The Queen v Condon
[2004] NZCA 153
•21 July 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA373/03
THE QUEEN
v
ROBERT JOHN CONDON
Hearing:24 and 27 May 2004
Coram:William Young J
Williams J
Wild JAppearances: P H B Hall for Appellant
G C de Graaff for Crown
Judgment:21 July 2004
JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J
Table of Contents Paragraph Number INTRODUCTION [1] BACKGROUND TO THE APPEAL EVENTS LEADING TO THE CHARGES FACED BY THE APPELLANT [2] PRE-COMMITTAL PROCEEDINGS IN THE DISTRICT COURT [6] COMMITTAL FOR TRIAL [9] THE POST-COMMITTAL PROCEEDINGS IN THE DISTRICT COURT [10] THE APPEAL TO THIS COURT [37] THE RELEVANT LEGAL BACKGROUND [42] ISSUES WHICH REQUIRE DETERMINATION GENERAL [47] DOES THE PARTICIPATION OF MR RADFORD IN THE PROCEEDINGS
PRIOR TO 19 AUGUST 2003 MEAN THAT THE APPELLANT HAD BEEN
LEGALLY REPRESENTED FOR THE PURPOSES OF S30(1) OF THE
SENTENCING ACT?[48]
IF THE APPELLANT WAS NOT LEGALLY REPRESENTED FOR THE
PURPOSES OF S30(1) OF THE SENTENCING ACT, WAS HE WITHIN
S30(2)?[65] HAS THERE OTHERWISE BEEN A MISCARRIAGE OF JUSTICE? [72] DISPOSITION [77] Introduction
[1] The appellant was found guilty by a jury in the District Court at Timaru on counts of threatening to kill and attempting to pervert the course of justice. He was sentenced to 18 months imprisonment. He has appealed against conviction and sentence, albeit that the arguments on appeal were, at least in substance, addressed primarily to conviction.
Background to the appeal
Events leading to the charges faced by the appellant
[2] The appellant once had an interest in a company which owned and operated the “Odyssey Niteclub” in Timaru. Mr David Pillidge had worked for this company. The company was eventually placed in receivership and Mr Pillidge and two other people then acquired the business from the receiver. The appellant was distinctly dissatisfied about this outcome and particularly about the conduct of Mr Pillidge. The appellant was intent on regaining control, or ownership, of the nightclub. He contemplated the issue of proceedings to achieve that end.
[3] The charge of threatening to kill related to a discussion between the appellant and Mr Pillidge which took place in the presence of a Ms Vanya Young on the night of 7 February 2003. It is common ground that there was a discussion that night between the appellant and Mr Pillidge and that the appellant was generally threatening in what he said. The dispute at trial was whether those threats were confined to references to proposed litigation (which was the appellant’s position) or whether they included a threat by the appellant to kill Mr Pillidge. The evidence of Mr Pillidge and Ms Young was in support of the latter proposition.
[4] The following night there was another discussion of relevance to the case; this time between the appellant and Ms Young and Ms Tamara Ancell-Curtis. On the Crown case the appellant again threatened to kill Mr Pillidge. The appellant’s position has been that no such threat was made on this occasion.
[5] On the evening of 19 February 2003 the appellant spoke to Ms Ancell-Curtis. The Crown case was that the appellant sought to persuade her to tell the police that she had misheard what the appellant had said to her on the evening of 8 February 2003 – in effect to change the story she had originally told the police. On the Crown case the appellant indicated that he would “see her right” in a context which plainly referred to a proposed monetary payment. This discussion was in the presence of two other people, Messrs Brent McLaren and Lester Allen. The appellant’s position throughout has been that whatever he said to Ms Ancell-Curtis went no further than a suggestion to her that she tell the truth.
Pre-committal proceedings in the District Court
[6] The appellant was arrested on 10 February 2003 and charged with threatening to kill. He appeared in the District Court at Timaru on 11 February 2003. The information records that, at this time, the appellant did not wish to have legal representation or to apply for legal aid. He was remanded on bail until 25 February 2003 subject to a condition that he was not to contact any of the prosecution witnesses.
[7] On 25 February 2003 the appellant appeared in the District Court again. He elected summary trial on the charge of threatening to kill and was remanded until 10 April 2003 for a fixture. At this stage there was no charge before the Court as to the 19 February incident.
[8] On 6 April 2003 the appellant was arrested and charged with attempting to pervert the course of justice. This was in relation to the 19 February 2003 discussion. The appellant appeared in the District Court in relation to this charge on 7 April 2003. At this point the appellant indicated that he wished to elect trial by jury on the threatening to kill charge. The information records that the appellant did not wish to have legal representation or to apply for legal aid. The Judge noted on the information that he had advised the appellant to take legal advice and remanded him in custody until 10 April 2003.
Committal for trial
[9] On 10 April 2003 the appellant appeared again in the Timaru District Court. He was committed for trial on both charges. He sought and obtained bail over police objection. Again the appellant indicated that he did not wish to be legally represented although the presiding Judge strongly suggested that he would be wise to obtain legal advice.
The post-committal proceedings in the District Court
[10] Shortly after 10 April 2003 the appellant must have applied for legal aid. On 23 April 2003 Mr Michael Radford was instructed to act in his defence. Mr Radford knew the appellant as he had previously acted for him. By this stage the trial was set down for the week of 26 May 2003 on a reserve fixture basis.
[11] Mr Radford spoke to the appellant and prepared for trial. He obtained from him documents which the appellant saw as relevant to the case. Mr Radford prepared an extensive memorandum setting out the nature of the defence and recording, in general terms, the advice which he had given to the appellant.
[12] The defence which the appellant wished to run was along the following lines:
1.There had been a conspiracy to deprive him of his legal rights associated with the “Odyssey Niteclub”.
2.In relation to the incident on 7 February 2003 what he said was either “maliciously misinterpreted” or “mistakenly misinterpreted”.
3.In relation to the incident on 19 February 2003, the appellant had made it clear to Ms Ancell-Curtis that she should tell the truth (ie that he had not made any threat to kill) and that he did nothing that could constitute an attempt to pervert the course of justice.
[13] The position reached between the appellant and Mr Radford was that the appellant would give evidence. Given the nature of the attack which the appellant wished Mr Radford to mount on the veracity of the Crown witnesses, Mr Radford recorded that such an attack would leave the appellant open to cross-examination about his own extensive previous convictions. Mr Radford’s memorandum recorded the appellant’s position that “most people in Timaru would know of him by reputation and accordingly he is not concerned about that”.
[14] The trial could have been heard in the week of 26 May 2003 save that the officer in charge, Detective Wingfield, was not available. Detective Wingfield’s primary role was to produce a written statement that the appellant had made in relation to the 19 February 2003 incident. Mr Radford was content to proceed with the trial in Detective Wingfield’s absence (on the basis that the Detective’s evidence would be read). The appellant, however, desired Detective Wingfield to be present to give oral evidence so that he could be cross-examined about another crime in respect of which the appellant had been a suspect (and nominated as such by Mr Pillidge). So the trial did not take place in the week of 26 May 2003 and was rescheduled for the week of 23 June 2003.
[15] The case was not able to be reached in the week of 23 June 2003 and a further fixture for the week of 18 August 2003 was arranged.
[16] Towards the end of July or at the beginning of August, Mr Radford was told by a member of the court staff at the Timaru Court that the appellant was thinking about appearing for himself. Accordingly, on 8 August 2003 he wrote to the appellant in these terms:
I hear that it is your proposal to conduct the defence yourself. I have certainly no problem with that and appreciate that you have had this view for some time. It is however a matter of personal inconvenience for me to have to prepare for trial to find that I am no longer required. If the street rumour is correct, I would appreciate the courtesy of being told because frankly I have got plenty of things to do with my time if I am not required to prepare and be ready for your trial. Obviously any communication you pass on to me is confidential between yourself and me and I could not tell anybody else, but in my view if that is your intention, there is no reason why you should not say to the Court now that you don’t require to be represented and that you are proposing to do the case yourself. I look forward to hearing from you.
[17] The appellant responded with a delphic letter of 9 August 2003 (received by Mr Radford on 12 August 2003):
I have not at this stage made any final decision to defend myself in this matter. As I have made aware to you previous the defense should be relevant to the conspiracy mentioned within my affidavits. I would have thought that any such defense would have required preparation and possibly the calling of witnesses in regard.
I long ago failed to rely on any grape-vine for information taken that most is proved to be unreliable and in the most part tainted with persons own judgment. If decision had been made in regard to your not representing myself I would have with respect notified you of such.
However as previously mentioned Mike, I have a lot riding on the outcome of this trial and any subsequent conviction it may bring. This is in relation to the business litigation through which these charges have risen.
It is not my intention to be a scapegoat for any law enforcement agency or legal representative who may be subject to any such litigation. Further I fail to see how by further exploiting my personal circumstances and using such methods as entrapment, goading of emotions or prejudice that any such persons could remain professional. I left such behaviour behind in kindergarten. However again I guess such would be for another forum to discuss.
It would be my intention to show through the previous conspiracy in removing myself from position and the methods used that Mr Pilladge, being involved learnt such actions and has again attempted to bring unjustified allegation and conviction against myself. Associated persons of Mr Pilladge would do or say anything to support his actions. Their lies do not disturb me Mike.
Further the blatant attempt to set me up with a witness has itself portrayed immoral and unethical methods in attempting to create situations. Again I fail to see how such could be regarded as professional behavior in any court of law.
With respect to the above Mike, I would suggest that in fact we were to meet prior to the 18 August to discuss defense. If it is unlikely that the trial would proceed I would to know of any possible steps that could be taken to have all charges withdrawn. This could be considered by evaluating the evidence of the prosecution in relation to conspiracy to bring the said charges against my person.
I again thank you for your letter and look forward to hearing from you.
…
[18] At this point we should mention two contextual issues. The first is the appellant is accustomed to appearing for himself. For instance, as well as being self‑represented up until committal for trial, the appellant conducted an application as to bail terms in the District Court after Mr Radford was instructed. He has also appeared for himself in other and unrelated proceedings. The second contextual point is that the reference to the possibility of calling witnesses was new. The prospect of calling defence witnesses other than the appellant had not previously been raised with Mr Radford.
[19] The evidence was not altogether clear on the precise course which events then took. Our conclusions as to this evidence are as follows:
1.Mr Radford treated the appellant’s 9 August 2003 letter as a basis for seeking leave to withdraw. So, without going back to the appellant to seek clarification of the appellant’s intentions, he attended before a District Court Judge in Timaru on the morning of Thursday, 14 August 2003 and indicated that he wished to withdraw. The Judge to whom the application was made stood the issue over initially until the afternoon of 14 August and then until the following week (given that Mr Radford had not been able to make contact with the appellant). It was rightly anticipated that the appellant would be in Court on 18 August 2003 given his bail conditions.
2.On 18 August the case was called again with both the appellant and Mr Radford present. Probably because of time constraints, the issue of Mr Radford’s further involvement in the trial was stood over until the following morning at 9.15 am.
3.Sometime before the case was called on 19 August 2003 (either on 17, 18 or 19 August) there was a discussion between the appellant and Mr Radford. In the course of this discussion Mr Radford made it clear to the appellant that he did not propose to represent him at his trial.
[20] At the hearing of Mr Radford’s application for leave to withdraw at 9.15am on 19 August before Judge Holderness, Mr Radford and the appellant were both present along with Ms K J Gray for the Crown.
[21] Mr Radford commenced by saying:
If Your Honour pleases, I have been assigned to represent Mr Condon, but I have had discussions with him and it is quite apparent from the discussions that I will not be able to represent Mr Condon. I am able to go into more detail than that but I have got no desire to in any way prejudice his situation but the result is that I am seeking leave to withdraw.
Mr Radford then went on to refer, in general terms, to the correspondence which we have set out earlier in this judgment.
[22] Having heard Mr Radford the Judge asked the appellant if he wished to be heard. He responded in this way:
Sir, I am in a position now where I will have to defend myself in this matter, however I had been asked by the previous Judges to instruct a solicitor. My defence for this case is fairly complicated. There is suggestions of conspiracy against my person. Mr Radford has, in my opinion, not been able to grasp the content of which I wish to defend this matter. I believe, Sir, I am not sure it is in my best interest to have this matter dealt with now that I am left to defend myself and the complications I have. I would ask the Court to consider one further adjournment.
[23] There was then discussion about a possible adjournment and Ms Gray for the Crown indicated that the Crown would oppose any adjournment of the trial. She referred to “allegations of witness intimidation” and her understanding that one of the witnesses would no longer be giving evidence “in view of intimidation”.
[24] The Judge then said:
Mr Condon, the matter has had a history. Mr Radford has been involved for some time now and you have reached a decision now that you do not think he is going to represent you adequately given the matters you want to raise. He has sought leave to withdraw and in the circumstances, particularly in view of your indication, I think it is appropriate that the Court grant him leave to withdraw and in my view there is really no reason why the trial should not go ahead this week. It can be reached. The present trial should be completed tomorrow.
[25] The appellant then responded:
In regard to the prosecution and the intimidation of witnesses, I would like to stress to the Court I am not a character to intimidate witnesses. It has not been my intention to do so. I am left in a position, Sir, where I am left to defend myself. It was Mr Radford’s request to withdraw.
[26] The Judge responded by saying:
Well you have just indicated to me that you do not consider that he was going to represent you adequately.
[27] This evoked the following response from the appellant:
Such comments as I am not going to win and I will be found guilty. To be able to represent myself I would have to have time to call witnesses, Sir.
[28] The hearing then proceeded with some discussion as to how long the appellant had known that his trial would take place in the week of 18 August and his dealings with Mr Radford in relation to it. This led to Mr Radford explaining in some detail the nature of the correspondence which led to his decision to seek leave to withdraw. He also discussed the extent of his preparation for trial. The Judge responded by saying:
You regard your position now as untenable?
And Mr Radford responded by saying:
It is untenable, Sir.
The Judge went on:
Particularly in view of what Mr Condon has said to me today.
Mr Radford answered:
Exactly, Sir, yes.
He then went on to defend further his conduct of the case.
[29] The Judge then addressed the appellant. He indicated that he would deal with the adjournment application later in the day when Mr Gresson, the Crown Solicitor in Timaru, would be available to argue the point. The Judge observed:
I think that Mr Radford is right when he sees his position as really being untenable now in view of what you have indicated to me today and in all the circumstances I cannot see that the Court has got any alternative but to grant Mr Radford leave to withdraw.
[30] The hearing resumed at 4.15pm. This time the Crown was represented by Mr Gresson and the appellant was appearing in person. Prior to the hearing Mr Gresson lodged a written memorandum setting out the basis upon which an adjournment of the trial was opposed. The memorandum canvassed allegations of witness intimidation which Mr Gresson maintained had been, in part, successful; this in relation to Mr Lester Allen. In it, Mr Gresson also said:
As I understand the situation s30(2) of the Sentencing Act (previously s10(2) of the Criminal Justice Act) applies because the Accused has elected to represent himself.
[31] Unfortunately the transcript of what transpired at 4.15pm is incomplete as the recording system was not switched on until some time into the hearing. The transcript starts with discussion about whether Mr Allen would attend to give evidence. By this point the appellant was anxious to have Mr Allen attend to give evidence and was maintaining that his absence would be to his disadvantage.
[32] In the course of the discussion the Judge said of the position as between the appellant and Mr Radford:
Now you have put him in a position where he has had no alternative really but to withdraw.
The appellant responded by saying:
He had no intention of properly defending me anyway, Sir.
And the Judge indicated:
I do not accept that.
The appellant then responded:
I am quite happy to proceed and get it out of the way on Thursday.
[33] The discussion between the appellant and the Judge continued for some time, addressing in a straightforward way the procedure at trial and what the appellant would have to do if he wished to arrange witnesses to be called for the defence. There was also a suggestion from the Judge that the appellant approach Mr Radford to see if he was prepared to appear for the appellant again, notwithstanding the difficulties which had arisen. This led to the appellant raising the possibility of Mr Radford participating as a McKenzie friend; a proposition which the Judge understandably thought Mr Radford would be unlikely to entertain.
[34] The trial duly proceeded on 21 and 22 August 2003.
[35] The appellant conducted his defence in a clumsy way, finding it difficult to ask questions of witnesses rather than make statements. His cross-examination was neither effective (in the sense of impacting adversely on the credibility of the Crown witnesses) nor deft (as he placed squarely before the jury his previous gang associations and criminal history). That said, the appellant cross-examined all the Crown witnesses and, in this way and in the evidence he gave, put his defence before the jury with considerable force. Having read the transcript of the evidence and the Judge’s summing up we are satisfied that the key contentions of the appellant were before the jury.
[36] As is apparent from what we have said, the jury found him guilty on both charges. He was subsequently sentenced to 18 months imprisonment, a sentence which he has now served.
The appeal to this Court
[37] The appellant’s appeal focuses on the fact that he was unrepresented at trial. The complaint essentially is that the Judge did not adjourn the proceedings once Mr Radford was granted leave to withdraw.
[38] Affidavits were sworn by the appellant and Mr Radford. This Court also obtained a report by the Judge as to the events of 19 August 2003 which the Judge provided by making available transcripts of the hearings prepared from such tape recordings as were made on that day.
[39] The appellant and Mr Radford both gave evidence in person before us and were cross-examined. In the course of the hearing it became apparent that the transcript of the hearing on 19 August which commenced at 4.15pm was incomplete (in that the tape must have been switched on some time after the hearing commenced), see para [31] above. Section 30 of the Sentencing Act was relied upon by Mr Hall for the appellant for the first time when he made oral submissions. It had not been signalled in the written material which had been lodged. So we stood the appeal over to permit the Crown an opportunity to answer this new argument. At the request of counsel we sought a further report from the Judge as to what happened in the afternoon of 19 August before the tape was turned on and also as to the s30 point.
[40] At the resumed hearing Ms de Graaff for the Crown requested a further report from the Judge associated with transcripts of earlier hearings, particularly involving what had happened on the 14 August 2003 and the morning of 18 August 2003. Although we were reluctant to trouble the Judge again with yet another request, particularly since we thought it unlikely, to say the least, that a further report would in fact produce new information relevant to the ultimate position of the appeal, Ms de Graaff’s request was supported by Mr Hall and in the end we agreed to seek the additional information.
[41] To the extent to which the information supplied by the Judge in his reports is material, we have built it into the narrative of events which appears in this judgment.
The relevant legal background
[42] By way of introduction to the issues which were raised by counsel, we should refer to the relevant legal background.
[43] We start with section 24 of the New Zealand Bill of Rights Act 1990:
24 Rights of persons charged
Everyone who is charged with an offence—
…
(c) Shall have the right to consult and instruct a lawyer; and
(d)Shall have the right to adequate time and facilities to prepare a defence; and
…
(f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; … .
[44] Also important is section 30 of the Sentencing Act which provides:
30 No sentence of imprisonment to be imposed without opportunity for legal representation
(1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).
(2) Subsection (1) does not apply if the court is satisfied that the offender—
(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and
(b) fully understood those rights; and
(c) had the opportunity to exercise those rights; and
(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.
(3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—
(a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or
(b) quash the conviction and direct a new hearing or trial, or make any other order that justice requires.
(4) For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender—
(a) refuses or fails to apply for legal aid under the Legal Services Act 2000 or applies for it unsuccessfully; and
(b) refuses or fails to engage counsel by other means.
[45] The fundamental problem thrown up by this case is familiar. There is a long line of cases dealing with the situation which arises where late unavailability of counsel (for one reason or another) results in an accused person going to trial unrepresented and then later challenging the result, see for instance R v West [1960] NZLR 555, R v De Montalk (CA66/98, 25 June 1998), R v Ru (2001) 19 CRNZ 447, and R v Hill and Turton (CA26/02 and CA38/02, 17 February 2003).
[46] We are not aware of authority addressed directly to the significance of s30 of the Sentencing Act in this situation but we see as relevant cases decided by reference to its precursors, s13A of the Criminal Justice Act 1954 (and in particular R v Long [1977] 1 NZLR 169 and R v Taylor [1983] NZLR 545) and s10 of the Criminal Justice Act 1985 (and in particular Parkhillv Minister of Transport [1992] 1 NZLR 555).
Issues which require determination
General
[47] Arising out of what we have already said and the arguments of counsel (to which we will shortly be referring) we see the following issues as requiring determination:
1.Does the participation of Mr Radford in the proceedings prior to 19 August 2003 mean that the appellant had been legally represented for the purposes of s30(1) of the Sentencing Act?
2.If the appellant was not legally represented for the purposes of s30(1) of the Sentencing Act, was he within s30(2)?
3.Has there otherwise been a miscarriage of justice?
4.What is the appropriate outcome of the appeal?
Does the participation of Mr Radford in the proceedings prior to 19 August 2003 mean that the appellant had been legally represented for the purposes of s30(1) of the Sentencing Act?
[48] The appellant faced the practical inevitability of a prison sentence if convicted on both counts. So where the case stood in terms of s30(1) of the Sentencing Act was plainly material to whether an adjournment ought to have been granted on 19 August 2003, cf the remarks of Cooke J in Long at 174.
[49] Section 30(1) is plainly satisfied (ie in the sense that a prison sentence is possible) where the defendant is legally represented by counsel either when he or she pleads guilty or alternatively in the course of the hearing at which he or she is found guilty of the offence in question. What is not so clear is whether s30(1) is also satisfied (in the same sense) where the defendant has at some stage in the proceedings prior to conviction been legally represented but was not represented at the time a plea of guilty was entered or a finding of guilt was made.
[50] Section 13A of the Criminal Justice Act 1954 was inserted in 1975. This section precluded the imposition of a sentence of “detention” in relation to any person “who has not been legally represented in the Court”. There were exceptions to this, corresponding broadly to those provided for in s30(2) of the Sentencing Act. Importantly, there was a definition of “legal representation” as meaning:
In relation to any person in Court, the assistance in Court of a counsel or solicitor to represent that person in the proceedings before the Court at some time before the person has pleaded guilty.
(Emphasis added)
The words “legally represented” had a corresponding meaning.
[51] In Long the appellant had been legally advised but his solicitor was unable to attend Court on the day on which he was to enter a plea of guilty. On his solicitor’s advice, the appellant spoke at Court to a duty solicitor who acted as an intermediary between him and the presiding Magistrate. On appeal the question was whether he had been legally represented for the purposes of s13A. Because of the then requirement that such legal representation be “in Court” the issue focused on whether the duty solicitor could be said to have represented the appellant. This Court (Woodhouse and Cooke JJ, Richmond P dissenting) held that the duty solicitor’s intervention was not representation for the purposes of the section. Of relevance to the position which arises here, however, are the remarks made by Cooke J at p174:
…[O]ccasionally a defendant who has been represented in court by counsel or solicitor wishes to terminate his representative's authority and to take over the conduct of the defence himself. Then the defendant will have been legally represented in the court, within the meaning of the section.
…
The section calls for an interpretation enabling it to be applied in a practical way in busy courts. There is no reason for imposing on its words some gloss requiring the presiding judicial officer to concern himself with the precise extent of the instructions given to the counsel or solicitor or of the advice given to the defendant by the counsel or solicitor. The essential point is that the counsel or solicitor must appear for the defendant in the proceedings at some time before a plea or finding of guilty. Even if he does no more, for instance, than apply for an adjournment, the section will be satisfied.
Woodhouse J agreed with Cooke J. On this point so too did Richmond P who, picking up the words of the definition of “legal representation” took the view that legal representation need only be “at some time” before the defendant either pleads guilty or is found guilty.
[52] This approach was practically dictated by the definition of “legal representation”.
[53] We note in passing that Long was referred to in R v Taylor but the precise point which we are concerned with was not argued in Taylor.
[54] Section 10(1) of the Criminal Justice Act 1985 provided:
No court shall impose a full-time custodial sentence on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, …
The section did not provide for definitions of either “legal representation” or “legally represented”.
[55] The key differences between the 1985 Act and the 1954 Act were therefore:
1.The omission of the requirement under the 1954 Act for the legal representation to be “in Court”.
2.The requirement in the 1985 Act (which was not expressed in the 1954 Act), for there to have been representation “at the stage of the proceedings at which the offender was at risk of conviction”.
3.The deletion of the definition of “legal representation” which was in the 1954 Act, and which made it clear that representation “at some stage” prior to conviction was sufficient.
[56] In light of those changes there was scope for the view that the new section required legal representation to occur at the time the defendant was directly at risk of conviction (when he or she pleads guilty or in the course of the hearing at which a finding of guilty is made). If representation must be at that time, it follows that it must also be “in Court” as a defendant can only be at risk of conviction when in Court. On this view, the prohibition against imprisonment for unrepresented defendants was expanded by the 1985 Act.
[57] On the other hand, there was also scope for another view. The fundamental problem for the Crown in Long was that although Long had received advice from a solicitor (which was that he should plead guilty) and had, as well, seen the duty solicitor at Court on the day on which he pleaded guilty, this Court was of the view that he had not been represented “in Court” with the result that the sentence of imprisonment imposed had to be set aside. On this approach, the variations between s10 of the 1985 Act and s13A of the 1954 Act were intended to narrow rather than expand the prohibition on imprisonment.
[58] It was the second view of the section which prevailed in Parkhill v Ministry of Transport supra, para [46]. The Court comprised Cooke P, Hardie Boys and Holland JJ. The judgment of the Court was delivered by Hardie Boys J. This is what he said, at p559:
The philosophy expressed in s 10 first appeared as s 13A of the Criminal Justice Act 1954, when inserted by s 13 of the Amendment Act of 1975. The wording was rather different, the relevant difference for present purposes being that the general prohibition contained in subs (1) applied to “any person who has not been legally represented in the Court"; and subs (2) gave a definition of "legal representation" (“to be legally represented" having a corresponding meaning) which referred again to assistance "in Court". It was this provision that was the subject of the appeal in R v Long, where it was held that what was required was an appearance in the proceedings by counsel or a solicitor, and that it was not enough for the defendant to be seen by a duty solicitor who then acted only as an intermediary between him and the Court, but did not purport to represent him.
Section 10 does not define "legally represented" and the earlier references to representation and assistance in Court have been omitted. We cannot with respect agree with Tipping J that these changes simply reflect a more economical drafting style. The omission in subs (1) of the words "in the Court" must be treated as recognition that there may be representation, extending beyond mere advice or assistance, out of Court. It may well be, as Mr Pike suggested, that the intention was to allow for the duty solicitor situation. Certainly it may properly be assumed that the change was prompted by the attention drawn to the wide effect of s 13A demonstrated by the decision in R v Long.
Legal representation is not limited to appearances by counsel or a solicitor in Court. In the present case, the applicant was not only advised by his solicitor in relation to the driving charges, but his solicitor represented him in his communications with the Ministry of Transport. Thus the requirements of s 10(1) were in fact fulfilled.
[59] It is perfectly clear that Mr Radford represented the appellant in a way which was within the concept of legal representation contemplated in both Long and Parkhill. In this respect it is important to note that Mr Radford’s representation of the appellant was such that the availability of defences was fully explored with the appellant as were the advantages that might follow pleas of guilty and the dangers which might be associated with possible defence strategies. So if Parkhill still represents the law, the appellant was legally represented for the purposes of s30(1) and thus properly subject to a prison sentence upon conviction irrespective of whether s30(2) applied.
[60] Before us, Ms de Graaff in effect invited us to follow the Parkhill approach while Mr Hall, for the appellant, invited us to construe the section effectively as requiring legal representation in Court immediately prior to a plea of guilty or during the hearing which leads to a finding of guilty.
[61] The interpretation placed on s10A of the 1985 Act in Parkhill is less obvious than the interpretation contended for by Mr Hall. Mr Hall’s interpretation is perhaps also more consonant with s24 of the New Zealand Bill of Rights Act 1990 than that preferred in Parkhill.
[62] On the other hand, the wording of the section is open to the interpretation placed on it in Parkhill. The references to what became s10 in the Parliamentary debates which led to the passing of the Criminal Justice Act are cryptic. It is clear, however, that the section was drafted with Long in mind. So the view expressed by Hardie Boys J in Parkhill that the section was addressed to “the wide effect of s13A demonstrated by the decision in R v Long” was probably correct. Further, the Parkhill interpretation is not inconsistent with s24 of the New Zealand Bill of Rights Act. As will become apparent, s30(2) is not without difficulties of practical application and, given this, the expansive interpretation of s30(1) contended for by Mr Hall is likely to throw up problems which are not easily addressed in busy Courts. So, on purely pragmatic grounds, there is some attraction in the Parkhill approach. In terms of principle, there is the reality that s30 of the Sentencing Act is in substance a re-enactment of s10 of the 1985 Act. It is clear that those responsible for framing s30 would have been aware of the Parkhill and Long decisions. Indeed, s30(3)(b) is addressed to a particular problem mentioned in Long. If the legislature intended to create a wider prohibition on imprisonment than that recognised in Parkhill, it would, presumably, have made that clear by using a form of words which differed from that interpreted in Parkhill.
[63] There is another practical consideration which troubles us. At least if construed literally, s30(1) imposes a jurisdictional bar on imprisonment. For the last 12 years District Court and High Court Judges have been acting on the basis that Parkhill represents the law. So many prison sentences will have been imposed on that basis.
[64] In those circumstances we propose to follow and apply Parkhill. It follows that s30(1) neither precluded the sentence of imprisonment nor indirectly required an adjournment to be granted on 19 August.
If the appellant was not legally represented for the purposes of s30(1) of the Sentencing Act, was he within s30(2)?
[65] This question does not arise given our conclusions as to s30(1) but, given that we have heard both evidence and argument, we should express our views on the point.
[66] The appellant could only be regarded as within s30(2) on the basis that he had “dismissed” Mr Radford. He certainly did not do so in an explicit and formal way but it is at least open to argument that he did dismiss Mr Radford constructively.
[67] We face the disadvantage that the s30 point was not on the table at the time the appellant and Mr Radford gave evidence before us. So the question whether Mr Radford was constructively dismissed by the appellant was not put specifically to either the appellant or Mr Radford.
[68] Mr Radford would, we think, consider that he was constructively dismissed by the appellant. He had unsuccessfully sought a “yes” or “no” answer from the appellant. He would appear to have been distinctly annoyed by the reference in the letter to the possibility of calling witnesses when this had not previously been signalled. So, from his point of view, the appellant’s letter of 9 August 2003 was entirely unacceptable. It is possible (and there are indications of this in the evidence of Mr Radford) that there was some further contact between Mr Radford and the appellant before Mr Radford sought leave to withdraw on 14 August 2003. But on the basis of the findings of fact we have made, we propose to address this issue on the basis that there was, in fact, no such contact before Mr Radford sought leave to withdraw on 14 August 2003. On the view of the facts which we have reached, we think that Mr Radford sought leave to withdraw from the Court on 14 August 2003 based primarily on the unsatisfactory letter which he had received from the appellant. This is consistent with the transcript of what Mr Radford said on 14 August.
[69] There certainly was further contact between Mr Radford and the appellant before the hearing on 19 August 2003. On our view of the facts, Mr Radford had decided by the time that this contact occurred that he would not represent the appellant. So we do not think that there is anything in that contact which is of much assistance on whether the appellant dismissed Mr Radford.
[70] At the hearing on the morning of 19 August 2003 the appellant did make some remarks about Mr Radford which might be fairly thought in themselves to have made Mr Radford’s position as counsel untenable and could perhaps be seen as relevant to the question whether Mr Radford was constructively dismissed. Nonetheless, the importance of what the appellant said is limited given that Mr Radford had, earlier, decided that he would not represent the appellant.
[71] On balance we are not prepared to conclude that there was a constructive dismissal. The appellant’s letter of 9 August 2003 was ambiguous. The appellant had invited further discussion between himself and Mr Radford. But, by the time such further discussion occurred, Mr Radford had already decided that he would not continue to represent the appellant.
Has there otherwise been a miscarriage of justice?
[72] There is scope for two views on this point.
[73] The appellant is strong-minded, to say the least. He has on other occasions represented himself. He is very closely attached to the conspiracy view of the background to the events leading to him being charged. Indeed, the appellant appears to be obsessed by this view. In his dealings with Mr Radford he insisted that the case be put forward on the basis of his conspiracy theories. It is quite clear that his broad position was that unless Mr Radford was prepared to do so, he would dispense with Mr Radford’s services. Mr Radford was, in fact, prepared to run the case on the basis of the appellant’s instructions but the appellant may well have detected some lack of enthusiasm on the part of Mr Radford for this particular line of defence. The terms of his letter of 9 August 2003 suggest that his then contingency plan (should Mr Radford’s services be dispensed with) was that he would represent himself and this is broadly consistent with his evidence before us.
[74] There was, perhaps, some ambiguity in what the appellant told Judge Holderness on the morning of 19 August 2003. It may have been implicit in what he was saying that he might seek other legal advice if an adjournment were to be granted. The drift of what he was saying, however, seems to us to have been that he wanted an adjournment so that he would have time to make arrangements for defence witnesses to be called. The incomplete transcript of the hearing which commenced at 4.15pm that day is also consistent with the view that the appellant’s primary concern was as to the practicality of securing the attendance of witnesses rather than with the necessity to appear for himself. Indeed, the possibility that he might, in the end, have to represent himself was something that he contemplated long before 19 August 2003. Further, had other counsel been assigned, it is, to say the least likely (and is perhaps probable) that the appellant’s insistence on his conspiracy theories would have resulted in another breakdown in relationships with the appellant choosing to appear in person rather than see his theories not appropriately (as he would have seen it) advanced.
[75] The appellant did not represent himself with particular skill but on the other hand he was able to put what he wished to say before the jury and the jury thus had a fair opportunity to evaluate the competing contentions of the Crown and the appellant. Further, although he has from time to time mentioned other witnesses who may have given evidence, we have seen nothing in the material placed before us to suggest the appellant’s case would materially have been advanced had other witnesses been called to give evidence. The appellant told us who the witnesses were whom he thought might have been called at trial. They were his sister (whom he should have been able to get to Court) and two senior Police Officers (who might be thought to be unlikely to have given evidence in support of his conspiracy theory). In any event, it was not suggested by the appellant’s counsel in the course of the present appeal that these witnesses could have provided evidence which would have been of relevance or real assistance to the appellant at trial.
[76] Against that background, we think that there was no miscarriage of justice occasioned by the refusal of the adjournment.
Disposition
[77] For the reasons given we dismiss the appeal.
Solicitors:
Crown Law Office, Wellington
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