Marteley v The Legal Services Commissioner [2013] NZHC 1278 (31 May 2013)

Last Updated: 10 June 2013

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-002525 [2013] NZHC 1278

UNDER Section 59 of the Legal Services Act 2011

IN THE MATTER OF an appeal from a decision of the Legal Aid

Tribunal

BETWEEN TODD AARON MARTELEY Appellant

AND THE LEGAL SERVICES COMMISSIONER Defendant

CIV-2012-485-001314

BETWEEN TODD AARON MARTELEY Appellant

AND LEGAL AID TRIBUNAL Respondent

Hearing: 28 May 2013

Counsel: A J Ellis and G K Edgeler for Appellant

A E Gordon for Respondents

Judgment: 31 May 2013 at 4.15pm

_{RESERVED JUDGMENT OFCOLLINS J}

Introduction

[1] Mr Marteley was sentenced to life imprisonment with a minimum term of

14 years’ imprisonment after he pleaded guilty to murder. Twenty-two months ago he filed a notice of appeal against both his conviction and sentence. Mr Marteley’s

_{appeal has not been heard by the Court of Appeal because he has not been able to}

MARTELEY v THE LEGAL SERVICES COMMISSIONER [2013] NZHC 1278 [31 May 2013]

engage a lawyer to prepare and argue his appeal. Mr Marteley cannot afford a lawyer himself so he applied for legal aid.

[2] The Legal Services Commissioner (the Commissioner), the statutory officer responsible for administering legal aid under the Legal Services Act 2011 (the Act) has provisionally granted Mr Marteley legal aid in relation to his appeal against sentence only. The Commissioner’s decision declining Mr Marteley legal aid for his appeal against his conviction was upheld by the Legal Aid Tribunal (the Tribunal) on the grounds that Mr Marteley’s appeal against his conviction was “unarguable”.

[3] Mr Marteley has now appealed the Tribunal’s decision. His appeal has been brought under s 59 of the Act and can therefore only succeed if I conclude that the Tribunal’s decision was wrong in law.

[4] In this case, the key issue I have to consider is encapsulated in the following question:

Did the Tribunal make an error of law when it decided 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?

Legislative context

[5] The reference to the “interests of justice” in this statement of the key issue is derived from s 8(1)(c)(ii) of the Act which provides that:

(1) The Commissioner may grant legal aid to an applicant in respect of

... (criminal matters) if—

... (c) ...

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

[6] Under s 8(2) of the Act, when considering whether the interests of justice require that the applicant be granted legal aid, the Commissioner must have regard to, amongst other matters:

(i) ...

(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) ...

(viii) in respect of an appeal, the grounds of appeal.

[7] In addition, the Commissioner may have regard to any other circumstances that in his opinion are relevant when deciding whether or not the interests of justice require that the applicant be granted legal aid.1

[8] As I explain in [33]-[36] of this judgment the “interests of justice” also features in s 24(f) of the New Zealand Bill of Rights Act 1990 (NZBORA) in relation to the rights of a person charged with an offence to receive legal assistance “if the interests of justice so require and the person does not have sufficient means to provide for that assistance”.

Background

Plea and appeal

[9] On 3 September 2010 Mr Marteley pleaded guilty to a charge that he had murdered Mr Kingi on 10 June 2009. Three of Mr Marteley’s co-offenders also pleaded guilty to charges arising from Mr Kingi’s death. Mr Manukau and AJN (whose name is suppressed) pleaded guilty to murder. Mr Marteley’s partner, Ms Heremaia, pleaded guilty to manslaughter.

[10] On 5 November 2010 Mr Marteley was sentenced to life imprisonment with a minimum term of imprisonment of 14 years. Earlier, Mr Manukau and AJN had been sentenced to minimum terms of imprisonment of 12 and 10 years respectively. Ms Heremaia was sentenced to three years’ imprisonment for her role in Mr Kingi’s death. When sentencing Mr Marteley, Heath J observed that it was “... difficult to

establish exactly who did what to whom and when”2 in relation to the events

surrounding Mr Kingi’s death.

[11] On 29 July 2011 Mr Marteley filed a notice of appeal, out of time, against both his conviction and sentence. Mr Marteley’s notice of appeal was filed without him having the benefit of legal assistance. His appeal against conviction simply records his grounds of appeal in the following way:

Fresh evidence. I was also unduly pressured into pleading guilty ...

Further grounds of appeal to be advised later. As explained above, legal aid now requires an appeal to be lodged before legal aid will be granted.

Application for legal aid

[12] On 23 February 2012 Mr Marteley’s application for legal aid to appeal both his conviction and sentence was declined. Thereafter, a protracted series of events unfolded. It is convenient to explain them in the following way:

(1) On 16 April 2012 the Commissioner reassessed his 23 February 2012 decision and as a consequence legal aid was granted on an interim basis in relation to the appeal against sentence only.

(2) Mr Marteley then applied to the Tribunal to review the

Commissioner’s 23 February 2012 decision.

(3) On 7 June 2012 the Tribunal dismissed Mr Marteley’s application to review the Tribunal’s 23 February 2012 decision because that decision had been superseded by the Commissioner’s 16 April 2012 decision.

(4) Mr Marteley issued proceedings in the High Court appealing the Tribunal’s decision. That proceeding was put on hold while the Tribunal reviewed the Commissioner’s 16 April 2012 decision.

(5) On 22 August 2012 Mr Marteley filed his application to have the

Tribunal review the Commissioner’s 16 April 2012 decision.

(6) On 16 November 2012 the Tribunal issued its decision upholding the Commissioner’s decision to decline Mr Marteley’s application for legal aid in relation to his appeal against conviction.

(7) On 22 November 2012 Mr Marteley filed his appeal against the Tribunal’s 16 November 2012 decision. That document was followed by a more expansive notice of appeal on 29 November 2012.

[13] Mr Marteley did not have the benefit of a lawyer assisting him in relation to any of the steps I have summarised in [12].

The Tribunal’s decision of 16 November 2012

[14] In its decision the Tribunal referred to 12 tranches of “extensive submissions”

which Mr Marteley lodged with the Tribunal between 15 August 2012 and

17 October 2012. The Tribunal decided that Mr Marteley’s appeal against his conviction was based upon just two grounds, namely:

(1) prosecutorial misconduct; and

(2) a “mistaken guilty plea”.

[15] The Tribunal summarised the prosecutorial misconduct grounds of appeal in the following way:3

The applicant’s allegations of prosecutorial misconduct include the police concealing evidence; police exceeding their statutory authority during its investigation in 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; ...

[16] The Tribunal dealt with these aspects of the alleged prosecutorial misconduct ground of appeal in the following way:4

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

[17] The Tribunal referred to Mr Marteley’s claim that he had been induced into pleading guilty to murder in exchange for his partner’s charge being reduced from murder to manslaughter. The Tribunal decided that as the reduction in Ms Heremaia’s charge, and Mr Marteley’s plea of guilty to murder was suggested by Ms Heremaia’s counsel, then “the inducement cannot be said to be made by the

prosecution and therefore cannot be prosecutorial misconduct.”5

[18] The Tribunal examined and dealt with Mr Marteley’s appeal based upon his

“mistaken guilty plea” in the following way:6

It is accepted that the applicant’s lawyer when the guilty plea was entered advised the applicant he had a possible defence based on his instructions but in light of the prosecution evidence, including previous inconsistent accounts from the applicant, that there was a significant risk that the applicant would be disbelieved by a jury and consequently convicted. The applicant has not disputed the correctness of this advice. The applicant therefore accepts both that he was properly appraised of the merits of his position before he entered his guilty plea and that he made an informed choice to plead guilty. His concessions make this ground of appeal unarguable.

[19] In its conclusion the Tribunal said:7

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.

Mr Marteley’s personal circumstances

_{[20] Mr Marteley’s personal circumstances are an important factor in this case.}

4 _{At [18].}

5 _{At [19].}

6 _{At [22].}

7 At [24].

[21] I have been provided with part of a psychiatric report prepared in relation to Mr Marteley before he pleaded guilty to murdering Mr Kingi. The key features of that report are:

(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;8 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.

(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.

Mr Marteley’s right to appeal

[22] The statutory right of appeal for those convicted of an offence is a surprisingly recent concept. It was introduced in England and Wales in 1907 and in New Zealand in 1945.9

[23] Mr Marteley’s right to appeal is contained in s 383(1) of the Crimes Act

1961;10 affirmed by s 25(h) of the NZBORA;11 and procedurally regulated by the

_{Court of Appeal (Criminal) Rules 2001.}12

8 _{According to the report, at that time Mr Marteley was going to plead not guilty.}

9 _{Criminal Appeal Act 1907 (UK); Criminal Appeal Act 1945.}

10 “(1) Any person convicted on indictment may appeal to the Court of Appeal ... against—

(a) the conviction; or

(b) the sentence passed on the conviction ...; or

_{(c) both.”}

11 “Everyone who is charged with an offence has, in relation to the determination of the charge, the

following minimum rights:

...

(h) The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both.”

[24] Section 25(h) of the NZBORA reflects art 14(5) of the International

Convenant on Civil and Political Rights which provides that:

[E]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

[25] The importance of the right of appeal was emphasised by the Supreme Court in Petryszick v R, where the Chief Justice said the substance of the right of appeal “cannot be eroded by subordinate legislation or the exercise of the inherent powers of the Court [of Appeal] to control its procedure.”13

[26] There is also no doubt that in order for it to be properly exercised, the right of appeal contained in s 383(1) of the Crimes Act 1961 must be “an effective right of appeal which so far as is reasonably possible will ensure that justice is done in the appeal process”.14

[27] In R v Taito, Lord Steyn said that the context of the right of appeal in s 383(1)

of the Crimes Act 1961:15

is one of access to justice and it calls for what Lord Wilberforce in Minister of Home Affairs (Bermuda) v Fisher16 described as “a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’”. The substance must match the form.

Mr Marteley’s right to counsel

[28] The right to counsel for those charged with a felony only became a statutory right in England and Wales in 1836.17 Prior to then, counsel had been allowed to represent those charged with treason and misdemeanours.18 However, our law has

_{progressed considerably since 1602 when it was said, with some alarm, that if}

12 _{Made pursuant to s 409 of the Crimes Act 1961 and s 51C of the Judicature Act 1908.}

13 _{Petryszick v R [2010] NZSC 105, [2011] 1 NZLR 153 at [32].}

14 _{R v Taito [2003] 3 NZLR 577 (PC) at [12].}

15 _{At [12].}

16 _{Minister of Home Affairs (Bermuda) v Fisher [1979] UKPC 21; [1980] AC 319 (PC) at 328.}

17 _{Trial for Felony Act 1836 (UK) 6 & 7 Will IV c114.}

18 See Treason Act 1696 (UK) 7 & 8 Will III c3; J H Baker An Introduction to English Legal History (4th ed, Oxford University Press, Oxford, 2002) at 510; John H Langbein “The Criminal Trial before the Lawyers” (1978) 45 U Chi L Rev 263 at 307-314.

counsel were allowed to represent those charged with serious crimes, every prisoner would want one.19

[29] In the United States, the right to counsel has been recognised as a constitutional right in that country’s oldest States’ jurisdictions since 1776 and in the Sixth Amendment to the Constitution of the United States. In the seminal “right to counsel” case of Powell v Alabama, Sutherland J said:20

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.

[30] In Gideon v Wainwright, Black J articulated the importance of the right to representation in the following way:21

[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

19 _{R v Boothe (1602) BL MS Add 25203, fo 569 v.}

20 _{Powell v Alabama [1932] USSC 137; 287 US 45 (1932) at [69].}

21 Gideon v Wainwright 372 US 335 (1963).

[31] The words of Justices Sutherland and Black apply with equal force to those who wish to exercise their right to a meaningful appeal. To conclude otherwise would be to render an appellant’s “right” of appeal hollow and ineffective.

[32] In New Zealand, s 25(a) of the NZBORA guarantees to every person charged with an offence the right to a fair hearing. That right must also encompass a right to a fair appeal.22

[33] The rights contained in s 24(c), (d) and (f) of the NZBORA include 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.”

[34] Section 24(f) of the NZBORA is not an absolute guarantee the state will provide legal assistance in all criminal cases. The right to a legal aid lawyer in a criminal case is qualified in the sense that it is a right which is engaged when the interests of justice require the granting of legal assistance to a person who does not otherwise have the means to get legal assistance.23 However, the absence of legal assistance may lead to the conclusion that a person convicted of a criminal offence has been denied their fair trial right where they are forced to conduct their trial without legal assistance. Thus, in R v Condon , the Supreme Court held that:24

... 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. ...

[35] The same principle applies to those who wish to exercise their right to a meaningful appeal. Those who wish to exercise their right of appeal are unlikely to have their right to a fair hearing honoured if they are forced to conduct their own

_{appeal in circumstances where they have not chosen to act for themselves.}

22 _{R v Taito , above n 14, at [12].}

23 See R v Whitelaw [2008] NZCA 307 at [25], where the Court of Appeal stated that whether legal representation is required turns on the seriousness of the charge and the complexity of the case.

24 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [79]; see s 395A of the Crimes Act 1961 which permits an appellant to be represented by counsel at any hearing of an appeal or prehearing proceeding.

[36] Examples of authority which support this proposition include Maxwell v The United Kingdom and R v Taito.25 In Maxwell, the appellant had been convicted of assault and sentenced to five years’ imprisonment. Legal aid for Mr Maxwell to pursue an appeal was declined in circumstances where neither his solicitor, his barrister, or the Scottish Legal Aid Board were satisfied that he had adequate grounds to pursue an appeal. Even so, the European Court of Human Rights found a violation of art 6(3)(c) of the European Convention on Human Rights.26 The

European Court said:27

The situation in a case such as the present, involving a heavy penalty, where an appellant is left to present his own defence unassisted before the highest instance of appeal, is not in conformity with the requirements of Article 6 ...

Given the nature of the proceedings, the wide powers of the High Court, the limited capacity of an unrepresented appellant to present a legal argument and, above all, the importance of the issue at stake in view of the severity of the sentence, the Court considers that the interests of justice required that the applicant be granted legal aid for representation at the hearing of his appeal.

The European Court also said:28

The legal issues in this case may not have been particularly complex. Nevertheless, that Mr Maxwell had himself formulated the grounds for his appeal ... and that counsel was not prepared to represent him ... does not alter the fact that without the services of a legal practitioner he was unable competently to address the court on these legal issues and thus to defend himself “effectively”. Moreover, the appeal court, as stated, had wide powers to dispose of his appeal and its decision was final. Of even greater relevance, however, the applicant had been sentenced to five years’ imprisonment. For Mr Maxwell therefore the issue at stake was an extremely important one.

[37] In assessing an appellant’s right to a fair trial it is important to bear in mind that if Mr Marteley is forced to conduct his appeal without legal assistance he will be appearing against the Solicitor-General or the Solicitor-General’s representative. This is because s 390 of the Crimes Act 1961 provides that it is the duty of the Solicitor-General or his representative to represent the Crown on every appeal against conviction or sentence and to appear at every criminal appeal hearing. The

_{fact that Mr Marteley would be required to advance his case in circumstances where}

25 _{Maxwell v The United Kingdom [1994] ECHR 38; (1995) 19 EHRR 97 and R v Taito, above n 14.}

26 _{The European equivalent of s 24(f) of the NZBORA.}

27 _{Maxwell v The United Kingdom, above n 24, at [40]-[41].}

28 At [38].

the Crown is represented by the Solicitor-General or his representative engages further fair appeal considerations because of the clear disparity in “arms” between Mr Marteley and the Crown.

Nicholls v Registrar of the Court of Appeal

[38] In Nicholls v Registrar of the Court of Appeal,29 the Court of Appeal focused upon the criteria for granting criminal legal aid contained in s 7 of the Legal Services Act 1991. That section was similar to s 8 of the present Act. Section 7 of the Legal Services Act 1991 required the Registrar of the Court of Appeal to decide whether it was “desirable in the interests of justice that the applicant be granted legal aid”, taking into account “the gravity of the offence”, “the grounds of appeal”, and any other matters the Registrar saw as relevant.

[39] Eichelbaum CJ interpreted the grounds of appeal criterion as including the substantive merits of the appellant’s case. However, he also held that the threshold for a grant of legal aid would be an “arguable ground of appeal”. He said:30

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.

This is a question of balancing or weighing.

[40] The Court of Appeal in Nicholls expressed its concerns about the appropriateness of the Registrar and Court of Appeal Judges being involved in any way in criminal legal aid decisions. As a consequence Parliament passed the Legal Services Act 2000 which removed the Registrar of the Court of Appeal and Judges of that Court from making legal aid decisions.

[41] In Taito, the Privy Council noted that:31

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 [Legal Services Act 2000], which incorporates new safeguards, it

29 _{Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA).}

30 _{At 421.}

31 R v Taito, above n 14, at [24].

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.

[42] However, the Act that I am concerned with continues to refer to “the grounds of appeal” as a criterion that must be considered by the Commissioner when determining whether or not an applicant should be granted legal aid to pursue a criminal appeal. It is therefore necessary to consider whether, in light of Taito, the test for assessing the “grounds of appeal” criterion in s 8(2)(a)(viii) of the Act continues to be the same as that which Eichelbaum CJ articulated in Nicholls.

[43] In my assessment, the approach set out by Eichelbaum CJ in relation to assessing the grounds of appeal criterion must be modified so as to make it very clear that those determining applications for legal aid for criminal appeals should not determine the merits of an appeal. This reflects what their Lordships said in Taito about an appeal being lawfully determined only after a proper judicial hearing and application of the criteria for allowing or dismissing an appeal set out in s 385(1) of

the Crimes Act 1961.32

[44] I conclude that 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.33 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.

[45] This approach recognises that the Act distinguishes the rights of access to justice of criminal and civil litigants. Applicants for civil legal aid need to establish

_{that they have “reasonable grounds for taking or defending the proceedings or being}

32 _{At [18].}

33 This approach has similarities to the approach taken when an application is brought to strike out civil proceedings. Strike-out applications proceed on the assumption that the facts in the statement of claim in question will be established at trial; see Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.

a party to the proceeding”.34 In addition, the Commissioner may refuse a grant of civil legal aid in relation to originating proceedings where the applicant’s prospects of success are not sufficient to justify the grant of legal aid.35 This requires an assessment of the merits that is absent from the factors that must be considered when determining an application for criminal legal aid.

[46] The approach I have explained is consistent with Taito and ensures that an appellant can exercise a meaningful right to appeal. Furthermore, this approach ensures that the function of the Court of Appeal is not encroached upon by the Executive, through the Commissioner, expressing a view on the outcome of an appeal.

How should the interests of justice have been assessed in Mr Marteley’s case?

[47] The Commissioner must determine if the interests of justice require the grant of legal aid for a criminal appeal on a case-by-case basis. In this case, the following matters needed to be considered.

Section 8(2)(a) mandatory considerations

[48] Section 8(2)(a)(ii) and (iii) of the Act required the Commissioner to have regard to the fact that Mr Marteley was convicted of an offence punishable by imprisonment and the inevitability of his sentence of imprisonment continuing if his appeal was not heard and allowed.

[49] In this case, the sentence imposed on Mr Marteley was one of the most serious that could have been imposed. The factors identified in s 8(2)(a)(ii) and (iii) of the Act therefore strongly weighed in favour of legal aid being granted so as to enable Mr Marteley to pursue his appeal in a meaningful way.

[50] Section 8(2)(a)(iv) of the Act required the Commissioner to have regard to

whether Mr Marteley’s appeal involved a substantial question of law. In addition, s 8(2)(a)(v) of the Act required the Commissioner to have regard to whether

34 _{Legal Services Act 2011, s 10(3).}

35 Section 10(4)(d)(i).

Mr Marteley’s appeal involved complex factual, legal or evidential matters. It is very difficult to make a meaningful assessment of these considerations at this juncture. Suffice to say that it is quite conceivable that the grounds of appeal identified by the Tribunal were capable of giving rise to substantial questions of law, and/or complex, factual, legal or evidential matters.

[51] Section 8(2)(a)(vi) of the Act required the Commissioner to consider whether or not Mr Marteley was able to understand the proceedings or present his own case, whether orally or in writing. It is clear from the materials contained in the case on appeal, including the psychiatrist’s report which I have summarised in [21] of this judgment, that Mr Marteley’s personal issues would have made it particularly difficult for him to present his own case. Accordingly, the factors that are identified in s 8(2)(a)(vi) of the Act weighed heavily in favour of legal aid being granted in this case.

[52] Section 8(2)(a)(viii) required the Commissioner to have regard to the grounds of appeal. In this case the Tribunal were able to deduce from Mr Marteley’s submissions that he had two grounds of appeal namely, prosecutorial misconduct and that Mr Marteley had “mistakenly entered a guilty plea”.

[53] As explained in [43]-[46] of my judgment, the Commissioner would have discharged his responsibilities under s 8(2)(c)(viii) of the Act by simply deciding that, if established, the identified grounds of appeal were capable of leading to a successful appeal. In undertaking this assessment the Commissioner and the Tribunal should have avoided assessing the merits of Mr Marteley’s appeal.

[54] It is clear from the Tribunal’s decision, the important sections of which are referred to in [15]-[19] of my judgment, that the Commissioner and the Tribunal went much further than they should have and in effect determined the merits of Mr Marteley’s appeal. The Tribunal’s factual and legal assessments of the merits of Mr Marteley’s grounds of appeal were similar to the sort of approach one would expect to be undertaken when considering an application for civil legal aid.

Section 8(2)(b) other considerations

[55] Ms Gordon, counsel for the Tribunal accepted that in this case, the Court of Appeal would be likely to appoint an amicus curiae if Mr Marteley was unable to instruct a lawyer to prepare and argue his appeal. It will be for the Court of Appeal to determine if an amicus should be appointed in this case if Mr Marteley fails in his application for legal aid in relation to his appeal against his conviction. However, it is reasonable to assume for present purposes that appointing an amicus may ensure that Mr Marteley’s right to an effective appeal is preserved, particularly if the amicus is instructed to ensure that all relevant grounds of appeal are properly presented to the Court of Appeal.

[56] If an amicus were appointed their fees would be paid for by the Secretary of Justice.36 The fees of an amicus are usually higher than the rates currently set for lawyers who are paid under the legal services regime.37

[57] In this case, there is the possibility that the costs of ensuring Mr Marteley receives a fair appeal will be met from two appropriations made by Parliament.38 It is even possible that two separate lawyers would be involved, one to present Mr Marteley’s appeal against sentence (paid for by the Commissioner) and the other (paid for by the Secretary of Justice) to ensure Mr Marteley’s appeal against conviction is properly advanced. But even if the lawyer who represents Mr Marteley

on his sentence appeal was also appointed amicus for the purposes of his conviction appeal, there would be an unfortunate duplication of resources and an incurring of additional expenditure. 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.}

36 _{Judicature Act 1908, s 99A(1)(b) and (2).}

37 The legality of the existing rates has been successfully challenged in The Criminal Bar

_{Association of New Zealand Inc v The Attorney-General [2013] NZCA 176.}

38. Vote Justice (M 42) in relation to legal aid and Vote Courts (M 19) in relation to the payment of the fees of an amicus.

[58] In addition to the spectacle of wasted costs, this case also highlights the need to ensure that a greater, but unquantifiable cost is avoided, namely the cost of justice being denied for close to two years while collateral litigation has been pursued.

Did the Tribunal make errors of law?

[59] In this case, the Tribunal’s decision that Mr Marteley’s appeal against conviction was “unarguable” involved the Tribunal embarking upon an erroneous inquiry into the merits of Mr Marteley’s appeal. It also involved the Tribunal failing to take into account the relevant considerations which should have been taken into account under s 8(2)(b) of the Act, which I have explained in [54]-[57] of this judgment.

[60] I accordingly conclude that the errors made by the Tribunal were errors of law as that concept was applied by the Supreme Court in Bryson v Three Foot Six Ltd.39

Conclusion

[61] I have deliberately refrained from assessing the merits of Mr Marteley’s appeal or the likelihood of him succeeding. If the appeal does proceed, the Court of Appeal may readily agree with the conclusions reached by the Tribunal. However, it is not my role, nor the role of the Commissioner and the Tribunal to assume the functions of the Court of Appeal by undertaking an assessment of the merits of Mr Marteley’s appeal as was done in this case.

[62] Mr Marteley’s appeal is allowed.

[63] The question posed in [4] of this judgment is answered in the following way:

The Tribunal made an error of law when it decided 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.

39 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]- [26].

[64] If I need to resolve any costs issues counsel should file memoranda explaining their respective positions within 20 working days of the date of this

_judgment.

_{D B Collins J}

Solicitors:

Nat Dunning, Wellington for Appellant

Minter Ellison Rudd Watts, Wellington for Respondents