Todd Aaron Marteley v The Legal Services Commissioner

• Jurisdiction: New Zealand
• Judge: Elias CJ,William Young,Glazebrook,Arnold,O'Regan JJ
• Judgment Date: 21 August 2015
• Neutral Citation: [2015] NZSC 127
• Docket Number: SC 61/2014
• Court: Supreme Court
• Date: 21 August 2015

Between

Todd Aaron Marteley

Appellant

and

The Legal Services Commissioner

Respondent

[2015] NZSC 127

Court:

Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

SC 61/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal following the refusal of the Legal Services Agency and the Legal Services Commissioner to fund the appellant's appeal against his conviction for murder — appellant had pleaded guilty after the prosecutor had indicated that if he did so, the Crown would not seek a murder conviction against his partner — funding was refused on the basis that the appeal lacked merit — whether and to what extent was a consideration of the merits of a criminal appeal material to the decision to grant legal aid under s8 Legal Services Act 2011 (when legal aid may be granted: criminal matters) — whether the fact that the state would have to incur the cost of the appointment an amicus for the appeal to proceed without counsel was relevant to the consideration of the interests of justice.

Counsel:

A J Ellis and A Shaw for Appellant

F M R Cooke QC and B D Huntley for Respondent

• A The appeal is allowed, the Court of Appeal judgment is set-aside and the order that the appellant receive legal aid for his conviction appeal is restored.

• B In this Court the appellant is awarded costs of $25,000 together with reasonable disbursements.

• C The appellant is also entitled to costs and disbursements in the High Court and Court of Appeal to be fixed by those Courts.

JUDGMENT OF THE COURT

REASONS

William Young, Glazebrook, Arnold and O'Regan JJ	[1]
Elias CJ	[83]

WILLIAM YOUNG, GLAZEBROOK, ARNOLD AND O'REGAN JJ

(Given by William Young J)

Table of Contents

Introduction	Para No
Introduction	[1]
The merits issue: to what extent is a consideration of the merits of a criminal appeal material to the decision to grant legal aid?	[6]
Overview	[6]
Pre-Nicholls evolution of the statutory scheme	[10]
The human rights context	[19]
Nicholls v Registrar of the Court of Appeal	[26]
The Legal Services Act 2000	[33]
Subsequent criticism of Nicholls	[37]
The 2006 amendments	[39]
The 2011 Act	[40]
The approach of Collins J	[43]
The Court of Appeal judgment	[45]
Three different approaches	[48]
Our approach	[50]
Should legal aid have been granted for the conviction appeal?	[56]
The background to the conviction for murder	[56]
An overview of the proposed conviction appeal	[64]
The dealings between the appellant and the Agency and Commissioner	[70]
The Legal Aid Tribunal	[71]
The appeal to the High Court	[74]
The appeal of the Court of Appeal	[76]
Our approach	[77]
Costs	[81]
Disposition	[82]

Introduction

1 The appellant, Todd Aaron Marteley, pleaded guilty to a charge of murder and was later sentenced to life imprisonment with a minimum period of imprisonment of 14 years. 1 He wished to appeal against his conviction and sentence. There followed a dispute with the Legal Services Agency (under the Legal Services Act 2000) and later the Legal Services Commissioner (under the Legal Services Act 2011) over legal aid for the purposes of his appeal. The Commissioner was prepared to fund an appeal against sentence but not conviction; this for perceived lack of merit.

2 The Commissioner's decision was upheld on review by the Legal Aid Tribunal. The Tribunal's decision, however, was successfully challenged in the High Court on appeal. In allowing the appeal, Collins J saw the merits or otherwise of the proposed appeal as of no moment where, as here, the grounds of appeal, if made out, would be capable of resulting in the appeal being allowed. 2 He also concluded that the Commissioner ought to have addressed the fiscal consequences of refusing legal aid which, on his appreciation, would probably involve the appointment of counsel by the Court of Appeal — an exercise likely to exceed the costs of granting legal aid. 3

3 The Commissioner appealed to the Court of Appeal. This was pursuant to leave granted by Collins J. 4 In giving leave, Collins J identified questions of law addressed to the correctness of his views as to (a) the irrelevance of a merits assessment and (b) the relevance of the fiscal consequences of refusing legal aid.

The Court of Appeal concluded that in both respects the Judge had been in error. 5

4 The Commissioner did not seek a stay of the judgment of Collins J pending the determination of the appeal to the Court of Appeal and continued to fund work associated with the conviction appeal. And in the course of the hearing in the Court of Appeal, counsel for the Commissioner advised the Court that legal aid would continue for the conviction appeal even if the Commissioner's appeal against the High Court judgment was successful. 6 For this reason the Court of Appeal did not

formally address the merits of the Tribunal's decision. The general drift of the judgment, however, was that the Tribunal's decision was wrong. 7 Despite this, the Court's order was that the appeal should be allowed. No order for costs was made. The position as to costs in the High Court was not specifically addressed.

5 The further appeal to this Court is addressed to the relevance of merits to the decision to grant or refuse legal aid and costs. 8

The merits issue: to what extent is a consideration of the merits of a criminal appeal material to the decision to grant legal aid?

Overview

6 The case falls to be determined by reference to s 8 of the Legal Services Act 2011. The text of that section is set out later in these reasons. At this point it is sufficient to note that legal aid in respect of an appeal may only be granted if it appears to the Commissioner that “the interests of justice require” such a grant. 9 In addressing what is required in the interests of justice, the Commissioner must have regard to, inter alia, “the grounds of the appeal”. 10

7 The phrase “interests of justice” has appeared in all New Zealand statutes providing for criminal legal aid 11 and, in relation to legal aid for appeals, has been linked to the “the grounds of the appeal” ever since the Offenders Legal Aid Act 1954 introduced an integrated criminal legal aid system covering representation at all stages (including appeals) of the criminal process. 12 These phrases, and particularly the latter, were subject to extensive analysis by the Court of Appeal in Nicholls v The Registrar of the Court of Appeal 13 in 1998; this in the context of the Legal Services Act 1991. That Court concluded that: 14

• (a) the phrase “the grounds of appeal” encompassed an assessment of the merits of the grounds relied on (the “first Nicholls proposition”);

• (b) legal aid could be refused solely on grounds of lack of merit (the “second Nicholls proposition”); and

• (c) save in exceptional circumstances legal aid for an appeal ought not to be granted in the absence of an appearance of some merit (the “third Nicholls proposition”). 15

8 A good deal of legal water has passed under the bridge since Nicholls was decided. Nicholls was criticised by the Privy Council in R v Taito. 16 And more significantly, the legislative scheme has changed significantly. Collins J, in the High Court, considered that the Nicholls approach required modification. 17 As it turns out, we are also of that view, albeit not for quite the same reasons, nor in the same respects.

9 Against this reasonably complex background, an historical approach to the evolution of the legislative provisions is fundamental to a proper understanding of the current statutory scheme.

Pre-Nicholls evolution of the statutory scheme

10 Section 2(1) and (2) of the Offenders Legal Aid Act 1954 provided:

2 Power of Court to grant legal aid to person charged with or convicted of offence

• (1) Any Court having jurisdiction in criminal proceedings may, in respect of any stage of any criminal proceedings and in accordance with this Act, direct that legal aid be granted to any person charged with or convicted of any offence, if in its opinion it is desirable in the interests of justice to do so.

• (2) In considering whether to direct the grant of legal aid, the Court shall have regard to–

  • (a) The means of the person charged or convicted:

  • (b) The gravity of the offence:

  • (c) In respect of any appeal, the grounds of the appeal:

  • (d) Any other circumstances that in the opinion of the Court are relevant.

11 Up until 1989, the decision whether or not to grant legal aid was made by a judge. 18 In the case of an appellant who could not afford legal representation, the only considerations which the judge was required to take into account were “[t]he gravity of the offence” and “the grounds of the appeal”. Judges could thus be expected to approach an application for legal aid on appeal by considering whether it was desirable in the interests of justice to grant legal aid having regard to the gravity of the offence and the grounds of appeal.

12 With effect from 1 December 1989 registrars, as well as judges, were empowered also to determine legal aid applications. 19 Shortly afterwards, the 1954 Act was repealed and replaced by the Legal Services Act 1991 which came to be considered in Nicholls.

13 Section 7 of the 1991 Act relevantly provided:

7 Registrar may grant criminal legal aid–

• (1) Where any Court receives an application for criminal legal aid, a Registrar of that Court may, after assessing the application in accordance with the prescribed procedure, direct that criminal legal aid be granted to the applicant if, –

  • (a) Subject to section 15(1) of this Act, in that Registrar's opinion it is desirable in the interests of justice that the applicant be granted criminal legal aid; and

  • (b) It appears to that Registrar that the applicant does...