Alan Russell Hall v The Queen - [2022] NZSC 98

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 21/2022
[2022] NZSC 98

BETWEEN	ALAN RUSSELL HALL Appellant
AND	THE QUEEN Respondent

Hearing:	8 June 2022
Court:	Winkelmann CJ, O’Regan, Ellen France, Williams and Kós JJ
Counsel:	N P Chisnall and L A Elborough for Appellant M F Laracy and E J Hoskin for Respondent
Oral judgment:	8 June 2022
Reasons: (Jurisdiction)	12 August 2022

REASONS (JURISDICTION)

REASONS
(Given by Ellen France J)

Introduction

In our judgment delivered orally on 8 June 2022, we said we would issue a separate judgment explaining the basis on which the Court had jurisdiction to hear the appeal.[1] The question of jurisdiction arises because Mr Hall’s appeal was brought in reliance on the transitional provisions governing appeals to this Court following the abolition of appeals to the Judicial Committee of the Privy Council. The parties agreed to proceed in this Court. As we shall explain, our jurisdiction accordingly essentially depended on establishing Mr Hall met the criteria for the application of the transitional provisions and that his appeal was compatible with the statutory framework for appeals to this Court.
[1]Hall v R [2022] NZSC 71 [SC judgment] at [1], n 1.
At the hearing of the appeal, the parties were agreed that the Court had jurisdiction but were permitted to file further submissions on the point. Having had the benefit of those further submissions in the form of a joint memorandum, we now explain the jurisdictional pathway.

The issue

The issue of jurisdiction arises in this way. After his trial in 1986, Mr Hall applied unsuccessfully to the Court of Appeal for leave to appeal against conviction.[2] At that time, if Mr Hall wanted to challenge the Court of Appeal’s decision, his only avenue to do so was to seek special leave from Her Majesty in Council (the Privy Council). Mr Hall did not pursue that option.
[2]R v Hall [1987] 1 NZLR 616 (CA) (Cooke P, Somers and Bisson JJ) [CA judgment].
The right to appeal to the Privy Council from any decision of a New Zealand court made after 31 December 2003 was abolished with the enactment of the Supreme Court Act 2003.[3] Rights of appeal to this Court were created to replace the jurisdiction of the Privy Council for post-2003 decisions. The transitional provisions in the Supreme Court Act preserve the option of an appeal to the Privy Council for someone in Mr Hall’s position,[4] but they also allow some historical appeals to be redirected to this Court at the appellant’s election, with the consent of the Crown.[5] Accordingly, when in 2022 Mr Hall wished to pursue an appeal from the 1987 decision of the Court of Appeal, he potentially had two options. He could either seek special leave to bring an appeal to the Privy Council, or, he could seek leave to appeal to this Court. Mr Hall pursued the latter course.[6] Obviously, for Mr Hall to have the benefit of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZSC 98
Decision Date: 12 August 2022

CaseChat Overview and Summary

In the case of Alan Russell Hall v The Queen, the appellant, Alan Russell Hall, challenged the decision of the Court of Appeal made in 1987, which had refused him leave to appeal against his conviction. The primary legal issues before the Supreme Court of New Zealand were whether the transitional provisions governing appeals following the abolition of appeals to the Judicial Committee of the Privy Council applied to Mr Hall's case and whether his appeal was compatible with the statutory framework for appeals to the Supreme Court. The Court had to determine if Mr Hall met the criteria for the application of the transitional provisions and if his appeal fit into the statutory appellate pathway provided by the Crimes Act 1961.

The Court began by examining whether the criteria provided for in the transitional provisions of the Supreme Court Act (preserved in the Senior Courts Act 2016) were satisfied. The Court found that Mr Hall could have sought special leave to appeal to the Privy Council in 1987, and therefore met the requirements for the application of the transitional provisions. This conclusion was based on the understanding that Mr Hall had a right to petition the Privy Council for special leave and that the transitional provisions were not intended to reduce existing rights. The Court then turned to whether Mr Hall's appeal was compatible with the Crimes Act pathway. Given that Mr Hall had a right to petition the Privy Council for special leave and the transitional provisions were not intended to reduce existing rights, the Court determined that Mr Hall's appeal could be treated as a first (leapfrog) appeal to the Supreme Court under section 383 of the Crimes Act.

The Supreme Court of New Zealand concluded that it had jurisdiction to consider Mr Hall's appeal as it was satisfied that the transitional provisions applied and that his appeal was compatible with the statutory framework for appeals to the Supreme Court. The Court's decision allowed Mr Hall to pursue his appeal against the 1987 decision of the Court of Appeal.

Orders