R (SC 64/2022) v Chief Executive of the Department of Corrections

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011 AND PURSUANT TO SS 107RA AND 107G OF THE PAROLE ACT 2002. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 64/2022
[2023] NZSC 40

BETWEEN	R (SC 64/2022) Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Court:	Glazebrook, O’Regan and Williams JJ
Counsel:	A J Ellis and G K Edgeler for Appellant B C L Charmley for Respondent
Judgment:	26 April 2023

JUDGMENT OF THE COURT

The application for recusal is dismissed.

____________________________________________________________________

REASONS

On 11 April 2023, we delivered our judgment granting the appellant leave to appeal.[1] We dealt with that application for leave despite Mr R’s application to recuse all members of the Court from considering the application for leave and, if leave was granted, then the substantive appeal. In this judgment we give our reasons for declining to recuse ourselves from considering the case.
[1]R (SC 64/2022) v Chief Executive of the Department of Corrections [2023] NZSC 31.
Counsel for Mr R, Mr Ellis, submits that, because judges are appointed on the advice of the Attorney-General, they are tainted by dependence on the largesse of the Senior Law Officer. Particular factual or other distinctions are drawn in relation to individual judges. For example the fact that the Chief Justice is appointed on the advice of the Prime Minister rather than the Attorney-General is said to render her even more apparently partial. An allegation of apparent bias is also made against the late Simon France J.
The essence of Mr Ellis’ submission is that a judicial appointments commission should be established in order to ensure a more constitutionally appropriate distance is maintained between the judiciary and the executive on matters of judicial appointments.
As the Court of Appeal noted in Lawler v R, to accept the core of Mr Ellis’ argument would be to disqualify the entire senior judiciary for apparent bias in any case in which the Crown is a party, leaving his client without a bench to hear his appeal at all.[2]
[2]Lawler v R [2013] NZCA 308 at [79].
We do not in any event accept that, on the grounds advanced, there are circumstances surrounding the appointment of the judges of this Court that might possibly lead to a reasonable apprehension that we may decide the case other than objectively and on its merits.
The application for recusal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In this case, the appellant, identified as R, sought to appeal a decision made by the Chief Executive of the Department of Corrections. The matter was brought before the Supreme Court of New Zealand, with Glazebrook, O'Regan, and Williams JJ presiding over the case. The appellant was represented by A J Ellis and G K Edgeler, while the respondent, the Chief Executive of the Department of Corrections, was represented by B C L Charmley. The court delivered its judgment on 26 April 2023.

The central issue in this case was whether the judges presiding over the appeal should recuse themselves due to an alleged appearance of bias stemming from the appointment process. The appellant argued that the judges, appointed on the advice of the Attorney-General, were inherently biased because of their dependence on the executive branch. The appellant's counsel also raised specific concerns about individual judges, such as the Chief Justice's appointment by the Prime Minister. The appellant contended that a judicial appointments commission should be established to ensure a more constitutionally appropriate distance between the judiciary and the executive.

The court found that the appellant's arguments did not establish a reasonable apprehension of bias. The court noted that accepting the appellant's core argument would lead to the disqualification of the entire senior judiciary in cases where the Crown is a party, leaving no bench to hear the appeal. The court dismissed the application for recusal, finding no grounds to believe that the judges might decide the case other than objectively and on its merits.

The court's decision to dismiss the application for recusal concluded the matter, with no further orders made. The appeal could proceed before the same judges, who were found to be impartial and capable of delivering a fair judgment.

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