R v Jessop CA13/00
[2005] NZCA 425
•19 December 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA13/00
THE QUEEN
v
EMELYSIFA JESSOP
Hearing: 27 October 2005
Court: Glazebrook, O’Regan and Panckhurst JJ Counsel: T Ellis for Appellant
M F Laracy for Crown
Judgment: 19 December 2005
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
REASONS
(Given by O’Regan J)
R V EMELYSIFA JESSOP CA CA13/00 19 December 2005
Table of Contents
Para No
Introduction [1] Background [3] History [7] Grounds of appeal against conviction [11] (a) Identification process [13] (b) Unlawful arrest [20] (c) Video interview of appellant [27] (d) Re-committal to High Court [50] (e) Delay in trial process [52] (f) Delay in appeal process [57] (g) Bias [62] (h) Failure to confront victim [75] (i) Summing up [86] Result: conviction appeal [93] Appeal against sentence [94] Complaint about composition of division [108] Result [123]
Introduction
[1] The appellant, Emelysifa Jessop, was convicted after a jury trial at the High Court in Auckland of one count of aggravated robbery. She was sentenced in December 1999 by the trial Judge, Potter J, to a term of imprisonment of four years and eight months. She appeals against both conviction and sentence.
[2] This is a rehearing of Ms Jessop’s appeal. Ms Jessop was one of the successful appellants in R v Taito [2003] 3 NZLR 577 (PC). Her appeal was remitted to this Court by the Privy Council for rehearing.
Background
[3] The robbery took place on 2 June 1998. It was common ground that the appellant and P had been drinking on that day from about mid-afternoon at the home
of a Mr Smith at the Pensioner Flats in High Street Otahuhu, Auckland. Mr Smith was known to P.
[4] The Crown alleged that both P and the appellant left Mr Smith’s flat shortly before 6 pm and went to the home of the victim, who was then aged 87 years and was partially sighted. The victim was known to P. They knocked and gained entry through the front door of his flat, and asked him for money. He said he had none. P then punched him twice in the head with a closed fist. This caused him to fall back into a chair. The appellant and P pursued their demands for money. As the victim reached to a nearby set of drawers to obtain his wallet, the appellant took his walking stick, which he had been using for support, and beat him twice on the head with it. This resulted in a large gash above his eye. The victim handed about $70 to the appellant and P, and they then left, leaving the victim lying injured on the floor. A witness saw two girls whom he later identified as the appellant and P, leaving the High Street Pensioner Flats shortly after the robbery. They subsequently purchased food at McDonalds, and became involved in an altercation with another shopkeeper.
[5] The defence case was that P alone left Mr Smith’s flat and committed the robbery on her own. The appellant had stayed in Mr Smith’s flat during that time. After the robbery, P returned to Mr Smith’s place to collect the appellant, and they left together. The appellant accepted that she was with P before and after the robbery.
[6] The appellant was 14 years and nine months old at the time of the robbery. P was a little older.
History
[7] The appellant and P were initially convicted in the Youth Court at Otahuhu on 30 June 1998 and remanded for sentence to the High Court. On 22 July 1998 the appellant was sentenced by Potter J in the High Court at Auckland to a term of imprisonment of four years. The appellant appealed against her conviction, and the appeal was allowed by consent, because the conviction entered in the Youth Court was a nullity: R v Jessop CA404/98 2 March 1999. The case was remitted to the
Youth Court for a plea to be taken according to law. A similar appeal by P was also allowed.
[8] After the case was remitted to the Youth Court, the appellant pleaded not guilty and was remanded to the High Court for trial. Her trial took place in October
1999. On 1 October 1999, Potter J heard an application by the Crown under s 344A of the Crimes Act 1961 to determine the admissibility of a police video interview with the appellant. On 8 October 1999 she issued a judgment ruling that the video interview in its entirety was admissible as evidence at the trial of the appellant.
[9] On 12 October 1999, Robertson J heard an application by the appellant for a discharge under s 347 of the Crimes Act. This application was prompted by the fact that the Crown had indicated that it did not propose to call the victim to give evidence at trial, and this was said by the appellant’s counsel to be a cause of potential injustice. The basis of this submission was that the victim had initially given a statement to the police indicating that he had been attacked by one person, but his subsequent statement indicated that there were two attackers. The Crown offered to place before the jury all of the statements made by the victim, but the appellant’s counsel suggested only some of this material should be before the jury. Robertson J ruled that the victim’s statements should be before the jury on a “warts and all” basis or not before the jury at all. He dismissed the s 347 application.
[10] P pleaded guilty prior to the appellant’s High Court trial. The appellant and P both gave evidence at the appellant’s trial. Both said that the appellant and P had been together both before and after the robbery, but that P had undertaken the robbery alone. After the trial, the appellant and P were sentenced together by Potter J. The appellant’s counsel specifically requested that Potter J sentence the appellant. The appellant was sentenced to four years and eight months imprisonment. P was sentenced to three years six months imprisonment.
Grounds of appeal against conviction
[11] Counsel for the appellant, Mr Ellis, addressed arguments in support of the appeal against conviction under the following headings:
(a) Identification process; (b) Unlawful arrest;
(c) Video interview of appellant; (d) Re-committal to High Court; (e) Delay in the trial process;
(f) Delay in the appeal process; (g) Bias;
(h) Failure to confront victim; (i) Summing up.
[12] We will deal with them in the above order.
(a) Identification process
[13] A neighbour of the victim, Mr Miller, saw two females leaving the Pensioner Flats complex at about 5.45 pm. They came to his attention because he heard loud swearing, the voices were unfamiliar to him, and the voices indicated that the speakers were drunk. He pulled back his curtain and observed the two females, taking a note of the clothing they were wearing. When the ambulance arrived to attend to the victim, he directed the ambulance officers to the victim’s flat. When the police arrived, he gave them a description of the females he had seen.
[14] Later in the evening, about 7.30 pm, Senior Sergeant Kluessein saw two females walking down Great South Road, who matched the description given to the police by Mr Miller. He stopped them and spoke to them. They were the appellant and P. He said he asked them if they would be happy to take part in an informal identification, and explained the circumstances to them. They agreed. He then
directed Constable Radcliffe to take the appellant and P to the corner of Avenue Road and Great South Road, where there were four other females. He then took Mr Miller in a police car and drove him past the corner where the six females were standing. Mr Miller identified the two females at the far end of this group, who were the appellant and P. He said in his deposition statement that he recognised them from their clothing.
[15] Mr Ellis said that the process adopted in relation to the identity parade “was so fraught with error that [it] is sufficient to determine the appeal”. He did not specify how these deficiencies affected the fairness of the trial process or led to a miscarriage of justice. He did, however, highlight a number of aspects of the identification process which he said were deficient. These were:
(a) Senior Sergeant Kluessein said that the girls agreed to the identification parade, but Mr Ellis said that it may be that the appellant was unable to legally consent because she was so young, and apparently drunk;
(b)The line-up involved only six females, whereas police practice is to have at least eight people other than the suspect;
(c)There was no compliance with the requirement in s 344B(2) of the Crimes Act 1961 that a person charged with an offence who attends an identification parade is entitled to have his or her solicitor present;
(d)The requirements of s 215 of the Children, Young Persons, and their Families Act 1989 (CYPF Act), which should apply by analogy to the identification process, were not complied with. Section 215 requires that an explanation of the rights of a child or young person be given before an enforcement officer questions the child or young person where there are reasonable grounds to suspect the young person of having committed an offence, or before questions intended to obtain an admission of an offence are put to a young person.
[16] For the Crown, Ms Laracy took issue with a number of these matters, but her principal submission was that the appropriate sanction for an improper identification parade would be exclusion of the evidence obtained from the process, and no application had been made to the High Court for the exclusion of the evidence. In any event, the exclusion of the evidence at the trial would have had no practical effect, because the presence of P and the appellant in the Pensioner Flats complex shortly after the robbery was not a matter of dispute. P said in her evidence at the trial that, immediately after she (alone) committed the robbery, she returned to Mr Smith’s place, told the appellant what she had done, and the two of them then left the Pensioner Flats complex and went to Otahuhu town centre. Mr Miller’s evidence of his identification of the appellant and P was not the subject of any cross- examination at the appellant’s trial. In the portion of the video interview with the appellant in which she denied the offending and in her evidence at the trial, she also accepted that, immediately after the robbery occurred, P had returned to her at Mr Smith’s place and they had left together, which was consistent with Mr Miller’s evidence.
[17] We accept Ms Laracy’s submission that the identification process was not an issue at the trial, so that any ruling in this Court as to the legality of the process that was followed would be academic. The appellant’s trial counsel did not seek the exclusion of the identification evidence at trial. The identification evidence proved that Mr Miller had observed P and the appellant in the Pensioner Flats complex at about the time that the robbery occurred. Both P and the appellant acknowledged their presence in the complex at that time.
[18] We can see some merit in the argument made by Mr Ellis that the requirements of the CYPF Act may be engaged, at least by analogy, in a situation such as that which arose in this case. But we make no ruling on the matter because it can have no effect on the outcome of the appeal, we do not have the benefit of a decision of the trial Court, and the only evidence before us on the situation leading to the identification parade is the evidence of Senior Sergeant Kluessein that the girls participated in the process willingly. That evidence was not contradicted or challenged at the trial or on appeal. In particular, neither P nor the appellant said they were not willing participants in the identification process.
[19] The first ground of appeal fails.
(b) Unlawful arrest
[20] Mr Ellis said that the appellant was unlawfully arrested after the identification process had been completed, and accordingly the information made by the police following the arrest was invalid.
[21] Section 214 of the CYPF Act restricts the circumstances in which the power of arrest without warrant can be exercised in relation to a young person. Mr Ellis’ argument was that the requirements of s 214 were not met in this case.
[22] Ms Laracy’s response was that s 214 was not engaged in the present case because the appellant was neither arrested nor detained when she was taken to the Police Station. We agree. Constable Radcliffe, who took the appellant and P to the Police Station, said in his deposition statement that, in the patrol car on the way to the Police Station, he gave the appellant the rights set out in s 215(1) of the CYPF Act which provides:
215 Children or young person to be informed of rights before questioned by an enforcement officer
(1) Subject to sections 233 and 244 of this Act, every enforcement officer shall, before questioning any child or young person whom there are reasonable grounds to suspect of having committed an offence, or before asking any child or young person any question intended to obtain an admission of an offence, explain to that child or young person-
(a) Subject to subsection (2) of this section, if the circumstances are such that the enforcement officer would have power to arrest the child or young person without warrant, that the child or young person may be arrested if, by refusing to give his or her name and address to the enforcement officer, the child or young person cannot be served with a summons; and
(b) Subject to subsection (2) of this section, that the child or young person is not obliged to accompany the enforcement officer to any place for the purpose of being questioned, and that if the child or young person consents to do so, that he or she may withdraw that consent at any time; and
(c) That the child or young person is under no obligation to make or give any statement; and
(d) That if the child or young person consents to make or give a statement, the child or young person may withdraw that consent at any time; and
(e) That any statement made or given may be used in evidence in any proceedings; and
(f) That the child or young person is entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any person nominated by the child or young person in accordance with section 222 of this Act.
[23] Constable Radcliffe said that the appellant willingly went to the Police Station with him. The constable was not asked about these issues at trial and there was no evidence to the contrary from the appellant. He said he also gave the appellant her Bill of Rights.
[24] It is clear from the transcript of the video interview that the police officer conducting the video interview with the appellant at the Police Station, Detective Foster, repeated these cautions after the appellant arrived at the Police Station before the interview occurred, and again at the outset of the video interview. The appellant is recorded on the video as remembering that Detective Foster had told her that she was not obliged to accompany him to the Station and that she could leave at any time if she wanted to.
[25] In the light of that evidence, there is no basis for a finding that the appellant was arrested prior to the video interview and this aspect of the appeal therefore fails.
[26] Mr Ellis also suggested that the appellant was arrested or detained before the identification process referred to above took place. There is no evidential basis for that proposition either.
(c) Video interview of appellant
[27] As indicated earlier, Potter J heard an application by the Crown under s 344A of the Crimes Act to determine the admissibility of the video interview with the appellant. The Crown’s contention was that the whole of the video interview was admissible. The defence contention was that the first part of the video interview, in
which the appellant denied the offending, was admissible, but the second part of the interview in which she admitted the offending should be inadmissible on the grounds that it was an involuntary confession. The Judge ruled that both parts of the video interview were admissible.
[28] Mr Ellis said that the appellant preceded her confession to the offending in the second part of the video by saying to her mother in the Niuean language “I am going to lie now”. The Crown had accepted that this is what the Niuean words that she had spoken meant. Mr Ellis said that this meant that what followed was not a confession at all, because an admission of guilt preceded by a statement of intention to lie was not an admission of guilt at all.
[29] Before considering the competing arguments, we set out a chronology of what occurred at the Police Station.
• 8.10 pm: The appellant arrived at the Police Station, was given her s 215 rights and requested her mother, Mrs Noleni Jessop, as her nominated person.
• About 9.00 pm: Mrs Jessop arrived. Detective Foster advised her why the appellant was there, and explained the appellant’s rights under the Act. The detective said he explained to Mrs Jessop her obligations as a nominated person. Mrs Jessop’s evidence conflicted with the detective’s in this regard. The Judge said she had difficulty accepting Mrs Jessop’s evidence about other matters “and indeed as to other events that occurred at the Police Station”. She noted Mrs Jessop’s denial that she had received advice as to her nominated person role, but noted that Mrs Jessop had heard the appellant having her rights explained to her, and was therefore aware of them. P had also selected Mrs Jessop as her nominated person, and Mrs Jessop spoke to P and was told by P that the appellant had been involved with P in the aggravated robbery.
• 9.31 pm: The video interview with P commenced, with Mrs Jessop present as P’s nominated person. P implicated the appellant. The interview finished at 9.55 pm.
• 10.05 pm: Detective Foster obtained permission from the appellant and Mrs Jessop to conduct a video interview. Before the video commenced, the appellant had admitted to the detective her involvement in the robbery, and having hit the victim. She confirmed that she had made this admission prior to the commencement of the video interview both in her evidence at the s 344A hearing and in her evidence at the trial. The detective said that she was very remorseful and had been crying when this initial admission was made.
• 10.10 pm: The video interview of the appellant commenced. The appellant emphatically denied any involvement in the aggravated robbery, saying that P had left her at Mr Smith’s house and that P later returned and told her that she, P, had committed the robbery.
• 10.27 pm: The interview was stopped.
• After 10.30 pm: A female police officer, Detective Brown, spoke to the appellant and urged her to tell the truth. The appellant then spoke to her mother in private and was told by her mother that P has implicated the appellant in the offending. Mrs Jessop denied that this conversation took place when she gave evidence at the s 344A hearing and the trial, but the appellant and the detective both gave evidence to that effect.
• 10.55 pm: The appellant, in the presence of Mrs Jessop, told Detective Foster that she was involved in the robbery and wanted to go back on video to tell the truth. Both Detective Foster and the appellant gave evidence to that effect at the s 344A hearing.
• 10.58 pm: The second video interview commenced. The appellant said in Niuean to her mother “I am going to lie now”. She then made a
detailed statement admitting her involvement in the offending. The account involved considerable detail as to what happened at the victim’s flat when the robbery occurred.
• 11.10 pm: The second part of the video interview concluded. The appellant was then arrested.
[30] Mr Ellis’ challenge to the admissibility of the video statement raised two separate issues, namely:
(a) Whether the admissions made after the indication in Niuean of an intention to lie were properly characterised as a statement against interest;
(b) The role of Mrs Jessop as nominated person.
Statement against interest
[31] Mr Ellis argued that an admission of guilt after an indication of an intention to lie was not a confession, a false confession or a statement against interest and therefore should not have been admitted in evidence.
[32] We consider that is too simplistic an analysis of what occurred in this case. As the chronology shows, the sequence of events was that the appellant admitted her involvement before the first part of the video, denied her involvement during the first part of the video, admitted her involvement between the first and second parts of the video and admitted her involvement again (after the indication of intention to lie) in the second part of the video. We do not think that it can be said that her detailed account of her involvement in the offending does not amount to an admission of guilt on her part, confirming the truth of what she had told the detective in her mother’s presence prior to the second part of the video interview commencing.
[33] The whole video interview (both parts) is a mixed statement of the kind described in R v Sturgeon [2005] 1 NZLR 767: the whole of the interview is admissible on that basis.
[34] Obviously, the comment made in Niuean about an intention to lie, the appellant’s denial in her evidence at the trial of the veracity of the admission made on video, and her reasons for making what she said was an untrue confession, were all matters for the jury to assess. The jury had to do this in a context in which the appellant had admitted that she made confessions (not qualified by a comment that she was going to lie) both before the first part of the interview and before the second part of the interview. The appellant also faced cross-examination from the prosecutor as to her level of knowledge of the details of what occurred during the robbery. She said that she had heard some of the details from the police officer and her mother and had made up the rest. When asked to explain the close correspondence between the details she had made up and the details stated by other witnesses, she suggested that, in each case she had made “a good guess”.
[35] We are satisfied that there was no proper basis to rule the statement inadmissible on this ground.
The role of Mrs Jessop
[36] In her evidence at the trial, Mrs Jessop explained that she did not do anything after her daughter expressed in Niuean her intention to lie, and when asked why not she said she was “scared”. Mr Ellis accepted that this could have meant scared about the trouble her daughter appeared to be in, but said it could also mean that she was in fear of the police. He suggested that she could not provide the support to the appellant which it was her duty to provide under s 222(4) of the CYPF Act if she was in fear of the police. That comment does, however, need to be balanced against a comment she made earlier that she was “angry” with Detective Foster. She also referred to the fact that she had had an argument with Detective Foster, which is not indicative of being scared of him.
[37] Mr Ellis said that this lack of support by Mrs Jessop was exemplified by her failure to intervene after her daughter indicated to her in the Niuean language that she intended to lie.
[38] Section 222(4) of the CYPF Act provides that the nominated person has a duty to:
(a)Take reasonable steps to ensure the young person understands the matters explained to him or her under s 215; and
(b)Support the young person before and during any questioning, and, if the young person agrees to make a statement, during the making of the statement.
[39] This provision was considered by this Court in R v S(CA220/97) (1997) 15
CRNZ 214. The Court said at 220:
First, we do not think the Legislature envisaged a comprehensive judicial inquiry into the nature and quality of the support given in any particular case when enacting s 222(4). Second, obvious difficulties arise if such an inquiry is conducted. Cultural issues may surface – the age, knowledge, and understanding of the child or young person will vary – as may individual or family concepts of what is the appropriate course of action to adopt. Here Mrs S [the nominated person] advised her son in effect to face up to the position he was in and to tell the truth. Is the Court to gainsay such a decision of the parent when understandably the Act places emphasis on the family?
We accept on the other hand that there may well be instances where the requisite support has not been made available in a real sense, and that has led to a situation where the child or young person has been left in an unacceptable or unfair state of vulnerability…
[40] The appellant chose her mother as her nominated person. Her mother appears to have adopted a similar approach to that adopted by the nominated person in R v S(CA220/97) suggesting that the appellant tell the truth about her involvement. Adopting the approach of the Court in R v S(CA220/97), we do not go behind that assessment.
[41] Mr Ellis’ contention that Mrs Jessop failed to support the appellant at the time the appellant made her admissions on video needs to be considered in the
context of all the interactions between the appellant, the police and her mother during that period. The second part of the video in which the videotaped admissions were made, followed an earlier discussion between the appellant and Detective Foster in which the admissions had been made without any indication that they were lies. Mrs Jessop advised the appellant to tell the truth. The appellant conducted both parts of the interview with apparent confidence, and did not give the impression of being in a position of unfair vulnerability. There is no proper basis for us to determine otherwise. In those circumstances we do not gainsay Mrs Jessop’s approach to her role under the Act.
[42] Mr Ellis was also critical of the fact that Mrs Jessop acted as nominated person not only for the appellant but also for P. He said this placed her in an impossible position because she was representing two girls with conflicting stories. He said that P’s mother had attended the police station but was told she was not allowed to see P.
[43] Mr Ellis sought to adduce an affidavit from P’s mother to that effect. P’s mother did not give any evidence at any earlier stage in the appellant’s case and we are satisfied her evidence is fresh. For reasons we will come to we think this evidence is of doubtful relevance, but we decided to admit it to allow a full exploration of the appellant’s argument. In fairness we also admit those parts of the affidavits of Detective Foster and Detective Sergeant Holmes (the officer who interviewed P) which respond to P’s mother’s allegations. Both said they had not had any contact with P’s mother, and would have permitted her to see P if they had known she wished to do so. Detective Sergeant Holmes also said that, if P had indicated that she wanted her mother, rather than Mrs Jessop, to be her nominated person, that would have been arranged.
[44] Mr Ellis also sought to adduce an affidavit from Mrs Jessop in which she says she was “required by [Detective] Foster to sit in on P’s interview”, and that she had suggested to the detective that P’s parents should do this. This is not fresh evidence, as Mrs Jessop gave evidence at both the s 344A hearing and the trial and could obviously have given evidence to the same effect as the affidavit filed in this Court on those occasions. It is not, therefore, admissible in this Court. Nevertheless,
given the circumstances of this case we think that it is preferable to take into account what Mrs Jessop now says, and the points made in response by Detective Foster and Detective Sergeant Holmes so that when the appellant’s appeal has finally come to a full hearing, no stone has been left unturned. Detective Foster says in his affidavit that he did not require Mrs Jessop to sit in on P’s interview, and he did not recall her saying anything suggesting that she was unwilling to be the nominated person for P. Detective Sergeant Holmes also said that he did not believe that Mrs Jessop had given any indication in his presence that she did not think it was appropriate for her to act as P’s nominated person. There is also nothing in the transcript of P’s video interview which indicates anything of that nature on the part of Mrs Jessop.
[45] Mrs Jessop’s evidence at the s 344A hearing was that she had not spoken to the appellant or P between the interview with P and the interview with the appellant. If that were true, it is hard to see how her knowledge of what had gone wrong in P’s interview would have been of any significance at all. However, that evidence was rejected by Potter J who preferred the evidence of Detective Foster that Mrs Jessop spoke both to the appellant and to P between the first and second parts of the appellant’s video interview, both those discussions being in private at her request.
[46] Nothing has been placed before us to indicate that P did not wish Mrs Jessop to be her nominated person or that the appellant did not also select Mrs Jessop to be her nominated person. The selection was for them to make, and the fact that another person would have liked to be selected is irrelevant. Mrs Jessop accepted the role in relation to both P and the appellant: even on her evidence she did not decline the role or indicate to P that P’s selection of her was inappropriate. And there is nothing in the CYPF Act which requires a nominated person for one person to decline to act for another.
[47] It is clear that the approach taken by Mrs Jessop was to encourage the appellant to tell the truth to the police, and we can see no basis for criticism of her for that. Whether she took that approach because of her knowledge of the statement made by P is a matter of speculation, but whatever her motivation for taking that approach, it was one which she was entitled to take as a parent, and not one which the Court should gainsay.
[48] Mr Ellis also suggested that Mrs Jessop had pressured the appellant into admitting involvement in the robbery, and that this meant that the confession was not voluntary. Potter J rejected a similar argument in the High Court on the basis that nothing Mrs Jessop did was overbearing, and also on the basis that Mrs Jessop was not a “person in authority” in relation to her daughter. There was nothing in the submissions made in this Court which indicated the Judge’s first finding was wrong, and her second was undoubtedly correct: Naniseni v R [1971] NZLR 269 at 276-277.
Conclusion: video interview
[49] We are satisfied that the video interview was rightly admitted into evidence in its entirety.
(d) Re-committal to High Court
[50] Mr Ellis argued that the committal of the appellant from the Youth Court to the High Court for trial (after her case has been remitted to the Youth Court by this Court) was wrong in principle and in breach of both the New Zealand Bill of Rights
1990 and the CYPF Act. However, the Youth Court Judge recorded that there was no request made to him to exercise his discretion under s 275 of the CYPF Act to give the appellant the opportunity to forego her right to trial by jury and elect to have the case heard in the Youth Court. Nor was there any challenge to the committal decision by way of judicial review. That being the case, we can see no basis on which the committal decision can be relevant to the statutory grounds of appeal in s 385(1) of the Crimes Act. If there had been any basis to challenge the committal, the challenge should have been by way of judicial review: W v The Registrar of the Youth Court (Tokoroa) [1999] NZFLR 1000 at [31]-[32].
[51] In any event, it is hard to see on what basis it could realistically be suggested the Youth Court was the appropriate trial court. The sternest possible sentence available in the Youth Court would have been residence with supervision under s 283(n) of the CYPF Act, given that the appellant was aged less than 15 years of age at the time of the offending. That would have made the Youth Court jurisdiction
clearly inappropriate for offending of this gravity. Mr Ellis suggested that the appellant ought to have been tried in the Youth Court and then remanded to the District Court for sentencing, where a sentence of up to five years imprisonment would have been available. But, as Ms Laracy pointed out, an offender can be remanded to the District Court for sentencing under s 283(o) of the CYPF Act only if he or she was 15 years old at the time of the offending, and the appellant was only
14 years and nine months old at that date.
(e) Delay in trial process
[52] This point of appeal follows on from the previous point. The argument was that the re-committal to the High Court led to further delay in the trial and sentencing of the appellant, which could have been avoided if the trial had taken place in the Youth Court.
[53] A brief chronology illustrates the extent and nature of the delay:
• June 1998: Robbery takes place;
• July 1998: First (invalid) sentencing in High Court (seven weeks from date of offence);
• November 1998: Notice of appeal to this Court filed (notice was out of time, but an extension of time was granted);
• March 1999: Original appeal allowed by this Court by consent, and the case remitted to the Youth Court;
• April 1999: Youth Court hearing, plea of not guilty entered;
• June 1999: Depositions: prima facie case established, not guilty plea entered, trial by jury elected;
• August 1999: High Court callover;
• October 1999: Section 344A hearing; Section 347 hearing; High Court trial;
• November 1999: High Court sentencing.
[54] The delay from the date of the offence to the date of the trial in the High
Court was approximately 16 months.
[55] The focus of Mr Ellis’ argument was the decision in the Youth Court to commit the appellant to the High Court for trial. In essence, he said that this decision ought to have factored in the delay which would result. For the reasons we have given, we do not accept that there was any real alternative to the High Court committal, and in any event the Youth Court Judge was not asked to do anything other than commit the appellant to the High Court for trial. Nor was there any application to the High Court for a stay based on delay, as occurred, for example, in Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) and R v Lim CA173/04
8 October 2004.
[56] This was an exceptional case in that the initial process in the Youth Court was flawed, which led to the first appeal to this Court and the re-committal of the matter to the Youth Court. Once that re-committal occurred, there was no undue delay in the way the case was processed (the trial took place approximately seven months after the decision of this Court in the first appeal). There has been no suggestion made to us that the delay prejudiced the appellant in the conduct of her defence. We doubt therefore whether a stay would have been granted if it had been sought. But, as indicated earlier, there was no application for a stay in any event.
(f) Delay in appeal process
[57] Mr Ellis submitted that the delay in bringing this appeal to a hearing also constituted a breach of s 25(b) of the Bill of Rights, and had led to a miscarriage of justice. Mr Ellis accepted that two years of the three year delay since the Privy Council decision was due to his own unavailability, but said the Privy Council
appeal itself took two years and the remainder of the delay after the Privy Council appeal was “systemic delay”.
[58] A similar submission alleging a breach of s 25(b) was made to this Court in R v Taito [2005] 2 NZLR 815. In that case, which also concerned a successful appellant to the Privy Council in R v Taito [2003] 3 NZLR 577, the Court said at [74]-[75]:
[74] The appellant submits that undue delay in the hearing of his appeal constitutes a breach of s 25(b) of the New Zealand Bill of Rights Act and that this undue delay warrants the allowing of his conviction appeal.
[75] When this case was before the Privy Council, it rejected the submission that the delay was now so extreme that the only proper remedy was the quashing of the appellant’s conviction. It noted at p 601, para [22] that:
“This argument must be rejected and Their Lordships are satisfied that the Court of Appeal should not be troubled with it on a rehearing….”
Given that this was said by the Privy Council in the context of the very appeal which we are now rehearing and recognising, as we do, that the passage which we have cited was part of a longer passage which was referred to with approval by the Privy Council in Mills v Her Majesty’s Advocate [2004] 1 AC 441 at paras [19] and [49], we consider that arguments about delay, standing alone, are not available to the appellant.
[59] In Taito, this Court was concerned that there had been some prejudice caused by the appellate delay, but ultimately concluded that there was no real likelihood of a miscarriage of justice having arisen as a result of that delay.
[60] In the present case, Mr Ellis said that the prejudice to the appellant was the unavailability of the victim at the trial, but that was a feature of the trial which predated both the initial appeal in this matter and the present re-hearing. It cannot therefore be prejudice arising from appellate delay. Mr Ellis did not suggest there was any other prejudice caused by appellate delay.
[61] We are satisfied that in the present case there has been no prejudice to the appellant in the conduct of the appeal caused by delay, and that no miscarriage of justice has therefore arisen.
(g) Bias
[62] Mr Ellis said that there was a miscarriage of justice because Potter J, having conducted the original sentencing, was the Judge who heard the s 344A application, presided at the High Court trial and subsequently sentenced Ms Jessop again after the High Court trial. He said that Potter J, having conducted the original sentencing, should have immediately recused herself from involvement in the s 344A hearing and the trial.
[63] In support of that contention, Mr Ellis said that the role of Potter J was analogous with a Judge taking part in an appeal against his or her own decision.
[64] In our view, that analogy is completely inapt. The only basis on which Potter J would have been required to recuse herself would be if her involvement in the original sentencing had led to “apparent bias”.
[65] The test to be applied in New Zealand in determining whether a Judge is biased is that enunciated by Lord Goff of Chieveley in R v Gough [1993] AC 646 at
670:
Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.
[66] That test was adopted by this Court in Auckland Casino Limited v Casino Control Authority [1995] 1 NZLR 142 at 149 and applied in Man-O-War Station Limited v Auckland City Council [2001] 1 NZLR 552 at [12]-[13]. It was also applied in the decision of this Court in Erris Promotions Limited v Commissioner of Inland Revenue CA68/03 24 July 2003.
[67] In Erris, this Court noted that the test taken from Gough differed from that now applied in England (“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”: Porter v Magill [2002] 2 AC 357 (HL) at [103] per Lord Hope of
Craighead). It also differs from the test postulated by the High Court of Australia in R v Webb (1994) 181 CLR 41. In its judgment in Erris at [32], this Court suggested that a new test might be:
Would the reasonable informed observer think that the impartiality of the adjudicator might be/might have been affected?
[68] The Court stopped short of overruling the test adopted in the Auckland Casino Limited case, and that is the test we will apply in this case. However, as will become apparent, it seems to us that whatever test is applied there can be no doubt that there was no bias on the part of Potter J in the present case.
[69] The initial sentencing of the appellant by Potter J followed a defective process in the Youth Court which led to a committal of the appellant to the High Court for sentencing on the basis that she had pleaded guilty. There was nothing to alert Potter J to the defects in the Youth Court process, and she would have approached the sentencing of the appellant as a routine exercise of the sentencing power, proceeding from what she would have believed was the appellant’s acceptance of guilt in the Youth Court.
[70] Once it was clear that the Youth Court process was defective and the appeal was allowed, the process effectively started again. After the appellant’s re- committal to the High Court for trial, the criminal justice process went into operation to ensure that the appellant’s guilt or innocence was determined by a jury in the High Court.
[71] The roles which Potter J played in that process were the determination of the s 344A application in relation to the video interview, and presiding at the High Court trial. There was nothing that had occurred at the earlier sentencing which indicated any predetermination of the evidential issues relating to the confession, or which indicated any animosity on the part of Potter J towards the appellant. In short, there was no real danger that Potter J might regard the appellant with disfavour. No doubt this was why the appellant’s counsel at the time did not see any difficulty in Potter J determining the s 344A application.
[72] The same can be said about the High Court trial, where Potter J’s role was as presiding Judge, rather than as trier of fact. And, when it came to the sentencing of the appellant after the trial, the appellant’s counsel specifically asked that Potter J be the sentencing Judge.
[73] Whichever test is applied, we think that the allegation of bias against Potter J in this case is simply unfounded, and we reject this ground of appeal. We endorse the comments of this Court in R v Cullen CA36/92 26 June 1992 at 4 that it is inevitable that defendants will appear more than once before the same Judge, and the fact that something discreditable to the defendant happens on one occasion does not make it inappropriate for the same Judge to deal with another matter in the future: Judges are well able to put such things out of their minds, just as juries are expected to do from time to time with proper direction.
[74] During oral argument, Mr Ellis also suggested that there was an issue of bias arising from the fact that Potter J was a member of another division of this Court at the time that the present appeal was being heard by the present division. How that could give rise to a real danger that the appellant would be regarded with disfavour by this Court (to use the Gough test) or how it would lead a reasonably informed observer to think that this Court’s impartiality might have been affected is unclear to us. The allegation appears to involve an assumption on the part of counsel that the members of the present panel would discuss the present case with Potter J, that discussion would involve an attempt by Potter J to influence their judgment, and that the present panel would allow their judgment to be influenced in that way. We do not believe that any fair minded observer would have any apprehension that that could occur.
(h) Failure to confront victim
[75] The victim of the offending was 87 years old at the time of the robbery, and was unable to participate either in the preliminary hearing or the High Court trial due to health problems.
[76] The inability of the victim to attend the preliminary hearing became apparent only just before it was due to take place. The appellant’s then counsel, when told of the problem, agreed to the depositions being taken by way of “hand-up” signed briefs, provided that he received a medical certificate confirming the victim’s inability to give evidence in person. The facsimile on which this concession was stated ended with the following qualification:
My consent to hand-up depositions would not be done on the basis that the defendant accepts the truth of the content of the signed depositions and I will require to cross-examine all witnesses at trial.
[77] As it turned out the victim was unable to give evidence at the trial either, and the Crown notified the defence of this.
[78] As indicated earlier, the victim’s initial statement appeared to indicate that there was one assailant when the robbery occurred, but his later statements confirmed that there were two. Obviously the first statement supported the appellant’s case that P had committed the robbery alone. When it became apparent that the victim would not give evidence at the trial, the appellant’s counsel suggested to the prosecutor that the victim be interviewed by an independent counsel to determine whether he thought there were one or two assailants. This suggestion was rejected by the prosecutor.
[79] The appellant then made an application for discharge under s 347, which was heard by Robertson J on the day before her High Court trial. The principal ground on which that application was based was that there was a potential for injustice to be done to the appellant because of the victim’s absence from the trial. The prosecutor offered to put before the jury the various statements made by the victim, but this offer was rejected by the appellant’s counsel, on the basis that only some of those statements (presumably those favourable for the appellant) should be before the jury. Robertson J ruled that either all of the statements would be admitted, or none of them. He declined the s 347 application, and the trial proceeded.
[80] In this Court, Mr Ellis suggested that there was a miscarriage of justice because the appellant was denied the opportunity to confront her accuser. He said whether this was a breach of the right to present a defence (s 25(e) of the Bill of
Rights), a breach of the right to confront witnesses (s 25(f)) or a breach of the right to a fair trial (s 25(a)) did not matter: rather, “all of this is an aspect of equality of arms, and interwoven with the confession, and its treatment”.
[81] The difficulty with this submission is that the appellant was given the opportunity to have the victim’s conflicting statements placed before the jury, and that was rejected for tactical reasons. There was no suggestion made in this Court that this was an error on the part of her counsel.
[82] In R v Taueki [2005] 3 NZLR 372 at [124], this Court rejected an argument that the Crown had an obligation to call a complainant to give evidence, pointing out that that was obviously impossible in cases of murder or manslaughter. In our view the failure of a complainant to give evidence does not interfere with the right guaranteed by s 25(e) of the Bill of Rights to be present at the trial and present a defence, nor does it inevitably violate the right to examine prosecution witnesses under s 25(f). In R v L [1994] 2 NZLR 54, this Court found that the admission of a deposition statement of a rape complainant who had died before trial did not contravene s 25(f). In the present case, there was no evidence tendered by the Crown from the victim, and thus the victim was not a witness for the prosecution in the ordinary sense. In our view s 25(f) is not engaged by that situation.
[83] Mr Ellis also suggested that there was a breach of a commitment made at the time of depositions that the victim would be available for cross-examination, given the qualification to the consent to hand-up depositions on the appellant’s part.
[84] We do not think that there was any breach of any agreement on the part of the Crown in relation to the qualified acceptance of hand-up depositions by defence counsel. The fact that defence counsel qualified that acceptance by indicating an intention to cross-examine at trial did not make the agreement to hand-up depositions conditional. Rather, it was an indication of intention designed to ensure there was no misunderstanding that the defence was agreeing to the admission of the deposition statements at the trial or that the defence accepted that the statements were correct.
[85] We are satisfied that the inability of the victim to give evidence has not given rise to a miscarriage of justice in this case. In our view, the Crown’s offer to place before the jury the conflicting statements of the victim was an appropriate way of dealing with the difficulty caused by the victim’s incapacity to give evidence. We consider that the rejection of the Crown’s offer by the defence was for valid tactical reasons.
(i) Summing up
[86] Mr Ellis said there were a number of aspects of the summing up which were unsatisfactory. In particular, he argued that:
(a)The Judge ought to have more robustly directed the jury that they must be satisfied that two of the girls attacked the victim, not one;
(b)The Judge gave an inadequate lies direction, and in particular should have adverted to the fact that the appellant had said before the video- taped confession that she was going to lie;
(c)The summary of the Crown and defence cases was too brief, particularly given the absence of the victim at the trial.
[87] We do not believe there is anything in these criticisms. The Judge gave conventional and correct directions on the onus and standard of proof, and the jury must have been in no doubt as to the necessity for the Crown to prove beyond reasonable doubt that there were two attackers, and that one of them was the appellant.
[88] The relatively brief summaries of the Crown and defence cases reflected the small number of issues in what was a fairly simple trial. The Judge made it clear that the Crown relied substantially on the confession and the consistency in the accounts of the appellant and P. In relation to the defence case, the issue as to the reliability of the confession was clearly put. The jury asked a question as to whether the victim’s son, who gave evidence at the trial, had said that the victim had said that
two people came into the victim’s flat. The Judge answered this “no” pointing out that the son could not give hearsay evidence. We can see nothing inappropriate in that answer.
[89] Nor do we accept that the lies direction was inadequate. The Judge recorded that the Crown said that the appellant lied when she gave the first video interview and the defence said that the appellant lied when she gave the second video interview. The Judge then gave a conventional lies direction. We do not think that anything more was required.
[90] Mr Ellis also suggested that a warning of the kind described in the decision of the High Court of Australia in McKinney v R (1991) 171 CLR 468 ought to have been given. He relied also on the decision of the High Court of Australia in Nicholls v R; Coates v R (2005) 213 ALR 1 in support of that proposition. In fact, the latter case does not support Mr Ellis’ submission as the majority found that a McKinney direction was not required on the facts of that case.
[91] McKinney itself is authority for a proposition that whenever police evidence of a confession or statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated, a Judge should warn the jury of the danger of convicting on the basis of that evidence alone. On the facts of this case such a direction would not have been required even if the Australian practice were adopted in New Zealand, because the confessional statement on which the police relied was on video, and the two confessional statements which were made before the first part of the video or before the second part of the video respectively were confirmed on the video or in evidence by the appellant, and thus were not in dispute.
[92] Overall, we are satisfied that the summing up was appropriate and fair and this ground of appeal therefore fails.
Result: conviction appeal
[93] The appeal against conviction is dismissed.
Appeal against sentence
[94] Potter J sentenced P and the appellant at the same time. In her sentencing notes, Potter J described the offending and recounted the background to the matter, including the previous sentencing. She noted that the appellant had Youth Court notations in 1997 including assault with intent to rob and aggravated robbery. She also noted that the appellant was six months pregnant. She referred to the probation report which recognised that the appellant was a person of some intelligence and ability who could achieve well academically if minded to do so. However, it also noted that the appellant had problems with anger control and had admitted to smoking cannabis daily.
[95] Potter J referred to the leading authority on sentencing for aggravated robbery at the relevant time, R v Moananui [1983] NZLR 537 and also referred to R v Mahoni (1998) 15 CRNZ 428 and R v Robinson CA404/97 17 March 1998. In Robinson, a sentence of five years imprisonment had been imposed on a 15 year old youth for aggravated robbery and aggravated burglary. However Potter J acknowledged that the circumstances of the offending in that case were more serious than in the case of the appellant and P. A starting point of eight years had been adopted by the sentencing Judge in Robinson, and this was approved by this Court.
[96] The Judge noted that she had imposed a sentence of four years imprisonment on the appellant and P at the first sentencing. She said that this had taken into account their youth which she regarded as a mitigating factor. She noted that the Court should pay due regard to the sentencing principles applying to children and young persons, and, in particular, the importance of keeping them in the community insofar as that is appropriate given the nature of their offending and the necessity for their rehabilitation.
[97] Potter J discussed the impact on the victim, particularly the deterioration in his health following the assault and the fact that he was extremely nervous and frightened in his own home as a result of it. She noted that the victim was known to P, and that there was an undeniable inference that he had been targeted because of his very frailty.
[98] Taking account of P’s guilty plea, and the effect on her of the uncertainties caused by the flawed Youth Court committal which led to her being sentenced before a proper plea of guilty had been given, she sentenced P to three years six months imprisonment. In the case of the appellant, she noted that the initial sentence of four years imprisonment had proceeded on the basis of a guilty plea. The allowance made for that plea was no longer available given that the appellant had gone to trial. She said that she would ordinarily have imposed a sentence of five years, but because of the flawed Youth Court procedure she made an allowance of four months and imposed a sentence of four years eight months imprisonment.
[99] Mr Ellis’ submissions in relation to the sentence appeal were brief. They were:
A sentence of four years eight months on a youth of 15, who should have been sentenced as a 14 year old, and the circumstances of delay, and pregnancy which should have been but were not taken into account, are further aggravating features as to respect for this appellant’s rights, and failure to consider the rights so the child if paramount [sic].
It is submitted that in the circumstances the sentence was not just manifestly excessive being three months less than the maximum for any indictable offence (for a 15 year old), but was so excessive as to constitute cruel and unusual punishment contrary to the Bill of Rights Act 1688 (Imp) and/or cruel or disproportionately severe punishment and/or inhumane treatment contrary to the NZBORA ss 9 and/or 23(5).
[100] On behalf of the Crown, Ms Laracy accepted that the sentence was stern for a young offender. However, she argued that there were very significant aggravating circumstances including:
(a) Intrusion into a private home; (b) Premeditation;
(c) The age and vulnerability of the victim;
(d)The infliction of serious violence on the victim, including using his walking stick as a weapon;
(e) The effect of the offending on the victim, his family and the local elderly neighbours;
(f) The fact that two offenders had acted in concert.
[101] Ms Laracy accepted that the youth of the appellant was a significant factor, but pointed to her previous Youth Court notations indicating a pre-disposition towards violent offending. She noted that this Court had said in Mahoni (to which the Judge had referred) at 436 that the principle that youth may lead to a reduction in an otherwise appropriate sentence was not absolute and there were situations where that principle must yield to public interest. In Mahoni, the Court noted that an allowance would be made more readily in a case having features encouraging leniency such as where the offence could be described as a youthful indiscretion or an impulsive action, or was a first offence by someone with good prospects. She said that the starting point was in line with Moananui and consistent with the considerably higher starting point in Robinson where the offending was of a more serious nature, but the offender was only 15.
[102] In Moananui, this Court referred to three categories of aggravated robberies, though it emphasised that the categories were flexible and overlapped to some extent. The offending in this case came within the third category (aggravated robberies involving intrusion into dwellinghouses, usually at night: Moananui at
542). The Court said that the upper and lower limits of the range of sentences for this offending tended to be lower than the first category, where a range of sentences of six to eight years imprisonment was noted. The starting point of five years in this case is in line with Moananui.
[103] This Court reviewed the guidelines for sentences for aggravated robbery in R v Mako [2000] 2 NZLR 170. There is nothing in that decision which would indicate that a lower starting point would have been appropriate if the guidelines in that decision had been applicable.
[104] It seems to us that the crucial issue in relation to the sentencing is the weight which should have been given to the appellant’s youth at the time of sentencing. In Mahoni, the Court made the following observations (at 436-437):
The principle that for a variety of reasons, youth may lead to a reduction in an otherwise appropriate sentence is well established….It should be noted that the principle is not founded solely on consideration for young persons; there is benefit to the community in ensuring that the chance of rehabilitation is not shut out, and in reducing the prospect of a youthful offender emerging from prison a more hardened criminal than he went in. However, the principle is not absolute and there are situations where it must yield to the public interest, see for example R v Wilson [1989] 2 NZLR 308; (1989) 5
CRNZ 165 (CA) where this Court upheld a sentence of 11 years on a 17- year-old youth who together with another abducted a woman from a public
toilet and committed acts of sexual violation. In that case given the grave
nature of the offending the public interest was seen as paramount. There are decisions to similar effect overseas, eg. R v Serra (1997) 92 A Crim R 511
(Court of Criminal Appeal, Northern Territory) and R v Gonidis, McCullugh
and Stevenson (1980) 57 CCC (2d) 90 (Ontario Court of Appeal). Further, an allowance would be made more readily in a case having features encouraging leniency, for example where the event could fairly be described as a youthful indiscretion, something plainly resulting from immaturity; or an impulsive action immediately regretted; or a first offence by someone with good prospects.
[105] Similar observations have since been made by this Court in Mako at [65]- [66].
[106] While another Judge may have been prepared to give greater weight to this rehabilitative factor, we do not think that it can be said that the Judge was wrong to give it comparatively little weight in this case. In that regard, we note that this was not the first offence of aggravated robbery committed by the appellant, which may have led the Judge to conclude that a stern sentence was warranted given the absence of the factors referred to in both Mahoni and (now) Mako calling for a lower sentence aimed at rehabilitation.
[107] In all the circumstances, we are satisfied that the sentence, although clearly at the upper end of the available range of sentences, could not be characterised as manifestly excessive in the circumstances, and we therefore dismiss the sentence appeal.
Complaint about composition of division
[108] Section 58(1) of the Judicature Act 1908 (the Act) provides for this Court to sit in divisions comprising three Judges, unless a matter is to be heard by a full court under s 58D. This appeal was set down for hearing before a division. Mr Ellis took exception to the composition of that division.
[109] Section 58A sets out the requirements for the composition of a division of the Court dealing with a criminal proceeding (as the present appeal is). That section relevantly provides:
58A Composition of Criminal Appeals Division or Divisions
(1) For the purposes of any criminal proceeding that is heard by a division, the Court of Appeal comprises—
(a) 3 Judges of the Court of Appeal holding office under section
57(2); or
(b) 2 Judges of the Court of Appeal holding office under section
57(2) and 1 Judge of the High Court nominated by the Chief
Justice under subsection (2); or
(c) 1 Judge of the Court of Appeal holding office under section
57(2) and 2 Judges of the High Court nominated by the
Chief Justice under subsection (2).
(2) Except where the work of the High Court renders it impracticable for the Chief Justice to do so, the Chief Justice must from time to time, after consulting the President of the Court of Appeal and the Chief High Court Judge, nominate the Judges of the High Court who may comprise members of the Court of Appeal for the purposes of any proceeding or proceedings to which subsection (1) relates.
(3)Every nomination under subsection (2) must be made either— (a) In respect of a specified case or specified cases; or
(b)In respect of every case to be heard by the Court of Appeal during a specified period not exceeding 3 months.
[110] In the present case, the Court comprises two Judges of the Court holding office under s 57(2) (Glazebrook and O’Regan JJ) and one Judge of the High Court nominated by the Chief Justice under s 58A(2) (Panckhurst J). Thus it is a division of the kind described in s 58A(1)(b).
[111] The assignment of Judges to divisions is undertaken by the President or Acting President under a procedure adopted by the Judges of this Court in accordance with s 58C(1) of the Act. This procedure was published in the Gazette as required by s 58C(2): New Zealand Gazette No 52, 13 May 2004, 1287. That procedure includes the following statement:
The assignment of High Court Judges to divisions of the Court will be:
(a)consistent with their eligibility through nomination by the Chief Justice in terms of sections 58A and 58B of the Judicature Act 1908; and
(b) with the concurrence of the Chief Justice and the Chief High Court
Judge pursuant to subsection (3) of section 58C of the Judicature Act
1908.
[112] That procedure was followed in the assignment of Judges to the division hearing this appeal.
[113] Prior to the hearing, Mr Ellis wrote to the Registrar asking for a copy of “the warrant appointing Justice Panckhurst”, apparently a reference to the document recording the nomination of Panckhurst J by the Chief Justice under s 58A(2). This request was declined. In fact s 58A(2) does not provide for warrants to be issued for a High Court Judge who is nominated as a Judge of the High Court who may be a member of the Court of Appeal for a criminal proceeding under s 58A(2). Rather, the Act provides for a process of nomination by the Chief Justice without any requirements as to formality of documentation. Of course, the nomination is recorded in writing, but it is a record of an act of routine judicial administration, not a “warrant”. Assignments of Judges to cases are also recorded in writing by the President, but no particular form of documentation is required.
[114] This reflects the nature of the nomination and assignment processes, both of which are wholly within the domain of the judiciary and neither of which requires any involvement of the Executive. In contrast, warrants are issued upon the appointment of judicial officers by the Governor-General under ss 4(2), 4A(1),
11(1), 11A(1), 26C(1), 26H(1) and 57(2) of the Judicature Act and ss 17(1)(b) and
23(1) of the Supreme Court Act 2003, although only ss 4A(1) and 26C(1) actually refer to a “warrant”.
[115] In some situations, greater formality than is contemplated by s 58A(2) and the assignment procedure adopted under s 58C(1) may be required. Where a High Court Judge is to be a member of a full court of this Court, a certificate in writing must be signed by the President: s 58F(1). Similar formality is required for acting Supreme Court judges to sit in that Court: s 23(6) of the Supreme Court Act. Both can be contrasted with the lack of statutory prescription as to the form of documentation in the present situation, as described in [113] above.
[116] Once a High Court Judge has been nominated, and he or she has been assigned to a division, his or her authority to act as a Judge of the Court of Appeal is governed by s 58G. That section provides:
58G Authority of High Court Judges
(1) The fact that a Judge of the High Court acts as a Judge of the Court of Appeal is conclusive evidence of the Judge’s authority to do so, and no judgment or determination given or made by the Court of Appeal while the Judge so acts may be questioned on the ground that the occasion for the Judge so acting had not arisen or had ceased to exist.
(2) A Judge of the High Court who has acted as a Judge of the Court of Appeal may attend sittings of the Court of Appeal for the purpose of giving any judgment or passing sentence in or otherwise completing any proceeding in relation to any case that has been heard by the Judge while he or she so acted.
[117] At the hearing of this appeal, Mr Ellis renewed his request to see the “warrant” of Panckhurst J. The request was declined. Mr Ellis asked that Panckhurst J stand aside on the basis that he was not entitled to participate in the division hearing the appeal, which Panckhurst J declined to do. Mr Ellis then asked Glazebrook J to recuse herself because his request to the Registrar for a copy of the “warrant” of Panckhurst J had been referred to her as acting President for consideration, and she had authorised the Registrar to decline it. Glazebrook J declined to recuse herself on the basis that her involvement in the issue relating to the “warrant” had no bearing on the merits of the appellant’s appeal. Both Glazebrook J and the Court were satisfied that there was no real danger of bias on her part in the sense that she might unfairly regard with disfavour the appellant’s case.
[118] The Court directed Mr Ellis’ attention to s 58G(1), noting its reference to conclusive evidence of Panckhurst J’s authority to participate in the division hearing the appeal. Mr Ellis said he protested the jurisdiction of the Court because he did not accept the assurance of the Court that Panckhurst J had been nominated under s 58A(2) and did not accept the conclusiveness of s 58G(1). He said the impartiality of the Court was in issue. We did not see how that could be so, given that Panckhurst J’s nomination and assignment involved no input or influence by the Executive. And we were unable to see how the reference to “conclusive evidence” in s 58G(1) could be interpreted other than as meaning what it says.
[119] Attention then turned to the merits of the appeal and Mr Ellis was asked to address the Court. He said that he declined to make oral submissions in support of the appellant’s appeal. He said that the appellant would rely on the written submissions already filed.
[120] We then heard from Crown counsel, Ms Laracy, who expanded on her written submissions in her oral presentation. At the conclusion of that presentation, Glazebrook J invited Mr Ellis to make oral submissions in reply. He reiterated his view that the composition of the division was unlawful because of Panckhurst J’s participation in it. He requested that the division refer the proceeding for the consideration of a full court under s 58(6) of the Act. He submitted that it was desirable that the division refer the appeal to a full court so that two significant issues could be considered by a full court. These were:
(a)The requirements for identification parades involving children or young persons; and
(b) Whether the Court was lawfully constituted.
[121] We adjourned to consider whether we should refer the appeal to a full court. At the completion of the adjournment we announced that we had decided not to make such a reference. Mr Ellis asked that we provide reasons in writing and we agreed to do so. Those reasons are:
(a) The issues relating to requirements for identification parades for young persons are issues which can be appropriately dealt with by a division. There is no prior authority of the Court of Appeal which would need to be reviewed for the purposes of consideration of that issue, and issues of that kind are appropriately dealt with by a division;
(b)The question of the composition of the present division would be irrelevant if the appeal were referred to a full court. Unless s 58F applies, a full court is constituted only by Judges of this Court holding office under s 57(2): s 58D(2). Thus, Mr Ellis’ concern about the participation of the High Court Judge in the division would not arise when the matter came to be considered by a full court.
[122] After we announced that we did not intend to refer the matter to a full court, Mr Ellis accepted Glazebrook J’s invitation to make oral submissions in reply and indicated that he would also make submissions that were not strictly in reply to the oral submissions made on behalf of the Crown. We agreed to this course and he made an extensive oral presentation amplifying on his written submissions and dealing with matters raised in the Crown submissions. As this presentation dealt with some matters on which Crown counsel had not had the opportunity to address us, we provided Ms Laracy with an opportunity to respond to new matters raised in Mr Ellis’ submissions, and then provided a reply to Mr Ellis. The final outcome was that we heard extensive oral submissions from both sides, and the appellant therefore had the oral hearing for which she had contended in her Privy Council appeal.
Result
[123] For the reasons we have given we dismiss the appeal against conviction and sentence.
Solicitors:
Crown Law Office, Wellington
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