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…

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.

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.

A short report from the launch event of the Aotearoa Legal Workers Union

ALWU
They have a sign.

Last week I read about the formation of the Aotearoa Legal Workers Union and decided to go along to its launch event so I could write about it.  I figured my opening line would be something like this:

There’s an old labour movement tactic where members from one group take up positions of power within another and subvert it to their will.  It’s known as (and I’m not making this up) boring from within.  The launch event of the Aotearoa Legal Workers Union went in a different direction, but I can assure you it was still boring from within.

Having attended the Auckland launch event, though, I don’t think it’s fair.  It was… something. I don’t think the Union quite knows what it is yet or whether it will be a long term success, so neither do I.  But the people running it seem to have a clear idea of what they want to do, and it was interesting to see the beginnings of something that has the potential to go far.

It was held at the Pioneer Women’s Hall in Freyberg Square and it was chaired by a pioneering woman.  Hayley Coles is formerly of Simpson Grierson and presently interim president full-time out of the Aotearoa Legal Workers Union.  The last lawyer to start a union was Jordan Williams.  Without meaning to damn with faint praise, Hayley Coles is not Jordan Williams.

She outlined a clear, concise vision of the short to medium term goals of the union.  A campaign to ensure law firms comply with the Minimum Wage Act.  The law is clear, timesheets can be checked, and people know what they get paid.  Other goals will come later, and will be determined by membership at an AGM in August.  In the meantime, this is an issue with which they can engage with law firms.  In doing so, they can speak softly with the big stick of the Minimum Wage Act looming in the background.  There followed a very capable Q & A.

She spoke to maybe 40 attendees (among which was one of her Majesty’s counsel).  Presumably changing working conditions so that lawyers can leave work for a 5.30pm meeting is one of the long-term goals.  Those attending were mostly young.  I don’t know how many, like me, went along just to see what happened.  I was wanting managing partners of big law firms to appear on the scene like Team Rocket and have some sort of confrontation.  The most drama we got was a microphone that kept dropping out.

The Union calls itself ALWU – pronounced as its spelled, and sounding for all the world like an Ikea side table.  An announcement that it presently has over 330 members got a round of applause.  They’ve met or will meet with some big law firms – part of the tête-à-tête offensive that is their overall strategy.

If everything seemed very tame then the guest speaker – barrister Helen White – brought some fire and brimstone with weirdly out of place political comments.  Unions are good, and the leader of the Opposition’s recent comments to the contrary were “completely ridiculous”.  “If the leader of the Opposition doesn’t get it then he’s living in the past,” she announced.  The room didn’t quite know what to make of that.

But if anything that served to emphasise ALWU’s apolitical or, at least, not overtly political nature.  Ms Coles and her colleagues didn’t come across as motivated by that at all.  Who knows where ALWU’s membership will take it.  At “worst” it will settle for being a slick, yo-pro advocacy group.  I don’t think that’s what it wants to be, but it’s a possible future.  The goals were bigger.  There was talk of collective bargaining.  With whom was not clear.  But there are ambitious timeframes which depend on getting a large membership.  At one point, in response to a question, Ms Coles referred to beginning collective bargaining later this year or early next year.

There seems real value in the existence of the ALWU.  That value comes from its independence.  The Law Society has recovered reasonably well, I think, from its position on the back foot in 2017 and 2018.  But part of being an industry regulator is being a punching bag for all and sundry.  I thought Dame Silvia Cartwright’s report was excellent.  Rightly or wrongly, the Law Society has to walk the middle path – doing as much as it can in valuable initiatives like a new National Standards Committee on bullying and harassment, while not actively calling for the reintroduction of the guillotine when it comes to some of its law firm members who worship the billable unit.

There are alternatives.  There is a dynamic Te Hunga Rōia Māori o Aotearoa who pakeha practitioners like me never appreciate enough.  Auckland Women Lawyers Association is doing good stuff.  Others are less active.  ADLS trades on the name of its heyday but is the society equivalent of a small town trying to survive a newly-built motorway bypass.

But the ALWU has the potential to occupy a new space in legal associations and societies in New Zealand.  It will have to be accountable to its members, and presumably common decency will prevail.  Add to that a tentativeness stemming from the fact the poor people fronting it are sticking their heads above the parapet.  In theory, though, the ALWU’s spade-calling skills will be reasonably strong.  Stronger than NZLS’ in any event.  And it can complement other organisations and do things that they can’t.

The launch event served to emphasise that the ALWU is full of serious young lawyers, with serious ideas.  I liked it.  I struggle to get excited about it because I’m one of the privileged types that is well served by the system and am starting to age into higher salary bands.  But I liked it.  I think they deserve to be taken seriously.

In the meantime though, they’ll also have to put up with me making memes like this.

Drake meme

Coroners’ powers to prohibit publication of the name of a deceased person

Introduction

Coroners have powers to make non-publication orders under s 74 of the Coroners Act 2006.  It is not clear whether those powers extend to suppressing the name of the deceased.  The words of the section do not confer an express power to do so.  Coroners exist to make findings on deaths and to allay suspicion.  Publishing that someone has died seems pretty fundamental to that task.  Against that, it is not hard to imagine a rare but compelling case where suppression of the deceased’s name should be considered: where someone else’s life is threatened by the publication, for example.

In this piece I argue that coroners have a power that can, in effect, prohibit publication of the name of the deceased.  The power exists because a coroner may order non-publication of evidence.  If evidence in respect of the deceased’s name is suppressed, then the name cannot be made public as a consequence.

Of course, even though s 74 confers the power there must still be grounds to justify the use of the power in any particular case.  The orthodox approach to issues of non-publication will involve a fine grained weighing of reasons for suppression as against open justice and freedom of expression.  At the end, I comment a little on what evidence might be necessary for a coroner to suppress a deceased person’s name.  The main point, though, is simply that the terms of s 74 confer the effective power to prohibit the publication of the name of a deceased person.

Although there is some looseness of terminology, this article uses the terms “suppressed” and “subject to a non-publication order” interchangeably.

The framework

Coroners’ powers to prohibit publication are set out in s 74 of the Coroners Act 2006 (Act).  That section provides:

74           Coroner may prohibit making public of evidence given at any part of inquiry proceedings

If satisfied that it is in the interests of justice, decency, public order, or personal privacy to do so, a coroner may prohibit the making public of—

(a)          any evidence given or submissions made at or for the purposes of any part of the proceedings of an inquiry (for example, at an inquest); and

(b)          the name, and any name or particulars likely to lead to the identification, of any witness or witnesses.

The definition of “make public” is found in s 73 of the Act.  It refers to means of general dissemination such as newspapers, television and the internet.  It is important to note that, even if a s 74 order is made, a coroner will still use a deceased’s name in their written findings and the official forms connected with the determination.  The prohibition is only on a person making that information public in the ways contemplated by s 73.

The application of s 74 is governed by Whata J’s guidance in Gravatt v The Coroner’s Court at Auckland [2013] NZHC 390, [2013] NZAR 345 at [43]:

In my view, therefore, the proper observance of freedom of expression (and open justice) demands a three step threshold inquiry. First, there must be express statutory authority to suppress. Second, the authority must be, where possible, interpreted and exercised consistently with freedom of expression. And third, even where those two qualifying conditions exist, any discretionary infringement of that freedom must be justified. The failure to undertake any of these three steps will make the decision to suppress amenable to review.

(footnotes omitted)

The question of suppressing the name of the deceased arises in respect of the first step of the Gravatt three step threshold inquiry.  Is there express statutory authority to suppress?  On its face the wording of s 74 does not refer to prohibiting publication of the name of the deceased.  Clues point in both directions.  A coroner may prohibit publication of evidence, which will in almost every case include the name of the deceased.  However the section also refers expressly to prohibiting publication of the names of witnesses, and is then silent on prohibiting the name of the deceased.

Current practice

Coronial practice to date has tentatively favoured the suppression of deceased’s names, although the practice is not widespread.  There is also significant debate among coroners whether the power exists.  Cases in which this has occurred include Re C CorC Palmerston North CSU-2009-PNO-260, 23 July 2012; Re C CorC Wellington CSU-2008-WGN-089, 25 July 2012; Re M CorC Wellington CSU-2008-WGN-754, 14 January 2013; and Re P CorC Palmerston North CSU-2012-PNO-310, 4 December 2012.  For the most part, these cases have assumed a power to suppress with no analysis.  Coroners have referred broadly to the fact that suppressing a deceased’s name should be something done only rarely.  Before engaging further three examples where coroners provided more detail for their decision may be instructive.

In Re R CorC Hastings CSU-2013-PNO-463, 10 December 2015 Coroner Devonport ordered that the name of the deceased be subject to an order under s 74.  Coroner Devonport’s reasons encapsulate the traditional view:

[23] … Mr R’s name and the fact that his death was a suicide must be “evidenced” in order for me to be able to make a s 74 prohibition order in respect of them.  Mr R’s name is found in the evidence ie the Statement of Identification of Mr R is evidence that I have accepted as part of my inquiry into his death.  In contrast to his name, the fact Mr R’s death was self-inflicted is not evidence.  While there are statements and evidence that describe how Mr R [took his life], my finding of suicide is not in any evidence.  It is a finding that I have made.  Therefore while I have authority to prohibit the making public of Mr R’s name, I do not consider I have authority to prohibit the fact that I have found Mr R’s death to be self-inflicted.

Coroner Devonport went on to find that the psychiatric risk faced by Mr R’s brother, who bore feelings of guilt in respect of Mr R’s death and had provoked a serious risk of self harm, was sufficient to justify an order under s 74 prohibiting the publication of Mr R’s name.

In the case of Re Krystal CorC Auckland CSU-2008-AUK-695, 9 May 2013 Coroner McDowell made orders under s 74 of the Act prohibiting publication of a range of matters some of which meant that in effect the surname of the deceased was also prohibited from publication.  In particular at [76] Coroner McDowell prohibited “the names of Krystal’s siblings and any particulars that may lead to the identification including Krystal’s surname”.  The effect of this is that at least part of the deceased’s identity was prohibited from publication.

This decision demonstrates how suppression of evidence –which is squarely permitted by s 74 – has the effect of consequentially suppressing other matters, such as the name of the deceased.  The same thing happens in criminal cases where a victim of sexual offending has automatic suppression.  Where the victim is related to, or shares a surname with the offender which means they could be identified, the offender’s name cannot be published, even if the offender does not have suppression in their own right.

The third example is Re Buckley CorC CSU-2017-CCH-145, 20 March 2017.  Coroner Elliott considered whether s 74 provided authority to suppress a deceased’s name.  Coroner Elliott did not have to decide the point because his Honour determined there was insufficient evidence presented in support of the application.  Nevertheless, the Coroner set out competing arguments as to why and why not s 74 extends to suppression of the deceased’s name:

[29] There are some arguments against the proposition that section 74(a) provides a basis for prohibiting publication of the name of the deceased:

(a)          There is a public interest in identification of the names of those who died and these names are a matter of public record pursuant to the Births, Deaths, Marriages and Relationships Registration Act 1995.

(b)          If Parliament had intended that a coroner should have power to prohibit publication of the name of the deceased this would have been specifically referred to in section 74.

(c)           The identity of the deceased is a finding made by the coroner. The identity is established by evidence but the evidence is not conclusive of identity – it requires a formal finding. Although section 74(a) refers to ‘evidence’ it does not refer to, and therefore does not authorise, an order prohibiting publication of a coroner’s finding as to identity.

[30] There are also arguments in support of the proposition that section 74(a) provides a basis for prohibiting publication of the name of the deceased:

(a)          A coroner’s finding as to identity must be based on evidence the coroner has received. A coroner is therefore entitled to make an order prohibiting publication of evidence relating to the identity of the deceased, as long as the criteria set out in section 74 are met. Although the consequence of this is that a part of the coroner’s finding is prohibited from publication, this would not undermine the legitimacy of the order.

(b)          … It would be anomalous if a coroner did not have the jurisdiction to address the possibility of harm to a family member arising from publication of the name of a deceased whose death is before the Court.

(c)           The Criminal Procedure Act 2011 contains provisions under which restrictions on disclosure or publication may be imposed where the physical or mental health of a person will be put at risk if publication were to occur. … It would be anomalous if the name of a defendant could be suppressed where publication may result in harm to an innocent third party, but the name of a deceased person could not.

(footnotes omitted)

Assessment of the arguments

In Buckley Coroner Elliott did not indicate which of the two arguments he favoured.  However in my view the arguments in favour of the proposition that s 74(a) provides the basis for prohibiting publication of the name of the deceased stems principally (and perhaps exclusively) from the “suppression of evidence” point (set out at [30](a) in the quoted passage above and in the quote from Coroner Devonport’s finding in Re R).

By contrast, neither of the points at paragraphs [30](b) and [30](c) seem particularly persuasive.  Both amount to reading in a power to suppress a finding, when that power does not exist on the plain words of the section.  Appeals to common sense or necessary implication cannot, by themselves, create a power of suppression.  Inferior courts can prevent abuse of their own procedures, but they cannot accord themselves powers which have not been bestowed by Parliament (see generally: McMenamin v Attorney General [1985] 2 NZLR 274 (CA)).  However nice it would be to have an express power to suppress names, it is clear that s 74 does not afford one directly in the same way the Criminal Procedure Act 2011 confers a power to suppress witness or defendant names.  The fact that the Criminal Procedure Act 2011 has such a power does not mean as a matter of logic that the Coroners Act 2006 should be read as having such a power.  Coronial reliance on analogies to powers of name suppression in the criminal jurisdiction has been discouraged recently in Stuff Ltd v Coroner’s Court at Palmerston North [2018] NZHC 2556 at [47].

It follows that the argument in favour of a coroner’s power to suppress the identity of a deceased rises or falls on the fact that it is evidence before a coroner.  While this is a fairly narrow basis, I think it is a sufficient one.  That is especially so when it can be demonstrated that the counterarguments carry little persuasive weight.

Counterarguments are not persuasive

The first possible counter argument identified by Coroner Elliott at [29](a) of Buckley was that there is public interest in the identification of the names of those who died and that also these names are a matter of public record pursuant to the Births, Deaths, Marriages and Relationships Registration Act 1995 (BDMRR Act 1995).  There are two arguments there.  In relation to the first, the undoubted public interest in knowing the names of those who died is a matter to weighed in the balancing test under steps two and three of the Gravatt test.  At step one all that is asked is whether Parliament put the tool in the coronial toolbox; not whether the tool should be used in an individual case.  It does not really go to whether or not the power to suppress names exists.

In relation to the second argument at [29](a) – the fact that deaths are recorded on the BDMRR Act 1995 – again this is undoubtedly correct.  But a s 74 order does not mean that those entries on the Register will have to be suppressed.  There is a requirement for the Register to accurately list the names of everyone who has died in New Zealand (BDMRR Act 1995, s 34).  That provides statutory authority for doing so, even if a s 74 order covered this action.  In any event, it is by no means clear that an order under s 74 could extend to cover inclusion of a name on the Register.  The Register can only be searched by a Registrar (BDMRR Act 1995, s 74).  That means the Register is not publicly accessible in a way that means it falls within the definition of “make public” in s 73 of the Coroners Act 2006.

A related argument is that recording a deceased’s name on the Register lets the cat out of the bag as far as suppression goes.  That is correct in the sense that the fact of a death will be able to be discovered.  But an order under s 74 will still have a purpose.  It will mean that nobody can publish a link between the name of a dead person and a particular set of coronial findings.  That still serves a useful function even if the Register names the deceased, because the name by itself does not link to the coronial findings.  In this way, the fact of publication on the Register does not bear on the question of whether or not a coroner has the power to suppress.

A parallel example can be given.  Coroners are frequently required to suppress the means of a self-inflicted death (indeed the Act prima facie grants this suppression).  This is normally based on a public health justification to prevent copycat acts.  When that suppression exists nobody can make public that information in connection with a death that can otherwise be reported.  But the suppressed means of death is frequently published in other forums.  For example the Chief Coroner’s annual suicide statistics press release lists the various ways in which self-inflicted deaths have occurred over the preceding year.  The important point here is that suppression plays a role in separating the subject of the suppression from the rest of the coronial findings.  Simply because information that is suppressed is published in some other forum (be it the name on the Register of Deaths or the means of death in suicide statistics) suppression still serves a useful function.

The next counter argument identified at [29](b) of the Buckley ruling is that if Parliament had intended that a coroner should have power to prohibit publication of the name of the deceased this would have been specifically referred to in s 74.  But if one accepts that the name of the deceased forms part of the evidence then it is unsurprising that Parliament has not expressly referred to the name of the deceased as a matter that may be suppressed in the wording of s 74.  This is because Parliament has already effectively done so by using the term “evidence”.

On the other hand the wording of s 74(b) refers to prohibiting publication of the names of witnesses.  Can Parliament be taken to have turned its mind to whose identities may be of the subject of non-publication orders, and deliberately excluded the name of the deceased from that list?  In my view, the answer is no.  The express reference to suppressing witness names is a necessary supplement to the power to prohibit publication of evidence.  That is because witnesses at coronial inquiries can give evidence about matters relating to the death but the names of those witnesses will not necessarily be evidence themselves.  For example, a pathologist may give evidence of the cause of death in that pathologist’s expert opinion.  The content of that evidence will be evidence which may be subject to suppression under s 74(a).  But without s 74(b) there will be nothing to prohibit the publication of the name of the person who gave that evidence.  Therefore s 74(b) is necessary in order to ensure that a coroner can prohibit both the content of the evidence in the identity of the person who gave it.  In contrast, it is clear that there is no special need to prohibit the name of the deceased, because the deceased is not going to be giving evidence at the inquiry.  The deceased’s identity will only be found in the evidence given by other persons.  Therefore the fact that Parliament has included an express power to suppress the names of witnesses should not be taken as an expressio unius type argument where Parliament has expressly contemplated excluding the name of the deceased from the powers of prohibition.  To the contrary it simply confirms that the name of deceased will only be found in evidence and therefore the power to suppress evidence of a deceased’s person’s name falls squarely within the terms of s 74(a).

Paragraph [29](c) of Buckley bases the third argument against suppressing the identity of the deceased on the fact that the identity of the deceased is a finding made by the coroner.  Although s 74(a) permits suppression of evidence, it does not permit suppression of findings.  I agree.  Re R, quoted above, is an example of this.  The finding that a death was a suicide is a separate finding.  It is a conclusion by the coroner – it is not found anywhere in the evidence.  And s 74(a) only gives the power to suppress evidence.

But where a finding overlaps with evidence, a s 74 order in respect of evidence will have the consequential effect of prohibiting publication of the finding.  This is not a surprising conclusion; the coronial regime operates successfully with the effective suppression of findings all the time.  The cause of death or the circumstances of death are frequently suppressed where that cause of death is self-inflicted (due to the operation of s 71 of the Act).  It does not seem to undermine the coronial regime that one of the key matters that a coroner has to determine and make a finding about is not made public.  Similarly, coroners suppress matters that form parts of the circumstances of death frequently: for example, the identities of persons who may have inadvertently contributed to a death.

So, while it is correct to say that s 74 does not permit suppression of findings outright, findings can still be consequentially suppressed where the underlying evidence is subject to a non-publication order.  The fact that the name of the deceased is a “finding” does not confer immunity from non-publication, where the evidence underlying it is subject to non-publication.

Conclusion on power to make non-publication order

It is important to bear in mind what a coronial non-publication order does.  It does not render the name of the deceased a secret that will be stricken from the record, never to be used again.  The name of the deceased will still be in the written coronial finding.  The name of the deceased will be known to the family and any interested parties.  The name of the deceased will be provided to the Secretary of Justice and included in the requisite forms under the Act.  The name of the deceased will be placed on the Register of Deaths.  And indeed the finding can be disseminated person to person, as long as it does not contravene the definition of “make public” in s 73 of the Act.  All a non-publication order does is prevent mass dissemination.

The name of the deceased will be found in the evidence.  Section 74(a) is plain on its face that evidence may be the subject of an order under s 74.  In turn that will mean that a finding of the deceased’s identity will not be able to be published, notwithstanding that the finding itself is not the subject of a non-publication order.

Next steps in Gravatt

Of course, simply because a coroner has the power to make a non-publication order in respect of the evidence of a deceased’s name, it does not follow that such an order is appropriate in every case.  The traditional cautions and high evidential threshold necessary for a non-publication order will apply.  Indeed, it may be even more of an uphill battle to convince a coroner that a deceased’s name should be suppressed given that identifying the deceased is a core part of the coroner’s role.  The remarks of Kós J (as he then was) in Matenga v Coroner’s Court at Dunedin [2014] NZHC 2994, [2015] NZAR 289 at [8] are apposite:

it is an essential feature of the Coroner’s inquest process that it work in public, so that the community is fully informed of circumstances that led up to and were causative of the death being inquired into. An order under section 74 should be exceptional.

Steps two and three of Gravatt involve their own detailed inquiries as to whether non-publication is warranted given the types of reasons advanced by an applicant (step two) and the evidence in support of those reasons (step three).  Particularly at step three, there will be a need to show that there is a factual foundation justifying departure from the principles of open justice in this particular case.

The coronial function in respect of allaying fears of the community and of being seen to be an independent investigation into a death mean that publication of a deceased’s name and the fact that someone has died will be a vital part of the coronial role.  It follows that in respect of prohibiting publication of the name there is going to need to be compelling evidence why suppression is justified.  It may well be that only in a case such as R, where there was expert evidence attesting to a realistic and imminent risk of self harm by another person, that an order for non-publication of the deceased’s name could ever be justified.

Conclusion

Coroners have the power to prohibit the publication of evidence.  That includes evidence establishing the identity of a person.  If that evidence is suppressed then the consequential effect is that a coroner’s finding as to identity cannot be made public.  While this does not constitute an express power to prohibit the finding of identity per se, it will amount to the same thing in practice.

The Reweti shuffle, or, a plea for a principled fudge

Disclaimer

It must be close to indisputable that, in most cases, avoiding a custodial sentence for a young person is a Good Thing.  Efforts to make that happen should be applauded, not criticised.  It is in that spirit that the two cases I discuss should be viewed.

Intro

In sentencing, two years’ imprisonment is the goal.  Two years’ imprisonment is home detention range.  If you can’t get a sentence down that far, then a custodial sentence can’t be converted to home detention.  Parliament says no, in the form of s 15A(1)(b) of the Sentencing Act 2002.  But if you could just find a way to two years or shorter, then all things are possible.

The trouble is, there’s a whole lot of case law about sentencing.  Precedent is a difficult thing to shake, and as a judge your job is to apply the law.  This piece is about the latest judicial contortion that two High Court Judges have used to get to two years’ imprisonment.  And while judicial contortion is the finest of spectator sports – this particular new trick comes with dangers.  What follows is a cautionary tale.

The Reweti shuffle

Step forward Reweti v R [2018] NZHC 809 and Simon France J.  Mr Reweti was an offender for whom home detention would have had a lot to offer.  As a brief side note, Reweti is a really interesting decision for his Honour’s framing of the sentencing in paragraph [2] where his Honour expressly invoked concepts of systemic racial disadvantage:

[2] Mr Reweti fits within a group concerning whom there is considerable present concern. He is a young Māori man, presently aged 18 years, already sentenced to prison. He came to the sentencing with some previous offences (which had been met with supervision) and alcohol issues which were instrumental in the most serious of the present offences – the aggravated robbery of a service station. He is one of a family of 13 who all live at home, and his mother is supportive of him. As noted, the home and the environment were assessed as suitable for a home detention sentence.

His offending was serious, though.  The District Court Judge had sentenced Mr Reweti to two years and nine months’ imprisonment.

On appeal, Simon France J reduced uplifts for other offending on the basis of totality, and afforded a greater discount for youth and personal circumstances.  I am skipping over these because the focus is then on the maths.

The elements that Simon France J had to play with were as follows:

Starting point: Four years’ imprisonment

Discount for personal circumstances: 30%

Guilty plea discount: 25%

Guilty plea discounts are normally applied as the final step in a calculation.  So in this case, one would normally expect to take a 30% discount from the four years, and then take a further 25% from that result for the guilty plea discount.

That’s more than “normal” though: it’s law.  The Court of Appeal said so in Hessell v R [2009] NZCA 450, [2010] 2 NZLR 450 at [21]:

[21] A discount for a guilty plea is to be seen as a discrete mitigating factor. That is consistent with s 9(2)(b) of the Sentencing Act. The discount is provided as the final step in the sentencing process.

[22] In adopting that view, we have followed the approach of the United Kingdom’s Sentencing Guidelines Council and the Law Commission’s draft. This approach will be familiar to most trial judges, as it was recommended by this court in a number of recent judgments: see, for example, R v Fonotia [2007] NZCA 188; [2007] 3 NZLR 338 at [50]- [51] and R v Walker [2009] NZCA 56 at [18]- [20]. Those judges accustomed to bundling all mitigating factors together will need to change their practice. The suggestion in Taueki at [44] that the discount for an early guilty plea should be “from the starting point” should now be read subject to this guideline.

The Supreme Court later had Things To Say about this decision, but not on this point.  We’ll come back to the Supreme Court decision in Hessell a little later on.

Right, enough set up, time for the Reweti shuffle and over to Simon France J to teach you the moves:

[21] A discount of 30 per cent, together with the agreed guilty plea discount of 25 per cent, produces a figure around 22 to 25 months. The exact outcome turns on whether one rounds fractions up or down, and also more significantly on when the guilty plea discount is applied.

[22] To explain the latter, the traditional approach is to make all the other adjustments, and then apply the guilty plea discount at the end. The source of that methodology is Hessell v R in the Court of Appeal. While it provides consistency, it can have unintended effects in a particular case. To take a simple example here, if the appropriate discount for youth were 25 per cent, then one might think a reduction from four years’ of 25 per cent for youth and other factors, and 25 per cent for the guilty plea, would produce a sentence of two years’ imprisonment. However, applying the Hessell methodology, the analysis is four years down to three’ and then the guilty plea discount attaches to that reduced figure, leaving a sentence of two years and three months.

[23] The Sentencing Act does not suggest a reduced impact for the guilty plea credit as opposed to other matters of mitigation. The Supreme Court in Hessell noted the Court of Appeal approach, and recognised its value in terms of consistency and transparency but did not endorse it as mandatory. Rather, what matters is a:

call for evaluation by the sentencing judge who, in the end, must stand back and decide whether the outcome of the process followed is the right sentence.

[24] Consistent with that, I observe here that if the only matter standing in the way of the availability of home detention is whether the guilty plea discount is applied at the same time as other discounts or afterwards, then the evaluation must be to apply it at the same time to enable “the right sentence” to be imposed. In the present case, 55 per cent (being 30 per cent plus 25 per cent) applied at the same time leaves a sentence of 22 months. Applied sequentially the sentence is 25 months. Accordingly, I intend in the present case to apply the discounts as a global figure.

(footnotes omitted)

Let’s get a slow motion replay of that!

I have two options.  The one that is applied in every other case, or the one that gets you a slightly lower sentence.  But, doesn’t the Court of Appeal in Hessell say you apply the guilty plea discount as the final step.  Yes, it does.

To get around that, Simon France J claimed the Supreme Court in Hessell backed him up.  But I don’t think it did.  The Supreme Court used the words that Simon France J quoted, but the Supreme Court wasn’t talking about the timing of the guilty plea discount.  It was talking about the percentage discount to be given for a guilty plea discount.  That was the issue in Hessell.  That can be seen from these paragraphs from the Supreme Court’s decision in Hessell just before the line that Simon France J quoted in Reweti:

[73] There is no objection in principle to the application of a reduction in a sentence for a guilty plea once all other relevant matters have been evaluated and a provisional sentence reflecting them has been decided on. Indeed there are advantages in addressing the guilty plea at this stage of the process (along with any special assistance given by the defendant to the authorities). It will be clear that the defendant is getting credit for the plea and what that credit is. This transparency validates the honesty of the system and provides a degree of predictability which will assist counsel in advising persons charged who have in mind pleading guilty.

[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

And, even if you choose to take the Supreme Court’s “right sentence” encouragement as going wider than the matters that were truly under consideration in Hessell, then you have to face the consistency point.

The vast majority of sentencing decisions do apply the guilty plea discount as the final step because that’s the understanding from Hessell.  And, as Reweti demonstrates, the timing with which guilty plea discounts are applied does make a difference to sentence.  It is not ideal that the process by which sentences are calculated can vary between judges.  Two identical offenders could get different sentences simply because a judge chose to depart from established sentencing methodology in a particular case.

Why is that in Reweti it is permissible to temporarily step outside the rules of the game?  This was a question that simply must have occurred to Simon France J.  At footnote 8 of his decision in Reweti Simon France J noted:

I observe that if the “rule” were to take the guilty plea discount off the adjusted starting point like every other mitigating factor, transparency and consistency would be equally achieved.

True.  But by playing with the timing of the guilty plea discount, the technique in the judgment undermined transparency and consistency.  It’s hardly a consolation to say “oh if only we all did it the same way, then we’d be consistent” when you’re the one acting inconsistently with every other sentencing judge.

The Reweti shuffle comes with no guidance about when it can or cannot be used other than it is available to ensure the “right” sentence.  What was it about Mr Reweti’s case that made it right to step away?  How will we know in future cases when to use this technique, and when not to?  How does it interface with the statutory imperative to impose the least restrictive sentence?

And just this week, another Judge has followed Simon France J’s technique – again for a “worthy” case but without recourse to explanation about why it could be used in this case but not any other case.  In R v Kokiri [2019] NZHC 501 Jagose J used the Reweti shuffle to get his sentence down to under two years’ imprisonment:

[38] The traditional approach in sentencing is to make any other adjustments to the initial starting point, and then to apply the guilty plea discount. Such an approach is consistent and transparent, but not mandatory. Doing so in your case:

(a) increases your initial 45-month sentence to 46 months by the one month for offending while on bail,

(b) then reduces it to 34-35 months by the 25 per cent discount for your personal factors, and

(c) reduces it again to 25-26 months by the 25 per cent discount for your guilty plea.

[39] Subject to roundings, the end result would be a little over two years’ imprisonment. That would disqualify you for any sentence of home detention. Another approach would be to apply the two 25 per cent discounts together to the longest period of imprisonment identified for you. Such would reduce your 46-month sentence to 23 months – just under two years’ imprisonment, qualifying as a short-term [sentence] of imprisonment. Given that choice, I must stand back and decide “whether the outcome of the process followed is the right sentence”.

(footnotes omitted)

I have taken the footnotes out, but Jagose J expressly cited Reweti v R as authority for what he did.  No further explanation was given.

Principled fudges

What I am coming to is the need for principled fudges in the judicial system: those techniques where everyone knows what the judge is doing but (and this is important) it’s okay if the judge gets away with it.

With respect, the Reweti shuffle is not a principled fudge.  It risks corrosion of more important principles of consistency in sentencing that turn out to be quite important and difficult to rearrange if they’re knocked over.  It’s not acceptable that we have two different approaches to sentencing.  Not for something like the timing of the guilty plea discount – where the difference is stark and one of timing, rather than subjective appreciation.  The inconsistency that comes from injustice is greater than any injustice from the application of a guilty plea discount as the final step of sentence.

The more principled fudge is to find greater discounts for other matters.  25% is the upper limit for guilty plea discounts, but personal discount factors are a matter for considerable flexible subjective appreciation.  In sentencing judges’ determined march for the two year goal, no one is going to complain too much if a discount for youth is 7.5% as opposed to 5%.  That falls squarely within the permissible discretion for a sentencing judge.

My personal favourite is where a sentencing judge surveys all personal factors – age, hardship, efforts at rehabilitation, remorse, whatever else you care to name – and then gives a global percentage discount for all personal factors.  This can hide any amount of generosity in order to get to two years’ imprisonment.  And the best thing about this trick is that it is near impossible to unpick on appeal.

Anyway, to the extent that this had a point it’s this: the Reweti shuffle is very entertaining in terms of judges doing their best.  It’s done for admirable goals but I don’t think it should catch on.  More principled fudges exist to secure the same ends.

 

UPDATE: the March issue of the New Zealand Law Journal has a different perspective on Reweti v R: see Luke Elborough “Sentencing in hard cases – just outcomes through a holistic approach” [2019] NZLJ 45.

The most lawless place in New Zealand

Where is the most lawless place in New Zealand?  If you define it as the place in New Zealand that is the furthest away from a courthouse then that should be able to be calculated.  If you don’t define it that way then it’s the Oceanic Hostel on Anzac Avenue, Central Auckland.

A search of the Ministry of Justice website gives locations for the courthouses in New Zealand which is a start.

In this exercise I’m not including all territory in This Realm Of New Zealand.  Penguins in the Ross Dependency face many challenges and access to justice numbers among them.  I’m talking about the main islands and in-shore islands of New Zealand.  The Chathams count as main islands, but since there is a courthouse on the Chathams that won’t be our winner.

Fellow Twitter user @JoshMarshallNZ provided a map into which he had plugged on courthouses.  The map can be accessed here.

Map
I have a tipline! Just like WhaleOil!

From this we can kind of eyeball about where it might be.  Either half way up the West Coast or in the far southwest corner of the South Island.  Lawless lands, both!

Now, some of you probably know how to use Google Maps to calculate this sort of thing, but I don’t.  So I have done it by hand and ruler to figure out the approximate place, then looked on a map.  Highly scientific!  And while I can probably be cross-examined on the shortcomings of my methods I think it’s accurate enough in a brute force kind of way.

map2.png
Technical know-how!

It’s not the middle of the West Coast because the South Island is too thin and the High and District Courts at Timaru remain close to the West Coast.  It’s a point in the extreme south west of the South Island.  Not exactly the equidistant point between the Queenstown District Court and the Invercargill High and District Courts as the shape of the coast hews north east.

Then it’s to Google to find out precisely where it should be.  It’s an offshore island called Resolution Island or Tau Moana.  That sounds vaguely law-related!  It’s no Denning-land, but it’s close.  So Resolution Island is the point in “mainland” New Zealand that is the furthest from a court.  In particular, its western coast line is 165 kilometres from the Invercargill District Court give or take.  That’s shorter than I thought it was going to be!  In New Zealand you’re no more than 165 kilometres from a courthouse at all times.

Resolution Island
I am a master of maps!

The particular piece of Resolution Island that is furthest away is a place called the Five Fingers Peninsula.  Wikipedia has more information, as does the Department of Conservation.  And this Te Papa story has a photo of the Five Fingers themselves – rocky outcrops rising up from the sea at the southern tip of the peninsula.

Five Fingers
Also on this map are the “Many Islands” which I’m pretty sure is cheating as far as naming things goes.

Incidentally, this reminds me of the decision in Mountz v Craig [2016] NZHC 1558, (2016) 23 PRNZ 244 in which Associate Judge Osborne (as he then was) had to decide whether the Invercargill or Dunedin High Court Registry was closer to Wanaka.  Exactly the type of decision we need more of.  Zaniness is a seldom-present quality in legal disputes.

(EDIT: And see also, thanks to a commenter, the case cited in MountzNicholls v District Court at Masterton HC Masterton CP 1/96, 19 February 1996 where McGechan J had to determine whether the High Court at Wellington or Palmerston North was nearer to Masterton.)

Maybe mercator projections mean some of these distances are a little off?  It’s hard to tell.  But for now, and unless corrected, I claim that the Five Fingers Peninsula is the most lawless place in New Zealand.  So, if you like, run as far away from justice as you can, and pull the middle Finger.