The Queen v Te Moni

[2009] NZCA 443

IN THE COURT OF APPEAL OF NEW ZEALAND

CA695/2008
[2008] NZCA 443

THE QUEEN

v

HOUSTON TAPENE THOMAS TE MONI

Hearing:15 September 2009

Court:William Young  P, O'Regan and Arnold JJ

Counsel:T Ellis and G K Edgeler for Applicant

F E Guy Kidd and B P D Leslie for Respondent
H Aikman QC as Counsel assisting the Court

Judgment:28 September 2009 at 2.30 pm

JUDGMENT OF THE COURT

The application for an order that Ms Ball’s memorandum be struck from the record and not read is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       Mr Te Moni has appealed to this Court against his conviction and sentence on one count of rape.  He is currently being held as a secure care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the 2003 Act).  On 19 June 2009, Ms Ball, a District Inspector, filed a memorandum regarding the “present status” of Mr Te Moni.  On 26 June 2009, a document intituled “Notice of Motion that the Court not read Memorandum from Wendy Ball Counsel/District Inspector and to strike the Memorandum from the Record” was filed.  We will call this “the application”.  The document was filed by the lawyer who has been assigned by the Legal Services Agency to act for Mr Te Moni, Mr Ellis.

[2]       By a minute dated 2 July 2009, the Court directed that the Registrar set down the application for hearing and appointed Ms Aikman QC as counsel to assist the Court at the hearing.

[3]       The application is founded on the propositions that this Court has no jurisdiction to receive the memorandum or to consider its contents and that Ms Ball had acted unlawfully in placing the memorandum before the Court.

[4]       Before evaluating the issues involved, we will set out the background to the application.

Relevant background

[5]       Mr Te Moni was convicted of sexual violation by rape and sentenced to five years’ imprisonment on 27 October 2008.  The complainant was a 16 year old woman, residing in the same household as Mr Te Moni, who was 20 years old.  The District Court Judge ordered that Mr Te Moni be detained as a special care recipient under the 2003 Act.  After sentencing, Mr Te Moni was placed in a secure forensic ward (Ward 32) at the Henry Bennett Centre in Hamilton.

[6]       On 6 November 2008, a notice of appeal was filed with this Court on Mr Te Moni’s behalf.  It states that his counsel is Mr Tennet.  However, there was an attachment setting out the points of appeal which was signed by Mr Ellis.  Mr Tennet was Mr Te Moni’s trial counsel.  Mr Te Moni has signed a legal aid form specifying Mr Ellis as his nominated counsel.

[7]       Mr Ellis filed a further memorandum on 9 December 2008, indicating that there would be amended grounds of appeal and advancing views as to the issues which he perceived as arising.  The Crown responded by way of memorandum, and Mr Ellis responded in a further memorandum of 16 December 2008.

[8]       There have been telephone conferences before Robertson J on 19 December 2008, 9 February 2009 and 4 May 2009.  At each of these, Robertson J has expressed concern at the lack of progress in bringing the appeal to a hearing. 

[9]       As previously noted, on 19 June 2009, Ms Ball filed in this Court a memorandum regarding the “present status” of Mr Te Moni.  Ms Ball is a barrister appointed as a District Inspector under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and designated a District Inspector under the 2003 Act. 

[10]     In her memorandum, Ms Ball noted her power, pursuant to s 101(1)(c) of the 2003 Act, to conduct an inquiry into matters relating to a care recipient.  She noted that Mr Te Moni was aware than an appeal had been lodged on his behalf but had not met nor spoken with Mr Ellis.  She said that Mr Te Moni had no recollection of signing the legal aid form appointing Mr Ellis and was frustrated by the lack of progress in obtaining a date for the hearing of his appeal.  As a result of these frustrations and other life circumstances, his behaviour had deteriorated, his welfare had become compromised and his mood was low. 

[11]     Ms Ball noted that Mr Te Moni’s leave rights (including escorted walks on the hospital grounds) under the 2003 Act were suspended pending appeal.  She said she had expressed Mr Te Moni’s frustrations to Mr Ellis and had explained that Mr Te Moni, although intellectually disabled, was “quite fluid in his conversation and able to understand in basic terms his legal rights”.  In her opinion, Mr Ellis did not appear to have understood the reports into Mr Te Moni’s overall intellectual disability, particularly that, despite his adaptive functioning age of communication being low (equivalent to a person of three or four years old), his overall level of communication and understanding was “adequate”.

[12]     Mr Ellis responded by filing the application.

[13]     Mr Te Moni’s appeal against conviction and sentence is scheduled to be heard on 8 October 2009. Mr Ellis signalled during the hearing of the application that he may not be ready to argue the appeal on that day (but as indicated at [27] below, that position has now changed). Mr Ellis confirmed he has still not met, or spoken with, Mr Te Moni.

[14]     In her submissions, Ms Aikman advises that, on 1 July 2009, Mr Te Moni was paroled from Ward 32 on the condition that he continue to reside at the Henry Bennett Centre in the other secure ward (Ward 33), where he would have more privileges.  Since that transfer, staff have reported improved behaviour.  Mr Te Moni is now able to attend community-based rehabilitation programmes and is said to be highly motivated.  However, he is still very concerned that his appeal has not yet been heard.  Ms Aikman advised that if Mr Te Moni’s appeal is unsuccessful, he is likely to be moved progressively towards community care over the next year or so.  Planning for such a move cannot begin while the appeal is pending.

The application

[15]     The application seeks an order that the Court not read the memorandum from Ms Ball and strike it from the record.  The grounds are that the Court has no jurisdiction to receive the memorandum or consider its contents.  The application is extremely critical of Ms Ball for filing the report.

[16]     Mr Ellis filed three sets of submissions in the application.  The underlying premise of the submissions appeared to be that it would be unfair for the Court determining Mr Te Moni’s appeal to take into account Ms Ball’s memorandum, because she represents an organ of the Crown (which is already represented on the appeal by Crown Law) and because she has not obtained leave to be an intervener in the appeal itself. 

[17]     Submissions filed on behalf of the Crown supported the contention that the Court did not have jurisdiction to take into account Ms Ball’s concerns because they were not relevant to any of the matters over which this Court had jurisdiction in relation to Mr Te Moni’s appeal.  Similarly, Crown counsel said that Ms Ball did not have standing to intervene on Mr Te Moni’s behalf in the appeal.

[18]     With respect to both Mr Ellis and Crown counsel we consider that their position confuses the Court file for the appeal with the case on appeal.  It is the latter that will be before the panel hearing the appeal.  Ms Ball’s memorandum is part of the Court file, but not of the case on appeal.

[19]     The position is correctly outlined in Ms Aikman’s submissions:

It is submitted that the Court of Appeal does have the inherent power to receive information such as the memorandum filed by [Ms Ball] and that, given her statutory obligations to review the appellant’s care, it was perfectly appropriate to bring a matter which is having such a significant impact on his care to the attention of the Court.

Her memorandum is not relevant to the disposition of the appeal itself, but is relevant to matters relating to scheduling of the appeal and ensuring that a party with significant disabilities receives proper representation. 

[20]     The material which will be considered by the panel which hears Mr Te Moni’s appeal will be that contained in the case on appeal.  The scope of the case on appeal is determined by the Court of Appeal (Criminal) Rules 2001: see r 13.  It is clear that Ms Ball’s memorandum does not meet the requirements for inclusion.  We do not envisage that it will comprise part of the case on appeal or be considered by the Judges who deal with the merits of Mr Te Moni’s appeal.

[21]     But that does not mean that Ms Ball acted improperly or unlawfully in alerting the Court to Mr Te Moni’s plight or that the Court had no jurisdiction to receive her memorandum.  Nor, contrary to Mr Ellis’s submissions is there any issue as to her “standing”. As Ms Aikman quite correctly said, the matters raised in Ms Ball’s memorandum were relevant to the scheduling and case management of the appeal.  The Court does not need a special jurisdiction to receive correspondence.  Ms Ball does not need “standing” to write to the Court.

Counsel assisting the Court

[22]     In the course of his submissions, Mr Ellis queried the power of the Court to appoint a counsel to assist the Court and the method of appointment.  He also criticised Ms Aikman’s performance of her role.  He argued that s 99A of the Judicature Act 1908 did not apply to criminal appeals.  While that section does deal with civil appeals, s 389 of the Crimes Act 1961 provides for the powers that the Court has in civil appeals to be exercised in criminal appeals if it thinks it necessary or expedient in the interests of justice.  We consider that the criticisms of the process of appointment and the performance of Ms Aikman are without foundation.  We are grateful to Ms Aikman for her assistance.

Outcome

[23]     We consider that the application was unnecessary.  The criticisms of Ms Ball and of Ms Aikman were an over-reaction to the points they quite fairly made.  We agree with Mr Ellis and Crown counsel that Ms Ball’s memorandum is not relevant to any issue requiring resolution in the appeal and should not therefore be in the case on appeal.  We see no necessity to make an order to that effect.  Nor do we see any need to order that Ms Ball’s memorandum not be read.  It will not be taken into account in the appeal itself, but will be read and taken into account in managing the appeal.

The appeal

[24]     The focus now needs to switch back to Mr Te Moni’s appeal.  It is important that it be brought to a hearing promptly.  The investment of energy by Mr Ellis in pursuing the present application would have been better spent in dealing with Mr Te Moni’s concerns.  Mr Ellis’s position in treating Mr Te Moni’s signed instruction as an irrevocable free expression of will to have Mr Ellis as his counsel but any other indication of view by Mr Te Moni as the result of suggestibility leaves Mr Te Moni in a Kafkaesque position.

[25]     Mr Te Moni is apparently bound by his selection of counsel but unable to influence what his counsel does on his behalf until his counsel engages in communication with him.  Mr Ellis says he cannot speak to Mr Te Moni without the assistance of a qualified expert, but on the other hand answers criticism of his lack of contact with Mr Te Moni by saying he has corresponded with him and provided him with memoranda and submissions.  Mr Te Moni’s disability does not deprive him of the reasonable expectation of basic courtesy from his counsel.  The situation where an appeal has been filed on Mr Te Moni’s behalf nearly a year ago but counsel has not even spoken to Mr Te Moni is a matter of concern.

[26]     Mr Ellis advised that he has applied for a review of the decision to refuse legal aid for an expert and that he intends to seek judicial review if that application is unsuccessful.  He has also asked this Court to appoint an expert, but we do not consider it is appropriate for this Court to cut across the legal aid system by requiring the Ministry of Justice to provide funding in circumstances where legal aid has been declined on the basis that the appeal can be pursued without it. 

[27]     It appeared to us that there were issues which are capable of being pursued without the input of an expert and that the fixture on 8 October provided an opportunity for those issues to be argued.  It is possible the resolution of those issues will be sufficient to resolve the appeal in Mr Te Moni’s favour, in which case the dispute over legal aid will become moot.  If they are not, leave can be reserved for further argument in the event that funding for an expert is provided and the expert’s input leads to further grounds becoming arguable.  Since the hearing of the application, counsel for Mr Te Moni and the Crown have filed a joint memorandum in which they indicate that they have agreed between them that the appeal could be dealt with in that way.  We confirm that this is acceptable to the Court.  We also confirm that the suggested timetable in the joint memorandum for the filing of submissions is acceptable.

[28]     Ms Aikman’s appointment related to the present application.  The Court does not seek her assistance at the 8 October hearing.

Solicitors:
Crown Law Office, Wellington