Scott v The Queen
[2017] NZHC 1853
•7 August 2017
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2017-470-000020 [2017] NZHC 1853
BETWEEN LEWTYN MICHAEL SCOTT
Appellant
AND
THE QUEEN Respondent
Hearing: 13 July 2017 Counsel:
Appellant in Person
Richard Jenson for the RespondentJudgment:
7 August 2017
JUDGMENT OF MOORE J
This judgment was delivered by me on 7 August 2017 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
SCOTT v THE QUEEN [2017] NZHC 1853 [7 August 2017]
Contents
Paragraph
Number
Introduction ............................................................................................................. [1] Background.............................................................................................................. [7] The appeal.............................................................................................................. [21] Issues on appeal ..................................................................................................... [25]
What are the reasons for the delay in filing the appeal late and what merit,
if any, does the appeal appear to have? ............................................................... [27] Is there jurisdiction to determine this appeal? ................................................... [33] Insolvency charges .............................................................................................. [42] Judge-alone charges ........................................................................................... [45] Did the Judge err in disengaging the appointment of an amicus curiae? ........ [49]
Did the Judge err in not hearing submissions on legal representation on
“an ex parte” basis? ............................................................................................... [68] Should a stay of proceedings be ordered?........................................................... [79] Should I recuse myself? ........................................................................................ [85] Result ...................................................................................................................... [92]
Introduction
[1] The appellant, Mr Scott, faces charges in respect of what appears to be three separate, although interrelated, episodes of offending.
[2] The first involve his alleged conduct as an undischarged bankrupt. These charges arise out of and relate to allegations that he transferred various assets to a family trust for the purpose of defeating his creditors. Four charges have been laid under the Insolvency Act 2006. Each carries a maximum penalty of three years’ imprisonment.
[3] The second category of offending is represented by a single charge of wilful trespass brought under the provisions of the Trespass Act 1980. The maximum penalty is three months’ imprisonment.
[4] Thirdly, Mr Scott faces two charges alleging breaches of the Bail Act 2000 committed in July 2016. These carry a maximum penalty of one years’ imprisonment.
[5] On 5 May 2017 Judge J C Harding of the Tauranga District Court directed the termination of Mr R J A Marchant's appointment as counsel assisting the Court. He also refused Mr Scott's request to be heard in the absence of other counsel.
[6] Mr Scott now appeals those rulings. His appeal was filed out of time.
Background
[7] It is apparent not only from the Judge's decision and the limited material to which I have had access but also from the hearing before me that the matters involving Mr Scott have a protracted and complex history. The trespass charge was laid on 10
November 2015, the day after the alleged offending. It is not clear from the file when the Insolvency Act charges were first laid but the Crown Charge Notice alleges offending between July 2010 and August 2011.
[8] It appears that Mr Scott has elected trial by jury on the Insolvency Act charges. That qualification reflects some level of uncertainty around whether, in fact, Mr Scott
has elected trial by jury, a matter to which I shall return. There is no right of election for trial by jury on the trespass charge or the breach of bail charges. If defended these charges must be heard by a District Court Judge sitting alone.
[9] Some sense of the tortuous and protracted background to the proceedings involving Mr Scott may be obtained from Judge Harding’s ruling as well as a later pre- trial ruling by Judge Ingram which is not being appealed.1 Judge Ingram summarised the background in the following way:
“[5] The history of this litigation is long and troubled. I do not propose to recite it all. Having reviewed the file, it is clear to me that since at least
3 March 2016 Mr Scott has declined to co-operate with, or has terminated the
instructions of all counsel appointed to represent him under the provisions of the legal aid regime. He has now declined to co-operate with amicus curiae, leading both Judge Harding and now myself, to the conclusion that further public expenditure on trying to provide him with professional legal advice and assistance would be completely unjustified.
[6] When the matter was called before me today Mr Scott informed me that he declined to address me without having legal representation, as matters were too complex for him to deal with. Notwithstanding that claim, after I heard from the Crown in relation to various matters, Mr Scott informed me that he did wish to be heard, and proceeded to make submissions in relation to aspects of his own application for consolidation of the trespass and bail breach matters with the Insolvency Act matters.
…
[10] Notwithstanding all of the above, Mr Scott has remained simply intransigent. Despite the Court having given him many opportunities to arrange representation, and providing him with unequivocal advice that the matter will proceed on the allocated date, he has not arranged for legal representation, and he has filed no submissions at all in respect of either his own applications, or in respect of the Crown application for admission of evidence made under s 101 of the Criminal Procedure Act 2011. And when asked, he declined to make any submission, although he later changed his mind.
[11] Against the background of that history, it is clear to me that Mr Scott has been engaged for a considerable period of time in what appears to be a deliberate attempt to frustrate the Court’s processes. His wilful failure to obey the Court’s directions in connection with the applications before the Court today, has led me to the conclusion that the interest of justice require that the applications be heard and determined without any further delay. His application for an adjournment of the hearing was refused, for the reasons outlined above.”
1 R v Scott [2017] NZDC 13648.
[10] Originally, in addition to the present charges, Mr Scott faced a charge or charges of assault on a child. Given the age of the complainant, Mr Scott was statutorily prohibited from cross-examining him or her. It appears it was for this reason that Mr Marchant was appointed counsel to assist the Court or amicus curiae.2
Judge Harding’s ruling refers to the assault trial and the very significant delays which accompanied it. As Judge Ingram later observed, these mostly if not exclusively, related to Mr Scott’s lack of legal representation despite being the beneficiary of numerous Legal Services reassignments, a factor which no doubt also influenced the Court’s decision to appoint Mr Marchant.
[11] In the course of argument before me Mr Scott advised that Legal Services had assigned some six or seven lawyers. According to Mr Scott each legal aid assignment was terminated on the grounds of conflict; apparently because the subject matter of the charges was so highly sensitive that either local counsel felt unable to act for reasons of conflict or Mr Scott considered them conflicted and terminated their assignment.
[12] For that reason counsel from outside Tauranga was then assigned. The circumstances of this assignment are recorded in a file note of Judge Rollo dated
8 September 2016. Mr Heaslip, barrister of Auckland, was assigned on the basis he was an experienced out of town legal aid lawyer prepared to represent Mr Scott on all of his charges. The Judge’s file note reads as follows:
“[5] The day commenced with an initial non appearance by Mr Scott, subsequently remedied when he was located by a constable and brought before the Court.
[6] In the interim, Mr Heaslip advised that he would be seeking leave to withdraw as counsel for Mr Scott, effectively before he had even started in Court!!
[7] The background was that Mr Scott refused to sign the standard engagement letter of legal aid obligations given to him by Mr Heaslip.
Mr Scott says this was because there should have been an initial consultation first with Mr Heaslip and then, that form signed by him if he was effectively
satisfied with the representation.
2 It appears that Judge Bidois initially directed the appointment of an amicus curiae on the assault on a child charge/s.
[8] Mr Heaslip referred to a pattern of correspondence he had had with Mr Scott, whom he had not met face-to-face until today in Court, seeking to answer Mr Scott’s concerns and to explain the legal aid requirement for the form to be signed, but Mr Scott steadfastly refused to do so and the inevitable result, perhaps, is that the fundamental requirement for trust between solicitor and client has been well lost.
[9] The outcome today is that I granted Mr Heaslip’s application for leave to withdraw, I have directed that Mr Marchant be appointed as amicus on the other two files (the Official Assignee prosecutions and the Whakatane trespass charges), subject to his agreement to do so, and I have directed that the trial on the assault on child matters is to proceed on 17 October 2016 (three day estimate) notwithstanding Mr Heaslip being granted leave to withdraw. Mr Marchant is apparently available for that scheduled trial.
[10] As I pointed out to Mr Scott, he has had significant opportunity to engage with legal aid counsel but gives the steadfast appearance of refusing to do so. This inevitably causes the essential relationship between solicitor and client to be breached at an early stage and it becomes inappropriate for that counsel to continue to act for or represent Mr Scott.
[11] I have advised Mr Scott that Mr Marchant is there to assist the Court, but that will involve him in discussions with Mr Scott. I have counselled Mr Scott that he needs to accept that the trials will take place and he should avail himself of the available legal aid that Mr Marchant might be able to give him as part of his role as amicus assisting the Court.
…”
[13] Mr Scott did not elaborate on the reasons he has terminated the appointments of previously assigned counsel other than to hint at serious allegations of misconduct within the local legal profession. There is no need for me to develop these issues further. I mention them only to provide the background to Mr Marchant's appointment by the Court.
[14] Although the terms of Mr Marchant's appointment are not set out in any of the material before me, it would appear that both the Court and Mr Marchant saw the role of amicus as effectively operating as Mr Scott's legal representative. Mr Marchant appeared as amicus at the assault trial. Mr Scott was acquitted by the jury on all charges.
[15] At the conclusion of the assault trial Judge Harding directed Mr Scott to file any pre-trial applications on the remaining charges. He made timetabling directions. Despite those orders Mr Scott failed to comply. Mr Marchant advised the Court that he had prepared various pre-trial applications and submissions but Mr Scott refused to
permit him to file them. Instead, Mr Scott was insistent he wished to be heard "ex parte". He submitted that if this request was declined his “Bill of Rights” would be breached. There does not appear to be a record of how or in what way Mr Scott claimed his rights would be breached but for reasons set out later in this judgment I have assumed this was his right to counsel. He refused to proceed otherwise. It seems that sitting at the heart of his complaint was a concern that if forced to proceed in the presence of the Crown he would be obliged to disclose his defence. The Judge recorded Mr Marchant as observing that in his view Mr Scott had a good defence.
[16] It would appear that despite Mr Marchant's assistance in securing acquittals on the assault charges Mr Scott remained suspicious of him. In Mr Scott's view
Mr Marchant was seriously conflicted because of his connections with the Crown Solicitor’s firm in Tauranga; he understood that Mr Marchant had been instructed by that firm on other matters.
[17] Mr Scott asked the Court to replace Mr Marchant with another amicus and enter a stay to prohibit the Crown from proceeding.
[18] The Crown indicated a preference for an amicus to be retained. The Judge recorded that this stance reflected the Crown’s frustration, born of experience over an extended period, of Mr Scott's reluctance to engage in the Court process.
[19] In refusing to appoint an amicus curiae for the remaining charges the Judge listed four reasons:
(a) the remaining charges did not involve a prohibition on Mr Scott cross- examining witnesses;
(b) Mr Scott had demonstrated a determination not to co-operate with
Mr Marchant despite the purpose of the appointment being to assist Mr
Scott;
(c) there was no apparent reason why the public purse should continue to meet the costs of Mr Marchant whose advice appeared to have been
ignored and whose involvement had not had the effect of enabling matters to progress forward; and
(d)the role of amicus curiae is generally to assist the Court. Mr Scott no longer sought the assistance of Mr Marchant. It was inappropriate that further public funds were expended.
[20] Judge Harding concluded his ruling by observing that although he was granting Mr Scott a further adjournment in order to prepare his pre-trial arguments he must, in future, comply with the Court orders and that further adjournments would no longer be tolerated.
The appeal
[21] Mr Scott appeals Judge Harding’s rulings in respect of the removal of the amicus curiae and the refusal to hear Mr Scott’s arguments regarding legal representation on an “ex parte” basis.
[22] In his Notice of Appeal Mr Scott expanded his grounds as follows:
“Judge Harding made a decision to remove legal assistance in the form of an amicus curiae after refusing to hear arguments on an ex parte basis. This was despite these arguments necessarily disclosing the underlying defence. This involves fraud and misconduct by local lawyers (as well as others) which has been confirmed by the amicus as extremely serious. It represents a breach of the Bill of Rights right to legal assistance.”
[23] The notice of appeal also refers to a “stay pending appeal attached”. Despite a search of the file, no such application has been located although I note Judge Ingram in his later ruling of 26 June 2017 dismissed an application for a stay made by Mr Scott.
[24] Mr Scott has not filed written submissions, despite a reference in his notice to further submissions being made once representation was obtained. He remains unrepresented.
Issues on appeal
[25] This appeal engages the following questions:
(a) What are the reasons for the delay in filing the appeal late and what merit, if any, does the appeal appear to have?
(b)Is there jurisdiction for this Court to determine the appeal in respect of any charges?
(c) If there is jurisdiction, did the Judge err in disengaging the appointment of amicus curiae?
(d)Did the Judge err in not hearing submissions on legal representation on an “ex parte” basis?
(e) Should a stay of proceedings be granted?
(f) Should I recuse myself?
[26] Before considering the merits of the appeal, I shall first consider whether this Court has jurisdiction and, if so, the extent of that jurisdiction. I shall then consider the merits of the appeal because the resolution of that issue is relevant to the final question of whether leave to appeal out of time should be granted.
What are the reasons for the delay in filing the appeal late and what merit, if any, does the appeal appear to have?
[27] Mr Scott’s notice of appeal was filed out of time. A notice of a first appeal is required to be filed within 20 working days after the date of the decision to which the appeal relates.3 Judge Harding’s decision was delivered on 5 May 2017. The appeal was required to be filed no later than 2 June 2017. Mr Scott’s notice of appeal was filed in this Court on 6 June 2017. The observance of the Queen’s Birthday fell on
5 June 2017 which means that Mr Scott’s appeal was filed a day late.
[28] Rule 8.5 of the Criminal Procedure Rules 2012 provides that a notice of appeal which is given out of time must be treated as if it contains an application for extension of time. In R v Knight,4 which pre-dates the Criminal Procedure Act 2011 (“the CPA”) but remains applicable, the Court of Appeal observed that the “touchstone” for granting an application to extend time is the interests of justice in the particular case. This requires an assessment of the interests of wider society in the finality of decisions, balanced against the interests of the individual applicant.5 Factors to be considered include:6
“… The strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.”
[29] More recently, the Court of Appeal has commented that extension of time applications will invariably be reduced to two questions:
(a) Why the appeal was filed late?; and
(b) What merit, if any, the prospective appeal point appears to have?7
[30] In the present case the delay in filing the appeal is minimal. There can be no prejudice to the Crown and apart from the public policy reasons identified in Knight the real focus in the present case must be on whether the appeal has any merit.
[31] For the reasons discussed fully below I am of the view that the appeal is wholly lacking in merit. Furthermore, Mr Scott’s refusal to engage in the Court process and his refusal or failure to comply with Court-ordered timetabling directions is such that no latitude should be extended to him, particularly where the grounds of appeal are so
lacking in merit.
4 R v Knight [1998] 1 NZLR 583 (CA).
5 At 587.
6 At 589.
7 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].
[32] Accordingly leave to appeal out of time is refused. However, if I am wrong I now turn to consider the question of whether there is jurisdiction to entertain this appeal before moving to consider the grounds and other issues raised by Mr Scott.
Is there jurisdiction to determine this appeal?
[33] Mr Scott’s appeal relates to Judge Harding’s decisions on 5 May 2017. Curiously the notice of appeal states that the challenge relates to the admissibility of evidence at trial. However, neither of Mr Scott’s grounds of appeal involves a challenge to the admissibility of evidence. The matters which Mr Scott seeks to appeal are the removal of the amicus curiae and the refusal to convene a hearing on an ex parte basis.
[34] As far as I can see the only orders involving admissibility of evidence were made on 26 June 2017 when Judge Ingram dismissed Mr Scott’s application for joinder and a stay. He granted a Crown application under s 101 of the CPA for the admission of propensity evidence.
[35] I have determined there is no jurisdiction for this Court to hear Mr Scott’s appeal in respect of the Insolvency Act charges and for different reasons I have also determined that the appeal in respect of the trespass and Bail Act charges cannot succeed, also for reasons of jurisdiction. I shall deal with the Insolvency Act charges first.
[36] As previously noted there is some level of uncertainty around whether, in fact, Mr Scott elected trial by jury. Following the completion of the hearing I received a further memorandum from Mr Jenson, counsel for the Crown.8 Mr Jenson advised that on 24 July 2017 he received an email from the District Court Registry indicating that a search of the Court file had revealed no record of Mr Scott ever having elected trial by jury on the Insolvency Act charges. As a result, the Crown undertook a search of its own file and in particular, examined its record of the various appearances counsel had made on the matter. Nowhere is there a reference to the entry of an election by Mr Scott.
[37] More particularly, pleas of not guilty were entered on the Insolvency Act charges on 8 March 2016 and a case review was completed on 14 February 2017 when the Court made directions for the filing of formal statements and scheduled a trial callover. These steps are only applicable to matters which are proceeding by way of jury trial.
[38] In his submissions at the hearing Mr Jenson proceeded on the basis that the Insolvency Act charges would proceed by way of trial by jury. Certainly, Mr Scott made no suggestion that was not the case. Furthermore, it would appear that Judges Rollo and Ingram both dealt with this matter in a procedural fashion consistent with trial by jury.
[39] Thus, Mr Jenson submits, and the Crown maintains, that despite any formal documentary confirmation this matter is a jury trial.
[40] In any event, for reasons which will follow, for present purposes any distinction between a Judge-alone trial and a jury trial is otiose.
[41] For the purpose of this judgment I shall first deal with the Insolvency Act charges as if an election for trial by jury had been entered. I shall then consider the position on the basis that no election has been made and the charges will be determined by a Judge alone.
Insolvency charges
[42] Assuming the Insolvency Act charges are to be determined at a jury trial, s 219 of the CPA defines the jurisdiction for first appeal Courts in respect of pre-trial decisions. This provision makes it plain that where the appeal is against a decision of the District Court in respect of a Category 3 offence after the defendant has elected trial by jury, the first appeal court is the Court of Appeal.
[43] Section 219 provides:
“219 First appeal courts
The first appeal court for an appeal under this subpart is—
(a) the District Court presided over by a District Court Judge, if the appeal is against a decision of the District Court presided over by 1 or more Community Magistrates or 1 or more Justices of the Peace; or
(b) the High Court, if the appeal is against a decision of the District Court presided over by a District Court Judge, other than a decision—
(i) made in proceedings for a category 3 offence after the defendant elected a jury trial; or
(ii) made in proceedings for a category 4 offence; or
(c) either the Court of Appeal or the Supreme Court, in any other case.”
[44] The Insolvency Act charges are Category 3 offences and the pre-trial matters were heard and determined after Mr Scott elected trial by jury. As a consequence of the effect of s 219, the High Court has no jurisdiction. Any appeal must be heard in the Court of Appeal. The position is no different if the Insolvency Act charges are to be determined at a Judge-alone trial.
Judge-alone charges
[45] If the Insolvency Act charges and the other remaining charges are to be heard in the District Court by a Judge-alone, the Act limits appeals on pre-trial rulings to certain, specified, evidential matters. These are contained in ss 215, 217 and 218 of the Act. Section 215 provides:
“215 Right of appeal by prosecutor or defendant against certain pre- trial evidential decisions in Judge-alone case
(1) This section applies if a court makes a decision specified in subsection (2) in proceedings to be tried by Judge-alone trial procedure.
(2) The defendant or the prosecutor may, with the leave of the first appeal court, appeal to that court against a decision that is one of the following:
(a) making or refusing to make an order under section 79 (as to admissibility of evidence):
(b) granting or refusing to grant permission under section
44 of the Evidence Act 2006 (which relates to the cross-examination of a complainant):
(c) giving or refusing to give leave on an application under section 109(1)(d) of the Evidence Act 2006 (which relates to the identity of a witness):
(d) making or refusing to make a witness anonymity order under section 112 of the Evidence Act 2006.”
[46] None of Mr Scott’s challenges relate to pre-trial evidential determinations, let alone the limited evidential matters contained in s 215(2). As such, any appeal may only proceed after the charges have been determined at trial.
[47] Similarly, ss 217 and 218 refer to specified pre-trial decisions in Judge-alone cases which may be appealed with the leave of the first appeal Court. None is available in the present case.
[48] Thus, albeit on a different basis, this Court has no jurisdiction, at this stage of the proceedings, to deal with Mr Scott’s appeal in respect of any charges.
Did the Judge err in disengaging the appointment of an amicus curiae?
[49] I have determined that there is no jurisdiction to entertain this appeal. However, if I am wrong I now turn to consider whether Judge Harding erred in removing or rescinding the appointment of an amicus curiae.
[50] I recently considered this issue in Erwood v Holmes.9 In that case Mr Erwood reviewed the decision of an Associate Judge of this Court not to appoint counsel assisting in respect of civil proceedings where he was the plaintiff. He was not legally represented and had not applied for civil legal aid. He sought the appointment of an amicus to assist him in the preparation and filing of documents and the presentation
of submissions.
9 Erwood v Holmes [2017] NZHC 1278.
[51] In determining that the Associate Judge had not erred, I reviewed the case law and the role of an amicus curiae or more correctly, counsel assisting the Court. In doing so, I noted that amicus curiae translates literally to “friend of the Court” and referred to the description of the traditional role offered by Fergusson J in the 1957 case of Grice v R:10
“Amicus curiae … is one who as a bystander, where a Judge is doubtful or mistaken in a matter of law, may inform the Court. In its ordinary use the term implies the friendly intervention of counsel to remind the Court that some matter of law which has escaped its notice and in regard of which it is in danger of going wrong.”
[52] This definition, while helpful in setting the historical and traditional jurisprudential background, reflects a narrower view of the role, than more modern case law would suggest.
[53] I accept that the role of counsel assisting in more recent times may often involve counsel undertaking a more adversarial role. It is not uncommon for counsel assisting to be appointed to fulfil a partisan role.11 On occasions, the Court may benefit from partisan arguments of counsel assisting because those arguments operate as contradictors to the opponent’s submissions. This may help the Court, including a jury, to arrive at the correct result in a way consistent with our adversarial system of justice. Indeed, the Court of Appeal has observed where counsel assisting is appointed in a criminal case it is accepted that he or she may act in a partisan way, in the sense that he or she may present the arguments that party would normally present.12
[54] More recently, the Court of Appeal has observed:
“What is true of all amici, however, is that they are not parties. They are appointed at the discretion of the Court and the extent to which they may file documents and present legal argument is at the discretion of the Court.”
[55] A common theme which runs through all authorities on this question is that the
Court’s jurisdiction to appoint counsel assisting is discretionary. The appointment of counsel assisting is entirely at the Court’s discretion. As I noted in Erwood:13
10 Grice v R (1957) 11 DLR (2d) 699 at 702.
11 Solicitor-General v Alice [2007] 1 NZLR 655 (CA).
12 R v McFarland [2007] NZCA 449 at [55].
“The power to appoint counsel to assist is grounded in the Court’s inherent jurisdiction although that principle needs to be considered in conjunction with the Rules which permit the Court to make certain directions in relation to representation in specified classes of persons or the public interests. Rule
10.22 requires the Solicitor-General to appoint counsel to assist the Court where the Court so directs.”
[56] This notion was expanded upon by Brennan CJ in Levy v Victoria:14
“The hearing of an amicus curiae is entirely in the Court’s discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that the person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.”
[57] In Erwood I observed:15
“Bearing in mind these observations and the underlying purpose of appointing counsel to assist, care should be taken not to encourage the role of counsel
assisting the Court to become a parallel de facto legal aid system.”
[58] As the Court of Appeal in R v Hill commented, citing an Australian criminal law text:16
“Permission to appear as an amicus curiae is ‘entirely in the Court’s discretion’, and should only be granted if an applicant demonstrates that ‘the parties whose cause [he or she] would support are unable or unwilling to protect their own interests or to assist the Court in arriving at the correct determination of the case.’
An amicus curiae neither acts as the legal representative of an unrepresented accused person nor otherwise appears as his or her personal representative.”
[59] The Court will only overturn an exercise of discretion where it is apparent the Judge has made an error of the Wednesbury sort, namely erred in law, taken into account an irrelevant factor, failed to take into account a relevant factor or was plainly wrong. However, the role of counsel assisting is to assist the Court rather than appear as a personal representative for the unrepresented. As earlier stated the appointment of counsel assisting should not operate as a parallel legal aid system or as an alternative
to legal aid.
14 Levy v Victoria [1997] HCA 31, (1997) 189 CLR 579 at 604.
15 At [36].
16 R v Hill [2004] 2 NZLR 145 (CA) at [58] citing The Laws of Australia, Criminal Procedure at
[11.9].
[60] It is plain that Judge Harding took these relevant factors into account. The primary purpose of the appointment of counsel assisting in the present case was to facilitate the cross-examination of a young complainant. Once that task had been completed Judge Harding determined the Court would no longer be assisted by
Mr Marchant or any other appointee. That was an entirely understandable and principled course which was well within the discretion of the Judge to make.
[61] Mr Scott calls in aid the New Zealand Bill of Rights Act 1990 (“NZBORA”). Although he does not specify which provision he relies on I have assumed for the purposes of this appeal that it is s 23(1)(b), namely the right of everyone who is arrested or is detained under any enactment to consult and instruct a lawyer.
[62] This ground must fail for at least two reasons.
[63] First, Mr Scott’s access to a lawyer has been facilitated. As the observations of the various District Court Judges referred to above disclose, Mr Scott has been indulged by Legal Services. Even when he made his complaint that out of town counsel was required that request was met with the appointment of Mr Heaslip.
Mr Heaslip’s engagement was peremptorily terminated when Mr Scott apparently refused to sign the standard engagement letter. That Mr Scott now finds himself unrepresented is a circumstance which he has brought upon himself entirely.
[64] Secondly, the right to counsel under s 23(1)(b) has no application in respect of a Court’s refusal to appoint counsel to assist. With Mr Scott plainly obstructing Mr Marchant’s ability to assist the Court when he refused to allow Mr Marchant to file documents and, it seems, present submissions, it was perfectly reasonble for Judge Harding to determine that no further appointment should be made. This decision did not interfere with Mr Scott’s right to counsel.
[65] Thirdly, there are strong public policy considerations engaged. As I observed in Erwood:17
“It must not be overlooked that counsel assisting are financed out of the public purse. Often there is a public interest in particular litigation which justifies
the public expense associated with the appointment of counsel assisting. Where, however, the purpose of the appointment is primarily to streamline the case of a self represented litigant in private litigation, the Court rightly hesitates before making such an appointment. That is particularly so when the litigant in question has, in the past, continued to behave in an obdurate way despite the appointment of counsel assisting.”
[66] While those observations were made in the context of a civil case, they resonate
in the present instance. I can see no reason in principle, particularly having regard to the background in this case, why they would not have equal application in the criminal jurisdiction. Indeed, as Judge Harding observed:18
“There is no apparent reason why the public purse should continue to meet the costs of Mr Marchant whose advice appears to [be] ignored and whose involvement is not having the effect of enabling matters to progress.”
[67] For these reasons I am not satisfied that in discontinuing the appointment of counsel assisting Judge Harding made a reversible error in the exercise of his discretion. Even if I had jurisdiction to entertain the appeal, this ground would have failed.
Did the Judge err in not hearing submissions on legal representation on “an ex parte” basis?
[68] Mr Scott’s notice of appeal records that he appeals against Judge Harding’s “…
refusal to hear arguments regarding legal representation on an ex parte basis”.
[69] Judge Harding’s ruling records only that Mr Scott insisted he wished to be heard on an ex parte basis and that the failure to do so would result in his Bill of Rights being breached.
[70] It would thus seem that Mr Scott’s complaint is that the Judge, in refusing to hear his submissions on an ex parte basis, must have breached Mr Scott’s right to a lawyer.
[71] Section 58 of the CPA permits the Court to depart from its standard case management procedure and give such other directions if the Court is of the view that
such a course would facilitate resolution of the proceeding or is otherwise in the interests of justice. Such an application may be made on the Court’s own motion or on the application of either of the parties.
[72] Thus, on a broad interpretation of s 58 it may have provided the basis for Judge Harding to have convened a conference with Mr Scott in the absence of the Crown or anyone else.
[73] However, such a course is inherently discretionary with the power only being exercised if the Court considers such a course would facilitate the resolution of the proceedings or is otherwise in the interests of justice.
[74] For the same reasons I have already discussed I cannot see how Judge Harding’s decision not to agree to such a course amounts to reversible error in the exercise of his discretion. Given Mr Scott’s chronically obdurate stance such a conference would have been most unlikely to facilitate any resolution. Neither can I see that such a course would have been in the interests of justice.
[75] Any examination of Judge Harding’s decision must be viewed in context. He was faced with a defendant who had consistently and repeatedly revoked the assignment of all the lawyers Legal Services had previously assigned to him. Any complaint that all local counsel were necessarily conflicted does not bear scrutiny when the circumstances of his refusal to co-operate with Mr Heaslip are taken into account. Furthermore, it is evident that Mr Scott has consistently refused to engage with the Court process or respect the various timetabling directions designed to facilitate the progress of the proceedings.
[76] I am also satisfied for the reasons discussed above that Judge Harding’s decision did not deny Mr Scott his right under s 23(1)(b) of NZBORA.
[77] Finally, in not hearing Mr Scott on an ex parte basis, Mr Scott’s right not to disclose his defence was preserved.
[78] Thus, even if jurisdiction to hear the appeal existed, this ground of appeal would also have failed.
Should a stay of proceedings be ordered?
[79] For the sake of completeness, I am also satisfied there is no basis on which to grant Mr Scott’s application for a stay.
[80] Mr Scott’s notice of appeal makes reference to “ NB Stay Pending Appeal attached”. Despite this a search of the file was not able to locate any such application. However, I am prepared to deal with this application as if it had been filed.
[81] In his submissions before me Mr Scott did not develop his reasons for seeking a stay nor did he elaborate on the grounds on which he relies. However, it seems likely that his principal concern is his lack of legal representation.
[82] Mr Scott made an unsuccessful application for a stay before Judge Ingram on
23 June 2017. There, Judge Ingram described the application in the following terms:
“[12] Mr Scott’s first application is for a stay of proceedings, on the grounds that the proceedings constitute an abuse of the Court process, and to ‘… protect the defendant from being prosecuted in circumstances where it would be seriously unjust to do so …’.
[13] In the absence of any supporting material or submissions, it is simply impossible for me to divine any proper basis upon which that application could conceivably be granted. …
[14] I cannot conceive of any ground upon which it could be concluded that the proceedings constitute an abuse of the process of the Court. Further, if there is injustice in this case, it lies in the delay in getting the matter to trial, delay which has been a direct result of Mr Scott’s wilful failure to comply with this Court’s directions to file and serve required documents and supporting materials, and his blank refusal to instruct the many counsel appointed to advise and represent him, or otherwise co-operate with advancing the matter to trial. There is no injustice in requiring Mr Scott to face his trial on these charges. For those reasons, his application for a stay is refused.”
[83] Similarly, there is nothing before me which persuades me that a stay of proceedings should be granted. Various judicial officers in the District Court have expressed their frustration that the resolution of these outstanding matters has languished and that almost without exception it would appear that Mr Scott’s conduct
has been the root cause. On the material before me I can see no principled reason to depart from those views.
[84] Mr Scott’s application for a stay is refused.
Should I recuse myself?
[85] In the course of argument before me, I advised Mr Scott that Mr Marchant was a former partner of mine and a personal friend. Although Mr Scott reserved his position, he has since advised that he now seeks my recusal on the basis that:
“... a reasonable person would see [I have] a serious conflict of interest.”
[86] The general rule is that a Judge should only recuse himself or herself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.19 The standard for recusal is one of “real and not remote possibility”.20
[87] The test is bicephalous. The Judge must consider:21
(a) first, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the Judge might decide the case other than on its merits; and
(b)second, whether there is a “logical and sufficient connection between those circumstances and that apprehension”.
[88] Mr Scott’s request for recusal appears to allege a species of apparent bias, which arises where a decision-maker has some other personal or professional relationship with a party or witness, or a prejudice against or preference towards a
particular party or result, or a predisposition leading to a predetermination of the
19 Clause 1.2 of the Recusal Guidelines issued by the Chief High Court Judge pursuant to s 171(1)
of the Senior Courts Act 2016.
20 Clause 1.3.
21 Clause 1.4
issues. The Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment
Company Ltd (“Saxmere”) stated the test for apparent bias as being whether:22
“[3] … a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide …"
[89] The Supreme Court also outlined the characteristics of the fair-minded lay observer:
“[5] The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias.”
[90] With reference to these principles, I am not prepared to recuse myself for the following reasons:
(a) The subject matter of this appeal is not related to any issues involving
Mr Marchant’s conduct whether personal or professional.
(b)The central issue advanced by Mr Scott on this appeal is whether the services of counsel assisting were required in respect of the Insolvency Act charges and the Judge alone charges.
(c) Who the Court elects to appoint is a matter for the Court and not the parties although it is not uncommon for the Court to seek input from the parties as to who might be a suitable appointee. Conversely, it is not uncommon for the Court to appoint counsel to a partisan role where the party whose interests the appointment is to protect may actively oppose the appointment. This most frequently occurs in criminal trials where, on the eve of its commencement, the defendant dispenses with
the services of counsel. In those circumstances the Court will often
22 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1
NZLR 35. Tipping and McGrath JJ repeated the test at paragraphs [37] and [89] respectively. See also Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC
122, [2010] 1 NZLR 76 at [4].
appoint that counsel as counsel to assist the Court, frequently in the face of opposition from the defendant. Mr Scott therefore has no legal right to the services of counsel assisting and any connection I might have with Mr Marchant is not a matter which affects his rights.
(d)Mr Scott “blew hot and cold” on the question of Mr Marchant’s involvement. On the one hand, he expressed deep suspicion at
Mr Marchant’s possible connection with the Crown Solicitor’s office at Tauranga while, on the other, in his submissions to me, he relied heavily on Mr Marchant’s reputation as a senior and experienced Crown prosecutor to persuade me that apparently Mr Marchant shared Mr Scott’s views on various collateral issues arising out these proceedings, including representation. For that reason Mr Scott’s request may be viewed as yet another tactic designed to delay or frustrate the progress of these proceedings. That he took some days to give notice of this application reinforces that view.
[91] I am far from persuaded the fair-minded lay observer would reasonably apprehend that I might not bring an impartial mind to resolving the question of whether the Judge was correct to disengage Mr Marchant as counsel assisting the Court. There is simply no logical and sufficient connection between this legal issue and my relationship with Mr Marchant.
Result
[92] The appeal is dismissed.
Moore J
Solicitors:
Crown Solicitor, Tauranga
Copy to:
The Appellant
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