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Legal Services Commissioner v Marteley [2014] NZCA 185; [2014] 3 NZLR 143 (19 May 2014)

Last Updated: 30 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
27 February 2014
Court:
Ellen France, Randerson and Miller JJ
Counsel:
F M R Cooke QC for Appellant A J Ellis and G K Edgeler for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. The appeal is allowed.
  2. The two questions of law identified at [8] of this judgment upon which leave to appeal was granted are each answered in the affirmative.
  1. Leave is reserved to apply if there is any further issue about relief.
  1. There is no order for costs.

____________________________________________________________________

REASONS

Ellen France and Randerson JJ
Miller J


ELLEN FRANCE AND RANDERSON JJ

(Given by Randerson J)

Table of Contents
Para No
Introduction
Background facts
The Tribunal’s decision
The High Court judgment
The position of the parties on appeal
First issue – grounds of appeal
The terms of the legislation
The decision in Nicholls
The Privy Council’s decision in Taito
The legislation after Taito
The relevant provisions of NZBORA, the international conventions and the jurisprudence of the European Court of Human Rights
Our conclusions on the first issue
This case
Second issue – fiscal consequences
Result

Introduction

[1] This appeal raises an important question about the criteria for the grant of legal aid for appeals to this Court in criminal cases.
[2] The respondent Mr Marteley pleaded guilty on 3 September 2010 to the murder of a Mr Kingi on 10 June 2009. He was sentenced to life imprisonment with a minimum period of imprisonment of 14 years.[1] Mr Marteley then appealed to this Court against his conviction and sentence on 23 August 2011. Over a lengthy period, Mr Marteley has been in dispute with the Legal Services Commissioner over his entitlement to legal aid for the purposes of his appeal. We will refer later to the history in more detail. For the present it is sufficient to record that interim grants of legal aid were made on a limited basis but, on 16 April 2012, the Commissioner determined under the Legal Services Act 2011 (the 2011 Act) there were no realistic grounds for an appeal against conviction. A limited grant of aid was made for the purpose of providing the Commissioner with an analysis of grounds for a sentence appeal on the basis of disparity with the sentences imposed on Mr Marteley’s cooffenders.
[3] Mr Marteley sought a review of the Commissioner’s decision under s 52(1) of the 2011 Act on the grounds that the decision was manifestly unreasonable or wrong in law. In a decision issued on 1 November 2012 the Legal Aid Tribunal confirmed the Commissioner’s decision of 16 April 2012.[2] The Tribunal found that, although the conviction was very serious and Mr Marteley would have difficulty arguing his own case, it could not be in the interests of justice in terms of s 8 of the 2011 Act for Mr Marteley to be provided with publicly funded legal services to argue grounds of appeal that the Tribunal considered were “unarguable”.[3]
[4] Mr Marteley then appealed to the High Court under s 59 of the 2011 Act on the grounds that the Tribunal’s decision was wrong in law. The focus of the argument in the High Court was the extent to which the Commissioner is entitled to consider the grounds of an appeal against a criminal conviction in terms of s 8(2)(a)(viii) of the 2011 Act. That section relevantly provides:

8 When legal aid may be granted: criminal matters

(1) The Commissioner may grant legal aid to an applicant in respect of proceedings to which section 6 applies (criminal matters) if—

(a) the applicant is a natural person charged with or convicted of an offence; and

(b) it appears to the Commissioner that the applicant does not have sufficient means to enable him or her to obtain legal assistance; and

(c) either—

(i) the offence to which the application relates is punishable by a maximum term of imprisonment of 6 months or more; or

(ii) it appears to the Commissioner that the interests of justice require that the applicant be granted legal aid.

(2) When considering whether the interests of justice require that the applicant be granted legal aid, the Commissioner—

(a) must have regard to—

(i) whether the applicant has any previous conviction; and

(ii) whether the applicant is charged with or convicted of an offence punishable by imprisonment; and

(iii) whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment; and

(iv) whether the proceedings involve a substantial question of law; and

(v) whether there are complex factual, legal, or evidential matters that require the determination of a court; and

(vi) whether the applicant is able to understand the proceedings or present his or her own case, whether orally or in writing; and

(vii) in any proceeding to which section 6(c) applies, the consequences for the applicant if legal aid is not granted; and

(viii) in respect of an appeal, the grounds of the appeal; and

(b) may have regard to any other circumstances that, in the opinion of the Commissioner, are relevant.

...

(4) Subsection (1)(c)(i) does not apply in respect of—

(a) an appeal;

...

...

[5] On 31 May 2013, Collins J delivered a reserved judgment in which he allowed the appeal on the ground that the Tribunal had erred in law in deciding that it was not in the interests of justice for Mr Marteley to be granted legal aid to pursue his appeal against his conviction for murder.[4]
[6] The central finding made by Collins J was that the Commissioner would be satisfied of the requirements under s 8(2)(a)(viii) of the 2011 Act if he considered that the grounds of appeal disclosed matters which, if established, would be capable of leading to the appeal being allowed.[5] Effectively, except in “truly hopeless” cases, the Commissioner was not entitled to embark on an examination of the merits of the appeal which, the Judge found, was properly the function of this Court on appeal.
[7] As a secondary point, Collins J also held that the Tribunal had erred in failing to take into account the overall fiscal implications of denying Mr Marteley’s application for legal aid. In particular, the Judge took into account the likelihood that an amicus would be appointed by this Court if legal aid were declined. This, the Judge considered, would result in a higher cost to the public purse than granting legal aid. The Tribunal should have taken this factor into account
[8] Both aspects of the High Court judgment are challenged by the Commissioner on this appeal. Collins J granted leave to appeal on 21 October 2013 under s 60 of the 2011 Act on two questions of law:[6]
  1. Did I err when I decided that when considering the interests of justice under s 8(1)(c)(ii) of the Legal Services Act 2011, the requirements of s 8(2)(a)(viii) of the Act are satisfied if the grounds of appeal set out by an applicant for criminal legal aid disclose matters which, if established, would be capable of leading to the appeal being allowed?
  2. Did I err when I decided that the Commissioner erred when failing to take into account factors set out in paragraphs [55]–[57] of my judgment?

[9] We were informed that the Commissioner has since granted aid to Mr Marteley for both his conviction and sentence appeals. In that sense, the issues for determination are now moot. However, the parties seek this Court’s guidance on the issues and we proceed accordingly.[7]

Background facts

[10] The Crown case against Mr Marteley was that he was one of four offenders involved in Mr Kingi’s murder. The others were a man described as AJN, a Mr Manukau and the appellant’s partner, Ms Heremaia. In sentencing Mr Marteley, Heath J described a background of complaints by Mr Marteley and Mr Manukau about Mr Kingi in relation to the manufacture and supply of methamphetamine.[8] The Judge said a plan was made by Mr Marteley and Mr Manukau to lure Mr Kingi to an address in Hamilton where Mr Marteley and Ms Heremaia lived. It was intended to attack him and take money and drugs. The plan was that Mr Marteley and AJN would be inside the house and carry out the physical assault while Mr Manukau and Ms Heremaia acted as lookouts. When Mr Kingi arrived at the property, he was struck in the head with a cricket bat and a tomahawk, suffering serious injuries from which he died soon afterwards. The Judge accepted it would be difficult to establish exactly what part each of the four offenders played in the attack.
[11] At the time Mr Marteley pleaded guilty, his counsel was Mr Michael Robb. Correspondence at the time showed that discussions about Mr Marteley’s plea began several weeks prior to trial after Mr Robb learned that AJN had pleaded guilty to murder. The Crown solicitor advised Mr Robb that if Mr Marteley pleaded guilty to murder, the Crown would consider offering an opportunity to Ms Heremaia to plead guilty to manslaughter. Other concessions regarding the summary of facts were discussed. Mr Robb wrote to Mr Marteley setting out the advantages and disadvantages of pleading guilty. Mr Robb made it clear to Mr Marteley that the plea decision was for Mr Marteley to make. In the event, Mr Marteley instructed Mr Robb that he was willing to plead guilty to murder and a plea was entered accordingly.
[12] Mr Manukau also entered a plea of guilty to murder while Ms Heremaia pleaded guilty to manslaughter. They were sentenced separately by Heath J on 30 September 2010.[9] Mr Manukau received a life sentence with a minimum period of imprisonment of 12 years. Ms Heremaia was sentenced to three years and nine months imprisonment. On the same date, AJN was sentenced to life imprisonment with a minimum period of ten years imprisonment.
[13] Mr Marteley’s sentencing was deferred because he had indicated an intention to apply to set aside his guilty plea. However, this did not eventuate after advice from Mr P J Morgan QC who had taken over as Mr Marteley’s legal representative prior to sentencing.
[14] Thereafter, there were limited grants of legal aid to Mr W C Pyke and later to Ms N Levy. Mr Pyke made some investigations but in the end decided he could not continue to act for ethical reasons. Ms Levy’s advice to the Legal Services Agency was that there were issues with some merit to be raised on appeal but in her view these would not lead automatically to the guilty plea being set aside.[10] She accepted that Mr Robb’s advice to Mr Marteley was correct that a manslaughter verdict was possible but there were substantial risks of a murder conviction. Ms Levy considered Mr Morgan’s advice was incorrect but not material. She did not consider allegations made by Mr Marteley about police misconduct.
[15] On 19 May 2011, the Legal Services Agency advised Mr Marteley that legal aid would be withdrawn from that date through lack of merit in the grounds of appeal. It was considered that the lack of merit strongly outweighed other considerations.
[16] Mr Marteley’s present counsel, Mr Ellis, was instructed in July 2011. A fresh application for legal aid was made.[11] On 9 January 2012 the decision to withdraw aid on the basis that the grounds of appeal lacked merit was confirmed after advice from a specialist legal adviser. Thereafter Mr Marteley requested a reconsideration of this decision. Another specialised legal adviser was asked to report which led to the decision of 16 April 2012 confirming the withdrawal of aid for the conviction appeal but making an interim grant to consider whether there were grounds for the sentence appeal.

The Tribunal’s decision

[17] Mr Marteley personally provided extensive submissions to the Tribunal for the purpose of the review of the Commissioner’s decision. The Tribunal summarised Mr Marteley’s submission as raising two grounds of appeal: prosecutorial misconduct and a “mistake” in relation to his plea of guilty.
[18] The Tribunal summarised the allegations of prosecutorial misconduct as:

[17] ... the Police concealing evidence; Police exceeding their statutory authority during its investigation and prosecution of the Applicant; that there has been misconduct by officials involved with the prosecution of his case; that a witness was paid to provide a false statement adverse to the Applicant; that there has been subterfuge between animal control officers and Police to re-home and re-name the Applicant’s two dogs despite the Applicant being told that both dogs had been destroyed.

[19] The Tribunal found that Mr Marteley had:

[18] ... made these sweeping allegations but without any documentary records, independent accounts or other corroboration. The allegations are without support and therefore unarguable.

[20] As to the entry of the guilty plea, the Tribunal recorded the applicant’s submission that he was induced to enter a guilty plea so that Ms Heremaia could have her charge reduced from murder to manslaughter. The Tribunal accepted that this could have been a powerful inducement but found that the suggestion came from counsel for Ms Heremaia and could not therefore be prosecutorial misconduct.[12] The Tribunal went on to consider whether a successful appeal against conviction following a guilty plea was possible. Citing R v Ripia, the Tribunal said that if an accused fully appreciated the merits of his or her position and made an informed choice to plead guilty, the conviction could not be impugned.[13]
[21] On the facts, the Tribunal said it was accepted that Mr Robb had informed Mr Marteley at the time the guilty plea was entered that he had a possible defence. This was based on Mr Marteley’s instructions that he never intended the victim to be fatally injured; he only intended to cause serious harm to the victim; he had no knowledge that others in the group were going to use weapons; and, during the attack, he changed his mind about harming the victim and tried to stop the attack by the co-accused.
[22] The Tribunal noted that Mr Marteley had not disputed the correctness of Mr Robb’s advice that, although he had a possible defence, there was a significant risk that Mr Marteley would be disbelieved by a jury and convicted. The Tribunal said Mr Marteley had accepted he was properly apprised of the merits of his position before he entered his guilty plea and that he made an informed choice to plead guilty. The Tribunal found that Mr Marteley’s concessions made this ground of appeal “unarguable”. Mr Morgan’s subsequent advice, even if incorrect as Mr Marteley alleged, was not operative when Mr Marteley entered his plea.
[23] The Tribunal’s conclusion was:

[24] Even though the conviction is very serious and the Applicant would have difficulty arguing his own case, it cannot be in the interests of justice for the Applicant to be provided with publicly funded legal services to argue grounds of appeal that are unarguable.

[24] It followed in the Tribunal’s view that the decision made by the Commissioner was not manifestly unreasonable or wrong in law. The Commissioner’s decision of 16 April 2012 refusing legal aid for Mr Marteley’s appeal against conviction was confirmed.

The High Court judgment

[25] By the time the High Court heard Mr Marteley’s appeal against the decision of the Tribunal, a psychiatric report dated 22 July 2009 had emerged. This report had been provided to the Hamilton District Court under s 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The Judge considered that Mr Marteley’s personal circumstances were an important factor in the case. He summarised the key features of the report in this way:[14]

(1) Mr Marteley was assessed as being fit to stand trial. The psychiatrist reported that Mr Marteley had:

“... made up his mind as to what he was going to plead;[15] he is aware of the functions and procedures of the Court; he is able to communicate clearly and will certainly be able to clearly instruct his lawyer.”

(2) Mr Marteley had previously been diagnosed as suffering from schizophrenia and he had also previously been thought to have suffered from a psychosis.[16]

(3) Mr Marteley was thought to be suffering from an “anti-social personality disorder with psychopathological personality traits as well”. Pathological lying was identified as being one of Mr Marteley’s psychopathological personality traits.

[26] The Judge cited authority for the proposition that the right of appeal under s 383(1) of the Crimes Act 1961 must be an effective right of appeal which, so far as possible, will ensure that justice is done in the appeal process.[17] This was supported by the rights affirmed under s 25(h) of the New Zealand Bill of Rights Act 1990 (NZBORA) and art 14(5) of the International Covenant on Civil and Political Rights 1966 (ICCPR).[18] Reference was also made to s 24(c), (d) and (f) of the NZBORA in relation to the right to consult and instruct a lawyer, to adequate time and facilities to prepare a defence and “to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance”. The Supreme Court’s decision in R v Condon was cited for the proposition that:[19]

... other than in exceptional circumstances, an accused who conducts his or her own defence to a serious charge, without having declined or failed to exercise the right to legal representation, will not have had a fair trial. ...

[27] The Judge considered the same principle applied to those wishing to exercise their right to a meaningful appeal. He supported this conclusion by reference to R v Taito and Maxwell v The United Kingdom.[20]
[28] The Judge went on to consider whether, in the light of the Privy Council’s decision in Taito, the test for assessing the “grounds of appeal” criterion in s 8(2)(a)(viii) of the 2011 Act continued to be the same as that articulated in Nicholls v Registrar of the Court of Appeal.[21] Collins J concluded that the approach adopted in Nicholls had to be modified “to make it very clear that those determining applications for legal aid for criminal appeals should not determine the merits of an appeal.”[22] This, the Judge considered, reflected the conclusion reached by the Privy Council in Taito.
[29] Collins J concluded that:[23]

... the Commissioner would be satisfied of the requirements of s 8(2)(a)(viii) of the Act if he considers that the grounds of appeal disclose matters which, if established, would be capable of leading to the appeal being allowed. In appropriate cases, unrepresented appellants may be entitled to a provisional grant of legal aid to investigate whether their grounds of appeal can be properly restated. This should be sufficient to ensure that truly hopeless cases are excluded from being the subject of grants of legal aid because it would be contrary to the interests of justice to provide legal aid in circumstances where the identified grounds of appeal could, on their face, never succeed.

[30] He then considered the mandatory considerations under s 8(2)(a) of the 2011 Act when considering whether the interests of justice required the grant of legal aid. His conclusions may be summarised as follows:
[31] The final part of the judgment dealt with the Judge’s finding about the failure by the Commissioner to consider the overall fiscal implications of denying Mr Marteley’s application for legal aid. This, the Judge considered, was a relevant consideration under s 8(2)(b) which provides that the Commissioner may have regard to any other circumstances that, in the opinion of the Commissioner, are relevant.
[32] The Judge noted that if counsel were appointed to assist the Court, the fees of the appointee would be paid by the Secretary of Justice at a rate likely to be higher than the rates set under the Legal Services regime. Since legal aid had been granted for the sentence appeal on an interim basis, there was the possibility that the costs of ensuring Mr Marteley received a fair appeal would be met from two appropriations made by Parliament. The Judge also foresaw the possibility of “an unfortunate duplication of resources and an incurring of additional expenditure”.[24] Whether or not the lawyer representing Mr Marteley on his sentence appeal was also appointed as counsel to assist the Court for the purposes of the conviction appeal, the Judge concluded:[25]

... The Commissioner would not have breached his obligations to act independently of the Secretary of Justice if he had considered the overall fiscal implications of denying Mr Marteley’s application for legal aid to pursue his appeal against conviction.

The position of the parties on appeal

[33] For the Commissioner Mr Cooke QC presented comprehensive submissions. While accepting that the Commissioner should take a generous approach to the assessment of the merits of the grounds of appeal, he submitted the Judge was wrong to hold, effectively, that the Commissioner should not undertake any assessment at all. That would be inconsistent with the statutory provisions reiterated by Parliament following the decisions in Nicholls and Taito. Mr Cooke submitted that the correct approach is that adopted by this Court in Nicholls. The Judge erred in taking into account the jurisprudence from the European Court of Human Rights (European Court) given the terms of the 2011 Act.
[34] As to the second issue, it was submitted for Mr Marteley the High Court wrongly held that the Commissioner was required to assess the overall fiscal implications for the Crown in denying legal aid to Mr Marteley. It would be wrong in principle for the Commissioner to be influenced by such consequences in exercising his independent statutory functions.
[35] Mr Ellis for Mr Marteley supported the High Court judgment for the reasons contained therein.

First issue – grounds of appeal

[36] We intend to examine first the terms of the legislation. We will then address the effect of the decisions in Nicholls and Taito and the statutory history before and after those decisions. We will conclude by considering the relevance and impact of the NZBORA and the jurisprudence of the European Court.

The terms of the legislation

[37] The purpose of the 2011 Act is to promote access to justice by establishing a system that provides legal services to people of insufficient means and delivers those services in the most effective and efficient manner.[26] Subpart 1 of Part 2 sets out the proceedings for which legal aid may be granted in both criminal and civil proceedings[27] and prescribes when legal aid may be granted.[28] The Legal Services Commissioner[29] has defined functions including the grant of legal aid under Subpart 2 of Part 2. In exercising those functions, the Commissioner must act independently of the Secretary for Justice.[30] The role of the Commissioner was discussed by this Court in detail in Criminal Bar Assoc of New Zealand Inc v Attorney-General.[31]
[38] In terms of s 8(1), the Commissioner may[32] grant legal aid in defined criminal matters if all three of the matters in (a), (b) and (c) are met. There is no dispute in the present case as to the first two of these requirements. Mr Marteley is a natural person convicted of an offence and it is accepted that he does not have sufficient means to enable him to obtain legal assistance. As to (c), a person charged with an offence may be granted legal aid where either the relevant offence is punishable by a maximum term of imprisonment of six months or more, or it appears to the Commissioner that the interests of justice require that the applicant be granted legal aid. The first of these requirements does not apply in the case of an appeal.[33] In consequence, the Commissioner may only grant legal aid to Mr Marteley for the purposes of his appeal if the interests of justice so require.
[39] Section 8(2)(a) provides a list of matters to which the Commissioner must have regard when considering whether the interests of justice require that the applicant be granted legal aid. In terms of s 8(2)(b), the Commissioner may have regard to any other circumstances that, in the opinion of the Commissioner, are relevant.
[40] The Commissioner must have regard to each of the matters in s 8(2)(a) that is relevant to the circumstances of the case. But the weight to be given to each consideration need not be the same and may vary depending on the facts.
[41] As we have seen, s 8(2)(a)(viii) requires the Commissioner to have regard to the grounds of the appeal. We accept Mr Cooke’s submission that the requirement to have regard to the grounds of appeal necessarily requires some consideration of the merits of those grounds. The merits of the grounds of appeal are to be weighed along with the other factors to which regard must be had. To find otherwise would deprive s 8(2)(a)(viii) of any substance and reduce consideration of the grounds of the appeal to the merely mechanical exercise of identifying the grounds relied upon. By providing that there is no automatic right to legal aid on appeals if the offence is punishable by a maximum term of imprisonment of six months or more, Parliament intended the Commissioner to exercise a discretion whether to grant legal aid after assessing the relevant factors under s 8(2).
[42] We reach these conclusions notwithstanding the different requirements applicable to the grant of legal aid in civil matters. In terms of s 10(3) of the 2011 Act, the Commissioner is obliged to refuse legal aid if the applicant has not shown that he or she has “reasonable grounds for taking or defending the proceedings”.[34] The grant of legal aid in civil proceedings proceeds on the basis of very different criteria. We do not consider these differences are material to the interpretation point at issue.

The decision in Nicholls

[43] As we have intimated, Mr Cooke’s submission was that the approach adopted by this Court in Nicholls to the examination of the grounds of appeal was appropriate and that nothing said in the subsequent Taito appeal to the Privy Council requires any modification to that approach as Collins J thought. Mr Cooke’s submission was that, notwithstanding both these decisions, Parliament has not enacted any change to the “grounds of appeal” terminology despite successive amendments to, and replacements of, the legal aid legislation since those decisions were delivered.
[44] At the time Nicholls was decided, the Legal Services Act 1991 (the 1991 Act) was in force. This Act required decisions about the grant of legal aid for criminal appeals to be decided by the Registrar of this Court in consultation with a Judge of the Court.[35] There was a right of review against the Registrar’s decision to be determined by a Judge of the Court.[36] One of the main points at issue in Nicholls was whether decisions made by the Registrar and by the Judge during this process were susceptible to judicial review. However, each member of the Court also considered the correct approach to the assessment of an application for legal aid.
[45] In that respect, the 1991 Act permitted the Registrar to grant criminal legal aid, if, in the opinion of the Registrar, “it is desirable in the interests of justice” and it appeared that the applicant did not have sufficient means to obtain legal assistance.[37] The 1991 Act obliged the Registrar to have regard to the gravity of the offence; the consequences for the applicant if aid were not granted; the grounds of the appeal; and any other circumstances that, in the opinion of the Registrar, were relevant.
[46] Delivering the first judgment in Nicholls, Eichelbaum CJ gave extensive consideration to relevant international covenants, the jurisprudence of the Human Rights Committee of the United Nations and the European Court as well as relevant provisions of the NZBORA. We will refer to this material later in this judgment. For the moment, it is sufficient if we note Eichelbaum CJ’s conclusion that the Human Rights Committee and the European Court had interpreted the relevant provisions of the international conventions as guaranteeing legal aid for appeals in criminal appeals where the interests of justice so required, as long as the applicant did not have sufficient means to pay for legal assistance.[38] The Chief Justice found that the trend of the decisions of the international bodies had diverged from the practice followed in New Zealand in dealing with legal aid applications in respect of criminal appeals. He found that:[39]

In the international jurisprudence, where severe penalties are involved, especially imprisonment, what has become paramount is the gravity of the subject-matter at stake, from the appellant’s point of view. In such cases, for all practical purposes merit plays no part. In New Zealand practice, merit is the most significant factor, regardless of what is at stake.

[47] Eichelbaum CJ found this divergence in practice could not affect the interpretation of s 7 of the 1991 Act. The Registrar was bound to take the merits into account in reaching a decision on the grant of legal aid for appeals.[40]
[48] Dealing with the approach to the “grounds of appeal” requirement, Eichelbaum CJ discussed various alternative expressions in this way:[41]

In the materials before us a number of expressions have been used to describe what is or ought to be required, such as an arguable ground, a tenable case, one that is not hopeless, and so on. Some may be thought to be identical in meaning while there may be fine nuances between others. “An argument that could succeed”, the expression used in the formal memorandum, is unobjectionable if understood as being in contrast to a hopeless appeal or one where no grounds of any kind have been advanced. Generally, a “seriously arguable case” would be pitching the requirement much too high. It might be a legitimate approach in a case involving a sufficiently trivial matter. The registrar in his affidavit used the expression “no real merit”. Again, one might take issue with the qualification “real”, in the generality of cases.

[49] Continuing, the Chief Justice said:[42]

While the statute requires consideration to be given to the grounds of appeal and the gravity of the offence in every case, it does not say or imply that they must always be given the same weight. Indeed the very concept of “gravity” means that it will carry different weight according to the offence charged. It follows that the weight to be given to the grounds of appeal will vary also. It does not follow that this element disappears from the equation altogether. There is no indication in the statute that it was intended to give automatic legal aid in serious cases even if on the most generous assessment the appeal was hopeless. However, there is no reason why tenuous grounds might not be viewed more generously where much is at stake for the appellant.

[50] Dealing with the merits of the application at issue, Eichelbaum CJ considered that the grounds advanced “appeared tenuous but not necessarily hopeless”.[43] He considered the case at issue was one where full weight should be given to gravity (Mr Nicholls had been convicted of murder). The strength of the merit in the grounds advanced ought to have been a less significant factor although this could not be ignored. The Judge noted that an experienced Queen’s Counsel was prepared to submit that sufficient grounds existed to mount an appeal.
[51] Tipping J held that the degree of likelihood of success of the appeal grounds was capable of varying with gravity. Accordingly, it was not possible to be definitive. He continued:[44]

All that can usefully be said is that the policy of the 1991 Act is that save in an exceptional case, the applicant for aid has to show that the grounds of appeal have a sufficient possibility of success to justify a grant of legal aid, bearing in mind the gravity of the offence and all other relevant circumstances. If the grounds fall below that threshold, it cannot have been Parliament’s intention that aid be granted. It cannot have been Parliament’s intention that taxpayers’ money be spent on an appeal unless there was a sufficient possibility of success.

[52] Tipping J added that, while it is important in a civilised society that the state provides legal representations to those accused of crimes who cannot afford it, this was not always an absolute obligation, certainly not in relation to an appeal. Society was entitled, through legislation, to say that it would not fund appeals with no apparent merit. In Tipping J’s view, this did not fall below the minimum standards of procedure set out in s 25(h) of the NZBORA.[45]
[53] The third member of the panel in Nicholls was Smellie J. He was comfortable with the requirement that, save in exceptional circumstances, an applicant must show a sufficient possibility of success to justify a grant of aid.[46]
[54] Significantly for present purposes, all three members of this Court in Nicholls expressed the view that the grant of legal aid in criminal appeals was best removed from the Court of Appeal. That resulted in the removal of legal aid administration from the Court by the Legal Services Act 2000. The Legal Services Agency was established as an independent body for the purpose of granting legal aid. No reference was made in any of the relevant Parliamentary materials to any change to the interests of justice criteria. When the 2000 Act was enacted, the criteria for the grant of criminal legal aid were materially the same as those in the 1991 Act.[47]

The Privy Council’s decision in Taito

[55] The process adopted by this Court for the grant of legal aid under the 1991 Act came under scrutiny by the Privy Council in Taito. In 2002 legal aid had been refused for a number of appellants under the process we have earlier outlined. The substantive appeals were later dismissed by a bench of three Court of Appeal Judges on the papers. This process was described as “an ex parte procedure”.[48] The Privy Council held that the procedure was of no force or effect. The ultimate decisions had not been made in accordance with the opinion of the Judges present as required by s 59 of the Judicature Act 1908. They had been purely formal or mechanical acts relying on the earlier decision that legal aid should not be granted and involved no exercise of judicial judgment.
[56] In Taito, the Solicitor-General submitted that the appeal should be dismissed because the appellants had failed to demonstrate an arguable miscarriage of justice. The Board rejected this argument without further discussion on the ground that the appeals brought by the appellants were dismissed under a fundamentally flawed and unlawful system. The Board considered Nicholls but did not find it necessary to express any concluded views about the “grounds of appeal” issue. Addressing the ongoing status of Nicholls, the Board said:

[24] It will be obvious from this judgment that their Lordships are in respectful disagreement with many of the dicta in Nicholls. Given that there is now legislation, which incorporates new safeguards, it is unnecessary to discuss the lengthy judgments in Nicholls. It is sufficient to say that it has been overtaken by legislation and by the decision of the Privy Council in the present case.

[57] Their Lordships were referring to the changes to the administration of the legal aid system effected by the 2000 Act.
[58] We are satisfied that nothing said by the Privy Council in Taito could be interpreted as overruling or criticising those parts of the judgment of this Court in Nicholls addressing the “grounds of appeal” issue and the proper approach to it. However, before leaving our consideration of Taito we note the following observation by the Board:[49]

Throughout their Lordships bear in mind that the legislation was intended to confer on individuals whose fates were at stake effective rights of appeal, and that what is or is not an arguable case can only be determined after the observance of due process in considering the merits or demerits of the appeal.

The legislation after Taito

[59] After the Taito decision was delivered, Parliament reconsidered the relevant legislation and introduced a Bill that became the Legal Services Amendment Act 2006. Under the amending legislation, a new s 8 was substituted, the effect of which was to provide for the availability of legal aid as of right in criminal trials where the offence at issue carried a maximum penalty of six months or more. The automatic availability of legal aid in such cases did not apply to appeals. The structure introduced by the 2006 Amendment Act is materially the same as the current provisions under the 2011 Act.
[60] When introducing the Legal Services Amendment Bill in 2005, the then Minister of Justice stated:[50]

The bill retains merit tests to ensure that aid is provided only when there are good grounds for a case to proceed. There will be a new merits test for certain Family Court and Youth Court proceedings when the existing “prospects of success” test is difficult to apply, particularly in relation to vulnerable people, such as children. The applicant will still have to show reasonable grounds for taking or defending the proceedings. The bill also clarifies the criminal legal aid merits test to ensure that those facing criminal charges have representation when it is necessary because of the seriousness of the offence or the complexity of the proceedings.

[61] Given the language of the 2006 Amendment Act when enacted, we take the reference to “merits test” and to “good grounds for a case to proceed” as a general statement since the Bill related to legal aid for a variety of different proceedings. The Minister clearly considered that one of the purposes of “the criminal legal aid merits test” was to ensure that representation was available where necessary in relation to criminal charges because of the seriousness of the offence or the complexity of the proceedings. There are no other Parliamentary materials that provide any assistance on the point at issue in this appeal.
[62] To complete the statutory history, a Departmental report prepared by the Ministry of Justice for the Justice and Electoral Committee on the Bill which led to the enactment of the 2011 Act contained the following references:[51]

Criminal appeals

Issue

  1. Fiona McAllister argued that legal aid should only be available for criminal appeals where there is compelling evidence.

Commentary

  1. Section 25(h) of the New Zealand Bill of Rights Act 1990 guarantees any convicted person the right to appeal to a higher court against their conviction, sentence or both. The Bill currently provides that the Government must assess the grounds of the appeal, which means that legal aid can be declined for an appeal if it is without merit. No change is proposed to this approach.
[63] Again, there are no other Parliamentary materials that assist in the approach to the point at issue in this appeal.
[64] In summary, notwithstanding the criticisms made by the Privy Council in Taito, the New Zealand Parliament has not seen fit to make any change to the “grounds of appeal” references in the legal aid criteria for appeals in the 1991, 2000, 2006 or 2011 legislation. The changes effected in 2000 and 2006, later carried forward into the 2011 Act, have addressed the administration of the grant of legal aid by removing that administration from the courts. In addition, there has been an extension of the list of mandatory criteria in determining whether the interests of justice require the grant of legal aid for criminal appeals. There is nothing to suggest that the approach adopted by this Court in Nicholls to the “grounds of appeal” consideration has been considered to be inappropriate.

The relevant provisions of NZBORA, the international conventions and the jurisprudence of the European Court of Human Rights

[65] Section 24(f) of the NZBORA provides that everyone who is charged with an offence:

... shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; ...

[66] This provision reflects art 6(3)(c) of the European Convention on Human Rights and Fundamental Freedoms (the ECHR) and art 14(3)(d) of the ICCPR.[52] Both instruments refer to the “interests of justice” test. Mr Cooke did not dispute that these provisions should be treated as applying equally to appeals so far as they were relevant.
[67] Collins J relied on these provisions and the judgment of the European Court in Maxwell v The United Kingdom.[53] Mr Maxwell was convicted on a charge of assault causing severe injury to the victim. He was sentenced to five years imprisonment. Despite seeking advice from several firms of solicitors, he was unable to persuade any of them to represent him. The advice of counsel was that he had no reasonable prospects of success on appeal. He was unrepresented when he conducted his appeal before the Scottish High Court of Justiciary which dismissed his appeal.
[68] Mr Maxwell then took his case to the European Court arguing that there had been a violation of his right to legal aid under art 6(3)(c) of the ECHR. The European Court upheld his appeal, finding that Mr Maxwell’s right to legal assistance had indeed been violated. The European Court took into account that although the legal issues may not have been particularly complex, Mr Maxwell was unable competently to address the Court on the legal issues or to defend himself effectively. Of even greater relevance, the Court found, was that the applicant had been sentenced to five years imprisonment and the issue at stake was an extremely important one for Mr Maxwell.
[69] Expressing a concurring opinion, Sir John Freeland accepted that the possibility of Mr Maxwell having suffered any substantive injustice by virtue of his lack of representation at the hearing of his appeal was extremely remote. On the other hand, the appeal raised issues of some complexity and the sentence was substantial. Sir John Freeland considered that justice should not only be done but should also be seen to be done. He was satisfied that the lack of legal representation, when counsel for the Crown was present, produced at least the appearance of injustice. Accordingly, he too found there was a violation of art 6.
[70] Despite what appears to have been a liberal approach in the European Court to the provision of legal aid on appeal, it is clear there is no automatic right to legal aid as Collins J accepted.[54] A review of other decisions of the European Court supports this proposition.[55]
[71] Nevertheless, we consider Collins J was undoubtedly right to emphasise the requirement for an effective right of appeal. He noted that Mr Marteley’s right of appeal under s 383 of the Crimes Act was affirmed by s 25(h) of the NZBORA. He referred to the Supreme Court’s decision in Petryszick v R which emphasised the importance of the right of appeal.[56] Petryszick was concerned with the exercise of the powers of this Court to control its procedure. The Chief Justice emphasised that the substance of the right of appeal could not be eroded by subordinate legislation or the exercise of the inherent powers of this Court to control its procedure.
[72] And, as we have already noted, the Privy Council in Taito, reiterated the need for an effective right of appeal which, as far as reasonably possible, would ensure that justice is done in the appeal process.[57] Finally, as Lord Steyn said in Taito in relation to the right of appeal under s 383 of the Crimes Act:[58]

The context is one of access to justice and it calls for what Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319 at 328 described as “a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’”. The substance must match the form.[59]

[73] Mr Cooke submitted there were difficulties with the approach taken in the High Court to the human rights dimensions of the case. Not only was the right to counsel not absolute but, he submitted, it was subject to s 4 of the NZBORA. In particular, the right under s 24(f) of the NZBORA did not override the provisions of the 2011 Act.
[74] Developing this submission, Mr Cooke said that, in order to undertake the required exercise to interpret the 2011 Act in light of the provisions of the NZBORA, it would have been necessary to conduct an analysis along the lines set out by the Supreme Court in R v Hansen.[60] He identified a key difficulty with that approach, namely the inability to identify a reasonable interpretation of the provisions, through s 6 of the NZBORA, that is consistent with an absolute right to legal assistance for appeals in criminal cases. To find such a right would involve overriding the clear statutory meaning of s 8 of the 2011 Act. The conclusion reached by the High Court Judge was, effectively, that consideration of the grounds of appeal involved only a check to ensure that the presented grounds of appeal were amongst the available grounds of appeal. This interpretation had the effect of eliminating the grounds of appeal as a factor in the discretionary assessment Parliament clearly intended take place under s 8.
[75] Mr Cooke also submitted there was an alternative view to that taken by the ECHR. The rights affirmed by the NZBORA and the international instruments could be given effect in a number of different ways in domestic legislation. He pointed to the provision for interim grants of legal aid to investigate grounds of appeal, an opportunity that had been given to Mr Marteley in the High Court and subsequent to his conviction. Mr Cooke also drew attention to the rights of review and appeal available under the 2011 Act against a refusal of legal aid.[61]
[76] Finally, Mr Cooke submitted that if there were any encroachment on fundamental rights, then it was of a limited degree and could be regarded as a justified limit on that right in accordance with s 5 of the NZBORA.

Our conclusions on the first issue

[77] The first step in the analysis defined by the majority of the Supreme Court in Hansen is to ascertain what Parliament intended when approaching the interests of justice test under s 8 of the 2011 Act, with particular reference to the “grounds of appeal” under s 8(2)(a)(viii).
[78] We see no reason to differ from the approach adopted by this Court in Nicholls. In particular, we favour an approach along the lines adopted by Eichelbaum CJ and discussed at [48] to [50] above. Having regard to the grounds of appeal requires an assessment of the merits of those grounds by the Commissioner and, on review, by the Tribunal. It follows that the High Court Judge was wrong to find that, except in truly hopeless cases, the Commissioner’s role was reduced merely to establishing that the grounds of appeal which, if established, would be capable of leading to the appeal being allowed.
[79] Rather, the merits of the grounds of appeal are to be assessed under the 2011 Act, along with all other mandatory and discretionary factors. The relative weight to be given to these factors is a matter for the Commissioner as we elaborate below.
[80] The Commissioner’s focus must be on the arguability of the grounds of appeal. The merits of those grounds may not be decisive where other mandatory considerations should properly receive greater weight so as to achieve the objective of securing an effective right of appeal.
[81] Mr Cooke referred us to the Commissioner’s practice of making an interim grant of aid for a specified number of hours so that the lawyer appointed may explore and refine the grounds of appeal. This may be a helpful approach in some cases but may be unnecessary in more serious or complex cases where the issues at stake for the appellant and the complexities of the appeal are such as to clearly warrant the full grant of aid even if the merits of the appeal grounds may be considered tenuous.
[82] In summary, we find that:
[83] We do not view this approach to the meaning of s 8 as inconsistent with the rights affirmed in s 24(f) of the NZBORA as reflected in the international instruments we have discussed. It is clear that the right to receive legal assistance from the state without cost is not a guaranteed right. The right is available if the interests of justice so require and the person does not have sufficient means to provide for that assistance. It is inherent in this provision, and in the jurisprudence, that the grant of legal aid must be treated as discretionary in nature.
[84] Finally, even if there were some degree of inconsistency with the rights affirmed by NZBORA, we are satisfied that the inconsistency is nevertheless a justified limit in terms of s 5 of the NZBORA. Any society ought to have the right to decline to spend public funds where there is no prospect of success or insufficient prospects to require the grant of legal aid.[62] The 2011 Act has clearly so provided.
[85] We do not view Taito as authority for the proposition that the Commissioner should not consider the merits of a prospective appeal. The main reason for the Privy Council’s criticism of the processes of this Court was that the right of appeal available under the Crimes Act had effectively been predetermined by the prior decision of the Court to refuse legal aid under the then 1991 Act. The removal of the administration of legal aid in criminal cases from this Court into the hands of an independent statutory officer has met this particular difficulty.

This case

[86] Since legal aid has now been granted to Mr Marteley to appeal both his conviction and sentence, we do not need to dwell extensively on the decisions made by the Commissioner and the Tribunal in this case. However, it may be helpful to make some observations about the approach adopted since it illustrates the errors we have discussed.
[87] We address particularly the Tribunal’s decision since fuller reasons were given than in the Commissioner’s prior decision. In our view, a number of criticisms can be made of the decision.
[88] We accept that in the face of Mr Robb’s letter of advice, Mr Marteley was informed of his options at the time of the entry of his guilty plea. Accordingly, a conclusion that Mr Marteley’s grounds of appeal were tenuous would not have been surprising. However, although the Tribunal briefly acknowledged the seriousness of the case and that Mr Marteley would have difficulty in presenting his case on appeal without legal assistance, the decision reached by the Tribunal to refuse legal aid was clearly dominated by the assessment that the grounds of appeal were “unarguable”. In other words scant attention was paid to the seriousness of the charge in a context where Mr Robb considered there was an arguable defence.
[89] As to the Tribunal’s assessment of the possible merits of the appeal, as the Tribunal acknowledged, the offer of a plea of manslaughter to Mr Marteley’s partner, Ms Heremaia is capable of acting as a strong inducement to Mr Marteley to plead guilty to the murder. However, the issue of whether there was any improper pressure on Mr Marteley in consequence of her position was considered only in relation to prosecutorial misconduct although clearly also relevant to his plea.
[90] In our view, while the grounds advanced at that point were properly regarded as tenuous, to dismiss them as “unarguable” went beyond the proper scope of the Tribunal’s functions under the 2011 Act and effectively determined the appeal.
[91] The risks of a premature decision before the issues have been properly explored is also a feature of this case. As it happens, it emerged subsequently that Mr Marteley has suffered from mental illness and has serious personality defects including a tendency of pathological lying. As Mr Ellis pointed out, these matters could impact upon his level of understanding, his ability to prepare coherent grounds of appeal, and his capacity to give accurate and reliable instructions to his counsel at the time the plea was entered.
[92] We view Mr Marteley’s case as similar to that encountered by this Court in Nicholls. The grounds of appeal as indicated to date are tenuous but Mr Marteley has been convicted of the most serious crime in the criminal calendar for which he has received a life sentence and a 14 year minimum period of imprisonment. His ability to effectively present his case on appeal is likely to be extremely limited in the absence of legal assistance. We agree with Collins J that these factors should have weighed heavily in favour of the grant of legal aid to Mr Marteley for his conviction appeal as well as his appeal against sentence.

Second issue – fiscal consequences

[93] We are satisfied that the fiscal consequences of denying Mr Marteley legal aid is an irrelevant consideration and that the conclusion of the Judge on this point was wrong.
[94] This must follow from the nature of the Commissioner’s discrete functions under the 2011 Act. In relation to the grant of legal aid, the Commissioner must act as an independent statutory officer as we have already discussed. Relevantly for present purposes, these functions were confined to the decision whether to grant legal aid to Mr Marteley. In exercising his discretion under the legislation, the Commissioner’s functions are strictly confined to the identified statutory criteria under s 8, determined in the light of the purpose of the 2011 Act. While he was entitled under s 8(2)(b) to take into account other considerations he considered to be relevant to his decision, we agree with Mr Cooke that the Commissioner is not entitled to consider any wider fiscal consequences such as the cost of appointing counsel to assist the Court if legal aid were declined.
[95] The Commissioner’s responsibilities are confined to the administration of the legal aid scheme under the 2011 Act. It is no part of his function in considering the grant of legal aid for criminal appeals to consider the costs to another arm of government if aid is declined.

Result

[96] All members of the Court being agreed as to the outcome, the appeal is allowed.
[97] The two questions of law identified at [8] of this judgment upon which leave to appeal was granted are each answered in the affirmative.
[98] We do not consider it is necessary to grant any further relief but we reserve leave to apply if there is any issue in that respect.
[99] Mr Cooke did not seek costs in the event of the appeal being successful. Accordingly, there is no order for costs.

MILLER J

[100] I agree in the result, and substantially in the reasoning of the majority. I write separately about the role that merits play in the Commissioner’s appellate decisions in criminal proceedings.
[101] I begin with context. The Legal Services Act 2011 promotes access to justice by funding legal services for litigants[63] who cannot afford them. That object rests on an assumption that in the adversarial system legal representation promotes access to justice. It is promoted in two ways; those involved in proceedings benefit in some degree from legal representation, and legal representation allows the community to see that justice has been done. The latter assumes importance in criminal proceedings. These properties of the statutory object bring focus to the interests of justice, which are the Commissioner’s criteria for decision.[64]
[102] As a general proposition any person who has been convicted and/or sentenced enjoys one right of appeal. That right is not conditional upon the appeal having some merit. It is a structural feature of the criminal justice system, intended to protect those convicted and sustain public confidence in the administration of justice.
[103] However, the legislation does not confer upon a qualifying person a right to appellate aid, no matter how serious the case or unequal the contest. It assumes rather that appeals exist in which the interests of justice do not warrant the expense. It assigns to the Commissioner the demanding task of distinguishing them from the rest.
[104] Appeals are disposed of by judicial decision or abandonment, not by the Commissioner. The point is not that the Commissioner enjoys no authority to decide appeals; that goes without saying. It is that because the Act assumes that legal services may make a difference, the Commissioner must ensure that rejected aid applications do not cause the loss or abandonment of appeals for which there is something to be said. An appeal may be lost because a ground of appeal was overlooked, and abandonment may signal not that the appeal lacked merit but that the appellant lacks the knowledge to identify an arguable point or the confidence to pursue it.
[105] I turn to s 8. Having regard to the matters of context just mentioned, I make several points about its construction.
[106] First, grounds of appeal are one of eight specific considerations that the Commissioner must consider when deciding where the interests of justice lie. The section does not require that the Commissioner be satisfied about all or any given one of the eight. It follows that, as a matter of ordinary meaning, aid may be granted although the Commissioner, upon consideration, finds nothing of merit in the grounds of appeal. The interests of justice may warrant aid where, for example, the stakes are high, or the issues are complex, or the appellant cannot adequately present the case. In some such cases the court, let alone the Commissioner, may not be confident that the appellant has identified every reasonably available ground and the hearings may exhibit the appearance of injustice.
[107] I acknowledge that this view separates me not only from the majority here but also from both judgments in Nicholls. All members of the Nicholls Court held that the appellant must show a sufficient possibility of success to justify aid, and the majority described merit as the most significant factor.[65] That approach might be justified when decision-making on aid applications rested with the Court;[66] although its processes were condemned in Taito, the institutional competence to assess merit resides there. But decision-making now rests with the Commissioner. I accept that re-enactment of the legislation permits an inference that Parliament endorsed the Nicholls standard. But in my opinion the inference is not compelling,[67] the ordinary and natural meaning better meets the statute’s stated purpose, and s 8 itself points to reasons why aid may be necessary whatever the substantive merits.
[108] In my opinion the legislation permits, but does not require, the Commissioner to take the approach illustrated by Maxwell v The United Kingdom, a judgment of the European Court of Human Rights sitting on a reference from Scotland.[68] Although the legal aid regime differed, there was, as here, no automatic right to legal aid and the criterion was the interests of justice. In his concurring judgment Sir John Freeland discussed the interests of justice, referring to several considerations found in s 8(2):

3. ... even if, as I believe, no substantive injustice has been established, that does not dispose of the question whether, in the words of sub-paragraph 3 (c) of Article 6 (art. 6-3-c), “the interests of justice” required that Mr Maxwell should be given free legal assistance for the hearing of his appeal. Justice should not only be done, it should also be seen to be done. The appeal raised various issues of some complexity and Mr Maxwell’s conviction had led to the imposition of a sentence of five years’ imprisonment. ... the Crown was represented at the hearing of the appeal (as it is in all comparable cases) by counsel who was present and able to advance a legal argument if called upon by the court to do so. ... Given that there was a legal issue to be addressed on Mr Maxwell’s appeal and that, having regard to the severity of his sentence, so much was at stake for him, I am satisfied that his lack of legal representation for the hearing, when counsel for the Crown was present, produced at least the appearance of injustice.

[109] Second, the legislation does not state that the Commissioner must consider whether an appeal will succeed. It requires rather that the grounds of appeal be considered. For the reasons given by the majority, this criterion concerns merits. But to say that the Commissioner must consider the merits is not to say that detailed consideration need be given or that the Commissioner must be satisfied that the appeal may succeed in fact. To consider whether the grounds of appeal would succeed if made out is to consider the merits, albeit at a high level. The legislation does not require that the Commissioner go any further.
[110] Third, the section points to circumstances in which aid may not be warranted: notably, where the appeal involves no question of law, where factual issues are straightforward, or where the appellant can present the case adequately, in writing if not orally. In such a case self-representation may present no risk or appearance of injustice, bearing in mind that the court will do its best to identify anything of substance in the appeal and Crown counsel will draw the court’s attention to anything that might be said for it.
[111] Fourth, the legislation also contemplates that the interests of justice may not justify aid for a meritless appeal. In such a case legal representation can make no difference to the outcome, and there being nothing useful to say, the appellant may be capable enough of saying it. The legislation accordingly allows the Commissioner to consider whether the appeal will succeed.
[112] Finally, I agree for the reasons given by the majority at [81] that the Commissioner may make an interim grant to explore the grounds of appeal, as was done here. The exercise may assist the Commissioner where the aid decision turns on the merits; that is, where other considerations do not warrant aid in any event. The practice of making an interim grant would cause concern only if it led the Commissioner to attach undue weight to the grounds of appeal, or to overestimate his or her capacity to gauge merit, or to delay appeals for which aid ought to be granted in any event. The Commissioner must bear in mind that timeliness is a dimension of the interests of justice, and especially so in criminal appeals. Our analysis of Mr Marteley’s case finds some substance in these concerns.













Solicitors:
Nat Dunning Law, Wellington for Respondent

[1] R v Marteley HC Hamilton CRI-2009-019-9786, 5 November 2010.

[2] Re Marteley NZLAT 041/2012, 1 November 2012.

[3] The correct expression is “inarguable”.

[4] Marteley v The Legal Services Commissioner [2013] NZHC 1278, [2013] NZAR 875 [High Court decision].

[5] At [44].

[6] Marteley v Legal Services Commissioner [2013] NZHC 2748.

[7] See Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721 at [16]–[29].

[8] R v Marteley HC Hamilton CRI-2009-019-9786, 5 November 2010.

[9] R v AJN HC Hamilton CRI-2009-019-9786, 30 September 2010.

[10] Expressed in a letter to the Legal Services Agency dated 18 April 2011.

[11] We understand that Mr Ellis has not received funding from legal aid, at least up to the time of the appeal before us.

[12] It is not clear to us that this conclusion is factually correct since Mr Robb’s advice to Mr Marteley (recorded in a letter to him of 19 August 2010) was that the proposal for a guilty plea came from the Crown solicitor.

[13] R v Ripia [1985] 1 NZLR 122 (CA).

[14] At [21].

[15] According to the report, at that time Mr Marteley was going to plead not guilty.

[16] The report writer said he would not defend the diagnosis of schizophrenia, nor would he state that Mr Marteley was suffering from psychosis at the time of the report. He added that he could not be certain of this after only one examination.

[17] R v Taito [2002] UKPC 15, [2003] 3 NZLR 577 at [12].

[18] International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).

[19] R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [79].

[20] Taito, above n 17; Maxwell v The United Kingdom [1994] ECHR 38; (1995) 19 EHRR 97 (ECHR), a decision of the European Court of Human Rights under art 6(3)(c) of the European Convention on Human Rights.

[21] Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA).

[22] At [43].

[23] At [44].

[24] At [57].

[25] At [57].

[26] Legal Services Act 2011, s 3.

[27] Sections 6 and 7.

[28] Sections 8, 9 and 10.

[29] Appointed under s 70.

[30] Section 71(1)(a) and (2).

[31] Criminal Bar Assoc of New Zealand Inc v Attorney-General [2013] NZCA 176, [2013] NZAR 1409 at [131]–[133].

[32] Counsel placed no reliance on the use of the word “may” in s 8(1) and we say no more about it.

[33] Section 8(4)(a).

[34] For civil purposes, proceedings includes an appeal: s 7(1)(b).

[35] Legal Services Act 1991, s 15(1).

[36] Legal Services Act 1991, s 16.

[37] Legal Services Act 1991, s 7(1).

[38] Nicholls, above n 21, at 404.

[39] At 408.

[40] At 408–409.

[41] At 420.

[42] At 421.

[43] At 422.

[44] At 440.

[45] At 440.

[46] At 461.

[47] Legal Services Act 2000, s 8.

[48] At [14].

[49] At [13].

[50] (17 May 2005) 625 NZPD 20633.

[51] Ministry of Justice Legal Services Bill Departmental Report (8 November 2010) at 23.

[52] European Convention on Human Rights 213 UNTS 221 (opened for signature 4 November 1950, entered into force 3 September 1953).

[53] Maxwell v The United Kingdom, above n 20.

[54] High Court decision, above n 4, at [34].

[55] Monnell v United Kingdom [1987] ECHR 2; (1988) 10 EHRR 205 (ECHR); Del Sol v France [2002] ECHR 153; (2002) 35 EHRR 38 (Section III, ECHR) at [15]; Gnahore v France (2002) 34 EHRR 38 (Section III, ECHR) at [28].

[56] Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153 at [32].

[57] Taito, above n 17, at [12].

[58] At [12].

[59] Collins J also properly emphasised the importance of the right to counsel recognised constitutionally in cases decided in relation to the Sixth Amendment to the Constitution of the United States in Powell v Alabama [1932] USSC 137; 287 US 45 (1932) at [69] and Gideon v Wainwright [1963] USSC 42; 372 US 335 (1963).

[60] R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [92].

[61] To the Tribunal under s 52 and to the High Court on questions of law under s 59 and (with leave under s 60) on further appeal to this Court on questions of law.

[62] See the views of Tipping J in Nicholls, above n 21, at 400.

[63] Generally, the 2011 Act allows aid in criminal or civil proceedings of various specified kinds; ss 6 and 7.

[64] Section 8(1)(c)(ii).

[65] Nicholls above n 21, at 408. The relevant passage is quoted in the majority judgment at [46].

[66] The Registrar decided applications after consulting a Judge: Legal Services Act 1991, s 15.

[67] J F Burrows and R I Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 195.

[68] Maxwell, above n 20.

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