The Legal Swevices Commissioner v Marteley

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 19 May 2014
• Neutral Citation: [2014] NZCA 185
• Docket Number: CA735/2013
• Court: Court of Appeal
• Date: 19 May 2014

Between

The Legal Services Commissioner

Appellant

and

Todd Aaron Marteley

Respondent

[2014] NZCA 185

Court:

Ellen France, Randerson and Miller JJ

CA735/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal by the Legal Services Commissioner from a High Court (HC) decision which overturned the Commissioner's refusal to grant the respondent legal aid — respondent pleaded guilty to murder and was sentenced to life imprisonment — respondent had received limited grants of legal aid — Commissioner had determined under the Legal Services Act 2011 (LSA) that there were no realistic grounds for an appeal against conviction — what extent was the Commissioner entitled to consider the grounds of an appeal against a criminal conviction in terms when deciding whether to grant legal aid under s8(2)(a)(viii) LSA (criminal matters — the grounds of the appeal) — whether the HC erred by taking into account the fiscal consequences of having to appoint an amicus if legal aid was denied.

Counsel:

F M R Cooke QC for Appellant

A J Ellis and G K Edgeler for Respondent

• A The appeal is allowed.

• B The two questions of law identified at [8] of this judgment upon which leave to appeal was granted are each answered in the affirmative.

• C Leave is reserved to apply if there is any further issue about relief.

• D There is no order for costs.

JUDGMENT OF THE COURT

REASONS

Ellen France and Randerson JJ	[1]
Miller J	[100]

ELLEN FRANCE AND RANDERSON JJ

(Given by Randerson J)

Table of Contents

	Para No
Introduction	[1]
Background facts	[10]
The Tribunal's decision	[17]
The High Court judgment	[25]
The position of the parties on appeal	[33]
First issue — grounds of appeal	[36]
The terms of the legislation	[37]
The decision in Nicholls	[43]
The Privy Council's decision in Taito	[55]
The legislation after Taito	[59]
The relevant provisions of NZBORA, the international conventions and the jurisprudence of the European Court of Human Rights	[65]
Our conclusions on the first issue	[77]
This case	[86]
Second issue — fiscal consequences	[93]
Result	[96]

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 co-offenders

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...