RICHARD LYALL GENGE v R [2019] NZSC 35

RICHARD LYALL GENGE v R [2019] NZSC 35 [3 April 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 6/2019[2019] NZSC 35BETWEEN RICHARD LYALL GENGEApplicantAND THE QUEENRespondentCourt: William Young, O'Regan and Ellen France JJCounsel: Applicant in personA D H Colley for RespondentJudgment: 3 April 2019JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was, along with two co-offenders, convicted of rape and murderin 1995. He was sentenced to life imprisonment with a minimum period ofimprisonment of 15 years for the murder and to a concurrent sentence of 12 years'imprisonment for the rape.1[2] The applicant filed an appeal in 1995 against his conviction for rape andagainst the minimum period of imprisonment imposed in relation to the murder. Hedid not appeal against his conviction for murder or against the sentence imposed forthe rape at that time. He applied for legal aid. Legal aid was granted for the appeal1 R v Kirner HC Christchurch T43/95, 25 October 1995 (Fraser J).against the minimum period of imprisonment imposed in relation to the murder, butdeclined in relation to his appeal against his conviction for rape.[3] In early 1996, the applicant abandoned the appeal (both in relation to theminimum period of imprisonment for the murder and the conviction for rape). Theappeal was formally dismissed by the Court of Appeal in February 1996. Althoughthe applicant has served a term longer than the minimum period of imprisonmentimposed on him in relation to the murder conviction, he has, to date been declinedparole and remains a serving prisoner.[4] In early 2017, some 21 years after his appeal to the Court of Appeal had beenabandoned and formally dismissed, the applicant applied to that Court for leave towithdraw the notice of abandonment of his appeal against the rape conviction and theimposition of the minimum period of imprisonment for murder. He also applied foran extension of time to appeal against the murder conviction and the sentence imposedfor the rape. The Court of Appeal dealt with these applications together. It declinedboth applications.2[5] The applicant seeks leave to appeal to this Court against the Court of Appealdecision. In response, the Crown raises a jurisdictional issue. As the applicant'sproceeding commenced before the Criminal Procedure Act 2011 came into effect, theapplicable legislation in relation to the present application is the Crimes Act 1961.3The right of appeal against a decision of the Court of Appeal in a criminal matter wasdealt with in s 383A(1) of the Crimes Act, which provided:With the leave of the Supreme Court, a convicted person may appeal to theSupreme Court against a decision of the Court of Appeal on appeal undersection 383.[6] Counsel for the Crown points to a number of leave decisions of this Courtwhere the Court has concluded it has no jurisdiction to hear and determine an appealagainst a decision of the Court of Appeal refusing to grant leave to appeal to that Courtbecause such a decision is not "a decision of the Court of Appeal on appeal" for thepurposes of s 383A (or "a decision of the Court of Appeal on an appeal" in terms of2 Genge v R [2017] NZCA 466 (Winkelmann, Wylie and Whata JJ).3 Criminal Procedure Act 2011, s 397.s 144A of the Summary Proceedings Act 1957).4 This same reasoning has beenapplied to a decision of the Court of Appeal refusing leave to withdraw a notice ofabandonment.5[7] Insofar as the present application relates to the Court of Appeal's refusal of anextension of time to appeal against the murder conviction and rape sentence, the natureof the Court of Appeal decision was not a refusal to grant leave, but rather a refusal togrant an extension of time. Nevertheless, the refusal to grant an extension of timecannot be characterised as a decision "on appeal", so the same jurisdictional hurdleconfronts the applicant.6[8] We conclude we do not have jurisdiction to hear and determine the proposedappeal. We therefore refuse leave. However, we have considered the submissionsmade by the applicant and concluded that we would not have granted leave even if wehad jurisdiction. We record briefly our reasons for that conclusion.[9] The applicant wishes to argue on appeal that the Court of Appeal ought to haveallowed him to withdraw his notice of abandonment of his 1995 appeal. He arguedthat the refusal of legal aid for the appeal against the rape conviction in 1995influenced his decision to abandon the appeal. The legal aid decision was part of theprocedure of the Court of Appeal that was the subject of criticism in the decision ofthe Privy Council in R v Taito.7 Thus, he argues he should have been allowed a secondchance to appeal under the principles set out in the Court of Appeal decision inR v Smith.8 The Court of Appeal rejected this argument. We accept that there may beroom for an argument to the effect that, although the applicant did not fit within theclass of appellants dealt with in R v Smith, that decision could have been applied to hissituation by analogy. But, although the Court of Appeal did not ultimately give leave4 For example, Clarke v R [2005] NZSC 60 at [2].5 Palmer v R SC CRI 13/2004, 12 October 2004 at [2]–[4].6 Penman v R [2016] NZSC 96 at [5]. An alternative would be a direct appeal to this Court fromthe High Court against the murder conviction and rape sentence but leave for such an appeal couldbe given only if there were "exceptional circumstances": Supreme Court Act 2003, s 14; andSenior Courts Act 2016, s 75. We address this possibility below at n 9.7 R v Taito [2003] UKPC 15, [2003] 3 NZLR 577.8 R v Smith [2003] 3 NZLR 617 (CA).to the applicant to withdraw his notice of abandonment of his 1995 appeal, it did givefull consideration to the merits of the appeal he wished to pursue in that Court.[10] Having considered the Court of Appeal's analysis of those grounds of appeal,we do not consider that there is any realistic prospect that any of those grounds couldbe successfully advanced in this Court, and on that basis we see no miscarriage ofjustice arising from the way the Court of Appeal dealt with the applicant's applicationto withdraw his notice of abandonment.[11] In relation to the decision of the Court of Appeal to refuse an extension of timeto pursue appeals against the murder conviction and rape sentence, we are satisfiedthat no question of public importance arises. In addition, having considered the Courtof Appeal's assessment of the proposed grounds of appeal, we are satisfied that thereis no risk of a miscarriage if leave is not given in relation to this aspect of the case.9[12] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent9 For the same reasons, we conclude there are no exceptional circumstances justifying leave toappeal directly from the High Court.