REEKIE V LEGAL SERVICES AGENCY HC AK CIV-2008-404-6451

REEKIE V LEGAL SERVICES AGENCY HC AK CIV-2008-404-6451 6 March 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2008-404-6451UNDER The Legal Services Act 2000 IN THE MATTER OF a decision by the Legal Aid Review Panel BETWEEN NICHOLAS PAUL ALFRED REEKIE Appellant AND LEGAL SERVICES AGENCY Respondent Hearing: 26 February 2009 Appearances: Appellant in person R Taylor for Defendant Judgment: 6 March 2009 at 11:30 amJUDGMENT OF ASHER JThis judgment was delivered by me on 6 March 2009 at 11:30 am pursuant to Rule 11.5 of the High Court Rules .. Registrar/Deputy Registrar .. DateSolicitors: N Reekie, C/- PO Box 50-124, Albany, Auckland P Ryder-Lewis, Bartlett Partners, PO Box 10852, Wellington Copy: R Taylor, BarristerIntroduction[1] Nicholas Paul Alfred Reekie appeals a decision of the Legal Aid Review Panel ("the Panel") of 5 September 2008, confirming a decision of the Legal Services Agency ("the Agency"). That decision declined a continuation of legal aid for Mr Reekie in his proceedings against the Attorney-General. Those proceedings allege that he was assaulted and that his rights under the New Zealand Bill of Rights Act 1990 ("NZBORA") were breached, when a blood sample was taken from him in prison on 15 May 2001.Background[2] On 9 March 2000 Mr Reekie was convicted on charges of aggravated assault and burglary. He was sentenced to three years' imprisonment. While in custody, on 15 May 2001 blood samples were taken from him under the authority of the Criminal Investigations (Bodily Samples) Act 1995. Blood samples that were taken from Mr Reekie were used in a subsequent criminal trial, and on 30 May 2003 after a jury trial Mr Reekie was found guilty of 31 crimes including indecent assault, abduction, sexual violation by unlawful sexual connection, and sexual violation by rape. The crimes were committed against four female complainants aged between 11 and 69. Mr Reekie was ultimately sentenced, after an adjustment on appeal, to preventive detention with a minimum term of imprisonment of 20 years. [3] Mr Reekie appeals the Panel's decision to confirm the Agency's decision to withdraw legal aid on 3 June 2008. The proceeding in respect of which Mr Reekie sought legal aid was a claim for damages by Mr Reekie against the Department of Corrections and a Doctor Gentry. Mr Reekie claimed that the force used against him when the blood sample was taken was unauthorised, excessive and unreasonable, and that he was not treated with humanity and with respect for his dignity. [4] The hearing of Mr Reekie's claim took place in September and October 2008. Mr Reekie represented himself with a McKenzie Friend. In a judgment delivered on 22 December 2008 his claims were dismissed. This appeal is therefore, on its face,quite moot. I was informed from the bar that any grant of legal aid does not extend to an appeal; there must be a new application. Mr Reekie will, as a matter of practice, have to apply again to the Legal Services Agency if he seeks aid in relation to any appeal. [5] Mr Reekie was undeterred by this fact. Clearly he sees an advantage in pursuing this appeal. He was frank in noting that he was seeking to obtain a decision in the assault proceedings which would enable him to challenge the 2003 convictions and sentence. He did not explain, however, how getting legal aid granted by this appeal for a completed and determined hearing, would help him.The grounds of appeal[6] Mr Reekie filed a lengthy submission, which he drafted himself. He relied on the principles set out in the Legal Services Act 2000 and the NZBORA. It is difficult to elicit the exact points that he wishes to make from the lengthy document that he has filed. I accept the breakdown helpfully provided by Ms Taylor for the respondent as to the points he is making. They can be summarised as follows, with some extra points that I will add: a) The Panel erred in its application of the test stated in Timmins v LARP[2004] 1 NZLR 708, in particular in relation to proceedings that have non-pecuniary benefits. b) That the Agency, and the Panel in confirming its decision, pre-judged the merits of the proceedings. c) That the decision by the Agency, confirmed by the Panel, that aid should be withdrawn because the costs would be high and compensation was unlikely, was incorrect. d) The Panel erred in its consideration of prospects of success, in particular by taking into account an irrelevant matter.e) The Panel erred by not properly applying the principles of the NZBORA to its decision making.Approach to the appeal[7] An aided person can apply to the Panel to review a decision of the Agency under s 54(1) of the Legal Services Act 2000. The grounds are limited. The application can be made only on the basis that the decision is manifestly unreasonable or wrong in law. [8] The Panel is established under s 62 of the Act. Its members are appointed by the Attorney-General. Its convenor must be a lawyer who has held a practising certificate for at least seven years. Under s 56(5) of the Act the review must be conducted on the papers and with all reasonable speed. The Panel may confirm, modify or reverse the decision under review and must give a brief summary of its reasons for its decision: ss 57(2) and (3). [9] Under s 59 of the Act either the Agency or the applicant, if it is considered that the Panel's determination is wrong in law, may appeal to the High Court. The appeal can only be on a question of law, and the appeal must be dealt with in accordance with the High Court Rules.The decision of the Panel[10] The Panel reviewed the Agency's decision of 3 June 2008, delivering its decision on 5 September 2008, 12 days before the hearing of Mr Reekie's claim. The decision traced the history of Mr Reekie's legal aid. [11] It was noted that the application commenced on 10 April 2006 with a short- term interim grant. On 2 May 2007, following a preliminary view from counsel for the applicant, the Agency amended the legal aid to extend to a payment of $2,034.50. This grant was made on an interim basis pending further consideration, and it was stated that no further amendments would be granted unless the Agency was satisfied as to prospects of success and economics.[12] The Panel recorded that the applicant's lawyer had stated on 7 September 2007:I have had to operate against a background of sifting through a considerable amount of material [the applicant] has high expectations. [The applicant] and I have a divergence of views about damages [The applicant] has high expectations that a civil proceeding will demonstrate the authorities acted unreasonably towards him and that that will be of some relevance in respect of a criminal appeal.[13] The proceedings alleging assault and damages were issued in May 2007. The Agency paid invoices totalling $4,257.87 to Mr Reekie's lawyer. On 10 October 2007 a specialist adviser advised the Agency that he did not consider there was any prospect of monetary relief for Mr Reekie in the proceedings and saw no other benefit in going to trial that would justify the expense. That advice was accepted by the Agency and on 28 November 2007 the Agency gave notice that it withdrew the legal aid. It gave the applicant 15 days in which to make submissions as to the withdrawal of legal aid. Further time was then given and Mr Reekie and his lawyer made submissions. [14] Further reference to the specialist adviser by the Agency resulted in a confirmation that a "reasonable self-funding person" would not pursue the assault claim. The Agency accepted that advice and on 8 May 2008 wrote to the applicant confirming its intention to withdraw legal aid. There were then further submissions by the applicant and legal aid was finally withdrawn by letter of 3 June 2008, where it was stated that the applicant's submissions had not justified the continuation of the grant of legal aid. [15] The Panel recorded the submissions of the parties and referred to the law to be applied. It discussed the history of Mr Reekie's application and the fact that the applicant's lawyer's advice was that any damages would be "low". It concluded, at [38], that while it was understandable that Mr Reekie would pursue the claims if he could, his assertions that a reasonable claimant would do so with their own funds were not convincing. It weighed the likely benefits against the likely costs, and considered non-pecuniary benefits. It noted that these must be more than simple points of principle and found that the Agency had not looked at the prospects of success in a narrow sense if it considered whether it would be reasonable to continuelegal aid given that little or no compensation would be likely in the circumstances. It concluded at [39]:Matters of principle, and the possibility that the Court may find that the applicant had been assaulted and/or unlawfully detained, which may (or may not) assist him in seeking an appeal of his criminal conviction, were not considered by the Agency to be of sufficient benefit for the purpose of Sections 9(4)(d)(i) and (ii) of the Act.DiscussionAlleged misapplication of test in Timmins v LARP [2004] 1 NZLR 708 [16] Mr Reekie submitted that the Panel erred in applying the test in Timmins v LARP which required weighing the likely benefits against the likely costs. He emphasised the non-monetary benefits that he sought to attain, in particular assistance on his path to set aside his convictions and sentence. In Timmins v LARPthe expression "prospects of success" referred to in s 9(4)(d)(i) was considered. It was stated by Wild J at [33]:"Prospects of success", in my view, refers to the prospects of achieving a successful outcome. Those prospects need to be assessed in a pragmatic way and, somewhat obviously, in the circumstances of the particular case. After all, no two cases are the same. The assessment invited by the words in s 9(4)(d)(i) "sufficient to justify the grant of legal aid", involves weighing the likely benefits against the likely costs. While the benefits in some cases will be measurable mainly, and perhaps even wholly, in dollar terms, in other situations that will not be so. Examples might include obtaining an injunction restraining the destruction of an area of native bush, or the closing of a road or access track or some other facility, or a judgment upholding the reputation of a person or a product (even if unaccompanied by significant damages), or vindicating some important point of principle.[17] The Panel expressly referred to the decision of Timmins v LARP. There is no indication that it misunderstood that decision. Section 9(4)(d) provides:9 When legal aid may be granted: civil matters (4) The Agency may refuse to grant legal aid to an applicant in any of the following circumstances: (d) in the case of original proceedings,—(i) the applicant's prospects of success are not sufficient to justify the grant of legal aid; or (ii) the grant of legal aid is not justified, having regard to the nature of the proceedings and the applicant's interest in them (financial or otherwise), in relation to the likely cost of the proceedings; or (iii) for any other cause where it appears unreasonable or undesirable that the applicant should receive legal aid in the particular circumstances of the case: [18] Section 9(4)(d)(i) cannot be read as requiring a grant of legal aid just because there is a technical prospect of success. The phrase "prospects of success", as was indicated in Timmins v LARP, requires success to be interpreted as meaning not just a favourable judgment, but success in terms of likely benefits against likely costs. Section 9(4)(d)(ii) is important because it states that a balancing of the nature of the proceedings and the applicant's interest in them (financial or otherwise), against the likely cost of the proceedings is required. [19] The Agency, as the Panel noted, had before it an opinion from Mr Reekie's lawyer stating that the prospects of any significant financial return were poor. The Panel did turn its mind then to other elements of success such as some finding of assault or unlawful detention that might assist Mr Reekie in seeking an appeal of his criminal conviction. It did weigh the broader interest Mr Reekie had in the proceedings, but it rejected that ground. In my view it did so rightly. Further, although the Panel did not refer to this explicitly, the Agency must be cautious about funding proceedings where success in the immediate proceedings is not the goal, but rather the proceedings are being used for a collateral purpose of providing some assistance in relation to a different Court case. [20] This is particularly so here, where it is very difficult to see how even a successful outcome of these proceedings would be a direct step towards the overturning of the convictions against Mr Reekie. Mr Reekie had a chance to challenge the taking of the blood sample in the criminal proceedings that led to his convictions. Those proceedings are concluded. Any attempt that he has in mind to try some sort of collateral attack on the convictions through some helpful findings incivil proceedings seems most optimistic, and unlikely to help him in his ultimate goal of overturning the convictions. Therefore, in terms of his ultimate goal, whatever the merits of his assault claim, the prospect of success is slight. [21] The Panel considered the matters referred to in s 9(4), and made no error of law in its approach.Pre-judgment by the Panel[22] Under this heading Mr Reekie complains that the Agency and Panel did not take into account a number of matters in favour of his request for legal aid. He appears in his submissions to conflate the Agency's decision and the Panel's decision. It is quite impossible to see any pre-judgment in the Panel's decision. In a lengthy and careful decision it concluded that the Agency had been fair and had given Mr Reekie a full opportunity to make submissions. That conclusion appears to be entirely justified on the facts. On a number of occasions the Agency sought an opinion on the prospects of success from Mr Reekie's lawyer, and took his views into account.Incorrect assessment of costs and benefits[23] In Timmins v LARP, at [35], it was suggested that in assessing prospects of success a question that could be framed was "What, if any, legal action would the applicant (assuming they were a reasonable individual) take in the circumstances if paying their own legal costs?" Mr Reekie appears to consider that the appropriate balancing is between him having to spend many years in prison, and his successful pursuit of these civil proceedings. As indicated earlier, he seems to assume that if he could succeed in establishing assault, he then might be able to seek orders that the DNA evidence be excluded and he could then successfully challenge his own convictions for rape. [24] However, his conclusion does not accord with that of his own lawyer. His lawyer, in a balanced letter of 9 March 2007, observed that he did not think the situation surrounding the taking of the blood from Mr Reekie was a basis uponwhich the evidence could be regarded as inadmissible in the criminal proceedings. The Agency was entitled to act on this advice. As stated earlier, there is nothing to indicate that the Panel, in upholding its decision, made any error of law in endorsing the balancing process adopted by the Agency.Taking into account irrelevant matters[25] Mr Reekie suggested that the Agency had wrongly taken into account a statement by the specialist adviser that Mr Reekie was in Paremoremo Prison and had nothing to lose by pursuing the proceedings. However, that statement was not referred to by the Panel in its decision and does not appear to have been part of its reasoning process.Failure to properly apply the principles of the New Zealand Bill of Rights Act 1990[26] Mr Reekie made extensive submissions on the provisions of the NZBORA, focusing in particular on the public functions of the Agency under s 3, and the right to justice in s 27. However, the NZBORA does not confer an absolute right to legal aid. Aid can only be granted in terms of the Legal Services Act 2000 and the restrictions on eligibility that are contained therein cannot be ignored. As was observed by the Court of Appeal in the context of criminal legal aid in Brown v Attorney General [2005] 2 NZLR 405 at [116], the NZBORA cannot override unambiguous legislation devised by Parliament to deal with the delivery of legal aid.Other matters[27] It should also be mentioned that Mr Reekie emphasised s 9(6) of the Legal Services Act 2000, stating that the Agency did not have regard to the matters listed in that sub-section. Section 9(6) provides:9 When legal aid may be granted: civil matters (6) In determining under subsection (5) whether a grant of legal aid is not justified, the Agency must have regard to—(a) any previous proceedings in the matter to which the application relates; and (b) any personal protection issues such as (without limitation) any orders relating to domestic violence, protection of personal property rights, compulsory treatment, or compulsory care; and (c) the interests and welfare of any other person who may be affected by the outcome of the proceedings; and (d) whether there are any complex factual, legal, or evidential matters that require the determination of a court; and (e) whether it is in the public interest that legal aid be granted[28] However, s 9(6) only applies to a determination under sub-section (5) as to whether a grant of legal aid is not justified. Sub-section (5) relates to certain proceedings specified in Schedule 4. Schedule 4 refers to proceedings brought under certain specific Acts. Schedule 4 does not include general civil proceedings, or claims that involve application of the provisions of the Criminal Investigations (Bodily Samples) Act 1995. Section 9(6) does not, therefore, apply.Conclusion[29] There was no error of law by the Panel. It considered the submissions made by Mr Reekie and dealt with those submissions carefully and without error.Result[30] The appeal is dismissed. Asher J