CLASEN V LEGAL SERVICES AGENCY HC AK CIV-2010-404-1853

CLASEN V LEGAL SERVICES AGENCY HC AK CIV-2010-404-1853 30 July 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2010-404-1853UNDER The Legal Services Act 2000 BETWEEN HARTWIG CLASEN Appellant AND LEGAL SERVICES AGENCY Respondent Hearing: 21 July 2010 Appearances: Appellant in Person G D S Taylor for the Respondent Judgment: 30 July 2010RESERVED JUDGMENT OF ELLIS JThis judgment was delivered by me on 30 July 2010 at 4.30 pm, pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Solicitors: Bartlett Partners, PO Box 10852, Wellington 6143 Counsel: G D S Taylor, PO Box 8045, Wellington 6143[1] Mr Clasen is facing charges of disorderly behaviour and resisting arrest arising out of his presence at the "March for Democracy" on 21 November 2009. As I understand it, Mr Clasen attempted to address the crowd but had an altercation with security officers present at the march. He was then arrested by the police. Mr Clasen is very unhappy about the manner of his arrest and alleges that he was assaulted by the police both at the march and later at the police station. [2] The resisting arrest charge is punishable by a penalty of up to three months imprisonment. [3] Mr Clasen appeals a refusal by the Legal Aid Review Panel (LARP) to review a refusal by the Legal Services Agency (LSA) to grant him legal aid to assist him in the defence of these charges. [4] The Court's jurisdiction in cases such as this is limited by the terms of s 59 of the Legal Services Act which state that appeals to the High Court from a LARP decision may only be brought on a question of law.The LSA Applications[5] The grant of aid in circumstances such as Mr Clasen's is governed by s 8 of the Legal Services Act, which relevantly provides:8 When legal aid may be granted: criminal matters(1) The Agency 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 Agency 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 Agency that the interests of justice require that the applicant be granted legal aid. (2) When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency must have regard to— (a) whether the applicant has any previous conviction; and (b) whether the applicant is charged with or convicted of an offence punishable by imprisonment; and (c) whether there is a real likelihood that the applicant, if convicted, will be sentenced to imprisonment; and (d) whether the proceedings involve a substantial question of law; and (e) whether there are complex factual, legal, or evidential matters that require the determination of a court; and (f) whether the applicant is able to understand the proceedings or present his or her own case, whether orally or in writing; ... (3) When considering whether or not the interests of justice require that the applicant be granted legal aid, the Agency may have regard to any other circumstances that, in the opinion of the Agency, are relevant.[6] The standard form on which Mr Clasen's original application for aid was made recorded that Mr Clasen had previous convictions. There was a tick placed beside the statement that "There are complex factual, legal, or evidential matters that require the determination of a court". The specific reason why aid should be granted was said to be:Defendant feels poss[ibly] some Police targeting as he sought to speak put at Democracy Rally 21/11. Claims Police are over-zealous.[7] This application was declined by the Legal Services Agency (LSA) on 25 November 2009. The letter of refusal stated:We have looked at your finances and the maximum prison term. We decided to refuse legal aid because:• The maximum term for your charge(s) is less than 6 months, and• The interests of justice do not require that you be granted legal aid. We made this decision after considering the matters in s 8(2) and (3) of the Legal Services Act 2000.[8] Mr Clasen then applied to the LSA for a reconsideration of that decision on 2 December 2009. In the application he clarified his contention about the alleged assault by Police and said in particular that they had used more than reasonable force in effecting his arrest. He also provided photos and a medical certificate recording the injuries he had received on 21 November, together with evidence of his (absence of) financial means. [9] The application for reconsideration was also declined. The reasons given by the LSA were thatThe applicant has been charged with disorderly behaviour and resisting arrest. Both these charges carry a penalty of less than 3 months imprisonment. ... It is the alleged assaults by the police that the applicant seeks the need for legal counsel [sic]. The Legal Services Agency does not fund legal aid in respect of complaints against the NZ Police; this matter should be referred to the Police Complaints authority [sic].LARP Decision[10] On 18 December 2009 Mr Clasen applied to the Legal Aid Review Panel (LARP) for a review of the LSA decisions. He raised for the first time issues about his mental health (alcoholism, depression and emotional instability) which he said made it difficult for him to represent himself competently before a Court. He provided LARP with various documents that confirmed that he had suffered from and received treatment for these issues. [11] Also raised for the first time was the point that a conviction on either of the charges would adversely affect any prospect of future employment and more particularly would adversely affect his present position under the Criminal Records (Clean Slate) Act 2004, whereby Mr Clasen's historic convictions have effectively been deemed not to exist.[12] The application for review also further amplified Mr Clasen's position in relation to the allegation of assault by the Police. He said that the LSA was wrong in characterising his application for aid as one made in order to assist him in making a complaint against the police. Rather he said that he was seeking the opportunity to raise the way in which he was treated by the police in the context of his defence to the charges that he now faces. He reiterated his view that the issues raised by his case were complex. [13] Mr Clasen also stated on the application form:I request the right to be allowed to make a new well advised an informed application for Legal Aid, because the initial application as well as my request for reconsideration were lodged and prepared without myself having been sufficiently advised about my while rights and possible steps to take the points to raise.[14] Mr Clasen set out in some detail his attempts to obtain legal assistance in relation to making the LSA applications. He submitted that it was his previous inability to get the advice and assistance he needed to make the application that rendered the LSA refusal manifestly unreasonable. [15] LARP confirmed the LSA decisions on 26 February 2010. In doing so the Panel recorded that: a) The LSA had made a minor error in referring to the maximum penalty for the charges faced by Mr Clasen, but this was not material (the application for aid fell to be determined by reference to the "interests of justice" in terms of s 8(1)(c) regardless of the error); b) Although the LSA did not expressly deal with the issue of whether Mr Clasen was likely to go to prison if convicted, LARP considered to be most unlikely that he would face a term of imprisonment even if found guilty on those charges; c) The focus of Mr Clasen's concern regarding the alleged assault related (in the Panels' view) more to his treatment by the policefollowing his formal arrest than to his defence of the charges themselves; d) Mr Clasen had had issues with depression and alcoholism in the past and that the LSA did not appear to have given much weight to that. However, the Panel did not consider that there was, on the basis of Mr Clasen's submissions to them, anything to suggest that he suffered from a disability which would make it impossible for him adequately to communicate his defence to a Court; e) Mr Clasen's argument as to the potential effect of a conviction on his present position under the Criminal Records (Clean Slate) Act, if correct, might be a ground on which it could be said the Agency had misjudged the possible seriousness of the effect of any conviction on him. However, the Panel formed the view (which is now accepted to be incorrect) that a conviction would have no such effect; and f) The relatively minor nature of the charges and the absence of any real risk of a term of imprisonment resulting meant that it could not be said that it was manifestly unreasonable for the Agency to make the decision it did or that the decision was wrong in law.Grounds of Appeal[16] Mr Clasen filed a detailed notice of appeal from the LARP decision. In his submissions on behalf of the LSA, Mr Taylor very fairly attempted to summarise what appeared to be the central concerns raised in it, namely Mr Clasen's contentions that: a) LARP erred in holding that if Mr Clasen were convicted his entitlement to a deemed clear record under the Criminal Records (Clean Slate) Act 2004 would not be affected;b) The Panel erred in stating that Mr Clasen's disability was in the past and would not adversely affect his ability to defend the charges for which aid was sought. In fact his disability was current and would adversely affect his defence which would be prejudiced if he were not legally represented; and c) The Panel had published its decision on its website and this would adversely affect Mr Clasen's defence because he could (notwithstanding that he is not referred to by name) readily be identified by the police who would take objection to Mr Clasen's allegations of police mistreatment in a way that might affect his trial adversely. [17] Having heard from Mr Clasen I would add to that list the further ground that the Panel, like the Agency, mischaracterised his position in relation to the relevance of the alleged assault on him by Police. His submission before me was that the process of arrest was an on-going one which continued from the time of his apprehension at the march itself through to being held in the police cells. He said that what occurred throughout this period was therefore directly relevant to the resisting arrest charge.DiscussionPublication of LARP Decision on Website[18] At the outset I record my view that I am unable, and do not propose, to deal with the ground of appeal based on LARP's publication of its decision on its website. Even if I were to accept that this (anonymised) publication might adversely affect Mr Clasen's defence in some way (which I doubt) it is not a question of law arising from the substance of the LARP decision itself. This Court therefore has no jurisdiction in that respect.Clean Slate And Mental Health Issues: Jurisdiction[19] It appears from the LARP decision that the Panel considered that both the effect of a potential conviction on Mr Clasen's "clean slate" and his mental health issues (if severe and ongoing) could be matters relevant to any decision about whether aid should be granted. LARP was able, however, to discount the former issue because it (mistakenly) thought that Mr Clasen's clean slate would not, as a matter of law, be affected by a conviction on the charges faced by him. The terms of the LARP decision also suggest that the Panel may have discounted the "mental health" issues on the basis that it believed that Mr Clasen did not presently suffer from those issues, a conclusion that Mr Clasen says is factually (and therefore legally) wrong. [20] Putting to one side for the moment issues of the substance and materiality of both these errors the question then arises as to what LARP should have done had it been appraised of the correct legal/factual position in each respect. [21] Mr Taylor said that it was not open to LARP to do anything at all because there was a fundamental jurisdictional problem in that neither the "clean slate" nor the "mental health" issues had been raised by Mr Clasen in either of his applications to the LSA. More specifically, Mr Taylor said that where a matter relevant to the grant of aid is not raised with the LSA in the first instance, that matter cannot then be the subject of a review decision by LARP. That position, he said, pertains even in the present case where LARP had in fact assumed jurisdiction and dealt with the issues. It followed that such matters would also not be matters that could form the basis of an appeal from the LARP decision to this Court. [22] Mr Taylor referred me in this respect to the decision of Legal Aid Review Authority v Singh, 1 where Fisher J said:The difficulty for the first of the three grounds advanced by the appellant is that the argument that prior notice under s56 is not given was not run before the Authority and does not therefore figure in its decision. That being the case, it is not open to the appellant to run such fresh argument in this Court.1 Legal Aid Review Authority v Singh [1997] NZAR 414.[23] I must accept that as a matter of logic, it was not open to LARP to find that the LSA decisions were wrong in law or manifestly unreasonable on the basis that the Agency omitted to refer to a matter or matters that had not in fact been referred to in the applications or the subject of submissions to it. It was accordingly not open to the Panel to modify or reverse the LSA decisions under s 57 on these grounds. I also accept that it follows, equally, that this Court has no jurisdiction in relation to those matters. [24] Notwithstanding LARP's absence of jurisdiction, it might be thought that in a case where new but relevant issues are raised on a review application to LARP the appropriate course would be to refer the matter back to the LSA for reconsideration under s 58 of the Act. However Mr Taylor again said that authority was against this. He referred in particular to Legal Services Agency and Rossiter2 which, he said, held that in order to direct the LSA to reconsider its decision LARP must first form a view on whether the Agency decision was manifestly unreasonable or wrong in law. For the jurisdictional reasons already discussed, he said it was not open to LARP to form such a view on the basis of material that was not before the Agency in the first instance. [25] The relevant paragraphs of the Court of Appeal's decision in Rossiter are [6] and [9] which state:[6] LARP's jurisdiction arises under s 54 of the Act. It gives a LARP the power to review decisions which are: (a) manifestly unreasonable, or (b) wrong in law. Once that threshold standard is reached, s 57(2) provides that the "Review Panel may determine a review by confirming, modifying, or reversing the decision under review." Section 58 provides that LARPs may, "instead of determining a review, give a direction to the Agency that it must reconsider all or any part of the decision to which the review relates." ... [9] This does not provide a LARP with unfettered discretion to exercise what is primarily the Agency's discretion. A LARP may only review decisions that are manifestly unreasonable or wrong in law. It is only once2 Legal Services Agency and Rossiter (2005) 17 PRNZ 815 (CA).that threshold is met that a LARP may confirm the decision, modify the decision, reverse the decision, or direct the Agency to remake the decision.[26] The statement in [9] in particular does suggest that LARP may only direct the LSA to reconsider once it has reached the threshold of determining that the decision under review was manifestly unreasonable or wrong in law. While it might be argued that the operation of s 58 was not directly in issue in the Rossiter case (as is made clear by the questions upon which leave was sought by the Agency set out in [2] of the judgment) the view expressed in [9] accords with a plain reading of the relevant statutory provisions. More particularly, a distinction is drawn in them between "determining" that a decision is manifestly unreasonable/wrong in law and the "determination" of the application for review (by confirming, modifying or reversing the LSA decision). That distinction (and that the former determination must precede the latter) is particularly evident in s 57(2), quoted by the Court of Appeal in [6] of the Rossiter decision, above. [27] What all this means is that even though (for example) it is accepted that LARP's interpretation of the operation of the "Clean Slate" Act was wrong in law, it is not open to me to hold that the Panel was also wrong in law not to refer the matter back to the LSA under s 58 accordingly. Rather, the position is that the Panel would have been unable lawfully to do so. In addition, there is authority (with which I respectfully agree) to the effect that a failure or refusal by LARP to direct the LSA to reconsider under s 58 cannot be the subject of an appeal to this Court under s 59: Gibson v Legal Services Agency. 3[28] On the basis of the foregoing analysis it appears that the only option available to Mr Clasen in relation to the clean slate and mental health issues was (and is) to make a further application for reconsideration to the LSA based on the new (previously undisclosed) matters. The passage from Mr Clasen's application for review quoted at paragraph [13] above indicates that this in effect appears to be what he was seeking, but not appreciating perhaps that no "permission" was required.3 Gibson v Legal Services Agency (2006) 18 PRNZ 284[29] In light of these conclusions it is strictly speaking unnecessary for me to consider the merits of either the "clean slate" argument or of Mr Clasen's state of mental health in the context of his application for aid. I simply record that neither of them would in my view constitute a "king hit" for Mr Clasen, for reasons that were discussed with him at the hearing. That said, however, if they were to be viewed in combination, and in the particular circumstances of Mr Clasen's case, they might be capable of carrying some weight were the matter to be reconsidered by the LSA. But for the reasons already given, the appeal cannot succeed on these grounds.Alleged Assault by Police[30] Lastly, and as regards Mr Clasen's allegation that he was mistreated by Police (essentially that more force than was reasonable was used by them in the course of his arrest) I consider that (regardless of the factual merits of the allegation, about which I make no comment) there is a genuine legal issue raised in this respect. Arguably it is also one that engages either s 8(2)(d) or (e). The nature of this issue was, perhaps, encapsulated by Barker J in Tocker v Police 4 as follows:What effect, if any, does the use of force by the officer have in this proceeding? S.39 of the Crimes Act 1961 provides that an arresting officer may use such force as may be necessary to overcome any force used in resisting arrest unless the arrest can be made by reasonable means in a less violent manner. S.23(5) of the New Zealand Bill of the Rights Act 1990 provides - "Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person." If an allegation of breach of the Bill of Rights is raised, the onus is on the Crown to establish on the balance of probabilities that such breach did not occur.[31] Like Mr Clasen, Mr Tocker had sought to raise this issue in the context of his defence of a resisting arrest charge. Although Mr Tocker's defence was ultimately unsuccessful, breaches of section 23(5) of the BORA have on other occasions been held to exist in the context of arrests by Police: Archbold v AG 5 and4 Tocker v Police AP7/93 HC Masterton, 21 December 1993.5 Archbold v AG [2003] NZAR 563 (HC).Ministry of Transport v Entwisle.6 And while the matter arose in Archbold in the context of separate civil proceedings (it being a claim for exemplary damages and public law compensation) it arose in Entwisle (as in Tocker) in the context of a criminal proceeding. [32] In my view therefore there are grounds for concluding that both the LSA and LARP have misapprehended the nature of the defence Mr Clasen seeks to run in the District Court. While I accept that the nature of that defence was not expressed with any clarity in his original application for aid, it was expressed more clearly in both his application for reconsideration and in his application for review and submissions to the Panel. It seems relevant that those applications were not prepared by a lawyer and that Mr Clasen expressly referred to the difficulties he faced in formulating his defence in this regard without legal assistance. [33] In Grazier v Legal Services Review Authority 7 Heron J held that the Legal Aid Review Authority's misconstrual of the nature of the proceedings facing the applicant for aid amounted to an error of law was grounds for remitting the matter back to the Authority for reconsideration. On a similar basis I find that, in failing to conclude that the LSA had erred in law when it misstated or misunderstood the relevance of the alleged assault to Mr Clasen's defence, LARP also made an error of law.Result[34] On the basis of the foregoing and in terms of the disposal of the appeal I note that I have the powers conferred on me under r 20.19 of the High Court Rules. In the present case I intend to exercise those powers by remitting the matter back to LARP so that it can reconsider Mr Clasen's application for review in light of my conclusion that there has been a misapprehension both on its part and on the part of the LSA as to the nature of Mr Clasen's defence.6 Ministry of Transport v Entwisle [1990-92] 1 NZBORR 374 (DC7 Grazier v Legal Services Review Authority HC Wellington AP259/99, 18 February 2000.[35] Because of the jurisdictional issues that exist in relation to the ability of LARP to consider the question of Mr Clasen's "clean slate" and his mental health issues it does not appear to be open to me to direct that LARP also take into account those matters in its reconsideration. As I have indicated above it seems to me that those matters could only be taken into account in the context of a further application for reconsideration made to the LSA. Whether that is a matter that Mr Clasen wishes to pursue will no doubt depend upon the outcome of the reconsideration by the Panel that I have ordered. [36] The appeal is allowed accordingly. There is necessarily no issue as to costs. ______________________________ Rebecca Ellis J