Detective mode

maths
In what journal do I publish my research?

I’m meant to be writing a case note about the Craig v Williams [2019] NZSC 60 recall decision.  But within the first five minutes I got distracted because the decision – like all Supreme Court recall decisions – is not attributed to a particular judge.

The decision has been criticised, both ably and less-ably.  It’s a judgment that is powerful in its silence on Arnold J’s decision-making.  It risks relegating the effect of the Guidelines for Judicial Conduct.  And it’ll end up getting cited the next time a judge accidentally stumbles into a situation like this.  The ratio appears to be something along the lines of brain explosions are not grounds for recall.

But could we figure out who in fact wrote it?  Individual authorship doesn’t matter, really.  All of the permanent members of the Court signed up to it so who cares who wrote it.  But I spent three hours today (which is also my birthday) ctrl-F-ing through Supreme Court (and, in the case of Winkelmann CJ and Williams J) Court of Appeal decisions looking at writing style in order to try to find out.  And I’m not going to let that go to waste!

So, with my armchair linguist hat at a jaunty angle, I present a wildly speculative analysis of the recall decision.

Before I do, I should say that I have zero connection with the Supreme Court (after all, they have standards).  All of this, like everything else on this site, is Not Meant To Be Taken Seriously.  On the off chance I’m correct, it’s just a guess.

There are three overlapping, distinctive features about the writing in the decision that I think warrant scrutiny.  They are:

  1. What’s not said.
  2. Sentence starters.
  3. Description of submissions.

 

What’s not said

The first interesting thing about the decision is what’s not said.  For example, the excellent passive voice language in the decision:

[3] A sailing trip was planned in which both Arnold J and Mr Mills would be participants. …

Was it?  That sentence once used to say who had organised the trip.  But the passive voice smashed down the door, grabbed that key information, and is now holding it at gunpoint in a basement somewhere.

… It appears that … inquiries were made of Mr McKnight, counsel for Mr Williams. …

Oh God!  It’s taken a second hostage!

Actually, we learn later in the judgment that it was Mr Mills QC who asked Mr McKnight, so that one escaped or, possibly, it was released as a show of good faith.

It’s not solely the passive voice (which also features under other headings).  It’s things like the absence of focus on Arnold J’s conduct as well.

In other circumstances, I’d suggest that this might be a hallmark of writing style.  But here, I think those points are just symptomatic of the subject matter.  So it’s necessary to look at the other two features of the decision.

 

Sentence starters

This is a short decision – only 20 paragraphs over seven pages.  It’s easier then, perhaps, to spot concentrations of style.  The writer has said at various points:

Further, if it was possible to consent, the consent given was not an informed consent because Mr Williams was not aware of the Guidelines.

Further, it is argued that the Guidelines are not a code and that the authorities confirm breach of the Guidelines does not create apparent bias.

Further, the events to which Mr Williams consented were in fact what occurred and in accordance with the conditions which Mr McKnight says he stipulated.

Further, to the extent the Guidelines could have provided relevant information to Mr Williams and his counsel, they are in any case publicly available.

I think this is Glazebrook J.  Her Honour frequently starts sentences with “Further,”.  I’ve taken the following examples from cases where Glazebrook J has written a judgment in a Supreme Court decision where at least one judge also wrote a decision (for comparison purposes).

In R v Wichman [2015] NZSC 198 William Young J wrote 131 paragraphs and only once used “Further,” to begin a sentence.  Justice Glazebrook wrote 197 paragraphs and began a sentence with “Further,” 23 times.

Glazebrook J used it five times in the majority judgment in Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR 1 when no one else used it.  Thrice in Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 when Elias CJ used it only once.  Six times in Northland Environmental Protection Society Incorporated v Chief Executive of the Ministry for Primary Industries [2018] NZSC 105 when William Young J used it only once.  In Scott v Williams [2017] NZSC 185 – when the Supreme Court did its best War And Peace impression, there were four separate decisions in which Glazebrook J was responsible for nine of 14 “Further,”s.  The term doesn’t feature strongly at all in the decisions of Winkelmann CJ and Williams J that I read either.

I think this factor sounds moderately strongly in favour of Glazebrook J, but what other indication is there?

 

Description of submissions

The Craig v Williams recall decision has a third distinctive feature.  It seldom attributes submissions to counsel.  Instead, the writer uses the passive voice.  So, we have these sentences in the recall decision:

It is submitted that what occurred here did not comply with the Guidelines particularly where the contact was such that counsel and the Judge were in close quarters over a week-long period.

In these circumstances, the submission is that there is an appearance of partiality when measured by the appropriate standard.

It is also submitted that, given the public interest in preserving impartiality, Mr Williams’ consent is irrelevant.

In any event, the submission is that there was compliance with the Guidelines because Mr Williams’ consent was obtained and there was no discussion of the case.

Finally, it is submitted the delay in raising this matter is tactical and contrary to the authorities which suggest questions of apparent bias should be raised promptly.

Which accords with Glazebrook J style (and only Glazebrook J’s style) of the judges on the panel that decided Craig v Williams.  Again, I looked at a range of decisions using the same methodology as above.  In Xu v IAG New Zealand Ltd [2019] NZSC 68 Glazebrook J wrote:

It is submitted that Bryant is either wrongly decided or distinguishable.

In the alternative, it is submitted that condition 2 of the Policy allows the appellants to restore the home and receive the replacement benefit.

It is submitted that Bryant was correctly decided and is not distinguishable and that condition 2 does not assist the appellants.

And in Quake Outcasts her Honour wrote:

It is submitted that the Crown’s actions in this case had significant practical effects which directly resulted in truncated rights.

In this context, it is submitted that the unequal treatment of the uninsured (and the delays in making decisions about their position) is unlawful, an abuse of power and inconsistent with the earthquake recovery purposes of the Canterbury Earthquake Recovery Act.

It is submitted that the Crown does not require statutory authority to provide information to the public. Ministers were able to make the decision that this information should be provided and the Prime Minister and the Minister were able to provide the information, in the exercise of the Crown’s common law powers.

As to the decision to establish the red zones, it is submitted that this was a delegated Cabinet policy decision, implemented by the announcement made by the Prime Minister and the Minister for Canterbury Earthquake Recovery.

it was nevertheless submitted that the Act does not limit the Crown’s common law power to acquire land and personal property through voluntary transactions.

In addition, it is submitted that it was open to Ministers, when making funding decisions, to take these factors into account.

No other judge in those cases used that terminology.

No judge has a monopoly on “it is submitted”, but Glazebrook J is by far the heaviest user.  And while her Honour also uses more active voice descriptions (eg. “Mr Goddard submits…”), a passive voice description of submissions is a notable and noticeable feature of her Honour’s writing.  And other judges – Winkelmann CJ in particular – are scrupulous at attributing submissions every time they are referred to.

 

Conclusion

Add the two factors together and I would irresponsibly bet the house on Glazebrook J as author of the recall decision.

What this post can’t exclude is the idea that multiple judges contributed to the judgment.  As a judgment of the Court, all judges would have had to be comfortable signing up to it, of course.  But I think the brevity of the decision makes it less likely to have multiple authors.

If it is Glazebrook J’s decision, there is a certain institutional integrity to that.  Her Honour was in the minority in the substantive decision.  It speaks well of the Court as a whole that the question of recall is not used as a vehicle to relitigate the decision as between judges.  Now if only they had said something about the decision to go sailing…

Advice on not thinking about law all the time

It’s important to have a life outside law.

Take up a sport.  Tennis at least means you won’t spend your whole day at court.  In summertime village cricket is the delight of everyone.  If sailing is your thing then you can find a place to partake with a simple dock identification.

Update your wardrobe.  Take a tailored discovery.  If you have four pairs of flat-fronted pants then pleat the fifth.  Change to boxers; amend your briefs.  Re-examine that old attaché and patch up the holes in your case.  If you have veils, pierce them.

Philosophy is another refuge.  I may not qualify as an expert but here’s my opinion.  If you focus on the leading questions the answers will soon be suggested to you.  Recall your wrong judgements.  Mistakes are common, and seldom unilateral.  True meaning cannot be found by only having regard to extrinsic things.

Give back.  Service can seldom be substituted.  An exchange of value is something you should at least give consideration.  Be the beneficiary of trusty companions.

If you can’t find a cause of action then strike out on your own,  even when it seems like there is little prospect of increased security.  And when you develop an interest, work to perfect it.  You’ll soon find yourself speaking in circumstances that attract confidence.  Set aside others’ caveats.  When you find yourself at a crossroads, be sure to look around, because after all it’s always best to observe in junctions.

If things look like they’re going to run away on you, don’t bail.  Turn to religion if you have to; plenty of people have been restored by the accounts of prophets.

There will be times when mercy won’t be your prerogative.  When people plead poorly, you do not need to respond.  And when things turn to custard, well, we’re not concerned with trifles.

It’s quite the undertaking.

But be unwaivering.

And above all stop thinking about law all the goddamn time.  It’s not healthy.

A coronial constitutional curiosity

Content warning: tangential discussion of suicide.

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By all public accounts, the death of Nicholas Stevens was a tragedy.  You can read the background here.  This piece isn’t meant to comment on the particular facts of that case.  I haven’t heard the evidence but you’d be inhuman not to feel for Mr Stevens’ family.  But the case has put into the spotlight a section of the Coroners Act 2006 that I think is constitutionally curious.

Again, before I start.  I simply do not know the facts of this case and have no connection to it beyond what I have read in publicly available media reports.  The points I am raising do not depend on the particular findings of the Coroner.

 

Background facts

In December 2018, Coroner Wallace Bain released findings following an inquiry and inquest into the death of Mr Stevens.  Mr Stevens died while he was a patient at a mental health facility operated by Waikato District Health Board (WDHB).  Mr Stevens walked out from the centre.  He was later found dead.  According to media reports, the Coroner found that Mr Stevens’ death was a preventable suicide.  The Coroner identified shortcomings with the care that Mr Stevens received that permitted him to leave the facility unmonitored when he was unwell.

WDHB’s insurer held concerns at procedural issues during the inquest.  The WDHB wrote to the Solicitor-General seeking a new inquiry overseen by a different coroner.  In a New Zealand Herald article (whose author had seen a copy of the WDHB’s letter) the concerns were summarised this way:

In the letter dated January 23, 2019, [the WDHB’s lawyer] says he is also complaining to the Judicial Conduct Commissioner about Coroner Wallace Bain’s conduct during the inquest.

[The WDHB’s lawyer] raises concerns about the “numerous procedural irregularities” that he believes were not addressed by Bain prior to him releasing his final findings.

“Rather, he has cursorily dismissed fundamental legal principles that provide for fair processes, and issued findings that seemingly accord with his predetermined view that is not supported by evidence”, the letter claims.

It also criticised the coroner’s decision to dismiss the views of a key expert instead of calling on him as a witness, which was “to the DHB’s detriment”.

[The WDHB’s lawyer] also claims the coroner had been communicating with [Mr Stevens’] family on more than simple procedural issues, giving a “strong impression that this inquiry has not taken place in an impartial way”.

Legal framework

A coroner’s findings are a judicial determination.  There is no right of appeal, but if dissatisfied with them you can seek judicial review.  There have been two successful modern instances of coroners’ findings being overturned for being unreasonable (see Smith v Jamieson [2012] NZHC 1047 and Carroll v Coroner’s Court at Auckland [2013] NZHC 906, [2013] NZAR 650).

But the Coroners Act 2006 has some sections hiding in the back of it that confer the power to order inquiries in certain instances.  (The interesting thing is on whom the power is conferred – and I’m getting to that.)

The first is s 95.  Section 95 is the one you use if a coroner hasn’t opened an inquiry in the first place but should have done so when regard is had to the statutory criteria for doing so in ss 57-63.  Section 95 relevantly provides:

If satisfied that an inquiry is necessary or desirable and that the responsible coroner has failed or refused to open one, the Solicitor-General or the High Court may order an inquiry to be opened; and in that case an inquiry must be opened and conducted.

The second is s 96.  Section 96 is the one you use if a coroner didn’t open an inquiry and was right to do so at the time, but since then there are new facts that have been discovered that mean an inquiry is desirable.  Section 96 relevantly provides:

If satisfied that since a coroner decided not to open an inquiry into a death new facts have been discovered that make it desirable to open one and that one has not been opened under section 65 (coroner may decide to open inquiry despite initial decision), the Solicitor-General may order one to be opened; and in that case an inquiry must be opened and conducted.

The third is s 97.  Section 97 is different from the other two because s 97 applies when a coroner has already opened and conducted an inquiry.  Even if there has already been an inquiry, there can still be another one:

If satisfied that 1 or more inquiries have been conducted into a death but another should be conducted because of fraud, rejection of evidence, irregularity of proceedings, or discovery of new facts, or for any other sufficient reason, the Solicitor-General or the High Court may order another to be opened; and in that case another must be opened and conducted.

It is s 97 that matters the most for the Stevens case and the point I am interested in.  But before I get to my point there is one more jigsaw piece.  Section 102 provides that the findings of the new inquiry will replace the findings of the old inquiry:

102 Procedure at inquiries ordered under sections 95 to 97

(1) The findings of an inquiry conducted pursuant to any of sections 95 to 97 replace the findings at every previous inquiry (if any) conducted in respect of the death concerned

(2) Except to the extent that the Solicitor-General or the High Court may have ordered otherwise under section 95 or 96 or 97, all depositions taken for the purposes of any former inquiry into a death must be deemed to have been taken for the purposes of an inquiry into the death held pursuant to that section.

(3) Except as provided in this section and sections 95 to 97, an inquiry held pursuant to any of those sections must be held in the same manner as any other inquiry.

So when you take something like s 97 and s 102 together, the Act provides for certain inquiries to effectively be wiped.  It’s a do-over power.

Now, it’s a do-over power that can only be exercised in certain circumstances.  Section 97 says you can have a do-over in one of five circumstances:

  1. Fraud.
  2. Rejection of evidence.
  3. Irregularity of proceedings.
  4. Discovery of new facts.
  5. Any other sufficient reason.

And of course it’s not just the mere presence of one of those things (which is good, because coroners, like any court, reject evidence all the bloody time).  It has to fall into one of these categories and rise to a level that satisfies the High Court or the Solicitor-General that a new inquiry – that will replace the old one – be conducted.

 

Why can the Solicitor-General effectively overrule a judicial determination?

Which leads me, finally, to my point.  Why is the Solicitor-General conferred this power?  Why can a member of the executive effectively overturn a judicial finding?  The High Court?  Yes.  A court of superior jurisdiction could overturn a coroner’s court finding every day of the week.  But the Solicitor-General?  The Solicitor-General can’t order the District Court to hold a new trial that will replace the old trial.  The Solicitor-General can’t order the Tenancy Tribunal to hold a new hearing that will replace the old hearing.

I will come on to thinking through potential reasons in a little while, but first a small collection of odd things about this power.

First, an identical power is conferred on both the Solicitor-General and the High Court.  This co-terminous power seems a little strange and I can’t quite think through why it’s like that.  It might make sense if the Solicitor-General were conferred the power in respect of certain grounds, and the High Court on others.  For example, if the s 97 power was only conferred on the Solicitor-General in the case of new facts being discovered then that would at least be conceptually consistent with the power in ss 95 and 96.  But it’s not.  The result is that you have to ask who would ever bother going to the cost and bother of commencing proceedings in the High Court, when you could simply write a letter to the Solicitor-General and let them do all the work.  Also, if you apply to either the Solicitor-General or the High Court and are unsuccessful, can you then make a further application to the other?  The section is drafted in a way that raises ambiguities.

Second, it didn’t used to be that way.  The division used to be split along the way I just identified.  In the Coroners Act 1988, s 38 permitted the Solicitor-General to order a new inquiry if new facts were discovered.  But if a new inquest were to be ordered on the grounds of “fraud, rejection of evidence, irregularity of proceedings, or discovery of new facts” or “for any other sufficient reason” then s 40 of the Coroners Act 1988 only empowered the High Court to make the order (on an application that could only be brought by the Solicitor-General).  Examples of that can be seen in Solicitor-General v Coroner of Balclutha HC Dunedin CIV-2005-412-749, 21 March 2006 and Solicitor-General v Coroner at Kaitaia HC Wellington CP258/01, 13 March 2003.

Before the 1988 Act was the 1951 Act.  Under s 27 of the Coroners Act 1951 the Attorney-General could order a coroner to re-open an inquest if satisfied the finding was “defective or erroneous”.  But, crucially, the coroner holding the re-opened inquest “may accept such of the findings and of the evidence given at the previous inquest as appear to him to be correct” (Coroners Act 1951, s 27(2)).  So although the Attorney-General could say “take another look”, it remained a matter for the coroner to say “yeah I have and it’s fine”.  No real usurpation of role there then.  And the (then) Supreme Court retained the orthodox power to overturn findings on the application of the Attorney-General (Coroners Act 1951, s 26).  An example of the Supreme Court doing that can be found in Re Ford’s Inquest [1956] NZLR 805 (SC).

So the 2006 Act changed things.  And the reasons why are not recorded anywhere.  The Law Commission’s report and early draft of what became the Coroners Act 2006 recorded its view that the Solicitor-General should be able to order a new inquiry where new facts are discovered (refer Law Commission Coroners (NZLC R62, 2000) at [458]-[460]).  Again, this seems a reasonably sensible division.  But that did not translate into was what clause 87 of the Coroners Bill 2005 which conferred the power in its present terms equally on the Solicitor-General and the High Court.  The change was not commented upon during the remainder of the legislative process.  The reason will be lost in the mists of the Parliamentary Counsel Office.

A third thing that is unusual about the conferral of the power in s 97 on the Solicitor-General is the risk of a conflict of interest.  The Solicitor-General – through the Crown Law Office – will often appear as counsel for government departments in coronial inquiries.  In cases where that happens, why should the Solicitor-General also be conferred the do-over power in s 97?  It seems to set up the risk of a structural conflict that would be avoided by simply reserving the power for the High Court.

A fourth thing is that New Zealand is completely alone in giving this power to one of the law officers of the Crown.  None of the Australian jurisdictions do: see, for example, the Coroners Act 2009 (NSW), s 85, and Coroners Act 2008 (Vic), s 84 and Coroners Act 2003 (Qld), s 50.  Instead they reserve it to their courts (either with or without first permitting the coroner herself to consider holding a new inquiry).  As does the United Kingdom (either by way of straight judicial review, or through the fiat of the Attorney-General: see Coroners Act 1988 (as amended), s 13, which remains in force following the enactment of the Coroners and Justice Act 2009).

The fifth point is that there is no obvious reason why the Solicitor-General needs to be included in the s 97 power.  The task of auditing an inquiry for procedural irregularity seems well within the High Court’s wheelhouse.  The Solicitor-General almost certainly costs less than commencing proceedings in the High Court, so from an access to justice perspective it’s nice the Solicitor-General can do this.  But if it’s justice you want access to, I am still to be convinced that a member of the executive tipping a decision of a member of the judiciary is consistent with “justice” or the constitutional order.

 

Is there a good reason for giving the power to the Solicitor-General?

Notwithstanding the points above, there might be some reasons why it’s okay that the s 97 power resides with the Solicitor-General.

The first reason might be that a coronial inquiry doesn’t determine civil, criminal or disciplinary liability.  It can only establish facts and make recommendations and comments.  Even if it’s not completely acceptable for the Solicitor-General to effectively overturn a coronial finding, it’s probably more acceptable for the Solicitor-General to be ordering a judicial officer to do that where there hasn’t been any determination of parties’ legal rights.

That’s true, but I don’t feel carried particularly far by that point.  Parliament has recognised the status of the Coroner’s Court as an inferior court (see Inferior Courts Procedure Act 1909, s 2(c)).  Coroners are proper judicial officers.  And coroners do determine legal rights when they issue non-publication orders at least.  All of that adds up to say that even if coroners aren’t judges, they are properly judicial officers, sitting in a court.  The executive shouldn’t be able to be able to decide that there was an irregularity in proceedings such that a do-over is necessary.  That just seems like a Big Deal.

The second reason might be that the Solicitor-General can be trusted to act independently.  As a statement in any individual case, I have no doubt that is correct.  My concern is with the broader constitutional impact, and why the role is allocated to the Solicitor-General.  This question of trusting the Solicitor-General was partly addressed in Berryman v Solicitor-General [2005] NZAR 512 (HC).  That case was about discovery in the context of a judicial review of the Solicitor-General’s refusal to order a new inquiry in the light of new facts under s 38 of the Coroners Act 1988.

Justice Wild held that the Solicitor-General’s functions under the 1988 Act were a “function of a quasi-judicial nature” (at [40]) and the Solicitor-General will act “independent[ly] of government direction” (at [34]).  That was in the context of holding that the Solicitor-General was not the “Crown” when she exercised powers under s 38.  However, the analysis in Berryman only had to contend with the power under the 1988 Act to order a new inquiry if there were new facts.  The 2006 Act confers several new powers.  That at least exacerbates the problem given it expands the grounds on which the Solicitor-General can interfere.  The “I’m doing this independently” excuse has to hold more water when the 2006 power confers a much wider power to interfere.

Because it’s one thing for the Solicitor-General to say “I think these new facts might make a difference”.  The Solicitor-General can say that with no indictment of the coroner’s findings.  It’s quite another to say there was a procedural irregularity in the coroner’s inquiry.  That requires criticism of a judicial officer.  Natural justice likely requires the Solicitor-General to hear submissions from affected parties, and possibly from the Coroner.  That’s asking a lot of a law officer to retain a neutral role when administering certainly extraordinary powers.  It’s less like a law officer function and much more like a proper judicial one.

But, in theory, the point in Berryman still holds.  And we know what the Solicitor-General does under s 97 because someone once gave to Stuff a copy of a Crown Law letter to a family member.  Stuff published it and I saved it at the time.  The test the Solicitor-General applies is set out in the picture below (apologies for the wonkiness – it was scanned that way, and apologies for the wonkiness in the other sense):

Legal test.PNG

So there’s no doubt that the test is being applied in a judicial way.  And that probably answers my point above about the risk of structural conflict.  It’s a “law officer thing”, and we trust that “law officer things” are done properly.  Leave Una alone!  But, on a normative level, if s 97 requires a person to act judicially, why isn’t the power only given to someone whose day job it is to act judicially?  Like a High Court Judge.

A third response to the issue is to take a further step back (the macro-macro view, if you will), and say that, well, Parliament enacted the section.  Parliament can do what it wants, and if Parliament wants to confer on one of the law officers the power to override decisions of the judiciary, then Parliament can do just that.  At that level, that’s in perfect constitutional order.  Fine, I guess.  Parliamentary supremacy is a cop out though.  And the change from the predecessor Acts with no stated reason and the fact that no other jurisdiction does what we do makes me less inclined to trust Parliament knew what it was doing on this one.  Why is this so out of step with the rest of our constitutional order?

 

Concluding thoughts

I’ve no idea what the Solicitor-General will decide in the Stevens case.  There’s a chance that the new Commissioner of the WDHB will pull the case.  That will make the entire thing go away.

But if the Solicitor-General does have to make a decision it will be (as far as I know) new territory in terms of having to grapple directly with one of the new grounds in s 97 of the Coroners Act 2006.  It will be interesting to see to how the Solicitor-General chooses to engage with that task.

I can’t really offer comment given I know none of the facts.  Despite that, my gut instinct is that it would be appropriate for the Solicitor-General to decline to exercise her power under s 97 in some instances where she considers it is more appropriate for the applicant’s grounds to be determined by the High Court.  That outcome is not demanded by the wording of the section, but is appropriate in a constitutional sense.

The broad dividing line as I see it is if the reasons are internal or external to the inquiry.  New facts are external to the inquiry.  They require regard to the inquiry but no comment on or criticism of the sufficiency of the inquiry.  The Solicitor-General can perform that role in the way that Berryman v Solicitor-General okayed.

Most procedural irregularities are going to be internal to the inquiry.  You need to scrutinise what the coroner did and how they did it.  Where the task approximates judicial review, it’s not appropriate for the Solicitor-General to exercise the do-over power.

We’ll see how that plays out.  And we can all hope that in this case justice doesn’t require increasing the pain of Mr Stevens’ family.

The highest court in the land

OhakuneDC
This tiny picture of the Ohakune District Court hearing centre is the only picture that Google offers.

One of my aspirations as a young advocate is to one day have the opportunity to make submissions in the highest court in the land.

By which I mean the court that has the greatest elevation above sea level.

According to a highly scientific free online website that lets you type in addresses and tells you the altitude of a point, I can confirm that the highest court in the land is the Ohakune District Court hearing centre.  Of course, it’s only a hearing centre which means it isn’t open all the time.  But no one said appearing in the highest court would be easy.  It’s like that old how do you get to Carnegie Hall joke: except for a lawyer it’s practice of a different kind.

My innovative new juridi-geographical hierarchy of courts heralds a new way of conceiving the relative status of our courts and definitely warrants a hefty grant from the Borrin Foundation.  As an initial proposal, I call on the Supreme Court to immediately begin hearing cases in Ohakune.  The slopes of Turoa and Whakapapa will make excellent locations for Supreme Court Judges to take skiing holidays with counsel after the hearings.

Notable findings of my initial survey conclude what we have known all along, like the fact the Court of Appeal is a higher court than the Supreme Court.  It also reveals surprising findings such as the fact that the Auckland District Court is the highest court in Auckland.  In this, I haven’t factored in the Court of Appeal hearing centre in Auckland, which is halfway up a tall office building and the subject of previous comment.

The results are below.  I haven’t done every court because I have some submissions I really need to finish…  I am quietly sceptical of some of the precise readings (Is the Supreme Court really 22 metres above sea level?  And does the Hutt Valley District Court have a lower altitude than central Wellington courts?) so don’t @ me to quibble about the  results of the ultra-precise methodology I have used!

 

(Partial) Hierarchy of the highest courts in the land

585 metres – Ohakune District Court hearing centre

440 metres – Taihape District Court

373 metres – Taupo District Court

324 metres – Queenstown District Court

186 metres – Kaikohe District Court

146 metres – Alexandra District Court

104 metres – Ashburton District Court

59 metres – Te Kuiti District Court

43 metres – Auckland District Court

39 metres – Auckland High Court

37 metres – Palmerston North High/District Court (this really doesn’t seem right?!)

36 metres – Manukau District Court

33 metres – Levin District Court

26 metres – Court of Appeal of New Zealand

25 metres – Tauranga High Court

24 metres – Tauranga District Court

22 metres – Supreme Court of New Zealand

22 metres – Kaitaia District Court

19 metres – Papakura District Court

18 metres – Chatham Islands District Court

11 metres – Hutt Valley District Court

8 metres – Opotiki District Court hearing centre

8 metres – Blenheim District Court

7 metres – Dunedin High/District Court

Sena v Police [2019] NZSC 55 as applied to sentencing appeals

marble-maze
Our legal system

Changes to appellate tests are in vogue in the senior appellate courts.  And like one of those marble chute toys for children, the changes are kerplunking their way down the hierarchy of courts.  But the path one of those cases is taking might deserve further thought.

Sena v Police

In Sena v Police [2019] NZSC 55 (and presumably coming to a Law Report near you) the Supreme Court held that the test on appeal against conviction from a judge-alone trial was a general appeal.  That was on the basis of some detailed consideration of the legislative history.  In Sena, the section of the Criminal Procedure Act 2011 that conferred the right of appeal was s 232.  It’s set out next.  Pay particular attention to s 232(2)(b):

232 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a) in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

Sena was an “erred in his or her assessment of the evidence” case.  Leave to one side the regrettable gender-binary language of the Act.  The Supreme Court was critical of the trial judge’s reasons.  There were conflicting witness accounts.  The judge favoured one side and rejected the other.  But the judge didn’t explain why, or engage with the conflicts in the accounts.  That was sufficient to show an error in the judge’s assessment of the evidence, and it was to such an extent that a miscarriage of justice occurred.

Writing for a unanimous Court, William Young J’s key conclusions on the approach to be taken to s 232(2)(b) were as follows:

[36] … We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. As we explain later in these reasons, this case involves such a misapprehension.

[37] In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.

[38] To the extent that [counsel for the appellant’s] first line of argument is based on the premise that the approach in Austin, Nicholls applies to appeals from judge-alone trials, as indicated above, we agree. If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But, to the extent that Mr Jones was suggesting that the role of an appellate court is to consider the issues de novo as if there had been no hearing at first instance, then we do not agree. Since it is an appeal, it is for the appellant to show that an error has been made.

One of what I think is the most important points in there is that the Supreme Court viewed the statutory appeal ground in s 232(2)(b) as giving a meaningful consequence to the duty on a trial judge to give reasons.  The duty exists in s 106 of the Criminal Procedure Act 2011 and at common law.  A failure to comply is likely to translate into an error under the Act because you won’t have shown that you assessed the evidence properly.

Another important point of context (which isn’t unique to Sena) is that even on a general appeal, the appellate court does not automatically interfere.  An appellate court will only do so if satisfied there is an error in the decision below.  So the first thing an appellant has to do is convince the appellate court that there is an error.  Only if they get past that stage will the appellate court then substitute its own views.

Sena changed (some would say clarified) the test on appeal from judge-alone trials.  You get a general appeal, not a more limited review that jury trials get.  As William Young J explained, the Court isn’t really changing the law.  The Court’s conclusion is just a product of statutory interpretation: everyone had simply been using the wrong test since the advent of the Criminal Procedure Act 2011.  But that’s not what has prompted the post.  Up to now has simply been necessary background.

Sena, Palmer J and sentencing

What did Sena change?  It changed the test for appeals against conviction from judge-alone trials.  And it emphasised the importance of reasons.  If you don’t get your reasons right, it will animate the ground of appeal in s 232(2)(b).  That’s the section which lets you win your appeal if the judge has erred in his or her assessment of the evidence.  Boiled down to its most simple: a failure to give proper reasons matters, because s 232(2)(b) gives you an appeal from the failure.

This week, Palmer J has taken the reasoning in Sena and applied it to sentence appeals.  And I think sentence appeals are different.

Most importantly, sentence appeals are brought under a different section of the Criminal Procedure Act 2011.  Section 250 of the Act provides:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

Section 250(2)(a) is what I care about.  Your appeal gets allowed if there is an error “in the sentence imposed”.  It’s outcome-focused.  There has to be an error with that which was imposed.  That stands in distinction to the process-focused ground of appeal in s 232(2)(b) where what matters is whether the judge “erred in his or her assessment of the evidence”.

Any sentencing judge has to give reasons.  Any judge at all has to give reasons.  That’s Judging 101.  But s 250(2)(a) doesn’t turn that process failure into an automatic error on appeal.  Instead, there has to be an error in the sentence imposed.

Justice Palmer appears to disagree.  In Allport v Police [2019] NZHC 1306 his Honour set out the test on an appeal against sentence:

[15] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range. Consistent with the rule of law, and the requirement for rational and compelling reasons in Sena v New Zealand Police in relation to conviction appeals, I consider it self-evident that an unreasoned sentencing decision will require an appellate court to undertake the sentencing exercise afresh.

I read his Honour in that last sentence to be saying that, on a sentence appeal, a failure to give decent reasons automatically translates into an error in the sentence imposed.  The significance of that is that that very first step of an appeal – demonstration of error – will already be met.  That means that the appellate court can simply proceed to substitute its own views (in accordance with general appeal principles under Austin Nichols).

His Honour said something similar (perhaps a little softer) in Papa v Police [2019] NZHC 1309:

[5] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range. Ms Lim, for the Police, is correct that this is not an appeal against discretion, as the Court of Appeal found in Palmer v R (no relation). If, on appeal, I am satisfied there is an error in the decision below then I must allow the appeal if I consider a different sentence should be imposed. That is consistent with the Supreme Court’s recent judgment of Sena v Police applying the Austin Nicholls [sic] approach to conviction appeals. I consider the requirement for reasons, and the rule of law itself, means an unreasoned sentencing decision will require an appellate court to undertake a sentencing exercise afresh. Absence of reasoning is highly likely to be an error.

I am not convinced that Sena v Police can be applied directly to sentence appeals.  This is for three overlapping reasons (and I’m not convinced the first two aren’t just the same reason said in two different ways):

First, the statutory context is different.  Section 232(2)(b) means appeals can be permitted in situations where there has been a process error – a judge didn’t set out all the reasons that they really should.  And in Sena the Supreme Court set out what those shortcomings might look like.  But s 250(2)(b) seems aimed at outcome: error in the sentence imposed.  Admittedly, it is error “for any reason”, but that broad term is still brought down to earth by the words that follow: “the sentence imposed”.  It follows that some care would need to be taken with translating Sena‘s reasoning over to sentence appeals, and doing so would need to account for the difference in statutory language.  With respect, Palmer J’s reasoning does not do that.

Second, and building on the first reason, while Palmer J is absolutely correct that judges should show reasons in sentencing that does not mean that a failure to do so necessarily translates into something that matters on appeal.  As a judgment, Sena is a link explaining why a failure by a judge to fulfil the duty to give reasons for a verdict will translate into an appeal under the relevant section of the Criminal Procedure Act 2011.  But we don’t have that explanation (from the Supreme Court or from Palmer J) linking the failure to give reasons for a sentence to the relevant section for sentence appeals.  As the first reason (above) sets out, s 250 doesn’t seem to be fertile ground for recognising that type of error anyway.

Third, we already have the Court of Appeal indicating that it is the end sentence that counts, even when the process is absolutely abysmal.  For example, in R v S (CA64/06) [2007] NZCA 243, Hammond J said this about a sentence that was near impossible to unpack:

[79] The first point to be made here is that this Court has emphasised on a number of occasions that Judges must today “do the arithmetic”. That is they must indicate, in some manner which is amenable to review, where they started from and how they got to the sentence actually imposed. For instance, in this case — we cannot tell from the face of the sentencing notes — it is possible that the Judge adopted a higher starting point than 12 years and then discounted it somewhat. But we do not know.

Despite those errors, the Court of Appeal went on to demonstrate that there was no error in the sentence imposed.  If anything, it was generous.  So, it declined to intervene. That’s just one case but there are many more.  I only picked it because it was Hammond J, and I’ve always liked the “do the arithmetic” quote.  The point is, it’s substance, not process, that matters on sentence appeals.

None of this is to excuse sentencing judges from giving reasons.  They should.  They have to.  It’s part of judging.  They should be criticised when they don’t give adequate reasons.  But it doesn’t mean there is an error in the sentence imposed.  By itself, a failure to give adequate reasons in a sentencing decision should not be an error that automatically opens the door to the appellate court’s substitution of its own sentence.

A failure to provide reasons will, however, often mean that an appellate court is more likely to find error in what little a sentencing judge has bothered to articulate.  If a sentencing judge hasn’t explained why there is only a 10% discount for remorse then it is more likely that an appellate judge could decide that there was in fact an error in the sentence imposed.  The sentencing judge will have lost their best opportunity to have their sentence upheld.

And finally, what do I really know anyway?  Maybe there is a good basis for applying Sena v Police to sentencing appeals.  Justice Palmer is a hell of a lot smarter than I am.  If other judges pick it up and run with it, then maybe we’ll get a longer explanation at some point.

In the meantime, if we could stop changing appellate tests for everything that would be great.