Solicitor-General's Reference (no 1 of 2016)
[2016] NZCA 76
•17 March 2016 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA663/2015 [2016] NZCA 76 |
| IN THE MATTER OF | SOLICITOR-GENERAL’S REFERENCE (NO 1 OF 2016) FROM CRI‑2015‑485‑52, HIGH COURT AT CHRISTCHURCH |
| Court: | Ellen France P, Miller and Winkelmann JJ |
Counsel: | Z R Johnston for Applicant |
Judgment: (On the papers) | 17 March 2016 at 11.30 am |
JUDGMENT OF THE COURT
ALeave is granted to the Solicitor-General to refer the following questions of law to this Court:
(a)Was the High Court correct to conclude that the requirements of s 90 Land Transport Act 1998 had not been met in this case?
(b)If the requirements of s 90(1) were not met under the Land Transport Act 1998 was the correct remedy the quashing of the defendant’s conviction?
BThe registry is to appoint counsel to assist the Court with respect to this reference.
COnce counsel to assist is appointed the registry is directed to arrange a telephone conference for case management purposes.
DA notice is to be sent to Mr Miller advising that a determination of the reference will not affect the quashing of his conviction in the High Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France P, Miller and Winkelmann JJ)
This is the first application by the Solicitor-General under s 313 of the Criminal Procedure Act 2011 for leave to refer a question of law to this Court.
The question the Solicitor-General seeks to refer arises from the determination of Mr Miller’s appeal to the High Court against conviction for driving while suspended. Williams J found that demerit point suspension notices under s 90 of the Land Transport Act 1998 had not been validly given. The Judge found that although an enforcement officer may serve the notice on a driver, it is the New Zealand Transport Agency’s non-delegable role under s 90 to generate the notice. Here the police both generated and served the relevant notice. The Judge accordingly quashed Mr Miller’s conviction for driving while suspended.[1]
[1]New Zealand Police v Haunui [2015] NZHC 2456 at [49].
Although an appeal by the police in relation to another defendant was determined at the same time, the questions the Solicitor-General seeks to refer relate only to the resolution of Mr Miller’s appeal. The questions of law are as follows:
(a)Was the High Court correct to conclude that the requirements of s 90 Land Transport Act 1998 had not been met in this case?
(b)If the requirements of s 90(1) were not met under the Land Transport Act 1998 was the correct remedy the quashing of the defendant’s conviction?
The Solicitor-General contends that clarification is needed in this area of the law. The same procedure for service of demerit point suspension notices has been used by the police regularly since 2011. There are at least 30 prosecutions for driving while suspended before the District Court awaiting determination of this issue.
If leave is granted the Solicitor-General will argue that a purposive interpretation is available which would allow the police to generate the notice from information provided by the New Zealand Transport Agency. Further, s 379 of the Criminal Procedure Act provides that no process or proceeding may be held invalid by any court by reason only of a defect, irregularity, omission or want of form, unless the court is satisfied there is a miscarriage of justice. In circumstances where Mr Miller received notice of the necessary information from the enforcement officer, no prejudice was caused by the irregularity and the validity of the notice should have been upheld.
Section 313 of the Criminal Procedure Act provides:
313 Solicitor-General may refer certain questions to Court of Appeal
(1)The Solicitor-General may, with the leave of the Court of Appeal, refer a question of law to that court under this subsection if—
(a)the question arose in or in relation to a trial of a person in a District Court or the High Court for an offence (the criminal proceeding); and
(b)the criminal proceeding in the District Court or High Court has ended, whether because the person tried for the offence has been acquitted or convicted, the charge has been dismissed, or the proceeding has been stayed or otherwise brought to an end.
(2) The fact that an appeal against conviction or sentence has been filed does not prevent the Solicitor-General referring a question to that court under subsection (1).
(3) The Solicitor-General may, with the leave of the Court of Appeal, refer a question of law to that court under this subsection if—
(a) the question of law arose in or in relation to a defendant’s first appeal against conviction or sentence; and
(b) the High Court was the first appeal court and it allowed the appeal, and the prosecutor has no right of appeal against that court’s determination.
Also relevant is s 314 which provides:
314 Procedure for references under section 313
(1) An application for leave under section 313(1) must be made within 60 working days after the day on which the criminal proceeding ended.
(2) An application for leave under section 313(3) - DLM3865786 must be made within 60 working days after the date of the determination by the High Court.
(3) The Court of Appeal may, at any time, extend the time allowed for filing the application for leave.
(4) The Court of Appeal must, if it gives leave under section 313,—
(a) appoint counsel to assist the court; and
(b)deal with the reference by way of a hearing involving oral submissions; and
(c) determine the question referred.
(5) For the purpose of section 99A of the Judicature Act 1908, a hearing of a reference under section 313 must be treated as an appeal.
(6) The Court of Appeal’s determination of a reference under section 313 does not affect anything done in any proceeding to which the reference relates by another court before the date of that determination.
Some preliminary procedural matters
Intituling
Because this is the first application for leave under s 313 some preliminary matters arise. The Solicitor-General named Mr Miller in the intituling for this application. Mr Miller should not have been included in the intituling as he is not a party to the proceeding. The determination of the reference will not affect the outcome in the High Court for Mr Miller.
The notice of application for leave form is contained in form 8 of the Court of Appeal (Criminal) Rules 2001. Having regard to the requirements of form 8, the intituling for the application for leave should contain the following:
(a)space for this Court’s CA number to be entered;
(b)the matter should read “Solicitor-General’s Reference from [lower court numeric citation, District/High Court at ______________]”;
(c)the waistband should read “Notice of application for leave to refer a question of law by Solicitor‑General pursuant to [either s 313(1) or s 313(3)] of the Criminal Procedure Act 2011]” together with the date; and
(d)at the foot, contact information for the relevant person.
Procedure for determining applications for leave
The next issue that arises is how this Court should deal with the application for leave. In terms of the rules, the Court may determine applications for leave on the papers or by way of oral submissions at a hearing.[2] We envisage that most leave applications will be able to be dealt with on the papers since there is no other party involved in the proceeding. However, as the rules contemplate, we do not exclude the possibility that special circumstances will in some cases render an oral leave hearing appropriate.
Criteria for leave
[2]Court of Appeal (Criminal) Rules 2001, r 32A(3).
The Solicitor-General’s application in the present case complies with the s 313(3) requirement that the questions in respect to which leave is sought are both questions of law. Section 313(3)(b) is also satisfied in this case because the High Court allowed the appeal and the prosecutor has no right of appeal against that Court’s determination.
Section 313(3)(a) further requires that the questions must “arise in or in relation to” the defendant’s first appeal against conviction. The first question clearly did arise in the High Court appeal. It is acknowledged by the Crown that the possible application of s 379 was not considered in the High Court because it was not argued before the Judge. Nevertheless, the Solicitor-General argues that a remedy, the “quashing of the conviction”, was given in the appeal, and the question of whether that remedy is appropriate can properly be categorised as a question of law arising “in relation to” that appeal.
Section 379 should have been drawn to the attention of the Judge and argued before him. It was not. Nevertheless, we consider it can properly be categorised as an issue that arose “in relation to” the appeal.
In addition to what are essentially factual criteria set out in s 313(1)(a) and (b) and s 313(3)(a) and (b), we consider that additional criteria for leave emerge from the statutory scheme. Since the outcome of the case stated can have no impact upon the proceeding out of which the question arises, the question of law must also be one that has significance beyond the facts of the case.
We note that the procedure in the Criminal Procedure Act is modelled on the Attorney-General’s reference procedure in England and Wales. The discussion document released by the Ministry of Justice and the Law Commission in relation to the proposed Solicitor-General’s reference procedure describes Attorney-General references as follows:[3]
12.The Attorney-General’s reference procedure in England and Wales was introduced by the Criminal Justice Act 1972 and first used in 1975. In a frequently cited decision, Attorney-General’s reference (No.1 of 1975) [1975] 1 Q.B. 773 at 778 Lord Wigery CJ described the purpose of the power: “to enable the Attorney-General to obtain a ruling on a point of law which is not capable of being investigated by the normal appellate procedure because the case in which the point of law arose resulted in an acquittal”.
13.Lord Wigery CJ further commented that the power should not be used only for “very heavy questions of law” but should on the contrary be “used extensively for short but important points which require a quick ruling of this court before a potentially false decision of law has too wide a circulation in the courts” (at 778).
[3]Ministry of Justice and Law Commission Attorney-General’s references for New Zealand? (July
2009).
A second criteria in this category is that the question of law must raise an issue capable of bona fide and serious argument. If the point of law sought to be argued has no merit, it can have no significance for the broader criminal law.
We recognise that the reference procedure may not however be appropriate where the decision in the lower court is clearly in error, such as where it is made in ignorance of, or is inconsistent with, a clear existing and binding authority.
This Case
In this case we are satisfied that leave should be granted on both questions. The proposed reference raises issues capable of bona fide and serious argument. Both issues have significance beyond the facts of Mr Miller’s case with around 30 cases currently held up pending determination of the issues. Determination of the issues will also have an impact upon police and New Zealand Transport Agency practice and procedure.
If the Court grants leave it must appoint counsel to assist the Court. We direct that the registry is to appoint counsel to assist.
Once leave is granted, the Court may also direct that notice be given to the defendant advising that a determination of the reference does not affect anything done in any proceeding to which the reference relates before the date of that determination. We consider that such a notice should be given in this case, as Mr Miller was initially named in the intituling and is aware of this reference.
Result
Leave is granted to the Solicitor-General to refer the following questions of law to this Court:
(a)Was the High Court correct to conclude that the requirements of s 90 Land Transport Act 1998 had not been met in this case?
(b)If the requirements of s 90(1) were not met under the Land Transport Act 1998 was the correct remedy the quashing of the defendant’s conviction?
The registry is to appoint counsel to assist the Court with respect to this reference.
Once counsel to assist is appointed the registry is directed to arrange a telephone conference for case management purposes.
A notice is to be sent to Mr Miller advising that a determination of the reference will not affect the quashing of his conviction in the High Court.
Solicitors:
Crown Law Office, Wellington for Applicant
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