Tranter v The Queen
[2019] NZCA 190
•29 May 2019 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA282/2018 [2019] NZCA 190 |
| BETWEEN | DAVID STANLEY TRANTER |
| AND | THE QUEEN |
| Hearing: | 9 April 2019 |
Court: | Clifford, Katz and Thomas JJ |
Counsel: | B J Hunt and A S Olney for Applicant |
Judgment: | 29 May 2019 at 12 pm |
JUDGMENT OF THE COURT
The application for a non-party disclosure hearing is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
The applicant, David Tranter, seeks to engage this Court’s implied power — recognised in R v Smith — to revisit an earlier and final decision on an appeal.[1] But to do so, Mr Tranter says he needs an order under the Criminal Disclosure Act 2008 to obtain historical records from the Ministry of Social Development which, he believes, will establish the basis upon which he may invoke the Smith jurisdiction.
[1]R v Smith [2003] 3 NZLR 617 (CA).
In R v Smith the Court balanced the importance of the finality with the process now provided by the Criminal Procedure Act 2011 for persons convicted of relevant offences in the District Court or High Court to appeal their conviction as of right to this Court, and with leave, to the Supreme Court. At the same time, the Court recognised that the interests of justice may, in very limited circumstances, provide a jurisdiction for a convicted person who has unsuccessfully exercised those appeal rights to bring a second appeal in this Court.
The Crown correctly described that jurisdiction in its written submissions as follows:
15. Appellate jurisdiction is statutory: there is no general jurisdiction to “do justice.” However the Court has implied power to do what is necessary to prevent abuses of process and to control its own practice. In R v Smith this Court confirmed this includes the power to revisit its decisions in exceptional circumstances where required by the interests of justice. The jurisdiction is described as follows:[2]
Such power is part of the implied powers necessary for the Court to ‘maintain its character as a court of justice’. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if [a] fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available.
[2]At [36].
The question we must decide is whether, in the circumstances as they now relate to Mr Tranter, there is jurisdiction for him to apply for further disclosure under the Criminal Disclosure Act before he has brought his substantive application to appeal under R v Smith and before he has identified the grounds for such an application.
Background
In 2015 Mr Tranter was convicted of historical sexual offending in relation to three complainants and sentenced to preventive detention. On 7 March 2017 his appeal against conviction and sentence was dismissed by this Court.[3] The sole ground in relation to the conviction appeal related to alleged “fresh evidence” (namely historical records from the Ministry of Social Development, concerning one of the trial complainants).
[3]Tranter v R [2017] NZCA 45.
Mr Tranter then sought leave to appeal to the Supreme Court, contending (inter alia) this Court had failed to address in its judgment a second aspect of the alleged fresh evidence. By minute dated 3 July 2017 the Supreme Court indicated the better course may be for Mr Tranter to seek recall of this Court’s judgment.
Mr Tranter did so. On 6 October 2017 this Court declined that recall application.[4]
[4]Tranter v R [2017] NZCA 440.
On 12 December 2017 the Supreme Court declined leave to appeal, noting there was no appearance of a miscarriage of justice in this Court’s evaluation of the issues.[5]
[5]Tranter v R [2017] NZSC 187.
In May 2018 Mr Tranter applied for a “rehearing” of this Court’s 2017 appeal decision. Mr Tranter said there was fresh evidence in the form of compelling new documents released by the Ministry of Social Development which “show double jeopardy and perjury by complainants/witnesses”.
In a minute of 30 May 2018 Winkelmann J directed that that notice be treated as an application for leave to bring a second appeal pursuant to the Court’s Smith jurisdiction.[6]
[6]R v Smith, above n 1.
In August 2018 Miller J directed Ms Hunt, who by then had been appointed by Legal Aid to represent Mr Tranter, to file particularised grounds addressing both leave to reopen the case and the proposed appeal.
In response to that direction, Ms Hunt filed a memorandum seeking leave to amend the grounds of appeal Mr Tranter had previously advanced to one ground only: namely that Mr Tranter believed the information received from MSD was not complete and therefore he required the opportunity to make an application to the Court under the Criminal Disclosure Act for various official files.
In response, the Crown submitted that Ms Hunt had not addressed the Smith criteria, as Miller J had directed. In a further minute of 28 November 2018 Miller J said:
[2] I direct that the Registrar is to set the rehearing application down for hearing at Wellington in the New Year. I envisage that the Court will deliver a judgment deciding whether the jurisdiction is available in the circumstances alleged. If the Court finds that it is, then it will be necessary to schedule further hearings to deal with disclosure and decide the rehearing application on its merits.
[3] Ms Hunt may file a memorandum attaching such disclosure as she has already obtained from Oranga Tamariki to support her argument that there is reason to believe Oranga Tamariki holds relevant material.
In her written submissions for this hearing Ms Hunt did not address the substantive grounds for a rehearing. Rather she again focused on Mr Tranter’s entitlement to apply for non-party disclosure under the Criminal Disclosure Act as, in effect, a necessary precondition for him to be able to make a meaningful application for leave to engage the Smith jurisdiction for a further appeal. Whether the Criminal Disclosure Act provides such a jurisdiction is the question we must determine.
Submissions
For Mr Tranter, the argument is a straightforward one: he believes that information held by the Ministry (but as yet undisclosed to him) will confirm that, as he said at his 2015 trial, the allegations then being considered had been made many years ago by the same complainants and had — at that time — been the subject of criminal charges which had been dismissed. Without access to those files, which may or may not support Mr Tranter’s beliefs, it is not possible for him, and his counsel, to determine whether in fact he may be able to invoke the R v Smith jurisdiction. In those circumstances, he argues the Criminal Disclosure Act provides jurisdiction for the application he makes for non-party disclosure.
The Crown’s response is two-fold.
First, there is no reasonable basis in the circumstances for Mr Tranter to engage the limited R v Smith jurisdiction. Mr Tranter was represented on his first appeal to this Court. There is nothing to suggest there was any “fundamental error” in procedure in the hearing of that appeal. That appeal process was then reviewed by the Supreme Court, by this Court again in its recall decision, and finally by the Supreme Court in its leave decision.
That Mr Tranter now considers he might have a new ground on which to appeal was not sufficient to engage the Smith jurisdiction. If it were, there would be no end to litigation.
Secondly, and more specifically, there is here no proceeding to which the Criminal Disclosure Act can apply. That is, Mr Tranter — having exercised in full his statutory rights of appeal — no longer has a proceeding before the Court in which disclosure under the Criminal Disclosure Act could be ordered.
Mr Tranter’s remedies lie elsewhere: most obviously, the Crown submitted, in his right to apply via the Governor-General’s reference procedure under s 406 of the Crimes Act 1961 or, perhaps, before the pending Criminal Case Review Commission.
Analysis
As the hearing of Mr Tranter’s application, Ms Hunt emphasised that her focus was the proposition that the Criminal Disclosure Act provided jurisdiction — in the circumstances as they currently exist — for Mr Tranter’s application for non-party disclosure. If the Court accepted that proposition then, as Miller J anticipated in his minute of 28 November, it would be necessary to schedule further hearings to deal with disclosure and then, depending on what was disclosed, to decide the rehearing application on its merits. Ms Hunt declined our suggestion that an alternative approach would be, as Miller J had anticipated, for her now to apply to engage the Smith jurisdiction, pointing to the current status of Mr Tranter’s search for relevant historic material as being the circumstances on which that application was based.
We approach this decision accordingly. Our focus therefore is not on the Crown’s argument as to the availability, now, of recourse to the Smith jurisdiction. Rather it is whether there is a jurisdictional basis for us to order that there be a substantive hearing for disclosure of the material Mr Tranter believes will — when disclosed — enable him to invoke that jurisdiction.
The Criminal Disclosure Act has as its purpose the promotion of the “fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings”.[7] The phrase “criminal proceedings” is defined in the following way:[8]
[7]Section 3(1).
[8]Section 6(1).
criminal proceedings—
(a) means—
(i) proceedings for an offence for which a conviction may be entered, or for an infringement offence; and
(ii) proceedings before the Youth Court where a child or young person is charged with an offence; and
(b) includes any appeal against conviction or sentence; but
(c) does not include—
(i) any matter ancillary to proceedings (for example, an application for bail or an application for name suppression or an application under section 79 or 101 of the Criminal Procedure Act 2011); or
(ii) any proceedings under the Armed Forces Discipline Act 1971 or any other enactment for any other offence under military law
The issue here, therefore, is whether this proceeding is “any appeal against conviction or sentence”.
In our view, the answer to that question must be “no”. In her minute of 30 May Winkelmann J noted that Mr Tranter had filed a notice of appeal, that his earlier appeal against sentence and conviction had been dismissed, and that Mr Tranter said he had fresh evidence which was relevant to his conviction and recorded, accordingly, that Mr Tranter’s notice of appeal was “to be treated as an application for leave to bring a second appeal”.
Rights of appeal are statutory and are limited. As already noted, the Criminal Procedure Act provides that where a person is convicted in the District Court or High Court of a relevant offence they may appeal that conviction by right to this Court. Thereafter they may, with the leave of the Supreme Court, appeal their conviction to that Court. That is their final statutory appeal.
Once those rights have been exercised, there is — as the Crown submitted — a very limited basis for the Court to do more. In order to invoke the Smith jurisdiction, leave is required. It is no answer to that requirement to seek to invoke the Criminal Disclosure Act in the hope of finding an evidential basis upon which such an application might be made. There is, at that point and in terms of the definition of criminal proceedings, no “appeal” and thus no criminal proceedings in which that application may be brought.
That is not to say that Mr Tranter is, in the circumstances, without remedy. As the Crown suggested, he may make an application for a reference to the Governor‑General.
Mr Tranter’s application is, therefore, declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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