G v POLICE [2023] NZHC 2294

G v POLICE [2023] NZHC 2294 [23 August 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 2294UNDER 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 POLICERespondentOn the papersCounsel: K H Cook for AppellantS C Baker and Z Zhang for RespondentJudgment: 23 August 2023JUDGMENT OF THOMAS J(LEGISLATION GOVERNING THE REFERRAL)[1] The Criminal Cases Review Commission (the CCRC) has referred theappellant's 2001 District Court convictions and sentences to the High Court. Thecharges to which the referral relates were laid and dealt with under the SummaryProceedings Act 1957 (SPA). By my judgment of 12 June 2023, I determined that thereferral was correctly made to the High Court.1 This decision addresses the questionof whether the referral should be considered under the Criminal Procedure Act 2011(CPA) or the SPA.[2] The appellant contends that the CPA governs the referral, whereas therespondent submits that it should be heard and determined in accordance with the SPA.[3] The CCRC did not wish to be heard in respect of process on the basis it is nowfunctus officio.The legislationCriminal Cases Review Commission Act 2019 (CCRC Act)[4] The CCRC Act provides that the appeal court to which a referral has been mademust hear and determine it as if it were a "first appeal". Section 20 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.[5] Mr Cook, for the appellant, submits that the use of the words "first appeal"means that Parliament must have intended any referral to be dealt with under thecurrent appeal procedure under the CPA. However, the CPA itself contains a specificprovision addressing the conduct of proceedings commenced and not finallydetermined before the CPA came into force, as is the case with the appellant'sproceedings.Criminal Procedure Act[6] The CPA provides, in s 397, that proceedings commenced before thecommencement date of the CPA (1 July 2013) must continue in accordance with thelaw as it was before the commencement date. Section 397 provides:1 G v Police [2023] NZHC 1457 [Jurisdiction decision].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.Analysis[7] Mr Cook relies on the fact that the words "first appeal" appear in the CPA butnot in s 397. This must mean, in his submission, that a referral must be dealt with asif it were a first appeal under the CPA.[8] I am satisfied that the reference to a "first appeal" is simply a reference to afirst appeal in time.[9] While s 20 of the CCRC Act provides that a referral must be heard anddetermined as if it were a first appeal, the CCRC Act does not define "first appeal".Section 18 of the CCRC Act also refers to "first appeal" in the context of the appealcourt to which a conviction may be referred. Section 18 was considered in some detailin my decision addressing the correct appeal court for the referral.2 The relationshipof s 18 of the CCRC Act and s 397 of the CPA was considered and I concluded thats 18 imports into the CCRC Act only the provisions specifically mentioned in s 18 forthe purpose of establishing a clear and easy way to determine to which court a caseshould be referred. It was not concerned with whether the proceeding was commencedunder the CPA or pre-dating legislation, or that the CPA provides a right of appeal.[10] In his submissions, Mr Baker helpfully discusses the legislative history of s 20of the CCRC Act. An analysis of the CCRC Bill as introduced, the Ministry of JusticeDepartmental Report for the Justice Committee3 and the final Report4 shows that theword "first" was added to s 20 to make it clear that referrals from the CCRC were tobe such that a convicted person would have all further appeal rights that might beavailable and would not be "limited" by any earlier appeal the convicted person mighthave made.[11] I agree with Mr Baker that, had Parliament intended all referrals by the CCRCto be heard and determined under the CPA, then the CCRC Act would have said thatin clear terms.[12] Furthermore, I note that the term "first appeal" has been referred to by appealcourts prior to the CPA to denote a first appeal in time.52 G v Police [Jurisdiction decision], above n 1.3 Ministry of Justice Departmental Report for the Justice Committee: Criminal Cases ReviewCommission Bill (8 August 2019) at 26-27.4 Criminal Cases Review Commission Bill (106-2) (select committee report) at 3.5 See: R v Elwin [2002] 1 NZLR 702 at [20]; R v Howse [2003] 3 NZLR 767 at [13]; R v Taito[2005] 2 NZLR 815 at [84]; R v Smail [2008] 2 NZLR 448 at [55]; and Ross v R [2013] NZCA25 at [8].[13] The appellant's proceedings commenced prior to the date on which the CPAcame into force, and they have not been finally determined. "Proceedings" includesany re-hearings, re-trials and appeals arising from the determination of the originalcharge.6 Section 397 of the CPA therefore applies to the referral, meaning it must beconsidered in accordance with the law before the CPA commenced. This is consistentwith the approach taken in a number of cases by appellate courts.[14] Mr Baker is correct in pointing out that, if the CPA were to apply to thesubstantive hearing of any referral of a proceeding commenced before 1 July 2013,then it would mean the referral would be heard and determined in accordance withdifferent legislation from that applying to any appeal that had already been determinedand, if the convicted person had not already exhausted their appeal rights, any futureappeal. As he says, if the appellant were to seek an extension of time to pursue aconviction appeal, this would be heard and determined by the High Court under theSPA, as would the substantive appeal. I am satisfied that Parliament cannot haveintended that any CCRC referral be heard and determined under different legislationfrom that applying to any appeal in respect of the same charges.[15] I apprehend that Mr Cook's concern focuses on whether there might be adifference between the tests governing a first appeal under the SPA as compared to theCPA. I consider any such concern is misplaced, given that, in respect of bothconviction and sentence appeals, the Court of Appeal has found that the CPA has notmade any material change to the approach previously taken to either conviction orsentence appeals.7Result[16] The CCRC's referral of the appellant's convictions and sentences shall beheard and determined in accordance with the SPA.6 Criminal Procedure Act 2011, s 397(1)(b).7 Simon France (ed) Adams on Criminal Law (online ed, Thompson Reuters) at [CPA250.01]. Seealso Haunui v R [2020] NZSC 153 at [44]-[68], adopting the approach in Wiley v R [2016] NZCA28, [2016] 3 NZLR 1.[17] Counsel are to confer and provide a joint memorandum to the Court withinone week after the date of this judgment setting out the time estimate for thesubstantive hearing of the referral and any other directions sought. Orders for settingdown the substantive hearing and timetabling will then be made on the papers.Thomas JSolicitors:Criminal Cases Review Commission, Hamilton for AppellantCrown Law, Wellington for Respondent