderstanding the trial process, but there we are.
[Emphasis added]
[33] Later in the transcript the following exchange took place:
MR COMESKEY:
I would have been quite happy, as you said, in my closing with nothing else to say but after the McKay shock to say look at the photographs and see how full you think that is. That’s all I could do. I would have loved for all of those exhibits to come into Court because I had a firm belief that she wouldn’t have crammed all of that stuff in there. You look at the photo, I’ll show you the photographs.
Here’s one of the photographs here, inside view of the wardrobe, you’ll see from that the Rockford bag is pretty much full.
So in the end in my closing, all I could do is say to them, have a look at the photographs and make an assessment yourself of whether she was credible on that point.
JUSTICE GLAZEBROOK:
Alright well ...
MR COMESKEY:
So the jury had evidence of McKay that they couldn’t in fact fit. The Crown were holding all of the aces by not producing the things and it undermined that crucial part of her explanation to the Police. You know I separated them how. Now she gets eight hours of interviews and she co-operates fully. On page 37A she’s asked, you don’t need to refer to this, I can read it out, Sandy Baigent says to the Detective “Do you agree that Huang has answered all of your questions, assisted you to the best of her ability” and the Detective says “yes she’s answered all of my questions”.
So she’s in a position where Detective Chenery agreed that she’d given truthful answers to everything he’d put to her prior to this interview. So she’s in a good position in that Chenery is saying she gave truthful answers and Mackie is saying she answered everything. And you have this milk powder thing that just crucifies the credibility of her explanation about the milk powder. You have this McKay evidence that’s sneaked in, against the disclosure when he says in the thing the bag’s full and then he says everything else could have fitted in there. Nothing is produced in Court and that would have been a proper exercise for the jury to have a feel and a sniff and push into the bag. I mean that’s what the exhibits would be for ...
JUSTICE GLAZEBROOK:
But you didn’t ask for them to be brought to Court.
MR COMESKEY:
But Ma’am I just made the point that Judges are always saying ...
JUSTICE GLAZEBROOK:
I know but you asked the Crown. I’d be astonished if the Crown said no we’re not producing those, if you’d asked for them to be produced. No way on earth the Crown would have said no we’re absolutely not going to do it. Did you ask for them to be brought there?
MR COMESKEY:
I recall that there was a great reluctance to put those into evidence and I’m quite happy if Mr Barr gives a different answer from the bar. But I recall that there was a great reluctance to have them produced.
JUSTICE JOHN HANSEN:
So there was a specific request and it was denied ...
MR COMESKEY:
What I’m saying ...
JUSTICE JOHN HANSEN:
... Or not.
MR COMESKEY:
I’m being careful here. What I am saying is that ...
JUSTICE JOHN HANSEN:
Well, you need to be careful.
[Emphasis added]
Mr Fairbrother’s submissions
[34] With regard to [46], Mr Fairbrother first noted that the submission about the backpack arose only through questioning from the Court. In his submission, the appeal itself moved from Mr Comeskey’s simple proposition that non-disclosure relating to the placebo fatally upset the trial balance to an examination of Mr Comeskey’s trial decisions. It is in this context that the backpack issue arose. Mr Fairbrother submitted that the passage at [32] was not misleading. In Mr Fairbrother’s submission, when Mr Comeskey said “[t]he bags weren’t there, none of the objects were there”, that was strictly correct as the bags were not in the courtroom. Rather, they were in the exhibits room. When Mr Comeskey said that only photographs of the bags were disclosed to the defence, he meant that this was the position before trial. Mr Comeskey then immediately acknowledged that he had had the opportunity to have a “fleeting glance” at the bags with the placebo. Mr Fairbrother acknowledged that the inspection of the backpack described by Senior Sergeant Chenery would usually not be described as fleeting but submitted that words are used in different ways by different people.
[35] Mr Fairbrother submitted also that the comments in [46] of the judgment were made in breach of natural justice. In his submission they were not only without evidential foundation but were made without warning Mr Comeskey that the Court was contemplating making them and giving him an opportunity to comment. In addition, there were other avenues of complaint available to the Court, such as a complaint to the relevant disciplinary body. The comments did not need to be made in the judgment.
Was the Court misled?
[36] We do not accept Mr Fairbrother’s submission that there was no evidential foundation for the statement that Mr Comeskey misled the Court. In our view, Mr Comeskey by saying that the “bags weren’t there, none of the objects were” initially gave the impression that he had never seen the backpack and its contents and was thus unable to cross-examine Detective McKay properly. In the context of the questions from the Bench, it must also have been clear that a statement that none of the objects were there would be taken to mean that they were not in the courtroom or in the vicinity of the courtroom. We also consider that the subsequent comment about disclosure being of photographs only could be taken to imply that Mr Comeskey had not seen the actual backpack and its contents.
[37] We do accept the submission that this false impression was immediately corrected when Mr Comeskey, on being questioned further, said that he had had the opportunity to inspect the backpack. However, this correction was perhaps somewhat less than candid in light of what Crown counsel said at the hearing, which has now been confirmed by Senior Sergeant Chenery’s affidavit.
[38] Crown counsel at the appeal, Ms Guy Kidd, stated that Mr Comeskey’s inspection “involved partial unpacking of the bags and scales from the backpack and Mr Comeskey having an opportunity to see those inner packages and the backpack”. She said that affidavit evidence to confirm that could be called if needed. We accept Mr Grieve’s submission that this Court, absent challenge by Mr Comeskey, was entitled to assume that the statements by Crown counsel were accepted by Mr Comeskey as accurate.
[39] We also accept Mr Grieve’s submission that the false impression that Mr Comeskey had only had the opportunity for a brief and cursory look at the backpack would have been enhanced by Mr Comeskey’s statement set out at [33]:
I would have loved for all of those exhibits to come into Court because I had a firm belief that she wouldn’t have crammed all of that stuff in there. [Emphasis added]
[40] Mr Grieve submitted that Mr Comeskey made an assertion of fact contrary to what he had seen when he inspected the backpack and its contents during the trial (outlined above at [17]). We accept that this is a possible view. However, the use of the word “wouldn’t” may alternatively indicate that Mr Comeskey was commenting about how his client would have acted, rather than asserting his belief that the items would not have fitted into the backpack.
[41] Mr Grieve also submitted that the misleading impression of not having had a proper opportunity to inspect the backpack was enhanced by Mr Comeskey referring to the “great reluctance” on the part of the Crown to make the exhibit available when Mr Comeskey was asked by Glazebrook J: “Did you ask for them to be brought there?”. Further, as Mr Grieve points out, at no stage during the exchange set out at [32] did Mr Comeskey acknowledge that he had inspected the exhibit.
[42] We note too that Senior Sergeant Chenery’s affidavit suggests that the backpack was brought in so that Mr Comeskey could check whether or not the 26 bags fitted in it, which is contrary to Mr Comeskey’s assertion in the course of the hearing of the appeal that he had seen the backpack for a different purpose (ie to check for the odour of milk powder). We accept, however, that there could have been dual purposes; or that Mr Comeskey may have had an imperfect recollection of his purpose; or that Senior Sergeant Chenery may have misunderstood the reason the backpack was brought to Court.
[43] We do not consider that the fact the backpack issue was raised after questioning by the Court has relevance to whether the statements were misleading. The duty not to mislead the Court applies generally to all aspects of interaction with the Court. However, the fact that the issue arose out of questioning from the Court does show that there was no premeditated plan to mislead. We also accept that Mr Comeskey was responding to robust questioning by the Bench on issues that had not formed part of his preparation for the appeal and that this meant that he did not have time for considered answers. Some counsel thrive on robust questioning. Others are flustered by it.
[44] It is appropriate to clarify one point with regard to [46]. It may appear from the use of the word “[r]eplying” in that paragraph that Mr Comeskey only admitted to having inspected both the backpack and its contents after hearing the Crown submissions. That was not the case, as can be seen from the portion of the transcript set out at [32]. The admission that he had seen the backpack was made in the course of presenting his argument on appeal in answer to questions from the Court. This need for clarification does not, however, justify recall. This judgment suffices to correct any possible adverse impression arising from the use of the word “[r]eplying” in [46] of the appeal judgment.
Was there a breach of natural justice?
[45] We turn now to Mr Fairbrother’s submission that the comments in [46] were made in breach of natural justice.
[46] In this regard, we accept Mr Grieve’s submission that, as the conduct which formed the basis of the Court’s comments was conduct in the face of the Court which breached counsel’s overriding duties to the Court, the principles of natural justice do not require the Court to warn counsel of its likely criticisms of his conduct.
[47] As Mr Grieve submitted, counsel have an overriding duty to the Court, stated in the following terms by Lord Reid in Rondel v Worsley [1969] 1 AC 191 at 227 (HL):
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court ...
[48] Further, r 8.01 of the Rules of Professional Conduct for Barristers and Solicitors (6ed 2000), (now superseded but in force at the relevant time):
In the interests of the administration of justice, the overriding duty of a practitioner acting in litigation is to the court or the tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.
[49] Counsel take an oath on admission, where they swear truly and honestly to conduct themselves in the practice of a barrister and solicitor according to the best of their knowledge and ability. It is a fundamental duty of counsel in terms of this oath not to mislead a Court.
[50] As Mr Grieve submitted, the duty to the law and the Court are fundamental ethical obligations, the existence of which courts are entitled to assume counsel is aware. Counsel is always on notice as an officer of the Court that these obligations must be met and, by extension, counsel must be taken as being aware that any breach of these duties could be the subject of comment by the Court.
[51] We thus accept Mr Grieve’s submission that a Court is not required by the rules of natural justice to notify, advise or remind counsel that he or she is required to comply with counsel’s fundamental duties to the Court and, in particular, the duty to be frank and honest with the Court and not to mislead. It follows, therefore, that the Court was entitled to draw inferences and make comments in its judgment on Mr Comeskey’s breaches of his overriding duty to the Court without being required to put to him that the Court considered that he was breaching his fundamental duty to it.
[52] This is not to suggest that a Court would never be obliged to seek comment from counsel before making adverse comments. An opportunity to comment should be afforded where there may be a possible explanation for counsel’s conduct that is not evident on the face of the record or at the hearing. In this case, the misleading conduct the Court commented on at [46] of its judgment took place in front of the Court. There can have been no question of any reason for the comments outside the courtroom, as the issue only arose in the course of the hearing.
[53] Mr Comeskey would be expected to have been aware that he had made misleading statements and that he was under a duty not to do so. He had every opportunity during the hearing to correct those statements. Indeed, it is clear, as Mr Grieve pointed out, that Mr Comeskey was well aware of his obligation not to mislead the Court. He said at one point “I’m being careful here”. He was then warned by John Hansen J: “Well you need to be careful.”
[54] In any event, Mr Comeskey has had full opportunity, in the course of the recall application, to put forward any explanation for the comments that he had not put forward at the hearing of the appeal. He chose not to provide any evidence to the Court: see above at [4].
[55] Mr Fairbrother submitted that the Court should not have made comments about Mr Comeskey misleading the Court in its judgment, but rather should have referred the matter to the relevant disciplinary body. We do not consider that the existence of another route of complaint should constrain the Court in what it chooses to say in its judgments.
[56] We do note that the matter is now in the course of disciplinary proceedings. It is worth making the point that the decision-makers in those proceedings will decide the matter on the basis of the information and evidence before them. This may be different from the material we have considered.
Comments on sentencing submissions
Impugned comments
[57] Mr Comeskey seeks to have the second and third sentences in [53] of the judgment excised. To understand the submission, we set [53] in context:
[49] Ms Huang challenges, as manifestly excessive, the sentence of 12 years imprisonment Clifford J imposed on her.
[50] While Mr Comeskey accepts that a very large quantity of drugs was involved, he contends that the main consideration on sentence ought to have been Ms Huang’s culpability. He submitted this was relatively low: she was a courier paid $2,000 for her role, with no expectation as to the quantity of drugs involved.
[51] Whilst acknowledging the authority of R v Fatu [2006] 2 NZLR 72 (CA), Mr Comeskey sought support by referring to the sentence imposed by Allan J in R v Lau HC AK CRI 2005-92-2600 16 December 2005. He fastened on the sentence of five years imprisonment imposed by Allan J on the charge of possession of methamphetamine for supply. In [21] of his sentencing remarks, Allan J stated that he regarded Mr Lau “as equivalent to a courier”.
[52] Mr Comeskey argued also that the Judge erred in not treating the conspiracy charge as the lead offence for sentencing purposes. He maintained that that charge more accurately reflected Ms Huang’s role in this offending – that of a courier. On that basis Mr Comeskey submitted a starting point of five years imprisonment ought to have been adopted as more accurately reflecting Ms Huang’s offending.
[53] We reject all these submissions. Optimistic would be a charitable description of the last of Mr Comeskey’s submissions. Misleading would perhaps be a more accurate one. Mr Lau’s role in an importation of over seven kilograms of methamphetamine closely accorded with that of Ms Huang’s co-accused, Mr Ng, in this case. Allan J accordingly took the charge of importing methamphetamine as the lead offence, sentencing Mr Lau to 15 years imprisonment. The five year sentence fastened upon by Mr Comeskey was imposed concurrently. It follows that there is no support in Lau for Mr Comeskey’s suggestion that a five year sentence is appropriate for a courier of seven to eight kilograms of methamphetamine. Indeed, in sentencing Mr Lau, Allan J referred to sentencing remarks made in R v Wickremasinge HC AK TO13408 23 March 2003. In that case, Chambers J suggested that sentencing starting points in the range 12-16 years were appropriate for “key players at a lower level who were not instigators or master minds, but whose involvement was essential to the enterprise (of importing methamphetamine)”. A courier such as Ms Huang fits into the category described by Chambers J. [Emphasis added]
Mr Fairbrother’s submissions
[58] Mr Fairbrother submitted that the two italicised sentences in [53] “set a line of judicial dicta that may have the effect of inhibiting future defence counsel from fearlessly advocating a client’s instructions, no matter how unpopular or even unrealistic those instructions may be”. He submitted that advancing the argument that Ms Huang’s lead charge should be as a conspirator gave expression to instructions. Optimistic it may have been, but Mr Fairbrother submitted that optimism at the defence bar is not necessarily a bad thing in an adversarial system. Mr Fairbrother also submitted that these comments were made in breach of natural justice.
Our assessment
[59] We do not accept Mr Fairbrother’s submission that there was a breach of natural justice in not warning Mr Comeskey about the comments that were to be made at [53]. It cannot be expected that a Court will warn counsel before it makes comment on the arguments presented in Court. If an argument is hopeless then the Court cannot be expected to mince words. Neither can it seriously be suggested that the Court should delay judgment to rehear the arguments it has already decided are without merit.
[60] We accept that it is unfortunate that the term “misleading” was used in [53] to describe Mr Comeskey’s sentencing submissions when the same word was used in a different sense in [46] of the judgment. Mr Comeskey did not mislead the Court as to the various sentences imposed in Lau. It was rather, as Mr Grieve submitted, that the decision in Lau does not support the proposition that five years was an appropriate sentencing starting point in a case involving the importation of eight kilograms of methamphetamine.
[61] It is true, as Mr Fairbrother submitted, that counsel are obliged to follow instructions to pursue even hopeless points (although counsel should endeavour to persuade their clients against such a course and legal aid would quite rightly not be available to pursue such points). However, even when following clients’ instructions, it is not appropriate for counsel to purport to rely on decisions which do not support the propositions argued for.
Result
[62] The application for recall is declined.
Solicitors:
John Ropati, Solicitor, Auckland for Mr Comeskey
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