MARTELEY v R [2021] NZCA 636

MARTELEY v R [2021] NZCA 636 [30 November 2021]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMEOR IDENTIFYING PARTICULARS OF AJN REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA578/2018[2021] NZCA 636BETWEEN TODD AARON MARTELEYApplicantAND THE QUEENRespondentHearing: 10 November 2021Court: Collins, Duffy and Dunningham JJCounsel: Applicant in personS N B Wimsett as Counsel assistingJ E Mildenhall for RespondentJudgment: 30 November 2021 at 9.30 amJUDGMENT OF THE COURTA The application for leave to withdraw the notice of abandonment of appealagainst conviction is declined.B The substituted application for recall of Marteley v R [2018] NZCA 92 isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Marteley has filed what purports to be an application for leave to withdrawa notice of abandonment of appeal against his conviction for murder. He pleadedguilty to the murder in 2010 and his appeal against conviction was abandoned in 2016.Mr Marteley's application to withdraw his abandonment of appeal against convictionwas declined by this Court in 2018 (the 2018 judgment).1 No application for leave toappeal the 2018 judgment has been sought from the Supreme Court.[2] In the circumstances of this case we think there is no jurisdiction to consider asecond application for leave to withdraw Mr Marteley's notice of abandonment of hisappeal against conviction. We will, however, treat his application as one seeking recallof the 2018 judgment.Background[3] Mr Marteley was charged together with AJN, Ivan Manukau and MoanaHeremaia with having murdered Piki Kingi at Hamilton on 10 June 2009. In Augustand September 2010, AJN, Mr Manukau and Mr Marteley pleaded guilty to the murdercharge. Ms Heremaia pleaded guilty to a substituted charge of manslaughter.[4] Mr Manukau was sentenced to life imprisonment with a minimum period ofimprisonment (MPI) of 12 years. AJN was sentenced to life imprisonment with anMPI of 10 years. Ms Heremaia was sentenced to a term of three years and ninemonths' imprisonment. Several weeks after his co-accused had been sentenced,Mr Marteley was sentenced by Heath J to life imprisonment with an MPI of 14 years.21 Marteley v R [2018] NZCA 92 [2018 judgment].2 R v Marteley HC Hamilton CRI-2009-019-9786, 5 November 2010 [Sentencing notes].[5] The summary of facts which Mr Marteley accepted when he pleaded guiltyrecords:(a) Mr Kingi was a well-known dealer in methamphetamine.(b) Mr Marteley and Ms Heremaia had been in a long-term relationship.All four accused knew Mr Kingi through their involvement in theHamilton drug scene.(c) Mr Marteley and Mr Kingi had planned to steal a chemical that couldbe used in the manufacture of methamphetamine. Mr Marteleysubsequently formed the view that he had been excluded from the dealby Mr Kingi. Mr Manukau also had issues with the quality of themethamphetamine he had received from Mr Kingi.(d) In early June 2009, the four accused met at Mr Manukau's home wherethey discussed the grievances they had with Mr Kingi and how toextract retribution.(e) A plan was devised, which involved Mr Kingi being lured to the homewhere Mr Marteley and Ms Heremaia lived. There, Mr Kingi would beattacked and robbed of any drugs and money that he was carrying. Itwas agreed that Mr Marteley and AJN would carry out the assault whileMr Manukau and Ms Heremaia acted as lookouts from a nearby park.(f) On 7 June 2009 Mr Marteley sent Mr Kingi a text message saying thathe had recently sold a boat and had a large sum of money with whichto purchase methamphetamine. The transaction was to take place atMr Marteley's home on 10 June 2009.(g) On the morning of 10 June 2009, AJN and Mr Manukau went asplanned to the home where Mr Marteley and Ms Heremaia lived.Mr Manukau and Ms Heremaia then went to their lookout positions toawait the arrival of Mr Kingi.(h) Mr Marteley and AJN waited in the house armed with a cricket bat anda tomahawk, which Mr Marteley sharpened while he and AJN waitedfor Mr Kingi.(i) Mr Kingi arrived at Mr Marteley's home at about 11.39 am. Inside thehouse AJN struck Mr Kingi in the head with the cricket bat. Thereafter,Mr Kingi was struck on multiple occasions with both the cricket batand the tomahawk. He died in the house.(j) Following his death, Mr Kingi's body was wrapped in bed clothes andplaced in the rear of his motor vehicle. Mr Marteley and AJN thendrove Mr Kingi's car with the deceased in the back seat to a street whereit was abandoned. Ms Heremaia and Mr Manukau left the scene onfoot. All four accused later met up at Mr Manukau's address.(k) The tomahawk was found with Mr Kingi's body. Mr Marteley's palmprint was found on the bloodstained handle of that weapon. The cricketbat was found in a compost heap at the rear of the house whereMr Marteley and Ms Heremaia lived.[6] Mr Marteley was interviewed several times before he was charged withMr Kingi's murder. He gave a number of conflicting accounts but ultimately acceptedhe had arranged for Mr Kingi to come to his home for a "hiding". He maintained itwas AJN who attacked Mr Kingi with the tomahawk and the cricket bat. Mr Marteleyadmitted he had assisted with disposing of Mr Kingi's body.[7] Mr Marteley was assessed by a psychiatrist before he was sentenced. He hadbeen diagnosed with schizophrenia when he was a teenager. The psychiatrist said inher report that Mr Marteley suffered from an anti-social personality disorder andpsychopathological personality traits and that his addiction to cannabis was relevantto his criminal offending. Mr Marteley was assessed as being fit to stand trial. Therewas no issue about Mr Marteley's sanity at the time of the offending.33 These conclusions were consistent with those subsequently reached by Dr Shaw, aneuropsychologist, who assessed Mr Marteley in 2014.[8] The events leading up to Mr Marteley's sentencing were:(a) In February 2010, Ms Heremaia's counsel, Mr Laybourn, indicated tothe Crown that Ms Heremaia would be willing to plead guilty tomanslaughter. She did not do so at that time.(b) On 11 August 2010, AJN pleaded guilty to having murdered Mr Kingi.(c) On 18 August 2010, the Crown Solicitor spoke with Mr Robb, who atthat stage was acting for Mr Marteley.(d) On 19 August 2010, Mr Robb wrote to Mr Marteley saying theCrown Solicitor would accept a plea of guilty to manslaughter fromMs Heremaia if Mr Marteley pleaded guilty to murder.(e) On 3 September 2010, Mr Marteley and Mr Manukau pleaded guilty tomurder. Ms Heremaia pleaded guilty to manslaughter. Sentencing forall defendants was scheduled for 30 September 2010.(f) Mr Robb informed the Court that Mr Marteley wished to vacate hisguilty plea and instruct new counsel.(g) Mr Morgan QC agreed to represent Mr Marteley at his sentencing. Ina memorandum dated 7 October 2010, Mr Morgan advised the Courtthat "Mr Marteley recognises he does not have a defence to the chargeof murder". Mr Marteley maintained his guilty plea and proceeded tosentencing.[9] The sentencing notes of Heath J showed that Mr Morgan submittedMr Marteley was not "the perpetrator of all things that happened to Mr Kingi", aproposition the Judge agreed with when he said that if all four offenders gave evidenceat a trial "it would be difficult to establish exactly who did what to whom andwhen".44 Sentencing notes, above n 2, at [19].[10] Nevertheless, the Judge was satisfied Mr Marteley played a key role in themurder of Mr Kingi. Heath J observed the murder:5(a) was the result of a calculated plan and that Mr Marteley wasinstrumental in developing the plan;(b) was carried out with a high level of brutality, cruelty and callousness;and(c) involved an attempt to subvert the course of justice when Mr Marteleyand AJN drove the deceased's body to a location some distance fromwhere the crime occurred.[11] The Judge adopted a 17-year starting point for the MPI.6 That starting pointwas reduced by three years to reflect the fact Mr Marteley had maintained his guiltyplea and to reflect his personal circumstances.7Subsequent procedural history[12] On 23 August 2011, Mr Marteley lodged an application to appeal, out of time,his conviction and sentence. At that time, Mr Marteley was represented by Mr Ellis.An application was made for legal aid. The grant that was made covered onlyMr Marteley's proposed appeal against sentence.[13] Mr Marteley commenced civil proceedings in which he challenged the decisionof the legal aid authorities not to grant him legal aid to appeal his conviction. Thatchallenge resulted in a series of decisions culminating in a judgment of theSupreme Court, which determined Mr Marteley should receive legal aid to cover hisconviction appeal.8 We will return to that judgment at [27] to [28].[14] On 22 December 2015, Mr Ellis advised the Registry that Mr Marteleyintended to abandon the appeal against conviction but continue with his appeal against5 At [21].6 At [20].7 At [23]–[26].8 Marteley v Legal Services Commissioner [2015] NZSC 127, [2016] 1 NZLR 633.sentence. On 11 January 2016, Mr Ellis informed the Registry that he had beendismissed by Mr Marteley. Mr Fairbrother QC was then assigned by legal aid servicesto act for Mr Marteley.[15] On 5 August 2016, a notice of abandonment of appeal against convictionsigned by Mr Marteley and Mr Fairbrother was received by this Court. Mr Marteley'sappeal against sentence was then heard by three permanent members of this Court.Mr Marteley's application to extend time to pursue his sentence appeal was granted,but his appeal against sentence was dismissed.9[16] Mr Marteley, who was by this stage acting without the assistance of counsel,then applied to the Supreme Court for leave to appeal his conviction and sentence.That application was declined by the Supreme Court on 13 March 2017:10(a) In relation to the proposed appeal against conviction, the SupremeCourt said the appropriate procedural course was for Mr Marteley toapply to this Court for leave to withdraw his notice of abandonment ofhis appeal against conviction.11(b) The Supreme Court declined leave to appeal against sentence becausethat aspect of the proposed appeal raised no issues that warrantedconsideration by the Supreme Court.12[17] Two applications seeking to have the Supreme Court recall its decision weredeclined by that Court.13[18] On 18 April 2017, Mr Marteley filed in this Court an application for leave towithdraw the notice of abandonment of his appeal against conviction. Mr Tennet wasby this time acting for Mr Marteley. Mr Marteley filed two affidavits in support of hisapplication. The essence of his proposed appeal was that:9 Marteley v R [2016] NZCA 480.10 Marteley v R [2017] NZSC 31.11 At [6].12 At [7].13 Marteley v R [2017] NZSC 72; and Marteley v R [2017] NZSC 83.(a) He had not been at the house when Mr Kingi was murdered and he hadno involvement in the murder.(b) He had made statements implicating himself in order to protectMs Heremaia.(c) He had been pressured into pleading guilty.(d) He did not recall signing the notice of abandonment of appeal dated5 August 2016 because he was not wearing glasses when signingdocuments.Mr Marteley was cross-examined.[19] Mr Fairbrother also gave evidence. He explained that he had advisedMr Marteley that:(a) his conviction appeal had little if any chance of success; and(b) it would not assist Mr Marteley's sentence appeal if the Court'sattention focused upon the details of Mr Marteley's involvement inMr Kingi's murder.[20] Mr Fairbrother confirmed Mr Marteley had accepted his advice and that, inaddition to signing the notice of abandonment of his appeal against conviction,Mr Marteley gave Mr Fairbrother a letter in which he said he knew "in his heart ofhearts" that Mr Fairbrother had provided correct advice when he encouragedMr Marteley to abandon his attempt to appeal his conviction.[21] Mr Marteley's application for leave to withdraw his notice of abandonment ofthe conviction appeal was declined by a Divisional Court on 16 April 2018.14 That isthe decision we have referred to as the 2018 judgment.14 2018 judgment, above n 1.[22] On 24 September 2018 Mr Marteley, who by this time was again acting forhimself, filed a "notice of appeal against conviction and sentence". On 22 February2019, Mr Dufty, who was by this stage acting for Mr Marteley, filed a notice ofabandonment of the notice of appeal against conviction and sentence dated24 September 2018. Mr Dufty then ceased acting for Mr Marteley.[23] On 14 February 2020, Mr Marteley applied for "leave to appeal againstconviction and sentence on the grounds of fresh evidence and substantial grounds of'perjury'". It is that application that we are now required to determine.Submissions[24] Conscious of the fact Mr Marteley was no longer represented by counsel, thisCourt appointed Mr Wimsett to assist the Court so as to ensure that everything thatcould be said in favour of Mr Marteley's case was placed before the Court. Thesubmissions we have received from Mr Wimsett supplement the affidavit evidenceand letters we have received from Mr Marteley. Initially, Mr Wimsett treatedMr Marteley's application for leave to appeal as an application for "leave to withdrawhis notice of abandonment of his appeal against conviction and reinstate the appealagainst conviction".[25] The essence of Mr Marteley's case is as follows:(a) Mr Marteley acknowledges he was "a willing part of a plan thatinvolved robbing [Mr Kingi] and giving him a hiding. But that planonly ever involved fists, not weapons". As Mr Wimsett explains, "[i]fa jury accepted that Mr Marteley was involved on a 'fists only' basisand was not aware that a co-defendant might use weapons againstMr Kingi, then a defence existed".(b) Mr Marteley was improperly induced to plead guilty to murder. Thealleged inducement arose through an arrangement said to have been putforward by the Crown whereby the charge against Ms Heremaia wouldbe reduced to manslaughter if Mr Marteley pleaded guilty to murder.[26] Part of the argument we have summarised at [25(b)] is underpinned by thecontention that at the time he pleaded guilty Mr Marteley had been in custody for closeto a year. His relationship with Ms Heremaia was very significant. They had beentogether for 13 years and supported each other emotionally and financially.[27] The Supreme Court referred to the possibility that Mr Marteley's guilty pleamight have been made in questionable circumstances when it concluded thatMr Marteley's convictions should be funded by legal aid. The majority said in theirjudgment:15The appellant's decision to plead guilty was substantially contributed to by theindication from the prosecutor that if he did so the prosecution would not seeka murder conviction against his partner and an effective threat that, in theabsence of such a plea, a murder conviction against his partner would besought.[28] In her concurring judgment, Elias CJ said:[106] It was important background to the guilty plea that it may have beeninduced by the reduced charge offered to Mr Marteley's partner. The impactof any such inducement and the circumstances in which it was offered(including possible prosecutorial impropriety and the adequacy of the legaladvice received by Mr Marteley) would need to be properly investigated andassessed on an appeal. So too would it be necessary to consider Mr Marteley'scapacity to process advice in circumstances where there are indications ofsome cognitive deficiency on his part.[107] For the purposes of assessing the grounds of the appeal, it is howeversignificant that there is an evidential basis for the inducement alleged and therole of the Crown solicitor in offering it, although it is possible that thecontemporaneous letter of Mr Marteley's counsel reporting the offer is in error[29] For the Crown, Ms Mildenhall emphasised the following points:(a) Mr Marteley has no tenable defence. "Over a period of years, severalexperienced counsel have looked closely at Mr Marteley's prospects ofa successful conviction appeal. All have advised him against seekingto pursue an appeal ".15 Marteley v Legal Services Commissioner, above n 8, at [64(c)].(b) The summary of facts that Mr Marteley pleaded guilty to demonstratedhis "patent culpability". There has never been any justification for himto seek to vacate his guilty plea.(c) It was counsel for Ms Heremaia who indicated in February 2010 thatshe was prepared to plead guilty to manslaughter. This proposal wasput forward on the basis that Ms Heremaia was unaware of the level ofviolence intended by her co-accused.(d) Resolution discussions became more formalised after AJN pleadedguilty on 11 August 2010 to murdering Mr Kingi.(e) On 18 August 2010, the Crown Solicitor indicated to Mr Robb that theCrown would accept a guilty plea from Mr Marteley to murder unders 168(1)(a) of the Crimes Act 1961.(f) A letter written by Mr Robb to Mr Marteley on 19 August 2010, whichsuggests Mr Marteley would have to plead guilty to murder beforeMs Heremaia's charge would be amended to manslaughter, was plainlyincorrect. There had not been any unsolicited offer from the Crownalong those lines.Analysis[30] As we have noted at [24], Mr Wimsett initially treated Mr Marteley's extantapplication as one for leave to withdraw his notice of abandonment of his appealagainst conviction. The multiple applications made by Mr Marteley have laid afoundation to significant confusion over the correct procedural pathways available tohim.[31] As we have explained, however, Mr Marteley's application for leave towithdraw his abandonment of his appeal against conviction was declined in the 2018judgment. Thereafter, the procedural options available to Mr Marteley were limitedto:(a) applying to the Supreme Court for leave to appeal the 2018 judgment;or(b) applying to this Court to recall the 2018 judgment.Neither course has been followed.[32] We believe the interests of justice are best served if we decline to considerMr Marteley's application for leave to withdraw his notice of abandonment of appealon the grounds we do not have jurisdiction to consider such an application. We will,however, treat his application as a request for this Court to recall the 2018 judgmentand to reinstate his appeal against conviction.[33] There is, in any event, a high degree of overlap between the criteria that anapplicant must satisfy when seeking to withdraw a notice of abandonment of appealand when seeking to have a court recall one of its judgments.[34] In R v Cramp,16 this Court identified two grounds upon which leave might begranted to withdraw a notice of abandonment of appeal:(a) if the notice of abandonment of appeal was null and void because it wasnot the result of a deliberate and informed decision; or(b) if, in exceptional circumstances, the interests of justice require a Courtto, in effect, set aside a notice of abandonment of appeal.[35] Similarly, in Uhrle v R, when explaining the jurisdiction to recall a criminaljudgment, the Supreme Court said:17 the decision to reopen an appeal is an exceptional step, but also to ensurethe court remains able to respond to the wide variety of circumstances thatmay necessitate that step in order to avoid injustice. We are content that theseconcepts are sufficiently captured within the three grounds for recall16 R v Cramp [2009] NZCA 90 at [26].17 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29] (footnotes added).articulated in Horowhenua County18 and approved in Saxmere (No 2),19 and inparticular in the third ground: whether for any very special reason justicerequires the judgment to be recalled. It is the third ground that is likely to bethe most relevant in the criminal jurisdiction.[36] The criteria for both procedures emphasise that granting leave to withdraw anotice of abandonment of an appeal and recall of a judgment are exceptional measuresthat may be invoked when required by the interests of justice. This approach reflectsthe inherent power this Court has to "maintain its character as a court of justice".20[37] Factors that may influence a court's decision to reinstate an appeal eitherthrough recall or by granting leave to withdraw a notice of abandonment of an appealinclude:21(a) Whether the applicant can point to a clear and material error of fact orlaw in the court's earlier judgment or the applicant's decision toabandon his or her appeal.(b) The importance of finality in criminal proceedings. This isunderpinned by concerns about the interests of victims (including thefamily and friends of a deceased victim), witnesses, and the integrity ofthe court's processes which are put at risk if appeals are allowed to bereactivated after years of delay. It is also important not to deny otherlitigants from accessing the court's finite resources through the courtneedlessly revisiting earlier decisions.(c) The nature of any advice the applicant has previously receivedconcerning the merits of the proposed reinstated appeal.A material error of fact or law?[38] Mr Marteley contends that he thought Mr Kingi would be subjected to a"hiding" and that he and AJN would be using their fists. From this proposition he18 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).19 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR76.20 R v Smith [2003] 3 NZLR 617 (CA) at [36].21 See R v Cramp, above n 16; Uhrle v R, above n 17; and R v Smith, above n 20.argues that AJN engaged in a completely different act from that which he contemplatedand that, as a consequence, he could at most have been convicted of manslaughterunder s 66(1) of the Crimes Act. Alternatively, he argues that he might have beenacquitted outright on the basis that Mr Kingi's homicide was not committed "in theprosecution of the common purpose" under s 66(2) or was not foreseen byMr Marteley as a "probable consequence" of prosecuting the common purpose.[39] We are satisfied Mr Marteley has not demonstrated any material error of factor law when he pleaded guilty or when this Court delivered its 2018 judgment. Ourreasons for this conclusion are:(a) Mr Marteley's most recent explanation of his understanding of thenature of the "hiding" that was to be inflicted on Mr Kingi is notsupported by any independent verifiable evidence.(b) Mr Marteley's explanation is at complete odds with the summary offacts that he agreed to when he pleaded guilty after receiving legaladvice from Mr Robb and Mr Morgan. In particular, Mr Marteley'smost recent explanation conflicts with his early acknowledgment thatwhile waiting for Mr Kingi to arrive at Mr Marteley's home hesharpened the tomahawk that was used in the attack on Mr Kingi andthat AJN used the cricket bat during the attack.(c) Mr Marteley's current explanation conflicts with his earlier statementto this Court that he was not present at his home when Mr Kingi wasmurdered.(d) It is difficult to reconcile Mr Marteley's most recent account of themurder of Mr Kingi with his acknowledgment to Mr Fairbrother that inhis "heart of hearts" he knew he should abandon his attempt to appealhis conviction.[40] When dismissing Mr Marteley's sentence appeal in 2016, this Court said:22[38] The fact is that Mr Marteley was involved in the murder of Mr Kingifrom beginning to end. He was instrumental in luring Mr Kingi to his house.He was in the house when Mr Kingi entered and was attacked. He had broughtone of the weapons (the cricket bat) used to attack Mr Kingi to his house. Theother weapon (the tomahawk) was his and he had sharpened it shortly beforethe attack. He and AJN were the two who bundled Mr Kingi's body intoMr Kingi's car and drove it to the place where it was abandoned. Of the fouroffenders, we consider he was the most culpable because of his centralinvolvement in every aspect of the criminal enterprise that resulted inMr Kingi's death [41] Similarly, in the 2018 judgment this Court made clear that Mr Marteleymurdered Mr Kingi in the circumstances outlined in the agreed summary of facts.23[42] Nothing placed before us today causes us to doubt in any way the conclusionsthis Court has reached on two occasions about Mr Marteley's role in the murder ofMr Kingi.[43] When the Supreme Court tentatively raised the question as to whether or notMr Marteley had been improperly induced into pleading guilty to murder by animpermissible offer from the Crown Solicitor, it did so without the benefit of allrelevant information. In particular, it is now clear that discussions betweenMs Heremaia's lawyer and the Crown in which it was suggested she would pleadguilty to manslaughter commenced many months before Mr Marteley entered hisguilty plea. The steps taken in relation to Ms Heremaia included theSolicitor General's consent being granted for Ms Heremaia to plead guilty tomanslaughter before Mr Marteley pleaded guilty to murder.[44] In any event, following the Supreme Court judgment, legal aid was granted toMr Marteley to enable first Mr Ellis, and then Mr Fairbrother, to investigate whetherthere was any basis upon which Mr Marteley could pursue his appeal againstconviction. They independently concluded that Mr Marteley had no prospect ofsuccessfully pursuing that course of action, a conclusion he acknowledged when hesigned the notice abandoning his appeal against conviction and when he wrote to22 Marteley v R, above n 9 (footnotes omitted).23 2018 judgment, above n 1.Mr Fairbrother acknowledging the futility of his desire to appeal his conviction. Thatacknowledgment was endorsed by this Court when, after hearing evidence fromMr Marteley and Mr Fairbrother, it concluded there was no basis upon which leaveshould be granted to allow Mr Marteley to withdraw his notice of abandonment of hisappeal against conviction.24[45] Our conclusions about the absence of any basis for concluding that materialerrors of fact or law have led to Mr Marteley's current circumstances render itunnecessary to refer to the other factors we have identified at [37] other than to observeMr Marteley has, by our calculations, received the benefit of legal advice from at leastfive experienced lawyers. All have advised him that there is no merit to his proposedappeal against conviction.[46] Our decision brings to an end Mr Marteley's proceedings in this Court. Weunderstand he wishes to place his case before the Criminal Cases Review Commission,but before he can do so he must demonstrate that he has exhausted his appeal options.Those options now appear to be limited to seeking the leave of the Supreme Court toappeal this judgment and/or the 2018 judgment.Result[47] The application for leave to withdraw the notice of abandonment of appealagainst conviction is declined.[48] The substituted application for recall of Marteley v R [2018] NZCA 92 isdeclined.Solicitors:Crown Law Office, Wellington for Respondent24 2018 judgment, above n 1.