G v POLICE [2023] NZHC 1457

G v POLICE [2023] NZHC 1457 [12 June 2023]NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYINGPARTICULARS OF THE APPELLANT AND OF THEIR CLAIM OR STATUSMUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT2009. SEEhttp://www.legislation.govt.nz/act/public/2009/0051/latest/DLM1440836.htmlIN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2022-485-76[2023] NZHC 1457UNDER The Criminal Cases Review CommissionAct 2019IN THE MATTER Of a referral to the High Court by theCriminal Cases Review Commission of theconvictions and sentences of the appellantBETWEEN GAppellantAND NEW ZEALAND POLICERespondentHearing: 15 May 2023Counsel: K H Cook for AppellantS C Baker and Z Zhang for RespondentJudgment: 12 June 2023JUDGMENT OF THOMAS J(JURISDICTION)[1] The Criminal Cases Review Commission (the CCRC) has made its first referralpursuant to the Criminal Cases Review Commission Act 2019 (the CCRC Act) to theHigh Court in respect of the appellant's 2001 convictions and sentences in theDistrict Court. The sole purpose of this decision is to address whether the referral wascorrectly made to the High Court or whether it should have been made to the Court ofAppeal.Background[2] The CCRC has referred the appellant's nine convictions and sentences totalling11 months' imprisonment to the High Court pursuant to s 17 of the CCRC Act.[3] The charges were one charge of male assaults female,1 one of assault,2 one ofintentional damage,3 one of resisting a constable acting in the execution of their duty,4one of assaulting a constable in the execution of their duty,5 two charges of failing toanswer bail,6 one of driving with excess breath alcohol,7 and one of unlawfully gettinginto a motor vehicle.8[4] All charges were laid summarily pursuant to the Summary Proceedings Act1957 (the SPA), which then applied.[5] The appellant pleaded guilty to all charges apart from that of unlawfully gettinginto a motor vehicle, in respect of which he was found guilty following a defendedhearing on 11 December 2001.[6] The appellant was sentenced to nine months' imprisonment on the charge ofmale assaults female and one month imprisonment to be served concurrently on thecharges of assault, assault of a police officer and driving with excess breath alcohol.He was sentenced to two months' imprisonment on the charge of unlawfully gettinginto a motor vehicle, to be served cumulatively, and convicted and discharged on theother charges.1 Crimes Act 1961, s 194(b).2 Summary Offences Act 1981, s 9.3 Section 11(1)(a).4 Section 23(1)(a).5 Section 10.6 Bail Act 2000, s 37.7 Land Transport Act 1998, s 56(1).8 Crimes Act, s 226(2).[7] The appellant appealed against his sentence on the basis it was manifestlyexcessive. The appeal was dismissed in February 2002.9[8] Pursuant to s 17 of the CCRC Act, the CCRC considers it in the interests ofjustice to refer the appellant's convictions and sentences to the High Court. Itacknowledged that the appellant has not exercised his right of appeal againstconviction as he does not deny the offending.10 In its statement of reasons for referral,the CCRC states that the appeal court to which the appellant's convictions andsentence may be referred is the High Court.11[9] However, the respondent has identified an issue with the interpretation of theCCRC Act. That is, whether it is correct that s 18 of the CCRC Act means that theappeal court to which the appellant's convictions and sentence may be referred is theHigh Court. The alternative is that the referral must be to the Court of Appeal. Boththe appellant and respondent accept that Parliament likely intended the referral to bemade to the High Court.The legislative provisions[10] The issue depends upon the correct interpretation of s 18 of the CCRC Act andhow its reference to the Criminal Procedure Act 2011 (the CPA) should be approached.I begin by setting out the relevant provisions of the CCRC Act and CPA.[11] The purpose of the CCRC Act is:3 Purpose of this ActThe purpose of this Act is to establish an independent body to investigate andreview criminal convictions and sentences and decide whether to refer themunder the Act to an appeal court.[12] Section 18 of the CCRC Act provides:18 Appeal court to which conviction or sentence may be referred9 [G] v Police HC Napier AP 1-202, 5 February 2002.10 Mr Cook noted that the appellant appeals his convictions on the basis that, had the proceedingstaken place in the Youth Court, then there were a number of disposal options available whichwould not have resulted in a conviction.11 Statement of Reasons for Referral at [3].(1) The appeal court to which a conviction may be referred is—(a) the High Court, if the eligible person's right of first appealagainst a conviction under subpart 3 of Part 6 of the CriminalProcedure Act 2011 is to the District Court or the High Court;or(b) otherwise, the Court of Appeal.(2) The appeal court to which a sentence may be referred is—(a) the High Court, if the eligible person's right of first appealagainst a sentence under subpart 4 of Part 6 of the CriminalProcedure Act 2011 is to the District Court or the High Court;or(b) otherwise, the Court of Appeal.[13] Section 20 of the CCRC Act is also relevant and provides:20 Hearing and determination of appealThe appeal court to which the Commission refers a conviction or sentencemust hear and determine the matter as if it were a first appeal against theconviction or sentence.[14] Sections 229 and 230 (subpt 3 of pt 6 of the CPA) apply to appeals againstconviction and provide:229 Right of appeal against conviction(1) A person convicted of an offence may appeal under this subpart to thefirst appeal court against the conviction.(2) An appeal against a finding that the convicted person is guilty of acontempt of court must be brought under subpart 5.230 First appeal courts(1) The first appeal court for an appeal under this subpart is—(a) the District Court presided over by a District Court Judge, ifthe appeal is against a conviction entered by the District Courtpresided over by 1 or more Community Magistrates or 1 ormore Justices of the Peace; or(b) the High Court, if the appeal is against a conviction enteredby the District Court presided over by a District Court Judge,other than a conviction for—(i) a category 3 offence after the convicted personelected a jury trial; or(ii) a category 4 offence; or(c) either the Court of Appeal or the Supreme Court, in any othercase.(2) For the purposes of subsection (1), if a convicted person elected a jurytrial but subsequently withdrew his or her election before trial, theconvicted person must be treated as if he or she had not elected a jurytrial.[15] Sections 244 and 247 (subpt 4 of pt 6 of the CPA) apply to appeals againstsentence and provide:244 Convicted person's right of appeal against sentence(1) A person convicted of an offence may appeal under this subpart to thefirst appeal court against the sentence imposed for that offence, unlessthe sentence is one fixed by law.(2) An appeal by a person against a sentence imposed on finding theperson guilty of a contempt of court must be brought under subpart 5.247 First appeal courts(1) The first appeal court for an appeal under this subpart is—(a) the District Court presided over by a District Court Judge, ifthe appeal is against a sentence imposed by the District Courtpresided over by 1 or more Community Magistrates or 1 ormore Justices of the Peace; or(b) the High Court, if the appeal is against a sentence imposedby the District Court presided over by a District Court Judgeand if—(i) the sentence was for a category 1 or 2 offence; or(ii) the sentence was for a category 3 offence and theconvicted person did not elect a jury trial; or(c) the High Court, if the appeal is against a sentence imposedby the District Court presided over by a District Court Judgefor a category 3 offence and if—(i) the convicted person elected a jury trial; and(ii) the convicted person pleaded guilty to the offencebefore the trial; and(iii) the sentence appealed against is not a sentence ofimprisonment exceeding 5 years; or(d) either the Court of Appeal or the Supreme Court, in any othercase.(2) For the purposes of subsection (1), if a convicted person elected a jurytrial but subsequently withdrew his or her election before trial, theconvicted person must be treated as if he or she had not elected a jurytrial.[16] The issue arises because of the provisions of s 397 of the CPA, which appearsin pt 8 of the CPA, and provides:397 Proceedings commenced before commencement date(1) This section applies to proceedings—(a) commenced before the commencement date; and(b) not finally determined (including any rehearing, retrial, orappeal) before the commencement date.(2) Subject to sections 399 and 400, and to the other provisions of thissubpart, the proceeding must continue in accordance with the law asit was before the commencement date.(3) For the purposes of subsection (1), a proceeding has commenced if—(a) an information has been laid in accordance with the SummaryProceedings Act 1957 in respect of an offence:(b) a complaint has been made in accordance with the SummaryProceedings Act 1957:(c) particulars of a charge have been set out in a charge sheetunder section 12(2) of the Summary Proceedings Act 1957:(d) a person has been served with a summons issued undersection 19A of the Summary Proceedings Act 1957 but noinformation had yet been laid in respect of the offence:(e) a person has been served with a summons under section 19Bof the Summary Proceedings Act 1957 but no information hadyet been laid in respect of the offence:(f) a notice of prosecution has been filed under section 20A(2) ofthe Summary Proceedings Act 1957 in respect of a minoroffence:(g) a notice of hearing has been filed under section 21(8) of theSummary Proceedings Act 1957:(h) an indictment has been filed under section 345(3) of theCrimes Act 1961 in respect of the offence.[17] The charges against the appellant were commenced by the laying ofinformations under the SPA 1957 in 2001, prior to the commencement date of the CPAon 1 July 2003. The appellant's appeal against sentence was dismissed in February2002 but he has not appealed his convictions.[18] The issue then is whether, if s 397 of the CPA applies in interpreting s 18 of theCCRC Act, the correct appeal court for the appellant's referral is the Court of Appeal.The argument is that the appellant would not have a right of first appeal against hisconviction or sentence according to s 18(1)(a) or (2)(a) because, pursuant to s 397(1),his proceedings commenced and were not finally determined before thecommencement of the CPA. Therefore, the appeal court to which the appellant'sconviction and sentence may be referred by the CCRC is "otherwise, the Court ofAppeal".12 In other words, because s 397 means that proceedings under the SPA whichhave not been finally determined as at the date the CPA came into effect continue tobe determined under the SPA and not the CPA, then the appellant does not have a rightof first appeal under the CPA and the referral must be to the Court of Appeal.[19] One point on which counsel agreed was that s 18 is (somewhat) ambiguous.The fact four potential interpretations have been identified confirms this is so. Thosefour potential interpretations are:(a) s 18 stands alone and does not require consideration of s 397;(b) s 397 requires consideration but does not apply;(c) s 397 requires consideration but does not apply because the referral isa separate and discrete proceeding from any proceeding brought againstor by the appellant; or(d) s 397 does apply, with the result that the referral must be to the Courtof Appeal.12 CCRC Act, s 18(1)(b) and (2)(b).[20] The arguments for and against the four possible interpretations will now beaddressed.Section 18 stands alone and does not require consideration of s 397[21] The argument is that s 18 of the CCRC Act refers specifically to pt 6 of theCPA but not the CPA in general. Section 18 imports into the CCRC Act only theprovisions specifically mentioned in s 18 for the purpose of establishing a clear andeasy way to determine to which court a case should be referred under the CCRC Act.Section 18 is not concerned with whether the proceeding was commenced under theCPA or predating legislation, or that the CPA provides a right of appeal. Section 18 issimply telling the CCRC that, when it makes a referral, it should look at subpt 3 or 4of pt 6 of the CPA and that will tell it to which court the referral is made.[22] There is simply no need to go beyond s 18 other than to refer to the specificallylisted subparts of the CPA. Section 397 is in subpt 4 of pt 8 of the CPA and is notreferred to in the CCRC Act. Imposing a requirement to refer to s 397 strains theinterpretation of s 18, leading to a result which Parliament cannot possibly haveintended. This approach is supported by the fact the CCRC Act unambiguouslyapplies to historical convictions and sentences.13 Schedule 1, cl 2 of the CCRC Actstates that the CCRC Act applies to convictions and sentences commenced before andafter the commencement date of the CCRC Act. There is therefore no need to refer totransitional provisions of another Act.[23] Parliament's intention was for the CPA to determine the referral courtirrespective of whether the eligible person in fact had a right of appeal under the CPA.Parliament was clearly alive to the fact that a large number of referrals would involvehistorical matters which had not been dealt with under the CPA and simply used theCPA to determine the appeal court for the purpose of the referral process. Unless s 18is interpreted this way, it means any referral in respect of proceedings not commencedunder the CPA must be to the Court of Appeal. Had that been intended, it canreasonably be expected that the legislation would have so provided.13 Criminal Cases Review Commission Act 2019 [CCRC Act], sch 1, cl 2.[24] The counter argument relies on the strict wording (and perhaps emphasis) ofs 18. Section 18(1)(a) and (2)(a) discuss the eligible person's right of first appealunder the CPA. Section 397 of that Act is therefore relevant and, when applied, meansthat the appellant does not have a right of appeal against conviction or sentence underthe CPA.[25] Had Parliament intended the CPA to apply for the purpose of a referral processonly, s 18 would have read:(1) The appeal court to which a conviction may be referred is—(a) the High Court, if the eligible person's right of first appealagainst a conviction under subpart 3 of Part 6 of the CriminalProcedure Act 2011 is, or would be if the CriminalProcedure Act 2011 had applied to the proceeding, to theDistrict Court or the High Court; or(b) otherwise, the Court of Appeal.(2) The appeal court to which a sentence may be referred is—(a) the High Court, if the eligible person's right of first appealagainst a sentence under subpart 4 of Part 6 of the CriminalProcedure Act 2011 is, or would be if the CriminalProcedure Act 2011 had applied to the proceeding, to theDistrict Court or the High Court; or(b) otherwise, the Court of Appeal.Section 397 requires consideration but does not apply[26] This was the stance taken by Mr Cook, for the appellant. In Mr Cook'ssubmission, s 397 does not apply because the appellant's proceedings have beenfinally determined. For ease of reference, s 397(1) provides:(1) This section applies to proceedings—(a) commenced before the commencement date; and(b) not finally determined (including any rehearing, retrial, orappeal) before the commencement date.[27] In Mr Cook's submission, while the proceedings commenced before thecommencement date of the CPA, they were finally determined before that date andtherefore s 397 does not apply. He said that the proceedings have been finallydetermined on the basis that finality has been achieved "as far as it goes". That is, theappellant unsuccessfully appealed his sentence and, while he did not appeal hisconviction, the time within which his appeal must be filed has elapsed. Therefore, hehas effectively exhausted his appeal rights.[28] The counter to that argument is that the proceedings have not been finallydetermined because the appellant could apply for leave to appeal his conviction out oftime (something that is not an infrequent occurrence). However, it is Mr Cook'ssubmission that the case of C v Police was wrongly decided.14 That case concerned a1996 conviction in respect of which the appellant was granted an extension of time toappeal her sentence some 25 years later, in 2021. The High Court described theapplicable law—given the conviction was entered before the enactment of the CPA—as the SPA and applied it as if that Act were still in force. On Mr Cook's analysis, thatwas the wrong approach because the proceedings had finally been determined unders 397(1)(b) as he contends it should be interpreted.Section 397 requires consideration but does not apply because the referral is aseparate and discrete proceeding from any proceeding brought against or by theappellant[29] The CCRC, being aware that the respondent had raised this jurisdictional issue,filed a memorandum outlining the reasoning of the CCRC in making the referral tothe High Court.[30] The CCRC's approach is not dissimilar to that of Mr Cook in that it agreess 397 requires consideration but, for slightly different reasons, contends it does notapply. Its position is that the referral of convictions and sentences under s 17(1) of theCCRC Act is a separate and discrete proceeding from any proceeding that resulted inthe relevant convictions and/or sentences. On that basis, s 397(1)(a) of the CPA doesnot apply because the referral was not commenced before the commencement ofthe CPA.[31] It is the CCRC's submission that the discrete nature of a referral is illustratedby s 20 of the CCRC Act, which provides that the referral must be heard and14 C v Police [2022] NZHC 878.determined as if it were a first appeal. This supports the CCRC's contention that thereferral is a proceeding commenced by the CCRC and is not conceptually an appeal.It says also that this conclusion is reinforced by examining the appellant's proceedingswhich have been finally determined, all appeal rights having been exercised. Iinterpose at this point to note that this is not correct, as the CCRC itself acknowledgedin its referral. The appellant has not exhausted his appeal rights in respect of hisconviction and could apply for leave to appeal out of time.[32] The counter to the CCRC's approach is that s 397 of the CPA itself relevantlyprovides that a proceeding has commenced if an information has been laid inaccordance with the SPA in respect of an offence,15 as is the case here. That suggeststhat the use of the word "proceedings" is in the context of charges that have been laid.This is reinforced by the provisions of s 4 of the CPA, the overview section, whichuses the word "proceedings" in respect of charges beginning in the District Court bythe filing of a charging document, whether they be category 1, 2, 3 or 4 offences (asdefined under the CPA).[33] It is helpful at this point briefly to refer to the history of s 397. Clause 389 ofthe Criminal Procedure (Reform and Modernisation) Bill (which became s 397) wassummarised in the Departmental Report for the Justice and Electoral Committee dated16 May 2011. That included a recommended amendment to make it clear that the term"proceeding" included appeals, retrials and rehearings arising from determination ofthe original charge. While the recommendation was not carried through into the CPAin those exact terms, s 397(1)(b) effectively achieves the same result by providing thatthe section applies to proceedings commenced before the CPA commenced, but notfinally determined, including any rehearing, re-trial or appeal.[34] Furthermore, the CCRC relies on the wording of s 20 which provides that areferral must be heard and determined as if it were a first appeal. That argument couldequally be used in support of the proposition that s 397(1)(b) does apply and theproceedings have not been finally determined.15 Criminal Procedure Act 2011 [CPA], s 397(3)(a).Section 397 does apply, with the result that the referral must be to the Court ofAppeal[35] The argument is that s 397 of the CPA applies because the proceedings againstthe appellant were commenced in 2001 by the laying of informations under the SPA,well before the date of commencement of the CPA, and they were not finallydetermined before that date. It then follows that the appellant does not have a firstright of appeal under subpts 3 or 4 of pt 6 of the CPA as the previous law applies. Thisnotwithstanding that, under the SPA, the appellant's first right of appeal is to theHigh Court and as such his referral must be to the Court of Appeal under s 18(1)(b)and (2)(b).[36] The counter argument is that, had Parliament intended this outcome, s 18(1)would have read:If the eligible person has a right of appeal under the Criminal Procedure Actthen the appeal court to which a conviction may be referred is determinedunder the Criminal Procedure Act. Otherwise the referral is to the Court ofAppeal.What is the correct interpretation of s 18?[37] The parties agreed that, whether or not s 397 applies to the interpretation ofs 18, there is scope for a purposive approach given the important context of the CCRCand the logical and practical issues involved.[38] Whether or not the purpose of an Act is stated in the legislation, the meaningof legislation must be ascertained from its text and in light of its purpose and itscontext.16[39] As discussed by the learned authors of Burrows and Carter Statute Law inNew Zealand,17 there has been a general change in judicial approach towards statutoryinterpretation over time. The learned authors describe it loosely as "a change from theliteral to the purposive", saying:1816 Legislation Act 2019, s 10.17 R I Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington,2021).18 At 293.This certainly does not mean that the plain meaning of statutory provisions isno longer of importance; it means rather that there is no longer the excessiveand destructive adherence to the letter that marked some of the older decisions.And:19 the modern trend is towards a "purposive" interpretation where the wordsof the legislation are read in their fullest context, and with a view to givingeffect to the purpose of the legislation. Briefly put, there is overall a desirethat legislation should work as Parliament intended it to work.[40] So, in order to determine the correct interpretation of s 18 and what Parliamentintended, it is necessary to canvass the legislative history of the provision and theCCRC. This involves considering the parliamentary history of the CCRC Act.20The prerogative of mercy[41] The CCRC Act replaced s 406 of the Crimes Act 1961 which provided for theexercise of the prerogative of mercy. The legislative history of s 406 is also of someassistance in interpreting s 18 of the CCRC Act.[42] Prior to July 2013, s 406 provided:406 Prerogative of mercyNothing in this Act shall affect the prerogative of mercy, but the Governor-General in Council, on the consideration of any application for the exercise ofthe mercy of the Crown having reference to the conviction of any person byany court or to the sentence (other than a sentence fixed by law) passed on anyperson, may at any time if he thinks fit, whether or not that person has appealedor had the right to appeal against the conviction or sentence, either—(a) refer the question of the conviction or sentence to the Court of Appealor, where the person was convicted or sentenced by a District Courtacting in its summary jurisdiction or under section 28F(4) of theDistrict Courts Act 1947, to the High Court, and the question soreferred shall then be heard and determined by the court to which it isreferred as in the case of an appeal by that person against convictionor sentence or both, as the case may require; or19 At 286 (footnotes omitted).20 Something the courts routinely do. See: Burrows and Carter, above n 17, at 362. See alsoD (SC31/2019) v Police [2021] NZSC 2 at [190]–[199] and [214]–[223]; Fitzgerald v R [2021]NZSC 131, [2021] 1 NZLR 551 at [202]; Ortmon v United States of America [2020] NZSC 120at [74]–[90] and [240]–[257]; and Pinot Properties Ltd v Vero Insurance New Zealand Ltd [2019]NZHC 2244 at [39].(b) if he desires the assistance of the Court of Appeal on any point arisingin the case with a view to the determination of the application, referthat point to the Court of Appeal for its opinion thereon, and the courtshall consider the point so referred and furnish the Governor-Generalwith its opinion thereon accordingly.[43] Section 406(a) was amended on 1 July 201321 by omitting the words, "wherea person was convicted or sentenced by a District Court acting in its summaryjurisdiction or under s 28F(4) of the District Courts Act 1947", and substituting,"where the person's right of appeal against conviction under s 229 of the CriminalProcedure Act 2011 was to a District Court or the High Court". Section 406 thenallowed the Governor-General to:(a) refer the question of the conviction or sentence to the Court of Appealor, where the person's right of appeal against conviction undersection 229 of the Criminal Procedure Act 2011 was to a DistrictCourt or the High Court, to the High Court, and the question soreferred shall then be heard and determined by the court to which it isreferred as in the case of an appeal by that person against convictionor sentence or both, as the case may require; or(Emphasis added)[44] Both the previous s 406 of the Crimes Act and s 18 of the CCRC refer tos 229,22 the provision addressing a person's right of appeal against conviction. As withs 18, s 406 of the Crimes Act did not refer to s 397 of the CPA and there were notransitional provisions in the CPA relating to s 406.[45] The result is that the appeal pathways under the prerogative of mercyprovisions face the same interpretative difficulty as s 18. If s 397 of the CPA appliesto the most recent version of s 406(a), then the appeal pathway would have beengoverned by the version of s 406(a) that applied when the proceedings originallycommenced in accordance with s 397(2). However, if s 397 does not apply, then thesame potential jurisdictional issue arises. That is, the person would not have a rightof appeal against conviction under s 229 of the CPA, as the right of appeal would be21 Crimes Amendment Act (No 4) 2011, s 6.22 I note s 18 refers to subpt 3 of pt 6 that includes s 229 of the CPA.under the Crimes Act or SPA, with the default position of a referral to the Court ofAppeal.[46] Mr Baker, for the respondent, helpfully referred to a number of referrals to theCourt of Appeal under s 406(1)(a) post-1 July 2013.23 Judgments in three of thereferrals, Toia v R, Tamahere v R and Montaperto v R referred to the CPA but it doesnot appear that there was any substantive consideration of jurisdiction. It was not anissue in any of the cases, as the first appeal court was the Court of Appeal regardless.There do not appear to have been any cases which discuss the jurisdictional issue inthe context of s 406(1)(a) post-1 July 2013.Legislative history – the CCRC Act[47] The policy intent behind the CCRC Act was described in the DepartmentalReport for the Justice Committee as being to "enhance the independence, timeliness,quality, and fairness of investigations into miscarriages of justice".24 The primaryfunction of the CCRC is to investigate and review convictions and sentences anddecide whether to refer them to the appeal court under s 17.25[48] Clause 18 of the CCRC Bill has the same wording as s 18 of the CCRC Act.26The CCRC Bill's explanatory note provided:27Clause 18 specifies the relevant appeal court to which the Commission mustrefer a conviction or sentence on granting an application.Clause 19 requires the Commission to give the appeal court its reasons forreferring the conviction or sentence to the court.Clause 20 requires the appeal court to which a conviction or sentence isreferred to hear that matter as if it were an appeal against the conviction or thesentence.23 Toia v R [2020] NZCA 416 at [12]; Tamihere v R [2020] NZCA 554 at [3]; Montaperto v R [2021]NZCA 170, (2021) 29 CRNZ 819 at [20]; and Watson v R [2022] NZCA 204, [2022] 3 NZLR 1at [20].24 Departmental Report for the Justice Committee: Criminal Cases Review Commission Bill(Ministry of Justice, 8 August 2019) <www.parliament.nz>.25 CCRC Act, s 11.26 Criminal Cases Review Commission Bill (106-1).27 Criminal Cases Review Commission Bill (106-1) (explanatory note).[49] Of note is the Ministry of Justice's Departmental Report for the JusticeCommittee dated 8 August 2019.28 The following extracts are relevant:Clauses 18 – 20: Court to which referral is made, reasons for decision,and hearing and determination of the appeal169. Clauses 18 – 20 provide for procedural matters relating to a referral.Clause 18 provides that a referral for conviction or sentence is madeto the High Court where a person's first right of appeal was to theDistrict Court or High Court, or otherwise to the Court of Appeal.170. Clause 19 requires the Commission to give a statement of its reasonsfor referral. Clause 20 provides that the appeal courts must hear anddetermine the matter as if it were an appeal against the conviction orsentence.Comment175. We do not recommend any changes to clause 18.176. As we explain below, we agree with the suggested amendment toclause 20 to specify that the reference is heard as a first appeal. TheSupreme Court is a supervisory appeal court, there to overseedevelopment of law and correct fundamental errors in courts below.It is not a court of first appeal.177. The approach of the current process, and that proposed by the Bill isthat referral leads to the first fresh appeal. The appellant then has allfurther appeals that may be available, including to the Supreme Court.178. We disagree that clause 18 inhibits referral where an error may havebeen made by the Court of Appeal. Clause 18 indicates to which courta reference should be made in the first instance, based upon where theapplicant's first right of appeal was / would have been in respect ofthe conviction or sentence concerned.179. Further, we do not think that a power to make a referral directly to theSupreme Court is necessary or desirable, notwithstanding that itwould only be made in exceptional circumstances.180. The Supreme Court must also grant leave to hear an appeal, ratherthan the appeal being as of right. Were a reference to be made to theSupreme Court, but the leave declined, the reference would not haveachieved its purpose, of a fresh appeal. The Commission, havingmade the reference already, would also have no alternative proceduralcourse of action to follow. The alternative would be to fetter theSupreme Court's discretion concerning the grant of leave whichwould be a significant and, in our view, inappropriate step to take.28 Departmental Report for the Justice Committee: Criminal Cases Review Commission Bill, aboven 24, at 26–27.181. As indicated above, we agree with the submission by the NZCBA inrespect of clause 20, and recommend replacing the word "appeal"with "first appeal" in that clause.Recommendation 7:We recommend replacing the word "appeal" in clause 20 with "first appeal".[50] The Final Report of the Justice Committee on the Bill, presented on 3 October2019, includes the following commentary:29Appeal court's consideration of referred casesIf the Commission considered it in the interests of justice to do so, it wouldrefer a conviction or sentence to an appeal court as set out in clauses 17 to 20.Under clause 20, the court would have to hear and determine the matter as ifit were an appeal against the conviction or sentence.We think it would not be appropriate for appeals referred by the Commissionto be limited by an earlier appeal the convicted person might have made. Werecommend amending clause 20 to make it clear that courts should treat areferral from the Commission as a first appeal against the conviction orsentence.[51] The reprinted Bill as reported from the Justice Committee on 3 October 2019included an amended clause 20 (this is identical to s 20 of the CCRC Act):3020. Hearing and determination of appealThe appeal court to which the Commission refers a conviction or sentencemust hear and determine the matter as if it were a first appeal against theconviction or sentence[52] It is notable that, throughout the legislative history, it was plain at all stagesthat the intention was for a referral to be heard as if it were a first appeal againstconviction or sentence. Furthermore, that the purpose of s 18 is to "indicate[s] towhich court a reference should be made in the first instance, based upon where theapplicant's first right of appeal was/would have been in respect of the conviction orsentence concerned".3129 Criminal Cases Review Commission Bill (106-2) (Select Committee Report) at 3.30 Criminal Cases Review Commission Bill (106-2).31 Departmental Report for the Justice Committee: Criminal Cases Review Commission Bill, aboven 24, at [178].Conclusion[53] Mr Cook referred to the Supreme Court's comments in Cameron v R about theapproach to jurisdictional issues.32 In that case, the Supreme Court considered ajurisdictional question of whether the Court could hear the proposed appeals againstconviction. Of note, the majority said:[25] To date, the approach taken by the Court to jurisdictional questionsmore generally has been "reasonably expansive". The Court has howevermade the point that in the context of appeals brought under the Crimes Act1961, it was "careful to observe the jurisdictional limitations imposed byParliament". Acknowledging that need, the overall approach to jurisdictionneeds to be a coherent one. We do not, however, see any reason to take anarrow approach here. Indeed, the policy considerations do not favour that.[54] Mr Cook submitted that the context and constitutional significance of theCCRC point towards taking a "reasonably expansive" approach here.[55] I am not convinced that the identified difficulty with s 18 requires a"reasonably expansive approach". To my mind, the position is relativelystraightforward, particularly when the legislative history of the CCRC Act isconsidered as discussed above.[56] To return then to the four possible interpretations, dealing with them in reverseorder. The proposition that Parliament intended the referral to be to the Court ofAppeal when that is not the first appeal court in a case such as this one, under eitherthe CPA or the SPA, can be easily dismissed. Likewise, the proposition that the referralis somehow different from the proceedings. That does not sit comfortably with theuse of the term "proceedings" in the CPA. The proposition that s 397 does not applybecause the appellant's proceedings have in effect been finally determined, whilehaving some attraction, carries with it difficulties. As the appellant has not appealedhis convictions, it is a strained interpretation, to say the least, and I see no reason todepart from the approach of C v Police.33[57] The first proposed interpretation of s 18 is the correct one. That is, s 18 standsalone and does not require reference to s 397 of the CPA. The appellant's appeal32 Cameron v R [2021] NZSC 110.33 C v Police, above n 14.against sentence was to the High Court and any application for leave to appeal theconviction out of time would also be to the High Court under the SPA. Moreover, hadthe charges been laid under the CPA, the appellant's appeals against conviction and/orsentence would be to the High Court. Irrespective of the Act governing the charges,the appellant's appeals against conviction or sentence would be to the High Court. Tointerpret s 18 such that the appellant's referral is to the High Court would create anatural symmetry with these appeal rights under the SPA and CPA. Indeed, it wouldbe illogical and contrary to the purpose of s 18 to conclude otherwise and requirereferrals to be made to the Court of Appeal.[58] To take another interpretation would mean that s 18 requires a referral to theCourt of Appeal except if, and only if, the eligible person has a right of appeal underthe CPA to the High Court or District Court. This would be the case regardless ofwhether the eligible person's right of appeal under the SPA was also to the High Courtor District Court. It is inconceivable that Parliament intended that result. Indeed, thelegislative and parliamentary history discussed above show that Parliament clearlyintended a referral to be treated as a first appeal. If the first appeal court under theSPA or CPA is the High Court, then a referral – which is to be treated as a first appeal– must likewise be to the High Court. That s 406 of the Crimes Act was amended ina similar fashion to the wording of s 18 and no issue regarding jurisdiction has beenraised in the authorities considering historic convictions and sentences also supportsthis position.Result[59] The CCRC was correct to refer the appellant's convictions and sentences to theHigh Court which has jurisdiction to deal with them.[60] Whether the referral is considered under the CPA or SPA in the substantiveproceeding is a different question which requires separate consideration. Mr Cook hasalready given some thought to this question. I appreciate he would like the opportunityto reflect on those submissions in light of this decision and potentially refine orelaborate on his submissions. Mr Baker has not yet addressed this issue and needstime to do so. In circumstances where Mr Cook has already played his hand, it isappropriate that Mr Baker files submissions within ten working days of the date of thisdecision, with those from Mr Cook to follow five working days thereafter.[61] A copy of this decision is to be sent to the CCRC, with a request it considerswhether it wishes to be heard in respect of the process the referral should follow.Thomas JSolicitors:Criminal Cases Review Commission, Hamilton for AppellantCrown Law, Wellington for Respondent