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Condon v The Queen [2006] NZSCTrans 8 (27 March 2006)

Last Updated: 13 July 2012


IN THE MATTER of a Criminal Appeal





Hearing 27 March 2006

Coram Elias CJ Blanchard J Tipping J

Counsel N Sainsbury for Appellant

B Horsley for the Crown


10.01 am

Sainsbury May it please Your Honours my name is Sainsbury, with me is Mr

Snape. We appear for the appellant. Elias CJ Thank you Mr Sainsbury, Mr? Sainsbury Snape.

Elias CJ Snape, thank you.

Horsley May it please the Court, Counsel’s name is Horsley and I appear for the respondent.

Elias CJ Thank you Mr Horsley. Yes, Mr Sainsbury. I just might adjust my chair.

Sainsbury Your Honours, I’m obviously mindful this is a leave application and in terms of the grounds, those are set out in the written submissions and it’s not my proposal, unless Your Honours wish me to do so, simply to traverse what’s there.

Elias CJ We’ve read them Mr Sainsbury.

Sainsbury I’m certainly satisfied that that sets out the position in terms of the appellant. There are some matters I wish to address briefly in terms of some of the issues raised by my learned friend, particularly in relation to the application being filed out of time. And indeed the issue of, the general issue of delay and the other issue of, given the sentence has been served, whether that makes the point a moot one. It obviously is accepted the matter is filed out of time. That’s just simply a fact of it.

In terms of the sentence, dealing with that first, because the type and length of the sentence per sé isn’t a live issue in terms of this appeal, I don’t understand that there is on the file the information about when the sentence concluded. It just simply wasn't a matter that was a live issue in the Court of Appeal. And it’s not a live issue here but.

Elias CJ When did it determine.

Sainsbury Well I’ve made inquiries about that. He was sentenced on the 10th of September 2003 to 18 months imprisonment. That makes him eligible for parole at the half point of the sentence which is the 10th of June. And he would, if not paroled before, would have definitely been released by the 10th of September which is the two-thirds release date. My instructions from Mr Condon was that he was released on parole in July and to his recollection it was before the determination of the Court of Appeal. So to that extent I suppose one would say in terms of completion of sentence, the matter was moot when before the Court of Appeal. But my submission is that’s really irrelevant because the points at issue and the points that Mr Condon raises are matters that go to the issues of representation or lack of representation by Counsel, and that’s simply not moot. The interpretation of section 30 is the latest incarnation of the provision relating to no full time custodial sentence without opportunity for legal representation.

So those points are the important ones. Important too given that there appears to be divergence of authority in the Court of Appeal and important in themselves. Because the right to Counsel is a fundamental one in our jurisdiction and it’s an appropriate one for guidance from this Court.

So those issues remain. In terms of the issue of well he’s served his sentence, does it matter. The sentence is the end point. The conviction matters. And we’ve got convictions on two serious charges. And it’s really irrelevant whether this man has a list as long as our arms or not. Having those convictions against his name if they shouldn’t be there remains a live issue.

Tipping J It’s the substantial miscarriage of justice ground that really engages the conviction is it as opposed to the at risk ground. Or does the at risk ground also engage the conviction.

Sainsbury It does in my submission. Tipping J Yes.

Sainsbury They work in together. As you’re aware, section 30 allows for the quashing of a conviction as well as the other option is the change of sentence.

Tipping J Yes, quite.

Sainsbury Had one, was this a situation for example where the lack of representation impacted on the nature or duration of sentence, then one would squarely have I suppose a sentence appeal. Here it dovetails in with the other issue. Because what is important here is that lack of representation undermines the validity or the safeness of the conviction. So they actually do work in together.

Elias CJ Well is that to say that any breach of section 30 amounts to a substantial miscarriage of justice.

Sainsbury In terms of representation at a trial or defended hearing, in my submission yes.

Tipping J Well it could have a fair trial dimension. That’s really the point isn’t it, the fact that in these circumstances he wasn't given the adjournment.

Sainsbury No, that’s correct Sir. Tipping J Yes.

Sainsbury Yes Sir. As to whether there might be a situation where a person wanted representation there was a breach of section 30 and it may be possible for the proviso to be applied. I wouldn't concede that. I think it’s another, it’s an issue that’s worth traversing in the course of this appeal. But squarely in this situation, yes. Where a person’s unrepresented at trial, that in the ordinary course is a substantial miscarriage of justice.

Elias CJ In any event I imagine you could still maintain the argument that in the particular case it was.

Sainsbury Indeed.

Elias CJ And point to what the Court of Appeal said about the nature of his self-representation.

Sainsbury Yes. Yes, that’s correct. So in terms of the delay in filing, insofar as that’s simply there, that is outweighed by the importance of the issue and the fact that there is still a live issue. Mr Condon doesn’t necessarily accept he’s responsible for that delay. And one can have some sympathy for him as it is often the way with people who’ve become sentenced prisoners, trying to get alternative Counsel from prison is not always easy. My involvement just to deal with that, occurred in March last year when I was approached by legal services whether I would be prepared to take on the case which I was with the proviso that I had other commitments in terms of trial matters over the next two to three months at least and would, if they wished to assign me, I would accept it and did accept it but I had difficulties in timing. But nevertheless ended up with the assignment with those problems which I think compounded Mr Condon’s situation.

But in any event my response is the importance of the issues. Tipping J Well the Court of Appeal seems to have had some discomfort. Sainsbury Yes.

Tipping J With applying the what we might call the narrower view espoused in Parkhill (Parkhill v Ministry of Transport [1992] 1 NZALR


Sainsbury Indeed. And it is remarkable when you look at their comments about what they say is the more obvious interpretation more consistent with the Bill of Rights Act and yet found themselves going against what seemed to be the intuitively right result if I might put it that way.

Tipping J Well I might be regarded as sort of captured a little bit by this issue

Mr Sainsbury but I’m trying to be wholly dispassionate about it. Sainsbury Yes. I’m aware of that Sir.

Elias CJ Well.

Sainsbury But as I say, I suppose the merits of my argument for leave are squarely set out in the written submissions and unless Your Honours

had particular concerns that have arisen from those I don’t wish to simply traverse them for the sake of traversing them.

Blanchard J Can I try you out on a couple of attempts to frame questions. Sainsbury Yes.

Blanchard J The first one, did section 30 of the Sentencing Act 2002 preclude the sentencing of the appellant to a sentence of imprisonment. Would that capture the issue you want to argue.

Sainsbury In these circumstances, yes.

Blanchard J Yes, well it would obviously mean, it obviously means in the circumstances.

Sainsbury Yes Sir.

Blanchard J And secondly, did the refusal of an adjournment of the trial after withdrawal of assigned Counsel give rise to a miscarriage of justice in the circumstances of this case.

Sainsbury Yes. Blanchard J Thank you. Sainsbury Thank you Sir.

Elias CJ Yes thank you Mr Sainsbury. Yes Mr Horsley.

10.12 am

Horsley Thank you Your Honours. The point that the Crown makes in this application for leave is putting aside the application being filed out of time which this Court’s well capable of assessing, is that the question of law which has been raised which the Crown says is a legitimate question, i.e. the interpretation of when section 30, to use the words in Page (R v Page Crimes Act 4/00; 6/6/2000) bites is a legitimate question but one which is moot in the particular case and one which the Crown says is more appropriate to be dealt with when it is a live issue and the subject of full argument before the Court of Appeal.

Tipping J Why is it moot in relation to the impact it may have on the question of the conviction.

Horsley Because for the same analysis really Sir that was applied in Page. In Page you will recall that the Court held that there was in fact a breach of section 10 which was the precursor to section 30. But nonetheless because the appellant had served his sentence in that

case, the Court said that the remedy there was simply a declaration that there had been a breach of section 10. They did not go down the track of quashing the conviction. And really, it’s a continuation of the same analysis which the Court applied in this particular case and that is, looking at the overall question of whether there has been a miscarriage of justice, they were looking at the safety of the conviction, not simply compliance with section 30.

Tipping J But if there hasn’t been a fair trial on account of the refusal of the adjournment and I’m far from saying that’s my view.

Horsley Yes Sir.

Tipping J Surely one couldn't sort of do a semi-proviso exercise.

Horsley Well with respect Sir that’s two different arguments. The first is a question of whether section 30 inherently, a breach of section 30 inherently leads to a miscarriage of justice, an unfair trial in this particular case. The second was whether.

Blanchard J Isn’t that a pretty important question.

Horsley It is Sir, it is an important question but the Crown says that in fact the authorities that are already in existence have well established that it’s not simply a case of showing that there’s been a breach of section 30 before one automatically turns to the question of whether there has been a miscarriage of justice. Page shows that. Parkhill also dealt with that exact point.

Tipping J I’m not sure that I’d be prepared to buy in absolutely without argument to those authorities.

Horsley That’s certainly the position that this Court may well take in terms of a leave application Sir. And I’m not saying that the position must be so clear cut that you could not possibly grant leave. But in this particular case the point, the Crown says it is moot because this man had legal representation right up until the trial so the critical issue became one of whether the adjournment itself and him not being represented during the course of the trial actually led to a miscarriage of justice. That point was directly considered by the Court of Appeal. They applied the correct authorities. There’s been no challenge to that. And the Court says that that, sorry the Crown submits that that is not a valid question for this Court on review.

Blanchard J But isn’t there a question of the man’s eligibility for a sentence of imprisonment. On his argument he wasn't eligible to have a sentence of imprisonment inflicted upon him and it would follow if that was so I would imagine that he’s entitled to have the stigma of that sentence removed from his record.

Horsley Well no Sir because.

Blanchard J It’s a different situation from one of those borderline cases where a Judge has a discretion whether to sentence to imprisonment or not. And may get it wrong, but subject to appeal, them’s the breaks.

Horsley Yes Sir.

Blanchard J But here the argument is I could not be sentenced to imprisonment. Horsley Yes Sir. And of course section 30 provides for two options in that

situation. The sentencing Court, if they had thought that there was a breach of section 30, could have quashed the conviction and sent him back for a retrial because they were concerned that he would not face a term of imprisonment where they considered it was completely justified. The other option that an appellate Court had of course was to change the sentence. So you can see that even under section 30 there’s no presumption that there’s been an unfair conviction. It is more concerned about the sentence that has been imposed.

Elias CJ But an appellate Court can do more than change the sentence.

Under section 30 it can quash the conviction and direct a new trial or make any other order.

Horsley Yes Your Honour. And I don’t dispute that at all.

Tipping J Well there was no way was there they were going to pass a sentence short of imprisonment. If they had thought there had been a breach of section 30 they would have undoubtedly sent it back for a retrial.

Horsley If the sentencing Court, and I only say sentencing Court because that’s the only time when this point was relevant because by the time it hit the Court of Appeal he’d already served his term of imprisonment. In the Court of Appeal the Crown says one option available to the Court of Appeal would have simply been to declare that there had been a breach of section 30, quash the sentence and either convict and discharge because he’d already served the sentence or in fact that may have been the most appropriate step.

Elias CJ But isn’t that taking section 30 to be wholly encapsulated in the result that can be provided by subsection (3). And subsection (1) is in fairly absolute terms. Really your argument about mootness it seems to me turns more on subsection (3). But if he has not been legally represented at the stage of the proceedings at which he was at risk of conviction, then the Court had no power to impose a sentence of imprisonment.

Horsley That’s correct Your Honour. But that doesn’t affect the conviction itself. The safe.

Elias CJ No but it may be a legislative indication, particularly when you read this with the Bill of Rights Act and with the principles of fair trial, that he hasn’t had a fair trial.

Horsley Well this is, Your Honour, I think where the. What the Crown is arguing is that this did not have an effect on fair trial. Because of course we’ve got to remember that the Bill of Rights itself does not say that you have a right to Counsel at trial. It says you have the right to legal assistance. And it’s well established that that does not mean that you have an absolute right to Counsel at trial.

Elias CJ But the legislature arguably has said in section 30 that you have a right to be represented if you are at risk of a sentence of imprisonment.

Horsley Well what it says and what earlier decisions such as Long, Taylor and then Parkhill have said is that the importance of those sections coming through section 10 to section 30 is that you need to inform the person that they have the ability to engage legal representation. Beyond that though Your Honour, it is the accused person’s election as to whether they engage because of course they can say that they do not want to actually be represented. So the importance of the section is not so much to provide for advice so much as to provide for the advice that legal representation would be available to you.

Elias CJ Well that’s why subsection (1) is subject to subsection (2). Horsley Yes, yes Your Honour, that’s right.

Elias CJ Yes. But we’re having to assume that you get over the hurdle of subsection (2) but that opportunity was not provided. In that event surely the legislative policy is that a sentence has been imposed without lawful authority.

Horsley And the question then becomes one of remedy Your Honour. Elias CJ Well it may.

Horsley So the Crown’s position, and perhaps I haven’t made this particularly clear, is that the conviction itself is not something that should be under challenge.

Elias CJ Well that’s why I’m.

Horsley This Court is expressing concern with the safety of the conviction.

Elias CJ No. That is why I am wondering whether the question is wider than section 30.

Horsley And perhaps it is Your Honour.

Elias CJ Because if you read section 30, it’s quite clear that it does go to, as a whole, it’s quite clear that the legislature’s concern does go to the safety of the conviction because that is why that’s one of the outcomes provided by subsection (3).

Horsley With respect Your Honour I think that subsection (3) was actually put in place more for the protection of the community. It was put in place I think as a direct result, as I think in Justice Woodhouse’s comments in Long, that he was desperately concerned that if it had been shown that section 10 as it then was had been breached and he was a sentencing Judge, he was faced with the difficult prospect under the former section that there was no ability for him to sentence someone who manifestly deserved to be sentenced to imprisonment to a term of imprisonment. And he expressed the real concern that under the previous section there was no ability to quash the conviction, thereby enabling a retrial and ensuring that section

10 complied with so that a sentence of imprisonment could properly be imposed.

Blanchard J That hasn’t happened here.

Horsley No Your Honour it hasn’t happened here. And the question, that is why I say that the question comes back to one of remedy. What has happened is that in the Crown’s submission, there has been a safe conviction because the Court of Appeal did look at whether there has been a safe conviction in terms of the normal principles that are applied when an accused is unrepresented, they took into account the late adjournment, and in the Crown’s submission there’s been a safe conviction and the question becomes one of remedy, which is the exact same situation that was occurred in Page. And in Page they did not overturn the conviction. Rather they said the point is now moot. This man is entitled to a declaration that section 10 was breached and that was the extent of it.

Blanchard J Where does section 30 say anything about things being moot. Horsley It does not say anything about things being moot Your Honour. It’s

a case of what is one as an appellate Court to do when faced with a prisoner who has served their term of imprisonment.

Tipping J Could I ask one question Mr Horsley. Horsley Yes Sir.

Tipping J Are you putting this mootness point as a factor of discretion or that we simply can’t give leave.

Horsley No, it’s a factor of discretion Sir. Tipping J It’s a factor of discretion.

Horsley And that’s well established on the authorities.

Tipping J Yes right. Well on that premise which I entirely agree with, surely this an area frankly, this Parhill, Page, Long difficulty, the degree of impact if any that it has on the conviction in these circumstances and the very fact that there is I would have thought a respectable argument anyway, that this conviction was unsafe parche what you say about the Court of Appeal. Surely the sooner this Court gets to grips with these matters, even if this is a case with an element of mootness, the better. That’s my pragmatic proposition to you.

Horsley Yes Sir and I understand that proposition. The comments I would make on that are that Page is largely perincurium (?). In that case they did not refer to Parkhill. The comments that were made by Justice Doogue I think in delivering the decision of the Court were as far as saying that it is the time of conviction that section 30 bites was really one of just referring back to the fact that the Judge in that instance should have been satisfied at that time that section 30 had been complied with. So to elaborate, what I am saying is that Parkhill has not been properly reconsidered by the Court of Appeal. Certainly not by a full Bench of the Court of Appeal. It’s an issue that in the Crown’s submission is not live in this particular case because this man has served his sentence of imprisonment so the remedy that the Crown says one might have had which is to quash the sentence is not available any more to this man. And the Crown is simply saying that this is a point and an argument that is better raised with full argument before the Court of Appeal before it comes to this Court for final determination.

Now that’s the Crown’s submission on the moot point and why.

Elias CJ Why do you say that, just simply because then we’ll have a reasoned judgment of the Court of Appeal to help us, is that what you’re saying?

Horsley Yes Your Honour.

Elias CJ It’s hardly a very, I mean it’s hardly a point that needs a lot of refinement though is it.

Horsley Well that’s an interesting point Your Honour. Because it is one that you can see that the factual scenario may perhaps have a great deal of effect on whether there has in fact been a miscarriage. Now for

instance this factual scenario involved a man who was legally represented. And it sounds like very well represented right up until trial. The accused, or prisoner, and his Counsel had discussed the defence. They’d gone through the defence in great detail. And that’s perhaps why the Court of course felt that there was no overall miscarriage of justice.

Tipping J How on earth you can say that someone was represented when they were at risk when it’s the jury that decides and they’re not represented in front of the jury, I have grave difficulty in understanding Mr Horsley. But that I know is doing what we always say to Counsel don’t do, getting into the merits. But I have to say that frankly I think the sooner this area is tidied up the better.

Horsley Yes Sir and the Court of Appeal itself recognised that there were two available interpretations of section 30. They preferred the Parkhill interpretation obviously.

Tipping J Well they didn’t prefer it, they just felt obliged to follow it.

Horsley With the greatest of respect Sir I’m not so sure that they felt obliged to follow it. They did discuss why it was that it was appropriate that section 30 be interpreted in the way it was.

Tipping J Alright well that’s as may be.

Horsley Yes Sir. And again Sir perhaps that’s delving into the substantive merits of it.

Elias CJ And indeed there may be a doubling up. The section 30 point and the refusal of the adjournment point.

Tipping J Because this man was so obviously at risk of imprisonment that to refuse the adjournment without taking that into account, I know the adjournment per sé is no longer, I mean, but it’s all part of the whole picture.

Horsley It is Sir and part of the difficulty with that is that the background factual scenario to this is incredibly complex. You’ll see that there were I think three, perhaps four reports that were asked for from the trial Judge as to what occurred. You’ll also see in the decision that there’s a reference to section 30 of the Sentencing Act that was made by the Crown Solicitor at the time. Unfortunately there’s nothing from the trial Judge as to what he actually made of that. And you’ll also recall that the accused as he then was actually said he was happy to proceed. So the background facts to this are difficult.

Elias CJ Might as well get it over with.

Horsley Sorry.

Tipping J Might as well get it over with.

Elias CJ He said something to the effect of, he might as well get it over with. Horsley Yes I think, I think the words were.

Tipping J I can’t quite understand with great respect Mr Horsley why the

Crown is struggling to stop us getting our hands on this issue.

Horsley I’d be loathe to accept Sir that I’m struggling to stop you getting there. I’m simply saying Sir that there is another available avenue for this Court and that is to let it be dealt with by a full Court of the Court of Appeal. I’ve submitted that that would be an appropriate thing to happen.

Tipping J Is that your main point, that we shouldn't engage on this because the

Court of Appeal hasn’t had a full crack at it.

Horsley Yes Sir it is. And because I say that there’s no hint of a substantial miscarriage here because the Court of Appeal did in fact go on to consider the effect of the adjournment, the effect of a lack of representation and they have properly considered that. Now that is not a question of law.

Tipping J Have they considered it against the more recent jurisprudence that puts a high emphasis on fair trial considerations and the Sungsuwan approach for example.

Horsley Yes Sir they considered it light of Hill and Turten for instance which directly talked about fair trial process, and Rue. They were all relatively recent decisions, I think 2002 to 2004. I don’t, they certainly didn’t refer to Sungsuwan, that was pre-Sungsuwan.

Tipping J Yes.

Horsley But I have no doubt Sir that they applied the correct statements of law in those. And in fact I don’t think that the applicant would dispute that.

Tipping J Well he doesn’t dispute that they applied the law as then viewed.

But I think the applicant is, although he doesn’t put it quite as sharply as this, but no doubt he will when we get there, if we get there.

Horsley Sir.

Tipping J Will say that there’s a sort of, there’s cross-fertilisation if you like between these two issues.

Horsley Yes Sir.

Tipping J That they aren’t self-contained issues.

Horsley And clearly if this Court’s concerned that there is a risk of a substantial miscarriage of justice then that is the test for grantg leave. As to what the question of law is, I’m not sure. That may well be simply that the Court was in error in finding that there had been no substantial miscarriage.

Tipping J Well what would be wrong with what.

Horsley Which involves a factual analysis of the whole.

Blanchard J Well that’s what I was trying to capture in the second of those suggested grounds.

Tipping J Yes.

Horsley Yes and really that’s a case of this Court saying that the Court of Appeal was wrong to actually find that the adjournment did not give rise to the.

Blanchard J Did you have any difficulty with the way I framed those? Don’t hesitate to say you did. I was only doing them while Mr Sainsbury was talking.

Horsley Well certainly Sir I think that the second point is the mistake by the Court. And I can see that that question’s perfectly well stated. As far as section 30 goes, it may be that the way that Your Honour has phrased it allows for the wider ranging discussion that perhaps Your Honour Justice Tipping has been talking about in terms of the effects of section 30. I see this as probably raising some isolated questions. For instance, one is the proper meaning of risk of conviction and the interpretation of legal representation in that context.

Blanchard J Yes well I think they’d all be encompassed in that. Horsley Yes I do, I do think that’s right Sir.

Blanchard J I think I’d probably pick up Mr Sainsbury’s suggestion that the words in the circumstances of this case should appear in both questions.

Horsley Yes Sir.

Tipping J There are two issues really aren’t there. One was the sentence validly imposed. And two, was there a substantial miscarriage of

justice in the way if you like in which the conviction was reached. And I’m not trying to gazump my brother’s drafting, I’m just saying there.

Blanchard J That’s a summary of the summary.

Tipping J Yes, it’s a summary of the summary. I mean. Horsley Yes Sir.

Tipping J The idea that if someone has, even though he’s served it, has wrongly been imprisoned, the idea of mootness doesn’t really appeal to me Mr Horsley.

Horsley It.

Blanchard J Well perhaps we’re.

Tipping J Perhaps we’re just repeating ourselves. Blanchard J Wandering around over the same ground again.

Horsley Yes Sir. And perhaps, I’ve put the Crown’s position as strongly as, and perhaps stronger than this Court may have liked. But my simple point is that it would be available for this Court to, if the mootness point was accepted, to leave the issue to the full Bench of the Court of Appeal for full discussion thus enabling a decision which does consider all the authorities to be before this Court. I see that as being of benefit to the Court. But equally I would be loath to be considered to be interfering with this Court’s ability to take matters on appeal. Thank you Your Honours.

Elias CJ Yes thank you Mr Horsley. Was there anything in reply Mr


10.35 am

Sainsbury I’m not sure there really is of any substance. Just one matter which isn’t apparent from the Page judgment, the point was made that it didn’t appear to discuss Parkhill and that is true in the decision. Having had the opportunity of seeing the case book from the Page appeal, Parkhill was before the Court. It’s not discussed but it was before the Court.

Elias CJ Yes thank you. We’ll take a short adjournment. We’d like Counsel to stay in Court thank you.

Sainsbury As Your Honours please. Horsley As Your Honours please.

Court adjourns 10.36 am

Court resumes 10.42 am

Blanchard J The application for leave to appeal is granted. The approved grounds will be as follows:

(a) did section 30 of the Sentencing Act 2002 preclude the sentencing of the appellant to a sentence of imprisonment in the circumstances of this case;

(b) did refusal of an adjournment of the trial after withdrawal of assigned Counsel give rise to a miscarriage of justice in the circumstances of this case.

Elias CJ Thank you.

Horsley As Your Honours please. Sainsbury As Your Honours please. Elias CJ Thank you Counsel. Court adjourns 10.43 am

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