R v Pora

Case [2000] NZCA 403 20 December 2000

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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…

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

AGLC: R v Pora [2000] NZCA 403
Case: [2000] NZCA 403
Decision Date: 20 December 2000

CaseChat Overview and Summary

In R v Pora, the Court of Appeal of New Zealand considered the compatibility of a legislative amendment imposing a minimum term of imprisonment for murder involving home invasion with the prohibition on retrospective penalties. The appellant had been convicted of a home invasion murder committed in 1992 and was sentenced in 2000 to life imprisonment and a minimum period of 13 years, which he challenged as a retrospective penalty. The court examined the language and scheme of the Criminal Justice Act 1985, which prohibits retrospective penalties, and the 1999 amendment that required a minimum 13-year term for such murders. The court held that the amendment could not apply to crimes committed before the power to impose minimum terms was conferred in 1993, as it would contravene the prohibition on retrospective penalties and New Zealand's international obligations. The court quashed the order for the minimum term of imprisonment.

Orders