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PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA245/2008 [2009] NZCA 552
BETWEEN THE ATTORNEY-GENERAL OF NEW ZEALAND
Applicant
ANDMERVYN CHAPMAN Respondent
Hearing: 19 May 2009
Court: Glazebrook, Chambers and O'Regan JJ
Counsel: D B Collins QC, C C Inglis and C A Griffin for Applicant
R E Harrison QC, A J McKenzie and K H Cook for Respondent
Judgment: 25 November 2009 at 4.00 pm
JUDGMENT OF THE COURT
A The questions are answered in the manner set out at [109].
BCosts for a complex appeal on a Band B basis plus usual disbursements are awarded to the respondent. We certify for three counsel.
REASONS OF THE COURT
(Given by Glazebrook J)
THE ATTORNEY-GENERAL OF NEW ZEALAND V MERVYN CHAPMAN CA CA245/2008 [25 November
2009]
Table of Contents
Para No
Introduction [1] Is Bill of Rights compensation an available remedy? [9] Crown submissions [9]
Mr Chapman’s submissions [20] Issues [24] Baigent’s Case and Auckland Unemployed [26] Subsequent case law in this Court [48] Supreme Court cases [55] Law Commission response [58] Is Baigent’s Case limited to acts by the executive? [68] Has Maharaj been overruled? [81] Is the action an inappropriate collateral challenge to
criminal proceedings? [90] Is the Attorney-General the proper defendant? [92] Submissions [92] Our assessment [94]
Does the Attorney-General have the benefit of judicial
immunities? [98]
Submissions [98]
Our assessment [100] Is Bill of Rights compensation an appropriate remedy? [102] Submissions [102] Our assessment [105] Conclusion and costs [109]
Introduction
[1] On 18 May 2000, Mr Chapman (then called Mr Finlayson) was sentenced to six years imprisonment for a number of sexual offences against a nine year old boy. On 14 June 2000, he filed a notice of appeal against his conviction. Legal aid was declined and, on 19 October 2000, the appeal was dismissed on the papers in accordance with the ex parte appeal process in operation at the time: R v Finlayson CA186/00 19 October 2000 at [2].
[2] In R v Taito [2003] 3 NZLR 577, the Privy Council held that the manner of dealing with legal aid applications and the ex parte appeal process, which existed at the time of Mr Chapman’s original appeal, were unlawful and in breach of ss 25(a),
25(h) and 27(1) of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Mr Chapman was not one of the Taito appellants but he was granted a new appeal
following R v Smith [2002] 20 CRNZ 124 (CA). In Smith, this Court held that it had inherent power to set aside determinations of appeals, where there were serious errors in breach of natural justice of the kind identified in Taito.
[3] Mr Chapman received legal aid for the hearing of his new appeal. The appeal was allowed on the ground that the trial Judge did not take steps to…
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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AGLC
Attorney-General v Chapman [2009] NZCA 552
Case
[2009] NZCA 552
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand was required to determine four questions concerning the availability of public law compensation for breaches of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Mervyn Chapman sued the Attorney-General, seeking compensation for breaches of his fair trial and natural justice rights in connection with a criminal legal aid application and an appeal against conviction, which had subsequently been quashed on appeal and a retrial ordered. The questions were: (1) Does the Court have jurisdiction to hear and determine a claim for public law compensation? (2) Is public law compensation an appropriate remedy? (3) Is the Attorney-General the proper defendant? (4) Does the Attorney-General have the benefit of the same immunities as the persons who committed the alleged breaches? The Court answered the questions in the affirmative, finding that the Court had jurisdiction to hear and determine the claim, public law compensation could be an appropriate remedy, the Attorney-General was the proper defendant, and the Attorney-General was not entitled to the benefit of the same immunities as the persons who committed the alleged breaches. The Court also awarded costs for a complex appeal on a Band B basis plus usual disbursements to the respondent.