R v Saxton - [2009] NZCA 61

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA144/2008
[2009] NZCA 61
THE QUEEN
v
MORGAN DAVID SAXTON
Hearing:19 February 2009

Court:Glazebrook, Robertson and Arnold JJ
Counsel:Dr G J X McCoy and C B Morrall for Appellant

F E Guy Kidd for Crown

Judgment:9 March 2009 at 10.30 am

JUDGMENT OF THE COURT

We grant leave to the appellant’s personal representative to continue the appeal.
REASONS OF THE COURT
(Given by Arnold J)

[1]       Following a judge alone trial before Judge MacAskill, the appellant, Morgan Saxton, was convicted jointly with his father, David Saxton, on one representative count of theft of pounamu, the property of Te Runanga o Ngai Tahu. The appellant was sentenced to a term of imprisonment of two years six months and his father to a term of two years nine months imprisonment. In addition, they were ordered to pay reparation of $300,000, on the basis that liability was joint and several.
[2]       Both the appellant and his father filed appeals against conviction and sentence. Having begun to serve their sentences, both applied for, and were granted, bail until the outcome of their appeals was known. While on bail and awaiting a fixture for the hearing of the appeal, the appellant died in a helicopter accident. As the appellant died intestate, letters of administration on intestacy were granted to his mother. As his personal representative, Mrs Saxton wishes to continue the appeal. The question before us is whether she may do so.
[3]       In support of the application, Dr McCoy took what could fairly be described as the high ground. His position developed somewhat in the course of the hearing, but the essence of his argument was that by virtue of s 383(1) of the Crimes Act 1961 and s 25(h) of the New Zealand Bill of Rights Act 1990 (NZBORA) the appellant’s personal representative was entitled to continue the appeal. Relevantly:
(a)Section 383(1) provides that a person convicted on indictment may appeal to the Court of Appeal against conviction and/or sentence.
(b)Section 25(h) provides that a person convicted of an offence has “the right to appeal … according to law to a higher court” against conviction and/or sentence.

[4] Although initially Dr McCoy submitted that the appellant him or herself had to lodge the appeal, on reflection he modified his position, submitting that the combination of s 383 of the Crimes Act and 25(h) of NZBORA meant that a personal representative could initiate and prosecute an appeal on behalf of a person who had died subsequent to conviction, whether or not that person had manifested an intention to appeal. He submitted that this was a matter of right, rather than being at the discretion of the Court.
[5] For the Crown Ms Guy Kidd noted that neither the Crimes Act nor the Court of Appeal (Criminal) Rules 2001 (the Rules) provide for what should happen to an appeal where the appellant dies prior to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Saxton

Details

AGLC: R v Saxton [2009] NZCA 61
Case: [2009] NZCA 61
Decision Date: 9 March 2009

CaseChat Overview and Summary

The appeal in R v Saxton involves the personal representative of Morgan Saxton, who died during the appeal process, seeking to continue the appeal against his conviction and sentence. Morgan Saxton and his father were convicted of theft of pounamu, property belonging to Te Runanga o Ngai Tahu, and were sentenced to imprisonment and ordered to pay reparation. While the appeals were pending, Morgan Saxton died in a helicopter accident. His personal representative, his mother, sought to continue the appeal. The legal issue before the Court was whether the personal representative of a deceased appellant could continue an appeal against conviction and sentence, and if so, under what circumstances.

The Court considered the statutory provisions and relevant rules of court. Dr McCoy argued that the combination of s 383(1) of the Crimes Act 1961 and s 25(h) of the New Zealand Bill of Rights Act 1990 meant that the personal representative had a right to continue the appeal. Ms Guy Kidd, for the Crown, submitted that the Court had jurisdiction to allow an appeal to proceed after the death of the appellant, but this jurisdiction should be exercised sparingly and in exceptional circumstances. The Court noted that while there was jurisdiction to proceed with an appeal after the death of the appellant, the matter should be approached cautiously. The Court found that the financial interest of the deceased's estate in the outcome of the appeal, and the fact that the father's appeal would continue, constituted exceptional circumstances warranting the exercise of the Court's jurisdiction.

The Court granted leave to the appellant’s personal representative to continue the appeal, acknowledging the financial interest of the estate in the reparation order and the overlap of issues with the father's ongoing appeal. The Court emphasised that this decision was based on the specific circumstances of the case and did not address the broader question of the right of a personal representative to continue an appeal in all circumstances. The Court's decision was based on the exercise of its discretion under r 45 of the Court of Appeal (Criminal) Rules 2001, which allows the Court to take any action it deems appropriate to achieve the purposes of the Crimes Act or other relevant legislation.

Orders