The Queen v Whitelaw

[2006] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

CA263/06

THE QUEEN

v

BARRY RAYMOND WHITELAW

Hearing:18 September 2006

Court:William Young  P, Robertson and Arnold JJ

Counsel:Applicant in person

A M Powell for Crown

Judgment:10 October 2006 at 11 am

JUDGMENT OF THE COURT

A        Leave to appeal on the question of law set out in [7] of the judgment is granted. 

BThe operation of the period of disqualification imposed by Judge MacDonald is suspended until the result of the appeal is known.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]       Following a defended hearing in the District Court before Judge MacDonald, in which he acted for himself, the applicant was convicted of driving while disqualified.  He was fined $400, ordered to pay court costs of $130 and disqualified for a further period of six months commencing on the day his existing disqualification expired.

[2]       The applicant appealed against his conviction.  On 20 June 2006 Allan J dismissed the appeal.  The applicant then sought leave from the High Court under s 144 of the Summary Proceedings Act 1957 to appeal to this Court.  Williams J rejected that application on 21 July 2006.  The applicant now seeks special leave from this Court under s 144(3) of the Summary Proceedings Act, principally on the basis that he was denied the opportunity to obtain legal representation for his trial.

Leave to appeal

[3]       Under s 144(3) leave may be granted where the appeal raises a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.  The Court discussed these  requirements in R v Slater [1997] 1 NZLR 211, especially at 214 – 215.

[4]       The hearing of the present application was conducted by way of video link.  The applicant was unrepresented, and filed no written submissions.  Mr Powell for the Crown responsibly accepted that the appeal probably did raise an arguable point of law as to the way in which the recent decision of the Supreme Court in R v Condon [2006] NZSC 62 applies to cases of this type.

[5]       We indicated at the hearing that we were inclined to grant leave to appeal on that issue.  The Supreme Court in Condon said at [79]:

So the appropriate question in a case like the present is whether the accused’s lack of the proper opportunity to have legal representation made or contributed to making the trial, looked at as a whole, unfair so that there has been a substantial miscarriage of justice.  In our view, the High Court of Australia in Dietrich was right to conclude that in the great majority of cases, that is, other than in exceptional circumstances, an accused who conducts his or her own defence to a serious charge, without having declined or failed to exercise the right to legal representation, will not have had a fair trial. That is the reason why s 30 of the Sentencing Act exists, with its policy of ensuring that those facing imprisonment if convicted are afforded the opportunity of being represented by a lawyer.

[6]       The Court went on to say at [81]:

At the outset of its consideration of fairness the appeal Court must make a determination concerning the circumstances in which the accused came to be tried without a lawyer.  That is because if the appellant has been denied a reasonable opportunity of legal representation, the onus will be on the Crown to satisfy the Court that in all the circumstances the absence of representation did not result in an unfair trial.  Bearing that in mind, the Court must carefully consider what occurred at the trial and during the earlier period when the accused was preparing to conduct the defence.

[7]       The charges at issue in Condon were much more serious than the charge in the present case, so that Condon does not apply directly.  However, there is an important issue concerning the extent to which the principles expounded in Condon apply to cases such as the present.  Accordingly, the question of law on which we grant leave is:

Was the appellant’s right to consult and instruct a lawyer, without cost if so entitled, (as guaranteed by s 24(c) and (f) of the New Zealand Bill of Rights Act 1990), or his right to a fair trial (as guaranteed by s 25(a) NZBORA), breached in the circumstances of this case and, if so, should his conviction be quashed?

[8]       Consistently with what was said in Condon, we indicated at the hearing that, in order to deal with the appeal, we needed evidence as to precisely what happened at the hearing before Judge MacDonald in the District Court concerning legal representation. 

[9]       The applicant advised us that the Judge asked him at the outset of the hearing if he had legal representation.  The applicant said that he told the Judge that he did not have representation, because Court staff had told him that legal aid was not available for this type of driving offence.  According to the applicant, the Judge then said that what he had been told was wrong, but refused to grant an adjournment to allow the applicant to make further enquiries about obtaining legal assistance. 

[10]     The same account is recorded in the judgment of Allan J at [22]-[23].  However, Allan J went on at [24] to record the prosecution submission that “some care would need to be taken over whether matters did indeed develop in the way Mr Whitelaw described.”  In the event, the Judge did not consider it necessary to resolve the matter and was content to proceed on the basis that the applicant’s account was broadly correct.  For our part, we will require further material on this aspect.

[11]     This additional material should be dealt with by way of an agreed statement, if that is possible.  Presumably, any discussion at the outset of the hearing would have been recorded.  If a statement cannot be agreed, however, affidavit evidence may be adduced. 

[12]     As the applicant is unrepresented, we propose to appoint an amicus to assist the Court.  In addition we ask that the Registrar send a copy of this judgment to the Director of the Legal Services Agency so that the Agency can decide whether it wishes to apply to intervene.  We propose to hold a telephone conference late in October to fix a timetable for the appeal and to deal with any other preliminary matters.

Suspension of period of disqualification

[13]     At the hearing, the applicant asked that his disqualification be suspended until his appeal is resolved.  Such applications fall within s 107 of the Land Transport Act 1998, and are at the discretion of the Court. 

[14]     In the circumstances we grant the application.  We note, however, that it applies only to the disqualification resulting from the applicant’s conviction by Judge MacDonald, which is the subject of this appeal.  If there is any other period of disqualification that the applicant is obliged to serve, that will be unaffected by the present order. 

Decision

[15] We grant leave to appeal on the question set out in [7]. In addition, we suspend the period of disqualification imposed by Judge MacDonald on the applicant following his conviction until the outcome of the appeal is known. This suspension does not affect the operation of any other period of disqualification that has been imposed upon the applicant.

Solicitors: 

Crown Law Office, Wellington