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Anderson, Hon Justice --- "The Appearance of Justice" [2004] WkoLawRw 1; (2004) 12 Waikato Law Review 1


THE HARKNESS HENRY LECTURE

THE APPEARANCE OF JUSTICE

BY HON JUSTICE ANDERSON[*]

A discussion of the appearance of justice would seem incomplete without some reference to Lord Hewart’s dictum in R v Sussex Justices; ex parte McCarthy that justice must not only be done but should manifestly and undoubtedly be seen to be done.[1] But even to his contemporaries Gordon Hewart was an abysmal example of the judiciary. Indeed a few years later Mr Justice Avory was moved to suggest that Lord Hewart’s words had been misreported.

Hewart was biased and bullying. One reasonably benign biographer, Robert Jackson, described him as autocratic and irascible in Court, one whose obstinacy sometimes drove to despair counsel in whose favour he was about to find.[2] The alacrity with which Lord Hewart would dismiss appeals in hanging cases, or force juries into questionable verdicts, is disgraceful.

But there is a dramatic force in the utterance of wise counsel by its human antithesis. Consider for example the admonitions of the seemingly foolish Polonius to Laertes:

To thine own self be true,
and it must follow as the night the day,
Thou canst not then be false to any man.[3]

Or, the hypocritical protestations about honour by Iago:

But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.[4]

My point is that Hewart’s aphorism is emphasised by the irony of its source. It is so frequently recalled because it appeals to our perception of a fundamental aspect of justice, its appearance.

In its most obvious expression, the appearance of justice is a Judge who listens courteously, deals with the parties and their counsel even-handedly and articulates a judgment convincingly and with appropriate moderation. Such a Judge may have heard of Sir Graham Speight’s advice to new appointees that the most important person in the Courtroom is the loser. But the issues run deeper and more extensively than the way in which a Judge appears to conduct a trial. The appearance of justice is conditional on institutional, procedural, functional, participatory and public elements of justice.

The institutional requirements are concerned with the appointment, tenure and accountability of the judiciary. It goes without saying that Judges should be appointed on the basis of merit, without political considerations, and should discharge their duties without external influences. To achieve those objectives there must be sound and impartial appointment procedures and permanent tenure of office.

I. LIMITS ON NUMBERS

Safeguarding against Executive manipulation of courts by swamping them with new appointments are the statutory limits on the numbers of High Court Judges (which include the Judges of the Court of Appeal and Supreme Court), the limits on the numbers within those two appellate courts, and the numbers of District Court Judges. At present the total numbers in the higher judiciary are the Chief Justice and 56 High Court Judges. Of these the Chief Justice and no fewer than 4 and no more than 5 may be Judges of the Supreme Court. In addition to the President, no fewer than 5 and no more than 6 may be Judges of the Court of Appeal.[5] The maximum number of District Court Judges is 140.[6]

Obviously it is possible for Parliament to alter these provisions but the necessity for structural change by a democratic process is a hurdle to arbitrariness or manipulation.

II. APPOINTMENT OF JUDGES

The appointment of Judges is a perennial subject of public discussion. The issue gathered particular prominence in the debate over the abolition of appeals to the Privy Council. The repatriation of final appeals makes this issue particularly important because it is not difficult to imagine how, in theory, certain outcomes might be rendered more likely by the appointment of Judges predisposed to them by personality or philosophical inclination. The ability to influence the character of a final court would be, in a general sense, a matter of genuine concern. Fortunately, this type of problem has not been a practical issue in New Zealand for a number of reasons. Not least amongst these is the conventionally astute observance by Attorneys-General of impartiality in making appointments. The exemplar, Sir Geoffrey Palmer, has from time to time emphasised to the judiciary the anxious concern with which he considered every case of judicial appointment by him. And as far as the Supreme Court is concerned, public anxiety evaporated when appointments were made on the unquestionably principled basis of seniority.

High Court Judges are appointed by the Governor-General in the name and on behalf of Her Majesty.[7] Judges of the Supreme Court, the Court of Appeal, Associate Judges and District Court Judges are appointed by the Governor-General.[8] The reference to Her Majesty is absent in respect of the Court of Appeal and Supreme Court because the superior court Judges are ipso facto the Queen’s Judges, and other members of the judiciary are not.

In respect of the High Court, what used to happen in practice was that the Attorney-General and the Chief Justice would discuss possible candidates identified by their coming to the notice of the Attorney-General or Chief Justice through their eminence as practising barristers. The Presidents of Law Societies and others who might be expected to have an informed view were sounded. An approach would then be made, often by the Chief Justice but sometimes by the Attorney-General. If the responsibility of office were accepted, as it usually was, the Attorney-General would decide to advise the Governor-General to appoint. By convention, the Attorney-General mentioned the new Judge’s name in Cabinet only at that point and simply by way of advice, not for the purposes of discussion, thereby maintaining the Attorney-General’s independence in the matter of appointments. It has not been conventional to mention in this way appointments below the level of the High Court.

In respect of the District Court, appointments to which were advised by the Minister of Justice, the procedure was analogous. Consultation would occur between the Minister and the Chief District Court Judge or, earlier, senior Magistrates in the area of appointment, as well as senior practitioners who could be expected to know the standing and reputation of a potential appointee.

The process worked well when the bar was the expected source of appointees and the potential pool was both small and self-evident. But lack of transparency became an increasingly troublesome feature. Hence there were calls, from time to time, for a more public process. Underpinning that expectation was the understanding that, amongst other considerations (such as inherent qualities), structures for the preservation of judicial independence needed to address not just the relative stability of present-day New Zealand, but also the possible turbulence of society in the distant future. Constitutional insurance must be taken out well in advance.

The present situation is somewhat more structured, and is explained in Ministry of Justice documents which are published on the world wide web.[9] The process involves the publication of advertisements of expressions of interest. Respondents who meet the statutory criteria are identified in a confidential register maintained by the Attorney-General’s Appointments Unit. Depending on whether the practitioner has expressed interest in the High Court or the District Court, certain consultation and interview processes may follow. Potential consultees may be the Chief Justice, President of the Court of Appeal, Secretary for Justice, President of the Law Commission, the New Zealand Bar Association, the New Zealand Law Society, the Chief District Court Judge and others who may have an informed view of prospective appointees. Ultimately an appointment is made. In the case of the High Court mention is still made in Cabinet.

The process is less open than occurs, for example, in the highest levels of the USA judiciary. But there is an understandable and valid tension between open process and an applicant’s privacy rights. The future may see a more open method of appointment but, I suggest, at the possible cost to society of the concept of the judiciary as impartial ministers of justice rather than public servants.

III. TENURE

The tenure of High Court Judges is assured by sections 23 and 24 of the Constitution Act 1986, which provide:

23 Protection of Judges against removal from office
A Judge of the High Court shall not be removed from office except by the Sovereign or the Governor-General, acting upon an address of the House of Representatives, which address may be moved only on the grounds of that Judge’s misbehaviour or of that Judge’s incapacity to discharge the functions of that Judge’s office.

24 Salaries of Judges not to be reduced
The salary of a Judge of the High Court shall not be reduced during the continuance of the Judge’s commission.

The recent extension of permanent tenure to Associate Judges removes the scope for any suggestion that a decision by them might be influenced by concerns about reappointment at the expiration of what was a five-year term. There is a compulsory retirement age of 68 years for all Judges.

The Judicial Conduct Act 2004 established formal, antecedent procedures for the removal of Judges. The justification for that Act is to provide structures for complaints and institutionalised processes for informing the Attorney-General when to initiate a motion in Parliament for address to the Governor-General seeking removal in the case of the higher judiciary; and when to advise the Governor-General to remove other Judges from office.

The value of the first objective may be moot. There are appellate structures, media sanctions and the discipline and authority of peers, to regulate individual conduct. Going beyond that raises serious questions about judicial independence. It is perhaps the case that the establishment of a complaints system is as much a catalyst as a process. There are, however, sound arguments in terms both of natural justice and judicial independence, for a defined advisory process before resort to a motion in Parliament.

IV. ACCOUNTABILITY

It is sometimes said that Judges lack accountability because they are appointed, not elected. In fairness I should add that the context of such observations is not a debate about whether Judges in New Zealand should, as in some American state jurisdictions, be elected, but rather whether Judges should not over-reach and intrude into the domain of the legislature. In reality Judges are constrained and accountable. They are subject to legislation defining or recognising their jurisdiction. They are subject to obligations including, for example, the New Zealand Bill of Rights Act 1990. They are also constrained by the limits of the common law in any particular area. The reasons for decisions are almost invariably public and, except at the highest level, the courts are subject to appellate or reviewing supervision.

To draw a distinction in terms of accountability between Members of Parliament and the judiciary solely on the basis of electoral supervision is, in any event, simplistic. Members also make their decisions in public, may be criticised in the public media, and are subject to the discipline of Standing Orders of the House. The constraints on the exercise of power, whether judicial or political, are more extensive than the ballot box.

V. ASSIGNMENT OF JUDGES TO CASES

No system of appointment of Judges can obviate differences in skills and personalities amongst Judges. Every practising lawyer knows that a client may have a better chance or a lesser chance of success in a case, or on an issue, depending on what Judge is hearing it. If the selection is random for all litigants then of course the drawing of a particular Judge for a case will be a matter of chance, and all litigants are subject to the same odds in the judicial lottery, as it were. There are various methods of achieving an acceptable degree of randomness, such as computer allocation, or the assignment of Judges to cases on the basis of order of filing and judicial seniority.

In a recent paper, Dr Petra Butler examines methods of case allocation in the Court of Appeal and the several High Court registries.[10] She argues that the neutral assignment of cases to Judges is part of the rule of law and serves four functions.

First, it prevents the manipulation of judicial results by the ability to choose a particular Judge. Second, it is conducive to public confidence in the impartiality and independence of the judiciary. Third, it guarantees that everyone has the same chance of getting a Judge favourable to the party’s cause. Fourth, it ensures that basic rights and freedoms are not compromised by systems which are not robust.

If Dr Butler is correct, the assignment of cases will be impeachable, on appearance of justice grounds, unless assignment is random or choice is otherwise entirely excluded.

1. Supreme Court Benches

To some extent the ideal is achievable by the Supreme Court with its present composition of five Judges, because it must sit as a five-judge court when hearing a substantive appeal. But the gateway to a substantive appeal may be blocked by as few as two Judges because appeals are by leave and two Judges could deny leave. But what if permanent Judges are, for some reason, unable to sit? Who may fill the gap?

The Supreme Court Act 2003 provides:

17 Constitution of Court
(1) The Supreme Court comprises—
(a) the Chief Justice; and
(b) not fewer than 4 nor more than 5 other Judges, appointed by the Governor-General as Judges of the Supreme Court.
(2) The Supreme Court’s jurisdiction is not affected by a vacancy in the number of its Judges.

Provision for Acting Judges is made in the Supreme Court Act 2003:

23 Acting Judges
(1) The Governor-General may appoint as acting Judges of the Supreme Court retired Judges of the Supreme Court or the Court of Appeal who have not reached the age of 75 years.
(2) Each acting Judge must be appointed for a stated term that—
(a) is not more than the time until the Judge will reach the age of 75 years:
(b) in any case, is not more than 24 months.
(3) During the term of his or her appointment, an acting Judge may act as a Judge of the Supreme Court to the extent only that the Chief Justice authorises under subsection (4).
(4) The Chief Justice may authorise an acting Judge to act as a member of the Supreme Court—
(a) to hear and determine any proceedings within a stated period; or
(b) to hear and determine stated proceedings.
(5) The Chief Justice may authorise an acting Judge to act as a member of the Supreme Court only if satisfied that—
(a) there is a vacancy in the Supreme Court; or
(b) a Judge of the Supreme Court is for any reason unavailable to hear proceedings or particular proceedings.
(6) An acting Judge is authorised when the Chief Justice gives the Attorney-General a certificate, signed by the Chief Justice and at least 2 other permanent Judges of the Supreme Court, to the effect that in their opinion it is necessary for the proper conduct of the Court’s business for the acting Judge to be authorised to act as a member of the Supreme Court—
(a) to hear and determine proceedings within the period concerned; or
(b) to hear and determine the proceedings concerned.
(7) An acting Judge has the jurisdiction, powers, protections, privileges, and immunities of a Judge of the Supreme Court and the High Court, but only in relation to acting as a member of the Supreme Court, under the authority of subsection (4), in the hearing and determination of a proceeding.
(8) While acting as a member of the Supreme Court, under the authority of subsection (4), in the hearing and determination of a proceeding, but not otherwise, an acting Judge must be paid—
(a) a salary at the rate for the time being payable to a Judge of the Supreme Court other than the Chief Justice; and
(b) any applicable allowances, being travelling allowances or other incidental or minor allowances, determined by the Governor-General for acting Judges.
(9) The fact that an acting Judge acts as a member of the Supreme Court is conclusive proof of the Judge’s authority to do so. No action of the Judge, and no decision of the Court, may be questioned on the ground that the occasion for the Judge to act as a member of the Court had not arisen or had ceased.
(10) An acting Judge may resign office by written notice to the Attorney-General.

The pool of potential Acting Judges must always represent a theoretical opportunity for court stacking. However the grounds for concern at this elevated level may, at present, be more theoretical than real. Compare, for example, the United Kingdom where only five of the twelve Lords of Appeal in Ordinary usually sit on appeals.

In Campbell v MGM Ltd, an important case involving the balancing of competing rights or values, the House of Lords extended the scope of liability for a breach of privacy rights by a majority of three to two.[11] The issues were similar to those raised in Hosking v Runting where the New Zealand Court of Appeal also extended liability by a majority of three to two.[12] It is speculative whether the outcome in the New Zealand case would have been different if judges in the majority had been replaced by any of the three other judges, including the Chief Justice, who, theoretically, could have sat on the case. But there must be a fair chance that the Campbell case would have had a different outcome if any of the seven Lords who did not sit had replaced any one of the majority. In that case the outcome was highly likely to have been dependent upon the composition of the Bench.

There is a New Zealand case which has attracted criticism on the ground that its outcome was by way of three to two majority which resulted from an unusually constituted Court of Appeal. In Brighouse Ltd v Bilderbeck,[13] a permanent Judge of the Court, McKay J, did not sit, whilst an Acting Judge, Sir Gordon Bisson, who had previously retired, did sit and voted to constitute the majority. The temporal proximity of that case, with its attendant criticism, to significant changes to the Judicature Act in 1998, is unlikely to have been merely coincidental.

2. Benches in the Court of Appeal

Supplementary assistance to the Court of Appeal is now restricted to High Court Judges who have been nominated by the Chief Justice, after consulting the President of the Court of Appeal and the Chief High Court Judge, as Judges of the High Court who may comprise members of the Court of Appeal.[14] Judges are assigned to act as members of a Criminal or Civil Division, comprising three Judges, in accordance with a procedure adopted from time to time by Judges of the Court of Appeal.[15] The President of the Court of Appeal must publish in the Gazette any procedure adopted under s58C(1). A nominated High Court Judge may not be assigned to a Division without the concurrence of the Chief Justice and the Chief High Court Judge. Section 58D provides when the Court of Appeal is to sit as a Full Court of five Judges. The extraordinary situation of a High Court Judge sitting on a Full Court is covered by s58F, which requires a certificate by the President. No more than one Judge of the High Court may sit as a member of the Full Court at any one time.

These measures meet the concerns raised by the Brighouse case but Dr Butler still perceives weaknesses in the procedures. She argues in her article that there is a lack of transparency about how Judges are allocated to divisions of the Court and which divisions of the Court get to hear which cases. Further, although the criteria for the allocation of a case to a Full Court are relatively clear, there are no transparent criteria or procedures in place to determine the selection of Judges to sit on a Full Court. Overall, she says, the Court of Appeal system appears to give substantial discretion to the President to control the allocation of cases and the selection of particular panels.[16]

Recently the current members of the Court approved the gazetting of a new Notice outlining procedures for assignment of Judges to divisions and determining which appeals were of sufficient significance for a Full Court. That Notice was executed on 30 April and gazetted on 13 May 2004.[17] The procedures do not differ substantially from the previously gazetted procedures but at least have the merit of subscription by all the present Judges of the Court. It is the case that assignment to particular appeals or a particular appeal will be by the President, the Acting President or nominee. In assigning Judges to cases the President, Acting President or nominee shall take into account the following:

the forward planning programme and the availability of Judges;

• the equitable sharing of work among the Judges;

the efficient dispatch of the Court’s business;
that it is often desirable for at least one Judge with expertise in an area of law that is in issue to hear a case;
the role of all the permanent Judges of the Court in the clarification and development of all areas of the law; and
the desirability of related litigation (ongoing litigation arising out of the same facts between the same or some of the same parties) being heard by the same or some of the same Judges.

In the three years I have sat on the Court of Appeal I have heard no concerns expressed by Judges about assignments to cases. I do not doubt that if there were any concerns they would be raised because the members of the Court would have a duty to do so. Section 58C(1) imposes the responsibility for adopting a procedure upon the Judges of the Court of Appeal, not the President, and the gazetted Notice stipulates that Judges will review the assignment process from time to time and that the members of the Court will also consult regularly to review the process in the light of the ongoing workload of the divisions and the efficient dispatch of business. At present Dr Butler’s criticisms have a theoretical justification but are not realised in practice. However, the concerns she raises are a valuable reminder of the need for preventive vigilance and protective structures.

VI. BIAS

I turn now to the issue of fairness in action and more particularly apparent bias. As the Court of Appeal pointed out in Erris Promotions:

The integrity and moral authority of a legal system depends on those factors which satisfy the reasonable informed observer that it is fair in practice. To be fair in practice its adjudicators must be and must appear to be impartial.[18]

The courts have had difficulty in articulating a comprehensible and workable test. To some extent the difficulty arises from the need to balance efficiency and robustness against possible hypersensitivity of litigants on the issue of impartiality. As Callaway JA observed in Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd:

As a general rule it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions a Judge or Magistrate should not accede to an unfounded disqualification application.[19]

Underscoring those sentiments is the apprehension that reluctant parties may seek to delay litigation or cunning parties may seek to “forum shop” by raising issues of apparent bias. On the other hand, a test of real apprehension of bias may impugn the principle of apparent justice. As the Court of Appeal pointed out in Erris Promotions, the High Court of Australia in Eber v Official Trustee favoured a test of reasonable apprehension, expressed in these terms:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver ... or necessity ... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.[20]

The New Zealand approach was influenced by the speech of Lord Goff of Chieveley in R v Gough:

Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the Court is thinking in terms of possibility rather than probability of bias. Accordingly having ascertained the relevant circumstances, the Court should ask itself whether having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the Tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of the party to the issue under consideration by him ...[21]

The New Zealand Court of Appeal followed R v Gough in Auckland Casino Ltd v Casino Control Authority.[22] However, the House of Lords in Porter v MaGill altered the test (or in their euphemistic term “adjusted” it). Their Lordships said that “[t]he question is whether the fairminded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased”.[23] I confess some difficulty in understanding what the epithet “real” adds to the test.

Following the House of Lords “adjustment” in Porter v MaGill one could choose if one wished between tests of “real danger”, “real possibility”, or “reasonable apprehension”. One could also choose between “the Court’s own view” and “the Court’s view of the public view”.

Without deciding the issue the Court of Appeal anticipated the need to do so in Erris Promotions:

This Court will no doubt need to consider, in due course, whether to discard the Gough test, as England has, and adopt not only a specifically objective approach but also a standard other than “real danger”, in terms of the English or other Commonwealth principles. We would certainly have to make a choice if faced with a case where the outcome would be affected differently by different tests. It is reasonably arguable that the Australian approach, which examines reasonable apprehension by a fair-minded and informed observer, gives full weight to public perceptions concerning the impartial administration of justice. Public as well as litigant confidence in the impartial administration of justice is at the heart of the issue we have been discussing. The observations made by Mason CJ and McHugh J in R v Webb [1994] HCA 30; (1994) 181 CLR 41, at 50-53 about the respective features of the then English and the Australian approaches are particularly helpful. A revised test, which gives full weight to the requirements of public perception and objectivity, as well as being capable of straight-forward application, might be “Would the reasonable informed observer think that the impartiality of the adjudicator might be/might have been affected?”. This suggestion is made, not in any declaratory way but as a reference for possible future discussion.[24]

Again without finally deciding, this Court thought it appropriate to apply the suggested test in Erris Promotions to the facts of the case in Ngati Tahinga v Attorney-General.[25] As matters stand, however, the Gough test of real danger, favoured in the Auckland Casino case, has not been overruled but it does seem to have been left behind. Those who may be minded to read Erris Promotions and Ngati Tahinga may take what inference they will from the fact that I wrote the judgment of the Court in each of them, but that cannot be taken as any indication of what might happen in a future case.

It may be noted however that the test discussed in Erris Promotions and Ngati Tahinga is consonant with the jurisprudence not only of Australia but also of the USA. For example, in Liteky v US, the US Supreme Court held that:

disqualification is required if an objective observer would entertain reasonable questions about the Judge’s impartiality. If a Judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the Judge must be disqualified.[26]

VII. OPEN COURTS

A clear and informative statement of the provenance of and justification for open justice is set out in the first four paragraphs of Chapter 8.1 of the Law Commission’s Report 85 “Delivering Justice for All”. I will not reproduce it in this paper but I do commend it. It reminds us that open processes are central to maintaining public confidence in the administration of justice and ensuring the accountability of Judges, and are assured by international instruments and affirmed by the New Zealand Bill of Rights Act 1990.

As the Law Commission points out and as we all would appreciate there may be situations justifying a limitation on openness. These are more obvious where there is a need to protect vulnerable witnesses or victims, such as in cases of alleged sexual offending, when the public is excluded from the courtroom and where limitations are placed on the publication of names. Although the exclusion of the public in the course of testimony by victims of sexual offences is commonplace, protection of the public interest is nevertheless maintained by the right of the public media to remain and to publish details, albeit without identifying the complainant. In certain types of proceedings there is a constraint placed on publication in furtherance of the administration of justice. Typical would be the particulars of pre-trial determinations of questions of admissibility of evidence, particularly when evidence is excluded. Obviously the utility of rulings excluding evidence from a trial would be compromised if potential jurors could read about it in the media. Sometimes details of litigation must remain secret in order to protect secret commercial interests. And constraints on publication may be needed to protect personal privacy interests.

The relevance of the media to the principles of open justice cannot of course be overstated. Knowledge of how the courts function generally and how particular cases are dealt with must contribute greatly to public confidence in the judicial system. As one who was originally rather sceptical of the introduction of visual and audio media into courts I am now persuaded of its social utility in raising awareness of the role of the judicial system in New Zealand society. I well remember the anxious discussions amongst the judiciary when the question of allowing television and radio reports from the courtroom was first mooted. Guidelines for ensuring that the integrity of the court process was not compromised by audio-visual recording for transmission were developed in discussion with representatives of the public media. The latest guidelines were developed in 2003 and have been operating since the beginning of this year. The procedures seem to be working satisfactorily from the point of view of both the media and the courts. My only reservation is that the media seem too sparing in the use of the informative and often dramatic material available for their use.

Of no less concern than the cases where we positively limit public access are the areas where we do nothing or insufficient to extend public access in accordance with modern methods of communication. The courts have been slow, for example, in establishing a website, which could convey information to a vast audience about the functioning of the courts, as well as a sentencing and other decisions database. I should point out, in fairness, that the importance of such facilities is recognised by the present Minister for Courts and his Department, and some progress is being made in this area.

VIII. APPEALS IN ABSENTIA

One matter of particular concern to the Court of Appeal is that persons in custody, whether on remand or after sentence, have no legal right to be present at court hearings affecting their liberty. Section 395 of the Crimes Act provides:

395 Right of appellant to be represented, and restriction on attendance
(1) At the hearing of an appeal, or an application for leave to appeal, or on any proceedings preliminary or incidental to an appeal or application, the appellant may be represented by counsel.
(1A) If an appellant is in custody, he or she is not entitled to be present at a hearing involving oral submissions unless—
(a) the rules of Court provide that he or she has the right to be present; or
(b) the Court of Appeal gives leave for him or her to be present.]
(2) The power of the Court of Appeal to pass any sentence under this Act may be exercised, notwithstanding that the appellant is for any reason not present.
(3) Subsections (1) to (2) do not apply to—
(a) an appeal to the Supreme Court; or
(b) an application for leave to appeal to the Supreme Court.]

In practice, leave is granted by the Court of Appeal only where the presence of the prisoner is necessary for the hearing of the appeal, as for example where the prisoner may be required for cross-examination on an affidavit alleging some factual basis for the appeal. The Court of Appeal does not have holding facilities for prisoners either in the courtroom or in the court precincts. Where cross-examination of a prisoner is required the appeal is heard in a High Court. There is a strong argument that the appearance of justice, as well as elementary human rights, mandate the presence of an appellant, if desired, at the hearing of an appeal. It could also be relevant to the rehabilitation of prisoners that they see the arguments presented to the court for and against their cause. The administration of justice by the courts should be seen, not as through a glass darkly, but face to face.

Such presence need not be physically in the face of the court. The presence could be by audio-visual links between courts and prisons as can occur, for example, in hearings before the County Court of Victoria and the Federal Court in New South Wales. Audio-visual links are cost effective, do not compromise security and allow prisoners to see and instruct their counsel in relation to their appeal. I ask, rhetorically, why have we, as a society, tolerated the hearing of criminal appeals in absentia? The Court of Appeal cannot routinely grant leave to be present, on the basis of an appellant’s rights, because the Crimes Act presumption is against entitlement. But the time may come when the Court has to consider whether the integrity of the appellate process itself presumptively indicates the grant of leave. In the meantime the Justice Department is looking into the matter of audio-visual links.

IX. REASONS FOR JUDGMENT

We have come some distance since Lord Mansfield reputedly advised a colonial governor who was required to undertake judicial duties never to give his reasons because his judgment would probably be right but his reasons would certainly be wrong. These days a judgment is likely to be considered bad in law if it gives no reasons. Over 20 years ago the Court of Appeal pronounced, in R v Awatere, that a failure to follow the normal judicial practice of giving reasons which can sensibly be regarded as adequate to the occasion could jeopardise a decision.[27] More recent perceptions, informed not only by the New Zealand Bill of Rights Act 1990 but also by developments in the area of judicial review, suggest that a decision without reasons will be regarded, presumptively, as invalid. In my opinion, this is because such a decision must be justified as inevitable, not merely available. Jury verdicts, alone, are an exception because trials by jury are deliberately structured for a verdict, not an articulated judgment, and the Judge’s directions of law and rulings are recorded.

The giving of reasons imposes a discipline on a Judge, provides a basis for accountability both in an appellate and public context, and limits the risk of, as well as demonstrating where appropriate the fact of, arbitrariness. Notwithstanding this elemental component of open justice, courts may be tempted for administrative reasons, such as inadequate or inappropriate resources for dealing with litigation demands, to strive for minimalism in this area. For example in 1968 the United States Court of Appeals for the Fifth Circuit established screening panels of three Judges each to determine whether an appeal should go to an oral hearing or be dismissed by the simple order “Affirmed”. If all three Judges of a panel formed the view that there was no error of law and no basis for disturbing the trial Court’s factual findings, and that an opinion would have no precedent value, then an opinion would not be written. The process involved, not a hearing in any sense, but rather successive consideration of a file by each of the three Judges of the panel. It will be recalled that this type of procedure found little favour with their Lordships in R v Taito.[28]

There is now statutory jurisdiction for the Court of Appeal to deal with criminal appeals on the papers, but in practice that method of determination of an appeal is infrequently resorted to. Its availability depends on a screening Judge deciding, amongst other things, that an appeal can fairly be dealt with on the papers. At the time when such a decision needs to be made for case management reasons, such an opinion cannot usually be formed. It is invariably only in cases of glaringly obvious want of merit that such a decision could be made, but sometimes the merits of the appeal seem incontrovertible. Every case dealt with on the papers involves a conference of the Judges seized with it before the reasons and result are confirmed. The nature of appeals apt for disposition on the papers means that the reasons for judgments will not be extensive. I am confident, however, that they are always adequate to explain the outcome.

The formal reasons for judgment are the only ones a court can properly give. A judgment must speak for itself and once it has been delivered, except in rare situations which I do not examine in this paper, a Court is functus in the particular matter. For reasons of finality and propriety, Judges do not discuss in a personal way the reasons that led them to a particular result. That is why I could not, for example, properly discuss in this lecture the reasons for and ramifications of Ngati Apa v Attorney-General, the so-called foreshore and seabed decision.[29] That leads me to my final point.

X. CONFIDENCE

It is essential to any society that its system of justice and its courts should have the confidence of litigants and of the community generally. That ideal underpins all of the arguments for the appearance of justice, judicial independence, open courts, disqualification or invalidation for apparent bias as well as actual bias, and reasons for judgment. Occasionally that confidence may be undeserved. More often it is likely to be undermined.

David Pannick QC remarked that Judges spend their lives doing what other people try to avoid, namely, making decisions.[30] Sometimes the decisions are unpopular which, on one view, may be a good thing because it indicates indifference to popular acclaim or denigration. Sometimes sentencing decisions are disparaged by those who have very understandable reasons for anguish and grief over criminal acts to them or their loved ones. All the more reason therefore that Judges should moderately and clearly articulate their reasons, according to law, why a particular sentence has been imposed or a particular decision been handed down.

Judges should not expect to be immune to criticism. Except where the publication of views may imperil a still undetermined case before the courts, freedom of expression is untrammelled by the judicial nature of its subject. There are however conventions affecting the relationship between the judiciary and members of the House of Representatives. These constrain criticism of one by the other for reasons relating to recognition, for the public good, of the dignity and authority of each of these principal branches of government. The Standing Orders of the House of Representatives, Order 113 stipulates that a Member may not use offensive words against the House or against any Member of the judiciary. Orders 111 and 112 prohibit comment in the House which may endanger or prejudice a current trial or appeal.

Ministers are subject to more specific obligations. The Cabinet Manual, currently revised as at 2001, provides:

The separation of the executive and the judiciary under New Zealand’s system of government means that Ministers must exercise prudent judgements before commenting on judicial decisions – either generally, or in relation to the specifics of an individual case (for example, the sentence). Ministers, following a long-established principle, do not involve themselves in deciding whether a person should be prosecuted, or on what charge. Therefore, they should not express comment on the results of particular cases or on any sentence handed down by a court. Sentencing is a complex process. Ministers must avoid commenting on any sentences within the appeal period, and should avoid at all times any comment that could be construed as being intended to influence the courts in subsequent cases.[31]

Although the temptation to comment publicly is most likely to arise in relation to the conduct and result of criminal proceedings, the restraint referred to in paragraph 2.115 applies equally to civil cases.

Ministers should not express any views that are likely to be publicised where they could be regarded as reflecting adversely on the impartiality, personal views or ability of any Judge. If a Minister thinks that he or she has grounds for concern over a sentencing decision, the Attorney-General should be informed.

It is, however, proper for Ministers to comment on the effectiveness of the law or about policies on punishment (that is, on those matters where the executive has a proper involvement), but not where the performance of the courts is brought into question.

Subject always to the discretion of the Speaker and to the right of the House to legislate, matters awaiting or under adjudication in any court of record may not be referred to in any motion, or in any debate, or in any question, including a supplementary question, if it appears to the Speaker that there is a real and substantial danger of prejudice to the trial of the case.

Standing Order 111 has effect, in relation to a criminal case, from the moment the law is set in motion from a charge being laid; and in relation to cases other than criminal, from the time when proceedings have been initiated by the filing of the appropriate document in the registry or office of the court. Standing Order 111 ceases to have effect in any case when the verdict and sentence have been announced or judgment given. In any case where notice of appeal is given, Standing Order 111 has effect from the time when the notice is given until the appeal has been decided.

Judges for their part are astute in their judicial utterances to show respect for the House and its Members and Her Majesty’s Ministers. These conventions have not prevented political criticism of the judiciary from time to time.

XI. PLUS CA CHANGE

In 1993 the then Chief Justice, Sir Thomas Eichelbaum, addressed the New Zealand Law Society Conference in Wellington in the following terms:

It has long been recognised that there need to be restraints upon political comment about the Court process. Reciprocal restraints of course are imposed upon the Judges which in this country have been observed meticulously. Unhappily the same cannot always be said about political comment.[32]

New Zealand is not alone in this respect as one would imagine. A judiciary which observes a convention of restraint may be seen as an easy target for a political sniper irrespective of the locus in quo. Lord Ackner remarked:

There are currently many references to the alleged ‘unprecedented antagonism’ between the Judges and the Government in relation in particular to judicial review of ministerial decisions and the restrictions which the Government propose on judicial discretion in sentencing. As regards judicial review, it has been suggested that the Judges are getting above themselves, challenging the supremacy of Parliament or exercising a political function in judicial review cases instead of simply upholding the rule of law.[33]

Lord Ackner said that he did not believe there was any substance in the criticism, and he affirmed the courts’ inherent power to determine what was lawful or not and to award the appropriate remedy where there was unlawfulness. In doing so, he pointed out that “[t]he Court is performing its ordinary function of upholding the rule of law”.[34] I say that it is a Judge’s absolute duty to society, not only to uphold the rule of law, but to be seen manifestly and undoubtedly to be doing so.

I began this lecture with references to William Shakespeare and I conclude with another example of his wisdom. These words also were put in the mouth of Polonius as he spoke to his son. He could well have been giving wise counsel to many a Judge:

Give every man thy ear but few thy voice;
Take each man’s censure, but reserve thy judgment.[35]


[*] DCNZM, President of the Court of Appeal of New Zealand.

[1] [1924] KB 256, 259.

[2] Jackson, Robert The Chief (1959) 197.

[3] Hamlet, Act I, Scene 3.

[4] Othello, Act III, Scene 3.

[5] Judicature Act 1908, ss 4(1) and 57(2), and Supreme Court Act 2003, s 17(1).

[6] District Courts Act 1947, s 5.

[7] Judicature Act 1908, s 4 (ID).

[8] Supreme Court Act 2003, s 17(1), Judicature Act 1908, ss 57(7) and 26(1), and District Courts Act 1947, s 5(1).

[9] http://www.justice.govt.nz/pubs/other/pamphlets/2003/judicial-appointments/high-court-judge.html; and http://www.justice.govt.nz/pubs/other/pamphlets/2003/judicial-appointments/district-court-judge.html.

[10] Butler “The Assignment of Cases to Judges” (2003) 1(1) New Zealand Journal of Public and International Law 83.

[11] [2004] UKHL 22.

[12] [2003] 3 NZLR 385.

[13] [1995] 1 NZLR 158.

[14] Judicature Act 1908, ss 58A, 58B.

[15] Section 58C.

[16] Supra note 10, at 112.

[17] New Zealand Gazette No 52.

[18] Erris Promotions Ltd & Ors v The Commissioner of Inland Revenue [2003] NZCA 163; (2003) 21 NZTC 18,214; (2003) 16 PRNZ 1014.

[19] [1999] VSCA 35, para 89(e).

[20] [2000] HCA 63; (2001) 205 CLR 337, 344.

[21] [1993] UKHL 1; [1993] AC 646, 670.

[22] [1995] 1 NZLR 142, 149, Cooke P for the Court.

[23] [2001] UKHL 67; [2002] 2 AC 357, 494, per Lord Hope of Craighead.

[24] Erris Promotions Ltd & Ors v The Commissioner of Inland Revenue, supra note 18.

[25] CA163/03, 24 September 2003.

[26] 114 S Ct 1147,1162 (1994).

[27] [1982] NZCA 91; [1982] 1 NZLR 644.

[28] [2002] UKPC 15; [2003] 3 NZLR 577.

[29] [2003] NZCA 117; [2003] 3 NZLR 643.

[30] Pannick, David Judges (1987) 1.

[31] Cabinet Manual, para 2.115.

[32] New Zealand Law Conference Papers (1993) Vol 2, 122.

[33] (1996) 146 New Law Journal 1789.

[34] Ibid.

[35] Hamlet, Act 1, Scene 2.


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