R v Saxton [2009] NZCA 61; [2009] 3 NZLR 29; (2009) 24 CRNZ 197 (9 March 2009)

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/2008
[2009] NZCA 61

THE QUEEN



v



MORGAN DAVID SAXTON

Hearing: 19 February 2009

Court: Glazebrook, Robertson and Arnold JJ

Counsel: Dr G J X McCoy and C B Morrall for Appellant
F E Guy Kidd for Crown

Judgment: 9 March 2009 at 10.30 am

JUDGMENT OF THE COURT

We grant leave to the appellant’s personal representative to continue the appeal.

REASONS OF THE COURT

(Given by Arnold J)

[1] Following a judge alone trial before Judge MacAskill, the appellant, Morgan Saxton, was convicted jointly with his father, David Saxton, on one representative count of theft of pounamu, the property of Te Runanga o Ngai Tahu. The appellant was sentenced to a term of imprisonment of two years six months and his father to a term of two years nine months imprisonment. In addition, they were ordered to pay reparation of $300,000, on the basis that liability was joint and several.
[2] Both the appellant and his father filed appeals against conviction and sentence. Having begun to serve their sentences, both applied for, and were granted, bail until the outcome of their appeals was known. While on bail and awaiting a fixture for the hearing of the appeal, the appellant died in a helicopter accident. As the appellant died intestate, letters of administration on intestacy were granted to his mother. As his personal representative, Mrs Saxton wishes to continue the appeal. The question before us is whether she may do so.
[3] In support of the application, Dr McCoy took what could fairly be described as the high ground. His position developed somewhat in the course of the hearing, but the essence of his argument was that by virtue of s 383(1) of the Crimes Act 1961 and s 25(h) of the New Zealand Bill of Rights Act 1990 (NZBORA) the appellant’s personal representative was entitled to continue the appeal. Relevantly:

(a) Section 383(1) provides that a person convicted on indictment may appeal to the Court of Appeal against conviction and/or sentence.

(b) Section 25(h) provides that a person convicted of an offence has “the right to appeal ... according to law to a higher court” against conviction and/or sentence.

[4] Although initially Dr McCoy submitted that the appellant him or herself had to lodge the appeal, on reflection he modified his position, submitting that the combination of s 383 of the Crimes Act and 25(h) of NZBORA meant that a personal representative could initiate and prosecute an appeal on behalf of a person who had died subsequent to conviction, whether or not that person had manifested an intention to appeal. He submitted that this was a matter of right, rather than being at the discretion of the Court.
[5] For the Crown Ms Guy Kidd noted that neither the Crimes Act nor the Court of Appeal (Criminal) Rules 2001 (the Rules) provide for what should happen to an appeal where the appellant dies prior to the hearing of the appeal. In particular, there is nothing that specifically provides for the substitution of the personal representative of a deceased appellant. Accordingly, she submitted, r 45 of the Rules came into play. That rule provides:

45. Cases not provided for in rules

In any matter not expressly provided for by these rules, the Court may give any direction that it thinks best calculated to carry out the purposes of Part 13 of the Act or other relevant Act.

Part 13 of the Crimes Act deals with appeals and includes s 383.

[6] Based on a review of the relevant authorities, Ms Guy Kidd submitted that the Court had jurisdiction to determine an existing appeal after death, but it should be exercised “sparingly and in exceptional circumstances”. Responsibly, she accepted that the present case could properly be seen as an exceptional one given:

(a) The significant reparation order against the appellant, which constitutes a debt owed by the appellant’s estate to the Crown.

(b) The fact that the appeal lodged by the appellant’s father will proceed in any event, and that appeal necessarily raises many of the same issues as are raised by the appellant’s appeal.
[7] We propose to grant leave on the basis articulated by Ms Guy Kidd. The broader question raised by Dr McCoy is one which is better left for resolution on another occasion. We now explain why.
[8] This Court has held, albeit without extensive discussion, that there is jurisdiction to allow an existing appeal to proceed even though the appellant has died. In R v Beri CA456/03 29 June 2004 the appellant had been convicted of various drug offences. An order had been made under s 32 of the Misuse of Drugs Act 1975 for the forfeiture of approximately $35,000 found in the appellant’s possession. The appellant appealed against that order. The appeal was to be heard on the papers. The appellant filed written submissions, to which the Crown responded. The appellant then filed written submissions in reply to the Crown’s submissions. Shortly after, he died. Despite the appellant’s death, the Court determined the appeal. The Court said:

[10] We know that the appellant died after lodging his reply with this Court. Given the financial nature of the present appeal, we do not regard this appeal as having lapsed, see Barrett v Sarten [1982] NZHC 48; [1982] 2 NZLR 757 and we consider it appropriate to determine the appeal on the material before us.

[9] Barrett v Sarten concerned a Crown appeal to the High Court by way of case stated under s 107 of the Summary Proceedings Act 1957 against a District Court Judge’s decision to dismiss certain informations. Prior to the hearing of the appeal, the respondent died. Thorp J struck out the appeal. The Judge considered various New Zealand and English authorities and, on the basis of his review, set out a number of principles: at 761–762. One was that in general an appeal would not be permitted to proceed where the appellant died prior to the hearing, but there was an exception where the appellant’s estate remained liable for a pecuniary penalty and there were procedures available for substituting or joining the deceased’s personal representative.
[10] In R v K CA354/02 1 December 2004 an appeal was adjourned for further argument. Before the hearing resumed the appellant died. Having noted that the appellant had not abandoned the appeal and that neither the Crimes Act nor the Rules expressly dealt with the position, the Court held that the case fell within r 45. Although the Court acknowledged the existence of decisions such as Beri, it did not determine the jurisdiction point, but simply noted that the Court’s usual practice on the death of an appellant is to treat the appeal as having lapsed, and caused the file to be noted accordingly.
[11] As both counsel noted, in other jurisdictions a different approach has been taken despite the existence of appeal provisions in similar terms to those of s 383(1). For example, in the United Kingdom the leading authority is R v Kearley (No 2) [1994] 2 AC 414 (HL). There the House of Lords considered a statutory right of appeal in similar terms to s 383(1). The appellant was convicted of drug offences and was the subject of a confiscation order, against which he appealed. He died before the appeal could be determined. Their Lordships held that as a matter of statutory interpretation the right of appeal was personal to the convicted person: at 422 per Lord Jauncey of Tullichettle. Their Lordships were “fortified” in this conclusion by the decision in R v Jefferies [1968] 1 QB 120 (CA). In that case the deceased had been convicted on indictment and ordered to pay an amount towards the cost of the prosecution. He applied for leave to appeal against conviction and sentence but died before that was determined. His widow sought to maintain the application. Delivering the judgment of the Court, Widgery LJ said (at 124):

Whatever may be the powers of courts exercising a jurisdiction that does not derive from statute, the powers of this court are derived from, and confined to, those given by the Criminal Appeals Act 1907. We take it to be a general principle that whenever a party to the proceedings dies, the proceedings must abate, unless his personal representatives both have an interest in the subject matter and can by virtue of the express terms of a statute (or from rules of court made by virtue of jurisdiction given by statute) take the appropriate steps to have themselves substituted for the deceased as a party to the proceedings. Although in this case the estate would benefit if the widow were allowed to continue the appeal and were successful, there is no procedure whereby she can be substituted as an appellant, and we do not see how there can be an inherent power in the court to allow this when the appeal is itself a creature of statute.

[12] Returning to Kearley, Lord Jauncey went on to recognise that there might be some injustice if a deceased appellant’s estate was obliged to suffer a wrongly imposed pecuniary penalty as a result of the absence of some procedure for challenging the order: at 422–423. (Subsequently, legislative amendments were made to permit the continuation of an appeal in such circumstances.)
[13] It must be recognised, however, that the statutory context discussed by their Lordships in Kearley was different from that in New Zealand in that there was no equivalent of r 45, or of s 25(h).
[14] The approach adopted by the House of Lords may be contrasted with that taken by the Supreme Court of Canada. That Court has held that where a criminal appellant dies, the appellate court retains jurisdiction to proceed “in the interests of justice”, but the jurisdiction should be exercised sparingly: see R v Smith [2004] 1 SCR 385 (SCC) at [20]. As we do not propose to address the broader questions raised by Dr McCoy, we will not embark on a detailed analysis of this decision, or the relevant Australian decisions. It is sufficient to say that they reflect varying approaches.
[15] Turning to the present case, we acknowledge that Beri was a different and easier case, given that the appeal there was being dealt with on the papers and the appellant had supported his appeal, and responded to the Crown’s submissions, in writing. Despite that, we are satisfied that there is jurisdiction under r 45 to allow the personal representative of an appellant to continue an appeal. One factor which may, in appropriate cases, justify the exercise of the discretion is where the personal representative of the deceased appellant has a continuing financial interest in the outcome of the appeal. As there is such an interest here given the reparation order, and for the additional reason that the father’s appeal (which raises similar issues to those raised in the present appeal) will continue in any event, we are satisfied that this is a proper case for the exercise of the jurisdiction.
[16] Accordingly we grant leave to the appellant’s personal representative to continue the appeal.

Solicitors:
Crown Law Office, Wellington