Department of Corrections v Hall [2012] NZCA 309 (17 July 2012)

Court of Appeal of New Zealand

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Department of Corrections v Hall [2012] NZCA 309 (17 July 2012)

Last Updated: 25 July 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA767/2011 [2012] NZCA 309

BETWEEN THE DEPARTMENT OF CORRECTIONS Appellant

AND SHANON JOHN GEORGE HALL Respondent

Hearing: 3 July 2012

Court: Ellen France, Randerson and Stevens JJ

Counsel: M J Lillico for Appellant R M Lithgow QC for Respondent N J Sainsbury on behalf of the Criminal Bar Association as Intervener

Judgment: 17 July 2012 at 2.30 p.m.

JUDGMENT OF THE COURT

The appeal is dismissed.
___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] This appeal raises an issue about the meaning of the term “legally represented” for the purposes of s 30(1) of the Sentencing Act 2002. In particular, when a defendant is represented in court by a duty lawyer, does that amount to legal representation for the purposes of the section?
[2] The appeal was brought by the Solicitor-General under s 144 of the Summary Proceedings Act 1957 (the SPA) against a decision of MacKenzie J on an appeal from the District Court.[1] Leave to appeal to this Court was later granted by MacKenzie J.[2]
[3] The respondent Mr Hall was sentenced in the District Court in Nelson to two months imprisonment after pleading guilty to a charge of failing to report for community work. When he appealed to the High Court, MacKenzie J allowed the appeal and substituted a sentence of home detention for one month. He did so on the basis that it was not safe to assume that Mr Hall’s decision to enter a guilty plea, based only on advice from the duty lawyer, was a fully informed decision.
[4] In consequence, MacKenzie J held that Mr Hall could not be said to have been legally represented by the duty lawyer for the purposes of s 30 of the Sentencing Act. That section provides:

30. No sentence of imprisonment to be imposed without opportunity for legal representation

(1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2).

(2) Subsection (1) does not apply if the court is satisfied that the offender—

(a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and

(b) fully understood those rights; and

(c) had the opportunity to exercise those rights; and

(d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her.

(3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either—

(a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or

(b) quash the conviction and direct a new hearing or trial, or make any other order that justice requires

(4) For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender—

(a) refuses or fails to apply for legal aid under the Legal Services Act 2000 or applies for it unsuccessfully; and

(b) refuses or fails to engage counsel by other means.

[5] The Solicitor-General, represented by Mr Lillico, challenges MacKenzie J’s finding under s 30, submitting that an appearance in court by a duty lawyer when a defendant enters a guilty plea will generally be sufficient to constitute legal representation for the purposes of s 30(1) unless there is evidence of some irregularity or shortcoming in the representation. In this respect, the Solicitor-General submits that the decision of this Court in R v Long[3] remains good law. Importantly, the Solicitor-General does not seek to challenge the sentence substituted by MacKenzie J. Rather, the Solicitor-General’s objective is to clarify the law for future cases.
[6] Mr Lithgow QC for Mr Hall questions whether the Solicitor-General is the correct party to the appeal and also submits that this Court has no jurisdiction to entertain the appeal. On the merits, he submits that the conclusion reached by MacKenzie J was correct given developments in the law since Long was decided. These developments include the passage of the New Zealand Bill of Rights Act 1990 (particularly s 24(c) and (f)) and the importance of legal representation in criminal proceedings emphasised by the Supreme Court in Condon v R.[4]
[7] The issues arising are therefore:

• (a) Who is the correct appellant?
• (b) Does this Court have jurisdiction in respect of the appeal?
• (c) Should this Court express a view on the meaning of “legal representation” for the purposes of s 30(1) of the Sentencing Act?

The detailed facts

[8] On 17 June 2011 a probation officer employed by the Department of Corrections issued an information against Mr Hall alleging a breach of s 71(1)(a) of the Sentencing Act for failing, without reasonable excuse, to report to a probation officer after Mr Hall was sentenced to 200 hours community work. Mr Hall appeared in the Nelson District Court on 13 July 2011 and entered a plea of guilty through a duty lawyer. A pre-sentence report and home detention and community detention appendices were ordered. The District Court Judge who presided when the plea was made noted the following on the information:

NB indicated one to two months jail – no attempt to do sentence – BUT might have good excuse therefore CD and CW appropriate.

[9] On 5 September 2011, Mr Hall appeared for sentence before another Judge of the District Court, Judge Zohrab. He was represented on that occasion by another duty lawyer who requested an adjournment of the sentencing so that an application for legal aid could be made. The District Court Judge recorded this request and the reason for it in his sentencing notes:[5]

Mr Miller is [sic] duty solicitor has been good enough to see Mr Hall and he is concerned about Mr Hall’s situation and has asked that I give consideration to adjourning sentencing so that legal aid can be applied for. Mr Miller’s concern was that he did not feel that given his role as duty solicitor, he was in the position to be able to make the best case possible on behalf of Mr Hall.

[10] The District Court Judge outlined Mr Hall’s personal circumstances and previous convictions before deciding not to defer Mr Hall’s sentencing:[6]

I am not prepared to defer sentencing today Mr Hall. I am sympathetic to your personal situation but I have got to be consistent. That is that I need to impose sentences which are similar to what others are imposed by and deferring sentence is going to have no effect at all. I appreciate prison is going to be difficult for you but you have shown contempt for Court orders over a significant period of time.

[11] The sentence of two months imprisonment was then imposed.

The High Court decision

[12] The issue identified by MacKenzie J was whether Mr Hall was legally represented at the hearing on 13 July 2011 when the guilty plea was entered and Mr Hall was convicted. The Judge noted that this Court in Long had considered the issue of legal representation by a duty lawyer under s 13A of the Criminal Justice Act 1954, the predecessor of the current s 30 of the Sentencing Act. The Judge referred to Cooke J’s finding in Long that:[7]

... if a defendant wishes to be represented by the duty solicitor and the latter intimates to the Court that he appears for the defendant, that will normally constitute legal representation for the purposes of s 13A.

[13] MacKenzie J said that the view expressed in Long had to be considered in the light of developments in the criminal justice system since 1977 including in particular the rights of persons charged with an offence under s 24 of the New Zealand Bill of Rights Act. He went on to consider the current responsibilities of duty lawyers under the Duty Lawyer Service Operational Policy issued by the Ministry of Justice and concluded:[8]

[10] It is not to be expected that a duty solicitor could, in the limited time available for a consultation, take instructions in the level of detail that might be necessary for the giving of meaningful advice as to whether a plea should be entered, in a matter sufficiently serious that a sentence of imprisonment may be in contemplation. The responsibilities described in paragraph 10 of the operational policy suggests that legal advice sufficient for the entry of a plea should be confined to less serious matters where sentencing on the spot would be appropriate.

[11] I consider that, in general terms, there should be a fully informed decision by the defendant to proceed with advice only from a duty solicitor, before the defendant can properly be said to have been legally represented by the duty solicitor. To be a fully informed decision, there should be advice from the duty solicitor about the availability of legal aid and how to apply for it, in a manner analogous to s 30(2). If a defendant elects to proceed with representation by the duty solicitor after having been informed of his rights, then legal representation by the duty solicitor will normally meet the s 30(1) requirement. If there is not a fully informed decision by the defendant to proceed with representation by the duty solicitor, there is no general rule that representation by a duty solicitor will meet the requirement of s 30.

[14] The High Court Judge found that the information available did not indicate that Mr Hall had made a fully informed decision to proceed with advice only from a duty lawyer. He considered it was clear from the District Court Judge’s notes recorded on the information on 30 July 2011 that imprisonment was not seen as inevitable. The Judge took into account the fact that the duty lawyer at the time of sentencing considered an adjournment was required to apply for legal aid and that he did not feel able, as duty lawyer, adequately to represent Mr Hall. This suggested to the Judge that the matter was not so straight forward that a decision to proceed without fuller advice than could be provided by the duty lawyer should be attributed to Mr Hall at the earlier stage when he entered his plea of guilty.
[15] The Judge then concluded:[9]

[14] For these reasons, I consider that it is not safe to assume that the decision to enter the guilty plea based only on advice from the duty solicitor on 13 July was a fully informed one. The consequence is that the appellant cannot be held to have been legally represented on that day.

First issue – who is the correct appellant?

[16] Mr Lithgow submitted on Mr Hall’s behalf that the Department of Corrections was the correct appellant. He pointed to a significant degree of confusion in the intituling at various stages of the court processes. The information was laid by an officer of the Department of Corrections. The appeal to the High Court was a general appeal brought by Mr Hall under s 115 of the SPA, yet the “Nelson Police” were incorrectly stated to be the respondent in the notice of appeal. However, the submissions filed by both Mr Hall and the respondent referred correctly to the Department of Corrections as respondent on the appeal to the High Court. Finally, the High Court judgment had incorrectly described the respondent as “The Queen”.
[17] The application to the High Court for leave to appeal under s 144(1) of the SPA was brought in the name of “The Queen”. After the grant of leave, the appellant was described in the notice of appeal to this Court as “The Solicitor-General”.
[18] Mr Lillico accepted that the correct appellant is the Department of Corrections since the Department was the original informant. An appeal under s 144(1) of the SPA may only be made by a party. Neither “The Queen” nor “The Solicitor-General” were parties.
[19] We regard this point as a procedural technicality. There is no suggestion of prejudice to Mr Hall in consequence of the error. Moreover, we accept Mr Lillico’s submission that the Solicitor-General has a legitimate interest in the subject matter of this appeal given her wider responsibilities in the administration of criminal justice and the specific role of the Solicitor-General under, for example, s 115A(2) of the SPA. The Solicitor-General or Crown counsel may properly appear on behalf of the Department of Corrections to present the appeal. We amend the intituling to substitute “The Department of Corrections” for “The Solicitor-General”.

Second issue – does this Court have jurisdiction in respect of the appeal?

[20] Section 144 of the SPA relevantly provides:

144 Appeal to Court of Appeal

(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

...

[21] Central to this issue is the power to appeal to this Court “against any determination of the High Court on a question of law arising in any general appeal”.
[22] Section 144B(a) of the SPA provides that, on an appeal under s 144, the Court of Appeal has the same power to adjudicate on the proceedings that the High Court had. The High Court’s powers on a general appeal are set out in s 121 of the SPA. This section relevantly provides:

121 High Court to hear and determine appeal

(1) The High Court shall hear and determine every general appeal and make such order in relation to it as the Court thinks fit, and, without limiting the generality of the power conferred by this subsection, may exercise any of the powers referred to in the succeeding provisions of this section.

...

(3) In the case of an appeal against sentence, the High Court may—

(a) Confirm the sentence; or

(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i) Quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or

(ii) Quash any invalid part of the sentence that is severable from the residue; or

(iii) Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

...

[23] Mr Lithgow submitted that the powers of this Court on an appeal under s 144 were limited to those possessed by the High Court under s 121(3). Since the sentence imposed in the High Court was not challenged, this Court lacked jurisdiction. To the contrary, Mr Lillico submitted that, in terms of s 144(1), the Department of Corrections was entitled to appeal “against any determination of the High Court on a question of law arising in any general appeal”. The correct interpretation of s 30(1) of the Sentencing Act was a question of law arising in Mr Hall’s general appeal to the High Court. The powers of the High Court on any general appeal were not confined to those set out in s 121(3) since under s 121(1) the High Court could make such order in relation to the general appeal as the Court thinks fit. Section 121(1) was explicit in stating that the Court may also exercise any of the powers in the succeeding provisions but without limiting the generality of the power under subs (1).
[24] This Court has held on two occasions that there is no right of appeal under s 144(1) of the SPA where, in the lower courts (whether on appeal or otherwise) the appellant has been discharged without conviction under s 106 of the SPA with no other adverse penalty or consequence. In R v Terry,[10] this Court held that s 121 provided a code as to what the High Court may do upon the hearing of an appeal. In the case of an appeal against conviction, the High Court only had the power to confirm, set aside or amend the conviction. Where the conviction had already been set aside by the High Court, this Court could not grant any further relief.[11] It was also held that a decision to quash a conviction is not a “determination” which gives rise to an appeal. Accordingly, there was no jurisdiction.
[25] Similarly, in Colman v Police,[12] this Court refused an application for special leave to appeal in circumstances where, although the charge had been proved, the High Court discharged the offender without conviction. There being no other adverse consequence to the intending appellant, this Court followed its earlier decision in Terry in finding there was no jurisdiction to consider the appeal.
[26] Mr Colman subsequently sought leave to appeal to the Supreme Court under s 144A of the SPA.[13] Relevantly, s 144A provides:

144 Appeal to the Supreme Court

(1) With the leave of the Supreme Court, either party may appeal to the Supreme Court against –

...

(a) a determination of the High Court on a case stated for its opinion under s 107; or

(b) a determination of the High Court (other than a determination made on an interlocutory application (within the meaning of the Supreme Court Act 2003) made in a general appeal; or

(c) a decision of the Court of Appeal on an appeal under section 144(1).

...

[27] The Supreme Court refused leave for Mr Colman to appeal finding:[14]

We are in no doubt that s 144A contemplates an appeal only in relation to determinations on question of law which are material to a judgment which is, in its result, adverse to the proposed appellant.

[28] Of significance for the present appeal, the Supreme Court discussed the meaning of the word “determination” under s 144A and the general appellate principles applying to rights of appeal against intermediate steps in the reasoning leading to the court’s orders. The Supreme Court said:[15]

...It follows that if there is a right of appeal in this case, there will likewise be a right of appeal to any person who was completely successful in the High Court (in terms of result) but claims that the High Court erroneously rejected an alternative argument as to why he or she should have won in that Court. Such a broad and free-standing right of appeal would conform neither to the approach generally taken in relation to the word “determination” where it appears in the Summary Proceedings Act[16] nor to general appellate principles under which rights of appeal relate to the orders made by the courts and not to a judge’s intermediate reasoning steps.[17]

[29] We consider that the reasoning of the Supreme Court is relevant to the issue of jurisdiction in the present appeal under s 144(1). This case is not on all fours with Colman since Mr Hall’s conviction and sentence remain and the appeal is not brought by him but on behalf of the informant. We also note the differences in wording between s 144(1) and s 144A(1). The former speaks of a “determination of the High Court on a question of law arising in any general appeal” while the latter relevantly refers to a “determination” of the High Court made in a general appeal, or a “decision” of this Court on an appeal under s 144(1).
[30] Nevertheless, in the present case, we see parallels in the Supreme Court’s reasoning in Colman. In particular, we consider that the word “determination” in the context of the SPA is generally taken to refer to the outcome of the court process in the form of a conviction, sentence or order. Secondly, despite the rather general terms of s 144(1), to interpret a determination as referring to the outcome is more consistent with the general appellate principle identified by the Supreme Court, namely that rights of appeal generally relate to the orders of the court rather than the intermediate steps in the judge’s reasoning leading to those orders.
[31] Thirdly, the fact that this Court’s powers on appeal under s 144 are confined to those of the High Court under s 121 is relevant. While we have reservations about describing the powers under s 121(2) and (3) as a code (given the broad language of s 121(1)), it is consistent with the general scheme of the SPA to confine rights of appeal to matters which may affect the ultimate outcome of the matter under appeal. In that respect, we note that s 115A(3) of the SPA provides that an appeal by an informant against a sentence of detention lapses once the defendant is released from detention.
[32] We also agree with Mr Lithgow that it would be odd if there were wider grounds of appeal under s 144(1) in respect of summary matters than those available under s 383 of the Crimes Act 1961 in relation to indictable crimes. Under the latter, an appeal may be brought only against a conviction, sentence, or both. Section 383(3) contains a provision similar to s 115A(3) of the SPA. An appeal to this Court against a sentence of detention is deemed to have lapsed once the sentence has been completed. This is consistent with a general statutory intention to limit rights of appeal to matters which may affect the ultimate outcome.
[33] It follows, in our view, that unless an appellant seeks to overturn an adverse consequence (whether through error of law or otherwise), an appeal under s 144(1) to this Court will not lie. Since the Department of Corrections does not seek to challenge or overturn the substituted sentence imposed in the High Court, we conclude there is no jurisdiction to entertain this appeal.

Third issue – should this Court express a view on the meaning of “legal representation” for the purposes of s 30(1) of the Sentencing Act?

[34] Strictly speaking, it is unnecessary to express any view on the merits of this appeal. However, in deference to the detailed arguments presented, including by Mr Sainsbury representing the Criminal Bar Association as intervener, we make the following brief observations.
[35] This Court held in Long that the question whether an offender is legally represented in terms of s 30(1) of the Sentencing Act at the stage of the proceedings when he or she is at risk of conviction, is essentially a question of fact.[18] When an offender seeks to overturn a conviction on appeal on the grounds that he or she was not legally represented at the material stage, it is incumbent upon the appellant to raise some evidential basis for that assertion. If a proper evidential foundation is raised, then it falls to the Crown or other informant to show there was legal representation in terms of the section at the relevant time.
[36] Here, Mr Hall did not provide any affidavit as to the circumstances in which the plea was entered nor the advice he received. The note recorded on the information at the time the guilty plea was entered does not, to our mind, raise a sufficient evidential foundation for the proposition that Mr Hall was not legally represented at that time or that he was not fully informed of his rights including those set out in s 30(2)(a) and (b) of the Sentencing Act. Nor was there any evidence before the Court about whether Mr Hall had the opportunity to exercise those rights (s 30(2)(c)).
[37] While the role of the duty lawyer is undoubtedly limited by the Duty Lawyer Service Operational Policy, we do not think it can be concluded that a duty lawyer would never be in a position to represent a defendant who wishes to plead guilty to an offence carrying the prospect of imprisonment. Indeed, Mr Lithgow did not submit otherwise.
[38] As a general rule, compliance with the requirements of s 30 should be well capable of being addressed by the good sense of the duty lawyer and the presiding judge. If compliance with s 30 becomes an issue on appeal, appropriate evidence of what actually happened will usually be necessary unless the relevant facts are clear on the face of the record. Where the facts are unclear, affidavit evidence from the defendant may be needed and, if necessary, from the duty lawyer. That did not happen in this case.
[39] While we have expressed reservations about the factual conclusions reached by the High Court Judge, we are not to be taken as suggesting the outcome of the appeal to the High Court was in any way inappropriate. The grounds given by the District Court Judge for refusing the adjournment sought by the duty lawyer at the time of sentencing are unconvincing. The refusal of an adjournment in the circumstances to enable proper and full submissions to have been made on sentencing was a sufficient ground in itself to warrant a review of the sentence on appeal. Similarly, there may have been grounds of appeal arising from the sentencing indication at the time of the guilty plea. But neither of those issues had any bearing on whether Mr Hall was legally represented for the purposes of s 30.
[40] Nothing we have said in this judgment should be taken as suggesting that the decision of this Court in Long is no longer good law. If a case arises with a proper evidential foundation, there is no reason why the continuing application of that decision may not be revisited on another occasion. That could be achieved in a variety of ways by either party, depending on the circumstances. The most straightforward way would be to raise the issue in an appeal against conviction or sentence where the outcome is challenged. Other available remedies could include an application for judicial review from a District Court decision or a case stated appeal under s 107 of the SPA.

Result

[41] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Appellant
Greig Gallagher & Co, Nelson for Intervener

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[1] Hall v R DC Nelson CRI-2011-042-2195, 5 September 2011.
[2] Hall v R HC Nelson CRI-2011-442-35, 10 November 2011.
[3] R v Long [1977] 1 NZLR 169 (CA).

[4] Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 in which the Court discussed s 30 of the Sentencing Act at [23] and [24], finding that s 30 tightened the requirements under the former s 13A of the Criminal Justice Act 1954.
[5] Hall v R, above n 1, at [2].
[6] At [5].
[7] R v Long, above n 3, at 174.
[8] Hall v R, above n 2, at [10] and [11].
[9] At [14].
[10] R v Terry [2007] NZCA 455.
[11] At [17].
[12] Colman v Police [2010] NZCA 474.
[13] Colman v Police [2010] NZSC 147, [2011] 2 NZLR 59.
[14] At [10].
[15] At [9].

[16] As to which, see the approach taken by Cooke P in Black v Fulcher [1998] 1 NZLR 417 (CA) at 420 and the remarks of Fisher J in Herewini v Ministry of Transport [1992] 3 NZLR 482 (HC) at 488. The judgment of the Court of Appeal in Terry, which the Court followed when the applicant sought special leave to that Court, is also entirely consistent with this approach.

[17] See Arbuthnot v Chief Executive of Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13; Walls v Calvert & Co [1994] 1 NZLR 424 (CA) referring to Lake v Lake [1995] P 336, [1955] 2 ALL ER 538 (CA); Amalgamated Builders Ltd v Nile Holdings Ltd [2000] NZCA 217; (2000) 14 PRNZ 652 (CA); and Caie v Attorney-General [2006] NZAR 379 (CA).
[18] At 173.