R v Pora

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/00

THE QUEEN

TEINA PORA

Hearing:	9 November 2000
Coram:	Elias CJ Richardson P Gault J Thomas J Keith J Tipping J McGrath J
Appearances:	C R Carruthers QC, A Shaw and M J Dyhrberg for Appellant Solicitor‑General T Arnold QC and J C Pike for Crown
Judgment:	20 December 2000

JUDGMENTS OF THE COURT

Judgments
Para No
Elias CJ and Tipping J  [1] -    [58]
Richardson P  [59] -    [60]
Gault, Keith and McGrath JJ  [61] - [117]
Thomas J  [118] - [175]

ELIAS CJ AND TIPPING JJ (DELIVERED BY ELIAS CJ)

Para No

Introduction   [1]
Background   [6]
The language and scheme of the Criminal Justice Act 1985  [17]
Interpretation Act 1999  [30]
New Zealand Bill of Rights Act 1990  [32]
Is later legislation to be preferred?  [36]
Does the specific prevail over the general?  [41]
Deprivation of effect of s2(4) or implied repeal pro tanto of s4(2)?          [44]
Drafting history  [45]
Conclusion  [49]

Introduction

In the Criminal Justice Act 1985 Parliament has said two inconsistent things. It has said that no court shall have power to make any order in the nature of a penalty it could not have made against an offender at the time the offence was committed (s4(2)). And it has said that if the commission of an offence of murder involves home invasion the Court must impose upon the offender a minimum period of imprisonment of not less than 13 years even if the offence was committed before the date on which the legislation providing for this mandatory minimum period of imprisonment came into effect (s80 Criminal Justice Act and s2(4) Criminal Justice Amendment Act (No 2) 1999).
The appellant has been convicted of a home invasion murder committed in 1992. The Judge who sentenced him in June 2000 considered he was required by the legislation to impose the mandatory minimum period of imprisonment of 13 years in addition to the mandatory sentence of imprisonment for life.
The Solicitor-General accepts that the order that the appellant serve a 13 year minimum period of imprisonment is an order in the nature of a penalty which could not have been imposed upon him at the time of the commission of the offence. It is an order prohibited by the terms of s4(2) of the Criminal Justice Act unless s2(4) of the 1999 Amendment Act prevails. The two cannot be reconciled. Each is clear in itself. One must yield.
Inconsistency within the same Act is rare but not unknown. When it occurs the function of the Court is to decide what the Act means. If the provisions can be reconciled, the meaning which lets them work together is preferred. If they cannot be reconciled, the Court has to determine which must give way. There is nothing new in this. In Institute of Patent Agents v Lockwood [1894] AC 347, 360 Lord Herschell LC identified the problem and its solution:
. . . there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other.
The starting point must be the text and purpose of the statute being considered (s5(1) Interpretation Act 1999). Next it is appropriate to look to the wider legislative context (Ahmad v Inner London Education Authority [1978] 1 QB 36, 48 per Scarman LJ). It is the function of the Court to give effect to the will of Parliament as expressed in statutes. They are the background against which the Criminal Justice Act is to be applied. Finally, it is proper to take into account the principles of construction adopted by Judges in their decisions. But in applying these principles (for the most part expressions of common sense) it is important to recognise that they are aids to ascertaining the meaning of the statute, not inflexible rules. What the statute means has to be confronted in context and is “not answered by maxims” (Cobiac v Liddy (1969) 119 CLR 257, 268 per Windeyer J).

Background

Susan Burdett was killed in her home on 23 March 1992. At the time the offence was committed the sentence for murder was, as it remains, the mandatory one of imprisonment for life. From 1 September 1993, by amendment to the Criminal Justice Act, the court was given a discretion to impose a minimum term of imprisonment of more than 10 years when imposing a life sentence or other indeterminate sentence where the circumstances of the offence were “exceptional”. The discretion to impose a minimum period of imprisonment was not retrospective. In addition to the bar provided by s4(2) of the Act, s56 of the Criminal Justice Amendment Act 1993 (a transitional provision) provided that a minimum period of imprisonment could not be imposed if it could not have been imposed upon the offender “at the time of the commission of the offence”.
The appellant was first convicted of the murder of Susan Burdett after a trial in 1994. On 1 July 1994 he was sentenced to the mandatory term of life imprisonment. No question of a minimum period of imprisonment arose. Despite the 1993 amendment authorising the court to impose a minimum period of imprisonment, the application of s56 of the 1993 Amendment Act and s4(2) of the principal Act precluded such an order being imposed in respect of an offence committed before 1 September 1993.
In October 1999 the appellant’s conviction was set aside on appeal to this Court and a new trial was ordered. The second trial also led to the appellant’s conviction for murder. In the meantime, the legislation had changed.
The Criminal Justice Amendment Act (No 2) 1999 was enacted, as its long title provides, “to lower the threshold for imposing non-parole periods”. The amendment permitted the Court to impose a minimum period of imprisonment where an offender is sentenced to an indeterminate term of imprisonment “if the circumstances are sufficiently serious to justify a minimum period of imprisonment of more than 10 years”. This amendment lowered the test of “exceptional circumstances” originally provided in 1993. It is not confined to offences involving “home invasion”.
At the same time, the sentencing court was also directed by the 1999 Amendment Act to impose a minimum period of imprisonment of not less than 13 years where a murder entails home invasion, with a discretion to impose a longer minimum period than 13 years if the circumstances of the offence are sufficiently serious (s80(2A)). A cross reference to the Crimes Act 1961, as amended by the Crime (Home Invasion) Amendment Act 1999, adopted the Crimes Act definition of “home invasion” for the purposes of the Criminal Justice Act provisions (s80(8)).
Section 80(2A) and s80(8) were introduced into the Amendment Bill at the committee stage. At the same time the Member of Parliament responsible for moving the changes to the Bill, Mrs Schnauer, proposed also the amendment which became s2(4) of the Criminal Justice Amendment Act (No 2) 1999 providing for application of s80 to offences already committed. These changes were not in the Bill as introduced by the Government. They were not the subject of a report to Parliament by the Attorney-General under s7 of the New Zealand Bill of Rights Act 1990.
The Crimes (Home Invasion) Amendment Act 1999 provided new, more severe, penalties for a range of offences involving home invasion. None of these increased penalties purported to be retrospective. The effect of s10A of the Crimes Act (preventing the application of new offences retrospectively) and s4(2) of the Criminal Justice Act (preventing the application of new penalties retrospectively) means that the new Home Invasion provisions of the Crimes Act do not apply to offending committed before 2 July 1999.
The Crimes (Home Invasion) Amendment Act 1999 and the Criminal Justice Amendment Act (No 2) 1999 (which came into effect on 17 July 1999) are linked not only by definition of “home invasion” but by a shared legislative purpose in addressing serious crime. The two Bills were introduced into Parliament on the same day as “companion” measures. It is not evident why it is only in respect of murder that the new provisions increase the penalty that attaches to offences committed before the amending Act came into effect.
A pointer to the difference in treatment may be found in the long titles to the two amending Acts. The Crimes (Home Invasion) Amendment Act 1999 is “An Act to amend the Crimes Act 1961 to increase penalties for certain offences involving home invasion”. The Criminal Justice Amendment Act (No 2) 1999 is “An Act to amend the Criminal Justice Act 1985 to lower the threshold for imposing non-parole periods”.
In this Court it was accepted by the Crown, as it was in R v Poumako [2000] 2 NZLR 695, that the 1999 amendment to the Criminal Justice Act increases the penalty for murder involving home invasion. As discussed further below, it may be doubted that Parliament, in adopting the clause that became s2(4), appreciated that application of the change to the non-parole regime effected by s2(4) entailed application of a new penalty retrospectively. There is no reference to the language of “penalty” in the 1999 Amendment Act. Since the punishment on conviction for murder is imprisonment for life, it may have been incorrectly thought that a change in parole eligibility through imposition of minimum periods of imprisonment was a matter of administration rather than penalty. Certainly, the absence of any reference to or specific modification of s4(2) of the Criminal Justice Act or acknowledgement of inconsistency with s25(g) of the New Zealand Bill of Rights Act suggests failure to appreciate that what was accomplished was properly classified as a retrospective increase in penalty.
Upon his conviction after the second trial, the appellant was sentenced on 23 June 2000 to life imprisonment as required by s172 of the Crimes Act. In addition, the sentencing Judge considered that he had “no option” but to order that the appellant serve a minimum period of imprisonment of 13 years, despite the fact that at the time the offence was committed no such order could have been imposed.

The language and scheme of the Criminal Justice Act 1985

The Courts must give effect to the will of Parliament as expressed in legislation. The first step is to understand the meaning of the Act, as ascertained from its text and in the light of its purpose (s5(1) Interpretation Act). The organisation and format of the enactment is an indication as to its meaning (s5(3) Interpretation Act). Both the text and the purpose of the Act must be read in context.
The Criminal Justice Act, as its long title makes clear, is legislation to “reform and revise the law relating to criminal justice”. It provides for a range of sentences, and prescribes how they are to be administered. Part I of the Act is headed “Sentencing Generally”. As the heading suggests, it enacts principles of general application. They are leading provisions in the scheme of the Act. They set the tone and indicate the purpose of the legislation. The first principle identified in Part I is that contained in s4: penal enactments are not to have retrospective effect to the disadvantage of the offender. The prominence given to this provision indicates its importance in the scheme of the fundamental statutory text relating to criminal justice.
Section 4, so far as it is relevant, provides (emphasis added):
4 Penal enactments not to have retrospective effect to disadvantage of offender -
(1) Notwithstanding any other enactment or rule of law to the contrary, where the maximum term of imprisonment or the maximum fine that may be imposed under any enactment on an offender for a particular offence is altered between the time when the offender commits the offence and the time when sentence is to be passed, the maximum term of imprisonment or the maximum fine that may be imposed on the offender for the offence shall be either -
The maximum term or the maximum fine that could have been imposed at the time of the offence, where that maximum has subsequently been increased; or
The maximum term or the maximum fine that can be imposed on the day on which sentence is to be passed, where that maximum is less than that prescribed at the time of the offence.
(2) Without limiting subsection (1) of this section, except as provided in sections 152(1) and 155(1) of this Act but notwithstanding any other enactment or rule of law to the contrary, no court shall have power, on the conviction of an offender of any offence, to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time of the commission of the offence, except with the offender's consent.
Section 4 was first enacted by Parliament in 1980 as s43B of the Criminal Justice Act 1954. It was enacted in deliberate fulfilment by Parliament of the obligations undertaken by New Zealand under Article 15(1) of the International Covenant on Civil and Political Rights (see Department of Labour v Latailakepa [1982] 1 NZLR 632, 635-6 per Richardson J). Article 15(1) provides:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequently to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
Section 43B included, in addition to the prohibition on retrospective sentences and penalties, the prohibition on the application of new criminal offences with retrospective effect now contained in s10A of the Crimes Act. Section 4 of the Criminal Justice Act and s10A of the Crimes Act continue to mirror the obligations under Article 15(1) faithfully. They are now further affirmed by ss 25 and 26 of the New Zealand Bill of Rights Act.
Section 80, as amended in 1999, provides:
80. Minimum periods of imprisonment - (1) Subject to subsections (2) and (3) of this section, if a court sentences an offender to an indeterminate sentence, it may also order,-

In the case of murder, upon application made within 14 days after the date of delivery of the verdict; and
In any other case, at the same time as it sentences the offender-
that the offender serve a minimum period of imprisonment of more than 10 years.
(2) The court may impose a minimum period of imprisonment under subsection (1) if satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment of more than 10 years.
(2A) Despite any other provision of this section, if a court is satisfied that the commission of an offence of murder involved home invasion, the court-
(a)Must impose under subsection (1) a minimum period of imprisonment of not less than 13 years:
(b)May impose a longer minimum period of imprisonment if the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment of more than 13 years.

(3) Where the court imposes a minimum period of imprisonment under subsection (1) of this section, the duration of the period imposed shall be the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender.
(4) Where a court sentences an offender to a term of imprisonment of more than 2 years for a serious violent offence, it may, at the same time, order that the offender serve a minimum period of imprisonment.
(5) The court may impose a minimum period of imprisonment under subsection (4) if satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 89 or section 90, as the case may be.
(5A) For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind, but the circumstances need not be exceptional.
(6) The duration of the period imposed under subsection (4) of this section shall be the minimum period that the court considers to be justified having regard to the circumstances of the case, including those of the offender, but in no case shall the period exceed-
(a)The period beginning on the commencement of the sentence and ending 3 months before the sentence expiry date; or
(b)Ten years,-

whichever is the lesser.
(7) Where the court makes an order under this section, it shall give the offender written reasons for so doing and the offender may appeal against the imposition of the minimum period of imprisonment in the same manner as he or she may appeal upon conviction against the sentence or sentences imposed.
(8) For the purposes of subsection (2A), sections 17A and 17D of the Crimes Act 1961 apply as if murder were an offence specified in section 17C of that Act.

In the present case, the Judge applied s80(2A)(a) in ordering that the appellant serve a minimum sentence of imprisonment of 13 years. It is clear that had the only relevant statutory provisions been s4(2) and s80(2A), s80(2A) could not have displaced s4(2). The effect of s80(2A) would have been prospective only. No question of implied repeal could seriously have been raised. Increased penalties are regularly provided for in successive amendments to the Crimes Act and other penal legislation as Parliament addresses shifting social interests. Typically those amendments are not expressed to be subject to s4 of the Criminal Justice Act or explicitly stated to be prospective in their application. The prominence of s4 in the scheme of the legislation and its emphatic language (“notwithstanding any other enactment or rule of law to the contrary”) makes such express limitations unnecessary. And s7 of the Interpretation Act provides that an enactment “does not have retrospective effect”.
The basis upon which it is said that a very different result applies here, and that s4(2) must yield, is a provision in the statutory vehicle by which the amendments to s80 were enacted. Section 2(4) of the Criminal Justice Amendment (No 2) Act 1999 is part of the principal Act by reason of s1 of the Amendment Act. Section 2(4) provides:
(4) Section 80 of the principal Act (as amended by this section) applies in respect of the making of any order under that section on or after the date of commencement of this section, even if the offence concerned was committed before that date.
In cases to which s80(2A) applies, this provision clearly has retrospective effect. It requires a Judge to order that the offender serve a minimum period of imprisonment of not less than 13 years, notwithstanding the fact that the offence was committed at a date before the duty to impose that minimum existed. There is no ambiguity in the language of s2(4) of the 1999 Amendment Act which would permit the subsection to be reconciled with s4(2) of the principal Act. But that clarity of legislative purpose is not the end of the matter. Section 4 is equally clear. There is no ambiguity in the emphatic language in which it is expressed. It brooks no detraction except ss 152(1) and 155(1), specifically referred to in s4(2). It is said to prevail “notwithstanding any other enactment or rule of law to the contrary”.
Since the two sections cannot be reconciled, it is not sufficient to say that the meaning of s2(4) is clear. So it is, viewed alone. Equally clearly, when viewed alone, s4(2) means that no retrospective penalty can be imposed by a court. The question is not one of clarity but rather which section is meant by Parliament to prevail?

Section 6 of the Interpretation Act is relevant here. It provides that “an enactment applies to circumstances as they arise”. As the former s5(d) of the Acts Interpretation Act 1924 put it, an enactment is regarded as always speaking. Section 4(2) speaks at the same time as s2(4).
Parliament has anticipated issues of incompatibility in s4 itself and provided that s4 is to prevail in the case of incompatibility with other legislation. On that basis s80(2A) will not apply to the appellant. Why should that expression of legislative will not determine the matter? If s4 is not to prevail according to its terms, it would have been easy to add s80(2A) to the two exceptions identified in s4(2) or to provide that s2(4) applies notwithstanding s4(2), to put matters beyond doubt. In the absence of such provision, the text and scheme of the Act favours the interpretation that s4 prevents application of s80(2A) to the appellant.
There are three possible objections to this textual interpretation. The first is that s2(4) was enacted later than s4 and is to be preferred as a statement of legislative will by reason of that temporal circumstance. The second is that s2(4) is a specific provision which overcomes a general statement of principle such as s4(2). The third is that if s4(2) prevails it would deprive s2(4) of any effect. All these objections draw on general principles of statutory construction developed by Judges through case law. The Judge-made principles are, however, subordinate to legislative direction which is relevant to the question of interpretation. Relevant to the question of statutory interpretation here are provisions in the Interpretation Act and the New Zealand Bill of Rights Act.

Interpretation Act 1999

The “Principles of Interpretation” identified in part 2 of the Interpretation Act include s5, to which we have already referred, and s7 which provides:
7. Enactments do not have retrospective effect- An enactment does not have retrospective effect.
The Interpretation Act does not deal with the question of incompatibility between provisions of enactments. Nor does it suggest that later enactments are to prevail over earlier provisions or that specific provisions prevail over general ones.

New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act was enacted to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights and to “affirm, protect, and promote human rights and fundamental freedoms in New Zealand” (Long title to the Act). Freedom from retrospective penalty has long been a plank of the common law. The rights recognised by ss 25(g) and 26 therefore confirm a fundamental principle of law as well as being in implementation of the obligations under the Covenant.
The New Zealand Bill of Rights Act applies to acts done in performance of public functions and to the acts of the legislature and the judiciary (s3).
By s6 of the New Zealand Bill of Rights Act:
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
An interpretation of the Criminal Justice Act which gives retrospective effect to s80(2A) is not consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act. If Parliament has enacted legislation which imposes a penalty retrospectively, it is in breach of the obligation recognised by s3 (although the court must give effect to the legislation). That circumstance too is relevant to the interpretation of the Criminal Justice Act: it is not readily to be inferred that Parliament has acted in breach of these human rights obligations. Indeed, s6 says as much explicitly.

Is later legislation to be preferred?

Where a statute contains two irreconcilable provisions, it has sometimes been said that a rule of last resort is that the later provision prevails (lex posterior derogat priori). On this basis the earlier provision is treated as impliedly overridden to the extent of the inconsistency. It is convenient to refer to this effect as “implied repeal pro tanto”, as it is referred to in the authorities. Strictly speaking, however, the effect is not to repeal but to render the earlier provision ineffective to the extent of (pro tanto) the inconsistency.
In Re Marr and another (bankrupts) [1990] Ch.773, 784-785 per Nicholls LJ, the English Court of Appeal rejected such “mechanical” approach to the construction of statutes as being “altogether out of step with the modern, purposive approach to the interpretation of statutes and documents”.
It is high time to put an end to any lingering doubts about this so-called rule of last resort: there is no such rule.
We do not think it matters greatly whether the (sequentially) later provision was enacted at the same time as the earlier one (as was the case in Marr) or later in time (as is the case here). Preference for a later provision is equally a default one which presupposes a mechanical rather than a purposive approach to statutory interpretation. The later is not to be preferred if the earlier expressly provides that it is to prevail.
The proper approach is that described by Lord Herschell in Institute of Patent Agents and referred to above in paragraph [4]. Where there is inconsistency the court must determine which is the leading provision. This approach does not prevent implied repeal where it is clear that a later enactment supplants an earlier one. It makes it clear however that there is no chronological formula to be mechanically applied.
The matter is one of statutory interpretation, applying in the first place the legislative directions contained in the Interpretation Act and the New Zealand Bill of Rights Act where they are relevant. Where they do not assist, it will be proper to have regard to other common law presumptions in interpretation. Relevantly here, they include presumptions against retrospectivity of penal provisions, in favour of strict construction of penal provisions, and in favour of consistency with international obligations. Chronological order of the inconsistent provisions cannot be determinative and is not likely to be helpful.

Does the specific prevail over the general?

It has been held that general words in an enactment do not repeal earlier statutes dealing with a special subject (see, for example, Auckland Gas Co v Auckland City Council [1990] 2 NZLR 420, 425 per Somers J). This principle of construction is sometimes referred to by the maxim generalia specialibus non derogant. It was explained by Lord Selborne in Seward v The Vera Cruz (1884) 10 App Cas 59, 68:
Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.
So understood, this approach is no more than common sense. As a rule of thumb it yields according to context.
The obverse proposition that special provisions override general ones (specialia generalibus derogant) is less well-supported on the authorities and is inherently less useful even as a rule of thumb because so sensitive to particular context. If applied generally, some of the most important overarching principles expressed in legislation would be unacceptably insecure, confounding clear legislative purpose. Directions as to statutory interpretation, such as are contained in the Interpretation Act and statements of rights, such as are expressed in the New Zealand Bill of Rights Act, must be expressed in general terms. Application to these Acts of a presumption that specific provisions prevail over the general would undermine the policy of the Interpretation Act and the direction given by s6 of the New Zealand Bill of Rights Act. We agree with Windeyer J in Cobiac v Liddy (referred to in paragraph [5] above) that the resolution of inconsistencies in legislation is not a question answered by maxims. We do not find the proposition that the specific overrides the general helpful in deciding whether s2(4) of the 1999 Amendment Act prevails over s4(2). For that the surer guides are the language used in the provisions, the place occupied in the scheme of the Act by each, and the legislative and common law presumptions brought into play by the subject-matter.

Deprivation of effect of s2(4) or implied repeal pro tanto of s4(2)?

If the Criminal Justice Act is construed so that s4 prevails, then s2(4) of the amending Act has no effect. If s2(4) of the amending Act prevails, then s4 is pro tanto overridden by implication. Both of these are results the Court would prefer to avoid. Each results in an enactment being ineffective. But it is not a sound or principled approach to select the second interpretation on the basis that it at least preserves some scope for both sections. It results in a strained interpretation of both provisions. It evades the hard question of ascertaining what the legislation means by adopting the expediency of the path of least resistance. It is an approach which would permit progressive erosion of s4 and the fundamental principles it expresses. The proper interpretation of the statute does not turn on questions of degree (how much implied repeal of human rights is too much?) but whether any repeal was meant.

Drafting history

It is striking that in the Parliamentary debates there is no indication that Parliament appreciated that adoption of s2(4) was inconsistent with ss 4(2) and 56 of the Criminal Justice Act, with the provisions of the New Zealand Bill of Rights Act, and with New Zealand’s international obligations under Article 15 of the International Covenant on Civil and Political Rights.
This silence may suggest that in passing s2(4) Parliament acted under the misapprehension that a minimum period of imprisonment affected only the administration of parole. Such mistake in the character of what was proposed is suggested also by the long title to the Criminal Justice Amendment (No 2) Act 1999, referred to in paragraph [14] above, which refers only to parole. It is to be contrasted with the long title to its “companion” the Crimes (Home Invasion) Amendment Act, which was concerned with penalties and which, significantly, did not purport to have retrospective effect. A mistake of this nature would explain the different treatment for murder (where the sentence was already prescribed by law and was not to be altered). It is also suggested by the sheer implausibility of Parliament’s acting in breach of the New Zealand Bill of Rights Act and its international obligations.
The mere fact that Parliament may have thought that the law was one thing does not preclude the courts deciding it is another (Birmingham Corporation v West Midland Baptist Trust Association (Inc) [1970] AC 874 (HL), 898 per Lord Reid). It is acknowledged by the Solicitor-General that the minimum period of imprisonment is indeed a penalty.
Where legislation proceeds in error, it may “misfire” and be ineffective (see, for example, Ayrshire Employers Mutual Association Ltd v CIR (1944) 27 TC 331, 347 per Lord Macmillan). While a court would be properly reluctant to hold that legislation has no effect, there should not be a similar reluctance to take the unusual legislative history into account in choosing between two irreconcilable expressions of legislative will. We consider such a mistake to be the likely reason for the conflicting provisions. It is inconceivable that Parliament would have acted so casually had it appreciated the implications. In the circumstances we do not accept that it is proper to draw an inference from the temporal sequence of the legislation or from the more specific terms of s2(4) that Parliament intended it to prevail.

Conclusion

The language of s4 and its prominence in the Criminal Justice Act indicate that it is a dominant provision. Section 2(4) of the amending legislation is irreconcilable with s4. Being subordinate, it must give way.
This interpretation, being tenable, is one the Court is required by s6 of the New Zealand Bill of Rights Act to adopt. It is consistent with s56 of the Criminal Justice Act and s7 of the Interpretation Act. It accords with the common law presumptions against retrospectivity of penal legislation, in favour of strict construction of penal provisions, and in favour of consistency with international obligations. The legislative history of s2(4) does not permit any inference that Parliament intended to derogate from the fundamental principle expressed in s4(2) and indeed is suggestive of mistake of law.
Neither the fact that s2(4) is later legislation or that it is more specific than s4 is determinative of the meaning of the legislation or the question as to which of the two irreconcilable provisions is to prevail. These judge-made rules of thumb do not displace the statutory directions contained in s6 of the New Zealand Bill of Rights Act and s7 of the Interpretation Act. It is not a correct approach to assume that pro tanto implied repeal of s4 is to be preferred to lack of efficacy for s2(4). It is improbable where human rights are affected that Parliament would do by a side wind what it has not done explicitly. The legislation, properly construed, establishes that s4 prevails.
This result does not affect the orthodoxy that Parliament cannot bind its successors. Nor does it attempt to tie Parliament to a “manner and form” restriction which establishes the conditions for valid law-making. It implements Parliament’s own requirement in s6 of the New Zealand Bill of Rights Act that Parliament must speak clearly if it wishes to trench upon fundamental rights.
By s6 the New Zealand Parliament has adopted a general principle of legality (described by Sir Rupert Cross in Statutory Interpretation (3^rd ed, 1995) pp 165-166). Such principle was applied as a principle of the common law before the United Kingdom Human Rights Act 1998 (which now itself adopts the principle in s3) in Pierson v Secretary of State for the Home Department [1998] AC 539 (per Lord Browne-Wilkinson at 573-574 and Lord Steyn at 587-588) and in R v Secretary of State, ex parte Simms [2000] 2 AC 115 (per Lord Steyn at 130 and Lord Hoffman at 131). In the latter case Lord Hoffman acknowledged the “importance of the principle of legality in a constitution which, like ours, acknowledges the sovereignty of Parliament”.
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.
The same approach is seen in Canada. In Re Winnipeg School Division (No 1) (1985) 21 DLR (4^th) 1, the Supreme Court declined to hold a general provision of a human rights statute to be impliedly repealed by later consolidating legislation which maintained an earlier provision in conflict with the human rights statute. Justice McIntyre (at 6) referred to the “special nature” of human rights legislation:
It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims.
The same view was expressed in Australia by Brennan and Deane JJ in Re Bolton, ex parte Beane (1987) 162 CLR 514. Justice Brennan stated (at 523):
…the courts nevertheless endeavour so to construe the enactments of the Parliament as to maintain the fundamental freedoms which are part of our constitutional framework. It is presumed that that is the intention of Parliament, … Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.

And later Deane J stated (at 532):

A legislative provision should not be construed as effecting such a derogation from fundamental principle relating to the freedom of the subject in the absence of a clear legislative intent that it should be so construed.

It is not necessary to go so far as to say that statutory provisions which protect human rights cannot be impliedly repealed. In some cases the legislation may plainly require that effect. But it is right for the courts to be cautious. General or ambiguous words will seldom be sufficient. As Lord Hoffman indicates, there is real risk of legislative inadvertence, as this case may demonstrate. And serious damage to fundamental human rights may result. Parliament must speak plainly if it wishes to derogate from principles such as those contained in s4(2). In our view it has not done so by introducing s2(4) into the Criminal Justice Act.
We would allow the appeal on that basis and quash the order for minimum term of imprisonment. Had we not been of the view that s80(2A) has no retrospective effect, we would have been minded to accept the Solicitor-General’s concession that it cannot apply to crimes committed before 1 September 1993. That stance conforms with s6 of the New Zealand Bill of Rights Act and with the text of s2(4), on the premise (which we do not accept), that it must be given some retrospective effect.
The Court being unanimous that the appeal must be allowed, the order for minimum sentence is quashed.

RICHARDSON P

For the reasons set out in the judgment of Gault, Keith and McGrath JJ I am satisfied that the minimum non‑parole provisions of the 1999 amendment cannot apply to crimes committed before 1 September 1993. Accordingly, and as the Solicitor‑General accepted, the appeal must be allowed.
Given that result, and in the absence of full argument, I prefer to express no final conclusion on the alternative canvassed only in oral argument, that the amendment has no retrospective effect at all.

GAULT, KEITH AND McGRATH JJ (DELIVERED BY KEITH J)

Para No

Introduction and summary  [61]
A brief chronology  [64]
The relevant legal texts and their characteristics  [65]
The possible answers  [84]
Applicability to crimes committed before 1 September 1993?            [87]
No retrospectivity at all?  [100]
Conclusion  [117]

Introduction and summary

According to a long established basic rule of criminal justice, a person convicted of a crime must not be subjected to a heavier penalty than the law allowed at the time the crime was committed. The murder in this case was committed in March 1992. The law at that time, as now, provided for a mandatory life sentence. At that time the law conferred no power on the sentencing court to impose a minimum period of imprisonment before parole was considered. Such a power was conferred from 1 September 1993 and in accordance with the basic rule, essentially restated in an express legislative provision included in the 1993 Act, that new power applied only to offences committed after that date. Accordingly, when the appellant was first convicted of the murder in 1994, no minimum period could be or was fixed. He then successfully appealed against his conviction to this Court. By the time he was convicted again and appeared for sentence in June 2000, the law about minimum periods had been amended. The sentencing Judge held that that amendment was retrospective and required him to impose a minimum period of 13 years. The appellant appeals against that minimum period.

For the reasons given in this judgment, we conclude that the power to fix a minimum period does not extend to offences committed before that power was first conferred (as from 1 September 1993) with the result that the appeal must be allowed. Counsel agreed that the minimum periods imposed in respect of the rape and aggravated burglary committed on the same evening had to be set aside. The appellant remains subject to the life sentence for murder and to the concurrent terms of imprisonment imposed for the other two offences.
This Court has already indicated, in R v Poumako [2000] 2 NZLR 695, that the 1999 amendment to the Criminal Justice Act 1985, under which the minimum period was imposed, to the extent that it is retrospective, is inconsistent with a fundamental right declared in both national law and international law (paras [33], [42], [66], [67], [70], [74-78] and [107]). The sentencing Judge in the present case similarly stated that although the offences were well planned, very serious and carried out cold bloodedly and with great barbarity, it was repugnant to justice for a court to be required to sentence the offender to substantially longer terms of imprisonment than would have been the case had the retrial occurred before the new law was passed. The Solicitor-General was able to indicate to this Court that the Government was aware of that strong criticism. The Government was actively considering the position in terms of principle and appropriate remedy and it was doing that independently of a concurrent broader review of the legislation governing sentencing which was under way. Such an exchange between the Court and the Government, with the prospect of legislation being indicated, seems to us to conform with the relationship reflected in and to some extent regulated by the New Zealand Bill of Rights Act 1990.

A brief chronology

The following dates provide the context in which the legal issues are to be decided:

28 March 1979            -      New Zealand becomes bound by the International Covenant on Civil and Political Rights.
8 October 1980            -      Criminal Justice Amendment Act provides that criminal and penal enactments are not to have retrospective effect (in 1985 incorporated into the Crimes Act 1961 and the new Criminal Justice Act).
26 September 1990    -      New Zealand Bill of Rights Act affirms the right not to be subjected to retrospective penalties.
23-24 March 1992      -      Date of the murder.
1 September 1993      -      Criminal Justice Amendment Act 1993 confers for the first time power to impose a minimum period of imprisonment before parole can be considered for those sentenced to life imprisonment (among other penalties).
1 July 1994-      Appellant sentenced to life imprisonment following conviction at first trial.
2 July 1999-      Crimes (Home Invasion) Amendment Act 1999.
17 July 1999                 -      Criminal Justice Amendment (No. 2) Act 1999 provides for a mandatory 13 year minimum term for murder involving home invasion, the provision at the centre of the current appeal.
18 October 1999          -      Appellant’s conviction set aside on appeal and new trial ordered.
23 June 2000                -      Sentence under appeal imposed.

The relevant legal texts and their characteristics

This case concerns two sets of statutory provisions – those empowering sentencing courts to order that the offender serve a minimum period of imprisonment and those which state the fundamental rule that the criminal law is not retrospective. We consider the two groups of provisions in turn.
In 1992 when the murder was committed a Court had no power to make an order for a minimum period of imprisonment to be served by a convicted murderer. The sentence was mandatory life imprisonment. As from 1 September 1993 the new s80 of the Criminal Justice Act has provided that a court which sentences an offender to an indeterminate sentence (which is defined as including a life sentence) may also order that the offender serve a minimum period of imprisonment of more than ten years. That power was subject to the requirement stated in subs (2) that the court be “satisfied that the circumstances of the offence are so exceptional” that a longer minimum period is justified. The original s80 enacted in the Criminal Justice Act in 1985 was concerned with the distinct matter of remission of sentence.
In 1999 Parliament “amend[ed] the Criminal Justice Act 1985 to lower the threshold for imposing non-parole periods” (to quote the title to the Criminal Justice Amendment Act (No. 2) 1999). Under the new subs (2) of s80 the court has power to impose a longer minimum period “if satisfied that the circumstances of the offence are sufficiently serious to justify [it]”; see also the new subs (5A). It also introduced (by way of an amendment to the government’s original Bill) this new provision which is directly in issue in this case:
(2A)Despite any other provision of this section, if a court is satisfied that the commission of an offence of murder involved home invasion, the court—
(a) Must impose under subsection (1) a minimum period of imprisonment of not less than 13 years;
(b) May impose a longer minimum period of imprisonment if the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment of more than 13 years.
The Amendment Act came into force on 17 July 1999, the day after it was assented to (s1(2)). It included this provision, s2(4), about its temporal application:
Section 80 of the principal Act (as amended by this section) applies in respect of the making of any order under that section on or after the date of commencement of this section, even if the offence concerned was committed before that date.
As already indicated, the sentencing judge considered that that provision required him to impose the 13 year minimum period of imprisonment on the appellant, although the offence had been committed more than seven years before the obligation was imposed in 1999 and indeed more than a year before the power had been created in 1993.
That enactment, s2(4), provides both a link to, and apparently a very clear clash with, the second set of provisions in issue in this case – those which state the fundamental rule against retrospective criminal law, and in particular against retrospective criminal penalties.
That rule can be traced back through cases stating the presumption against retrospective criminal liability. For present purposes it is enough to go back to the International Covenant on Civil and Political Rights 1966 (based in turn on the Universal Declaration of Human Rights 1948), accepted, as at 13 December 2000, by 147 states. Article 15(1) provides:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequently to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
The year after New Zealand became bound by the Covenant, Parliament amended the Criminal Justice Act 1954 to state the two rules barring retrospective criminal liability and retrospective criminal penalties (s43B enacted by the Criminal Justice Amendment Act 1980). In 1985 the first of those rules was moved to the Crimes Act 1961 s10A and the second was incorporated into the new Criminal Justice Act as s4:
Part I — Sentencing Generally
4. Penal enactments not to have retrospective effect to disadvantage of offender—
(1) Notwithstanding any other enactment or rule of law to the contrary, where the maximum term of imprisonment or the maximum fine that may be imposed under any enactment on an offender for a particular offence is altered between the time when the offender commits the offence and the time when sentence is to be passed, the maximum term of imprisonment or the maximum fine that may be imposed on the offender for the offence shall be either--
(a) The maximum term or the maximum fine that could have been imposed at the time of the offence, where that maximum has subsequently been increased; or
(b) The maximum term or the maximum fine that can be imposed on the day on which sentence is to be passed, where that maximum is less than that prescribed at the time of the offence.
(2) Without limiting subsection (1) of this section, except as provided in sections 152 (1) and 155 (1) of this Act but notwithstanding any other enactment or rule of law to the contrary, no court shall have power, on the conviction of an offender of any offence, to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time of the commission of the offence, except with the offender's consent.
It will be seen that subs (1) is concerned with the maximum term of imprisonment or the maximum fine fixed as a matter of general law by Parliament or other law maker while subs (2) is concerned with the power of the sentencing court exercised in the particular case. (The two provisions mentioned and excepted at the beginning of subs (2) in effect replace, first, the old power to require the offender to pay compensation with a power to make a reparation order and second the old power to release an offender on probation with the power to sentence the offender to supervision.)
The essence of the Covenant and the 1980 and 1985 provisions was then carried into the New Zealand Bill of Rights Act 1990:
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:
…
(g)The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.

26. Retroactive penalties …
(1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.
…

Those provisions are to be read with the interpretive direction given by s6. There is as well the presumption of statutory interpretation that so far as its wording allows legislation should be read consistently with New Zealand’s international obligations; eg New Zealand Airline Pilots’ Assn v Attorney-General [1997] 3 NZLR 269, 289.
When the major amendments were made in 1993 to the Criminal Justice Act 1985, including the amendment introducing the new power in s80 to order the offenders to serve a longer minimum period of imprisonment, Parliament added to the general bars in s4 and s25(g) a specific protection against retrospectivity:
56. Application of courts' new powers—
(1) No court shall, on the conviction of an offender for any offence, impose on that offender—
(a) Any sentence or combination of sentences; or
(b) A minimum period of imprisonment,—
that it could not have imposed on the offender at the time of the commission of the offence.
…
It can be seen at once that if the 1999 s2(4) requires retrospective effect to be given to the newly amended s80 it appears to contradict the rule stated in the provisions just mentioned : the Covenant, s4(2) (1980 and 1985), s25(g) (1990) and s56 (1993) (the last would be breached only if the retrospectivity runs back before 1 September 1993).
Some of the features of the fundamental rule may be emphasised. We have already mentioned that it is very widely accepted. It is also long accepted. That appears for instance from the frequent reference in scholarly writing to Thomas Hobbes’ brilliant discussion in The Leviathan (1651) chs 27 and 28. That account and many others, along with the legal texts themselves, also emphasise that the rule applies to criminal penalties as well as to criminal liability. The commentaries in addition tie the rule back to principle, especially to justice and effective deterrence.
The rule has a categorical or absolute character that appears, first, from the strong and unusual wording of the New Zealand prohibition originally enacted in 1980 – the rule is to operate “notwithstanding any other enactment or rule of law to the contrary” – and, second, from two features of the Covenant provision mentioned in Poumako paras [3] and [6] : the prohibition in article 15 is not subject to any possible limit (as for instance are the rights to freedom of expression and freedom of association), and it is not subject to derogation in time of public emergency threatening the life of the nation (again unlike those freedoms and also the other rights in respect of criminal proceedings).
The rule however does not exclude all retrospectivity. Article 15(1), s4(1) and s25(g) provide for benign retrospectivity : the offender is to get the benefit of the new lesser sentence; and s4(2) allows an offender to consent to a court order available under the new law. Section 56 of the 1993 Act does not provide for those possibilities and this court early noticed that that difference could lead to difficulties : R v Accused (CA62/94) (1994) 11 CRNZ 471, 475.
We return to s2(4) of the Criminal Justice Amendment Act (No. 2) 1999. That provision is in flat breach of the basic rule, unless it can be read as not having any retrospective effect (a matter considered later (in paras [100]-[116]) or as not involving a “penalty” or “order in the nature of a penalty” (the matter considered in the next paragraph). As also in Poumako (para [33]), the Crown has not attempted to mount any argument that, in the words of s5 of the Bill of Rights, any retrospective effect is a reasonable limit that can be demonstrably justified in a free and democratic society, assuming that that argument could be made in the face of the provisions of the Bill and the Covenant.
Does the s80 power amount to a power to impose “a penalty” or “an order in the nature of a penalty”? The Crown, rightly, has accepted that the extended minimum period, conferred under a power to “impose a minimum period of imprisonment” (the expression used ten times in s80 and also in the 1993 s56), falls within those terms : see Henry J in Poumako para [54] and note that s80 is in a part of the Act concerned with sentences and sentencing (Part IV) and not with the administration of sentences once they have been imposed (see Part VI). (There was no problem about the characterisation of the power at the time of the first sentencing in 1994 because of the express ban in s56(1)(b) of the 1993 Act against exercising the (new) power to fix a minimum period of imprisonment in respect of offences committed before 1 September 1993.) A related question which is not before us and which accordingly was not the subject of argument is the non parole period to which the appellant is properly subject. That matter, like that arising in Fulcher v Parole Board (1997) 15 CRNZ 222, would fall to be decided under the transitional provisions in the 1993 Act and by reference to the general law (including the provisions in the relevant interpretation legislation) concerning retrospectivity. Because of the precise and categorical terms of s4 and s25(g) we do not see that general law, stated for instance in s7 of the Interpretation Act 1999, as assisting in this case given that s4 and s25(g) are directly confronted by s2(4). See also s4(1) of the Interpretation Act and the elaboration of, and qualifications to, s7 in ss17-22.
One other feature of the position of the appellant should be mentioned. Following his conviction and indeed following a long delay as other criminal prosecutions proceeded against another suspect, the appellant successfully exercised his right of appeal, a right also recognised in the International Covenant article 14(5) and the Bill of Rights s25(h). He suffered the misfortune however that his exercise of that right opened up the prospect of the new sentencing powers, conferred in 1999, becoming applicable to his sentence. There was now a real prospect, realised in the event, of a mandatory minimum term being imposed in accordance with the new s80(2A) of the Criminal Justice Act.

The possible answers

In the course of oral argument four possible temporal effects of the 1999 amendment were identified:

1.The amendment has no retrospective effect at all (suggested from the bench in the course of hearing of the appeal).
2.So far as murders involving home invasion were concerned the mandatory power conferred by s80(2A) applies retrospectively only for the fifteen days before its enactment, for the reasons suggested by three judges in Poumako but rejected by the other two (argued by the appellant and opposed by the Crown).
3.It applies only to offences committed after 1 September 1993 (argued by the Crown both on sentencing and on appeal and supported by the appellant at sentencing, but initially opposed by him on appeal).
4.It applies retrospectively without temporal limit (the position taken by the sentencing Judge but not supported by either party on appeal).

It will be seen that the Crown considered that the appeal should be allowed.

The appellant also contended that in the event that his position on the substance was not adopted the Court should make a declaration that the 1999 amendment was incompatible with the Bill of Rights. In the event, the Court did not hear oral argument from the Solicitor-General on that submission.
The second argument was extensively considered in Poumako and does not, on the view we take, have to be resolved in this case, and we take it no further. We consider the third and fourth arguments together, coming to the conclusion already indicated. We then consider the first argument although it too, on our view, does not have to be resolved.

Applicability to crimes committed before 1 September 1993?

Section 2(4) of the 1999 Amendment (para [68] above) provides that
•    s80 (as newly amended by s2(1)-(3 ))
•    applies in respect of the making of any order under that section
•    on or after 17 July 1999 (the date of commencement of the Amendment Act)
•    even if the offence was committed before that date
The third element is to be put to one side since it states the obvious : an enactment cannot be operative before it is in force (even if it may apply to earlier events, as the final element indicates). The s80 referred to in the first element and the power it conferred have existed only since 1 September 1993. In accordance with principle, s4 of the 1985 Act, s56(1)(b) of the 1993 Act and s25(g) of the Bill of Rights it applies only to offences committed after that date – unless of course s2(4) now provides otherwise. Section 2(4) read alone appears to say that s80 (as amended) and the power it conferred (now with its new, lower threshold of sufficient seriousness in subs (2) and the mandatory element in subs (2A)) were, from 17 July 1999, to apply to offences committed before that date – in addition of course to offences committed later (a temporal element that goes without saying, it being inherent in s80 itself). But does it follow that that power is available in respect of offences committed when the power itself did not exist?
The reasons given by the sentencing Judge for that expansive reading are considered later. But first we give four reasons for the conclusion that the power does not apply to offences committed before 1 September 1993. The reasons distinguish between, or are based on the distinction between, the creation and existence of the power, on the one side, and the rules and conditions for the exercise of the power (referred to here as the manner of the exercise of the power), on the other:
•the words : “the making of any order under that section” is possible in terms of s80, s4(2) and s56 only in respect of crimes committed after 1 September 1993, that is after the power came into existence.
•the structure of s80 as amended : the original s80 created the power to increase the minimum period of imprisonment while the 1999 amendment was concerned only with the manner of the exercise of that already existing power, by lowering the threshold (subs (2)) and by requiring the court to impose a 13 year minimum (at least) for a murder involving home invasion (subs (2A)). To return to the previous point, the existence of the 1993 power to make the order is not extended backwards before the time it came into existence, but the new directions about the manner of its exercise do extend to offenders, yet to be sentenced, who committed their offences at a time before these new directions were given.
•s56 and s2(4) : both provisions can be given effect by leaving the earlier one (also) operative in the current context : the later one still has almost six years within which it may be operative; and even were the 15 day argument accepted (only for s80(2A) and not for s80(2)) both provisions would still have some effect.
•principle : a reading giving limited retrospectivity is in greater conformity with the fundamental rule stated in particular in s4(2) and s25(g) of the Bill of Rights than a reading giving full retrospectivity; there is a presumption that if a statute is clearly to have some retrospective effect it should not be construed as having a greater retrospective effect than its language renders necessary to achieve the legislative purpose; Garth Thornton QC, Laws of New Zealand Statutes para 59; s6 of the Bill of Rights adds to the strength of that presumption : if two interpretations of s4(2), s56 and s2(4) are open, s25(g) read with the interpretive direction in s6 would limit the retrospectivity to 1 September 1993.

While it is imperative, of course, that significant issues which have not been canvassed with counsel be referred back to them, the suggestion from time to time made in judgments of this Court in recent years that an issue cannot be addressed because counsel have not raised or fully argued the issue must run the risk of being perceived as a “rule” of convenience. Commentators may be inclined to suggest that the objection is raised when it suits the Court or Judge but not mentioned when it does not. Certainly, it must be acknowledged that it is not invariably mentioned. A prime example, again, is Poumako when the majority proffered the interpretation of s2(4) referred to above. This interpretation was suggested from the Bench and neither adopted by counsel nor fully traversed in argument. Another banner example which comes to mind is Keith J’s judgment in Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19, in which the learned Judge developed a compelling argument which had not only escaped counsel, but also the House of Lords in a case which was directly in point.
Nevertheless, I am prepared to accept that, if s2(4) is to be given retrospective effect, the retrospectivity should be limited to 1 September 1993. But I would not want it thought that I am necessarily endorsing the reasons put forward by the Solicitor-General and set out in the judgment of Keith J. I consider that there is merit in the sentencing Judge’s view that s2(4) clearly applies to the date of the making of an order under s80 after the subsection came into force, and that it is therefore the date of the order under s80 which is relevant and not the date when Parliament first enacted the power to impose a minimum term of imprisonment. I also consider that the distinction between the creation of the power and the manner of its exercise is a judicial construct which would be best avoided. A more robust approach is required if this argument is to be sustained. The Court should simply decline to attribute to Parliament an intention to apply s80 back to a time when the power for the Court to impose a minimum period of imprisonment did not exist. To have intended to do so would be to add gross incongruity to the constitutional shortcomings of the provision already commented upon by this Court in Poumako.
It is to be acknowledged that, if s2(4) is retrospective to 1 September 1993 only, it is still contrary to s25(g) of the Bill of Rights. But there can be no doubt that such an interpretation is less offensive than an interpretation which would vest s2(4) with retrospectivity back to the beginning of time.
For the above reasons, I consider that the appeal should be allowed.

Solicitors
Crown Law Office, Wellington

[2000] NZCA 403

20 December 2000