R v Whitelaw

[2008] NZCA 307

IN THE COURT OF APPEAL OF NEW ZEALAND

CA263/06
[2008] NZCA 307

THE QUEEN

v

BARRY RAYMOND WHITELAW

Hearing:29 July 2008

Court:William Young  P, Robertson and Arnold JJ

Counsel:Appellant in Person

R M Lithgow QC as Amicus Curiae
B J Horsley and C J Curran for Crown

Judgment:14 August 2008 at 3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]       On 6 March 2006, the appellant was tried summarily before Judge MacDonald on a charge of driving while disqualified.  He was self-represented.  The Judge found the appellant guilty; he was fined $400, ordered to pay costs of $130 and disqualified from driving for six months.  A subsequent appeal to the High Court was dismissed by Allan J (Whitelaw v Police HC HAM CRI 2006-419-34 20 June 2006).

[2]       On 18 September 2006, this Court granted leave to appeal on these questions of law:

Was the appellant’s right to consult and instruct a lawyer, without cost if so entitled, (as guaranteed by s 24(c) and (f) of the New Zealand Bill of Rights Act 1990), or his right to a fair trial (as guaranteed by s 25(a) NZBORA), breached in the circumstances of this case and, if so, should his conviction be quashed?

We note that Mr Whitelaw contended before us that his appeal should be allowed because of the delays which have occurred since the case was first heard.  We see no merit in that suggestion.  The delays that have occurred since the appeal was dismissed in the High Court are appreciable but not out of the ordinary.  The time which has elapsed since leave was granted relates in a large part to efforts to establish the facts associated with the appellant’s lack of representation at trial.  These efforts have not been particularly fruitful.

[3]       We will discuss the case by reference to the first two questions identified in the leave judgment, but before we do, we must first discuss the factual background. 

Factual background

[4]       On 15 July 2004, the appellant was found guilty of a drink driving offence and disqualified from driving for nine months.   In the ordinary course of events, this disqualification would have expired at midnight on 14 April 2005.  On 5 August 2004, the disqualification was suspended pending the determination of his appeal against conviction and sentence.  This suspension lapsed when his appeal was dismissed on 6 October 2004.  By reason of s 107(6) of the Land Transport Act 1998, the disqualification was extended by the period of suspension – two months and one day – and thus terminated at midnight on 15 June 2005.

[5]       On 29 or, more probably, 30 March 2005, the appellant was stopped by police officers while he was driving his wife’s vehicle.  The vehicle was impounded. 

[6]       The appellant and his wife met with Senior Sergeant Davy on 31 March 2005 to discuss the impounding of the car and the fact that the appellant had been driving.  In the course of this discussion, the appellant explained that he had only learnt that morning (ie on 31 March 2005) that his appeal had been dismissed.  He claimed that when he had been driving on 29 or 30 March 2005, he had understood that the suspension of the disqualification was still in place.  Senior Sergeant Davy gave the appellant the benefit of the doubt as to his awareness of the disqualification and he was not charged.  His wife’s car was returned.

[7]       There was a conflict of evidence in the District Court as to what else was said in the course of this meeting. 

[8]       Senior Sergeant Davy said that he checked the appellant’s history and had informed him that he was disqualified from driving until midnight on 14 April 2005.  His evidence was that he made it clear to the appellant that he was not to drive until then.  As is apparent from what we have already said, the Senior Sergeant’s advice to the appellant was wrong as the disqualification in fact did not end until 15 June 2005.

[9]       The appellant and his wife both gave evidence in the District Court to the effect that Senior Sergeant Davy told the appellant that he could not drive after 14 April 2005 on which day an unrelated disqualification was apparently about to begin.  They claimed that the Senior Sergeant had told them that the appellant was not to drive until his current disqualification ended but did not give them the date that this would happen.

[10]     The appellant’s case in the District Court, supported by the evidence of his wife, was that he understood that disqualification ended on either 9 or 12 April.  On this basis, the appellant claimed that he believed that he could lawfully drive for a few days (from either 9 or 12 April until midnight on 14 April 2005).  The evidence as to the basis of this belief was as follows. 

(a)The appellant said that he had asked his wife to ring the Court to find out when the disqualification ended.  He did this because he was “under some medication” and did not want to be on the phone for any length of time.  She made the call and told him that his “licence had been returned as of the 9^th of April”.  He spoke to the Land Transport Safety Authority (“LTSA”) and they told him, “that it was the 12^th of April”.  In his evidence, he was not specific as to whether this happened before or after the meeting with Senior Sergeant Davy although the drift of the evidence and his use of the past tense in relation to 9 April suggested that the first discussion took place after 9 April.

(b)His wife said that she had telephoned the Court and spoke to an “Islander lady” called “Ali or Api or something” and also that she had spoken to the LTSA about when the disqualification ended.  She had also been given two dates, 9 April and 12 April, and told the appellant that he was safe to drive from the second of the two dates.  Her evidence was that these inquiries were made before the discussion with Senior Sergeant Davy.

[11]     We note in passing that the appellant’s account of events given to us at the hearing of the appeal was rather different.  He told us that he had made an enquiry of the LTSA after the meeting with Senior Sergeant Davy and had then asked his wife to confirm with them the advice which he had received as to when he could lawfully drive; this because he thought that the police would not accept his account if he were stopped.  We should also add that the appellant told us at the hearing that his memory was not particularly good. 

[12]     As it happened, the charge of driving while disqualified, which is the subject of the present appeal, related to events that occurred on 12 April and was thus within the limited time during which the appellant claimed to believe that he was permitted to drive.

Was the appellant’s right to consult and instruct a lawyer, without cost if so entitled, (as guaranteed by s 24(c) and (f) of the New Zealand Bill of Rights Act 1990) breached?

A preliminary comment

[13]     Despite the form of the question, argument in the case focused solely on s 24(f) of the New Zealand Bill of Rights Act 1990 (“NZBORA”).

The background to the appellant’s lack of representation

[14]     The appellant initially appeared in Court on 15 April 2005.  There were a number of remands.  A proposed fixture on 19 December 2005 did not proceed as the appellant obtained an adjournment.  The information has the following notation: 

Defence witnesses too ill to attend Court.  Defence app. to adjn granted (note this is 2nd fx).  Matter to proceed next date – PRIORITY.  RBTC 6/3/06 Fx. (def. to proceed)

[15]     We had understood from the material which had been placed before us that the appellant did not apply for legal aid and that this was because he had been told by Court staff that legal aid was not available due to the nature of the charge he faced.  Before us he said that he had in fact made an application for legal aid but was telephoned some hours later by a Court officer and told that legal aid would not be available because of the nature of the charge.  There is no indication in any of the material which we have seen that a legal aid application was in fact filed.  In his reply submissions to us, the appellant said that it was possible, based on what he was told by the Court officer, the application had simply not been processed.

[16]     In any event, the appellant maintains that at the start of the hearing on 6 March 2006 he told the Judge that he would have liked legal representation but of his understanding, based on what he had been told, that he could not get legal aid.  According to the appellant, Judge MacDonald indicated that he thought that the appellant would have been entitled to legal aid but nonetheless required the case to proceed.

[17]     The Crown does not accept that the appellant’s contentions as to the history of the case are necessarily correct.  There is no notation on the information to suggest that an application for an adjournment was made and refused on 6 March 2006.  The Judge, in a report which he has filed with this Court, has expressed the view that if an adjournment had been requested he would have granted it, “especially as it was a short case with the only prosecution witness as being Police Officers”

[18]     As well, there is no hint in the transcript (which records both the hearing itself and an earlier explanation given by the Judge to the appellant of the procedures which would be followed) of any complaint by the appellant about an application for an adjournment having been refused or his concern about absence of representation. 

[19]     Mr Lithgow QC, who appeared as amicus, however, made the fair point that the Judge’s report was requested (and thus provided) long after the events to which it related.  He also noted the Judge did not advert to the notation on the information (see [14] above) in light of which an adjournment on 6 March 2006 may not have been altogether easy to obtain.  He also raised the possibility that there may have been some unrecorded interaction between the appellant and the Judge when the fixtures for the day were called over at the start of proceedings.

The key legislative provisions

[20]     The key legislative provisions are s 24(f) of NZBORA and s 8 of the Legal Services Act 2000.  Section 24(f) of NZBORA provides:

24       Rights of persons charged

Everyone who is charged with an offence—

…

(f)       Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; …

[21]     At the time that the present proceedings were before the District Court, s 8 of the Legal Services Act was in these terms:

8        When legal aid may be granted: criminal matters

(1)       The Agency may grant legal aid to an applicant in respect of proceedings to which section 6 applies (criminal matters) if—

(a)       the applicant is a natural person charged with or convicted of an offence; and

(b)      it appears to the Agency that the applicant does not have sufficient means to enable him or her to obtain legal assistance; and

(c)       the Agency considers that the interests of justice require that the applicant be granted legal aid.

(2)       When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency—

(a)       must have regard to—

(i)       the gravity of the offence to which the matter relates; and

(ii)      in any case to which section 6(c) applies, the consequences for the applicant if legal aid is not granted; and

(b)      may have regard to,—

(i)        in respect of an appeal, the grounds of the appeal; and

(ii)      any other circumstances that, in the opinion of the Agency, are relevant.

[22]     By way of comparison, s 8 now provides:

8        When legal aid may be granted: criminal matters

(1)       The Agency may grant legal aid to an applicant in respect of proceedings to which section 6 applies (criminal matters) if—

(a)       the applicant is a natural person charged with or convicted of an offence; and

(b)      it appears to the Agency that the applicant does not have sufficient means to enable him or her to obtain legal assistance; and

(c)       either—

(i)       the offence to which the application relates is punishable by a maximum term of imprisonment of 6 months or more; or

(ii)      it appears to the Agency that the interests of justice require that the applicant be granted legal aid.

(2)       When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency must have regard to—

(a)       whether the applicant has any previous conviction; and

(b)      whether the applicant is charged with or convicted of an offence punishable by imprisonment; and

(c)       whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment; and

(d)      whether the proceedings involve a substantial question of law; and

(e)       whether there are complex factual, legal, or evidential matters that require the determination of a court; and

(f)       whether the applicant is able to understand the proceedings or present his or her own case, whether orally or in writing; and

(g)       in any proceeding to which section 6(c) applies, the consequences for the applicant if legal aid is not granted; and

(h)      in respect of an appeal, the grounds of the appeal.

(3)       When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency may have regard to any other circumstances that, in the opinion of the Agency, are relevant.

(4)       When determining whether or not an applicant has sufficient means to enable him or her to obtain legal assistance, the Agency must have regard to the applicant's income and disposable capital.

(5)       Subsection (1)(c)(i) does not apply in respect of—

(a)       an appeal; or

(b)      a proceeding to which section 6(c) applies.

Was there any breach of the appellant’s rights under s 24(f) of NZBORA?

[23]     Common sense and authority suggest that the entitlement under s 24(f) is subject to the defendant taking the necessary steps to obtain legal assistance under the Legal Services Act, see Rv Condon [2007] 1 NZLR 300 at [76] (SC). The appellant is not a stranger to the courts and it is clear that he had a general understanding of the existence of the legal aid scheme. Taking the view of the facts which is most favourable to the appellant, his efforts to obtain legal aid were limited to say the least. At most he lodged an application with the District Court, had a subsequent discussion with someone in the District Court Registry and mentioned legal representation to the Judge at the commencement of the hearing on 6 March 2005. This is in the context of a case which had been in the Court system for nearly 11 months by 6 March 2006 during which time the appellant had appeared in Court on no less than seven occasions.

[24]     In our view the actions of the appellant were insufficient to trigger his rights under s 24(f).

[25]     In any event, we are not persuaded that the interests of justice required a grant of legal aid.  Whether legal representation is required primarily turns on the seriousness of the charge and the complexity of the case. 

[26]     In practical terms, the interests of justice test provided for in s 24(f) of NZBORA is now spelt out in the current s 8 of the Legal Services Act (albeit that this section in its current form post-dates the appellant’s trial in the District Court).  The maximum penalty faced by the appellant was three months’ imprisonment.  Such a case does not engage s 8(1)(c)(i).  Further, the appellant, despite a number of previous convictions for other offending, did not face a real prospect of a sentence of imprisonment if convicted.  The only possible element of complexity in the case related to the evidential status of the discussions between the appellant and his wife and their discussions with Court staff and the LTSA.  Although this issue did lead to some trouble during the hearing of the case (as we will indicate shortly), in the end the associated problems were resolved.  In short, we do not regard the interests of justice as having required a grant of legal aid.

[27]     We mention, but see no need to decide, a further issue: assuming an application for legal aid was made, as the appellant maintains, does this second appeal provide an appropriate mechanism for collateral review of a decision to decline legal aid.  As to this, see the discussion in Butler and Butler The New Zealand Bill of Rights Act (2005) at 796 – 797.

Was the appellant’s right to a fair trial (as guaranteed by s 25(a) of NZBORA) breached?

[28]     There was no dispute that the appellant had been driving on 12 April 2005 and that he was, at the time, disqualified from driving.  All that was in issue was whether the prosecution had proved beyond reasonable doubt that he knew at the time that he was not entitled to drive.  On this point, there was a conflict between the evidence of Senior Sergeant Davy and that of the appellant and his wife.

[29]     When Senior Sergeant Davy gave evidence, he referred to checking the appellant’s history and confirming that he was disqualified from driving up until midnight on 14 April 2005.  He gave this evidence without challenge and, indeed, there could be no basis for challenge.  His reference to checking the appellant’s history did not involve any breach of the hearsay rule as this evidence was not tendered for the purpose of establishing the appellant’s then status.  Rather, it was led as part of the narrative – as explaining why he told the appellant that he was disqualified from driving up until midnight on 14 April 2005.

[30]     When the appellant gave evidence, he said that he understood the disqualification imposed in July 2005 ended about 10 or 11 April.  He then went on to say that he asked his wife to ring the Court.  Unhelpfully, the prosecutor objected at this point.  The appellant’s evidence as to what he claimed his wife told him (based on a discussion she had with Court staff) was not hearsay (because it was relevant not to when the disqualification actually ended but rather his state of mind).  The objection, however, did not result in appellant being prevented from giving his story as the Judge permitted him to explain that his wife had told him that his disqualification would end on 9 April 2005.  He was also permitted to say that he had spoken to someone at the LTSA and been told that his licence would be restored as from 12 April 2005.  

[31]     When the appellant’s wife gave evidence, she supported her husband’s evidence as to the discussion with Senior Sergeant Davy.  She also tried to give evidence of having spoken to someone at the Court. At this point, the Judge intervened:

Judge:You can’t actually tell us what someone else told you in that context. 

Mrs Whitelaw: Okay. 

Judge:It’s hearsay.

Mrs Whitelaw: I’d rung, I rung to find out when the licence was due to be reinstated.

Judge:Okay, but you can’t tell the Court what someone else told you.  You can bring that person along to tell us what was said but not the other way. 

Mrs Whitelaw: Oh, okay. 

Judge:It’s actually called hearsay, Mr Whitelaw.

Mr Whitelaw:   Unfortunately, I’m not aware of that.  I thought with the person, the witness speaking today the witness would give the evidence what was told to her and verified by the Courts to her so this blows the whole case out the door.

Mrs Whitelaw: I was not going to let Barry drive one of those vehicles and have the chance of having it being impounded again, um, until I was satisfied myself that he –

Mr Whitelaw:   What was my belief about the driver’s licence?

Judge:Just pause.  She can’t tell us what your belief was.

Mr Whitelaw:   Okay.

Judge:You’ve already given that evidence.

Mr Whitelaw:   What did you tell me that I could do regarding the driver’s licence?

Mrs Whitelaw: I can answer that.  Um, on the information that I’d collected myself, um, I was satisfied in my mind that Barry was able to drive for a period of time before he was licence was to be you know taken off him again.  Um, I’d been given a couple of different dates but as I say I made the decision myself and took the latter date of the two, um, feeling to me, um, he was safe to drive for that period of time and that’s why I said to him, yeap, you know.

Mr Whitelaw:   This is an unfortunate situation, Your Honour, because I just, I’m not aware that I had to bring the other person to Court.  I thought the witness could reveal what was told to her by the Courts and what she relayed to me as in dates and so forth.

Mrs Whitelaw: I spoke to two people. I spoke to LTSA as well.

Mr Whitelaw:   Can I ask the witness what dates that she had in mind which would’ve been she thought the licence was returned on.  Is that an appropriate question, Your Honour?

Judge:Give the evidence and we’ll see where we go, okay.

Mr Whitelaw:   What dates did you, the two dates you thought the licence was returned on?

Mrs Whitelaw  Um, the first date that was indicated to me was the 9^th of April and the second date that was indicated to me was the 12^th of April.

Mr Whitelaw:   Okay.

Mrs Whitelaw: Um, so I upon my judgement, um, played safe and thought the latter dates would be the safer option.

[32]     Although the suggestion that the evidence of what Mrs Whitelaw may have been told by other people was hearsay was misconceived, she was in the end permitted to give the evidence which Mr Whitelaw sought to obtain from her.

[33]     The Judge’s reasons for finding the charge proved were not particularly detailed and, perhaps euphemistically, focused more on his acceptance of the Senior Sergeant’s evidence than on his at least implicit rejection of the evidence given by Mr and Mrs Whitelaw.  It is, however, not entirely surprising that he rejected the defence:

(a)As a result of the events of 29 or 30 March 2005, Mr Whitelaw faced the prospect of being charged with driving while disqualified.  On 31 March he spoke to Senior Sergeant Davy in what must primarily have been an effort to avoid prosecution for disqualified driving.  His explanation was that he had thought that the suspension of his disqualification had not lapsed.  Given that the suspension was in fact for a period of over two months and on his asserted belief much longer, it is difficult to see how he could have thought in early April that a nine month disqualification imposed in July would have finished in April.

(b)In the context in which the discussion of 31 March 2005 occurred, it is highly likely that Senior Sergeant Davy would have checked to see when the disqualification ended and informed the appellant accordingly.  His evidence was therefore inherently plausible.

(c)On the evidence of Mr and Mrs Whitelaw, a number of people at the Court and the LTSA got the end date of the disqualification wrong, a proposition which is not inherently plausible.  In saying this we recognise that Senior Sergeant Davy got the date wrong but given that the disqualification initially ended on 14 April that mistake is understandable.  What we find difficult to accept is that an inquiry would have produced a date prior to 14 April.  And we also find it hard to accept that a number of inquiries would have produced different incorrect dates.

(d)The whole idea of one period of disqualification starting a few days after another one ended is itself not very plausible.  One would expect a subsequent disqualification to follow on immediately after the termination of the earlier disqualification.

[34]     An associated issue is whether the appellant was prejudiced by his lack of representation because he did not appreciate the desirability of calling as witnesses the persons allegedly spoken to at the District Court and the LTSA.  The argument associated with this issue raises questions that are essentially similar to those posed in a case where the appellant complains that a particular witness was not called at trial.  Appellate courts normally require such an argument to be backed up with an affidavit from the witness who was not called.  In this case it was suggested that by the time the case came to be heard in the District Court and particularly once it went on appeal, it would have been too late to expect the relevant people to recall what was said. 

[35]     We remain unconvinced that there is a credible basis for the conclusion that there was actual, rather than highly theoretical, prejudice.  On the basis of what Mr and Mrs Whitelaw told the Court, they must have been very unpleasantly surprised when Mr Whitelaw was stopped on 12 April 2005 and accused of driving while disqualified.  It seems almost inconceivable that they would not have immediately sought an explanation from the people at the Court and the LTSA on whose assurances Mr Whitelaw chose to drive. 

[36]     There is a further point we should mention.  The appellant had a right of appeal, which he exercised.  Although he advanced arguments to Allan J that covered much the same ground as the submissions to us, there is no indication in that judgment of the appellant having made any attempt to produce evidence from the people at the Court and LTSA who allegedly gave misleading advice.

[37]     Mr Lithgow raised the question whether the Judge addressed himself accurately to the mens rea element and the onus of proof.  We are satisfied that he did.

Disposition

[38]     The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington