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The National Business
Review
September 26, 2003
Justice could be the ultimate victim
of the government's abolition of appeals to the Privy Council.
by Nick Smith
Questions about the quality of New Zealand's justice system have
never been more pertinent. While the government bulldozes its Supreme Court
Bill through Parliament, there is growing public disquiet about apparent
miscarriages of justice.
Peter Ellis, David Bain, Scott Watson and the fisherman Rex Haig convicted of
the 1995 slaying of a crewman make up a quartet of claims of wrongful
conviction that is eroding public confidence in a judiciary that until
recently scored highly.
Ellis, Watson and Haig are all hoping to take cases to the Privy Council, an
outcome not guaranteed given the mere handful of criminal cases granted
leave.
Special leave to appeal criminal judgments is generally granted only where
refusal would countenance serious irregularities or injustice.
An infallible justice system is an impossibility but the frequency with which
mistakes may have been made raises valid questions, particularly in the way
the Crown responds to the challenge to its judiciary.
The Privy Council case Taito v the
Queen in 2002 is instructive on this issue and also raises further
questions about the independence of the bench and its ability to judge its
own.
Taito v the Queen actually involved
12 men convicted of a variety of crimes but was not about the merits of each
individual case.
It essentially concerned access to justice in criminal appeals relying on
legal aid, a statutory right reinforced by a provision of the 1990 New
Zealand Bill of Rights Act.
All 12 lodged applications for legal aid following conviction and the
decisions to deny were "in effect taken on paper by three judges of the
Court of Appeal who conducted no hearings and did not meet to discuss the
merits of the cases," the Privy Council heard.
When the applications were dismissed, three applicants sought a review of the
refusal but those challenges were dismissed without hearings and reasons.
Without legal aid, none of the respondents was represented by lawyers but a
minority lodged submissions.
The majority who did not provide submissions were dismissed without
examination of the merits of the appeal. Those who did provide submissions
were dealt with by only one judge, as it was considered unnecessary for the
other members to have any knowledge of the case.
The one judge then dismissed the appeal, as it was the view that since three
Court of Appeal judges had already concluded the cases had not merited legal
aid, the appeals had no realistic prospect of success.
Doubts about the system had already surfaced in Nicholls v Registrar of the Court of Appeal (1998), in which
Justice Andrew Tipping noted the decision on legal aid had become an
effective decision on the appeal itself, criticism that led to the Legal
Services Act 2000 and the Crimes (Criminal Appeals) Amendment Act 2001.
The first act was to address the problem of legal aid decisions being
determined by judges of the same court that would be hearing the appeal. An
independent agency, the Legal Services Agency, was created.
Under the old system, an average of 160 applicants a year for the previous
five years had been refused aid. After the Legal Services Act, a blowout in
legal aid for 2001 saw 223 granted out of 318 applications, a situation
described by the solicitor-general as advantageous to applicants.
The Crimes Act amendment required the registrar to prepare a preliminary case
for the agency, parties to the appeal and the court or judge. It also allowed
in limited circumstances for the appeal to be dealt with on the papers but
insisted that all judgments be accompanied by reasons.
But the dozen cases in front of the Privy Council were denied before the
legislation, in defiance of the Bill of Rights Act 1990 that insisted on an
effective right of appeal to ensure justice is done.
And despite passing a law to fix the system, the Crown backed the Court of
Appeal methods, a position the Privy Council found untenable.
Their lordships said solicitor-general Terence Arnold QC's inability to
unreservedly embrace Bill of Rights protections was not justified, while his
insistence on "practical necessity" in departing from the scheme of
the legislation was described as "extra-legal."
In short, the ex parte regime did not comply with the act as there was no
hearing, the appellants were not represented or present and the Court of
Appeal heard no argument. The role of the three judges in denying legal aid
was "not authorised by the statute and the decisions had no legal
validity," not least because the Crimes Act demands the Court of Appeal
dismiss an appeal only after a proper hearing.
Given the "unlawful role by three judges ... the review procedure was
from inception irredeemably flawed" as the three "did not function
as a division of the Court of Appeal hearing a case [as] the judges never met
to discuss the cases under consideration."
In any event, the judges did not announce their decisions in open court as
required and no reasons were given for refusing legal aid. The Privy Council
proscribed remedies - legal aid provided for counsel to appeal the cases -
with the judges highly critical of the Nicholls
decision.
"It will be obvious from this judgment that their lordships are in
respectful disagreement with many of the dicta in Nicholls. Given that there is now legislation, which incorporates
new safeguards, it is unnecessary to discuss the lengthy judgments in Nicholls. It is sufficient to say that
it has been overtaken by legislation and by the decision of the Privy Council
in the present case."
Their lordships' last comment, about how deficiencies highlighted in the
appeal procedure system were superseded by legislation passed in 2000 and
2001, before their judgment was delivered, bears further examination.
How and why did the Taito case
reach the Privy Council, given Crown recognition of the errors in the system
through its enactment of legislation?
Surely, the Crown would have settled with the dozen appellants, rather than
pursuing the case all the way to London.
However, National Business Review
sources have revealed that an 11th-hour settlement was offered but the
appellants' counsel were so incensed by the Crown's previous manoeuvring that
they decided that pursuit of the case would be an appropriate lesson.
Needless to say, the counsel were gratified at the humiliating Privy Counsel
criticism of solicitor-general Terence Arnold and the costs awarded.
Taito was a colossal Appeal Court blunder,
a mistake glaringly highlighted by the speed with which Parliament moved to
pass law following the Nicholls
decision, a decision the Privy Council rejected.
What is startling is, despite Justice Tipping's misgivings, the Nicholls case was dismissed by the
Court of Appeal.
Yet, as the Taito decision showed,
the Court of Appeal was engaged in unlawful actions in dismissing appeals
without a proper hearing.
Here also was a solicitor-general claiming "practical necessity" in
denying an effective right to appeal. Mr Arnold pursued this case with
alacrity, adopting argument extraordinarily described by his lordships as
"extra-legal."
Not since Wallis v Solicitor-General
in 1903 has this office been subject to such stinging judicial criticism.
The Appeal Court in Nicholls and
the solicitor-general in Taito
seemed unwilling or unable to accept that an injustice had been committed,
that a dozen men were denied (and countless others during the 1980s and early
1990s) a basic human right.
Whether this case definitively demonstrates New Zealand judges are unable to
police themselves is arguable. But it does show the need for a top-notch
second-tier court willing and able to correct the errors of lower
jurisdictions.
Issues of judicial independence, judges judging their own, is a global
problem and the UK
is no stranger itself to miscarriage of justice.
By itself, Taito is not an
endorsement of the view from some quarters that New
Zealand judges are intrinsically inferior, although it
is difficult to argue against the Bar Association that England is better resourced.
The association said: "Most commentators would agree that the New Zealand
judiciary punches above its weight when compared, favourably, to other
Commonwealth jurisdictions. The comparison is between those doing very well
from a population of four million and those doing very well from a population
of 60 million.
"We have access to the best legal minds, rising to the top of a
jurisdiction that draws from nearly 60 million people."
A comparison with other jurisdictions is not helpful - Australia and Canada
are much bigger countries with significantly different court structures,
while Ireland,
although similar in size and culture, does not boast a second-tier appellate
court.
But as the bar association concedes, the talent is there. And if one is to
accept lawyers' contention that the judicial committee is "one of the
two pre-eminent final appellate courts in the world," then however
unseemly, credit must be claimed for the eminent Kiwi jurists who serve on
the Privy Council, including its first female member, Dame Sian Elias, and
Lord Cooke of Thorndon, whose eminence was uniquely recognised by his
appointment as a law lord.
Another problem with this unsavoury argument, tapping in as it does to New Zealand
cultural cringe, is it relies on the superiority of the judicial committee.
Yet the Privy Council has mostly found favour with the rulings of the Court
of Appeal. Where it has disagreed, it is not always with unanimity.
Two key cases - a tax-law decision involving Europa and the cervical cancer
case with Dr Michael Bottrill - have been by slim majorities. Are those lords
who agree with the Court of Appeal also not the best legal minds, members of
one of the two pre-eminent final appellate courts in the world?
It is intellectual bankruptcy to hail the law lords as the best of the best
and ignore those rulings with which critics disagree.
Dissenting judgments are also common at the Court of Appeal, an example being
Justice Thomas in the Bottrill
case, a judgment the Privy Council praised.
Cases where it has overturned Court of Appeal decisions or remitted back to
court - Lesa v Attorney-General, Taito,
Europa, Bottrill, the Fisheries
case and Lange v Atkinson - do not
expose appeal court failings per se.
It seems rash if not hopeful on the part of traditionalists who argue a
Supreme Court would not have reached a similar judgment, as it does not
follow that one failing nullifies the abolitionist argument or that a local
Supreme Court would not have reached a similar decision or not have been as
critical of the Crown.
But Taito and Nicholls are warnings and a ringing endorsement of the need for
an independent second-tier appellate court.
The question of independence is clearly raised in the decision on the Court
of Appeal systems and the solicitor-general's unwillingness to accept the
mistake had been made.
In these circumstances, it is easy to accept the Bar Association contention
that the Privy Council is an excellent, if not pre-eminent, final appellate
court.
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