R v Manawatu CA111/05 [2006] NZCA 485; (2006) 23 CRNZ 833 (10 November 2006)

Last Updated: 4 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA111/05
_CA112/05

THE QUEEN

v

CHRISTOPHER JOHN MANAWATU

Hearing: 31 July 2006

Court: Hammond, Chambers, O’Regan, Robertson and Ellen France JJ Counsel: A J Ellis, A Shaw and A Wills for Appellant

B J Horsley and T M A Luey for Crown

Judgment: 10 November 2006 at 2.00 pmat 2.00 pm

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

_{(Given by O’Regan J)}

R V CHRISTOPHER JOHN MANAWATU CA CA111/05 10 November 2006

Table of Contents

_{Para No}

Introduction [1] Sentences were appropriate [4] Grounds of appeal [5] Section 398: Declaration of Inconsistency [8] Reduction of sentence: s 398 [14] Reduction of sentence: delay [18] Is a reduction in sentence the appropriate remedy? [20]
Has there been undue appellate delay? [51]
Result [55]

Introduction

[1] The appellant, Christopher John Manawatu, appeals against the following sentences imposed on him in the High Court:

(a) The sentence imposed by Tipping J in the High Court at Timaru on

9 November 1995 after Mr Manawatu pleaded guilty to one charge of aggravated robbery and one charge of driving while disqualified (second or subsequent offence). The charges arose from an incident in which Mr Manawatu stole two bottles of wine from a liquor store. When the store owner approached him, he hit the owner over the head with one of the wine bottles. He then drove away from the scene, despite being a disqualified driver. He was sentenced to three years imprisonment for the aggravated robbery and a concurrent term of six months imprisonment for driving while disqualified;

(b) The sentence imposed by William Young J in the High Court at Timaru on 26 February 1998. Mr Manawatu had pleaded guilty to three charges of manslaughter, one charge of reckless driving causing injury and one excess blood alcohol charge. The charges arose from an incident involving reckless driving by Mr Manawatu while grossly intoxicated which led to a serious road accident. Three of

Mr Manawatu’s passengers, including his brother, were killed. Mr Manawatu and another passenger were injured. He was sentenced to eight years imprisonment on each of the manslaughter charges, four years imprisonment on the reckless driving charge and three months imprisonment on the excess blood alcohol charge, all of the sentences being concurrent. He was also disqualified from holding or obtaining a driver’s licence for eight years, and made the subject of a databank compulsion order.

[2] In 1995, Mr Manawatu appealed against the 1995 sentence. That appeal was dismissed: CA516/95 12 February 1996. He also appealed against the 1998 sentence. That appeal was dismissed: CA414/98 11 March 1999. In both cases, the appeal was dealt with under the ex parte procedure which was found to be invalid by the Privy Council in its decision in R v Taito [2003] 3 NZLR 577. The Privy Council remitted the appeals of each of the appellants in Taito to this Court for hearing (at [25]).

[3] Mr Manawatu was not one of the appellants in Taito, but his appeals had been dealt with on the same basis as those of the Taito appellants. His position is therefore governed by the decision of this Court in R v Smith [2003] 3 NZLR 617. In that decision, this Court ruled that appellants whose appeals had been dealt with in this Court under the same procedure as that applying to the Taito appellants could seek a rehearing by simply writing a letter to this Court. In Mr Manawatu’s case, that process was invoked by a letter sent by his lawyer, Mr Ellis, to the Registrar of this Court on 29 March 2005.

Sentences were appropriate

[4] As unusual aspect of this appeal is that Mr Manawatu takes no issue with the sentences which were imposed on him by Tipping J and William Young J. The logical consequence of that concession is that the result of the initial appeals was correct, though the process leading to the decisions was flawed. In the light of this concession, we say no more about the circumstances of Mr Manawatu’s offending and the original sentencing decisions, other than to observe that, having considered

the sentencing notes and the earlier appeal decisions of this Court, we consider the concession was rightly made.

Grounds of appeal

[5] The grounds of appeal advanced on behalf of Mr Manawatu fall into two categories, namely:

(a) The application of s 398 of the Crimes Act 1961; (b) Undue appellate delay.

[6] In relation to the former, Mr Manawatu seeks a declaration that s 398 contravenes ss 14, 25(a) and 25(h) of the New Zealand Bill of Rights Act 1990 (Bill of Rights) and another declaration that s 398 contravenes arts 14(1), 19(2) and 26 of the International Covenant on Civil and Political Rights 1966 (ICCPR).

[7] In addition, Mr Manawatu seeks a reduction in the sentences imposed on him because of undue appellate delay and also because of the application of s 398 of the Crimes Act.

Section 398: Declaration of Inconsistency

[8] We can deal with the issues raised in relation to s 398 briefly. [9] Section 398 provides:

398 Judgment of Court of Appeal—

(1) Unless the Court of Appeal directs to the contrary in cases where, in the opinion of the Court, the question is a question of law on which it would be convenient that separate judgments should be pronounced by the members of the Court, the judgment of the Court of Appeal on any appeal or motion under this Act, and the opinion of the Court of Appeal on any point referred to it or question of law reserved under this Act, shall be pronounced by the presiding Judge or such other member of the Court hearing the case as the presiding Judge directs, and no judgment with respect to the

determination of any question shall be separately pronounced by any other member of the Court.

(2) Every judgment of the Court of Appeal on an appeal or application under this Part (other than one relating to a preliminary or incidental matter) must be accompanied by reasons.

[10] Section 398 was first enacted as s 18 of the Criminal Appeal Act 1945. It reflected the equivalent provision in the Criminal Appeal Act 1907 of the United Kingdom. A similar provision continues in force in relation to the decisions of the criminal division of the Court of Appeal of England and Wales: s 59 of the Supreme Court Act 1981 (UK). The UK provision provides that the presiding Judge, rather than the Court, determines whether it is convenient that separate judgments be pronounced. Counsel for Mr Manawatu, Mr Ellis said he was unaware of any challenge or criticism of the UK provision.

[11] Mr Ellis said s 398(1) discriminated against criminal appellants because there is no equivalent provision relating to civil appeals. He was critical of the Judges of this Court for what he said was their failure to speak out against s 398(1) and the heavy workload of this Court which he suggested led to fewer dissenting judgments than would be the case in a less pressured court.

[12] In fact, s 398(1) is in the process of being repealed. This process was instigated by the Judges of this Court. The President wrote to the Rules Committee on the Court’s behalf on 31 August 2004 recommending the repeal of s 398(1). That recommendation was adopted by the Rules Committee and the Government, and a new clause (cl 14A) was added to the Criminal Procedure Bill currently before the House at the Select Committee stage. Clause 14A provides:

14A Judgment of Court of Appeal

Section 398 of the principal Act is amended by repealing sub-section (1).

[13] Accordingly, this Court’s position on s 398 has been raised through the appropriate channel with the Government, and the Government has accepted the recommendation and introduced legislation to repeal the provision. In those circumstances, a declaration by this Court that s 398 is inconsistent with the Bill of Rights or the ICCPR would be gratuitous and unnecessary, even if the Court were

satisfied that such an inconsistency existed. Thus, even if there were jurisdiction to grant declarations of inconsistency either with domestic legislation or international covenants (bearing in mind this is a criminal appeal under s 383 of the Crimes Act), this would clearly not be a case where it would be appropriate to make such a declaration. We therefore decline to do so.

Reduction of sentence: s 398

[14] The application for a reduction in sentence relies principally on appellate delay, but the existence of s 398 is also said to justify such a reduction. Before turning to appellate delay, we comment briefly on the s 398 aspect of this part of the appeal.

[15] Mr Ellis suggested that Mr Manawatu was affected in some way by s 398(1) in the way his appeals were dealt with because s 398(1) would have limited the possibility of a dissenting view being expressed by one of the Judges who dealt with the 1995 appeal or the 1998 appeal. We disagree. The pre-Taito ex parte process applied only where there was unanimity among the Judges considering legal aid and among those considering the appeal itself. So, whatever faults there were in the process by which the appeals were dealt with, there was no s 398(1) issue. More importantly, the effect of the Privy Council decision in Taito was to invalidate the appeals conducted under the process which was the subject of the Taito decision. While, as mentioned earlier, the decision in Taito affected only the parties to that appeal, the decision of this Court in Smith effectively extended the benefit of the Taito decision to others whose cases had been dealt with under the pre-Taito system, as long as they notified the Court that they wished to avail themselves of that opportunity.

[16] The effect of Smith is that appeals conducted under the pre-Taito system remain valid until formally set aside, but that a request that the earlier appeal be set aside can be made by a simple letter seeking a rehearing: Smith at [68]. While Smith uses the term “rehearing”, in contrast to Taito which ordered a “hearing”, we do not think that there is anything in this terminological difference. In our view, it is clear that the intention of the Court in Smith was to extend the benefit of the Taito

decision to all appellants who had had their appeals dealt with by the pre-Taito system, as long as such appellants indicated their desire that this occur by sending a letter to that effect to the Court. Mr Manawatu did this, and the result of that is that his earlier appeals are treated as if they had been invalid. The present hearing is treated as a de novo hearing of his sentence appeals.

[17] The upshot of that analysis is that, even if s 398(1) had had any bearing on his 1996 and 1999 appeals, that could have no relevance to the present situation because the present exercise involves the Court starting again. Accordingly, the s 398 issue is moot in the case of Mr Manawatu. Mr Ellis asked us to deal with the issue even if we considered it to be moot but that would be pointless and we decline to do so.

Reduction of sentence : delay

[18] There are two elements to this aspect of the case. These are:

(a) Has there been undue appellate delay in the present case?

(b) If there has been, is a reduction in sentence the appropriate remedy? [19] The view we take on the latter issue makes it unnecessary for us to decide the

former. For that reason we will deal with reduction in sentence first.

Is a reduction in sentence the appropriate remedy?

[20] Mr Manawatu seeks as a remedy for unreasonable appellate delay a reduction in his sentence. A similar claim for reduction of sentence came before this Court in R v Dean CA172/03 17 December 2004. In that case the Court declined to consider the claim because there were practical reasons precluding a reduction of sentence even if it was otherwise appropriate.

[21] Mr Ellis said this case was different from Dean: in this case a reduction in sentence would be of practical utility to Mr Manawatu because he is now imprisoned

for a term which was wholly or partly cumulative with his sentencing for the 1998 offending. We sought confirmation of this from counsel, and a copy of the sentencing notes of Judge P.A. Moran dated 8 October 2004 (DC CHCH CRN 4076009704 and CRN 4076009705) were made available to us.

[22] Judge Moran sentenced Mr Manawatu to a term of imprisonment of two and a half years on a charge of injuring with intent to injure and a concurrent term of six months imprisonment on a charge of threatening to kill. These charges arose out of an incident involving Mr Manawatu and his partner in August 2004, while Mr Manawatu was on parole from the 1998 sentence. Mr Ellis is correct that the sentence of two and half years imposed by Judge Moran is cumulative on the 1998 sentence. This is stated at [9] of the sentencing notes. The Judge noted in the same paragraph that Mr Manawatu’s release date for the 1998 sentence was 23 September

2005.

[23] The position is, therefore, that Mr Manawatu is technically still subject to the

1998 sentence, even though that sentence would have been spent if he had not reoffended and been sentenced to a cumulative term of imprisonment by Judge Moran. That is so because the effect of the cumulative sentence imposed by Judge Moran was that Mr Manawatu became subject to a notional single sentence equal to the length of the two sentences (Judge Moran’s sentence and the unexpired portion of the 1998 sentence): s 75 of the Parole Act 2002.

[24] That means that there would be a benefit to Mr Manawatu if we were to reduce the 1998 sentence, because the result would be a reduction of the notional single sentence to which he is now subject. However, the circumstances leading to that position are essentially matters of chance. If Mr Manawatu had not reoffended, or if Judge Moran had imposed a longer but concurrent sentence, the 1998 sentence would now be spent and the remedy of reduction of sentence would be unavailable to Mr Manawatu.

[25] However, as the remedy is at least technically open to Mr Manawatu and we heard full argument on the point, we will set out our views on the arguments made on behalf of Mr Manawatu in support of the contention that a reduction in sentence

would be an appropriate remedy in this case if we were to find there had been undue appellate delay in breach of s 25(b) of the Bill of Rights.

[26] Mr Horsley accepted on behalf of the Crown that a reduction in sentence may be an appropriate remedy for a breach of the Bill of Rights, and said that this had been a position taken by the Crown in its arguments in R v Shaheed [2002] 2 NZLR

377 (CA). He noted the observation made by Lord Bingham of Cornhill in Attorney- General’s Reference (No 2 of 2002) [2004] 2 AC 72 at [24] that where unreasonable delay is established after a hearing, the appropriate remedy may be “a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant”.

[27] He also pointed to the decision of the Supreme Court of Canada in Mills v The Queen [1986] 1 SCR 863, and subsequent Canadian decisions such as R v Carpenter (2002) 165 CCC (3d) 159 (a decision of the Court of Appeal of British Columbia) in support of that proposition.

[28] A reduction in sentence may be an appropriate remedy for a breach of the Bill of Rights in some circumstances, but we do not need to determine the point in the present case because we are satisfied that there is no proper basis for the granting of such a remedy to Mr Manawatu. We therefore leave it open. However, the discussion that follows proceeds on the basis that the remedy sought by Mr Manawatu may be available.

[29] In assessing whether a reduction in sentence would be appropriate in this case, the starting point is the decision of the Privy Council in Taito itself. In that case, it was suggested to Their Lordships that the appropriate remedy for those who had appealed against conviction and had their appeals dismissed under the pre-Taito system was an order that their convictions be quashed. This was described by the Board as an “ambitious submission” and rejected. Their Lordships said at [22]:

This argument must be rejected and Their Lordships are satisfied that the

Court of Appeal should not be troubled with it on a rehearing of the appeals.

[30] Thus, the only remedy provided by the Privy Council decision in Taito was the allowing of the Privy Council appeal and the remitting of each appellant’s appeal to this Court for hearing. The failure to provide a valid appeal was remedied by providing a valid appeal.

[31] At the hearing of Mr Taito’s appeal against conviction following its remission to this Court by the Privy Council, the argument that had not found favour with their Lordships was renewed. This Court adopted their Lordship’s decision: R v Taito [2005] 2 NZLR 815 at [75]. It then considered an additional factor which had not been known at the time of the Privy Council appeal, namely the unavailability of certain documents relating to Mr Taito’s trial, which resulted from the delay in the hearing of the appeal. The Court concluded that there was no real likelihood of a miscarriage of justice having arisen as a result of the delay and dismissed the appeal. A similar approach was taken by this Court in R v Jessop CA13/00 19 December

2005 at [57] – [61].

[32] By invoking the procedure in Smith, Mr Manawatu has also become entitled to the remedy provided to the Taito appellants though, it has to be said, it has not had great utility for him because his appeals lack merit, as his counsel has acknowledged. That fact also means that he has suffered no real harm, in the sense that his sentences are unaffected by the invalidity of his earlier appeals.

[33] Mr Horsley suggested that a reduction in sentence would be an appropriate remedy where a finding of undue appellate delay has been made only in the two following situations:

(a) Where the appeal is successful on its merits and results in an amendment to the conviction or sentence;

(b) Where the undue delay has resulted in a change in the appellant’s circumstances that makes the impact of the original sentence harsher than it would otherwise have been.

[34] Mr Horsley said that neither of these situations applied in this case, and that the provision of an opportunity for a valid hearing of Mr Manawatu’s appeal was therefore a sufficient remedy.

[35] Mr Shaw accepted that neither of the two circumstances described above applied in the case of Mr Manawatu, because his appeals were inherently meritless. But he argued that a reduction in sentence was still appropriate, relying on the decision of the Privy Council in Mills v H M Advocate [2004] 1 AC 441, and a number of decisions of the European Court of Human Rights (ECHR) and the United Nations Human Rights Committee (UNHRC). He placed particular reliance on the decision in Mills, which he said was a case where undue delay in the hearing of a meritless appeal still led to a reduction in the sentence imposed on the appellant, and that reduction was found by Their Lordships to have been an appropriate remedy. Evaluation of that submission requires us to consider in some detail the situation which arose in Mills.

[36] Mr Mills was convicted of theft of a vehicle and of assaulting a police officer by driving the vehicle at him and then causing the officer to be thrown from the vehicle against a wall. He was sentenced to detention for eight years and six months. The conviction was entered in October 1996 and he was sentenced in November

1996. Initially he appealed against his sentence, but in May 1997 he sought to appeal against his conviction on the ground of fresh evidence (which was said to establish he was not the driver of the vehicle which struck the police officer). In June 1998 the Court allowed supplementary grounds of appeal against conviction to be received. In February 1999 it decided to allow the evidence of one eye witness and a number of other witnesses relevant to credibility. The evidence of these witnesses was to be heard on 6 May 1999, but on that date the Crown sought an adjournment to allow it time for further preparation. Mr Mills was then granted bail, having served just under three years of his sentence.

[37] There was then an interval of two years until 9 May 2001 when the Court finally heard the fresh evidence. On 10 May it dismissed the appeal on the ground that the fresh evidence was not capable of being regarded by a reasonable jury as credible. However it allowed Mr Mills to lodge a further ground of appeal alleging

breach of his rights under art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms arising from the delay in dealing with his appeal.

[38] In August 2001 the Appeal Court of the High Court of Justiciary determined this ground of appeal and reduced the original sentence of detention by a period of nine months. However, it declined to quash the conviction.

[39] The decision of the Appeal Court, Her Majesty’s Advocate v Mills 2001 SLT

1359 was delivered by Lord Coulsfield. The Court noted that, since his release on bail, Mr Mills had been in no trouble, and at the time of the appeal he lived with his partner and their six week old child and had part-time employment. The Court accepted that Mr Mills’ appeal had been “entirely without merit”, but noted that the delay in dealing with his appeal had involved two elements of prejudice to the appellant. These were identified (at [15]) as follows:

One is the anxiety which results from prolongation of the proceedings. The second is the fact that the appellant’s life has changed in ways which will lead to additional problems and possibly hardships for himself and his family if he has to return to prison.

[40] The Court determined that a reduction in sentence of nine months (from eight years and six months to seven years and nine months), which would leave Mr Mills with about six months of the original sentence to serve before becoming entitled to parole, was an equitable result, and ordered accordingly.

[41] The Lord Advocate did not appeal against the decision, but Mr Mills took an appeal to the Privy Council against the decision not to quash his conviction. The decision of the Privy Council therefore focuses on that issue, which is not directly relevant to the present case. The Privy Council dismissed the appeal, finding that the quashing of the conviction was not an appropriate remedy in the circumstances. The Privy Council endorsed the reduction in sentence as an appropriate remedy to compensate Mr Mills for the effect of the delay in determining his appeal.

[42] In the course of his judgment Lord Hope of Craighead referred to the prejudice caused to Mr Mills (by reference to the observations of Lord Coulsfield

quoted at [39] above) and expressed the view that the decision of the High Court of Justiciary had provided “an appropriate and sufficient remedy. It meets with the requirements indicated by the jurisprudence of the European Court” (at [56]).

[43] The other major judgment was that of Lord Steyn. In considering the question of the appropriate remedy for undue delay, he said at [15] – [16]:

The separate question of remedies available in respect of a breach of the guarantee of a hearing within a reasonable time must now be considered. The Court is entitled to be informed of all factors logically relevant to the appropriateness of the remedy. In a post conviction case, for example, the fact that the accused’s guilt was established at trial and that an unmeritorious appeal was dismissed, is undoubtedly a relevant factor in considering what remedy, if any, to grant.

The remedies available could include an order for discontinuance of a prosecution, quashing of the conviction, reduction of the sentence, monetary compensation or a declaration. A finding of a violation of a guarantee may itself sometimes be a sufficient vindication of the right: Eckle v Germany (1983) 13 EHRR 556, 560, para 24.

[44] Lord Steyn expressed the view that the reduction in sentence was “a just disposal in the spirit of article 6(1)” (at [23]).

[45] Mr Shaw submitted that the Privy Council’s decision in Mills was authority for the proposition that where an appellant suffers undue delay in the hearing of his appeal, his sentence should be reduced even if the appeal itself is meritless. He said Mr Manawatu was in that situation and is therefore entitled to that remedy.

[46] We do not accept Mr Shaw’s submission. The Privy Council decision in Mills is authority for the proposition that the quashing of a conviction in a case like that of Mr Mills is unwarranted. We accept that the Privy Council also determined that a reduction in sentence may be an appropriate remedy, even where the appeal is meritless. But we think the extract from the judgment of Lord Coulsfield quoted at [39] above makes it clear that the matters which weighed on the Appeal Court in the making of its decision to reduce Mr Mills sentence were the elements of prejudice identified there.

[47] In the present case, there is no identifiable prejudice to Mr Manawatu. He was not “left hanging” in relation to his initial appeals because they were determined

promptly and correctly identified as being meritless. The fact that he may have an opportunity for a rehearing of his appeal would not have become apparent until after the Privy Council decision in Taito which means that the element of anxiety identified in Mills does not apply in this case. We conclude, therefore, that this case is distinguishable from Mills and that in the circumstances of this case the appropriate remedy is the hearing of Mr Manawatu’s appeal. That remedy has now been granted.

[48] Mr Shaw sought to support his submission by reference to a number of decisions of the UNHRC and one decision of the ECHR. We have considered all of those cases but we did not find them to be of assistance because the facts of each of them bear no resemblance to those of the present case. Mr Shaw realistically accepted that the case most closely resembling the present was Mills, but for the reasons we have given we do not think it is on point with this case either.

[49] Subsequent to the hearing, Mr Ellis drew our attention to the decision of the Privy Council in Prakash Boolell v The State [2006] UKPC 39, on appeal from the Court of Appeal of Mauritius. In that case, the Privy Council reduced the appellant's sentence as a remedy for a breach of his right under the constitution of Mauritius to a fair trial within a reasonable time. However, the facts of that case are so different from those of the present case that we found the decision of no assistance in the resolution of the present appeal.

[50] We are satisfied that, in the absence of any evidence of actual prejudice to Mr Manawatu from the delay in hearing his appeal, it would not be appropriate to grant him a remedy of reduction in sentence, even if he had established a breach of the Bill of Rights and the Court was of the view that reduction of sentence was an available remedy. Accordingly, we reject this ground of appeal. Even if there had been some prejudice, the unusual circumstances of this case (detailed at [22] - [24] above) would have made Mr Manawatu an inauspicious candidate for the award of a discretionary remedy.

[51] On behalf of Mr Manawatu, it was contended that there has been undue appellate delay in that his initial appeals had been filed in November 1995 and November 1998 respectively, and not validly heard until 31 July 2006. The delay was said to be almost ten years in relation to the former and almost six years in relation to the latter.

[52] That calculation was made on the basis that the correct starting point for the calculation was the date on which the appeals were filed. That meant the period up to the time of the Privy Council decision in Taito (March 2002), at which time the flaws in the way Mr Manawatu’s earlier appeals were conducted were identified, was treated as a period of delay. After the decision in Taito, there was a period of about nine months until the decision of this Court in Smith, following which there was a publicity campaign to advise pre-Taito appellants of the opportunity for a rehearing. This meant Mr Manawatu could reasonably have instigated the process for a rehearing in mid-2003. In fact he did so in March 2005. Since then another

16 months passed before the present hearing took place.

[53] A number of issues arise from this scenario. In particular, is it correct to measure delay from the time of the original notices of appeal, when, in fact, the original appeals were dealt with promptly under the pre-Taito system, and only became subject to rehearing in March 2005? And how much of the 16 months from March 2005 to the date of hearing can be fairly said to involve any “undue” delay by the Crown or the Court? There was considerable dispute about both these issues, and about the ultimate issue of whether, on the unusual facts of this case, there has been delay in the appellate process that is “undue”.

[54] We do not propose to resolve those issues in this case. As the only remedy sought by Mr Manawatu (reduction of sentence) would not be an appropriate remedy on the facts of this case, a finding one way or the other has no practical implications for Mr Manawatu. We prefer to reserve the Court’s position on these matters for a case where the decision affects the actual outcome of the appeal.

[55] We dismiss the appeal.

Solicitors:

Crown Law Office, Wellington