New Zealand Supreme Court Transcripts
Last Updated: 13 July 2012
IN THE SUPREME COURT OF NEW ZEALAND SC 36-37/2011
SC 39-43/2011  NZSC Trans 23
URS PETER SINGER EMILY FELICITY BAILEY VALERIE MORSE
5 PHILLIP PUREWA
TRUDI PARAHA RANGI KEMARA Appellants
Hearing: 14 September 2011
Coram: Elias CJ Blanchard J Tipping J McGrath J William Young J
Appearances: C W J Stevenson, A Shaw and E A Hall for Appellants
Singer, Morse, Purewa, Paraha, Kemara
V C Nisbet for Appellant Bailey
A Markham, A R Burns and H R B Stallard for the
May it please the Court, counsel’s name is Stevenson. I appear for the appellants
along with my learned friends, Mr Shaw and Ms Hall. My learned friend, Mr Nisbet, appears for Ms Bailey.
5 ELIAS CJ:
Thank you. Thank you, counsel.
May it please the Court, Ms Markham, together with Mr Burns and Ms Stallard for the
Yes, thank you, Ms Markham, counsel. Well, thank you for your memoranda and your helpful written submissions. It seems that effectively the Court is being invited
15 by consent to allow the appeal, and then there is an issue as to whether we proceed
to hear, as part of that, the substantive arguments that have been filed, and we have your memoranda on that matter. Mr Stevenson, is there anything you wish to add to the submissions you’ve made as to why we should proceed to determine the substantive appeal?
No, Your Honour, plainly acknowledging that it is a matter of discretion. Our contention is that we fall into the exception to the mootness rule, whichever way one looks at it. I suppose there’s a jurisdictional issue arguably in the sense that if
25 the appeal is allowed against the four remaining appellants, it may be that mootness
is more properly applicable to those who have been discharged but I just simply make that observation. The essential question is whether or not this Court should exercise its discretion, consider the question of statutory construction, and in answer to Your Honour’s question, there’s nothing, I don’t think, I can properly add to what’s
30 been put forward in the memorandum.
Thank you, and Mr Nisbet, you’re for – no, thank you. Ms Markham, is there
35 anything you wish to add to the rather brief indication in your written memorandum?
Yes, well, thank you, Ma’am. The respondent certainly accepts that the issue identified by my friend, that’s the meaning of “likelihood”, is something that’s capable of being extracted from the facts in terms of the Gordon Smith analysis, and to that extent I suppose it’s a matter for the Court as to whether it considers the issue raises
5 a seriously arguable question of public significance, but the respondent’s position is
that it doesn’t and that essentially that issue was squarely before the Court of Appeal in R v Porter  NZSC 107 That’s the case cited as R v A  NZCA 380, I think, at tab 12 of my friend’s bundle, where the Court applied the well known substantial risk formula and expressly disallowed the balance of probability standard,
10 and while, of course, it’s the case that the leave application to this Court took a
slightly different focus, this Court didn’t see that there was any error of principle
discernible in the Court of Appeal’s judgment, and –
15 It was a leave judgment, of course.
It was a leave judgment, yes, Ma’am, and the second point that the respondent
would make is that the Court of Appeal in this case essentially left the issue open,
20 and to that extent, I suppose, the issue is moot twice over and the key point in the respondent’s submission is captured in the Court of Appeal’s analysis of the issue at paragraphs 35 to 37 of the judgment, where the Court essentially noted that the section requires a balancing exercise in which the likelihood of juror ineffectiveness is weighed against the right to trial by jury, and then as such it’s not an absolute or a
25 mathematical standard but something that has to be assessed in each case, bearing
in mind the principle that the right is not likely to be departed from.
So the stronger the likelihood, the more likely it is that the right will be departed from
and vice versa. So to that extent, in my submission, there’s a fair amount of common
30 ground between the parties because it’s not being suggested by the respondent that a mere possibility or a naked possibility, as it’s referred to in the materials, is sufficient to displace the right.
35 It’s not a standard –
It’s just not an absolute.
– a standalone standard. It’s – yes. It’s a comparative assessment.
Indeed, and it’s a predictive and evaluative judicial function under that subsection which doesn’t lend itself to a standard of proof in a classic fact-finding sense. So we’re not suggesting that the threshold is anything other than high, simply that the
10 importation of a balance of probability standard is inapt for the nature of the judicial
task under the section.
So that, in a nutshell, Ma’am, is the respondent’s position.
15 ELIAS CJ:
Yes, thank you, Ms Markham. We’ll take a short adjournment and consider what we’ll do, thank you.
COURT ADJOURNS: 10.08 AM
COURTS RESUMES: 10:16 AM ELIAS CJ:
We have concluded that it is not appropriate to hear the substantive appeal for reasons which will be given in writing later. On that basis the appeal is allowed by
25 consent and the order for judge alone trial is set aside. Thank you counsel for your
extremely helpful submissions.