IN THE SUPREME COURT OF NEW ZEALAND SC 61/2014 [2015] NZSC 127 BETWEEN TODD AARON MARTELEY Appellant AND THE LEGAL SERVICES COMMISSIONER Respondent Hearing: 5 May 2015 Court: Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ Counsel: A J Ellis and A Shaw for Appellant F M R Cooke QC and B D Huntley for Respondent Judgment: 21 August 2015 JUDGMENT OF THE COURT A The appeal is allowed, the Court of Appeal judgment is set-aside and the order that the appellant receive legal aid for his conviction appeal is restored. B In this Court the appellant is awarded costs of $25,000 together with reasonable disbursements. C The appellant is also entitled to costs and disbursements in the High Court and Court of Appeal to be fixed by those Courts. ____________________________________________________________________ REASONS William Young, Glazebrook, Arnold and O’Regan JJ [1] Elias CJ [83] WILLIAM YOUNG, GLAZEBROOK, ARNOLD AND O’REGAN JJ (Given by William Young J) TODD AARON MARTELEY v THE LEGAL SERVICES COMMISSIONER [2015] NZSC 127 [21 August 2015] Table of Contents Para No Introduction [1] The merits issue: to what extent is a consideration of the [6] merits of a criminal appeal material to the decision to grant legal aid? Overview [6] Pre-Nicholls evolution of the statutory scheme [10] The human rights context [19] Nicholls v Registrar of the Court of Appeal [26] The Legal Services Act 2000 [33] Subsequent criticism of Nicholls [37] The 2006 amendments [39] The 2011 Act [40] The approach of Collins J [43] The Court of Appeal judgment [45] Three different approaches [48] Our approach [50] Should legal aid have been granted for the conviction appeal? [56] The background to the conviction for murder [56] An overview of the proposed conviction appeal [64] The dealings between the appellant and the Agency and [70] Commissioner The Legal Aid Tribunal [71] The appeal to the High Court [74] The appeal of the Court of Appeal [76] Our approach [77] Costs [81] Disposition [82] Introduction [1] The appellant, Todd Aaron Marteley, pleaded guilty to a charge of murder and was later sentenced to life imprisonment with a minimum period of imprisonment of 14 years.1 He wished to appeal against his conviction and sentence. There followed a dispute with the Legal Services Agency (under the Legal Services Act 2000) and later the Legal Services Commissioner (under the Legal Services Act 2011) over legal aid for the purposes of his appeal. The Commissioner was prepared to fund an appeal against sentence but not conviction; this for perceived lack of merit. 1 R v Marteley HC Hamilton CRI-2009-19-9786, 5 November 2010. [2] The Commissioner’s decision was upheld on review by the Legal Aid Tribunal. The Tribunal’s decision, however, was successfully challenged in the High Court on appeal. In allowing the appeal, Collins J saw the merits or otherwise of the proposed appeal as of no moment where, as here, the grounds of appeal, if made out, would be capable of resulting in the appeal being allowed.2 He also concluded that the Commissioner ought to have addressed the fiscal consequences of refusing legal aid which, on his appreciation, would probably involve the appointment of counsel by the Court of Appeal – an exercise likely to exceed the costs of granting legal aid.3 [3] The Commissioner appealed to the Court of Appeal. This was pursuant to leave granted by Collins J.4 In giving leave, Collins J identified questions of law addressed to the correctness of his views as to (a) the irrelevance of a merits assessment and (b) the relevance of the fiscal consequences of refusing legal aid. The Court of Appeal concluded that in both respects the Judge had been in error.5 [4] The Commissioner did not seek a stay of the judgment of Collins J pending the determination of the appeal to the Court of Appeal and continued to fund work associated with the conviction appeal. And in the course of the hearing in the Court of Appeal, counsel for the Commissioner advised the Court that legal aid would continue for the conviction appeal even if the Commissioner’s appeal against the High Court judgment was successful.6 For this reason the Court of Appeal did not formally address the merits of the Tribunal’s decision. The general drift of the judgment, however, was that the Tribunal’s decision was wrong.7 Despite this, the Court’s order was that the appeal should be allowed. No order for costs was made. The position as to costs in the High Court was not specifically addressed. [5] The further appeal to this Court is addressed to the relevance of merits to the decision to grant or refuse legal aid and costs.8 2 Marteley v Legal Services Commissioner [2013] NZHC 1278, [2013] NZAR 875 (Collins J) [Marteley (HC)] at [44]. 3 At [57]. 4 Marteley v Legal Services Commissioner [2013] NZHC 2748. 5 Legal Services Commissioner v Marteley [2014] NZCA 185, [2014] 3 NZLR 143 (Ellen France, Randerson and Miller JJ) [Marteley (CA)]. 6 See Marteley (CA), above n 5, at [9]. 7 See at [86]–[92]. 8 Marteley v Legal Services Commissioner [2014] NZSC 94. The merits issue: to what extent is a consideration of the merits of a criminal appeal material to the decision to grant legal aid? Overview [6] The case falls to be determined by reference to s 8 of the Legal Services Act 2011. The text of that section is set out later in these reasons. At this point it is sufficient to note that legal aid in respect of an appeal may only be granted if it appears to the Commissioner that “the interests of justice require” such a grant.9 In addressing what is required in the interests of justice, the Commissioner must have regard to, inter alia, “the grounds of the appeal”.10 [7] The phrase “interests of justice” has appeared in all New Zealand statutes providing for criminal legal aid11 and, in relation to legal aid for appeals, has been linked to the “the grounds of the appeal” ever since the Offenders Legal Aid Act 1954 introduced an integrated criminal legal aid system covering representation at all stages (including appeals) of the criminal process.12 These phrases, and particularly the latter, were subject to extensive analysis by the Court of Appeal in Nicholls v The Registrar of the Court of Appeal13 in 1998; this in the context of the Legal Services Act 1991. That Court concluded that:14 (a) the phrase “the grounds of appeal” encompassed an assessment of the merits of the grounds relied on (the “first Nicholls proposition”); (b) legal aid could be refused solely on grounds of lack of merit (the “second Nicholls proposition”); and 9 Legal Services Act 2011, s 8(1)(c)(ii). Although s 8(1)(c)(i) provides that the “interests of justice” test need not be satisfied for a grant of aid in respect of an offence punishable by a maximum term of imprisonment of six months or more, this alternative is not applicable to an appeal: see s 8(4)(a). 10 Section 8(2)(a)(viii). 11 Starting with ss 2 and 3 of the Justices of the Peace Amendment Act 1912. 12 Offenders Legal Aid Act 1954, s 2(1) and 2(2)(c). Legal aid for criminal appeals was first provided for by s 10 of the Criminal Appeal Act 1945. The language of this provision is of no materiality in the present context. 13 Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA). 14 See at 398, 406 and 420–422 per Eichelbaum CJ; at 425, 439 and 440 per Tipping J; and at 461 per Smellie J. (c) save in exceptional circumstances legal aid for an appeal ought not to be granted in the absence of an appearance of some merit (the “third Nicholls proposition”).15 [8] A good deal of legal water has passed under the bridge since Nicholls was decided. Nicholls was criticised by the Privy Council in R v Taito.16 And more significantly, the legislative scheme has changed significantly. Collins J, in the High Court, considered that the Nicholls approach required modification.17 As it turns out, we are also of that view, albeit not for quite the same reasons, nor in the same respects. [9] Against this reasonably complex background, an historical approach to the evolution of the legislative provisions is fundamental to a proper understanding of the current statutory scheme. Pre-Nicholls evolution of the statutory scheme [10] Section 2(1) and (2) of the Offenders Legal Aid Act 1954 provided: 2 Power of Court to grant legal aid to person charged with or convicted of offence (1) Any Court having jurisdiction in criminal proceedings may, in respect of any stage of any criminal proceedings and in accordance with this Act, direct that legal aid be granted to any person charged with or convicted of any offence, if in its opinion it is desirable in the interests of justice to do so. (2) In considering whether to direct the grant of legal aid, the Court shall have regard to– (a) The means of the person charged or convicted: (b) The gravity of the offence: 15 Tipping J said at 440 “save in an exceptional case, the applicant for aid has to show that the grounds of appeal have a sufficient possibility of success to justify a grant of legal aid, bearing in mind the gravity of the offence and all other relevant circumstances” and at 425 “it will generally be necessary to show grounds of appeal which have a sufficient possibility of success”. Smellie J said at 461 “In company with the other members of the Court I am comfortable with the requirement that save in exceptional circumstances, on the issue of ‘grounds of appeal’, an applicant must show a sufficient possibility of success to justify a grant of aid.” (All emphasis added). 16 R v Taito [2001] UKPC 15, [2003] 3 NZLR 577 (PC). 17 Marteley (HC), above n 2, at [43]. (c) In respect of any appeal, the grounds of the appeal: (d) Any other circumstances that in the opinion of the Court are relevant. [11] Up until 1989, the decision whether or not to grant legal aid was made by a judge.18 In the case of an appellant who could not afford legal representation, the only considerations which the judge was required to take into account were “[t]he gravity of the offence” and “the grounds of the appeal”. Judges could thus be expected to approach an application for legal aid on appeal by considering whether it was desirable in the interests of justice to grant legal aid having regard to the gravity of the offence and the grounds of appeal. [12] With effect from 1 December 1989 registrars, as well as judges, were empowered also to determine legal aid applications.19 Shortly afterwards, the 1954 Act was repealed and replaced by the Legal Services Act 1991 which came to be considered in Nicholls. [13] Section 7 of the 1991 Act relevantly provided: 7 Registrar may grant criminal legal aid— (1) Where any Court receives an application for criminal legal aid, a Registrar of that Court may, after assessing the application in accordance with the prescribed procedure, direct that criminal legal aid be granted to the applicant if, – (a) Subject to section 15(1) of this Act, in that Registrar's opinion it is desirable in the interests of justice that the applicant be granted criminal legal aid; and (b) It appears to that Registrar that the applicant does not have sufficient means to enable him or her to obtain legal assistance. (2) In considering whether or not to direct the grant of criminal legal aid, the Registrar shall have regard to – (a) The gravity of the offence: (b) In respect of any appeal, the grounds of the appeal: 18 Including in the case of grants of legal aid made in Magistrates Courts prior to 1980, a Magistrate: see Offenders Legal Aid Act 1954, s 5. 19 See Offenders Legal Aid Amendment Act 1989, s 2. (c) Any other circumstances that in the opinion of the Registrar are relevant. [14] Section 15(1) was in these terms: Where an application for criminal legal aid is made to the Court of Appeal, the Registrar who deals with that application shall, for the purposes of determining whether or not it is desirable in the interests of justice that the applicant be granted criminal legal aid, consult with a Judge of that Court, and shall take the views of that Judge on that matter into account in making that determination. [15] The Registrar of the Court of Appeal was reasonably well able to assess the “gravity of the offence” (as were High Court and District Court Registrars in relation to legal aid grants in respect of proceedings in their courts). So the judge who was consulted under s 15(1) could be expected to focus on “the grounds of the appeal”. Inevitably such focus would be on the merits of the appeal, as perceived by the judge. This is entirely consistent with the Parliamentary history of s 15. Its addition to the Bill which became the 1991 Act was explained by the Minister of Justice, at the third reading:20 One important change made during the Committee stage related to the necessity to ensure that when criminal legal aid was made available for appeals to the Court of Appeal there was some vetting of the appeal to make certain that it actually had some merit before legal aid was granted. The Bill was amended to provide that the file should be referred to the President or to a member of the Court of Appeal, who could then indicate to the registrar who actually grants the aid whether, in the opinion of that appellate judge, the appeal had merit. Again, that is a very sensible and worthwhile approach. [16] The s 15(1) procedure came to be supplemented by additional but non-statutory processes in which legal aid applications would not be refused without the sanction of three judges. All of this was part and parcel of the regime in issue in R v Taito21 under which appeals by unrepresented appellants who had been refused legal aid were dealt with under what was known as the ex parte procedure. [17] The 1991 Act addressed civil as well as criminal legal aid. The civil legal aid scheme had previously been provided under the Legal Aid Act 1969. Part 2 of the 1991 Act closely followed the scheme of the 1969 Act. Under both the 1969 Act and 20 (23 July 1991) 517 NZPD 3078–3079. 21 R v Taito, above n 16. Part 2 of the 1991 Act, eligibility for civil legal aid was provided for by reference to the nature of the proceedings and the financial means of the applicant.22 Assuming those criteria were met, the applicant was entitled to legal aid unless refusal was required or warranted on the basis of specified criteria, some of which involved consideration of the merits.23 In particular, legal aid was to be refused unless the applicant established that there were reasonable grounds for taking or defending the proceedings.24 If “in doubt as to the merits of the applicant’s case” decision- makers25 could defer consideration of an application and take the advice of counsel or an expert.26 [18] The very different legislative approaches to criminal and civil legal aid in the 1991 Act may have been in part a function of drafting convenience in that it would have been easier to adopt and adapt the earlier legislative models than to take a clean slate approach. They also, however, presumably reflected the different contexts in which the two schemes operated. By way of example only, the human rights considerations (which we are about to address) applicable to legal aid for criminal proceedings differ from those applicable in respect of civil proceedings. The human rights context [19] The primarily relevant provisions of the New Zealand Bill of Rights Act 1990 are ss 24(f) and 25(h). They provide: 24 Rights of persons charged Everyone who is charged with an offence— … (f) shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; … … 22 See ss 15 and 17 of the 1969 Act and ss 19 and 28 of the 1991 Act. 23 See s 23 of the 1969 Act and s 34 of the 1991 Act. 24 See s 34(1) of the 1991 Act. 25 Decisions whether or not to grant civil legal aid were made by District Legal Services Committees rather than by Registrars, as was the case with criminal legal aid. 26 Section 21(1) of the 1969 Act. Section 24(1) of the 1994 Act was to the same effect. 25 Minimum standards of criminal procedure Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: … (h) the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both: … Consequently upon the enactment of s 25(h), the appeal provisions in the Crimes Act 1961 were amended to provide for a right of appeal without leave against conviction and sentence.27 [20] The expression “interests of justice” which has featured in all New Zealand criminal legal aid statutes28 and in s 24(f) of the New Zealand Bill of Rights Act also appears in art 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR).29 This provides: 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it[.] … To the same general effect is art 6(3)(c) of the European Convention on Human Rights (ECHR).30 27 Crimes Amendment Act 1991, s 2. 28 See above at [7]. 29 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [“ICCPR”]. 30 Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (opened for signature 4 November 1950, entered into force 3 September 1953) [“ECHR”]. [21] Both art 14(3) of the ICCPR and art 6(3)(c) of the ECHR have been construed as encompassing appeals.31 As well, and importantly, the associated jurisprudence suggests that, at least in serious cases, legal aid should not be refused on the basis of a merits assessment. This latter point is illustrated by the judgment of the European Court of Human Rights in Maxwell v The United Kingdom.32 [22] In Maxwell, the applicant had been convicted of a serious assault and sentenced to five years imprisonment. He had not been able to obtain representation for an appeal because counsel who were approached considered that the appeal was without foundation. Under the relevant rules of professional practice, counsel were not permitted to occupy court time with arguments which were known to lack foundation.33 On this basis two counsel declined to act on appeal as did the firms of solicitors who had instructed them. The applicant then instructed a third firm of solicitors to act. They applied for legal aid and, at the request of the Scottish Legal Aid Board, obtained an opinion from counsel who considered that there were no grounds upon which the appeal could be successfully prosecuted. Legal aid was refused despite his solicitors suggesting that he should nonetheless be granted legal aid given the length of his sentence. For this reason he was unrepresented when his appeal was heard and dismissed.34 [23] In concluding that the applicant’s art 6(3)(c) right had been breached as the “interests of justice” had required a grant of legal aid, the Court did not engage with the view that the appeal was meritless. Instead, it seems to have treated the length of the sentence of imprisonment as being of controlling importance:35 The situation in a case such as the present, involving a heavy penalty, where an appellant is left to present his own defence unassisted before the highest instance of appeal, is not in conformity with the requirements of Article 6. 31 For the ECHR, see Richard Clayton and Hugh Tomlinson The Law of Human Rights (2nd ed, Oxford University Press, Oxford, 2009) vol 1 at [11.334] and [11.492]. For the ICCPR see, for instance, Karttunen v Finland (23 October 1992) HRC Comm No 387/1989 at 122 per Bertil Wennergren; and the authorities surveyed by Eichelbaum CJ in Nicholls v Registrar of the Court of Appeal, above n 13, at 402–404. See also the cases discussed at [22]–[25] below. 32 Maxwell v The United Kingdom (1995) 19 EHRR 97 (ECHR). 33 At [20]. 34 See [7]–[14]. 35 At [40].