Legal Beagle by Graeme Edgeler


Necessity: or the Sky is Falling

Yesterday, Parliament went into urgency to pass a law to validate 10+ years of speeding fines, in an un-named number of council areas, thought to be up to 25.

I opined (can you tell I read Biggles books growing up?) on the Twitter (can you tell I watched Letterman?) that, just once, when we were told that an urgent law change was needed to patch some legislative mess, we should just say no, and see what happens.

But then, I remembered that had – albeit accidentally – already happened.

In 1990, New Zealand passed the Bill of Rights Act, which included a right to appeal convictions. Shortly after this, the Crimes Act was updated to provide for this right, expanding what had previously existed, which was the ability to apply for leave to appeal (if you couldn’t convince the court that your arguments were good enough to listen to, permission to appeal was denied, and you didn’t get to argue your appeal fully).

Because of this law change, the workload of the Court of Appeal increased. But they weren’t really set up for it, and they started cutting corners. Criminal appellants who arranged their own lawyers got full appeals, but those who were relying on legal aid (which for appeals, was then administered by the Court of Appeal) had extra hoops to jump through. A criminal would file a notice of appeal themselves (coming up with the arguments they could, usually without legal advice, and without access to important trial documents) and would ask for a legal aid lawyer to be appointed. The registrar of the Court of Appeal was supposed to consider whether legal aid should be granted, which required consideration of the interests of justice, in respect of which the input of a Judge could be sought. A practice developed whereby one judge would be asked, they would refer the matter to two other judges (all assisted by recent law graduate judge’s clerks), who would sign an internal legal aid document that agreed or disagreed that the interests of justice required a grant of legal aid.

If legal aid was denied, that was basically it. The person appealing wasn’t sent a “case on appeal” (which is all the important documents from the trial, including, for example, the trial transcript, and the judge’s summing up), despite the rules requiring this. They were usually told they could file their own submissions, but their case was never set down for oral argument, despite the rules requiring this as well. The Government didn’t send along a lawyer to argue for the Crown (that too was legally required, and is occasionally the reason an appeal succeeds!).

All that happened was that the case was set down to have the decision announced in open court. If submissions had been filed, there might be brief comments responding to them, but there was no full decision, and, quite often, the announcement of the decision would be at a different time than that which was announced. The judges officially dismissing the appeal might have been involved in the legal aid process, or might have had no knowledge of the case at all. On 29 June 2000, only one judge was present in Court to summarily dismiss two such appeals, and being aware that the Judicature Act required two judges to announce a decision, Justice Keith (who later became a judge of the World Court) apparently invited the Court registrar to take part, and both appeals were formally announced as being the decisions of Keith J and Madam Registrar.

This system had been going for about 10 years when it was finally challenged. There was a High Court case judicially reviewing the decision of the Court of Appeal registrar on legal aid, which the High Court, expressing some concerns, ordered to be heard in the Court of Appeal. The Court of Appeal, decided the case in a split decision, and leave was sought to appeal the decision on the Judicial Review to the Privy Council. The Court of Appeal hearing the application for leave to appeal, decided that, despite the case being a judicial review, it was nonetheless a criminal case, and they couldn’t grant leave to appeal. Lawyer Tony Ellis apparently elicited gasps from the other lawyers present by telling the Court that “there isn’t a carpet big enough for you to sweep this under” when the decision was announced. He was right.

Ultimately, instead of appealing the judicial review decision to the Privy Council, lawyers Tony Ellis and Antony Shaw found a group of people whose convictions had been summarily dismissed in this way, and bundled them together in an appeal of their criminal convictions to the Privy Council. The case is perhaps the most important criminal law case in New Zealand legal history: Fa'afete Taito v The Queen (.rtf).

Which is where we get to the validating legislation. After the cases reached the Privy Council, but before it had heard the appeal, or issued judgment, the Government reacted, and moved to pass legislation that would validate the other appeals that had been heard in this way. It wasn’t all stages urgency, but at first reading the bill was sent to the Government Administration Committee for only two weeks. It proved difficult, and the time was extended. Later still, the Bill was re-referred to the Justice and Electoral Committee, to which a group of Court of Appeal judges gave a briefing pressing for the passage of the bill, and the bill actually took over a year from introduction to passage, but it nonetheless passed before the Privy Council heard the case (there was a carve out for the particular cases already before the Court, but the legislation was intended to validate other similar appeals that had failed to comply with the Crimes Act appeal provisions, or the Court of Appeal Rules).

In March of 2002, the Privy Council did rule against the government, ordering the Court of Appeal to hear each appellant’s appeal again. And it did so in a particularly emphatic manner. Not only did the Privy Council find breaches of the Crimes Act, and Court of Appeal rules, but they invalidated the appeals on a number of other grounds as well. Which, of course, meant that the validating legislation didn’t actually validate anything. The practices of the Court of Appeal had been found seriously wanting, and the findings of around 1500 criminal appeals were in question.

This was the Armageddon that officials, and the even judges of the Court of Appeal had warned about. The feared consequences that had necessitated the passing of retrospective validating legislation had in fact occurred, because the validating legislation itself hadn’t done enough to fix the problem.

And the Government decided that, actually, it wouldn’t try again. A test case was brought to the Court of Appeal from among those affected by the unlawful appellate system, but who had not been included in the Privy Council appeal to see what would happen (this was Phillip Smith, now more famous for fleeing to Brazil, and currently facing charges of escaping prison), and the Court of Appeal decided that, he, like those who had gone to the Privy Council, would get a new appeal, and that anyone else who had had their appeal denied after being refused legal aid would be able to apply for a new appeal as well.

The Ministry of Justice advertised the availability of these re-hearings in prisons, and elsewhere, and hundreds of convicted criminal got new appeals. One of the Privy Council appellants, whose appeal had been deemed so hopeless that he shouldn’t even be allowed a lawyer to argue it, had his murder conviction overturned, and at his re-trial was convicted of manslaughter. Another of the appellants, who had been convicted and sentenced on the basis that he was the ring-leader of an armed robbery, was in a later case determined to be so intellectually disabled that he was unfit to even undergo a criminal trial.

Most of the people who got new hearings didn’t win their appeals. But that is true of most criminal appeals. And it turned out that those who sought new appeals were only slightly less successful in their appeals than ordinary criminal appellants.

The worst case scenario actually happened. Ten years of Court of Appeal decisions in serious criminal cases were threatened, but the Government decided not to re-legislate to re-fix it, and the sky did not fall in.

Which makes me wonder about yesterday’s urgent legislation to validate speed limits and speeding tickets.

What actually would have happened if legal process had been allowed to play out? I reckon very few people would actually have appealed five- or ten-year-old speeding fines (it was a fair cop, even if the posted limits had expired), but the Minister of Transport has said this wasn’t about revenue, but safety. Well, even if there aren’t speed limits, dangerous driving would still be illegal, and careless driving would still be illegal, so driving at 150km/h in a school zone would not suddenly go unpunished.

So I'm not convinced this was necessary. I’m not sure what the worst case scenario they fear is, but I doubt the sky would have fallen in, and maybe, one day, Parliament will again decide to chance it.

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