CANT V THE MANAGER OF MT EDEN PRISON CA CA24/2010

CANT V THE MANAGER OF MT EDEN PRISON CA CA24/2010 2 February 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA24/2010 [2010] NZCA 1BETWEEN LARRY GORDON CANT Applicant AND THE MANAGER OF MT EDEN PRISON Respondent Hearing: 2 February 2010 Court: Hammond, Arnold and Randerson JJ Counsel: Applicant in person and M Lyttelton as McKenzie Friend B J Keith for Respondent Judgment: 2 February 2010 Reasons: 8 February 2010JUDGMENT OF THE COURT The appeal is dismissed.REASONS OF THE COURT(Given by Hammond J)Introduction[1] On 15 January 2010, Lang J dismissed an application by Mr Cant for a writ of Habeas Corpus: AK CIV-2010-404-000101. Mr Cant appealed to this Court against that determination. On 2 February 2010 the Court dismissed the appeal:[2010] NZCA 1. We said we would give reasons for this dismissal as soon as we could conveniently do so. These are those reasons.Background[2] On 19 February 2009, following a trial by jury in the District Court, Mr Cant was convicted on a charge of assault with intent to commit sexual violation. [3] On 31 July 2009, Judge Gittos, the trial Judge, declined jurisdiction to sentence Mr Cant. The Crown had indicated that it wished to urge that a sentence of preventive detention should be imposed on him. The Judge committed Mr Cant to the High Court for sentence. [4] Despite a number of call overs and conferences it took some time to advance the sentencing. Mr Cant was remanded in custody to appear for sentence on 28 January 2010. The sentencing went ahead on that day but could not be completed and was adjourned part-heard to 3 February 2010. [5] On 8 January 2010 Mr Cant had applied for a writ of Habeas Corpus on the footing that he maintained his detention was unlawful and that the High Court should therefore order his immediate release. It was that application which Lang J dismissed, and which is the subject of the appeal we have before us.Representation[6] Although he had been represented by counsel prior to trial, Mr Cant did not have legal representation during his trial. He was assisted by a court appointed amicus, Mr Cordwell, and by a McKenzie Friend, Mr Lyttelton. The circumstances are set out in Judge Gittos' Ruling No 3 of 2 February 2009. [7] We are troubled by the applicant's assumption that he could, as of right, engage a McKenzie Friend (here, a fellow prisoner), in this Court and Mr Lyttelton has (without prior leave) filed extensive submissions. We entirely reserve our position as to the correctness of those assumptions. We have allowed the matter toproceed as it has developed only because of the procedure adopted in the District Court and the High Court, and the legal vacation has delayed this appeal. It was appropriate to dispose of it at once, without adding a further layer of procedural complexities.The unlawfulness relied upon[8] Mr Cant says that his continued detention is unlawful in that the High Court had no power to sentence him to a term of imprisonment because of the provisions of s 30 of the Sentencing Act 2002 which provide:30 No sentence of imprisonment to be imposed without opportunity for legal representation(1) No court may impose a sentence of imprisonment on an offender who has not been legally represented at the stage of the proceedings at which the offender was at risk of conviction, except as provided in subsection (2). (2) Subsection (1) does not apply if the court is satisfied that the offender— (a) was informed of his or her rights relating to legal representation, including, where appropriate, the right to apply for legal aid under the Legal Services Act 2000; and (b) fully understood those rights; and (c) had the opportunity to exercise those rights; and (d) refused or failed to exercise those rights, or engaged counsel but subsequently dismissed him or her. (3) If, on any appeal against sentence, a court finds that a sentence was imposed in contravention of subsection (1), the court must either— (a) quash the sentence imposed and impose in substitution for it any other lawful sentence that the court thinks ought to have been imposed; or (b) quash the conviction and direct a new hearing or trial, or make any other order that justice requires. (4) For the purposes of this section, an offender refuses or fails to exercise his or her rights relating to legal representation if the offender—(a) refuses or fails to apply for legal aid under the Legal Services Act 2000 or applies for it unsuccessfully; and (b) refuses or fails to engage counsel by other means.[9] In Mr Cant's view it followed that an order made by Hugh Williams J on 18 December 2009 remanding him in custody for sentence was unlawful: he should therefore have been released immediately on bail. [10] An argument of this kind necessarily turns on what happened at trial since s 30(2) of the Sentencing Act 2002 specifically provides that s 30(1) does not apply if the conditions of subs 2 are satisfied. Those conditions are that Mr Cant must have fully understood his rights relating to legal representation (including the ability to apply for legal aid); had the opportunity to exercise those rights; and had refused or failed to exercise those rights or engaged counsel but subsequently dismissed him or her. In the simplest terms, subs 2 preserves the historic right of an accused to defend himself or herself, but only on the basis set out in the legislation where a sentence of imprisonment is in prospect. [11] One of the difficulties with the application which was made in this case, and which still obtains to some extent for this Court, is to adequately appreciate all the ins and outs of what was clearly a difficult and procedurally convoluted trial in the District Court. Mr Cant had several counsel, at various points of time. He discharged his current counsel just before trial. It has to be said that Mr Cant seems to have contributed somewhat to this event by making threats to assault that counsel. [12] In any event, the trial started on 2 February 2009 with a four day estimate. It in fact ran to nearly two weeks. It is apparent from the Case on Appeal (see Mr Cordwell's letter of 2 March 2009) that this was largely due to the way Mr Cant chose to run his defence. He cross-examined at great length. The Court had appointed Mr Cordwell as an amicus curiae. Mr Cordwell says there was excessive questioning by Mr Cant which was often quite irrelevant, and unnecessary applications during the trial. As amicus, Mr Cordwell cross-examined the complainant. [13] Notwithstanding Mr Cordwell's advice as to the potentially adverse consequences of such a decision, Mr Cant chose not to give evidence. Mr Cant also chose to waive his right to a closing address. Because he took that course, Mr Cordwell very responsibly requested that the trial Judge state Mr Cant's defencemore fully in his summing up than would normally have been the case. He prepared a detailed memorandum (which is before us) of Mr Cant's ascertainable defence and provided that to the Judge on the morning of his summing up (19 February 2009). The Judge in fact used this in his summing up in an endeavour to see that Mr Cant's case was fully put to the jury. [14] The jury had some difficulties with the case. In all it deliberated for over eight hours. After five hours the jury posed a set of questions to the District Court Judge. These required a number of careful answers by the Judge, one of which related to an indication from the jury that it was finding it difficult to reach a unanimous verdict. Nevertheless, something like three hours after these judicial observations and directions, the jury did return a unanimous verdict of guilty. [15] Once the jury had been discharged it seems that Mr Cant made a submission to the trial Judge that he would have a lawyer appointed by the Legal Services Agency for sentencing, and that he would be appealing his conviction. It appears from Mr Cordwell's helpful letter that the Judge also made other observations to Mr Cant about his rights. [16] As we apprehend it, to date Mr Cant has not lodged an appeal against his conviction, or made an application for an extension of time to do so. He advised us orally at the hearing before this Court that he intends to pursue an appeal through new counsel.The Habeas Corpus application in the High Court[17] In his written submissions to the High Court Mr Cant stated that he does not question his conviction, for the purposes of the Habeas Corpus application. He challenged only the ability of the Court to impose a sentence of imprisonment. Hence this is essentially a jurisdictional argument. [18] In those circumstances, Lang J took the view that the fact of Mr Cant's unchallenged conviction is decisive in the present instance. As the Judge put it, "Once the conviction was entered the Court was entitled, and indeed becameobliged, to sentence him". Further, in the Judge's view, the s 30(2) issue was not amenable to Habeas Corpus proceedings in that it involved a dispute of fact of a kind which more appropriately fell to be determined in appeal proceedings. The Judge held – following authority in this Court – that the summary procedure under the Habeas Corpus Act could not be used as a parallel means of criminal appeal. 1The arguments in this Court[19] The arguments run by Mr Cant, and on his behalf by his McKenzie Friend Mr Lyttelton, in this Court are the same arguments as were put to Lang J. [20] Mr Keith contended that as to Mr Cant's detention, at the time the matter was before Lang J Mr Cant was being detained pursuant to an order of the High Court made under s 13 of the Bail Act 2000. That order as such is not subject to challenge by way of Habeas Corpus.2[21] Secondly, Mr Keith supported the Judge's reasoning that it was, and might still be, open to Mr Cant to raise what for simplicity we will call the representation issue by way of appeal in the criminal proceeding. Essentially, that would involve a traverse of the course events took at trial and as to the fairness of the trial.3 We say "might still be able to" because Mr Cant is now formally out of time for an appeal on the merits of his conviction. He would have to obtain the leave of this Court. We have not heard argument on that point and say no more about it. [22] Thirdly, Mr Keith correctly contended that if a sentence of imprisonment is imposed contrary to s 30 that would not in any case make the detention unlawful. The sentence – although unlawful – would be effective until quashed under s 30(3), and there would be the usual collateral questions arising as to whether there should be a retrial and the question of bail pending such a retrial.1 T v Regional Intellectual Care Agency [2007] NZCA 208, [2007] NZAR 643.2 Section 14(2)(b) of the Habeas Corpus Act 2001.3 See Condon v R [2006] NZSC 62, [2007] 1 NZLR 300.Discussion[23] This application for Habeas Corpus was misconceived. [24] Firstly, as the Judge rightly said, Mr Cant had not at the time of the habeas application (and still has not at this time) challenged his conviction or the circumstances as to how that conviction came about. It followed that, again as the Judge said, the sentencing process laid down by the legislation was, by statute, required to be followed. Further, the ultimate issue is the fairness of the trial. Mr Cant relied upon Condon v R (supra [21]) as if s 30(1) was unqualified by s 30(2). See, in particular, Condon at [80]. [25] Secondly, although the High Court Judge did not rely upon it, in our view Mr Keith's jurisdictional point (see [20] above) is well taken and fatal to the present application. [26] Thirdly, an application put forward on the basis that Mr Cant did not have counsel in the circumstances of this case cannot be appropriately resolved on an application such as the present. If it was to be pursued it would have to be investigated on an appeal, and that avenue may still be open to Mr Cant.Solicitors: Crown Law Office, Wellington