Trail v The Queen
[2017] NZHC 2444
•5 October 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2017-419-46 [2017] NZHC 2444
BETWEEN REGAN ERNEST TRAIL
Applicant
AND
THE QUEEN Respondent
Hearing: (on the papers) Counsel:
R E Trail, in person, Appellant
C Ure for RespondentJudgment:
5 October 2017
JUDGMENT OF HEATH J
This judgment was delivered by me on 5 October 2017 at 4.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
S oli cit ors :
Crown Solicitor, Hamilton
C ounsel :
P Cornége, Hamilton
C op y to :R E Trail, Appellant
TRAIL v THE QUEEN [2017] NZHC 2444 [5 October 2017]
[1] Mr Trail has been charged with a number of drug related offences, including possession of a firearm and possession of an explosive. Class A, B and C controlled drugs are involved. The Class A charges involve possession of lysergide (LSD) and MDA (Ecstasy). Some of the charges involving Class B and Class C drugs allege possession for supply.
[2] Mr Trail was remanded for trial, commencing on 12 June 2017. A few days beforehand, his counsel, Mr Cornége, sought leave to withdraw, on the basis that the professional relationship between them had broken down. Following a telephone conference on 30 May 2017, (which he did not attend),1 Mr Trail was remanded to appear before the District Court at Hamilton on 8 June 2017. Mr Trail did not attend on that day, and a warrant was issued for his arrest.
[3] During the course of the 8 June 2017 hearing, Mr Higdon attended. He purported to represent Mr Trail as “Litigation Guardian”. He told Judge Cocurullo that Mr Trail could not read, and he was present to assist. Mr Higdon explained that Mr Trail was not present because his mother was ill and he was required to care for her.
[4] Judge Cocurullo said:
[5] These are significant matters. I am completely unsure about the basis upon which a person before the Court can assert to represent Mr Tail’s interests. Mr Trail as I understand it, is not a minor and I am not sure that an issue of literacy counts as a disability upon which any representation can be separately made.
[6] The issue here is to keep the matter on track. I am not satisfied of any of the explanations for Mr Trail not being here. It is proper that a warrant issue and accordingly, I now issue a warrant for Mr Trail’s arrest.
[7] Mr Cornége has no difficulty with my appointing him as Amicus. I accordingly grant his application for leave to withdraw as counsel and I now appoint him as Amicus for the purposes of the trial.
[8] Warrant to arrest to issue accordingly.
1 I am prepared to assume, for present purposes, that Mr Trail was unaware that this conference was scheduled.
[5] Mr Trail seeks leave to appeal against that pre-trial ruling. He identifies the intended appeal as being against Judge Cocurullo’s decision not to allow a litigation guardian to appear on his behalf.
[6] On 27 June 2017, Woolford J directed that the application for leave be determined on the papers.2
[7] The application is brought under s 296 of the Criminal Procedure Act 2011. Relevantly, it provides:
296 Right of appeal
…
(2) The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3) The question of law in a first appeal under this subpart must arise—
(a) in proceedings that relate to or follow the determination of the charge; or
(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(4) The question of law must not be one that— (a) arises from a jury verdict; or
(b) arose before the trial and has already been decided under subpart 2.
[8] Section 296(2) requires an intended appellant to identify a “question of law” determined in a ruling by the trial Court. If a question of law can be discerned, this Court may confirm the ruling or make such other order as the Court considers just.3
[9] I am not persuaded that there is an arguable point of law to be determined on appeal. The circumstances in which a “litigation guardian” may be appointed do not apply. Generally speaking, a litigation guardian is appointed to represent “an incapacitated person … who by reason of physical, intellectual, or mental impairment,
whether temporary or permanent, is not capable of understanding the issues on which
2 Criminal Procedure Rules 2012, rr 8.10–8.13.
3 Ibid, s 300(1)(a) and (e).
his or her decision would be required as a litigant conducting proceedings or is unable to give sufficient instructions to issue, defend, or compromise proceedings”.4
[10] Rule 4.29 of the District Courts Rules 2014 defines the terms “incapacitated person” and “litigation guardian” as follows:
incapacitated person means a person who by reason of physical, intellectual, or mental impairment, whether temporary or permanent, is—
(a) not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or
(b) unable to give sufficient instructions to issue, defend, or compromise proceedings
…
litigation guardian
(a) means—
(i) a person who is authorised by or under an enactment to conduct proceedings in the name of, or on behalf of, an incapacitated person or a minor (but only in a proceeding to which the authority extends); or
(ii) a person who is appointed under rule 4.35 to conduct a proceeding;
….
[11] Judge Cocurullo did not make a decision about whether Mr Trail needed a litigation guardian. He did express some surprise that Mr Higdon purported to act as such because Mr Trail could not read. As the Judge said, a person is not “incapacitated” because they cannot read. They might (in extreme cases) require “communication assistance” but that is a different issue.5
[12] As the Judge did not address the point expressly, it is something that can be raised before the District Court in the future. Mr Trail will need to be present for that
to be done.
4 Laws NZ Civil Procedure: District Courts at para 77.
5 Generally, as to “communication assistance”, see Evidence Act 2006, s 80. See also, R v Moeke
[2017] NZHC 1314 (Downs J).
[13] In those circumstances, I do not need to address any of the remaining points raised by Mr Trail. I simply add that if he has concerns about Mr Cornége having been appointed as counsel to assist the Court, he may raise that for reconsideration at the next callover.
[14] In my judgment, no question of law arises that justifies the grant of leave to appeal. The application for leave to appeal is dismissed.
P R Heath J
Delivered on 5 October 2017 at 4.00pm
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