Signer and Others v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Blanchard,Tipping,McGrath,William Young JJ
Judgment Date16 September 2011
Neutral Citation[2011] NZSC 109
Docket NumberSC 36/2011 SC 39/2011 SC 40/2011 SC 41/2011 SC 43/2011
Date16 September 2011

[2011] NZSC 109



Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 36/2011

SC 37/2011

SC 39/2011

SC 40/2011

SC 41/2011

SC 43/2011

Urs Signer
Emily Felicity Bailey
Valerie Morse
Phillip Purewa
Trudi Paraha
Rangi Kemara
The Queen

V C Nisbet for Appellant Bailey

C W Stevenson, A Shaw and E Hall for remaining Appellants

A Markham, A R Burns and H R B Stallard for Crown

Appeal against a Court of Appeal decision affirming High Court orders for trial by judge alone — whether s361D(3)(b) Crimes Act 1961, properly interpreted in accordance with ss 5 and 6 New Zealand Bill of Rights Act 1990, required a judge to find that it must be “probable” that jurors would not be able to perform their duties effectively before ordering a hearing before a judge alone — whether the appeal should be heard if the issue was now moot.

Held: An appellate court was not deprived of jurisdiction because an appeal was moot. The discretion to proceed with an appeal that was moot was only where there was sufficient public interest in resolving a question of law for which context was unimportant.

The proper application of s361D(3)(b) was likely to be demonstrated not by refinement of its language but by the assessment actually undertaken. A case in which there was a material difference between what was “probable” and what was “an appreciable risk” was likely to be uncommon. As the Court of Appeal emphasised, since the right to trial by jury was not lightly to be departed from, finely balanced judgments were not to be expected.

Section 361D(3)(b) described not a stand-alone standard but a comparative assessment: the assertion of one right must be “outweighed” by the likelihood that another right (the right to a fair trial) would be breached. It may be doubted whether appellate consideration of the word “likelihood”, as was urged by the submissions, was usefully divorced from application of the composite condition established by s361D(3)(b). As the word “outweighed” indicated, this was not at-large balancing where the court had to decide where a balance gets struck. Nor was it a case where there was a single test that something is “likely” (a contextual assessment).

It was preferable that any further consideration of the approach required should be undertaken by this Court, if it was necessary, in application in a live controversy.

Appeal allowed.



By judgment delivered on 14 September 2011, this appeal was allowed by consent and the orders for trial by judge alone made in the High Court 1 and affirmed

in the Court of Appeal 2 were set aside. The parties were agreed that a change in the circumstances undermined the conclusion reached by the High Court and Court of Appeal in application of s 361D of the Crimes Act 1961 (that the appellants' rights to trial by jury were outweighed by the likelihood that potential jurors would not be able to perform their duties effectively). The change in circumstances occurred between the granting of leave to appeal in this Court on 6 May 2011 3 and the date of hearing. On that basis it was common ground that the criterion imposed by s 361D(3)(b) was no longer made out and that the appeal should be allowed.

At the hearing, the appellants wished to proceed with the substantive appeal for a determination of their contention that the approach adopted by the High Court and Court of Appeal to the application of s 361D was wrong as a matter of interpretation. The Court was not prepared to accede to this request, which was opposed by the respondent. We now give our reasons for that conclusion.


An appellate court is not deprived of jurisdiction because an appeal is moot. 4 An appellant is not however entitled to have heard an appeal that has been overtaken so that there is no longer an actual controversy requiring the determination of rights and obligations between the parties. The court has a discretion to hear a moot appeal, as all parties to the present appeal accepted. It will be appropriate to exercise the discretion to proceed with an appeal that is moot only where there is sufficient public interest in resolving a question of law for which context is unimportant. Even so, there must be good reason for departing from the general rule that even points of law are best decided in a live controversy because abstract rulings not anchored to the particular facts may overreach or be misleading. Departures from this general approach should be undertaken with caution. 5


Section 361D of the Crimes Act permits a judge to order trial by judge alone, without the consent of the accused,...

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4 cases
  • Siemer v The Solicitor-General
    • New Zealand
    • Court of Appeal
    • 11 Mayo 2012
    ...above n 1. 9 At [69]. 10 At [68]. 11 At [11]–[17]; see also Attorney-General v Newspaper Publishing Plc [1988] 1 Ch 333 (CA) at 362. 12 See Signer v R [2011] NZSC 13 Taylor v Attorney-General , above n 4. 14 Attorney-General v Leveller Magazine Ltd [1979] AC 440 (HL) . 15 Independent Publis......
  • Bailey v R
    • New Zealand
    • Court of Appeal
    • 23 Septiembre 2011
    ...the Supreme Court of 2 September 2011, an appeal against the decision to proceed before a Judge alone was allowed by consent: R v Signer [2011] NZSC 109. 5 At [12]—[13]. 6 Citing B (CA308/00) v R [2002] 1 NZLR 387 (CA) at [11]. 7 B (CA308/00) v R at [11]. 8 R v Bailey at [14]. 9 At [18]. ......
  • Wynyard v R CA742/2014
    • New Zealand
    • Court of Appeal
    • 5 Febrero 2015
    ...11 12 For example, Singh v R [2012] NZCA 537 at [23]. R v Iti, above n 9, at [34]–[36]. R v Iti, above n 9, at [36]. See also Signer v R [2011] NZSC 109 at We observe that counsel often encounter difficulties in accurately estimating the likely duration of a lengthy fraud trial. In particul......
  • Hojsgaard v Chief Executive, Linz
    • New Zealand
    • High Court
    • 27 Junio 2018
    ...parties could not presently afford to pay them, or were at risk of not being able to reimburse them, if adjustment 9 10 11 12 Signer v R [2011] NZSC 109 at [3]; R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 Hojsgaard (above n 1) at [74]. At [62]-[64]. Court of Appeal (Civil) Rules 2005......

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