Rakuraku v R
[2016] NZCA 351
•26 July 2016 at 11:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA497/2014 CA75/2015 [2016] NZCA 351 |
| BETWEEN | STEVEN TREVOR RAKURAKU |
| AND | THE QUEEN |
| Hearing: | 21 July 2016 |
Court: | Randerson, Fogarty and Collins JJ |
Counsel: | Appellant in Person |
Judgment: | 26 July 2016 at 11:00 am |
JUDGMENT OF THE COURT
AThe appeal against conviction and sentence in CA497/2014 is dismissed pursuant to s 338 of the Criminal Procedure Act 2011.
BThe appeal against conviction in CA75/2015 is dismissed pursuant to s 338 of the Criminal Procedure Act 2011.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
The appellant was charged with two separate sets of offending in 2010 and 2011. We will refer to these as the Rotorua and Napier charges respectively. The bulk of the offending involved various forms of physical violence against multiple victims. The most serious charge was the murder of a Mr Wright at Napier.
The appellant pleaded guilty to the Rotorua charges in the District Court on 7 April 2014 after receiving a sentence indication.[1] At that time the appellant was represented by Mr Fairbrother QC. Ultimately, the appellant was sentenced by Judge Thomas on 6 November 2014 to a term of imprisonment of three years and one month on one charge of kidnapping and one charge of injuring with intent to injure.[2] He was also sentenced to concurrent terms of 12 months imprisonment on three other charges: assault with intent to injure, threatening to cause grievous bodily harm and causing intentional damage to a motor vehicle. He filed an appeal against conviction on those matters on 19 February 2015.
[1]R v Rakuraku, DC Hamilton CRI-2011-041-1981, 7 April 2014.
[2]R v Rakuraku, DC Hamilton CRI-2011-041-1981, 6 November 2014.
The indictment in respect of the Napier offending ultimately contained 11 counts:
First complainant
·Kidnapping
·Threatening to do grievous bodily harm
·Injuring with intent to injure
Second complainant
·Threatening to kill
·Assault
Mr Wright
·Injuring with intent to injure
·Kidnapping
·Murder
Fourth complainant
·Male assaults female
·Male assaults female
·Attempting to pervert the course of justice
After a jury trial before Williams J, the appellant was convicted by unanimous verdict on all charges other than the charge of threatening to kill the second complainant. The appellant represented himself at trial. In circumstances we discuss below, Mr Fairbrother and Mr Lafferty were appointed as amici curiae for the purposes of trial and sentencing. The appellant was sentenced on 12 December 2014 on the charge of murder to life imprisonment with a minimum period of imprisonment of 17 years.[3] Lesser concurrent terms of imprisonment were imposed on all the remaining charges on which the appellant was convicted. The appellant filed an appeal against conviction and sentence on 11 September 2014 even though he had not been sentenced at that date.
Notice of intention to dismiss the appeals under s 338 of the Criminal Procedure Act 2011 (the CPA)
[3]R v Rakuraku [2014] NZHC 3270.
In circumstances we discuss in more detail below, we gave notice to the appellant on 2 June 2016 that if the appellant did not file points on appeal and submissions in support of both appeals by 30 June 2016 we intended to dismiss the appeals under s 338 of the CPA. The appellant has not complied with that direction despite a reminder by the Registry.
Procedural history of the appeals
The appellant has represented himself on the appeals throughout. The grounds of appeal set out in the notice of appeal in respect of the Rotorua charges focused on a complaint that the appellant had received incorrect legal advice. In particular, the appellant alleged that he would not have entered pleas to the Rotorua charges if he had been aware that the Crown would use his convictions on the Rotorua charges to seek a 17-year minimum period of imprisonment in respect of the Napier charges.
The notice of appeal in respect of the Napier charges raised two grounds. The first was that amicus had not called three named witnesses. The second was that “judicial intervention” by Ronald Young J had meant the appellant had no choice other than to proceed with a lawyer who was inadequate and would not follow his instructions. He had been forced to represent himself and had no legal education to do so.
The appeals were referred to Miller J for case management purposes. On 1 December 2015 Miller J directed that the appeals be heard together. An extension of time required for the appeal in respect of the Rotorua charges was to be dealt with at the hearing of the appeals.
For the appeal in respect of the Napier charges, Miller J directed the appellant to file affidavit evidence from each of the witnesses he claimed were relevant to his defence together with an affidavit of his own, explaining why he did not call them or was unable to do so. Miller J noted that if the appellant failed to file affidavits, the Court was unlikely to allow him to speculate on what the witnesses might have said.
As to the appeal in respect of the Rotorua charges, Miller J observed that a high threshold was required to appeal against conviction following a guilty plea. To the extent the appellant made allegations of error against counsel, the Judge directed that the appellant was to swear an affidavit explaining the advice he had been given and he was also to provide the Crown with a signed waiver of privilege. He said that if the appellant failed to do those things, his appeal would still be heard but the Court was unlikely to attach any weight to his allegations about counsel’s advice.
Miller J’s directions were all to be complied with by 12 February 2016, although he indicated that if the appellant wished to change the timetable he should write to the Registrar. The appellant failed to comply with Miller J’s directions. On 23 February 2016 the Judge convened a telephone conference to deal with two matters. The first was the appellant’s request for further time to prepare submissions and the second related to the Crown’s request that the appellant provide waivers of privilege. Miller J explained again that the appellant was not legally required to sign waivers of privilege but that the Court was unlikely to attach weight to complaints he made about his previous lawyers unless he had provided waivers and filed relevant evidence on the point. He directed that if the appellant wished to provide waivers of privilege he must do so by 9 March 2016. If the appellant did not do so, the case would be set down on the basis that there would be no evidence filed on either side relating to his complaints about his previous lawyer.
As to a timetable for submissions, the appellant had requested a period of eight months for this purpose, citing difficulties in researching and preparing while he was in custody. Miller J considered this was much too long and directed the appellant to file submissions by 6 April 2016.
At the telephone conference on 23 February 2016 the appellant said he wanted legal advice and had filed an application for legal aid. Miller J’s minute relating to this conference recorded that the Registrar had, after the conference, checked with Legal Services who had advised that no application had been made. Miller J noted in his minute that if Legal Services received a completed legal aid application from the appellant before 9 March 2016, he would be prepared to extend time a little further to allow a lawyer to be assigned and advise the appellant. The Registrar was requested to send the appellant the appropriate form and check with Legal Services on 9 March 2016 as to whether an application had been lodged.
Again, Miller J’s directions on 23 February were not complied with. By a minute of 15 April 2016 Miller J recorded that the appellant had not provided waivers of privilege nor sought legal aid and that his submissions were late. He said that, in view of the fact that the appellant was unrepresented, he would be prepared to extend time for a reasonable period if the appellant made a request to the Registrar.
The appeals were then set down for hearing on 2 June 2016. The date of hearing was notified by the Registrar to the appellant by letter of 15 April 2016. The letter also recorded that submissions in support of the appeals were to have been filed by 6 April 2016. The Registrar advised that any request for an extension of time to file submissions must be made to the Registrar.
On 12 May 2016 a telephone conference was convened before Randerson J at the request of the Crown because no submissions had been received from the appellant. In a minute issued on that date, Randerson J recorded that the case officer had been advised by an officer at the prison at which the appellant was held that the appellant did not wish to attend the conference because he was said to be seeking legal advice. The respondent was informed and the conference did not therefore proceed. However, the minute issued on 12 May 2016 recorded the history to date and noted that the case officer had checked again on that day with Legal Services who had advised that the appellant had not made any application for assignment of a lawyer on legal aid. The minute then stated:
[8] Given the delays in disposing of Mr Rakuraku’s appeals to date, it is important that they be disposed of promptly. Mr Rakuraku has not sought any adjournment. If the appeals are to proceed in an efficient and just manner it is reasonable for the Crown to have prior particulars of the grounds of appeal. Mr Rakuraku has had ample time to provide these. I am satisfied, particularly from remarks which the trial Judge (Williams J) made at Mr Rakuraku’s sentencing, that he is a man of considerable intelligence. His continued failure to comply with the directions as to the filing of submissions and his failure or refusal to attend today’s telephone conference cannot be allowed to continue and may have adverse consequences for his appeals.
[9] Against that background I make the following directions:
(a)Mr Rakuraku must file and serve his submissions in support of both appeals (including full particulars of the grounds of his appeals) no later than 20 May 2016.
(b)I make an order to produce Mr Rakuraku so that he may be brought to court for the purposes of the hearing on 2 June 2016.
(c)The hearing will take place at the High Court in Auckland at 10am on 2 June 2016. Miller J directed that one day be allowed. That time is to be reduced to half a day.
[10] I make it clear to Mr Rakuraku if he does not comply with the direction to file submissions then the Court will consider making an order under s 338 of the Criminal Procedure Act 2011 dismissing the appeals.
After the order to produce the appellant for the purposes of conducting the hearing on 2 June 2016 was made, the appellant wrote to the court requesting that he be permitted to appear by AVL. That request was approved on 17 May 2016 and the order to produce was cancelled. On the day appointed for the hearing of the appeals, the appellant appeared by AVL as arranged. No submissions or points on appeal had been filed. The appellant informed the Court that he had contacted a Christchurch lawyer, who he named. He also informed the Court that about two weeks previous to the hearing, he had signed a legal aid application and sent it to the lawyer. Inquiries made by the Court Registry during the hearing on 2 June 2016 established that no application for legal aid had been received by Legal Services.
When asked to explain why the Court’s previous directions had not been complied with, the appellant’s only explanation was that he wished to retain a pathologist and that he could not file his points on appeal until he had received legal advice.
The Crown opposed the application for an adjournment and submitted that the appeals should be dismissed. The Court did not accede to the Crown’s submission. The appellant was advised he would have one final opportunity to put his house in order by retaining a lawyer and by filing his points on appeal with supporting submissions. This was to occur whether or not the appellant finally received legal aid or otherwise had legal assistance.
The appeal was adjourned to be heard by a fresh panel on Thursday 21 July 2016. The minute of the Court issued on 2 June 2016 made the following further orders:
(b)Mr Rakuraku is to file his points on appeal and submissions in support of both appeals no later than 30 June 2016.
(c)If the points on appeal and submissions are not filed by that date the Court gives notice under s 338 of the Criminal Procedure Act 2011 that it intends to dismiss the appeals.
(d)If the points on appeal and submissions are filed by Mr Rakuraku in a timely way then the Crown will have until 12 July 2016 to file and serve its submissions in response and the new fixture on 21 July 2016 will proceed on that date whether or not by that time Mr Rakuraku has obtained legal representation.
(e)Mr Rakuraku has requested that he be permitted to appear by audio visual link for the purpose of this appeal on the new date. He has made that request despite being aware that he is entitled to be present in person at his appeal with an order to produce if he wishes. He makes that request because he considers he will be better able to present his appeal from prison and because he has his relevant papers in his current environment. We make an order that he may appear by audio visual link for the purpose of his appeal.
A number of members of the victims’ families travelled from a distance to attend the hearing in Auckland on 2 June 2016. Their presence was acknowledged and recorded in the Court’s minute:
[6] Some members of the victim’s family are here today and we acknowledge your presence. We regret that it has become necessary to adjourn this appeal. We understand why you would like to have the matter disposed of. Mr Rakuraku understands, as he has acknowledged, that this is his last opportunity to put his house in order and that the Court will act if he does not.
The appellant was present by AVL when the directions of the Court were given and the Court minute recording those directions was sent to the appellant soon afterwards. A copy was also sent to the Christchurch lawyer the appellant had named. Despite these steps and a further reminder from the Court Registry on 29 June 2016, the appellant has still not complied with any of the Court’s directions. Nor has there been any approach to the Court by the Christchurch lawyer.
The last step taken by the Court was to issue a minute on 8 July 2016 confirming that the appellant had not complied with the Court’s directions given on 2 June 2016. The appellant was advised that the appeals would be called for mention on 21 July 2016 and that he could make submissions as to why the Court should not make an order dismissing his appeals under s 338 of the CPA.
On 21 July 2016 the appellant appeared by AVL. He advised the Court that a lawyer (Mr Starling) had advised him that it would not be wise to apply for legal aid. The lawyer had also advised that he should not oppose an order dismissing the appeals but seek to pursue the matter in the Supreme Court. The appellant informed the Court this was the course he had decided to adopt. He had no further submissions to make.
Consideration
Before the introduction of the CPA, this Court had no power to dismiss an appeal without consideration of its merits.[4] However, s 338 of the CPA now empowers an appeal court to dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal. Ten working days notice of the court’s intention to dismiss the appeal must be given under s 338(2). That notice was given on 2 June 2016 and there had been a prior warning on 12 May 2016 that this step would be considered. In terms of s 338(3), the Court must not dismiss an appeal if the appellant rectifies the non‑compliance within the notice period given by the court.
[4]Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153.
Where the statutory formalities have been met, jurisdiction to dismiss an appeal exists but the court still retains a discretion whether to exercise the power to dismiss an appeal. In exercising that discretion, the court must be guided by the interests of justice. An important consideration is the right to appeal according to law affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990. But in enacting s 338, Parliament has recognised that the right to appeal is not an untrammelled right and that the court may, when appropriate, dismiss an appeal for non‑compliance with a timetable or procedural order. This no doubt recognises that there are countervailing considerations relevant to the interests of justice including the Crown’s legitimate expectation that it should be provided with adequate particulars of the grounds of appeal to enable a proper response and the public interest in finality of court proceedings. The orderly and efficient administration of the court is also a relevant consideration although the court would not normally dismiss an appeal under s 338 unless there had been serious, repeated and continuing non‑compliance with the court’s directions.
Conclusions
We have decided in the circumstances of this case to make an order dismissing both the appeals. We do so for these reasons. It is now approaching two years since the appeal against the Napier convictions was filed and it is now 17 months since the appeal relating to the Rotorua charges was filed. There has been a complete failure by the appellant to comply with any of the Court’s directions given since December 2015 with no satisfactory explanation by the appellant. He has had ample opportunity to apply for legal aid. Despite his advice to the Court on more than one occasion that he has applied for legal aid, the Registry’s inquiries have established this has not occurred. We note in particular that no application has been made for legal aid despite the appellant’s specific advice that he had approached a named Christchurch lawyer. Nor has the Court Registry received any approach from that lawyer or any other legal adviser on the appellant’s behalf.
Judges of both the District Court and High Court dealing with the appellant have been impressed with his intelligence and abilities. We are satisfied the appellant is well able to have filed submissions and points on appeal if he had been minded to do so.
The Crown is seriously prejudiced in its ability to respond to the appeal in the absence of any detailed grounds of appeal being placed before the Court. Finally, although it is not a determinative factor, the victims and their families are entitled to expect that the Court will deal with the appeals without repeated adjournments and delays.
We have endeavoured to make some assessment of the prospects of success of these appeals. We note first that, in respect of the Rotorua charges, the appellant was represented by senior and experienced counsel, Mr Fairbrother, at the time he pleaded guilty and received the sentencing indication. As Miller J pointed out, an appellant who has pleaded guilty must satisfy a high threshold in order to successfully appeal against conviction. Second, the point raised by the appellant relates to a complaint about his legal advisers at the time. The appellant has not provided any waiver of privilege nor has he filed any affidavits to support the existence of some error in the advice he received. We note too that the order in which the Rotorua and Napier charges might proceed was the subject of considerable attention both by the High Court and the District Court. This was at the appellant’s instigation and at a time when he was represented by senior counsel. We infer that the appellant was well aware of the potential consequences of convictions for the Rotorua offending if that occurred before convictions for the Napier offending.
We have also given consideration to the way in which the trial of the Rotorua charges proceeded. It is evident that the appellant sought to delay that trial as long as possible and that he raised numerous pre-trial points requiring rulings. During the period after the charges were laid, the appellant was variously represented by Mr Lithgow QC and Ms Sykes, both of whom are experienced and senior counsel. By 22 October 2013 Ronald Young J recorded that Mr Fairbrother was representing the appellant. An adjournment of the trial, then set down for 11 November 2013, was sought and granted.
The trial in respect of the Napier charges commenced on 3 June 2014 before Williams J. It appears that Mr Fairbrother and Mr Lafferty had been representing the appellant until that point. However, the appellant dismissed them at the beginning of the trial. This resulted in the appointment of Mr Fairbrother and Mr Lafferty as amici curiae. As Williams J explained to the jury:
Mr Fairbrother’s job was to even the playing field a little by pointing out issues to be pursued and matters to be considered from a defence perspective. But his role is to assist the Court.
It appears from the trial record that Mr Fairbrother effectively advanced the appellant’s defence at trial by cross-examining Crown witnesses. Both he and the appellant in person addressed the jury. The appellant himself gave evidence and called a number of witnesses. We have also examined the summing-up given by Williams J which appears to have been comprehensive and fair. We have not discerned any obvious errors in it.
As to the specific points raised by the appellant in his notice of appeal, he could have called the witnesses he identified if he wished to do so. The appellant has not provided any evidence explaining why he did not call these witnesses and what they would have said if called. This is so despite the directions given by Miller J.
As to the appellant’s advice that he wished to obtain a pathologist, he has had ample time to do so. We apprehend that any evidence from a pathologist would relate to the cause of death of Mr Wright and whether the appellant would have appreciated the risk of Mr Wright’s death ensuing from repeated beatings by the appellant as deposed to by Crown witnesses at trial. The appellant’s defence to the murder charge was to deny that any beatings had taken place and to say that Mr Wright was in good health when he had last seen him. If Mr Wright had suffered the injuries described by the Crown pathologist Dr White, he (the appellant) had not caused Mr Wright’s death. When he discovered Mr Wright had died, he had buried him out of panic.
All this was put fairly to the jury, the Judge noting that, according to Dr White, beatings sustained by Mr Wright had resulted in 35 rib fractures and that his death had arisen from collapse of the chest structure giving rise to excessive carbon dioxide in the blood and fatal brain swelling. The Crown relied as well on the evidence of a Dr Bennett in relation to the victim’s injuries.
Williams J was satisfied at sentencing that the jury’s verdicts had a sound evidential basis:
[16] The Crown case was based on alternative scenarios: either you intended to cause Johnny Wright injury knowing the injury could cause death but consciously taking that risk; or while meaning to cause injury in order to facilitate Johnny Wright’s kidnapping, you came to kill him. The verdicts and evidence provide good support for either scenario, in my view.
As to sentence, the Judge was satisfied there was a high level of brutality and callousness in the killing of the victim, involving as it did multiple beatings at two different venues over many days. As well, the victim was particularly vulnerable because of his mental health status. In terms of s 104 of the Sentencing Act 2002, the Judge was satisfied a minimum period of imprisonment of at least 17 years was justified. He accepted a Crown submission that the minimum period of 17 years should be uplifted by six months on the ground of previous relevant convictions and the fact that the appellant was on bail at the time of the offending. The Judge also considered a further six months should be added for the other convictions in respect of the Napier offending. After deducting 12 months for personal mitigating factors, the Judge adopted the lead sentence of life imprisonment with a minimum period of 17 years on the murder charge and imposed concurrent sentences for the other offending.
Given the Judge’s findings as to the circumstances of the offending and of the appellant, there is no obvious basis upon which a sentence appeal might succeed.
We are satisfied for the reasons given that an order dismissing both appeals is appropriate. This is a case of serious and repeated breaches of the Court’s directions. The circumstances in which these breaches have occurred are such that it is reasonable to infer that the appellant has set out to deliberately mislead the Court and to frustrate the Court’s processes. There is nothing to suggest that the appellant has any intention to comply with the Court’s directions despite our conclusion that he has the capacity to do so if he wishes.
Result
The appeal against conviction and sentence in CA497/2014 is dismissed pursuant to s 338 of the Criminal Procedure Act 2011.
The appeal against conviction in CA75/2015 is dismissed pursuant to s 338 of the Criminal Procedure Act 2011.
Solicitors:
Crown Law Office, Wellington for Respondent
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