Sione Fehoko Makanesi v The Queen

IN THE SUPREME COURT OF NEW ZEALAND

SC 63/2015
[2015] NZSC 137

BETWEEN	SIONE FEHOKO MAKANESI Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	Applicant in person J E L Carruthers for Respondent
Judgment:	21 September 2015

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

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REASONS

The applicant, Mr Makanesi, was found guilty of supplying methamphetamine, possessing methamphetamine for supply and supplying a precursor substance at a jury trial in the Auckland District Court and was sentenced to 11 years imprisonment, with a minimum period of imprisonment of five years, six months.[1] Although he filed an appeal against both conviction and sentence, Mr Makanesi abandoned his conviction appeal through counsel and proceeded only with the appeal against sentence. That appeal was unsuccessful.[2] Mr Makanesi now seeks leave to appeal to this Court against his convictions and his sentence.
[1]R v Makanesi DC Auckland CRI-2011-004-19490, 5 December 2013.
[2]Makanesi v R [2015] NZCA 134.
In relation to his proposed conviction appeal, Mr Makanesi indicated in his application for leave to appeal that he wished to raise the issue of the competence of his appellate counsel. However, he has subsequently indicated that he wishes to raise additional issues, including severance, competence of trial counsel, admissibility of evidence led by the Crown, fresh evidence and the conduct of the jury. Mr Makanesi has not provided any detail or background to these grounds.
In the Court of Appeal, counsel for Mr Makanesi filed a memorandum dated 10 November 2014 advising that he had become involved as counsel after the notice of appeal was filed and that he had considered the file and discussed the position with Mr Makanesi. However, he did not at that point have clear instructions. Subsequently, on 17 March 2015, counsel filed a further memorandum advising that he now had clear instructions from Mr Makanesi, which were that he wished to abandon his conviction appeal and proceed only with the sentence appeal. This is what then happened.
Because Mr Makanesi abandoned his conviction appeal, none of the matters which he wishes to raise on appeal to this Court has been addressed by the Court of Appeal. If Mr Makanesi wishes to pursue an appeal against his convictions, the appropriate course is that he applies to the Court of Appeal for leave to withdraw his notice of abandonment and reinstate his appeal. We understand that Mr Makanesi made such an application on 27 August 2015.
In relation to the sentence appeal, it raises no point of principle, nor does there appear to be any risk of a substantial miscarriage of justice.
For these reasons, the application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Sione Fehoko Makanesi sought leave to appeal to the Supreme Court of New Zealand against both his conviction and sentence for drug-related offences. The case arose from a trial in the Auckland District Court where Makanesi was found guilty of supplying methamphetamine, possessing methamphetamine for supply, and supplying a precursor substance. He was sentenced to 11 years imprisonment, with a minimum period of five years and six months. Makanesi initially filed an appeal against both conviction and sentence but later abandoned the conviction appeal and proceeded only with the sentence appeal, which was unsuccessful. In his application to the Supreme Court, Makanesi indicated a desire to raise various issues related to his conviction appeal, including the competence of his appellate counsel, severance, the competence of trial counsel, admissibility of evidence, fresh evidence, and jury conduct. However, these issues had not been addressed by the Court of Appeal since Makanesi had abandoned his conviction appeal.

The legal issues before the Supreme Court were whether Makanesi should be granted leave to appeal against his convictions and sentence. The court examined whether the proposed grounds for appeal against the conviction raised points of principle or the risk of a substantial miscarriage of justice, and whether the sentence appeal raised similar concerns. The Supreme Court found that since Makanesi had abandoned his conviction appeal, none of the proposed grounds for that appeal had been addressed by the Court of Appeal. Therefore, if Makanesi wished to pursue an appeal against his convictions, he should apply to the Court of Appeal to withdraw his notice of abandonment and reinstate his appeal. Regarding the sentence appeal, the Supreme Court determined that it did not raise any point of principle or risk of a substantial miscarriage of justice.

The Supreme Court dismissed Makanesi's application for leave to appeal. The Court concluded that none of the grounds for appeal against the conviction had been considered by the Court of Appeal due to the abandonment of the conviction appeal. For the sentence appeal, the Court found that it did not warrant further consideration as it did not present a point of principle or a significant risk of a miscarriage of justice. The Court suggested that Makanesi should apply to the Court of Appeal to reinstate his conviction appeal if he wished to pursue that course.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established