Signer and Others v R

• Jurisdiction: New Zealand
• Judge: Elias CJ,Blanchard,Tipping,McGrath,William Young JJ
• Judgment Date: 16 September 2011
• Neutral Citation: [2011] NZSC 109
• Docket Number: SC 36/2011 SC 39/2011 SC 40/2011 SC 41/2011 SC 43/2011
• Court: Supreme Court
• Date: 16 September 2011

Urs Signer

Emily Felicity Bailey

Valerie Morse

Phillip Purewa

Trudi Paraha

Rangi Kemara

and

The Queen

[2011] NZSC 109

Court:

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

IN THE SUPREME COURT OF NEW ZEALAND

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.

Counsel:

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

REASONS FOR JUDGMENT OF THE COURT

1 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

2 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.

3 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

4 Section 361D of the Crimes Act permits a judge to order trial by judge alone, without the consent of the accused, notwithstanding the right to trial by jury contained in s 24(e) of the New Zealand Bill of Rights Act 1990. The power to

dispense with the right arises where “the accused person's right to trial by jury is outweighed by the likelihood that potential jurors will not be able to perform their duties effectively”. 6 The appellants wished to argue that s 361D(3)(b), properly interpreted in accordance with ss 5 and 6 of the New Zealand Bill of Rights Act, requires a judge to find that it must be “probable” that jurors will not be able to perform their duties effectively. 7 That view is arguable, as Ms Markham for the Crown accepted at the hearing. It appears inconsistent with the view expressed by the High Court that “likelihood” in s 361D(3)(b) means “an appreciable risk” or denotes “something that might well happen”. 8 In that, Winkelmann J was following the approach taken by the Court of Appeal in R v A. 9

5 On this appeal, the Court of Appeal did not find it necessary to consider whether “likelihood”...