Pora v The Queen - [2014] NZHC 598

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-67 [2014] NZHC 598

BETWEEN TEINA PORA Applicant

ANDTHE QUEEN Respondent

Hearing: 18 March 2014

Appearances: J G Krebs and I Squire for Applicant
M D Downs and Z Hamill for Respondent

Judgment: 28 March 2014

JUDGMENT OF LANG J [on application for bail]

This judgment was delivered by me on 28 March 2014 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TEINA PORA v R [2014] NZHC 598 [28 March 2014]

[1] Mr Pora is currently serving a sentence of life imprisonment in respect of the rape and murder in March 1992 of Ms Susan Burdett. He was originally convicted on those charges following a trial in 1994, but the Court of Appeal subsequently quashed those convictions in 1999.1 Mr Pora was convicted again following a retrial in 2000. His appeal against those convictions was dismissed on 12 October 2000.2
Mr Pora has now been in custody for just over 21 years apart from a brief period when he was granted bail pending the re-trial in 2000,

[2] On 28 January 2014, the Privy Council granted Mr Pora leave to appeal against the decision of the Court of Appeal delivered in 2000. It is likely that the Privy Council will hear the appeal in the latter part of this year. Mr Pora now seeks to be released on bail pending the hearing of the appeal.

Jurisdiction

[3] Counsel for the Crown raises a preliminary issue as to whether this Court has the necessary jurisdiction to grant Mr Pora’s application. It is obviously necessary to resolve this issue before proceeding further.

[4] It is common ground that Mr Pora does not have a statutory right to apply for bail pending determination of his appeal by the Privy Council. His position is therefore in marked contrast to that of an appellant who has appealed against conviction or sentence to the New Zealand Court of Appeal or Supreme Court. Section 55 of the Bail Act 2000 (“the Act”) permits any person who has lodged an appeal to those courts to be granted bail pending disposition of the appeal. The Act does not contain a similar or corresponding provision in respect of appeals to the Privy Council.

[5] Counsel for the Crown points out that, with two exceptions,3 New Zealand legislation makes no reference at all to criminal appeals to the Privy Council. This
may reflect the fact that such appeals exist by virtue of Her Majesty’s prerogative to

1      R v Pora CA447/98, 18 October 1999.
2      R v Pora CA 225/00, 12 October 2000.
3      Supreme Court Act 2003, ss 42 and 50.

review the decisions of courts within the countries that have not abolished the ability to appeal to the Privy Council. In Arnold v The King-Emperor,4 the Privy Council observed that its jurisdiction to hear appeals from decisions of courts within the then English Empire existed through the power of the Sovereign…

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.

Continue reading Pora v The Queen

Details

AGLC: Pora v The Queen [2014] NZHC 598
Case: [2014] NZHC 598
Decision Date: 28 March 2014

CaseChat Overview and Summary

Teina Pora, who has been serving a life sentence for the rape and murder of Susan Burdett since his retrial conviction in 2000, applied for bail pending an appeal to the Privy Council against the decision of the New Zealand Court of Appeal in 2000. The Crown argued that the High Court did not have the jurisdiction to grant bail in this context, because there was no statutory basis for such a right and because Parliament had elected not to legislate for it. Mr Pora argued that the Supreme Court’s observations in Zaoui v Attorney-General confirmed that the High Court had an inherent jurisdiction to grant bail in the absence of a statutory right. The Court found that there was no basis for concluding that the Supreme Court in Zaoui had intended to alter the common law in this area. The Court noted that, in the absence of a statutory basis for granting bail, Parliament had elected not to legislate for it. The Court concluded that the lack of any statutory basis for granting bail was not due to oversight but rather a deliberate choice by Parliament. The application for bail was dismissed.

Orders