JONES v R [2019] NZCA 66

JONES v R [2019] NZCA 66 [25 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA155/2018[2019] NZCA 66BETWEEN TARIANA HINETEANAURANGI JONESApplicantAND THE QUEENRespondentHearing: 26 June 2018Court: Williams, Simon France and Wylie JJCounsel: R G Glover for ApplicantJ E Mildenhall for RespondentJudgment: 25 March 2019 at 2.00 pmJUDGMENT OF THE COURTThe application to revisit the appeal in Jones v R [2015] NZCA 312 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] Should this Court effectively revisit an appeal brought and decided in 2015because counsel did not raise an argument the applicant now considers should havebeen raised?[2] In 2014, the applicant, Tariana Jones, was convicted of murdering Glen Jonesand of the aggravated burglary of his home. She was sentenced to life imprisonmentwith a minimum period of imprisonment (MPI) of 17 years on the murder charge anda concurrent sentence of 10 years on the aggravated burglary charge.1[3] Her co-offenders were Toni Miller, Matthew McKinney, Kristofer Jones andHayden Ranson. Ms Miller was charged only with aggravated burglary. She wassentenced to eight years' imprisonment on that charge.2 Like Ms Jones,Messrs McKinney, Jones and Ranson were each charged with murder andaggravated burglary. They were sentenced to the same terms of imprisonmentimposed on Ms Jones.3[4] Ms Jones and her co-offenders appealed variously against conviction andsentence.4 These appeals were heard on 29 June 2015 and this Court issued its decisionon 20 July 2015. All conviction appeals were dismissed.5 Ms Jones' sentence appealwas allowed with respect to the aggravated burglary charge and the concurrent termof 10 years' imprisonment was reduced to nine years.6 This had no practical effect onher final sentence. The sentence appeals brought by Ms Jones' co-offenders were alldismissed.7[5] Ms Jones now seeks the leave of this Court to revisit her sentence appeal.The substantive appeal argument she wishes to raise is that the MPI of 17 years ismanifestly excessive. This was a ground of appeal in her original notice of appeal butwas not pursued by counsel at the hearing.[6] There is no specific procedure for such applications, as they rely onthe inherent jurisdiction of the Court as referred to in R v Smith.8 That is presumablywhy the application was brought by way of notice of application for leave to appeal,1 R v Jones [2014] NZHC 1207 at [35] [Sentencing notes].2 Sentencing notes, above n 1, at [39].3 At [36]–[38].4 Jones v R [2015] NZCA 312.5 At [103].6 At [105].7 At [104].8 R v Smith [2003] 3 NZLR 617 (CA).even though revisiting of former decisions is not provided for in s 213(2) ofthe Criminal Procedure Act 2011.[7] By minute of 28 March 2018, French J directed that the leave application beaccepted by the Registrar. By further minute of 11 May 2018, Miller J directed thatMs Jones' application for leave be considered separately from the substantiverehearing.[8] By these means we must now deal with Ms Jones' application to revisit hersentence appeal as an application for leave to do so.The facts[9] These need only brief summation in light of the issues before us.[10] On Friday 11 January 2013, Ms Jones and her co-offenders resolved to beatGlen Jones because they believed he had raped a woman they knew. It transpired thatthis belief was unfounded.9 The group took two axe handles and a bat toMr Jones' flat. All except Ms Miller forcibly entered the flat and beat him. One ormore of the blows fractured Mr Jones' skull. This was the cause of death.[11] All bar Ms Miller were found guilty of murder. At sentencing, MacKenzie Jconsidered the four convicted of murder were equally responsible for Mr Jones'death.10 The Judge reasoned as follows:[18] The actual extent to which each of you was involved cannot beprecisely determined either from the jury's verdict or from my assessment ofthe evidence at trial. Each of you has sought through your counsel to playdown your participation in the infliction of the fatal injuries. In assessing yourindividual culpability for the offence, I bear in mind that it is not generallyappropriate in a group attack such as this to make fine distinctions as toculpability based on the degree of actual participation. Those who provideassistance in a group attack may be equally culpable with those who actuallyinflict the blows. This was a frenzied attack, fuelled by alcohol and a mobmentality. None of you has a record of serious violence and I think that noneof you, acting alone, would have been likely to have inflicted such seriousinjuries. But collectively, a mindless mob mentality took hold of you and led9 We note that at sentencing, the Judge recorded that the results of the investigation intothe complaint against Mr Jones did not support the allegations that he had raped the woman. Hisdeath meant that the investigation could not be completed.10 Sentencing notes, above n 1, at [18].you to commit this murderous attack. In those circumstances, fine distinctionsas to the level of your involvement in the planning, or speculation as to whichof you may have used the two weapons, are not appropriate.[12] As a result, MPIs of 17 years were imposed on all four convicted of the murder.[13] Ms Jones originally appealed against both conviction and sentence. In relationto the sentence appeal this Court recorded the approach taken by her counsel asfollows:[95] Although the appeal points filed on 17 March signalled an appealagainst the sentence (sic) of 17 years imprisonment imposed for murder,the appeal ultimately advanced for Tariana Jones was only againstthe concurrent sentence of 10 years imprisonment imposed for aggravatedburglary.[14] The argument now advanced on behalf of Ms Jones is that the appeal againstthe MPI should have been pursued by counsel and was not. The simple point that willbe pursued by Mr Glover, for Ms Jones, if leave is granted, is that the appeal againstthe MPI was abandoned without any record of Ms Jones agreeing to its abandonment.This, it will be argued, means it is now necessary in the interests of justice to revisitthe appeal to allow that argument to be heard.The evidence[15] Ms Levy appeared for Ms Jones at the hearing in this Court in 2015. She filedan affidavit in relation to the current application. Although not strictly a r 12A ofthe Court of Appeal (Criminal) Rules 2001 process, her affidavit provided usefulbackground as to the way the appeal was pursued. It will be necessary to refer to thisaffidavit in some detail during the course of this judgment.[16] As to the conviction appeal, Ms Levy identified the following non-exhaustivegrounds advanced on behalf of Ms Jones:5. The conviction appeal was on multiple grounds including:a. that there was a failure to identify and direct on possiblefactual situation whereby Ms Jones went to the flat to witnessthe confrontation she had instigated, but was faced withthe playing out of the more serious purpose agreed betweenthe men only;b. that the Judge did not identify the significance of Ms Joneshaving instigated a lesser common purpose than sufficient formurder or manslaughter conviction;c. that there should have been severance because of the vastquantity of prejudicial material which was inadmissibleagainst Ms Jones;d. that the ability to challenge witnesses was underminedbecause of the support for their evidence in that inadmissiblematerial;e. that a comment by counsel for a co-accused that she was a liarshould have been the subject of a special direction bythe Judge.[17] Ms Levy noted the Judge's observations in relation to the culpability ofthe whole group.11 The Judge described the attack as "frenzied" and "fuelled byalcohol and a mob mentality".12[18] As to Ms Jones' participation specifically; Ms Levy noted the Judge's findings,which we also set out in full:[21] Tariana Jones, your counsel acknowledges that you were one of thosewho decided to go to Featherston to confront Mr Jones, and that a weaponbelonging to you was used. He submits that you entered the flat only to bringthe attack to an end. He submits that if I was to accept that you did not yourselfinflict any of the blows which caused death, this might make a sentence of lifeimprisonment manifestly unjust. As I have already said, this is not so.The level of culpability which you bear, as a secondary participant, is muchgreater than that. You were one of the instigators of the plan to travel toFeatherston, and you must bear responsibility for what followed. Youparticipated in the attack itself. It is implicit in the jury's verdict that, whenthe fatal blows were struck, you knew that death was a likely outcome. Youtook no steps to obtain help for your victim afterwards. I accept that yourlevel of culpability requires some reduction from the notional starting pointI have identified. Your personal circumstances might also justify somereduction. In particular, you have only one relatively minor previousconviction for common assault in 2003. You have young children andresponsibility for them, and prison will bear hardly on you and on them. Noneof those factors require a reduction below the minimum period of 17 years.I fix a minimum period for you of 17 years. That period is not manifestlyunjust.11 Sentencing notes, above n 1, at [18].12 At [18].[19] Ms Levy advised that she came to the view that an appeal against the MPI hadlittle hope of success unless this Court could be convinced that, in accordance withthe arguments advanced in the conviction appeal, the jury (and the Judge insentencing) had been led to overstate the level of Ms Jones' involvement in the attack.Ms Levy put the position this way:8. After reading the leading authorities and the commentary in Adams,I formed the very firm view that an appeal against the minimumperiod of 17 years had no prospect of success if and unless theconviction appeal grounds were accepted (in which the sentenceappeal would obviously be redundant.)9. It was clear to me that Ms Jones was finding her prison sentence, andthe prospect of no parole for 17 years, extremely difficult. Herpersonal circumstances were of a sad and difficult life, and she hasfour children for whom she had been the sole caregiver. However,I considered that the authorities and commentary made it clear thatthese personal circumstances and the hardship of prison wereinsufficient to dent the requirement for a minimum period ofimprisonment. In fact, the trial judge had sentenced on the basis ofa higher starting point than 17 years MPI and got back down to thatfigure taking those matters into account.10. I believed several s 104 grounds applied ((c), (e) and (g)) and therewere no indications of remorse or acceptance of responsibility whichcould be put forward.11. The Judge's findings in respect of Ms Jones included that she was oneof the prime instigators of the decision to take retribution againstthe victim, and that she was intending before the group left Mastertonthat he would be beaten.[20] This meant Ms Levy found herself caught in a "catch 22": success inthe sentence appeal required success in the conviction appeal. On Ms Levy's analysis,the conviction appeal had reasonable prospects of success. On the other hand, shereasoned, the risk of focussing on the MPI appeal was that the Court mightunconsciously be distracted from the real merits of the conviction appeal and come totreat the sentence appeal as a kind of consolation prize. She continued:18. For that reason, my view was that it was better from an advocacyperspective on the conviction appeal, and therefore to Ms Jones'benefit, that my submissions on the appeal not conclude by having tohighlight that assessment, especially as I believed there was nopossible upside to doing so. I appreciated that the Sentencing noteswould be considered by the Court for some purposes (includingthe appeal against sentence on the aggravated burglary charge whichwas pursued and successful), but felt that focussing on the Judge'sactual findings would detract from the force of the points to be madeabout the unfair barriers to lesser findings.[21] Ms Levy candidly doubted that she sought specific instructions from Ms Joneson the matter of the MPI appeal "in a formal way". But she referred to a file note ofa telephone conversation she had with Ms Jones on 11 June 2015, two weeks beforethe hearing in this Court. It recorded that she (Ms Levy) "explained everything. Cansend subs to mother". Ms Levy concluded:19. This was likely to have been a relatively short phone conversation ofmaybe 5 or 6 minutes, but I believe it would have included me givingmy opinions in respect of the MPI appeal, and Ms Jones notdemurring.[22] For his part Mr Glover equally candidly accepted that his client was not ina position to contradict the thrust of Ms Levy's evidence. In particular, Ms Jones,understandably, could not recall the brief telephone conversation referred to byMs Levy. Ms Levy was not required for cross-examination.Analysis[23] For the reasons essentially advanced by Ms Mildenhall for the Crown, we takethe view that this is not a case in which leave to revisit the appeal should be granted.[24] The general ambit of this Court's power to revisit an appeal after it has finalisedits decision in the matter was set out by the Court of Appeal in R v Smith.13 The Courthas the power to take what it must be said is a relatively rare step in revisiting anappeal, but only in "exceptional circumstances" as required by the overall interests ofjustice.14 The important principle of finality means this may be done only where asubstantial miscarriage of justice would result if some fundamental procedural error isnot corrected and where there is no alternative effective remedy available.1513 R v Smith, above n 8, at [36].14 At [36].15 At [36].[25] A recent restatement of the position including extensive references tointervening decisions on the point may be found in McMaster v R.16 The exact ambitof the power is not without debate. As the Court there noted:[62] In accordance with Smith, a serious or fundamental error of process isrequired. As this Court said in Palmer, the error must be such as to impeachthe decision of the appellate court. Our research shows that the cases in whichthe inherent jurisdiction to reopen has been exercised have all involved errorsof process by this Court as in Smith or where, without error on the part ofthe Court, something has gone seriously wrong with the appeal process suchas the failure to disclose material facts to the appeal court as occurred in Smailand in Banks. While the possibility of errors in the trial process justifyinga second appeal was left open in Wong, we see no need to consider the extentof any such jurisdiction in the present case beyond observing that this Courthas emphasised the closely circumscribed and exceptional nature ofthe inherent jurisdiction to entertain a second appeal.(Footnotes omitted.)[26] But this is not a case that tests the margins of the Smith doctrine. It is difficultto fault Ms Levy's decision to focus on the conviction appeal, even in hindsight,because the MPI appeal would, in her view, have been hopeless unless there wasa sound basis for setting aside the Judge's factual findings as to culpability.The Crown case was that Ms Jones was one of the instigators of the attack, and thatshe participated fully in it with what she described to her co-offenders as her"stomping boots".[27] Although there is no formal written document in which Ms Jones expresslyaccepted the strategic approach of focussing on the conviction appeal rather thanthe MPI, there is no reason to reject Ms Levy's evidence that it is likely that particularissue was discussed and her guidance accepted, even if only inferentially.The approach Ms Levy said she took to discussing the matter with her client is whatwe would expect of experienced and, if we may say so, careful defence counsel.Equally importantly, Ms Levy deposed that she forwarded a copy of her writtensubmissions to Ms Jones (and presumably her mother as indicated in the note of herdiscussion).16 McMaster v R [2016] NZCA 612.[28] As this Court noted in R v Scurrah a reasonable tactical decision by counsel isunlikely to provide a basis for setting aside a verdict (or by analogy, a sentence) evenif in hindsight it turned out not to produce the result hoped for.17 The strategic callMs Levy made in relation to the sentence appeal in this case is not on a par withdecisions as to plea, mode of trial, election to give evidence or a decision to pursuea defence based on the appellant's version of the facts.18 And, perhaps moreimportantly, in the end Ms Levy was right in her tactical assessment. The best chanceof overturning the MPI was to adjust the facts. If she was successful in convincingthis Court that such adjustment was necessary, there would have been no need forthe sentence appeal at all.[29] Affirmation of this may be seen in the fact that Mr Glover chose to argue thatthe appeal should be revisited as a matter of principle due to the lack of writteninstructions to abandon the challenge to the MPI. He offered no ground upon which,if revisited, the appeal should be allowed. Substantive submissions would follow,he proposed, only after leave was granted. This approach was, with respect,unrealistic.[30] This is therefore not a case in which it can be said that justice has "misfired"or that something has gone "seriously wrong", such that it must be fixed if this Courtis to maintain its character as a court of law in accordance with the Smith test.Result[31] The application for leave to revisit the appeal in Jones v R [2015] NZCA 312is declined accordingly.Solicitors:Crown Law Office, Wellington for Respondent17 R v Scurrah CA159/06, 12 September 2006 at [18].18 See generally Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].