DRAFT
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF
COMPLAINANT PROHIBITED BY S 139 OF THE CRMIINAL JUSTICE
ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA250/2010
[2013] NZCA 513
BETWEEN
LARRY GORDON CANT
Appellant
AND
THE QUEEN
Respondent
Hearing:
1 August 2013
Court:
Harrison, Panckhurst and Ronald Young JJ
Counsel:
Appellant in person, assisted by M V Lyttelton as McKenzie
Friend
M F Laracy for Respondent
M S Gibson as Counsel assisting the Court on sentence appeal
Judgment:
23 October 2013 at 10.30 am
JUDGMENT OF THE COURT
A
The appeal against conviction and sentence is dismissed.
B
The Registry is directed not to receive any further documents from the
appellant or his McKenzie Friend relating to this appeal without the
leave of a Judge.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
CANT V R CA250/2010 [2013] NZCA 513 [23 October 2013]
Table of Contents
Introduction
Conviction
Facts
Grounds of appeal
(a) Legal representation
(b) Evidence of the complainant’s previous sexual experience
(c) Prosecutorial misconduct
(d) The Judge’s Papadopoulos direction
(e) DNA evidence
(f) General
Sentence
Result
[1]
[8]
[8]
[11]
[11]
[47]
[56]
[60]
[65]
[71]
[73]
[92]
Introduction
[1]
In February 2009 Larry Cant was found guilty following a trial before
Judge Gittos and a jury in the District Court at Auckland on a charge of assault with
intent to commit sexual violation. He was convicted and sent to the High Court for
sentence. The sentencing process was delayed. On 29 April 2010, before he was
sentenced, Mr Cant filed a notice of appeal in this Court against his conviction “and
any sentence that might be imposed”.
[2]
On 20 May 2010 Hugh Williams J sentenced Mr Cant to a term of preventive
detention with a minimum period of imprisonment of six and a half years.1
[3]
Mr Cant was represented successively by three different counsel in the
District Court. He dismissed the services of each one. As a result the process to trial
was delayed. Mr Cant represented himself at the trial with the assistance of counsel
assisting the Court, Lester Cordwell, and of Martin Lyttelton as McKenzie Friend.
At sentencing in the High Court he was represented by Geoffrey Wells. On appeal to
this Court he was successively represented by Howard Lawry, Graeme Newell and
Paul Paino before electing to represent himself. Mr Lyttelton has remained as his
McKenzie Friend.
1
R v Cant HC Auckland CRI-2006-004-26731, 20 May 2010.
[4]
The progress of Mr Cant’s appeal to hearing has also been considerably
delayed. Among other things, he has filed interlocutory applications which have
been the subject of two judgments, delivered on 30 October 2012 and 23 July 2013
respectively.2 It has also been necessary for Judges of this Court to make frequent
and extensive timetabling directions. The relevant steps taken in this Court since
Mr Cant’s appeal was filed are summarised in a chronological schedule incorporated
in this judgment.
[5]
It is not inappropriate to observe that the demands Mr Cant has made on the
resources of all three Courts are exceptional, especially when considered in the
context of a factually compact allegation of offending without any distinctive legal
complexities.
[6]
Also incorporated in this judgment is the full text of an email sent to the
Registry on 30 July 2013 by Mr Lyttelton, advising in summary that Mr Cant wished
his appeal to be determined on the papers only without oral argument. The email
was read to Mr Cant when the appeal was called on 1 August 2013. He confirmed
that it accurately represented his instructions. In the result, neither Mr Cant nor
Ms Laracy for the Crown nor Mr Gibson as counsel assisting the Court addressed us
in argument.
[7]
Mr Cant did register his objection to us determining his sentence appeal. He
says that his appeal was limited to conviction. However, we are satisfied that
Mr Cant has also appealed against his sentence. Accordingly we shall determine
both appeals.
2
R v Cant HC Auckland CRI-2006-004-26731, 30 October 2012 and R v Cant HC Auckland
CRI-2006-004-26731, 23 July 2013.
Conviction
Facts
[8]
The relevant facts which the Crown alleges constituted Mr Cant’s offending
fall within a brief compass and were summarised in this Court’s first interlocutory
decision3 as follows:
[4]
The Crown at trial alleged that the complainant left a central city
Auckland bar early in the morning of 13 December 2006. [Mr Cant], who
was seated nearby, followed the complainant as she walked home. As she
was walking along Mayoral Drive she was attacked by [Mr Cant] who
pushed her into a garden, placed a hand around her throat and one on her
knee. He kissed her and tried to undo the top button of her jeans. He then
fondled her breasts on the outside of her clothing and tried to put his hands
down her jeans. The complainant’s evidence was that [Mr Cant] said he
wanted to have sex with her.
[5]
Two passersby heard the complainant yelling. They went to
intervene and [Mr Cant] then ran away. An immediate complaint to the
police was made. Some 16 days later the complainant coincidentally saw
[Mr Cant]. She told the police and [Mr Cant] was arrested. [Mr Cant] told
the police that they had arrested the wrong person.
[6]
There were difficulties with [Mr Cant’s] representation before and at
trial and eventually [Mr Cant] represented himself during the trial. An
amicus curiae was appointed to assist him.
[7]
In his opening statement to the jury [Mr Cant] said that he had been
with the complainant at Mayoral Drive (contrary to his police statement).
However, he said the complainant who was a Brazilian national had targeted
him to lay a false complaint because she wanted to stay in New Zealand. In
cross-examination of the complainant it was suggested that she had assaulted
[Mr Cant] and had demanded drugs and money.
[8]
[9]
[Mr Cant] did not give evidence at trial.
In the same decision this Court identified the grounds raised by Mr Cant as
follows:4
... legal representation at trial; evidence of the complainant’s previous sexual
experience; an allegation the Crown prosecutor at trial breached s 33 of the
Evidence Act 2006; the circumstances of a Papadopoulos direction by the
trial Judge; and a challenge to the DNA evidence.
3
4
Cant v R [2012] NZCA 494.
At [2] (footnote omitted).
[10]
Mr Cant’s grounds have remained substantially the same throughout the
hearing of his appeal, as this Court noted in its second interlocutory decision.5 Our
reading of Mr Cant’s latest memorandum of submissions, prepared by Mr Lyttelton
and running to 85 pages, conforms with both of this Court’s previous assessments.
Accordingly, we shall address each of his grounds in the same order together with an
additional ground which permeates all his submissions. He asserts misconduct by all
other participants in the trial process including the police, the prosecutor, his former
counsel, counsel assisting the Court and the Judge. All are subject to a generic
allegation of conspiracy.
Grounds of appeal
(a)
Legal representation
[11]
Mr Cant’s primary ground of appeal raises a variety of allegations falling
within the head of a denial of legal representation, leading to an unfair trial. Its
source is the trial Judge’s decision on 2 February 2009, the day of commencement of
trial, granting leave to Matthew Dixon, Mr Cant’s then counsel, to withdraw and
refusing to adjourn the trial. This factor is said to support an allegation that the
Judge breached Mr Cant’s rights to legal representation deriving from s 24 of the
New Zealand Bill of Rights Act 1990 (the NZBORA) and s 30 of the Sentencing Act
2002. Included within this ground are allegations of perjury by the complainant and
improper conduct by Mr Dixon and counsel assisting the Court.
[12]
We have had access to the full transcripts of chambers conferences between
the Judge and counsel which included Mr Cant. In his capacity as counsel assisting
the Court on the sentence appeal, Mr Gibson has also provided helpful submissions
on this issue.
[13]
On 2 February 2009 Mr Dixon advised the Court at a conference that late in
the preceding week he had communicated to Mr Cant his intention to seek leave to
withdraw. Mr Dixon’s advice was generated by a threat of physical violence made
by Mr Cant at the end of a telephone discussion. In answer to questions from the
5
Cant v R [2013] NZCA 321 at [4].
Judge, Mr Cant admitted that he had threatened to punch Mr Dixon in the face. He
also disclosed that he had engaged Mr Lyttelton’s services as McKenzie Friend.
[14]
A threat of physical violence from a client to his lawyer represents a fatal
intrusion upon the professional relationship. It would justify without more granting
counsel’s application for leave to withdraw because it undermines the essential
element of mutual confidence. Its importance is magnified where the client faces
trial on a serious criminal charge. Nevertheless, the Judge attempted to persuade
Mr Dixon to remain as counsel.
[15]
The conference on 2 February was adjourned to allow all concerned to
explore compromises. When the conference resumed later that morning Mr Dixon
was granted leave to withdraw, Mr Cordwell’s appointment was confirmed and
Mr Lyttelton was allowed to appear as Mr Cant’s McKenzie Friend. Judge Gittos
then delivered the written caution required under s 364 of the Crimes Act 1961 to be
given to a self-represented litigant.
[16]
The transcript leaves us in no doubt that Mr Cant freely acquiesced in this
course. We emphasise that conclusion given Mr Cant’s sustained submission that the
Judge somehow deceived him into acquiescing when throughout he wished to have
legal representation at trial.
Mr Cant’s submission ignores among other
contradictory contemporaneous evidence his own memorandum filed in the District
Court on 29 January 2009, a few days earlier. In it he advised that “I am happy to
proceed to trial acting in my own defence supported by a McKenzie Friend”.
[17]
Judge Gittos’ decisions on 2 February 2009 were made against a history of
Mr Cant’s disagreements with his assigned counsel.
Earlier he had dismissed
Peter Kaye and Geoffrey Wells at a total cost to the Legal Services Agency of over
$21,900. Mr Wells was granted leave to withdraw on 19 November 2008. On
Mr Cant’s own account, he dismissed Mr Wells because the latter acceded to a
Crown request relating to Mr Cant’s provision of a DNA sample. This episode is
symptomatic of Mr Cant’s mistaken but nevertheless trenchantly held views about
how his defence should be conducted. The DNA dispute was irrelevant because
identity was not an issue. At trial a few months later Mr Cant expressly affirmed his
presence with the complainant during the altercation.
[18]
Mr Dixon was then assigned. At a pre-trial conference on 8 December 2008
Judge Perkins warned Mr Cant that he would be obliged to conduct his own defence
if he had disagreements with Mr Dixon. Mr Cant was then on unequivocal notice
that the trial would proceed regardless of any further difficulties with his assigned
counsel.
[19]
It should also be noted that on or about 29 January 2009 Judge Gittos had
requested Mr Cordwell to familiarise himself with Mr Cant’s files. Mr Dixon made
his own files immediately available to Mr Cordwell. By 2 February Mr Cordwell
was apparently confident that he was sufficiently familiar with the facts to be able to
properly discharge his brief. So was the Judge. Also, Mr Cant’s own statements at
the conferences on 2 February disclose his full familiarity with all the circumstances
including his extensive files and documents prepared for the trial which he had
disclosed to Mr Lyttelton.
[20]
In these circumstances, against the history of Mr Cant’s broken relationships
with lawyers appointed to represent him and the fact that the complainant was a
foreign national who was in New Zealand to give evidence at the trial, Judge Gittos’
decision to grant Mr Dixon leave to withdraw and his refusal to adjourn was
inevitable.
[21]
Mr Cant’s submission that he was deprived of his right to a fair trial must be
considered against this background. First, he relies on s 30 of the Sentencing Act
which materially provides:
30
No sentence of imprisonment to be imposed without opportunity
for legal representation
(1)
No court may impose a sentence of imprisonment on an offender
who has not been legally represented at the stage of the proceedings
at which the offender was at risk of conviction, except as provided in
subsection (2).
(2)
Subsection (1) does not apply if the court is satisfied that the
offender—
(3)
(4)
[22]
(a)
was informed of his or her rights relating to legal
representation, including, where appropriate, the right to
apply for legal aid under the Legal Services Act 2000; and
(b)
fully understood those rights; and
(c)
had the opportunity to exercise those rights; and
(d)
refused or failed to exercise those rights, or engaged counsel
but subsequently dismissed him or her.
If, on any appeal against sentence, a court finds that a sentence was
imposed in contravention of subsection (1), the court must either—
(a)
quash the sentence imposed and impose in substitution for it
any other lawful sentence that the court thinks ought to have
been imposed; or
(b)
quash the conviction and direct a new trial, or make any
other order that justice requires.
For the purposes of this section, an offender refuses or fails to
exercise his or her rights relating to legal representation if the
offender—
(a)
refuses or fails to apply for legal aid under the Legal
Services Act 2000 or applies for it unsuccessfully; and
(b)
refuses or fails to engage counsel by other means.
In R v Condon6 the Supreme Court comprehensively reviewed this provision
and its history. As that decision illustrates, the inquiry into an allegation of breach is
of a quintessentially factual nature. By reference to the s 30(2) criteria it is beyond
question that (a) Mr Cant was informed of his rights relating to legal representation
including the right to apply for legal aid – Mr Cant had been the beneficiary of three
separate grants of legal aid before Mr Dixon was granted leave to withdraw;
(b) Mr Cant fully understood those rights – as confirmed by his conduct in applying
for legal aid; (c) self-evidently, he had the opportunity to exercise those rights; and
(d) he had engaged counsel but subsequently dismissed them – his own affidavits
confirm his dismissal of Messrs Kaye and Wells, and his threat of physical violence
to Mr Dixon amounted to a constructive dismissal.
[23]
There was no breach of s 30(2): the High Court’s jurisdiction to impose a
sentence of imprisonment on Mr Cant was satisfied.
6
R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.
[24]
Second, Mr Cant submits that the absence of an assigned defence counsel
amounted to a breach of either (a) his rights under s 24(c),(d) and (f) of the
NZBORA to consult and instruct a lawyer, to adequate time and facilities to prepare
a defence and receive legal assistance without cost if the interests so require; or
(b) his guaranteed right of a fair trial under s 25(a).
[25]
On these rights, and their relationship with s 30 of the Sentencing Act, the
Supreme Court said this in Condon:
[79]
So the appropriate question in a case like the present is whether the
accused’s lack of the proper opportunity to have legal representation made or
contributed to making the trial, looked at as a whole, unfair so that there has
been a substantial miscarriage of justice. In our view, the High Court of
Australia in Dietrich was right to conclude that in the great majority of
cases, that is, other than in exceptional circumstances, an accused who
conducts his or her own defence to a serious charge, without having declined
or failed to exercise the right to legal representation, will not have had a fair
trial. That is the reason why s 30 of the Sentencing Act exists, with its
policy of ensuring that those facing imprisonment if convicted are afforded
the opportunity of being represented by a lawyer. Where, in the absence of
waiver or forfeiture as explicitly contemplated by Parliament in subss (2)
and (4) of s 30 of the Sentencing Act, legal counsel was not available at trial
there will have been a breach of one or more of the subsidiary rights in s 24
of the Bill of Rights and prima facie an unfair trial will have resulted from
that breach. The conviction will then be quashed unless the Crown is able to
satisfy the appeal Court that the trial was actually fair in terms of s 25(a).
The conclusion that the trial was fair is not one to which a Court will easily
be drawn.
[80]
In contrast, if the accused makes an informed choice to go to trial
without a lawyer, or is rightly refused legal aid, or by conduct creates a
situation in which, on a proper balancing of the various interests, further
delay in the holding of the trial is not to be tolerated, there will have been no
breach of the s 24 rights. But even in such circumstances an appeal Court
must still examine the overall fairness of the trial, as was done in the New
Zealand cases cited earlier, because the right to a fair trial cannot be
compromised – an accused is not validly convicted if the trial is for any
reason unfair. If there has been no breach of the appellant’s right to
representation, because the trial Court was properly “satisfied” in terms of
s 30(2) of the Sentencing Act, the conviction will not be set aside unless the
appellant can persuade the Court that the trial was unfair because the defence
could not, in the particular case, have been adequately conducted without the
assistance of counsel. In some circumstances the manner in which the
accused through his or her own choice or conduct came to be unrepresented
may be relevant to the assessment of fairness. It is unnecessary to say more
about that in the present case.
[26]
Mr Cant’s own evidence satisfies us that he made an informed choice to go to
trial without a lawyer. A deliberate election to be self-represented is to be respected.
There must be a realistic limit to the extent to which Courts are required to protect
defendants from the consequences of their own decisions.7 Judicial resources are
finite. So is the capacity of the legal system to make continual allowances for a
party whose determination to conduct his defence according to his own dictates
inevitably excludes the responsible participation of counsel.
[27]
As Ms Laracy submits, it would be invidious if Mr Cant, with full knowledge
of the inevitable consequences, was able to take advantage of his own actions in
constructively dismissing his assigned counsel by threats of physical violence. He
cannot manipulate the trial process by setting up his own misconduct to argue that
the Judge’s consequential refusal to grant an adjournment deprived him of his own
rights.8 It was plain that a further delay in commencing the trial would not be
tolerated. Mr Cant’s attempts to divert responsibility for this result in the process are
unsustainable. He alone is responsible.
[28]
Logically, our conclusion that there has been no breach of Mr Cant’s right to
legal representation should answer this ground of appeal. However, in Condon the
Supreme Court contemplated the residual possibility that a defendant might
nevertheless establish that his trial was unfair because his defence could not in a
particular case have been adequately conducted without counsel’s assistance.
Application of the Court’s statement in this case is not without its practical
difficulties. A degree of circularity is necessarily introduced into the inquiry by
Mr Cant’s implacable attitude about how his defence should be conducted, making it
impossible for any counsel to discharge his or her professional duties. The interests
of justice would not be served by allowing him to rely on that factor to say his trial
was unfair.
[29]
In Condon, the Court did accept that the circumstances leading to the
defendant’s choice of self-representation and his conduct may be relevant to an
assessment of fairness.
On our assessment these circumstances are decisive in
rejecting Mr Cant’s claim of unfairness.
7
8
R v McFarland [2007] NZCA 449.
R v Ulcay [2007] EWCA Crim 2379, [2008] 1 WLR 1209 at [24], applied in R v Chatha [2008]
NZCA 547 at [123].
[30]
However, it is necessary for us to go further at this stage. A number of
reasons require that course. While we are satisfied that Mr Cant’s decision to be
self-represented absolves us from a wider inquiry into the fairness of trial, caution
suggests that we should take that step.
[31]
In Condon the Court presumably had in mind the rare type of case where a
defendant’s personal circumstances, such as an intellectual disability, leading to the
election of self-representation, deprived him or her of the ability to take fundamental
steps like conducting cross-examination or making submissions. And the Court’s
statement does not appear to require a detailed investigation into whether the actual
conduct of the defence was adequate; rather the inquiry is into whether, in the
particular circumstances, the defence could have been adequately conducted without
counsel.
[32]
The one obvious impediment to Mr Cant’s adequate conduct of his own
defence to a charge of assault with intent to commit sexual violation was the
statutory prohibition upon a defendant in a sexual case from personally
cross-examining the complainant.9 Judge Gittos’ appointment of Mr Cordwell to act
as counsel assisting the Court was obviously designed to alleviate any resulting
prejudice to Mr Cant. This judicial practice has become particularly common in
sexual cases since Condon. As this Court said in R v McFarland:10
[55]
The role of an amicus varies with context. Where an amicus is
appointed in a criminal case it is accepted that he or she may act in a partisan
way, in the sense that he or she may present the arguments that a party
would normally present – see the discussion in Solicitor-General v Miss
Alice [2007] 1 NZLR 655 at [17]-[18] (CA).
[33]
Mr Cordwell’s appointment was sufficient to negate any suggestion that
Mr Cant’s defence could not have been adequately conducted without counsel’s
assistance. The complainant’s evidence was critical to proof of the charge. Equally
critically, Mr Cant’s defence required an opportunity to challenge her credibility or
reliability or both.
By allowing Mr Cordwell to adopt a partisan stance in
cross-examining the complainant, and testing all elements of her account, the Judge
9
10
Evidence Act 2006, s 95.
R v McFarland, above n 7.
was effectively ensuring that Mr Cant’s interests were fairly and competently
represented.
[34]
This conclusion should end our residual inquiry. However, an analysis of
Mr Cordwell’s performance is necessary to address Mr Cant’s sustained allegations
against him of impropriety or incompetence. In the same context we will address
Mr Cant’s continual but misplaced emphasis on the complainant’s immigration status
and the credibility of her account.
[35]
Mr Cordwell’s performance cannot be faulted. His partisan cross-examination
of the complainant was lengthy, thorough and testing. Its nature, structure and
content reflect Mr Cant’s express instructions. Mr Cordwell put both the essence
and detail of Mr Cant’s conflicting account to her.
His questions also reflect
Mr Cant’s insistence upon a detailed examination of the complainant’s immigration
status. On Mr Cant’s thesis, the complainant made a false complaint against him,
motivated by a desire to obtain an immigration advantage to enable her to stay in
New Zealand.11
[36]
The Judge allowed Mr Cordwell considerable latitude in questioning the
complainant on this issue despite the prosecutor’s objections. She freely admitted
that she was in New Zealand illegally on 13 December 2006, the time of the alleged
offending. Her tourist visa had expired in May 2006. However, her immigration
status bore no relevance to the issue of whether Mr Cant assaulted her with intent to
commit sexual violation.
At best, evidence that she may have misled the
Immigration Department at some stage might have had peripheral relevance to her
credibility.
[37]
The complainant’s true immigration status was summarised in this Court’s
first interlocutory decision as follows:
[13]
The complainant in this case was a Brazilian citizen who had come
to live in New Zealand. At the time of the assault she was illegally in New
Zealand. After the assault and before [Mr Cant’s] trial Immigration New
Zealand proposed to remove her. There was a delay in removal so that she
could give evidence at trial. [Mr Cant] was aware of this at trial. As it
11
Cant v R, above n 3, at [17].
turned out the complainant was absent from New Zealand, on holiday, at the
time the trial was to commence. There had been a number of delays and
changes of trial dates. The Ministry of Justice paid for the complainant to
return to New Zealand to give evidence and then for her to return to her
holiday destination.
[38]
Mr Cordwell carefully questioned the complainant on all the circumstances
leading to the alleged assault. His apparent purpose was to establish doubt and
uncertainty in her account. He directly confronted her with a proposition which he
expressly attributed to Mr Cant that she was not telling the truth.
[39]
In particular, Mr Cordwell set the scene for Mr Cant’s denial by asserting to
the complainant that some two days before the alleged assault she had purchased
methamphetamine from a man named Lance; while she was involved in this
transaction she looked across the street and saw Mr Cant whom she knew was
Lance’s associate; the next night she went to the Globe Bar where she also saw
Mr Cant and asked him to supply her with methamphetamine in exchange for sex or
cash (to which question she replied “for how long do I have to put up with this
humiliation”); on the night of the assault she saw Mr Cant on the street and asked
him whether he was smoking marijuana; the two of them then walked together
towards Mayoral Drive in the direction of her apartment where she was to get money
to buy the methamphetamine; at the bus stop on Mayoral Drive she started
demanding his drugs and money (after she had already taken his cell phone); he
reacted to her attempts to rob him, leading to a scuffle; and Mr Cant left when three
Asian men intervened.
[40]
The complainant not only denied all these propositions. She also rejected
Mr Cordwell’s concluding suggestion that the only reason for the physical altercation
was Mr Cant’s unsuccessful attempt to stop the complainant from stealing his drugs
and money; and that she fabricated her complaint to avoid her removal as an
overstayer in New Zealand.
[41]
What emerges from this careful exchange is Mr Cant’s unequivocal
admission that he participated in the altercation with the complainant.
That
admission was at the heart of his defence that she was the aggressor (its
inconsistency with his denial of any participation when interviewed by the police
would not have assisted his cause). It formed the foundation for his thesis of a
fabricated complaint; it also underpinned his own cross-examination of other Crown
witnesses. And, most significantly, it reduced the scope of the jury’s enquiry to two
discrete factual issues. First, was it Mr Cant or the complainant who initiated the
assault? Second, if it was Mr Cant, was he acting with intent to commit sexual
violation?
[42]
Despite the factually confined nature of these issues, the trial ran for 19 days.
Largely as a result of Mr Cant’s cross-examination, and Mr Cordwell’s
cross-examination of the complainant on his behalf, the evidence strayed into issues
of no relevance whatsoever to the two primary issues. The Crown called more than
20 witnesses. The evidential transcript ran to 425 pages.
[43]
Mr Cant’s election not to give evidence in his own defence followed a
lengthy conference with the Judge, counsel and Mr Lyttelton.
Mr Cordwell
expressed his concern at this prospect. That was because in cross-examination
Mr Cant had put to witnesses various propositions based on his own version of
events; once denied they would carry no evidential weight for the jury.
The
conference concluded with the Judge’s unsuccessful attempt to persuade Mr Cant to
go into the witness box.
[44]
Mr Cant called a private investigator, Michael Campbell, and four other
witnesses. One of them, Ye Fang Le, a witness to the physical altercation,
incriminated Mr Cant. He described how he saw the complainant lying on her back
on the ground and Mr Cant “us[ing] a hand to hold her neck”. Otherwise the
evidence of his witnesses seemed irrelevant.
[45]
In Condon the Supreme Court identified a number of factors to be taken into
account when determining whether the trial of a self-represented defendant was
fair.12 As this Court has previously observed, that enquiry must be undertaken
against the background of Mr Cant’s decision to represent himself; indeed, for the
reasons earlier given, it is questionable whether the Condon factors apply.13
12
13
At [82].
R v Chatha, above n 8, at [124].
However, against the prospect that this appeal may go further, we record our
satisfaction that:
(a)
Judge Gittos presided over the trial in a careful, fair and at times very
generous way to Mr Cant, explaining throughout to him the Court’s
procedures and the rules of evidence, addressing the jury on
Mr Cant’s behalf and summing up the case with appropriate balance
and detail. He dealt patiently with the many unnecessary interruptions
caused to the trial by Mr Cant’s conduct and questions.
(b)
Mr Cant had the benefit of guidance from Mr Cordwell as counsel
assisting the Court. His performance as counsel assisting the Court
was
faultless.
His
adoption
of
a
partisan
approach
in
cross-examination of the complainant negated any prejudice arising
from Mr Cant’s self-representation. Mr Cant also had a McKenzie
Friend throughout.
(c)
Mr Cant’s personal characteristics and conduct obviously presented a
challenge to the Judge and counsel. Nevertheless, he plainly insisted
on taking control of his own defence (except in cross-examination of
the complainant). His questions were reasonably articulated, even if
discursive and at times self incriminating, and demonstrated a general
familiarity with the process.
(d)
The case did not involve any difficult legal issues or factual
complexities which might have especially benefited from analysis by
a trained legal mind other than that of counsel assisting the Court.
(e)
The Crown case depended substantially upon the jury’s acceptance of
the complainant’s account. Mr Cant’s defence was conveyed very
forcibly by Mr Cordwell in cross-examination and by Mr Cant in
questioning other prosecution witnesses.
[46]
Having reviewed relevant passages of the evidence, the extensive record of
the Judge’s conferences with Mr Cant and counsel and the submissions made to the
jury, we are in no doubt that the trial was fairly conducted and there was no
miscarriage of justice.
(b)
Evidence of the complainant’s previous sexual experience
[47]
In considering Mr Cant’s ground of appeal that Judge Gittos wrongly refused
leave to lead evidence about the complainant’s alleged occupation in December 2006
as a sex worker, it is important to bear in mind the unequivocal terms of s 44 of the
Evidence Act which provides:
44 Evidence of sexual experience of complainants in sexual cases
(1) In a sexual case, no evidence can be given and no question can be put to
a witness relating directly or indirectly to the sexual experience of the
complainant with any person other than the defendant, except with the
permission of the Judge.
(2) In a sexual case, no evidence can be given and no question can be put to
a witness that relates directly or indirectly to the reputation of the
complainant in sexual matters.
(3) In an application for permission under subsection (1), the Judge must
not grant permission unless satisfied that the evidence or question is of
such direct relevance to facts in issue in the proceeding, or the issue of
the appropriate sentence, that it would be contrary to the interests of
justice to exclude it.
(4) The permission of the Judge is not required to rebut or contradict
evidence given under subsection (1).
(5) In a sexual case in which the defendant is charged as a party and cannot
be convicted unless it is shown that another person committed a sexual
offence against the complainant, subsection (1) does not apply to any
evidence given, or any question put, that relates directly or indirectly to
the sexual experience of the complainant with that other person.
(6) This section does not authorise evidence to be given or any question to
be put that could not be given or put apart from this section.
[48]
In the District Court Mr Cant asserted that evidence of the complainant’s
work as a sex worker would show she had lied to the immigration authorities about
her work status. As a result, she had breached an essential term of her permit to
remain in New Zealand. Judge Gittos was right to reject this argument which is not
pursued on appeal.
[49]
Mr Cant’s argument in this Court is different. At considerable length, he
submits that Judge Gittos erred on a ground which was not raised before him.
Mr Cant’s essential thesis is this: a sex worker is more likely to be walking the
streets of Auckland in the early morning hours than a short term visitor who is acting
lawfully; and sex workers are also more likely than others to use drugs and offer sex
in exchange. He seeks to rely upon an affidavit sworn by a man who was general
manager of a gentlemen’s club in Auckland.
He deposes that the complainant
worked there as a sex worker in 2005 and 2006. Whether that assertion is factually
correct is irrelevant.
[50]
The prohibition on adducing evidence of a complainant’s sexual experience is
subject to a tightly circumscribed exception. The trial Judge is not allowed to grant
permission unless satisfied that the evidence is of such direct relevance to “facts in
issue in the proceeding” that its exclusion would be contrary to the interests of
justice. Self-evidently, this test sets a high threshold.
[51]
As we have observed, in terms of s 44(3) there were two primary “facts in
issue”. The first was whether it was Mr Cant, rather than the complainant, who was
the assailant. Mr Cant’s argument on this element of the case is directed towards the
complainant’s motivation. But at trial Mr Cant through Mr Cordwell was able to
explore, in detail and forcefully, an allegation that the complainant dealt in drugs or
offered him sex in exchange. She denied that allegation.
[52]
The fact that the complainant may have been a sex worker could not possibly
advance Mr Cant’s allegation. A generalised claim that sex workers may be more
likely than non sex workers to use drugs or offer sex in exchange for drugs is of no
probative value. It is nothing more than an assertion of an occupational reputation.
There was no evidence that the complainant was a drug user.
[53]
Mr Cant’s fundamental obstacle on appeal is that without hearing his account
the jury had no contradictory evidential basis for rejecting the complainant’s denial
of his assertion that she was a drug user who offered him sex in exchange for drugs.
Mr Cant’s assumption that his allegations somehow constitute evidence is misplaced.
Moreover, as we have noted, Mr Cant himself led incriminating evidence from an
eye witness that he assaulted the complainant. There was no tenable factual link
whatsoever between the complainant’s previous sexual experience and the
circumstances of Mr Cant’s alleged assault upon her.
[54]
The second relevant fact in issue was whether Mr Cant assaulted the
complainant with intent to commit sexual violation. The inquiry into that issue
related solely to Mr Cant’s state of mind. There was no question of consent. The
complainant’s previous sexual experience again was of no relevance.
[55]
This ground of appeal must fail.
(c)
Prosecutorial misconduct
[56]
In closing to the jury the prosecutor made three brief references to the fact
that Mr Cant had not given evidence at the trial. Ms Laracy accepts that these
statements amounted to a breach of the prohibition found in s 33 of the Evidence
Act.
[57]
The question is, however, whether those breaches gave rise to a miscarriage
of justice. Their context is critical. With a degree of latitude that would not
normally be afforded to defence counsel, Mr Cordwell had undertaken a
cross-examination amounting to a sustained attack on the complainant’s character
and credibility.
Factual allegations of an offensive nature were made but not
supported by an opposing account on oath from Mr Cant. The prosecutor’s brief and
passing references to Mr Cant’s failure to give evidence were made in this context.
[58]
We are satisfied that the prosecutor’s breaches of s 33 were of a minor if not
trivial nature. And, it must be noted, the prosecutor fairly acknowledged to the jury
that Mr Cant was fully entitled not to give evidence but to put the Crown to proof.
The Judge’s summing up negated any possibly prejudicial effects.
He firmly
reiterated that the presumption of innocence incorporated Mr Cant’s entitlement not
to give evidence but to put the Crown to proof. Moreover, as Ms Laracy points out,
the Judge recalled the jury at Mr Cordwell’s request to reinforce the fact that
Mr Cant was not under a duty to prove anything.
[59]
In our judgment there was no miscarriage of justice caused by the
prosecutor’s breaches of s 33.
(d)
The Judge’s Papadopoulos direction
[60]
Mr Paino advanced a submission for Mr Cant to which we must briefly refer.
He argued that the Judge acted prematurely in giving the jury a Papadopoulos
warning.14 The jury had asked two questions some four and a half hours after it
retired. The full text of the question bears repetition as follows:
[61]
1
IS “HUNG JURY”
CURRENTLY SPLIT.
(NO
DECISION) AN
2
WHAT CONSTITUTES REASONABLE DOUBT?
OPTION?
JURY
-
NEVER ABSOLUTE CERTAINTY FOR GUILTY OR NOT
GUILTY.
-
DIFFICULT TO DETERMINE ACCUSED’S STATE OF MIND.
ANY GUIDANCE WOULD BE HELPFUL.
The trial transcript records that the Judge discussed these questions in
chambers with counsel, Mr Cant and his McKenzie Friend. Mr Paino asserted that
the latter two were neither present nor aware of the questions until the Judge recalled
the jury. However, even if the transcript is wrong and Messrs Cant and Lyttelton
were absent, that factor is not relevant to the primary issue of whether the Judge’s
subsequent direction was wrong.
[62]
At trial counsel agreed that a Papadopoulos direction was appropriate. The
real issue was the nature and scope of an appropriate direction on the second
question about Mr Cant’s state of mind. In the event, the Judge recalled the jury.
His answer included a direction on the burden of proof and the proper approach to
determining Mr Cant’s intention which was both comprehensive and balanced, and
no objection can be taken to its content.
[63]
On appeal the only question is whether the Judge should have combined a
Papadopoulos direction with his answer to the jury’s question. Mr Paino submitted
that the Judge should have restricted his answer to the second question with a
14
R v Papadopoulos [1979] 1 NZLR 621 (CA).
direction that the jury retire in an attempt to reach a unanimous decision; if they had
remained split a Papadopoulos direction may then have been appropriate.
[64]
However, the decision to give the direction was within Judge Gittos’
discretion. In that respect he enjoyed “a substantial degree of latitude”. 15 We are in
no doubt that the direction was an appropriate step in the circumstances, given the
composite nature of the jury’s questions, and this ground of appeal must fail.
(e)
DNA evidence
[65]
Mr Cant complains about a joint statement of experts produced by the Crown
at trial from Catherine McGovern. She is a forensic scientist employed at ESR in
Auckland. The statement was jointly the work of Ms McGovern and Laszlo Szabo,
an Australian scientist engaged for Mr Cant’s defence. Mr Cant says he did not
consent to production of the statement. It was not provided to him until the day of
the trial. He was thereby deprived of an opportunity to obtain further scientific
opinion to challenge the ESR testing process and interpretation.
[66]
The background of this submission was fully explained in this Court’s first
interlocutory decision as follows:16
[32]
Up until [Mr Cant] opened his case (immediately after the Crown
had opened at trial), the Crown believed that the issue at trial was the
identification of the complainant’s assailant. This was based on [Mr Cant’s]
interview with the police where he denied he had any contact with the
complainant on the night of the assault. However, when [Mr Cant] opened
he said he had accepted he was with the complainant on Mayoral Drive that
night. [Mr Cant] said he had not assaulted the complainant. Later in
cross-examination it was suggested the complainant had assaulted him and
had tried to take his money.
[33]
During the trial [Mr Cant] told the Judge that he could not
understand why evidence was being led about his DNA being found on the
complainant’s face given identity was no longer an issue.
[34]
When the Crown opened their case at trial, as we have noted, they
assumed, given [Mr Cant’s] police interview, that the trial issue would be
identification of the attacker. That is, could they prove the complainant’s
assailant was [Mr Cant]? Thus, when counsel for the Crown opened to the
jury they were told there would be scientific evidence which would prove
that [Mr Cant] was the person who had assaulted the complainant. The
15
16
Hookway v R [2008] NZSC 21 at [3].
Cant v R, above n 3.
prosecutor briefly outlined the DNA evidence and said with respect to the
complainant “after speaking to Police she underwent a routine medical
examination during which swabs were taken from around her mouth where
she said she had been kissed by this strange person”. It was the material
from these swabs which was analysed and said to point to the accused.
[35]
[Mr Cant] now wishes to challenge the accuracy of the DNA
evidence given at his trial. This challenge is because [Mr Cant] submits the
jury may have thought the presence of his DNA on the complainant’s mouth
supported her version of what happened that night. The complainant had
given evidence that her assailant had tried to kiss her. If [Mr Cant]’s DNA
was found on or near the complainant’s mouth this would support the
complainant’s version of events that night and support the claim the assault
was with a sexual intent.
[36]
[Mr Cant], through his previous counsel, had instructed the
Tasmanian Forensic Science Service (TFSS) to review the ESR’s DNA
analysis. The ESR’s analysis was said to show that a swab analysed from
the complainant’s mouth was six thousand million times more likely to be
from [Mr Cant] than any other male in New Zealand.
[37]
The TFSS, after analysis, accepted that [Mr Cant] could not be
excluded as a contributor to the DNA found but disagreed with the ESR as to
the likelihood of him being a contributor.
[38]
The expert witnesses from the ESR and the TFSS met and were able
to reach an agreed position on the DNA evidence. The agreement as
recorded by Judge Gittos in the District Court was:
... that the experts agree that the minor portion of the DNA must
have originated from somebody who was either the accused or a
paternal relative of his to a degree of probability of one in sixty six
when analysed against the known data base of 790 male New
Zealanders held by the ESR. That may be seen as being perhaps a
more favourable outcome from the accused’s point of view than the
original statistical calculation made by the ESR based upon the short
tandem repeat profiling process they originally adopted ... .
[39]
The Judge after pre-trial challenge concluded the joint statement of
the scientists should be placed before the jury as this had been the process
agreed to by [Mr Cant’s] then counsel and in any event had been ordered by
the Court. However, he said this did not preclude [Mr Cant] from calling
any witnesses to challenge this analysis.
(Footnotes omitted.)
[67]
Mr Cant’s revised memorandum of submissions purports to dissect and
challenge virtually every sentence of these passages. We do not intend to engage
with Mr Cant’s criticisms. In some respects they are factually incorrect, even though
they assert the contrary. In other respects they are diversionary and irrelevant. And
in yet other respects they completely misunderstand the legal effect of the two issues
for determination at trial.
[68]
The DNA evidence was one of the many subjects which arose for
consideration before trial.
At a ruling on a s 344A application, Judge Gittos
recorded:17
[14]
I am told by Mr Dixon that the only objection taken is that his client
objects upon the basis that, firstly, he did not consent to this process of joint
analysis and agreed outcome being embarked upon and, secondly, that he did
not agree to the results of it being put before the Court.
[15]
As to the first matter, it is evident that Mr Wells (who was then
acting for the accused) not only agreed to this but appears to have suggested
it as a proper process and certainly, agreement or not, it was directed to be
done by the Court. It was, in my judgment, a proper direction to have been
made and one that appears to have been made at the instigation of defence
counsel and certainly not without the accused’s knowledge or agreement –
that at a time when Mr Wells was currently favoured with the accused’s
instructions. That disposes of his objection that he did not agree to this
happening and the fact that the results of the enquiry have been put before
the Court in the form of a signed statement authenticated by both scientists
involved is not of any forensic significance at this stage. The fact that I have
it and that counsel has it matters not. The issue is whether the jury should
have it.
[16]
In my view it is a perfectly proper matter to be put in evidence
through the expert witness that the ESR propose to call. It is, of course,
perfectly open to the accused to call Mr Sarbo (or any other expert that he
(the accused) wishes to call) to comment upon the material but inasmuch as
what is contained in that statement is something that is unchallenged by the
foreign experts sought and consulted by the defence, it seems to me to be
material that is really uncontentious in that sense. Certainly it is proper
material for the ESR to address in evidence and I rule it to be admissible.
[69]
In its first interlocutory decision this Court effectively answered Mr Cant’s
submission as follows:
[44]
... The relevance was said to be that the prosecutor had relied upon
the evidence of [Mr Cant’s] DNA around the mouth of the complainant as
evidence which showed he had been kissing her. We have explained the
context to the one reference to this in the material before the jury. After
[Mr Cant] made it clear that he was not contesting he was with the
complainant at Mayoral Drive, no further reference was made by the Crown
to the forensic evidence as in any way corroborating the complainant’s
evidence or as evidence of an intention to sexually assault the complainant.
17
R v Cant DC Auckland CRI-2006-004-26731, 22 January 2009.
[45]
We cannot see, therefore, that there is any appeal issue relating to the
ESR analysis of [Mr Cant’s] DNA material. [Mr Cant] accepted he was
involved in a scuffle with the complainant. Importantly, the complainant
agreed [Mr Cant] had spat at her. This provided an alternative explanation
for [Mr Cant’s] DNA on the complainant’s face. The Crown did not pursue
at trial any claim that the DNA from the complainant’s mouth corroborated
her evidence that [Mr Cant] had kissed her nor did they attempt to use the
evidence in any other way. We refuse this application for disclosure for the
reasons given.
[70]
We respectfully adopt this reasoning. We would add that there is another
answer to Mr Cant’s submission. At trial, when he objected to production of the
joint statement, Ms McGovern pointed out that it was in materially the same form as
a document produced on 12 November 2008. A copy had been given to Mr Cant. As
a result, this ground of appeal fails.
(f)
General
[71]
Mr Cant also advances an amalgam of allegations of misconduct by everyone
in authority who was associated with his trial and the appeal. He alleges police
misconduct including perjury and encouragement of the complainant to commit
perjury. He alleges misconduct by the prosecutor and Crown counsel on appeal. He
alleges misconduct by Messrs Dixon and Cordwell. Finally he alleges misconduct
by the trial Judge. At some times these allegations loosely overlap under the rubric
of a conspiracy.
[72]
We do not propose to address the detail of Mr Cant’s allegations. They are
characterised by intemperate language, speculation and irrelevance. As a general
observation, they constitute an attempt to divert our focus from the fundamental
question of whether any of his discrete grounds of appeal are sustainable. And, as
with much of his discursive submissions on those particular grounds, his arguments
reflect a misunderstanding of legal principles.
We are satisfied that Mr Cant’s
allegations of conspiratorial misconduct have no factual or legal basis. Accordingly,
this ground of appeal must fail.
Sentence
[73]
As noted, Mr Cant’s notice of appeal was expressly stated to be against both
his conviction “and any sentence to be imposed”. Significantly, in his revised
memorandum Mr Cant submitted that “his appeals of (sic) conviction and sentence
should be granted ...”. He has also advised the Court that he wishes to pursue his
sentence appeal after his conviction appeal is determined. Mr Cant’s original notice
filed following his conviction was plainly intended to operate prospectively to
include an appeal against the sentence yet to be imposed.
[74]
The relevant background is captured in a minute issued by Randerson J on
17 May 2013 following a telephone conference attended by Messrs Cant and
Lyttelton. The Judge was satisfied that Mr Cant had appealed against conviction and
sentence. He directed that both should be heard together in the orthodox way. His
minute recorded as follows:
[2]
Mr Cant indicated his strong opposition to the sentence appeal being
heard along with the conviction appeal. However, during the discussion it
emerged a principal reason for Mr Cant’s concern was his lack of resources
to address the sentence appeal and to deal with relevant legal authorities
within the time available. The appointment of an amicus to assist the Court
and Mr Cant in relation to the sentence appeal was discussed. Mr Cant and
Mr Lyttelton were very much in favour of this proposal which would
overcome much of their objection.
[3]
I have decided that the normal course of having both the conviction
and sentence appeals heard together would be in the overall interests of
justice and, given the appointment of an amicus, Mr Cant should not be
prejudiced by this course. It is usual to hear both conviction and sentence
appeals together for reasons of economy and because the issues are usually
closely inter-related. And, as Ms Laracy points out, the issue of
representation for the appellant is relevant both to the conviction and
sentence appeals since s 30 of the Sentencing Act 2002 may be an issue in
respect of the latter.
...
(b)
The Registrar is requested to appoint an amicus in relation to the
sentence appeal. The role of the amicus will be to assist the Court
and Mr Cant by advancing any submissions that may properly be
made on behalf of [Mr Cant] in relation to sentencing. So that the
position is clear to [Mr Cant], the amicus is not obliged to accept
instructions from [Mr Cant] as if [Mr Cant] were represented by a
lawyer in the ordinary way.
[75]
In accordance with these directions, Mr Gibson was appointed as counsel
assisting the Court on 18 June 2013. Mr Gibson was recommended by Messrs Cant
and Lyttelton.
He filed a comprehensive memorandum on 1 July.
However,
Mr Lyttelton on Mr Cant’s behalf later complained about the impartiality of
Mr Gibson’s memorandum. He repeated Mr Cant’s proposition that the latter had
never filed an appeal against his sentence. Like Randerson J, Stevens J was satisfied
that Mr Cant’s notice was of an appeal against both conviction and sentence when
later imposed. The Judge made these directions in a minute issued on 11 July 2013:
[9]
In relation to the sentence appeal, if [Mr Cant] wishes to present
further submissions himself, (with the assistance of Mr Lyttelton as his
McKenzie Friend) or through his own counsel, he is entirely free to do so.
However any such written submissions must be filed with the Registry
before the hearing of the appeal on 1 August 2013.
...
[13]
Any concerns that [Mr Cant] may have about ensuring that all
material relevant to the sentence appeal is before the Court can be addressed
either by submissions from his own counsel (if he so wishes) or through
further discussion with the amicus as already described.
[76]
Mr Cant was on nearly three months notice from 17 May 2013 that this Court
would hear his appeal against sentence. He was given leave to file submissions in
support.
His mistaken ground for electing not to take this step communicated
directly and through Mr Lyttelton, was that he not only wished to have a staged
hearing of his appeals against conviction and sentence but he also intended to call
witnesses to support the latter appeal. We are in no doubt that Mr Cant has intended
throughout to appeal against his sentence but on his terms. Again he must live with
the consequences of his decision.
[77]
As noted, Mr Gibson’s memorandum focussed mainly on the threshold legal
question on whether the High Court had jurisdiction to sentence. That was because
of the submission apparently made by Mr Wells in the High Court that Mr Cant’s
right to legal representation at trial had been breached.
We have considered
Mr Gibson’s submissions when addressing that issue within the conviction appeal.
[78]
We note also that in the High Court Mr Cant made several applications to
postpone sentencing there until determination of his conviction appeal to this Court.
Hugh Williams J dismissed those applications, noting:18
[13]
Once the file reached this Court, in order to ensure you were not
disadvantaged as far as the sentencing process was concerned the Court, and
counsel, devoted considerable time and resources to the matter, convening a
number of telephone and face-to-face conferences starting on 5 October
2009 and stretching out to April this year and now, of course, to sentencing
today. Mr Lyttelton was present at all conferences up until recently.
Mr Wells was reinstructed as counsel on 3 February 2010. And what
occurred during nearly all those conferences was recorded on the FTR
system with transcripts being available to you and Mr Lyttelton – and to the
Court of Appeal, if they require it.
[14]
At various stages during the process in this Court, you or counsel
have sought to have the Court deal with the question whether s 30 was
complied with in the District Court. The Court has declined to embark on a
consideration of those issues, they being matters for the trial Court or the
Court of Appeal ... .
[79]
The Judge later recited Mr Cant’s criminal history in this way:
[27]
You are now aged 41. You have some 133 previous convictions
accumulated in the period (omitting Youth Court matters) from 1985-2007.
Of those, about 31 are for violent offences; there are some 71 convictions for
burglaries and dishonesty offences; and 17 offences for driving - plus a
number of miscellaneous matters.
[28]
Of significance to the possibility of Preventive Detention, as I
discussed with Mr Wells a little while ago, is that your only directly sexual
offending is a conviction for unlawful sexual connection for which you were
sentenced on 30 May 1991 to imprisonment for one year nine months.
However, in terms of whether you qualify under s 87 of the Sentencing Act
2002 for the possible imposition of a sentence of Preventive Detention it is
relevant to note the following convictions:
18
a)
Wounding with intent to cause grievous bodily harm under
s 188 on 31 December 2006;
b)
Aggravated robbery under s 235 on 3 October 1996;
c)
Unlawful sexual connection under the former s 128(1)(b) on
20 April 1990. Although that offence has been changed
under the Crimes Amendment Act 2005, that does not
impact on sentencing);
d)
Two convictions of injuring with intent to injure under s 189
both on 23 August 1994 and 12 February 1990.
R v Cant, above n 1.
[80]
Of particular relevance, the Judge also recited as follows:
[37]
The unlawful sexual connection conviction [on 20 April 1990] was
said to follow a jury verdict of sexual violation by digital penetration on the
eight-year-old [complainant].
[38]
The report recounts the escalation of your violent offending,
covering the attempted aggravated robbery, threatening to kill, grievous
bodily harm offences and injuring with intent to injure during a pre-sentence
period.
[39]
You were granted early release on 23 September 1996 and offended
a few days later, having also taken no part in a directed programme, and you
were re-called to prison on 27 September 1996.
[40]
On 31 December that year you were convicted for wounding with
intent to cause grievous bodily harm while on remand in prison and
sentenced to 10½ years imprisonment. You were kept in the maximum
security prison for nine years and released back into the community in
October 2006. To quote, from the open letter you wrote to the media at the
time and to the Government and officers of the criminal justice system, your
release was to “re-offend once gain”. The report quotes the letter saying
I am released from my prison cell (cage) without any control,
restraints and likely to commit specific offences such as killing
or murder (mass murder) what do I have to lose? This letter is
an attempt to warn all those who are concerned for their safety,
their families and have a true interest in public safety and for
justice.
[41]
As I mentioned, the offence for which you are now to be sentenced
occurred on 13 December 2006, less than two months later.
[81]
Hugh Williams J considered reports from three health professionals –
Dr Djokovic and Dr Pillai, both psychiatrists and Ms Camilleri, a psychologist.
Mr Cant refused to make himself available for interview by any of these experts.
Accordingly, all were forced to rely on official records.
[82]
Dr Djokovic was satisfied that Mr Cant suffered from an anti-social
personality disorder and presented a high risk of reoffending including of a sexual
nature. Dr Pillai confirmed Dr Djokovic’s diagnosis and concluded that Mr Cant
was likely to commit acts of violence in the future. Ms Camilleri concluded that
Mr Cant’s recent behaviour showed a particular theme indicating a level of sexual
preoccupation. She, too was satisfied that Mr Cant was at very high risk of serious
violent offending and of sexual reoffending.
Furthermore the prognosis for
treatment was extremely poor and his risk of violent and sexual recidivist was
longstanding.
[83]
On Mr Cant’s behalf in the High Court, Mr Wells emphasised that he denied
the facts leading to his conviction; that while the offending occurred shortly after
Mr Cant’s release from prison, the aggravated robbery conviction was incomparable
to the subject charge; Mr Cant had only one previous conviction in 1990 for sexual
offending; that Mr Cant regarded the health professional’s reports as biased and
factually inaccurate; there was no discernible pattern of violent offending which
would pose serious harm to the community; while the health professionals’ collective
prognosis was of a high risk of reoffending, that did not equate to a certainty; and
Mr Cant had been unable to participate in meaningful rehabilitative programmes. In
conclusion Mr Wells submitted that a finite sentence was appropriate, not preventive
detention.
[84]
Hugh Williams J addressed all the relevant statutory criteria. 19 Looking first
at a comparison with the available finite sentence,20 he concluded:
[99]
On that basis, if a finite sentence is to be imposed, the circumstances
of this offence would indicate a starting point of six to seven years
imprisonment. Your previous record – although containing only one
previous sexual offence – shows considerable resort to violence, such that
the sentence to be imposed should be approximately eight years
imprisonment and the minimum period of imprisonment to be imposed
should be two-thirds of that term as your release after one-third would be
insufficient deterrence, denunciation and punishment having regard to the
whole of your background.
[85]
Second, he was satisfied that Mr Cant was likely to commit another
qualifying sexual or violent offence if released at his sentence expiry date.
Addressing whether there was a pattern of serious offending disclosed by Mr Cant’s
history,21 he said this:
[106] Then, looking at the pattern of serious offending disclosed by your
history, it must first be said there can be no doubt whatever that you would
commit further offences on your release. On a number of occasions in the
past you have committed offences, including serious offences, within days or
weeks of your release or when you were still on parole or remand. Indeed,
19
20
21
Sentencing Act 2002, s 87(4).
Section 87(4)(e).
Section 87(4)(a).
on some occasions you have not even been released when you have
committed offences and have offended whilst still serving a jail term. You
have spent a high proportion of your adult life in jail and whatever sentence
is imposed on you today will simply continue the life you have set for
yourself.
[107] So, it may be a melancholy prospect, but the Court’s view is that
there can be no doubt you will continue to offend in the future - either on
release or beforehand. And, having regard to your conviction history, there
can be no doubt that your offending has been serious and there is no reason
to suppose it will not be serious in the future. Even if it may be a little more
doubtful that your future offending will be of a sexual nature - and I take the
view that Ms Camilleri’s conclusion about sexual re-offending is not as
substantially based as the conclusions of the health professionals concerning
violent offending - there can be no doubt that your future offending will
include violence and probably qualifying offences under s 87(5).
[86]
Third, the Judge was in no doubt that Mr Cant had caused serious harm to his
victims, to the point where some justifiably felt that their lives under threat.22
[87]
Fourth, the Judge was satisfied that while Mr Cant had been offered many
opportunities for treatment and rehabilitation over 20 years he had not participated in
any committed sense.23 The Judge acknowledged the contribution of management
failures to this situation. However, the overwhelming factor was Mr Cant’s outright
refusal to participate in rehabilitative treatment.
[88]
Fifth, the Judge was in no doubt that Mr Cant’s criminal history showed a
tendency to commit further serious offences on his release.24 Accordingly, he was
satisfied that the only conclusion realistically open to the Court when weighing up
all the relevant factors was that a sentence of prevention detention was necessary to
protect the community from Mr Cant; and a minimum period of imprisonment of six
and a half years was appropriate.
[89]
We are satisfied that but for the timely intervention of three young men
Mr Cant’s offending against the complainant would not have been limited to an
assault with intent to commit sexual violation. He would most likely have proceeded
to carry out his intention which had already been violently commenced.
consequences would have been very serious.
22
23
24
At [108], applying s 87(4)(b).
At [109]–[111], applying s 87(4)(d).
At [112]–[119], applying s 87(4)(c).
The
[90]
On the basis of our own independent evaluation of the facts of Mr Cant’s
offending, his history and the health professionals’ reports, we are in no doubt that
Hugh Williams J was correct to impose a sentence of preventive detention with a
minimum term of six and a half years imprisonment. There was no other course
open to him.
The repetition, intensity and gravity of Mr Cant’s offending
demonstrate the inevitability that he will commit further serious offences whenever
he is released unless his obvious personality disorders are treated effectively.
Mr Cant’s continual refusal to participate in rehabilitation programmes means his
prognosis for release must be poor.
[91]
In our judgment Mr Cant presents a very high risk to public safety. The
statutory requirement of protection of the community can only be satisfied by a
sentence of preventive detention. His appeal must fail.
Result
[92]
Mr Cant’s appeal against conviction and sentence is dismissed.
[93]
The Registry is directed not to receive any further documents from Mr Cant
or Mr Lyttelton relating to this appeal without the leave of a Judge. The reason for
such an order is evident from the event chronology annexed to this judgment.
Solicitors:
Crown Law Office, Wellington for Respondent
Date
Event
29 April 2010
24 August 2010
Notice of appeal against conviction and sentence is filed.
Minute of Ellen France J:
Matter to be dealt with by way of oral hearing.
Appellant can appear via video link.
Must comply with r 12B.
Notice of fixture sent to appellant. Fixture date allocated for 17 February
2011.
Application for third party disclosure received.
Memorandum of appellant counsel received requesting adjournment.
Stevens J directs:
Fixture of 17 February 2011 is to be vacated. Hearing is adjourned
until 20 July 2011.
Counsel are to agree on a timetable for affidavits and submissions.
Transcripts of all chambers discussions to be provided to counsel.
Notice of fixture sent to appellant. Fixture date allocated for 20 July 2011.
Minute of Stevens J: timetable proposed in joint memorandum is noted.
Minute of Stevens J:
Registrar of the District Court is requested to make two copies of the
CD which contains recordings of the proceedings including
recordings of any discussions that took place in Chambers during the
course of the trial.
Mr Lawry is directed to provide details of further disclosure requests.
Minute of Stevens J:
Registrar has made available three DVDs comprising the available
transcript of the trial.
Mr Lawry needs to investigate details of Chambers discussion where
Mr Dixon sought leave to withdraw.
Mr Collins (for respondent) is to make available further
documentation from Immigration New Zealand file and the date the
complainant left New Zealand after she had given evidence.
Mr Lawry has raised the possibility of an adjournment, but this is
opposed by the Crown. It is in everyone’s interest that the appeal
proceed on 20 July 2011.
Counsel are to file a joint memorandum setting out a timetable for
submissions.
Minute of Stevens J:
Further documentation has been made available to Mr Lawry from
Department of Immigration.
Affidavits on behalf of the appellant were filed on 7 July 2011.
Mr Lawry will hopefully file submissions later today.
Mr Collins is to advise whether there is to be any cross-examination.
Minute of the Court (Stevens, Potter and Ronald Young JJ):
This minute records the agreement between counsel as to the extent
of further disclosure. A formal ruling will follow.
The Crown will provide by way of disclosure any agreement or any
information relevant to any agreement between the police and the
New Zealand Immigration Department granting or proposing to grant
the complainant an immigration advantage in return for her giving
evidence at the appellant’s trial. This should include any such
information on any Immigration Department file including any
information on the Associate Minister of Immigration’s file. The
information provided should be confirmed by affidavit. Should there
24 August 2010
10 November 2010
11 February 2011
1 March 2011
9 June 2011
28 June 2011
8 July 2011
20 July 2011
22 July 2011
19 October 2011
31 October 2011
1 November 2011
4 November 2011
be no such information that fact will also be confirmed by affidavit.
The Crown will provide, again confirmed by affidavit, any
information the police hold on their computer relating to contact with
the New Zealand Immigration Service in relation to Mr Cant. Should
there be no such information held by the police that fact will be
confirmed in any affidavit filed.
Minute of the Court (Stevens, Potter and Ronald Young JJ):
The terms of the minute of 20 July 2011 are confirmed as an order of
the Court.
The application for an adjournment is granted.
The appellant has confirmed that he wished Mr Lawry to continue to
represent him and that he wished to pursue to the appeal.
If the appellant wishes to pursue the ground of trial counsel
misconduct, he must provide a waiver of solicitor/client privilege.
The appellant should focus his submissions on: the legal
representation point, the s 44 Evidence Act point, the s 33 Evidence
Act point, and the Papadopoulos direction.
A new set of submissions should be prepared by the appellant and
respondent.
Mr Lawry files a memorandum seeking leave to withdraw.
Minute of Stevens J:
A telephone conference is to occur on 3 November 2011.
Mr Lyttelton has introduced himself as “Larry Cant’s support person
and McKenzie friend”. So far as the Court is concerned, Mr
Lyttelton has no current status in this matter. It is not appropriate
that he participate in the telephone conference.
Minute of Stevens J:
The purpose of the phone conference on 3 November is to determine
whether Mr Lawry’s application to withdraw should be granted.
Therefore the appellant’s attendance is required.
The Case Officer is directed not to receive any further
communication from Mr Lyttelton.
Minute of the Court (Stevens, Ronald Young, and Potter JJ):
The disclosure information covered by the agreement described in
the Court’s minute of 22 July 2011 has been provided by the
respondent with the filing of two affidavits, one by Detective
Greaves and the other by Ms Bentley of Immigration New Zealand.
The appellant has not provided a waiver of privilege. Instead, he has
instructed Mr Lawry to obtain yet more disclosure. He will not
provide a waiver until such information is obtained. As a result, the
Court will not hear any grounds of appeal that criticise counsel’s
conduct in trial representation where fairness dictates an opportunity
for response.
No written submissions have been provided by the appellant. This is
because he has required Mr Lawry to “resign” due to his inability to
obtain the disclosure required.
The appellant opted not to participate in the telephone conference on
3 November 2011.
Mr Lawry is granted leave to withdraw.
The appellant is required to advise the Court whether he wishes to act
for himself or whether he intends to apply to legal aid for the
appointment of another counsel.
If the appellant does not respond by 30 November 2011 the matter
30 November 2011
28 May 2012
11 June 2012
25 June 2012
28 September 2012
30 October 2012
28 February 2013
8 May 2013
14 May 2013
will be set down for hearing in the new year.
Appellant advises the Court that he wishes to appoint new counsel.
Notice of fixture sent to appellant. Fixture allocated for 8 October 2012.
Minute of Randerson J:
There has been an unfortunate history of delay.
Mr Newell is granted leave to withdraw.
Counsel from outside the Auckland area should be appointed.
When counsel have been appointed, a telephone conference before
Stevens J should be arranged.
Minute of Stevens J:
Mr Paino has been appointed as counsel for the appellant.
Counsel are invited to confer and then file a joint memorandum
setting out any directions required from the Court to ensure that the
appeal fixture proceeds on 8 October.
Minute of the Court (Ellen France, Ronald Young and Andrews JJ):
The hearing on 8 October will be confined to dealing with the
applications for disclosure. The hearing of the substantive appeal is
adjourned.
It is accepted by the Crown that the current requests for disclosure all
reflect requests previously made for this information.
Counsel are to provide a memorandum by 3 October summarising
outstanding issues as to disclosure. The memorandum will also
advise whether or not there will be any oral evidence at the hearing.
Arrangements are being made for Mr Cant to be present via AVL.
Judgment of the Court (Ellen France, Ronald Young and Andrews JJ):
Disclosure ordered of some of the information sought by the
appellant from Immigration New Zealand. Other applications
dismissed.
Minute of Randerson J:
Affidavits by the appellant and a witness have been filed and both
sides have lodged submissions. The only matters outstanding are
affidavits from two lawyers involved in the appellant’s case and
some outstanding issues over the transcript from the District Court.
These are expected to be resolved within the next few weeks.
It is important that the appeal be heard as soon as convenient. A firm
fixture is made for 17 June 2013.
Affidavits by Mr Wells and Mr Dickson are to be filed by 28 March.
The appellant may file reply affidavits by 22 April 2013.
Any additional submissions to be filed by 3 June 2013.
The Crown is to be informed no later than 14 days prior to the fixture
if cross-examination is required.
The fixture of 17 June 2013 is a firm date and no further adjournment
will be granted unless substantial grounds are made out.
Mr Paino informs the Court that the appellant has asked him to stand aside as
counsel.
Minute of Randerson J:
Ms Laracy has advised that the Crown does not intend to file any
further affidavits.
Additional submissions have not been filed. However, two sets of
submissions have already been filed on behalf of the appellant, and
the Crown has responded to those by filing its own submissions. The
appellant may file and serve any further submissions (not to exceed
30 pages) by 31 May 2013.
17 May 2013
18 June 2013
21 June 2013
A difference has arisen between Mr Paino and the appellant because
Mr Paino is not prepared to argue that there has been a criminal
conspiracy between those involved in the trial. The appellant states
that he does not wish Mr Paino to be appointed as amicus and he
does not seek alternative counsel. Mr Paino is granted leave to
withdraw subject to certain conditions.
The appellant has confirmed that he wishes to pursue the conspiracy
allegation. An application to amend the grounds of appeal will be
required, but this can be determined by the panel hearing the appeal.
A formal application is to be filed by 31 May 2013, and any Crown
submissions are to be filed by 11 June 2013.
The appellant has indicted that two further affidavits are to be filed.
There are to be filed by 31 May 2013.
The hearing is to proceed on an oral basis.
Mr Lyttelton can act as a McKenzie friend. The panel hearing the
appeal will determine whether he can speak on behalf of the
appellant.
The appellant has advised that he does wish to pursue an appeal
against sentence. Accordingly, the fixture for 17 June 2013 cannot
proceed. A full day fixture could be allocated for 1 August 2013.
A further telephone conference is to be held on Friday 17 May.
Minute of Randerson J:
During the telephone conference the appellant strongly objected to
the sentence appeal being heard along with the conviction appeal.
However, the main reason for this was lack of resources.
Accordingly, an amicus is appointed in relation to the sentence
appeal.
Regarding the direction that a formal application to amend the
grounds of appeal was necessary, Mr Lyttelton advises that the
conspiracy argument is already in issue, as seen in Judge Gittos’s
s 347 ruling. Ms Laracy has indicated that she is content if a
memorandum is provided setting out particulars of any additional
grounds of appeal. This is to be filed by 14 June 2013. Any Crown
submissions in response are to be filed by 28 June.
Ms Laracy has also requested that the appellant file a memorandum
in relation to additional disclosure requests. This is to be filed by
24 May 2013.
The fixture on 17 June is vacated. There will be a one day fixture in
Auckland on 1 August 2013 which will include the conviction and
sentence appeals.
The appellant may file and serve any further submissions by 14 June
2013.
The two further affidavits are to be filed and served by 14 June 2013.
The Registry is requested to compile a supplementary casebook
containing all relevant sentencing materials.
Mr Gibson is appointed as amicus.
Minute of Randerson J:
The appellant has not filed any further submissions relating to the
conviction appeal. The reason given is that the minutes of
in-chambers discussions are not in chronological order. That is not a
valid reason for failure to comply with the Court’s directions. The
submissions are to be filed by 1 July 2013. Any Crown submissions
in response are to be filed by 8 July 2013.
11 July 2013
15 July 2013
The appellant continues to raise disclosure issues.
Several
memoranda have been filed in this respect. The disclosure issues are
to be resolved at a CAD hearing on 11 July 2013. The issues must
focus on requests for documents rather than interrogatories.
The respondent has requested that the Court prepare a bundle of
authorities. This is not the practice of this Court.
Contrary to his earlier advice, the appellant is now seeking to appoint
counsel. The hearing on 1 August 2013 will proceed regardless of
whether or not the appellant obtains a lawyer prior to that time.
An issue has been raised as to whether Ms Laracy should be involved
as counsel. This is to be dealt with at the hearing on disclosure
issues. The appellant is to file a memorandum in support by 1 July
2013. Any further submissions are to be filed by the Crown on
8 July.
The appellant has requested a transcript of the hearing on 8 October
2012. That transcript should be prepared.
Sentencing submissions are to be filed by Mr Gibson on 8 July, the
appellant on 15 July, and the Crown on 22 July.
The appellant is advised that if the directions set out in this minute
are not strictly complied with, the Court will give serious
consideration to exercising its power under s 338 of the Criminal
Procedure Act 2011 to dismiss the appeal for non-compliance with
the Court’s directions.
Minute of Stevens J:
Mr Gibson has filed submissions dated 1 July 2013 in relation to the
sentence appeal.
By letter dated 9 July 2013 Mr Lyttelton has written to the Registry
on behalf of the appellant about issues he says have arisen with the
appointment of Mr Gibson.
Mr Lyttelton says that the appellant has never filed an appeal against
sentence. This is not correct. The notice of appeal records that the
appeal is against conviction and sentence.
The appellant complains about the submissions filed by Mr Gibson.
If the appellant wishes to present further submissions himself, he is
entirely free to do. Should the appellant wish to file any further
submissions, they are to be filed and served no later than 26 July
2013.
The appellant has asked that the hearing of the appeal against
sentence be “stood down” due to miscommunication. No such
miscommunication has occurred. The appeal is to proceed on
1 August 2013. Mr Gibson will be present at that hearing. If the
panel agrees he will be able to develop orally any further points
including any other matters the appellant wishes the amicus to raise
on sentencing.
Any concerns the appellant may have about ensuring that all material
relevant to the sentencing appeal is before the Court can be addressed
by submissions from his own counsel or through further discussion
with the amicus.
Minute of Stevens J:
This minute deals with Mr Lyttelton’s email to the Registry dated
14 July 2013.
Mr Lyttelton is advised that where one document is to be withdrawn
and replaced by another, the fact that the latter document is a
replacement should be made clear on the face of the second
23 July 2013
document.
There is nothing on the waistband of any of the documents filed by
Mr Lyttelton on 1 July to indicate that there was material relevant to
the two matters to be heard and determined at the hearing. That is a
point of legitimate criticism or comment. This was addressed at the
hearing by having the Registrar take a copy of the five relevant pages
comprising the foreword and referring them to the members of the
Court for consideration.
Judgment of the Court (Stevens, Heath and Cooper JJ):
The applications for further disclosure are dismissed.
The application to remove Crown counsel as counsel for the
respondent is dismissed.
From:
…
Date:
Subject:
…
Martin Lyttelton <[email address]>
30/07/2013 8:52
Hearing Larry Cant Appeal Thursday 1st August 2013 CA250/2010
Dear Fiona,
I am writing to update you on how Mr Cant will present his appeal on Thursday.
Given that Mr Cant does not have the required levels of legal knowledge he will make no
oral submissions in support of his appeal.
Mr Cant will base his appeal on the papers only.
Both Mr Cant and I will be available at the hearing, to be called to give evidence under oath
- if required - by either the Crown or the Court.
Once the hearing is underway if Mr Cant is not required to give evidence - then we
would ask that he be excused to return to Prison. I will take notes for Mr Cant and let
him know afterwards what has taken place at the hearing.
Mr Cant has been unable to undertake the enquiries recommended by the Court in their
decision of the 23rd of July 2013 - legal aid has not yet been approved for the assistance of a
private investigator. I have copied Rashmi from Legal Aid on this email.
Mr Paino will not be representing Mr Cant at the hearing - he is engaged on another
clients appeal. We have simply run out of time to complete our investigations - to then be
able to re-engage Mr Paino to represent Mr Cant. Legal aid have simply not been able to
respond in time.
In terms of the papers that we will rely upon in support of Mr Cant’s appeal - the relevant
papers are as follows;
1. The submissions of Mr Howard Lawry from July 2011
2. The affidavits of Mr Cant and Mr Lyttelton from July 2011
3. The affidavit of Mr Cant from October 2009.
4. The submissions of Mr Paul Paino from October 2012.
5. The submissions of Mr Lyttelton from July 2013 including the two memoranda in
support of the submissions.
6. The affidavit of Mr Lyttelton from July 2013
7. The memorandum of Mr Lyttelton in regards to the appeal of sentence dated the
12th of July 2013.
8. The email to yourself in regards to the appeal of sentence and the attached letter
of Mr Howard Lawry to [the Registry Officer].
Thanks
Martin Lyttelton
[contact details]