Reid v Department of Corrections

[2021] NZHC 1578

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-353

[2021] NZHC 1578

UNDER

The Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, the Corrections Act 2004 and the Corrections Regulations 2005

BETWEEN

LIAM JAMES REID

Applicant

AND

THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

On the papers

Counsel:

Applicant in person

D Jones and R M McMenamin for the Respondent

Judgment:

29 June 2021

JUDGMENT OF CAMPBELL J

(Application for appointment of counsel assisting)

This judgment was delivered by me on 29 June 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

REID v THE DEPARTMENT OF CORRECTIONS [2021] NZHC 1578 [29 June 2021]

[1]        Mr Reid is a sentenced prisoner at Auckland Prison. In this proceeding he applies to judicially review his placement in the prison system having regard to his security classification.

[2]        On 19 May 2021, Mr Reid applied for the appointment of what he describes as an amicus curiae. He explained that he had been refused legal aid for this proceeding. He said that he needed the assistance of legal counsel.

The parties’ positions

[3]        The respondent, the Department of Corrections, filed a memorandum dated 14 June 2021 in response to Mr Reid’s application. The respondent says it is neutral on Mr Reid’s application, but it draws certain principles to the Court’s attention.

[4]        The respondent observes that there is a distinction, clarified by the Court of Appeal in Fahey v R, between (1) counsel assisting the court and (2) standby counsel to assist a party. In Fahey, the Court of Appeal explained the distinction in the following way:1

… A distinction should be drawn between the roles of court-appointed counsel. We use the term “amicus curiae” (or its modern equivalent, counsel assisting the court) for counsel appointed by the court to help the court itself. We adopt the apt American term “standby counsel” to describe counsel appointed by the court to assist a self-represented defendant if and to the extent the defendant is willing to accept it, and to assume the conduct of the defence should the defendant decide to abandon self-representation.

[5]        Like the Court of Appeal, I prefer to use the modern term, counsel assisting the court, rather than amicus curiae.

[6]        The respondent says that Mr Reid appears to be seeking not the appointment of counsel assisting the court, but standby counsel to assist him. This is because Mr Reid’s application includes the following:

9For my affidavit to thoroughly outline my evidence, I need the assistance of Legal Counsel.

…

11I seek the appointment of Mr Charl Hirschfeld, Barrister as Amicus Curiae. …

[7]        Mr Reid’s application then says that Mr Hirschfeld has acted for Mr Reid on other matters, and is working on his appeal (I assume against conviction). Mr Reid says that, because of alleged deficiencies by his trial lawyer, he has difficulty in creating trust with “any old lawyer”. That, Mr Reid says, is why he is seeking that the court appoint Mr Hirschfeld as “Amicus Curiae”.

[8]        Mr Reid filed submissions dated 15 June 2021 in reply to the respondent’s memorandum. Mr Reid continues to seek the appointment of what he calls “Amicus Curiae”. However, his submissions confirm that in reality Mr Reid is seeking the appointment of counsel to assist him, rather than counsel to assist the court. At [8] of his submissions he says that an amicus curiae “can provide the court in the assistance of writing the affidavit required to be filed by the Applicant [that is, Mr Reid] and further, the Amicus Curiae can ensure the legislative provisions relied on in this application are robustly put before the Court”. At [19] he reiterates that for his affidavit to thoroughly outline his evidence “I need the assistance of Legal Counsel”.

Decision

[9]        I agree with the respondent that, although Mr Reid claims to be applying for the appointment of counsel assisting the court (what Mr Reid calls an amicus curiae), in reality he is seeking the appointment of counsel to assist him. Nonetheless, in fairness to Mr Reid, I will consider his application on both possible bases.

[10]      I first consider the application on the basis that Mr Reid is seeking the appointment of counsel assisting the court (amicus curiae). In Fahey v R the Court of Appeal said that (in the criminal trial context) briefs to counsel assisting the court “should be confined to the traditional function of assisting the court, usually on points of law, when it appears that the parties may not do so”.2 This is not such a case, for two reasons. First, Mr Reid is asking for the appointment of counsel to assist him, rather than to assist the Court. Secondly, in any event this is not a case in which, absent such an appointment, the parties will not address the Court on the matters in issue.

[11]      I next consider the application on the basis that Mr Reid is seeking the appointment of counsel to assist him, what the Court of Appeal in Fahey called (in the criminal trial context) “standby counsel”. It is not beyond doubt that there is power to appoint such counsel in the civil jurisdiction.3 Assuming there is such power, it should not be exercised “where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused or for some other reason the party is unable or unwilling to access a lawyer for the purpose of presentation”.4 That is the very purpose for which Mr Reid seeks the appointment of Mr Hirschfeld. It is inappropriate to appoint a counsel to assist Mr Reid for such a purpose.

[12]For these reasons, I decline Mr Reid’s application.

Campbell J

3      The Court of Appeal did not express a view on this in Fahey: at [75], footnote 82.

4      Erwood v Holmes [2017] NZHC 1278, at [40] per Moore J. To similar effect is Hartley v Attorney- General [2018] NZHC 2639.