Taito v R ; Bennett and Others v R
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn |
| Judgment Date | 19 March 2002 |
| Neutral Citation | [2002] UKPC 15 |
| Docket Number | Appeals Nos. 50 and 59 of 2001 |
| Court | Privy Council |
| Date | 19 March 2002 |
and 10 Others
[2002] UKPC 15
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Hutton
Lord Rodger of Earlsferry
Privy Council
[Delivered by Lord Steyn]
There are twelve criminal appeals from decisions of the Court of Appeal of New Zealand before the Privy Council. Each appellant had a statutory right, reinforced by a provision of the New Zealand Bill of Rights Act 1990, to appeal without leave from decisions of lower courts to the Court of Appeal. After conviction and sentence each appellant lodged a notice of appeal. None of the appellants could afford to pay for legal representation. They all applied for legal aid. The decisions on legal aid 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 applications were dismissed. Three of the appellants
sought a review of the refusal of legal aid. Those challenges were dismissed without hearings and without reasons. In accordance with the practice then prevailing the cases were listed on various dates for ex parte dismissal by the Court of Appeal.
Having failed to obtain legal aid none of the appellants were represented before the Court of Appeal and they were not present at the proceedings. All had been informed that they had the right to lodge written submissions. Some availed themselves of the right but most did not do so. When no submissions were lodged the Court of Appeal, consisting of three members, routinely dismissed the appeals without examination of the merits of the appeals and without reasons. When written submissions had been lodged, the Court of Appeal dismissed the appeals with brief reasons which were prepared by one of the judges who advised against legal aid or by the review judge. The members of the Court of Appeal disposing of such appeals were called "the delivery judges": occasionally one or more of the delivery judges had dealt with the refusal of legal aid but it was not considered necessary for the members sitting to have any knowledge of the circumstances of the case. The view then taken was that, if the three members of the Court of Appeal had already concluded that the particular case did not merit legal aid, it had no realistic prospect of success. This is in broad and necessarily imprecise outline the system under which the appellants' appeals were dismissed by the Court of Appeal. This system has now been replaced by legislation passed by Parliament in 2000 and 2001.
The appellants submit that as a result of systemic departures from the procedures under the legislation then in force, their appeals were arbitrarily dismissed. The appellants argue that they never received any or proper hearings of their appeals to which they were entitled as of right. In these circumstances it is sufficient to describe the appellants and the circumstances of their otherwise unrelated cases in an Appendix to this judgment. Except in the case of Johnson, there is no material before the Privy Council about the grounds of appeal of the appellants, let alone material to indicate that their appeals have a realistic prospect of success. In the case of Johnson there are some particularised grounds of appeal which the Crown have had no opportunity to investigate. It was agreed that in the case of Johnson the Privy Council must also concentrate on the systemic challenge to the way in which the appeal procedures operated.
I. The Legislation Applicable to the Appeals.
The powers of the Court of Appeal of New Zealand derive from the Judicature Act 1908. Judges are assigned to act as members of a criminal or civil division of the Court of Appeal: section 58C. Only the criminal jurisdiction of the Court of Appeal is relevant to the present appeal. A full court consists of five or seven judges. Unless the full court hears a case, the court "sits" in divisions comprising three judges: section 58. The judgment of the court must be in accordance with the opinion of the judges present: section 59. There is provision for adjournment of cases in the absence of judges: section 61. In summary the Judicature Act contemplates therefore that a duly constituted division of the Court of Appeal, having conducted a hearing according to law, may deliver judgment in accordance with the opinion of the Judges who are present during the hearing of the case and at the time of judgment. And rule 14 of the Court of Appeal (Criminal) Rules 1997 provided that "The Court must deliver in open Court its decisions on appeals …".
The commitment of New Zealand to the International Covenant on Civil and Political Rights (1966) is evidenced by its ratification of this treaty in 1978 and its ratification of the Optional Protocol in 1989. The latter provides that individuals who believe that their rights under the International Covenant on Civil and Political Rights have been infringed may take their complaints to the Human Rights Committee set up under the International Covenant on Civil and Political Rights. The International Covenant influenced the shape of the New Zealand Bill of Rights Act 1990. Although it is not entrenched and cannot found constitutional challenges to legislation, section 6 of Bill of Rights Act provides that an interpretation of the legislation consistent with the rights and freedoms contained in Bill of Rights Act is to be preferred: see Joseph, Constitutional and Administrative Law in New Zealand, 2nd ed (2001) pp 1043-1048. In the context of the present cases the following rights contained in the Bill of Rights Act are relevant:
"25 Minimum standards of criminal procedure Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
…
(e) The right to be present at the trial and to present a defence.
…
(h) The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
…
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law."
For present purposes the most important point is that section 25(h) provides in effect that no leave to appeal is required to appeal against a conviction or sentence.
Earlier statute law requiring leave to appeal against conviction or sentence had to be amended. By section 2 of the Crimes Amendment Act 1991 the Crimes Act 1961 was amended to provide for a right to appeal without leave against conviction or sentence or both. For the criminal justice system this was a watershed: it rendered reference to earlier precedent and practice obsolete in respects relevant to the present appeals. Given the nature of the arguments before the Privy Council, it is necessary to set out the provisions of the Crimes Act 1961 (as amended) insofar as it is applicable to the appeals under consideration. The following provisions appear to be relevant:
"383 Right of appeal against conviction or sentence
(1) Any person convicted on indictment may appeal to the Court of Appeal against –
(a) The conviction; or
(b) The sentence passed on the conviction (unless the sentence is one fixed by law);
or(c) Both."
Section 388 deals with the time for appealing. The detail is not relevant. But the concluding sentences of section 388 are relevant. They provide:
"The rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires. Any case or argument so presented shall be considered by the Court." (Emphasis added)
Section 390 prescribes the duty of the Solicitor-General in the following terms:
"It shall be the duty of the Solicitor-General to appear for the Crown on every appeal against conviction or sentence by the person convicted, except so far as any other counsel employed or engaged by the Crown, or a private prosecutor in the case of a private prosecution, undertakes the defence of the appeal, and provision shall be made by rules of Court for the transmission to the Solicitor-General or all such documents, exhibits, and other things connected with the proceedings as he may require for the purpose of his duties under this section." (Emphasis added)
Section 392(1) imposes on the Registrar of the Court of Appeal the duty to take all necessary steps for obtaining a hearing of the appeal. This provision must be read with two rules of the Court of Appeal (Criminal) Rules 1997:
" 10. Registrar to allocate fixture and prepare case on appeal–
(1) The Registrar must, for each appeal, allocate a fixture and prepare a case on appeal.
(2) The Registrar must send the case on appeal to the parties or other legal representatives, and the parties or other legal representatives must advise the Registrar if any additional material is required to be before the Court at the hearing." (Emphasis added)
" 13. Registrar to give parties notice of fixture– Notice of the time and place fixed for the hearing of an appeal or application for leave to appeal must be given by the Registrar to–
(a) The Solicitor-General; and
(b) The accused person or convicted person; and
(c) If the appellant is in custody and the Court has granted the appellant leave to be present at the hearing, the chief executive of the Department of Corrections." (Emphasis added)
Section 392(2), although not directly relevant to any of the cases under consideration, casts...
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