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Judgment
Date: 09/06/1998 Decision of:
Richardson P
In the Court of Appeal of New Zealand CA120/98
IN THE MATTER of Section 406 of the
Crimes
Act 1961
AND
IN THE MATTER of a referral to the Court of
Appeal
BETWEEN PETER HUGH McGREGOR ELLIS
Applicant
AND THE QUEEN
Respondent
Coram Richardson P, Gault J, Henry J
Hearing 4 June 1998
Counsel J M Ablett Kerr QC, G
J King and S K Barr for Applicant
S P France and M J Thomas for Crown
Judgement 9 June 1998
date:
JUDGMENT
OF THE COURT DELIVERED BY RICHARDSON
P
By Order in Council of 4 May 1998 His Excellency the Administrator of the
Government referred the question of the 13 convictions of Peter Hugh McGregor
Ellis for sexual offences against children to this court.
In June 1993 following a six week trial Mr Ellis was found guilty on 16
counts alleging indecency with young children who attended a crèche at which he
was employed. Following conviction he was sentenced to 10 years imprisonment.
On 8 September 1994 in a judgment reported at 12 CRNZ 172 his appeal against
conviction was allowed in respect of three counts but dismissed as to the
other 13 counts. The appeal against sentence was dismissed
The reference is based on certain developments. Two preliminary matters have
been the particular subject of submission to the court. The first concerns
the scope of the reference. The second is an application for bail.
Section 406 of the Crimes Act 1961 provides:
Nothing in this Act shall affect the prerogative of mercy, but the
Governor-General in Council, on the consideration of any application for the
exercise of the mercy of the Crown having reference to the conviction of any
person by any Court or to the sentence (other than a sentence fixed by law)
passed on any person, may at any time if he thinks fit, whether or not that
person has appealed or had the right to appeal against the conviction or
sentence, either -
(a) Refer the question of the conviction or sentence to the Court of Appeal
or, where the person was convicted or sentenced by a District Court acting in
its summary jurisdiction or under section 28F(2) of the District Courts Act
1947, to the High Court, and the question so referred shall then be heard and
determined by the Court to which it is referred as in the case of an appeal
by that person against conviction or sentence or both, as the case may
require; or
(b) If he desires the assistance of the Court of Appeal on any point arising
in the case with a view to the determination of the application, refer that
point to the Court of Appeal for its opinion thereon, and the Court shall
consider the point so referred and furnish the Governor-General with its opinion
thereon accordingly.
The Order in Council "refers the question of the 13 convictions ... [to
this court] for hearing and determination". The Order in Council
continues: "The background to, and reasons for, the reference appear in
the schedule".
The schedule identifies and gives particulars of three grounds set out in the
application for the exercise of the mercy of the Crown and of a further
ground submitted subsequently. Each of the four grounds is stated to be
"among others". Clearly, His Excellency, having made his executive
assessment, has selected those four grounds out of the various grounds
referred to him as being the grounds requiring consideration by the court.
The first ground is that the methods of obtaining evidence from the child complainants
were flawed and contrasts techniques used in the applicant's case with the
techniques used today. The second is that the recantation of the child, the
subject of the three counts in respect of which the appeal succeeded, was of
greater significance than this court had appreciated. As to both, particular
reference is made to reports by a psychologist which were commissioned by Mr
Ellis. The third ground concerns the impartiality of the jury and refers to
child A's mother working with the partner of one of the jurors. The fourth is
that photographs of the crèche which had been in the possession of the Crown
but were not disclosed to the defence could support the defence that the
sexual abuse alleged to have taken place in the toilet area did not happen
and that there was an innocent explanation for some of the games described in
evidence by some of the children.
Paragraph 10 of the schedule states the reasons for the reference:
(a) That the documents described in clauses 6 and 7 indicate that evidence is
available that could lead the Court of Appeal to the conclusion that a
miscarriage of justice might have occurred because of the techniques used to
obtain the evidence of the child complainants; and
(b) That the documents described in clause 8 indicate that evidence is
available that could lead the Court of Appeal to the conclusion that a
miscarriage of justice might have occurred because, if the trial judge did
not know the nature of the relationship between the juror and her intimate
partner, he would have been unable properly to assess the closeness of the
connection between the juror and the Crown witness; and
(c) That, if the applicant establishes that the photographs described in
clause 9 were not disclosed to his counsel at trial, this could lead the
Court of Appeal to the conclusion that a miscarriage of justice might have
occurred because photographs that the applicant considers would have been
important to the defence were not disclosed to it.
Mrs Ablett Kerr submits that the reference to this court does not restrict
the scope of the argument which is in effect a general appeal on any grounds
available in appeals against conviction under s383. As she put it, the
reference gives her "a foot in the door". She wishes to have full
discovery from the Crown, to engage experts and, on the basis of that
extended consideration of the whole of the case, file points on appeal and
have the material relevant to those points from the trial and appeal record
and any further relevant evidence put before this court at the hearing of the
reference.
Mr France
for the Crown submits that the hearing before this court is restricted to the
matters particularised by His Excellency as grounds and reasons for the
reference.
The predecessor of s406(a) was s17 of the Criminal Appeal Act 1945 which was
based on s19 of the English Criminal Appeal Act 1907. Section 17(a) empowered
the Governor-General to "refer the whole case to the Court of Appeal,
and the case shall then be heard and determined by the Court of Appeal ...".
That was changed to its present narrower formulation in the 1961 statute:
"refer the question of the conviction ... to the Court of Appeal ... and
the question so referred shall then be heard and determined by the court to
which it is referred".
In R v Morgan [1963] NZLR 595, an early reference under the 1961 provision
where the Executive Council had failed to give any particulars when referring
the question of the conviction and sentence of Mr Morgan to the court, the
court said at p595 that "the court will be greatly assisted by being
given information in each case of the considerations which have caused the
Executive Council to refer the matter" to the court. It noted that that
was the view of the Court of Criminal Appeal in England in R v Caborn-Waterfield
[1956] 2 QB 379 where Lord Goddard said at p385:
... this Court desires to say quite definitely that on a reference by the
Home Secretary under s19(a) the Court considers the grounds on which the Home
Secretary has referred the case and confines itself to those grounds. We
cannot go into all sorts of different grounds. If we did, as has been pointed
out, there might be no end to the matter.
In Morgan the court went on to say that it would not treat itself as bound by
the rule of practice restricting the receipt of fresh evidence if there was
any reason to think that to do so might lead to injustice or the appearance
of injustice. But it did not suggest it would consider any matters beyond
those which caused the Executive Counsel to refer the question of the
conviction to the court. And, in considering the application for the
admission of further evidence the court in Morgan said it felt obliged to
assume that sufficient fresh material had been placed before the Executive
Council to justify the reference under s406(a).
R v Morgan is cited in the standard texts and it seems so far as our
researches go that the court has confined the matters for consideration to
the matters specified in the reference from the Governor-General. Thus, in Re
Appelgren (CA 132/94, 9 June 1994) the court by minute of 18 November 1994
recorded that if the foreshadowed re-petition to the Governor-General
"resulted in a widening of the terms of reference to this Court, it
would obviously be necessary for the Court to consider the case in the light
of the widened terms and of the evidence then properly before us".
The functions of the court on the hearing of the reference by the
Attorney-General were described by Crisp J in Aylett v R [1956] Tas SR 74, 81
as follows:
We sit here because, as Jordan CJ pointed out in R v Gunn (No 1) (1942) 43
SR(NSW) 23, an executive decision has been made that the matter should be
dealt with judicially and not administratively. We are not a royal
commission, a court or board of inquiry with a duty to inquire and report but
a judicial tribunal with a duty to hear and determine. Paragraph I of s419 of
the Tasmanian Criminal Code, the section corresponding to the Crimes Act
1958, s584(a) says that the case shall be "determined" by the court
and it will be noted that in all the cases that have been cited it is the
court that has decided the action to be taken on the reference, and it does
so we think judicially and not administratively. In effect, by action of the
executive the matter has been removed to the judicial sphere and there it
stays. It does not return.
And the limitation under s406(a) that the matter be "determined ... as
in the case of an appeal by that person against conviction ... "
requires that the matter be determined by "legal principles appropriate
to an appeal" (R v Ratten (1974) 131 CLR 510, 514; also R v Gunn at p25;
and Allen, Allen and Winter (1910) 5 Crim App R 225, at 226).
Pursuant to s406(a) the Administrator of the Government has referred the
question of the 13 convictions for hearing and determination, four grounds
being specified and the reasons for the reference being confined to those
grounds. Clearly the intention is to confine the question of the convictions,
as referred, to the impact of those matters on the convictions. The language,
scheme and purpose of s406(a) neither requires nor entitles the court to go
beyond the matters identified which in effect become the points of appeal.
As it happens R v Caborn-Waterfield referred to in R v Morgan was overruled by
the House of Lords in R v Chard [1984] AC 279. But that was because in terms
of the English statutes "the whole case" was referred to the court.
The Criminal Appeal Rules 1908 also provided that in such a case the
petitioner was deemed to be for all the purposes of the Act or the Rules a
person who had obtained leave from the Court of Appeal to appeal. Referring
to Australian and English authority, Toohey and Gaudron JJ in Mickelbury v
The Queen (1989) 167 CLR 259, 311 noted that it had been said, as a matter of
practice, matters considered in a reference may be confined to those in the
petition or the reference itself. Finally, in R v Gorecki (No 2) (1976) 32
CCC (2nd) 135, 144 a 5 Judge court of the Ontario Court of Appeal noted that,
where a reference is directed after a prior appeal on other issues has
failed, the court will confine itself to the ground on which the Minister has
referred the case.
Even if not compelled by the language of s406(a) we are satisfied that,
comformably with the legislative policy underlying the provision and with the
course adopted in this country since Morgan, as a matter of practice the
hearing and determination of references under s406(a) should be confined to
the matters raised in the reference.
Mrs Ablett Kerr indicated that if the hearing were to be confined to the four
matters particularised in the Order in Council she would seek to have the
reference widened. That is of course a matter for Mr Ellis and his advisers.
We should emphasise, however, that any wider reference would obviously
respect the role of an appellate court and would not include matters more
appropriate for consideration by a commission of inquiry.
We turn to the application for bail. Section 397 provides for the granting of
bail pending an appeal. Subsection (2) empowers the trial Judge or this court
"on the application of an appellant and on such terms and subject to
such conditions as the court or Judge thinks fit, [to] grant bail to the
appellant pending the determination of his appeal". Subsection (4)
applies those provisions to any persons whose conviction is the subject of a
case stated. But there is no similar express extension to references under
s406 and a reference is not an appeal as such. However, s406(a) provides for
the hearing by the court to be "as in the case of an appeal by that
person against conviction" and in Collie v R [1997] 3 NZLR 653, 666 the
court held, giving those words the fair, large and liberal interpretation
required by s5(j) of the Acts Interpretation Act 1924, that on a reference
under s406(a) the court had access to all incidental statutory provisions to
which it could have recourse in dealing with an appeal originating under
s383. Collie concerned the application to a reference of the sentencing
powers under s386 but, conformably with the purposes of s406 and with the New
Zealand Bill of Rights Act 1990, there could be no reason for taking a
narrower view in relation to bail and refusing to apply s397. Further, in at
least two references the court has assumed jurisdiction to grant bail: Re
Appelgren (CA 132/94, judgment 9 June 1994) and Re Farmer [1991] 3 NZLR 450.
In Appelgren the court said that in essence it was an application for bail
pending appeal in a criminal case; that such applications are granted only in
unusual circumstances; and that in the case as it presently stood there were
not sufficiently strong grounds to justify the granting of bail. In Farmer
where the Order in Council was made on 10 December 1990 and the substantive
hearing could not take place before February 1991 yet the applicant was due
for release in April 1991, bail was granted on 14 December "so that he
would not be prejudiced by the pendency of the vacation".
Mrs Ablett Kerr submitted that an application for bail should be treated
differently from an application by a first time appellant. Her submission was
that the court was on notice that a miscarriage of justice might have
occurred and accordingly the court should be readier to grant bail than in
the case of an appeal under s383. On the other hand it may be said that the
applicant has already had his or her general appeal dismissed. The crucial
and common feature is that the applicant for bail is a convicted person
serving his or her sentence. We see no justification for applying different
tests under the same bail provision, s397.
The principles are well settled. Moananui v R (1984) 1 CRNZ 231 is the
leading reported case. Admission to bail pending appeal is unusual and only
to be granted in exceptional circumstances. The concern is for the overall
interests of justice. The starting point is that the applicant has been found
guilty and sentenced. Two further factors for special consideration are the
apparent strength of the appeal and the element of delay causing injustice.
As to the first, the court in Moananui accepted that the applicant had an
arguable case on the points intended to be advanced in the appeal but
concluded that none of them pointed overwhelmingly to the ultimate success of
the appeal. As to the second, what has to be weighed along with the length of
the sentence is any previous delays in dealing with the appeal and the
prospective delay in bringing it to finality.
The first factor is the apparent strength of the grounds of appeal. Clearly
it is undesirable for the court to comment on the issues arising in a pending
hearing where much may turn on evidence to be adduced and weighed along in
some respects with evidence given at the trial. Here, it is not palpably
obvious that the grounds particularised in the reference will be established
and will necessarily be such as to lead to the quashing of the convictions. A
complicating feature is that it is premature to consider what as yet
unspecified further grounds might be included in a widened reference arising
from a further application to the Governor-General.
The second factor is the necessary delay in bringing the reference to
finality. The court could give a fixture in August. With appropriate
timetabling the Crown could accept a fixture in August for the hearing and
determination of the present reference. Mrs Ablett Kerr requires time to
consider what further points should be raised and to seek widened terms of
reference. She suggests a November fixture could be aimed for. As noted
earlier, she is seeking full discovery of a range of material from the Crown.
She intends to engage expert witnesses and she will need time to assess the
position. Any request for widening the terms of reference will require
consideration and determination by His Excellency the Governor-General. Regrettably,
there is so much present uncertainty as to what Mr Ellis will ultimately put
in issue and when that will be resolved that we cannot confidently predict
when a fixture could be set and when the substantive hearing would take
place.
There are two further matters relating to bail. First, Mrs Ablett Kerr
advanced as a ground for granting bail the need for Mr Ellis to assist
counsel in preparing the case. The application proposes that Mr Ellis should
live in Dunedin
and reside there with his brother. Given the present terms of reference we
are unable to give significant weight to that argument.
Second, Mr France
submitted that the bail application necessarily raises issues of public
safety bearing on Mr Ellis's release into the community and conditions of
bail. While Mr Ellis asserts his innocence, the existence of the convictions
requires the court to assess the risk to the public if he is released on
bail. There is a paucity of information before the court. On 13 February 1998
Mr Ellis became eligible to be considered for parole. He states in his
affidavit that he declined the invitation to appear before the Parole Board
because he felt that any release by the Board would have to be on the basis
that he was a guilty man. The result is that the Parole Board has not been
called on to make its assessment and to determine what if any conditions to
set if granting parole. The actual position as regards parole, which is
relevant to the question of bail, is unclear. If parole were considered
appropriate, the availability of release from custody on suitable terms may
render concurrent bail inappropriate. If parole were considered
inappropriate, the reasons for that could be appropriate reasons for refusing
bail.
In this case as it presently stands we are not persuaded that bail should be
granted. The position could change in various respects warranting a further
application but we are not to be taken as indicating any view as to the
likelihood of success of a future application.
The application for bail is dismissed.
Solicitors
D A Wood, Christchurch,
for applicant
Crown Law Office, Wellington
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