Taito v. R (New Zealand) [2002] UKPC 15  (19 March 2002)

	Privy Council Appeals Nos. 50 and 59 of 2001

Fa’Afete Taito	Appellant
	v.
The Queen	Respondent
and
James McLeod Bennett and 10 Others	Appellants
	v.
The Queen	Respondent

(Consolidated Appeals)

	FROM

	THE COURT OF APPEAL OF NEW ZEALAND
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 19th March 2002
	------------------

	Present at the hearing:-
			Lord Bingham of Cornhill
			Lord Steyn
			Lord Hope of Craighead
			Lord Hutton
			Lord Rodger of Earlsferry
		  	[Delivered by Lord Steyn]
	------------------

1. 	There are twelve criminal appeals from decisions of the Court of Appeal of New Zealand before the Privy Council.  Each appellant had a statutory right, reinforced by a provision of the New Zealand Bill of Rights Act 1990, to appeal without leave from decisions of lower courts to the Court of Appeal.  After conviction and sentence each appellant lodged a notice of appeal. None of the appellants could afford to pay for legal representation.  They all applied for legal aid.  The decisions on legal aid were in effect taken on paper by three judges of the Court of Appeal who conducted no hearings and did not meet to discuss the merits of the cases.  The applications were dismissed. Three of the appellants 
2. 	sought a review of the refusal of legal aid. Those challenges were dismissed without hearings and without reasons.  In accordance with the practice then prevailing the cases were listed on various dates for ex parte dismissal by the Court of Appeal.

3. 	Having failed to obtain legal aid none of the appellants were represented before the Court of Appeal and they were not present at the proceedings.  All had been informed that they had the right to lodge written submissions.  Some availed themselves of the right but most did not do so.  When no submissions were lodged the Court of Appeal, consisting of three members, routinely dismissed the appeals without examination of the merits of the appeals and without reasons.  When written submissions had been lodged, the Court of Appeal dismissed the appeals with brief reasons which were prepared by one of the judges who advised against legal aid or by the review judge.  The members of the Court of Appeal disposing of such appeals were called “the delivery judges”: occasionally one or more of the delivery judges had dealt with the refusal of legal aid but it was not considered necessary for the members sitting to have any knowledge of the circumstances of the case.  The view then taken was that, if the three members of the Court of Appeal had already concluded that the particular case did not merit legal aid, it had no realistic prospect of success.  This is in broad and necessarily imprecise outline the system under which the appellants’ appeals were dismissed by the Court of Appeal.  This system has now been replaced by legislation passed by Parliament in 2000 and 2001.

4. 	The appellants submit that as a result of systemic departures from the procedures under the legislation then in force, their appeals were arbitrarily dismissed.  The appellants argue that they never received any or proper hearings of their appeals to which they were entitled as of right.  In these circumstances it is sufficient to describe the appellants and the circumstances of their otherwise unrelated cases in an Appendix to this judgment. Except in the case of Johnson, there is no material before the Privy Council about the grounds of appeal of the appellants, let alone material to indicate that their appeals have a realistic prospect of success.  In the case of Johnson there are some particularised grounds of appeal which the Crown have had no opportunity to investigate.  It was agreed that in the case of Johnson the Privy Council must also concentrate on the systemic challenge to the way in which the appeal procedures operated.

I.	The Legislation Applicable to the Appeals.
5. 	The powers of the Court of Appeal of New Zealand derive from the Judicature Act 1908.  Judges are assigned to act as members of a criminal or civil division of the Court of Appeal: section 58C.  Only the criminal jurisdiction of the Court of Appeal is relevant to the present appeal.  A full court consists of five or seven judges.  Unless the full court hears a case, the court “sits” in divisions comprising three judges: section 58.  The judgment of the court must be in accordance with the opinion of the judges present: section 59.  There is provision for adjournment of cases in the absence of judges: section 61.  In summary the Judicature Act contemplates therefore that a duly constituted division of the Court of Appeal, having conducted a hearing according to law, may deliver judgment in accordance with the opinion of the Judges who are present during the hearing of the case and at the time of judgment.  And rule 14 of the Court of Appeal (Criminal) Rules 1997 provided that “The Court must deliver in open Court its decisions on appeals ...”.

6. 	The commitment of New Zealand to the International Covenant on Civil and Political Rights (1966) is evidenced by its ratification of this treaty in 1978 and its ratification of the Optional Protocol in 1989.  The latter provides that individuals who believe that their rights under the International Covenant on Civil and Political Rights have been infringed may take their complaints to the Human Rights Committee set up under the International Covenant on Civil and Political Rights.  The International Covenant influenced the shape of the New Zealand Bill of Rights Act 1990.  Although it is not entrenched and cannot found constitutional challenges to legislation, section 6 of Bill of Rights Act provides that an interpretation of the legislation consistent with the rights and freedoms contained in Bill of Rights Act is to be preferred: see Joseph, Constitutional and Administrative Law in New Zealand, 2nd ed (2001) pp 1043-1048.  In the context of the present cases the following rights contained in the Bill of Rights Act are relevant:
“25  Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a)	The right to a fair and public hearing by an independent and impartial court:
...
(e)	The right to be present at the trial and to present a defence.
... 
(h)	The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
...

27  Right to justice
(1)	Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.”

For present purposes the most important point is that section 25(h) provides in effect that no leave to appeal is required to appeal against a conviction or sentence.

7. 	Earlier statute law requiring leave to appeal against conviction or sentence had to be amended.  By section 2 of the Crimes Amendment Act 1991 the Crimes Act 1961 was amended to provide for a right to appeal without leave against conviction or sentence or both.  For the criminal justice system this was a watershed: it rendered reference to earlier precedent and practice obsolete in respects relevant to the present appeals.  Given the nature of the arguments before the Privy Council, it is necessary to set out the provisions of the Crimes Act 1961 (as amended) insofar as it is applicable to the appeals under consideration.  The following provisions appear to be relevant:
“383  Right of appeal against conviction or sentence
(1)	Any person convicted on indictment may appeal to the Court of Appeal against –
(a)	The conviction; or
(b)	The sentence passed on the conviction (unless the sentence is one fixed by law);
or
(c)	Both.”
Section 388 deals with the time for appealing.  The detail is not relevant.  But the concluding sentences of section 388 are relevant.  They provide:
“The rules shall enable any convicted person to present his case and his argument in writing instead of by oral argument if he so desires.  Any case or argument so presented shall be considered by the Court.” (Emphasis added)

Section 390 prescribes the duty of the Solicitor-General in the following terms:
“It shall be the duty of the Solicitor-General to appear for the Crown on every appeal against conviction or sentence by the person convicted, except so far as any other counsel employed or engaged by the Crown, or a private prosecutor in the case of a private prosecution, undertakes the defence of the appeal, and provision shall be made by rules of Court for the transmission to the Solicitor-General or all such documents, exhibits, and other things connected with the proceedings as he may require for the purpose of his duties under this section.” (Emphasis added)

Section 392(1) imposes on the Registrar of the Court of Appeal the duty to take all necessary steps for obtaining a hearing of the appeal.  This provision must be read with two rules of the Court of Appeal (Criminal) Rules 1997:
“10.	Registrar to allocate fixture and prepare case on appeal –
(1)	The Registrar must, for each appeal, allocate a fixture and prepare a case on appeal.

(2)	The Registrar must send the case on appeal to the parties or other legal representatives, and the parties or other legal representatives must advise the Registrar if any additional material is required to be before the Court at the hearing.” (Emphasis added)

“13.	Registrar to give parties notice of fixture – Notice of the time and place fixed for the hearing of an appeal or application for leave to appeal must be given by the Registrar to – 
(a)	The Solicitor-General; and

(b)	The accused person or convicted person; and
(c)	If the appellant is in custody and the Court has granted the appellant leave to be present at the hearing, the chief executive of the Department of Corrections.” (Emphasis added)

Section 392(2), although not directly relevant to any of the cases under consideration, casts some light on the scheme of the Act.  It provides:
“If it appears to the Registrar that any notice of an appeal against a conviction, purporting to be on a ground of appeal which involves a question of law alone, does not show any substantial ground of appeal, the Registrar may refer the appeal to the Court of Appeal for summary determination, and, where the case is so referred, the Court may, if it considers that the appeal is frivolous or vexatious and can be determined without adjourning it for a full hearing, dismiss the appeal summarily, without calling on any persons to attend the hearing or to appear thereon.”

With the marginal note “Right of appellant to be represented” section 395(1) provides:
“On the hearing of an appeal ... the appellant, except as provided in subsection (2) of section 392 of this Act, shall be entitled to be represented by counsel, but if the appellant is in custody he shall not be entitled to be present, except where rules of Court provide that he shall have the right to be present, or where the Court of Appeal gives him leave to be present.”

In addition, as already pointed out, rule 14 of the Court of Appeal (Criminal) Rules 1997 provided that “The Court must deliver in open Court its decisions on appeals ...”.  These are the statutory provisions which regulated the exercise of the right of appeal against conviction or sentence.

8. 	The focus of the appeals under consideration is on appellants who did not have sufficient means to obtain legal assistance.  To present their appeals effectively they were dependent on obtaining legal aid.  The Legal Services Act 1991 governed the procedures for obtaining criminal legal aid by persons in the position of the appellants.  Section 6(1) provided that every application had be made to the appropriate court.  Section 7(1), so far as material, read as follows:
“Registrar May Grant Criminal Legal Aid 
“(1)	Where any Court receives an application for criminal legal aid, a Registrar of that Court may, after assessing the application in accordance with the prescribed procedure, direct that criminal legal aid be granted to the applicant if,

(a)	Subject to section 15(1) of this Act, in that Registrar’s opinion it is desirable in the interests of justice that the applicant be granted criminal legal aid; and

(b)	It appears to that Registrar that the applicant does not have sufficient means to enable him or her to obtain legal assistance.

(2)	In considering whether or not to direct the grant of criminal legal aid, the Registrar shall have regard to –
(a)	The gravity of the offence ... the offence for which the sentence to which the proceedings relate was imposed:

(b)	In respect of any appeal, the grounds of the appeal: 

(c)	Any other circumstances that in the opinion of the Registrar are relevant.”
 (Emphasis added)

Section 15(1) provided:
“Registrar to Refer Certain Matters To Judge Of Court of Appeal
Where an application for criminal legal aid is made to the Court of Appeal, the Registrar who deals with that application shall, for the purposes of determining whether or not it is desirable in the interests of justice that the applicant be granted criminal legal aid, consult with a Judge of that Court, and shall take the views of that Judge on that matter into account in making that determination.” (Emphasis added)
Plainly, subject to the obligation to consult, the decision remained that of the legally unqualified Registrar.  Section 16, so far as material, provided:
“16	Review Of Decisions Of Registrar
(1)	Any person who is aggrieved by any decision of a Registrar under section 7 ... of this Act may apply for a review of that decision to, -
(a)	Where the decision was made by a Registrar of the Court of Appeal, a Judge of that Court or a Judge of the High Court:
... 

(3)	Every review shall be by way of rehearing of the matter in respect of which the Registrar made the decision.

(4)	On hearing an application under subsection (1) of this section for a review of a decision of a Registrar, the Judge ... may confirm, modify, or reverse the Registrar’s decision.” (Emphasis Added)

Under regulation 12 of the Legal Services Regulations 1991 a Form was prescribed which made provision upon application for a review of the decision of the Registrar for the latter to respond as follows:
“DATE OF HEARING
I appoint …………at ……….. at the …………… Court at ………………….……. for the hearing of this application.

…………………………
Registrar

…………………………
Date”

The Form plainly envisaged a hearing of the application for a review of the decision to refuse legal aid.

II.	The Practice Adopted by the Court of Appeal.
9. 	The statutory scheme outlined above, which was applicable to the appellants, was subsequently amended.  Before turning to the amending legislation it is necessary to set out the practice adopted by the Court of Appeal in regard to the earlier system. Given a number of differences between the cases of the appellants it is necessary to set out the position in extenso.  The position is described in an Agreed Statement of Facts.  With minor alterations it reads as follows:
“Initial Steps
1.		The appeal is initiated by a Notice of Appeal.  ...   The Notice of Appeal provides, inter alia, for an appellant to request legal aid, bail, and leave to be present.

2.		Upon receipt of the Notice of Appeal the Registry will request the trial file from the relevant Court.  The trial file will include pre-trial correspondence, the trial notes of evidence and the transcript of any relevant rulings. If there is a sentence appeal it will include the material before the Judge on sentencing and a copy of the Judge’s sentencing remarks.

3.		On a conviction appeal, the summing up is not automatically requested.  The Registry will only request it by direction of a Judge, who will request it as required by the stated grounds of appeal.

4.		Where legal aid has been requested the trial file, once received, and the Notice of Appeal are referred to a Judge.  That Judge (Judge “A”) is the Judge with whom the Registrar consults concerning legal aid as required by s 15 of the Legal Services Act 1991.

5.		A Judge’s clerk will prepare a criminal appeal sheet. The criminal appeal sheet contains a précis of the facts of the case, a statement of the grounds of appeal and an analysis of, and usually comments on, those grounds.

6.		Judge ‘A’ will accordingly have before him the Notice of Appeal, any supporting documentation filed, the trial file, and the criminal appeal sheet.

7.		Ancillary applications such as leave to be present and bail are noted on the criminal appeal sheet to be considered at the same time as the legal aid assessment.

Legal Aid – Positive Recommendation
8.		If Judge ‘A’ is of the view that legal aid should be granted he will recommend accordingly, and refer the file back to the Registrar.

9.		If the Registrar confirms the grant of aid, the appellant is advised of this and the matter is given a fixture for oral hearing ...

10.		For the oral hearing the Registrar prepares a Case on Appeal.  The Case on Appeal will typically include the Notice of Appeal, Indictment, Notes of Evidence, Summing Up (if relevant), Reports filed for Sentencing, Sentencing Remarks, any other trial rulings that are relevant and an Index prepared by the Registry.

11.		The Case on Appeal is provided to the appellant’s counsel, the Solicitor-General and the Court.

Legal Aid – Negative Recommendation
12.		If Judge ‘A’ is of the view that legal aid should be declined, he refers the file to two further Judges (Judges ‘B’ and ‘C’).  This latter process is not required by the wording of s 15 of the Legal Services Act 1991.

13.		The general practice is that if either Judge ‘B’ or Judge ‘C’ considers legal aid should be granted, a positive recommendation will be made to the Registrar.

14.		If all three Judges are of the view that legal aid should be declined, a negative recommendation is made.  If the Registrar accepts the recommendation, the appellant and the appellant’s counsel are advised accordingly.

15.		No case on Appeal is prepared and no other papers are sent to the appellant’s counsel, or the Solicitor-General.
Ex Parte Appeals (ie Appeals Decided on the Papers)
16.		If legal aid is declined, the appeal will normally be determined ex parte and the Registrar will write to the appellant advising him or her of the decision to decline aid.

17.		A standard form letter was used for this purpose ... This letter advised the applicant of the decision; of the right to seek review of the legal aid decision; of the time period within which that step must be taken; of the date on which the appeal would be determined; and that any written submissions had to be received by the Court (seven) days before the determination date.

18.		If the Notice of Appeal had identified a lawyer as acting at that stage on the appeal ... the lawyer received notification of the legal aid decision at the same time. This notification to the lawyer differed from the letter sent to appellants.

18.1	This letter advised of the decision, gave the date of the hearing and asked counsel to inform the Court if private instructions were received, in which case a new hearing date would be allocated for oral argument, and a Case on Appeal would be prepared.

19.	If an application for review of the legal aid decision was received, the whole file would be forwarded to a separate Judge (‘Review Judge’) for review in terms of s 16 of the Legal Services Act 1991.  If the review was successful an oral hearing date was allocated.  If the review was unsuccessful, the appellant was advised of this by a standard letter ...

20.	If the Notice of Appeal had identified a lawyer acting at that stage, the lawyer received notification of the review decision at the same time.  The notification to the lawyer differed from the notification to the appellant ... 

21.	In terms of the matters raised by the [appellants], the Registrar did not for ex parte appeals send to the appellants the documents on the trial file including, the Notes of Evidence (previously provided at trial); the Summing Up, and the Sentencing Notes, or the Court’s Practice Note; he did not prepare a Case on Appeal; he did not advise that appellants should send submissions to the Solicitor-General; he did not advise the appellants of a ‘right’ to be present at the hearing of their appeal.

22.	If an appeal was determined ex parte, the standard procedure was:

If no written submissions were received:
22.1	The file was not again circulated amongst the Judges but was checked by at least one Judge for its suitability for ‘ex parte’ disposition.  The Judge undertaking this checking procedure was normally the Judge who was presiding on the date the decision is delivered in open Court.  This may or may not have been one of Judge ‘A’, ‘B’ or ‘C’.

22.2	The matter was normally called in open Court at 10.00 am on the day appointed.

22.3	The Delivery Judges would formally dismiss the appeal.  No written judgment or reasons were given;

If written submissions were received:
22.4	The file was returned to the Judges (normally ‘A’, ‘B’ and ‘C’) for consideration.  A written ‘ex parte’ judgment would be issued.

22.5  The Judges sitting when the case was called in open Court and who formally announced the judgment would not necessarily be the same number of Judges or same three Judges who had earlier considered the file. Normally the Delivery Judges were those Judges sitting on the day previously notified for judgment.

III.	Nicholls v Registrar of the Court of Appeal [1998].
10. 	The practice followed by the Court of Appeal in respect of determining legal aid applications and of dismissing appeals ex parte was considered by the Court of Appeal in Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385.  A majority (Eichelbaum CJ and Tipping J) upheld the practice adopted by the Court of Appeal as consistent with the statutory scheme.  On the other hand, doubts surfaced in Nicholls.  Tipping J made the following observations (at 442-443):
“General Observations.
I have already indicated that the criminal legal aid regime for appeals to the Court of Appeal is unusual.  In my opinion, it should be changed, and for more than one reason.  Under the present system, there is the potential for no less than four Judges of this Court to consider a criminal legal aid application – three as part of the initial consultation process and one on review.  In passing it might be said that the concept of one Judge reviewing what has effectively been the decision of three adds oddity to oddity.

When the first three Judges are of the view that legal aid is not justified and the fourth decides that the Registrar’s consequential decision to decline aid should stand, only three Judges of the Court are left to hear any ensuing appeal if the view were taken that the other four, having formed an opinion for legal aid purposes, should not sit on the appeal.  Of course if any of those Judges does sit on the subsequent appeal he is almost certain, unless further material is produced, to favour dismissal of the appeal, having been of the earlier view that there was no sufficient possibility of the appeal succeeding.  This makes the decision on aid the effective decision on the appeal itself, and although as a matter of logic there can usually be little for an appellant to complain about, it is hardly surprising that there are sometimes allegations of prejudgment.  These cause unnecessary and unhealthy dissatisfaction with the judicial system.  To assemble a Court comprising Judges who have had nothing to do with the legal aid application for all the cases set down for hearing that day or week would be well nigh impossible administratively.  This point suggests that at least in a small Court, like the Court of Appeal, the legal aid decision should not be made or contributed to by a Judge or Judges of the very Court which will be hearing the appeal substantively.  In the High Court I took the view that an application to review the Registrar’s decision to decline aid (there being no judicial input into that in the High Court) should not be considered, save in unavoidable cases, by the same Judge as was listed hear the appeal itself.” (Emphasis added)
The Chief Justice aligned himself with the observation of Tipping J that “responsibility for the processing of legal aid decisions should be removed from the Court of Appeal altogether”: 423. Smellie J, who dissented, thought that the internal arrangements put in place by the Court of Appeal  “work against the scheme of the Act”: at 445-446.  He also commented on “the distortion caused by the three-Judge consultation/ consideration”: at 457. Clearly, there were problems.

IV.	The Subsequent Legislation.
11. 	In response to the Nicholls decision Parliament legislated. The Legal Services Act 2000 made important changes to criminal legal aid in the Court of Appeal.  As from 1 February 2001, the Legal Services Act 1991 was repealed: sections 2(1) and 126 of the Legal Services Act 2000.  As from the commencement date of the 2000 Act, the Court of Appeal, and its Registrar, are no longer involved in the legal aid process.  Instead an independent agency, the Legal Services Agency, is in charge of the legal aid system.  Except to note that the new legislation introduced safeguards beyond those envisaged by the Court of Appeal in Nicholls their Lordships do not need to examine the detail of the new system.  But it is obvious that the effect of the change has been considerable.  Under the old system an average of 160 appellants per year for the last 5 years had been refused aid. Under the new system in 2001 shortly before the end of the Court year), some 318 applications were lodged for legal aid for criminal appeals.  There were 223 grants and 22 refusals; 11 applications were abandoned or withdrawn and 62 were pending. The Solicitor-General pointed out, however, that the increase in the grant of legal aid was in a large measure due to a change in the rules which was advantageous to appellants.

12. 	The Crimes (Criminal Appeals) Amendment Act was assented to on 13 November 2001 and commenced on 10 December 2001.  By section 7 it inserted in section 392 of the Crimes Act 1961 the following new provisions:
“(1A) For every appeal against conviction or sentence, the Registrar must prepare a preliminary case on appeal comprising – 
(a)	the trial transcript; and
(b)	the trial Judge’s summing up to the jury, if the Registrar considers it relevant to the grounds of appeal; and 
(c)	any other documents, exhibits, or other things connected with the proceedings that the Registrar considers are relevant to the grounds of appeal and appropriate for inclusion in the preliminary case on appeal.

(1B) A preliminary case on appeal prepared under subsection (1A) must be given to – 
(a)	the Court or Judge deciding the mode of hearing; and 
(b)	the parties to the appeal; and
(c)	the Legal Services Agency, on request by the Agency.”

A new section 392A provides:
“392A  Decision about mode of hearing
“(1) An appeal or application for leave to appeal must be dealt with by way of a hearing involving oral submissions unless the Judge or Court making the decision on the mode of hearing determines, on the basis of the information contained in the notice of appeal, notice of application, or other written material provided by the parties, that the appeal or application – 
(a)	can be fairly dealt with on the papers; and
(b)	either has no realistic prospect of success or clearly should be allowed.

(2)	In determining whether an appeal or application can be fairly dealt with on the papers, the Judge or Court may consider any matters relevant to the decision on the mode of hearing, including such matters as – 
(a)	whether the appellant has been assisted by counsel in preparing the appeal or application:
(b)	whether the appellant has been provided with copies of the relevant trial documentation:
(c)	the gravity of the offence:
(d)	the nature and complexity of the issues raised by the appeal or application:
(e)	whether evidence should be called:
(f)	any relevant cultural or personal factors.”

Section 395 is amended by substituting the following new subsections:
“(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.”

Section 398 is amended by adding the following new subsection:
“(2)	Every judgment of the Court of Appeal on an appeal or application under this Part (other than one relating to a preliminary or incidental matter) must be accompanied by reasons.”

Part 2 of the Crimes (Criminal Appeals) Amendment Act 2001 Act provides for the validation of certain earlier determinations. Given that the present appeals are not affected by the validation provisions, it is unnecessary to set them out.  It is also unnecessary to deal with the Court of Appeal (Criminal) Rules 2001.

V.	The Approach to the Right of Appeal.
13. 	The correct approach to the right of appeal contained in section 25(h) of the New Zealand Bill of Rights Act 1990, and in section 383 of the Crimes Act 1961, is not in doubt.  It is intended to be an effective right of appeal which so far as is reasonably possible will ensure that justice is done in the appeal process.  The context is one of access to justice and it calls for what Lord Wilberforce in Minister of Home Affairs v Fisher [1980] AC 319, at 328G, described as “a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’”.  The substance must match the form.  What is required is a collective judicial decision on the merits of the appeal by a division (3 members) of the Court of Appeal, sitting together, and arrived at after a hearing in open court: see section 25(a) of the New Zealand Bill of Rights Act 1990.  So far as the Solicitor-General felt unable unreservedly to embrace these propositions his doubts are not justified.  It must be the starting point of the consideration of the present appeals.

VI.	The Legality of the Practice of the Court of Appeal.
14. 	The Solicitor-General was faced with the central question: When, by whom, and how were the appeals dismissed?  He submitted that this was not a helpful way of approaching the matter.  He argued that one should rather view the processing and determination of the legal aid applications and the ex parte dismissal of the appeals as a continuum or an overall process. And he insisted that justice was done because three Court of Appeal Judges had in the case of each appeal concluded that it did not pass the test of arguability.  He said that without the practice developed by the Court of Appeal the legislation would have been unworkable.  Although the Court of Appeal’s practice was not expressly authorised by legislation, he said that it was a practical, reasonable and fair response to a pressing problem of disposing of a multiplicity of appeals as of right which had no discernible merit.  He said that the legislation impliedly authorised this system.  Despite being pressed by their Lordships to explain the basis in the legislation for such an implied authorisation he was unable to identify any features in the statute in support of it. Ultimately, he said that the suggested implied authorisation rested on practical necessity.  Their Lordships do not accept that there was any practical necessity to depart from the scheme of the legislation.  In any event, sitting as the final Court of Appeal of New Zealand, the Privy Council cannot adopt the extra-legal approach advocated by the Solicitor-General.  The rule of law itself requires that the legality of the practice of the Court of Appeal must be measured against the provisions of the applicable statutory scheme.  It is therefore necessary to analyse the practice in its constituent elements.  In doing so a black-letter approach must be avoided.  Throughout their Lordships bear in mind that the legislation was intended to confer on individuals whose fates were at stake effective rights of appeal, and that what is or is not an arguable case can only be determined after the observance of due process in considering the merits or demerits of the appeal.

15. 	It will be convenient to examine first the practice of “ex parte” dismissal of the appeals.  For convenience their Lordships have adopted the nomenclature of the Court of Appeal.  It is, however, a misnomer to describe the proceedings as having taken place “ex parte” since no party was ever present or represented. The system only applied to appellants who had been refused legal aid.  In each of the cases under consideration a division of the Court of Appeal comprising three Judges purported to dismiss the appeals of the appellants.  It is impossible to regard such ex parte decisions as complying with the statutory regime.  The Crimes Act contemplated an oral hearing.  Thus section 388(1) contemplated that a convicted person may present argument in writing “instead of by oral argument if he so desires”.  Section 390 provided that it “shall be the duty of the Solicitor-General to appear for the Crown on every appeal against conviction or sentence”: an oral hearing is plainly envisaged.  Section 392 provides that the Registrar “shall take all necessary steps for obtaining a hearing”.  The Registrar had to send the case on appeal to the appellant or his legal representatives and the Registrar had to give notice to the appellant or his legal representatives of the time and place of the hearing to the appellant: rules 10, and 13.  And section 392 provided for a summary determination by the Court of Appeal only if a question of law alone arises and the Court of Appeal considers that the appeal is frivolous or vexatious.  The Court of Appeal was therefore only empowered to dismiss the appeals after a proper hearing.  Plainly, in none of the cases was there any hearing. The appellants were not represented or present.  The Court of Appeal heard no argument.  A delivery judge was always in an impossible position: he either had no knowledge of the dossier of available information or he was parti pris because he had advised against the granting of legal aid.  In Nicholls Tipping J (at 443), with the agreement of Smellie J (at 461), expressed doubts about this last feature of the practice.  In the circumstances the participation of a judge who had concluded that legal aid should not be granted would have suggested to a fair-minded and informed observer that the judge was not independent: Porter v Magill [2002] 2 WLR 37, 83-84 at para 103, per Lord Hope of Craighead.  The requirement that a judgment of the Court of Appeal must be “in accordance with the opinion of the judges present” was incapable of fulfilment: section 59 of the Judicature Act 1908.  Relying on the fact that three judges of the Court of Appeal had earlier concluded that legal aid should not be granted, the ex parte decisions were purely formalistic or mechanical acts involving no exercise of judicial judgment.  It was the phenomenon of tabulated legalism against which Lord Wilberforce had warned in Fisher.  Moreover the system of ex parte decisions was not authorised by the legislation.  It follows that the dismissal of all the appeals under consideration pursuant to the ex parte procedure was of no force or effect.
16. 	The Solicitor-General submitted in the alternative that the determination of the appeals effectively took place at the legal aid stage.  He argued that the decision by three judges of the Court of Appeal to refuse legal aid amounted in law to the dismissal of the appeal.  This line of argument encounters a number of formidable obstacles.  In the first place the statute required the Registrar to consult one judge of the Court of Appeal.  Section 15(1) of the Legal Services Act 1991 did not entrust the dispositive decision to the judge.  The decision remained that of the non-legally qualified Registrar who merely had to take into account the views of the judge.  The role of the three judges in advising that legal aid applications should be refused was not authorised by the statute and was at variance with the express provisions and scheme of the legislation.  It is also inconsistent with the legislation because the role of the three judges of the Court of Appeal undermines the value of a right of an appellant to seek a review by a single Judge of the decision to refuse legal aid.  After all, the prospects of a single Judge of the Court of Appeal upholding an application for review in the face of a unanimous view in favour of a refusal of legal aid by three Court of Appeal judges must be minimal.  The statutory position was as follows.  The Registrar was obliged and entitled to consult only one judge of the Court of Appeal.  Formally, the role of the judge was of an advisory character.  His advice was not a decision of the Court of Appeal. The remaining two judges had no legal standing or authority to play any role in the processing of legal aid.  The “decisions” of the three Court of Appeal judges to advise against the granting of legal aid had no legal validity whatever.

17. 	There is a second fundamental reason why the decisions of the three Court of Appeal judges could not be regarded as decisions of the Court of Appeal dismissing the appeals.  The clear effect of the Crimes Act is that the Court of Appeal may only dismiss an appeal after a proper hearing.  In the cases under consideration the three judges expressed their views that legal aid should be refused without the benefit of any hearing whatever. Moreover, the appellants were deprived of their right to apply to the Court of Appeal for leave to be present at a hearing when their appeals would be determined.  It must usually be fair to allow a convicted person, who has a right to appeal but who has failed to obtain legal aid, to be present at the hearing when a decision may be made determining his appeal.  For these further reasons the “decisions” of the three judges were invalid and could not in law operate to dismiss the appeal.

18. 	There is a subtext to what has been said in the last paragraph.  In three of the cases the appellants applied for a review of the decision refusing them legal aid.  The applications for review were dismissed without hearing and the appellants were deprived of the right to apply to be present at a hearing. That was at variance with the statute.  It is difficult to see why, if an appellant had applied for leave to be present, it should have been refused.  Moreover, the applications were dismissed without reasons.  Given that the dismissal of an application meant the appeal could not be effectively pursued, a reasoned decision was required: Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, 565-567, paras 74-82, per Elias CJ.  In any event, given the unlawful role by three judges of the Court of Appeal, the review procedure was from inception irredeemably flawed.

19. 	Reverting to the role of the three judges, there is a third reason why their decisions cannot have any validity.  The three judges did not function as a division of the Court of Appeal hearing a case.  The Judges never met to discuss the cases under consideration.  The relevant file was simply circulated from one judge’s chambers to the next, with each judge independently appending a note why legal aid should be refused.  The practice failed to comply with the provision for sittings of a division of the Court of Appeal under the Judicature Act 1908 when the judges announce their opinions when giving judgment.  It also failed to satisfy the requirement of the Crimes Act.  The circulation of written notes between three judges did not satisfy minimum requirements of judicial adjudication by an appellate court for the taking of a decision effectively determining an appeal as of right: see R v Army Board of the Defence Council, Ex p Anderson [1992] QB 169.  In the result the discipline involved in the three judges having to grapple collectively with the issues was absent. The dynamics of three judges separately expressing their concluded individual views are quite different from a decision arrived at in face-to-face discussions.  In any event, the three judges who were consulted by the Registrar did not announce their decisions in open Court as required by rule 14 and section 25(a) of the New Zealand Bill of Rights Act 1990.  And after Nicholls no reasons were given for refusing legal aid.  Given the importance of the issue this was also wrong, notably since it made it difficult for an appellant to apply for a review: Lewis v Wilson & Horton Ltd, (supra).  For these further reasons the “decisions” of the three judges have no legal validity.

20. 	Finally, it is necessary to examine the Solicitor-General’s argument that “there was an overall process which meets the requirements of natural justice”.  It is necessary to look globally at the operation of the practice of the Court of Appeal.  It was undoubtedly a response to a perceived serious problem, namely the need to find a practical and just way of disposing of unmeritorious appeals.  But the procedural rights of appellants under the legislation served an instrumental role in the sense of helping to ensure correct decisions on the substance of cases: Craig, Administrative Law, 4th ed, 1999, 402.  Decisions that the appeals were in truth unmeritorious could only be made after observance of procedural due process.  Unfortunately, the system failed this basic test.

21. 	Moreover, undoubtedly well intentioned as the practice of the Court of Appeal was, one is also driven to the conclusion that it had a discriminatory effect.  This can be illustrated by three features of the operation of the system.  First, five appellants (Bennett, Donaldson, Savelio, Walker and Timoti) asked for transcripts of the summing-up in their cases.  The Court of Appeal received the transcripts and referred to them.  But the transcripts were not disclosed to the appellants concerned.  In the result they were deprived of the opportunity of “perfecting” their grounds.  If appellants had been legally represented, this could not have arisen.  Secondly, the appellants were entitled to be supplied with the cases on appeal in respect of their appeals. However, they were not supplied with the cases on appeal.  This deprived them of the ability to exercise effectively their rights to appeal.  This could not have happened in the case of legally represented appellants.  Thirdly, the practice of the Court of Appeal distinguished in effect between rich and poor inasmuch as a rich appellant, who was represented, always received an oral hearing before the Court of Appeal whereas a poor appellant, who was denied legal aid on paper, was never accorded such a right.  It has to be said that in the result the system operated arbitrarily.  Certainly, it was contrary to fundamental conceptions of fairness and justice.  The appellants were entitled to the observance of the principles of natural justice or fairness.  In the landmark case Ridge v Baldwin [1964] AC 40 Lord Morris of Borth-y-Gest observed about the principles of natural justice (at 114): “here is something basic to our system: the importance of upholding it far transcends the significance of any particular case”.  For these further reasons the conclusion that the dismissal of the appeals did not take place in accordance with law is inevitable.
VII.	The merits of the appeals.
22. 	The Solicitor-General submitted that the appeals should be dismissed because the appellants had failed to demonstrate an arguable miscarriage of justice in any of the cases.  Given that the appellants had statutory rights to appeal without leave, and that their appeals were dismissed pursuant to a fundamentally flawed and unlawful system, this argument must be rejected.

VIII.	Remedy.
23. 	In respect of Bennett, Boyd, Donaldson, Savelio, and Taito, counsel invited the Board to allow their appeals and to enter acquittals.  For this ambitious submission counsel relied on Darmalingum v The State [2000] 1 WLR 2303.  Counsel emphasised that in the cases of Bennett, Savelio and Taito the appeals were lodged 5 to 6 years ago.  Taito has already served his sentence and Bennett and Savelio are nearing the completion of their sentences.  Boyd and Donaldson received minor non-custodial sentences which have been completed.  In these circumstances counsel said that the only effective remedy for a breach of the appellants’ constitutional rights is the entering of acquittals.  The reliance on Darmalingum is misplaced.  Delay for which the state is not responsible, present in varying degrees in all the relevant cases, cannot be prayed in aid by the appellants. Moreover, Darmalingum was a case where the defendant “had the shadow of the proceedings hanging over him for about 15 years”: at 2310C.  It was a wholly exceptional case.  This argument must be rejected.  And their Lordships are satisfied that the Court of Appeal should not be troubled with it on a rehearing of the appeals.

IX.	Issues Not Discussed.
24. 	Given the conclusions of the Privy Council as outlined, which are sufficient for the disposal of all the appeals, it is unnecessary to deal with every one of the multiplicity of general issues which have been canvassed.  Having upheld the appellants’ systemic challenges to the system under which their appeals were dismissed, it is also not necessary to discuss all the specific points made in respect of each appellant.

X.	The Status of Nicholls v Registrar of the Court of Appeal.
25. 	It will be obvious from this judgment that their Lordships are in respectful disagreement with many of the dicta in Nicholls. Given that there is now legislation, which incorporates new safeguards, it is unnecessary to discuss the lengthy judgments in Nicholls.  It is sufficient to say that it has been overtaken by legislation and by the decision of the Privy Council in the present case.

XI.	Disposal.
26. 	Their Lordships humbly advise Her Majesty that the appeals before the Privy Council should be allowed and the appellants’ appeals should be remitted to the Court of Appeal for hearing. Their Lordships have been told by the Solicitor-General that, in the event of the foregoing outcome, the appellants will receive legal aid under the new system.  Finally, their Lordships humbly advise Her Majesty that in the case of Johnson (the only non-legally aided appellant) he should be awarded his costs.

Appendix to Judgment on the Factual Position of Each Appellant

1.	James McLeod Bennett
	James McLeod Bennett was convicted of rape and abduction. The Court sentenced him to 9.5 years imprisonment. He appealed against conviction and sentence.  The grounds of appeal included a complaint against the summing up.  The summing up was received and considered by the three initial judges, but was not provided to the appellant.  The three judges refused legal aid. The appellant did not seek a review of this decision.  The appellant did not provide written submissions.  The Court of Appeal delivered the ex parte decision dismissing the appeal on 29 May 1997.  The Court did not give reasons.

2.	Lewis Desmond Boyd
	Lewis Desmond Boyd was convicted of receiving stolen goods, interfering with a motor vehicle and theft from a vehicle. He was sentenced to 200 hours community service and reparation.  He appealed against conviction.  The three judges refused legal aid.  The appellant sought a review of this decision. There was no hearing.  This review was unsuccessful but no reasons were given.  The appellant did not provide written submissions.  The appellant was not advised of any right to be present.  The last advice letter to the appellant informing him that his review was unsuccessful advised him that the determination date was 16 December 1999.  The ex parte decision dismissing the appeal was actually delivered on 23 December 1999.  The decision did not include any written reasons.  This ex parte decision was also delivered in breach of the Judicature Act in that only one Judge was present at its delivery.  The decision was redelivered on 29 June 2000.

3.	Iosua Chankee
	Iosua Chankee was convicted of rape and assault.  He was sentenced to 14 years imprisonment.  He appealed against sentence.  The three judges refused legal aid.  The appellant did not seek a review of this decision.  The appellant did not provide written submissions.  The ex parte decision dismissing the appeal was delivered on 20 April 2000, with no reasons.  In addition, the appeal was listed on 20 April 2000 at 10.00am it was called and the decision delivered at 9.00 a.m.

4.	Michelle Faye Donaldson
	Michelle Donaldson was convicted of a Crimes Act assault. She was sentenced to 3 months periodic detention and six months supervision with a special condition.  She appealed against conviction and sentence.  The three judges refused legal aid.  The appellant did not seek a review of this decision.  The appellant did not provide written submissions.  The appellant was not advised of any right to be present.  The grounds of appeal included challenges to the Judge’s summing up.  The three judges considered the summing up but it was not provided to the appellant.  The ex parte decision dismissing the appeal was delivered on 23 December 1999, with no reasons.  This ex parte decision was also delivered in breach of the Judicature Act in that only one Judge was present at its delivery.  The decision was redelivered on 29 June 2000.

5.	Emelysifa Jessop
	Emelysifa Jessop was convicted of aggravated robbery.  She was sentenced to 4 years and 8 months imprisonment.  She appealed against conviction.  The three judges refused Legal Aid. The appellant sought a review of this decision.  The review was unsuccessful.  Reasons for rejecting this review were given to the appellant’s former trial counsel but not sent to the appellant.  The ex parte decision dismissing the appeal without reasons was delivered on 30 March 2000.  In addition, the appeal was listed on 30 March 2000 at 10.00 am and it was delivered at 9.30 a.m.

6.	Ian Douglas Johnson
	Ian Douglas Johnson was convicted of murder.  He was sentenced to life imprisonment.  He appealed against conviction. The three judges refused legal aid.  The appellant did not seek a review of this decision.  The grounds of appeal included a complaint against the summing up.  The summing up was received and considered by the three initial judges, but was not provided to the appellant.  The appellant did not provide written submissions.  The ex parte decision dismissing the appeal was delivered on 30 March 2000, with no reasons.  In addition, the appeal was listed on 30 March 2000 at 10.00 am it was delivered at 9.30 am.

7.	Hyan Joo Lee
	Hyan Joo Lee was convicted of theft, using false pretences and using a false document.  She was sentenced to 18 months imprisonment.  She appealed against sentence only.  The three judges refused legal aid.  The appellant did not seek a review of this decision.  The appellant did not provide written submissions. She did seek leave to be present in the Notice of Appeal but no ruling was given on this point.  The Court did not send any correspondence to the appellant concerning this application.  The ex parte decision dismissing the appeal was delivered on 6 April 2000 with no reasons. 

8.	Osa Poni Savelio
	Osa Poni Savelio was convicted of aggravated robbery and sentenced to 7 years imprisonment.  He appealed against conviction.  The three judges refused legal aid.  The appellant did not seek a review of this decision.  The grounds of appeal included a complaint against the summing up.  The summing up was received and considered by the three initial judges, but was not provided to the appellant.  The summing up was provided to the appellant’s trial counsel, who acted until legal aid was declined, but was not provided to the appellant.  The appeal was dismissed by way of an ex parte decision delivered on 19 September 1996, with no reasons. 

9.	Fa’afete Taito
	Fa’afete Taito was convicted of aggravated robbery and sentenced to 7 years imprisonment.  He appealed against conviction and sentence.  The three judges refused legal aid.  The appellant did not seek a review of this decision.  The appellant did provide written submissions.  There was no hearing.  The appeal was dismissed by way of an ex parte decision on 25 July 1996, with written reasons.

10.	Aerengaroa Timoti
	Aerengaroa Timoti was convicted of murder. He was sentenced to life imprisonment.  He appealed against conviction. The three judges refused legal aid.  The appellant did not seek a review of this decision.  The appellant  provided written submissions.  The grounds of appeal included a complaint against the summing up.  The summing up was received and considered by the three initial judges, but was not provided to the appellant. There was no hearing.  The ex parte decision dismissing the appeal was delivered on 30 March 2000, with written reasons. The reasons also referred to the summing up.  In addition, the appeal was listed on 30 March 2000 at 10.00 am and the decision was actually delivered at 9.30 am.
11.	Moana Alicia Tui
	Moana Alicia Tui was convicted of assault with a weapon, cruelty to a child and maiming with intent to injure.  She was sentenced to 9 years imprisonment.  She appealed against conviction and sentence.  The three judges refused legal aid.  The appellant did not seek a review of this decision.  She did seek leave to be present in the Notice of Appeal and she gave reasons in support of this application.  There was no ruling on the application to be present.  Bail was also sought on 28 January 2000.  No correspondence was sent to the appellant concerning her bail or leave to be present applications.  The appellant then filed written submissions on 28 January 2000 (including the bail application based on a lack of facilities).  There was no hearing. The ex parte decision dismissing the appeal was delivered on 3 February 2000 with written reasons.

12.	Rangi Tawea Walker
	Rangi Tawea Walker was convicted of indecent assault on a girl under 12.  He was sentenced to 12 months imprisonment.  He appealed against conviction.  The three judges refused legal aid. He did seek a review of the decision not to grant legal aid.  There was no hearing and the review was unsuccessful.  The judge recorded reasons on the court file but these were not given to the appellant.  The appellant also sought bail and it was refused by a single judge.  No reasons were given and the appellant was not advised of his right to have the decision reviewed.  The appellant did submit written submissions in respect of his appeal against conviction.  The grounds of appeal included a complaint against the summing up.  The summing up was received and considered by the three initial judges, but was not provided to the appellant. There was no hearing.  The appeal was dismissed in an ex parte decision delivered on 9 March 2000, with written reasons.  The reasons also referred to the summing up.