GRAHAM v R [2020] NZCA 236

GRAHAM v R [2020] NZCA 236 [15 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA211/2020[2020] NZCA 236BETWEEN CHEYENNE GRAHAMAppellantAND THE QUEENRespondentCourt: French, Gilbert and Collins JJCounsel: G H Vear and H J Croucher for AppellantK S Grau and Z Andrew for RespondentJudgment:(On the papers)15 June 2020 at 2 pmJUDGMENT OF THE COURTThe appellant's application, to transfer to this Court his appeal against73 convictions currently before the High Court, is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] On 24 April 2020, the appellant, Mr Graham, filed a notice of appeal againstthree convictions for aggravated robbery. He was sentenced to 12 months'imprisonment on the first of these charges in the District Court at Otahuhu on30 October 1997. He was later sentenced to six months' imprisonment on the othertwo charges in the District Court at Manukau on 8 December 2000. Mr Grahamappeals to this Court against these convictions on the sole ground that he was not fitto stand trial due to his intellectual disability.[2] Mr Graham has also appealed to the High Court on the same basis against73 other convictions. His appeal to the High Court was filed on 7 June 2019 and isset to be heard on 10 August 2020.[3] By memorandum dated 24 April 2020, Mr Graham applied for the High Courtappeal to be "moved into this Court" so that both appeals could be dealt with together.The suggestion is that three judges of this Court would sit as judges of the High Courtand exercise the powers of the High Court in respect of the 73 convictions that arethe subject of the appeal to that Court. The present appeal against the other threecharges would be dealt with at the same time by the same three judges formingthe panel for the appeal to this Court.[4] The Crown opposes the application.[5] The parties request that the application be dealt with on the papers.[6] Mr Graham relies on the decisions of this Court in R v Cruden and Harvey v Ras support for the course he proposes.1 However, these cases are distinguishable fromthe situation before us.[7] In Cruden, this Court was faced with an appeal against sentence on two chargesof attempted burglary, the second of which was committed while Mr Cruden was onbail awaiting retrial on the first. Because Mr Cruden pleaded guilty summarily onthe second charge, it was accepted that this Court lacked jurisdiction to deal withthe appeal against sentence on that charge only. Accordingly, this Court issued itsjudgment on the appeal relating to the first charge, which was within the Court'sjurisdiction because the guilty plea was entered on indictment. The same three judgesthen issued a separate judgment, as a judgment of the High Court, allowing the appealon the second charge with the same effect as the other judgment.2[8] Harvey is closer to the present situation, but nevertheless distinguishable.Mr Harvey appealed to this Court in 2015 against his convictions for rape, indecent1 R v Cruden [2001] 2 NZLR 338 (CA); Harvey v R [2015] NZCA 420.2 R v Cruden, above n 1, at [25].assault and unlawful sexual connection. He had pleaded guilty to these charges in2012 but alleged on appeal that he was unfit to plead. Mr Harvey also filed a noticeof appeal against his conviction for assault on a child, to which he had pleaded guiltyin 2006. This appeal was based on the same ground of unfitness to plead. Wild Jdirected that this notice of appeal should be accepted for filing by this Court, eventhough the appeal lay to the High Court, so that it could be dealt with at the same time.There was no opposition to this course. Counsel agreed that the Judges dealing withthe matter should constitute themselves Judges of the High Court for the purpose ofdealing with the 2006 conviction.3 Unlike the present case, no appeal was filed inthe High Court and the matter was able to be dealt with pragmatically, by consent, andon the papers. All convictions were quashed by consent and the matter was remittedto the District Court.[9] The High Court is the first appeal court for the appeal that has been quiteproperly lodged in that court in respect of 73 of Mr Graham's convictions. There isno provision in the Criminal Procedure Act 2011 for that appeal to be transferred(or "moved") to this Court. This is not a situation like Cruden where the Court hasheard an appeal only to find later that it lacks jurisdiction in respect of an aspect ofthe appeal. In that situation, the only sensible course was to sit as judges ofthe High Court to determine that aspect of the appeal within its jurisdiction. We notethat the problem confronted in Cruden has now been addressed by the enactment ofs 321 of the Criminal Procedure Act. If the same situation arose today, both appealswould be heard and determined in this Court because of this "drag-along" provisionfor related appeals.[10] There is no jurisdiction for this Court to transfer the High Court appeal tothis Court. The statutory appeal pathways cannot be subverted in the mannerproposed. The application must accordingly be dismissed. In any case, we considerthe interests of justice are best served by the High Court appeal proceeding onthe scheduled date of 10 August 2020. This will enable that appeal to be dealt with atthe earliest opportunity and preserve the normal statutory appeal rights.If Mr Graham's appeal succeeds in the High Court and the Crown does not seek to3 Harvey v R, above n 1, at [10].challenge the decision, the appeal to this Court may be able to be dealt withexpeditiously, possibly by consent. Alternatively, if the High Court dismissesthe appeal, Mr Graham may seek leave to appeal to this Court. If such leave is granted,both appeals would no doubt be heard together.Result[11] The appellant's application, to transfer to this Court his appeal against73 convictions currently before the High Court, is declined.Solicitors:Public Defence Service, Auckland for AppellantCrown Law Office, Wellington for Respondent