This week the Court of Appeal released its decision in Lundy v R  NZCA 410 in which it said that expert evidence about mRNA that was admitted at Mr Lundy’s retrial was inadmissible. That judgment mentioned, but did not dwell on, the fact that a differently constituted Court of Appeal had ruled the evidence admissible in an earlier pre-trial admissibility challenge (Lundy v R  NZCA 576). Awkward.
Regardless, said the latest incarnation of the Court of Appeal, the inadmissible evidence did not lead to a miscarriage of justice. There was other evidence available to support a conviction. It applied what is called “the proviso” and upheld Mr Lundy’s conviction.
Since then, there have been murmurings about an appeal to the Supreme Court. I divert briefly here to say I’m not sure I immediately see on what grounds the Supreme Court would grant leave. The two most likely grounds (and even then…) seem either to have another look at the proviso (although that seems reasonably well-settled), or else allow leave on the general miscarriage ground (but they’d probably want to restrict the points on which they allow argument rather than allow a complete rehearsal of all the points taken in the Court of Appeal).
Assuming an appeal is taken, and assuming leave is granted, who would hear the appeal? The available pool of justices seems slim for the following reasons.
The current permanent Supreme Court bench is as follows:
- Elias CJ
- William Young J
- Glazebrook J
- O’Regan J
- Ellen France J
Any appeal will be heard next year, at which point Elias CJ may well be retired (her Honour retires in March 2019), but she will presumably stay on as an acting Judge (and will be first off the rank for acting Judge according to this policy).
The three likely replacements for Elias CJ are:
- Kós P
- Winkelmann J
- Williams J
And then remaining on the potential acting Judge rank are (in order):
- Arnold J
- McGrath J (he is listed on the Court website but it may not be updated. He is not listed as an acting Judge in the front of the New Zealand Law Reports.)
Having set up our Guess Who board, let’s start eliminating contenders. Remember, we need five to sit on a Supreme Court panel. I am also assuming that having sat on a previous hearing will be enough for disqualification. It may be that the Court takes a tougher line on disqualification.
Did your Supreme Court justice sit on the Privy Council board that allowed Mr Lundy’s appeal in  UKPC 28,  2 NZLR 273?
Eliminate Elias CJ from contention.
Did your Supreme Court justice sit on the most recent Court of Appeal decision dismissing Mr Lundy’s appeal in  NZCA 410?
Eliminate Winkelmann J from contention.
Did your Supreme Court justice determine that the mRNA evidence was admissible at pre-trial first instance on the retrial following the Privy Council decision?
Eliminate Kós P from contention.
Did your Supreme Court justice determine that the mRNA evidence was admissible at pre-trial appeal on the retrial following the Privy Council decision in  NZCA 576?
Eliminate Ellen France J from contention (although she was in the minority that would have allowed the appeal).
Did your Supreme Court justice sit ALL THE WAY BACK IN 2002 on Mr Lundy’s first appeal to the Court of Appeal in (2002) 19 CRNZ 574 (CA)?
Eliminate Glazebrook and McGrath JJ from contention.
Do we have anyone left?
Who does that leave? The best case scenario for available judges is that Williams J gets promoted to the Supreme Court following Elias CJ’s retirement. The permanent members who can sit will then be William Young, O’Regan and Williams JJ. Assuming Arnold J can still be drawn upon (his acting warrant lasts until 11 April 2019 but he might be authorised to sit on the proceeding), that makes four.
So it would seem likely that the Supreme Court would draw on the next most senior Court of Appeal justice (as per their stated policy online – although not expressly required by the Senior Courts Act 2016). Except they can’t! Because that is French J, who also sat in the  NZCA 576 Lundy proceeding. That leaves Miller J.
But worst case would be if Winkelmann J goes to the Supreme Court in place of Elias CJ. That means that only William Young and O’Regan JJ can sit. They can draft in Arnold J (again, assuming his warrant gets extended or he is otherwise authorised to sit). Then Miller J comes in from the Court of Appeal to take it to four members. But then the next two members of the Court of Appeal are not eligible – Cooper and Asher JJ both sat in the most recent Court of Appeal decision. So Brown J could end up sitting on the Supreme Court for the hearing of any Lundy appeal.
EDIT (18 September 2019): As always, I’m not quite right about these things. Miller J did sit. In the time before the post and the hearing, Winkelmann and Williams JJ both went to the Supreme Court. Arnold J sat as an acting judge. The panel was William Young, O’Regan, Williams, Arnold and Miller JJ. But, I was significantly wrong in another respect because I did not obey the first rule of legal work: “Read the bloody statute”. Section 110(3) provides that “Only 1 Court of Appeal Judge appointed under subsection (1) may be present at a sitting of the Supreme Court for the hearing of a proceeding”. So there was never a chance of Brown J sitting.