R v Poumako

IN THE COURT OF APPEAL OF NEW ZEALAND

CA565/99

THE QUEEN

DAVID TUHUA POUMAKO

Hearing:	3 April 2000
Coram:	Richardson P Gault J Henry J Thomas J Keith J
Appearances:	H S Edward for the Appellant J C Pike and M Hodgen for the Crown
Judgment:	31 May 2000

JUDGMENTS OF THE COURT

Judgments

Paras No

Richardson P, Gault and Keith JJ  [1] – [43]
Henry J  [44] – [69]
Thomas J  [70] – [107]

RICHARDSON P, GAULT AND KEITH JJ

(DELIVERED BY GAULT J)

Section 25(g) of the New Zealand Bill of Rights Act 1990 provides:
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a)…
(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.
This reflects Article 15(1) of the International Covenant on Civil and Political Rights to which New Zealand is a party. The relevant part reads:
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.

That in turn reflects Art 11(2) of the Universal Declaration of Human Rights.

Two particular features of article 15 of the Covenant stand out in the present context: it is stated without any limit, and it is not subject to the possibility of derogation in time of public emergency threatening the life of the nation and officially proclaimed (article 4). In both respects it is unusual. So far as the second matter is concerned, only a handful of the most basic rights, such as the right to life, the prohibition on torture and the prohibition on slavery, are excepted from the possibility of being overridden by emergency powers. By contrast the rights to personal liberty, many other rights before the courts, freedom of expression and the right to equal protection of the law may be subject to derogation for reasons of emergency.
From well before New Zealand ratification of the International Covenant and the enactment of the Bill of Rights Act it was an established principle of law that persons convicted of a criminal offence should not receive any greater punishment than that provided for the offence at the time it was committed: see Blackstone’s Commentaries on the Laws of England (1^st ed (1765) vol 1 at p46):
Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.
In 1980, soon after New Zealand ratified the International Covenant, there was introduced into the Criminal Justice Act 1954 the provision which now appears as s4(2) Criminal Justice Act 1985 as:
… 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.
To summarise at this point:
The principle against retrospective criminal liability and retrospective increased penalties is well established.
Its fundamental character does not allow for any “reasonable limits” (although questions may arise about the extent of a criminal proscription as appears in the controversial litigation about marital rape; SW v United Kingdom (1995) 21 EHRR 363) or for emergency derogations; and
The reasons for the principle in terms of prior direction or deterrence and the consequent possibility of knowing compliance, and justice, in not being subject to unknowable penalties, are long established and impregnable. (See also the discussion by the Law Commission in its report on A New Interpretation Act (1990 NZLC R17) ch V, especially paras 192, 213-221 and 282-285 and Lon L Fuller, The Morality of Law (1964) ch. 2).
This appeal involves the enactment of a statutory qualification to that provision by the Criminal Justice Amendment Act (No 2) 1999 which came into force on 17 July 1999. It was considered by the High Court Judge who sentenced the appellant to require him to impose a penalty which was not provided for at the time the appellant committed the offence of murder to which he pleaded guilty on 13 October 1999.
The sequence of events was that on 30 November 1998 the appellant with three others entered the home of Mr and Mrs Bouma at Reporoa. The original objective was robbery, but in the course of that Mrs Bouma was sexually assaulted and eventually murdered by the appellant using a firearm found in the house. The killing was by a single shot to the back of the head. The response to this and at least one other violent intrusion into a private home about that time was described in the submissions of Crown counsel as follows:
The crime having regard to the callous brutality displayed by the offenders caused widespread public concern. One of the features of that concern was the fact that when she was sexually assaulted and murdered Mrs Bouma was in what should have been the safety and sanctuary of her home.
Concern over “home invasion” crime had been evident before the criminal activity that cost the victim her life. That event, however, promoted swift legislative response. A "home invasion” law was enacted. This had the effect of adding an additional term to the sentences of specified offences.
The strong public interest in acting quickly and decisively to both protect the public and incapacitate those guilty of “home invasion” crimes was a feature of the legislative response to the widespread expressions of community concern and abhorrence.
There were introduced into Parliament on 23 February 1999 two Bills. The first was the Crimes (Home Invasion) Amendment Bill 1999. The second was the Criminal Justice Amendment Bill (No 6) 1999. The first of these was duly passed and the Crimes (Home Invasion) Amendment Act came into force on 2 July 1999. That Act, by inserting new sS17A - 17E in the Crimes Act 1961, introduced the concept of “home invasion” which was defined as follows:
“Home invasion” when used in the expression “the offence involved home invasion” or in any other provision means that the person who committed the offence did so -
(a)While breaking and entering, or otherwise unlawfully entering, an occupied dwellinghouse; or
(b)While in an occupied dwellinghouse, after having broken and entered, or otherwise unlawfully entered, the dwellinghouse; or
(c)While breaking out of an occupied dwellinghouse; or
(d)While otherwise unlawfully in an occupied dwellinghouse.
“Dwellinghouse” was also defined as meaning:
(a)A building or other structure, or part of a building or other structure, that is used by the occupant principally as a residence; or
(b)A mobile home, caravan, or houseboat, that is used by the occupant principally as a residence.
“Occupied” was extended in the context to lawful presence in a dwellinghouse for all or part of the time the offender was there.
The new sections provide that where the court is satisfied that the commission of specified offences under the Crimes Act involved home invasion the maximum sentences are increased. The increased sentences are applicable not only to principal offenders but also to parties and accessories and those convicted of attempts to commit the specified offences.
For the offence of manslaughter, for which the maximum sentence already was life imprisonment, it is provided that the court must regard home invasion as a factor that justifies the imposition of a longer sentence than might otherwise be appropriate. Aggravated robbery is included among the specified offences, but murder is not.
As Henry J points out in his judgment which we have read in draft, by introducing the new factor of home invasion giving rise to higher sentences the legislation has in effect introduced a new element in offences (thus, in reality, new offences) for which penalties are imposed without any right of jury trial nor the need for proof beyond reasonable doubt. This can apply to parties who may not even know of the home invasion element. These are issues which give rise to concerns on grounds of principle going to the fundamental rights of accused persons. But they were not the focus of the present case.
None of these provisions purports to affect offences committed before the Act came into force and therefore had no application to the sentence imposed upon the appellant for the offence of aggravated robbery.
The offence of murder, for which the mandatory penalty is imprisonment for life, though not dealt with in the Crimes (Home Invasion) Amendment Act, was dealt with in the Criminal Justice Amendment (No 6) Bill which was introduced on the same day and was described during its progress through Parliament as a “companion measure” to the Home Invasion Bill. It addressed not the maximum sentence, but the provision in s80 Criminal Justice Act 1985 relating to minimum non-parole periods.
Immediately before the introduction of the 1999 Amendments the relevant parts of s80 were in the following terms:
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, -
(a)In the case of murder, upon application made within 14 days after the date of the delivery of the verdict; and
(b)In any 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 shall not impose a minimum period of imprisonment under subsection (1) of this section unless it is satisfied that the circumstances of the offence are so exceptional that a minimum period of imprisonment of more than 10 years is justified.
(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.
The Amendment Bill as introduced provided for the repeal of subs (2) and the substitution of new subs (2) and (5A) as follows:
(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.
(5A)For the purposes of subs (2) and (5), 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.
These amendments were plainly intended to lower the test for the imposition of a minimum non-parole period from the circumstances of the offence being “exceptional” to where the circumstances are sufficiently serious. This change was not confined to home invasions.
The two Bills proceeded in parallel through the parliamentary processes receiving their second readings on the same day. They were the subject of separate Select Committee reports of different dates. These were considered on the same date but while the Crimes (Home Invasion) Amendment Bill proceeded to a third reading, was assented to on 1 July and came into force the following day, the Criminal Justice Amendment Bill did not go to a third reading until 13 July and was assented to on 16 July. That Bill was the subject of an amendment moved and adopted during the Committee stage which has given rise to the issue in this case.
It introduced new subs (2A) and (8) providing for a mandatory non-parole period of 13 years for offences of murder involving home invasion. The new subs (8) made this applicable to parties, attempts and accessories and invoked the definition of “home invasion” from the Crimes Act amendment provisions.
There was also inserted by s2(4) of the Amendment Bill this provision:
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.
When speaking to the amendments on 24 June 1999 the Member responsible stated (New Zealand Parliamentary Debates, vol 578, p17687):
I would also like to draw the House’s attention to the impact that this will have because, of course, once this Bill becomes law, and it seems that the majority of parliamentarians wish that to be so, then the impact of that provision will affect those who are now before the courts on murder charges in the context of home invasion …
If the provisions, now enacted, have the effect then indicated, it means that the appellant is subject to the mandatory 13 year non-parole period and that the legislation conflicts with his right affirmed in s25(g) Bill of Rights Act to incur no greater penalty than applied when the offence was committed. In that respect the sentencing Judge was plainly right when he held that the mandatory non-parole period is in the nature of a penalty.
Because of the stage at which the amendments were introduced in the Bill these amendments were not the subject of any report to the House under s7 of the Bill of Rights Act which is the statutory safeguard against legislation inconsistent with the rights and freedoms contained in the Bill of Rights Act.
The courts’ role is to determine, when required, the meaning and effect of legislation not to question Parliamentary proceedings leading to the passing of legislation: Art 9 Bill of Rights 1688.
The issue then is whether s80 as amended by the Criminal Justice Amendment Act (No 2) 1999 (as the Bill became) is to be construed as requiring the mandatory 13 year minimum sentence for the appellant, and others who offended at any time prior to 17 July 1999 when the amended section became effective.
It can be noted in passing that when s80 was first enacted as providing for non-parole periods in the Criminal Justice Amendment Act 1993, s56 of that Act prohibited the imposition of a minimum period of imprisonment that could not have been imposed at the time of the commission of the offence.
Relevant directions on construction are found in s7 Interpretation Act 1999 which provides that “an enactment does not have retrospective effect” and s6 Bill of Rights Act which states:
Wherever and enactment can be giving 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.
The Interpretation Act applies “unless the enactment provides otherwise”. The amended s80 plainly does provide otherwise so far as that section is concerned. But the Crimes (Home Invasion) Amendment Act does not provide otherwise. That does not have, and was not intended to have, retrospective effect. So before it came into force there was no concept of “home invasion” as defined with its quite particular meaning in that Act.
What meaning then is to be given to the provision in subs (2A) requiring the imposition of a minimum sentence of 13 years for an offence of murder involving home invasion that is to apply even if the offence was committed before the amendments to s80 became effective? It seems there are alternatives. The first is that the matter is to be regarded at the time of sentencing by which time it is possible to cross-refer to the home invasion provisions inserted in the Crimes Act to find what home invasion entails and to use that in the application of the mandatory minimum sentence provision. That is what the Judge did. But that would have the effect of giving home invasion provisions (including their application to secondary parties, accessories and attempts) retrospective effect which they do not otherwise have.
It would result in the apparently anomalous position where increased sentences for all other specified offences involving home invasion apply to offences committed on or after 2 July 1999 but in the case of murder the increased penalty would apply even when the offence was committed before that date.
Although contending that this is the meaning the provisions must be given, Mr Pike for the Crown advanced no argument that, under s5 Bill of Rights Act, they constitute a restriction on the right that is justified in a free and democratic society. Section 5, of course, puts the burden on the Crown of providing the justification in a case like this. Given that Mr Pike properly accepted that the changes involved penalties, it is difficult to imagine any possible justification for the retrospective changes in penalty. Literature on the Covenant suggests none (Nowak, United Nations Covenant on Civil and Political Rights (1993) 274-281 and Harris and Joseph (eds) The International Covenant on Civil and Political Rights and United Kingdom Law (1995) 238-224). Although the issue was not squarely addressed in the argument before us, the apparent lack of any justifiable limit strongly suggests that, construed in this way, the clause would breach both the Bill of Rights guarantee and the Covenant right.
This construction is that preferred by Henry J. His reasoning is unassailable in affirming that, even though it conflicts with fundamental rights, the amended s80 must have retrospective effect.
To adopt this construction would (in the absence of legislative amendment) mean that another offender recently retried after a successful appeal against an earlier conviction who has again been convicted of murder would face the mandatory 13 year minimum sentence for an offence committed even before minimum sentences were part of the statute.
But accepting that the amended s80 must have some retrospective effect, a different result can be reached by interpreting the new s80 (2A) in its wider context. On this alternative the amended s80, so far as it invokes the definition of “home invasion” in subs (2A), can be given retrospective effect, but only back to the date on which the home invasion amendments to the Crimes Act commenced (2 July 1999). That would be contrary to the stated intention of the Member who in Parliament proposed the amendment giving retrospectivity and would still leave as unlimited the retrospectivity of the amendment lowering the test for the imposition of minimum non-parole period which still would conflict with the fundamental principle against higher sentences than were prescribed at the time of offending.
These possible constructions are to be considered by reference to s6 of the Bill of Rights Act. The meaning to be preferred is that which is consistent (or more consistent) with the rights and freedoms in the Bill of Rights. It is not a matter of what the legislature (or an individual Member) might have intended. The direction is that wherever a meaning consistent with the Bill of Rights can be given, it is to be preferred. The legislature’s intention in this regard is clear.
Plainly, if the amended s80 can be given the second meaning indicated, that is to be preferred. It would confine the retrospective application of the mandatory minimum sentence to the short 15 day period between the commencement of the two amending Acts. It would bring into line the new sentencing regime for all home invasion offences. It would avoid the amendment to the Crimes Act which introduced the home invasion definition having retrospective operation which it was not given on its introduction. It provides for less inconsistency with a fundamental right.

We believe there is a strong argument that the section can be given that meaning. The new subs (2A) applies to the offence of murder involving “home invasion”. By the new sub (8) it is the Crimes (Home Invasion) Amendment Act to which one is directed to ascertain what is meant by an offence involving home invasion. That meaning became part of the law only on 2 July 1999. Before that there were no offences involving home invasion in the defined sense. An offence committed before that date could not have been an offence involving home invasion as that came to be defined. The appellant pleaded guilty to an indictment specifying the charge that on 30 November 1998 he murdered Mrs Bouma. He is to be sentenced for that offence committed on that date. That can be regarded as an offence involving home invasion only if the Crimes Act amendments are regarded as then applying. They did not do so.
While s2(4) Criminal Justice Amendment Act (No 2) requires the amended s80 to be applied to offences committed before that Act was passed, that can be given effect by applying it, insofar as it incorporates reference to “home invasion”, back to the date of commencement of the Crimes Act amendments to which it expressly refers. While this would limit what on its face is a provision of general and unlimited retrospectivity to operate only in the short 15 day period between the commencement of the two Acts, arguably it is a meaning which the provisions can be given. It is the meaning which would unify the law as it applies to all offences involving home invasion. To adopt it would be to bring to bear a broad application for s6, as may be appropriate for a provision in the Bill of Rights Act.
In the present case it is unnecessary to reach a final view on which interpretation is to be preferred. That is because we are satisfied that even if the Judge had not considered he was bound to comply with the mandatory direction, undoubtedly he would have considered the exercise of the discretionary power to impose a minimum term. On a plea of guilty no application was necessary: R v Yorke CA261/96, judgment 23 October 1996. The 13 year period actually imposed would have been fully justified on that basis. This was a violent, brutal and totally unprovoked murder of an innocent woman in her own home. Accordingly we are not convinced that any different sentence should have been passed; indeed we are satisfied the sentence was entirely appropriate. The appeal must therefore be, and is, dismissed.
We have chosen not to express a final view on the construction of the amended s80 conscious that this deprives the High Court of clear guidance for those cases of murder committed before 2 July 1999 involving home invasion. And they will fall to be dealt with very soon. We have taken that course because, although we tentatively favour the second alternative construction outlined, we are conscious of the strength of the reasoning in Henry J’s judgment and of the fact that this construction would only ameliorate the problem of retrospectivity and would not fully address the continuing inconsistency with fundamental rights. That can be achieved only by legislative amendment. In addition to the retrospectivity there are the other concerns with the home invasion provisions that have been pointed out which we consider also should have legislative consideration. But we would urge that the attention to the retrospectivity issue not be deferred pending review of the broader issues.
If the Court be presented with a case in which it is material before any legislative amendment is enacted, it will be necessary to determine the preferred construction, and perhaps also the question (canvassed only briefly in argument) of whether there should be a declaration of inconsistency with s25(g) of the Bill of Rights Act.

HENRY J

On 13 October 1999, being the second day of his trial in the High Court at Rotorua, the appellant pleaded guilty to a charge of murder and was sentenced to the mandatory term of life imprisonment. On 15 December 1999 the sentencing Judge, applying s80(2A) of the Criminal Justice Act 1985, ordered the appellant to serve a minimum period of imprisonment of 13 years. Accordingly the appellant will not become eligible for parole until that time has been served. The primary issue argued on the appeal was whether s80(2A)(a), which came into force on 17 July 1999, applied to the offence in question which was committed on 30 November 1998. There were aggravating features of a very serious kind to the murder, which it is accepted involved “home invasion” as that term will be discussed shortly.
As it happens, those aggravating features, which have been referred to in the judgment delivered by Gault J which I have read in draft, were such that even if the sentencing process was governed by the law as it stood on 30 November 1998, a minimum period of imprisonment of 13 years would have been justified. For that reason I agree that the order must stand, and the appeal be dismissed. But because of the importance of the issues raised in the course of argument, it is appropriate to set out what appear to me to be the probable consequences of the new legislation.
It is contained in two statutes. First, the Crimes (Home Invasion) Amendment Act 1999, which was introduced as a Bill on 23 February 1999. It had its second reading on 2 March 1999, and was the subject of a Select Committee report considered on 22 June 1999. Following its third reading it received the Royal assent on 1 July 1999, and came into force the following day. The long title records that it is to amend the Crimes Act 1961 to increase penalties for certain offences involving home invasion. This is done by introducing into the Crimes Act new sections 17A to 17E, under which maximum terms of imprisonment are stated for various specified offences under the Crimes Act (ss17B and 17C) if “the sentencing court is satisfied that the offence involved home invasion”. The term “home invasion” is defined in s17A in terms which may give rise to factual matters of some complexity. Section 4 of the amending Act also amends consequentially the specified offences, by making the appropriate section defining the offence as being subject to the higher penalty provisions in ss17B and 17C of the Crimes Act. The new 17D extends the penalty provisions to parties to an offence committed by another, to attempts for s311 purposes, and to accessories after the fact for s312 purposes. The reason for making special provision for parties is unclear, having regard to s66 of the Crimes Act which declares a secondary party to an offence to be guilty of that offence. It can perhaps also be noted that a secondary party to an offence appears to be liable to the increased penalty, whether or not home invasion was in that person’s contemplation.
Section 3 of the amending Act, which is not relevant for present purposes, requires the sentencing court to give particular weight to the home invasion factor in cases of manslaughter.
The second piece of legislation is the Criminal Justice Amendment Act (No. 2) 1999 which also was introduced on 23 February 1999, also had its second reading on 2 March 1999, and also was the subject of a Select Committee report considered on 22 June 1999. It was however the subject of a supplementary order paper and an amendment. It had its third reading on 13 July 1999, received the Royal assent on 16 July and came into force on the following day. The amending Act in particular repealed and replaced the existing subs (2) of the principal Act, and added a new subs (2A). Section 80 now reads:
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,-
(a)In the case of murder, upon application made within 14 days after the date of delivery of the verdict; and
(b)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.
The critical provision of the 1999 amendment is s2(4), which states:
(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.

This provision was first introduced through the supplementary order paper.

The submission of Mr Edward, rejected by Salmon J in the High Court, was that the retrospective nature of s2(4) was in effect overridden by s4(2) of the Criminal Justice Act 1985, was inconsistent with s25(g) of the New Zealand Bill of Rights Act 1990, and was also inconsistent with Article 15 of the International Convention on Civil and Political Rights, ratified by New Zealand in 1978. Section 4(2) of the Criminal Justice Act 1985 provides:
(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 25(g) of the Bill of Rights provides:
(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.
Article 15 of the International Covenant states:
1. 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, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
The strength and importance of the principle enunciated in these provisions cannot be doubted, and is not to be undermined by the Courts when exercising jurisdiction. The principle is one which is at the forefront of a criminal justice system which is fair and just. Therefore, in the absence of clear and unequivocal words a statute will not be construed as applying to an offender a penalty which is greater than that to which he or she was liable at the time the offence was committed. But if on full consideration the words of the statute are to the contrary and are clear and certain leaving no room for possible ambiguity, the duty of the Court is to apply them. Legislation is supreme, and the Courts in this country are not vested with any jurisdiction to strike it down.
For the Crown Mr Pike did not contend that the three general provisions set out in paras 6, 7 and 8 above had no application because the new subsections (2) and (2A) of s80 did not involve the imposition of a penalty. His argument was focussed on what he submitted was the clear legislative intent. This was, in my view, the correct approach. Under s80(1) the Court imposes a minimum term of imprisonment as part of the sentencing process. The order giving effect to the imposition becomes part of the sentence passed on the offender by the Court. It is certified by the sentencing Judge pursuant to the Criminal Justice Regulations 1985. That is in direct contrast to any question of administration of a Court imposed sentence, such as was discussed by this Court in Fulcher v Parole Board (1997) 15 CRNZ 222 and by Wylie J in Palmer v Superintendent Auckland Maximum Security Prison [1991] 3 NZLR 315. Whether the distinction was fully appreciated when Parliament legislated for retrospective effect to the parole provisions but not for the penalties for other specific crimes must be a matter of speculation. The reason for the distinction is not obvious.
Section 2(4) would appear to be clear, unambiguous and certain in its retrospective effect. As from 17 July 1999, the sentencing process is governed by the amended s80. It is difficult to see what possible meaning the words “even if the offence was committed before (the date of commencement of the section)” could have, other than to encompass offences, whenever they may have been committed. The words cannot be ignored, which in substance is the effect of the argument propounded by Mr Edward. It is true that there is an apparent conflict with s4(2) of the principal Act, but that articulates the general principle and must as a matter of construction give way to the subsequently enacted particular provision forming as it does part of the overall legislative framework. From that there can be no escape - the legislation must be read so as to give the subsection effect. No question of implied repeal of s4(2) arises. It continues to have operative effect outside s80 of the Criminal Justice Act, and can run in conjunction with s2(4). But as a matter of statutory interpretation, it must be read down so as to allow s2(4) to operate.
As to s25(g) of the Bill of Rights, it is necessary to turn to ss4, 5 and 6 to see whether they can have any application. They provide:
4. Other enactments not affected - No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),-
(a)Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b)Decline to apply any provision of the enactment-
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
5. Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
6. Interpretation consistent with Bill of Rights to be preferred - 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.
The starting point must be s6. It is beyond argument that s2(4) of the 1999 Criminal Justice amendment cannot be given a meaning which is consistent with s25(g) of the Bill of Rights Act. The only way in which that could be done would be to ignore the very words of the section, and its whole purpose. It can have no utility, other than to make penalties retrospective. In that event, s4(b) of the Bill of Rights Act prohibits the Court from declining to apply the provision of the 1999 amendment. Neither could there be any room for holding that s2(4) was either impliedly repealed or revoked - the course of the legislation process simply does not permit such an approach. It must also follow that Article 15 of the International Covenant cannot avail the appellant on this primary issue. I repeat the subsection in question must be given its clear operative effect.
In the course of the hearing before this Court, a possible argument giving the provision a limited application was raised. It involved the proposition that, for the purposes of subs (2A), the retrospective effect of the subsection was limited to when the new home invasion provisions of the Crimes Act came into force, namely 2 July 1999. The argument was that such a result would be less inconsistent with the other provisions confirming the established principle, than an unlimited retrospective provision would be. It proceeded along the lines that because the term “home invasion” in s80(2A) related back to the new s17A of the Crimes Act for definition purposes, and because prior to s17A coming into force there was no such defined concept, offences committed prior to 2 July 1999 could not have such an element. This it was said would give a common starting date to all the new home invasion provisions. There seem to me to be significant problems in giving s2(4) such a construction.
First, it appears to be quite inconsistent with the words of s2(4), which contain no suggestion of limitation. If Parliament had intended such a restriction, it could easily have expressed that by reference to the commencement of the amendment to the Crimes Act. The amended s80 applies to any order made under the section after 17 July 1999. Such an order may, and in the case of subs (2A) must, be made in respect of an offence even if it was committed before that date. Absent some qualifying provision, those words can only mean that an offence committed before 17 July 1999 is caught and is subject to the section. There is no qualifying provision.
Secondly, the “offence” in s2(4) can only be an offence as defined in the Crimes Act 1961. If that offence is murder and has a certain characteristic, namely it involved home invasion, then subs (2A) applies. Whether or not home invasion is involved is nothing more than a factual enquiry to ascertain whether the circumstances now defined in s17A of the Crimes Act existed. Whether those circumstances existed at the time the offence was committed does not depend upon the passing of the earlier piece of legislation. The fact that they are defined by reference back to the Crimes Act through the new subs (8), rather than again being set out as part of s80 itself as aggravating features bringing subs(2A) into operation, would seem not to matter.What the Courts are now required to do is to ascertain whether particular aggravating circumstances existed when the offence was committed, and if so satisfied then to apply subs (2A). As the legislation is presently framed, the offence of murder remains unchanged.Consistently with s2(4) of the amending Act, the “offence” in subs (2A) can only be the offence of murder as defined in the Crimes Act. There still is no offence of “murder involving home invasion”, although the approach that there is would seem to be a necessary part of the argument. For example for subs (2A) to apply following conviction for a murder committed after 17 July 1999, the indictment need contain no such averment. With respect to the opposing argument, the offence of murder as defined in the Crimes Act could always have involved what is now described in a shorthand way as home invasion. The present case is itself an example. The murder was committed while the appellant was in an occupied dwellinghouse, after he had unlawfully entered the dwellinghouse. His offence, when committed, involved that very set of circumstances.

Thirdly the amendment to the Criminal Justice Act included the substitution of a new subsection (2) to s80. The previous requirement of exceptional circumstances was changed to those which are sufficiently serious to justify a minimum period of imprisonment of more than 10 years. That provision is of general application, including the offence of murder, where an indeterminate sentence is imposed. It is totally unrelated to the home invasion concept. Similarly the new subs (5), which is directed to offences of serious violence, is not concerned with home invasion. Once it is accepted that there is no limitation to the retrospective effect of s2(4) in respect of those provisions, it becomes difficult to see how it is nevertheless limited in its application to subs (2A).
Fourthly, any logical purpose in backdating such a provision for 15 days so as to embrace retrospectively only murders committed within that short time frame is difficult to find. Harmonisation with the Crimes Act in this respect does not seem to me to be a rational explanation, particularly when there is a lack of it in respect of the other aspects of s80 referred to in para [61] above.
Fifthly, the Parliamentary Debates do not disclose any such purpose which could assist in giving s2(4) what would appear to be a forced and unrealistic construction.
The Court was not advised of any reason underlying the unusual step of making these penalty provisions retrospective. Advice from the bar was that at least four other offenders awaiting sentences well may be affected by s2(4). There may well be others. It would also seem that if a person convicted and sentenced before 17 July 1999 has the conviction set aside on appeal, but is subsequently again convicted, the new s80 provisions will apply at the later sentencing. Justification for this and the other consequences, which are so in conflict with a longstanding well understood and fundamental principle of justice, is far from apparent.
Whether the method adopted in both amending Acts, when it could be argued with some force that new offences which carry greater penalties are effectively created by adding what is really an additional element, but without requiring proof of that as part of the prosecution case and subjecting it to the trial process, is appropriate, is not in issue and requires no further present comment. There would seem to be alternative methods of achieving the objects of the legislation. For example, new offences could be created. Alternatively in cases other than murder express recognition of home invasion when imposing sentence could be required, as was done in respect of manslaughter by s8 of the Crimes Act Amendment. This could be in association with an increase in penalty generally for the specified offence, if that was also seen as desirable.
One observation does need to be made. The inconsistency between s2(4) and established principle, which is recognised in both the Criminal Justice Act itself not only when originally enacted but even in its present form and also the Bill of Rights Act has already been discussed. It would appear that the need for consideration of s2(4) by the Attorney‑General pursuant to s7 of the Bill of Rights Act was obviated by the fact that this provision was introduced at a late stage of consideration of the Bill by the House. It has therefore not been subjected to the possible use of the “watchdog” provision, drawing attention to an apparent inconsistency with the 1990 Act. Neither does the significance of the provision appear to have been the subject of informed debate before final enactment.
Because these are matters of considerable concern which I have attempted to express, I endorse Gault J’s comments in para [42] above as to the desirability of legislative reconsideration.
Whether to make a formal declaration by the Court along the lines proposed by Thomas J could well require determination if the Court found the retrospective provision had to be enforced in the particular case. In this appeal, counsel for the appellant for good reason did not seek any such declaration or statement from the Court, and the issue was not adequately addressed in argument. The Crown complained it was not timeously forewarned that such a course may be pursued, and as Mr Pike submitted there has been inadequate opportunity to present the opposing views, either as to the Court’s function in this respect or as to whether the grounds for a declaration have been established. These observations do not in any way diminish the level of concern I have earlier expressed. Nor do they indicate that there are good reasons against making a declaration - I merely wish to leave the issue open. In my respectful view, to proceed now without full argument would be inappropriate.
For the reason given at the outset of this judgment, I too would dismiss the appeal.

THOMAS J

Introduction

Section 2(4) of the Criminal Justice Amendment Act (No 2) 1999 is incompatible with the cardinal tenets of a liberal democracy. This Court would be compromising its judicial function if it did not alert Parliament in the strongest possible manner to the constitutional privation of this provision.
In Waddington v Miah [1974] 2 All ER 377, at 379, Lord Reid, when confirming that the statutory provision in issue in that case was not retrospective in its effect, observed:
So it is hardly credible that any government department would promote or that Parliament would pass retrospective criminal legislation.

With the enactment of s 2(4), the “hardly credible” has happened in New Zealand. Parliament has passed retrospective criminal legislation.

No one suggests that violent offences in the home are not serious or that those who offend in that regard are not deserving of severe punishment. Indeed, in R v McLean [1999] 2 NZLR 263, at 266, this Court had occasion to refer to the justifiable alarm in the community relating to violence by intruders within the home. It recorded that in sentencing such offenders, the Courts have repeatedly emphasised the importance of recognising the sanctity of the home and have insisted that violence occurring in a person’s house is to be treated as an aggravating factor calling for a higher sentence. Conduct of this kind affects the sense of security of the whole community. See, for example, R v Yates (Court of Appeal, CA 75/88, 27 June 1988); R v Karaitiana (Court of Appeal, CA 181/91, 3 September 1991); and R v Mua (Court of Appeal, CA 190/94, 3 November 1994). These judicial observations reflect the community’s fear, anger and abhorrence of violent crimes committed within the home.
But sentiments such as these cannot in themselves necessitate retrospective legislation. It is a fundamental right that no one should be held criminally liable for an act or omission which did not constitute an offence at the time it was committed, or be subjected to a sentence which was not in force at that time. A defendant’s conduct is to be judged by the law at the time of the conduct; not in retrospect. If Parliament chooses to depart from this principle it must surely take care to ensure that it does so with due deliberation and with firm adherence to proper form.
In this judgment I will first assemble the respects in which s 2(4) is constitutionally objectionable. (See para [75]). The possibility that the subsection constitutes a bill of attainder will be dealt with separately. (See paras [76] to [78]). I will touch upon the construction preferred by the majority and explain why I cannot accept that interpretation. (See paras [79] to [85]). Finally, I will urge that the most appropriate remedy in this case is to make a formal declaration confirming that s 2(4) is contrary to s 25(g) of the New Zealand Bill of Rights Act 1990. (See paras [86] to [107]). This latter recommendation is the main plank of my judgment.

The respects in which s 2(4) is “unconstitutional”

Consider the respects in which s 2(4) is constitutionally objectionable:

It is in direct conflict with s 25(g) of the Bill of Rights. Section 25(g) affirms:
25. Minimum standards of criminal procedure - Everyone 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.
It is in direct conflict with s 4(2) of the Criminal Justice Act. This subsection provides:
…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 is in conflict with s 7 of the new Interpretation Act 1999 which provides:
7. Enactments do not have retrospective effect – An enactment does not have retrospective effect.
It is contrary to the International Covenant on Civil and Political Rights which was ratified by New Zealand on 27 December 1978. Article 15(1) of the Covenant 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, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.
It is contrary to a constitutive principle of the rule of law – there can be no crime without law. Dicey in his famous Introduction to the Study of the Law of the Constitution (10ed, 1959) at 102 and 108, was firm in the view that the principle a person should only be convicted and punished on the basis of existing law was a major component of the rule of law. Blackstone in Commentaries (1830) Vol IV, at 5, defined a crime prospectively as “… an act committed, or omitted, in violation of a public law, either forbidding or commanding it” and dealt specifically with the vice of retrospective criminal legislation (see para [4] of the majority’s judgment). Glanville Williams in Criminal Law: The General Part (2ed, 1961), at 580, quotes Hobbs from his Leviathan (1651) Chaps 27-28: “No law, made after a fact done, can make it a crime … Before the law, there is no transgression of the law.” These statements of principle have been reiterated in more modern times. See Jennings The Law and the Constitution (5ed, 1959) at 51; Hall General Principles of the Criminal Law (2ed, 1960) at 27f; Raz The Authority of Law: Essays on Law and Morality (1979), Chapter 11; Joseph Constitutional and Administrative Law in New Zealand (1993) at 192; and Simester and Brookbanks Principles of Criminal Law (1998) at 23. But Professors Wade and Bradley can have the last word. In Constitutional and Administrative Law (10ed, 1985) at 614, the distinguished authors simply confirm that retrospective legislation is repugnant to the conception of the rule of law.
Retrospective legislation in the criminal law is condemned under a number of international instruments or treaties. A sample is as follows –
-           Article I, 9, cl 3; and Article I, 10, cl 1, US Constitution (1787);
-           Article 8, Declaration of the Rights of Man and of the Citizen (France, 1789);
-           Article 11(2), Universal Declaration of Human Rights (United Nations, 1948);
-           Article XXVI, American Declaration on the Rights and Duties of Man (American Continent, 1948 – document of the Inter-American human rights system);
-           Article 20(1), Indian Constitution (1949);
-           Article 7(1), European Convention for the Protection of Human Rights and Fundamental Freedoms (EU, 1953);
-           Article 9, American Convention on Human Rights (American Continent, 1978 – document of the Inter-American human rights system);
-           Article 7, African Charter on Human and Peoples’ Rights (African Continent, 1981);
-           Article 11(i), Canadian Charter of Rights and Freedoms (Part I of Constitution Act 1982);
-           Section 35(3)(n), Constitution of the Republic of South Africa (1996 – Chap 2: Bill of Rights).

A bill of attainder?

It may be added that s 2(4) is dangerously close to being, if it is not in fact, a bill of attainder. Bills of attainder, or bills of “pains and penalties” where a lesser penalty than death was imposed, have an infamous history in English law. See Holdsworth, A History of English Law (1903) Vol 1, at 381. (I will for convenience refer to bills of attainder only). The iniquity of such bills lies in the fact that the legislature prescribes by legislative act the punishment for a named or ascertainable individual or group of people. When this is done the law ceases to be of general application and citizens cease to be equal before the law. In essence, the constitutional function accorded the judiciary is usurped by the legislature. As Professor de Smith states, bills of attainder intrude on the judicial office and threaten the independence of the judiciary. (See de Smith Constitutional and Administrative Law (3ed, 1977) at 298 and 354). The point was confirmed by McHugh J in Polyukhovich v Commonwealth (1991) 172 CLR 501, at 721. Referring to two leading United States authorities, Calder v Bull 3 US 386 (1798) at 389, and United States v Brown 381 US, 437 (1965) at 447, the learned Judge recorded that bills of attainder “are an interference with the exercise of judicial power”. They “constitute a legislative punishment of specifically designated persons or groups”. Such bills, he said, are “legislative judgments”.
While no individual or individuals are named, s 2(4) was expressly aimed at accused persons already facing charges of murder. Widespread media publicity relating to crimes in the home had been given to certain cases, and the persons who the provision was aimed at were readily ascertainable. The member of the minority party who introduced the amendment stated (24 June 1999) 528 NZPD 17687:
I would also like to draw the House’s attention to the impact that this [her Amendment] will have because, of course, once this Bill becomes law, and it seems that the majority of parliamentarians wish that to be so, then the impact of that provision will affect those who are now before the courts on murder charges in the context of home invasion.

(It is to be noted that the member’s advice to the House did not convey the full legal effect of the amendment. She advised that the provision would affect those who were then before the Courts “on murder charges in the context of home invasion”. In fact, the retrospective effect of her amendment applies to all offences covered by s 80, although in respect of offences other than murder the imposition of a minimum period of imprisonment is not mandatory).

It may well be that the subsection is still not sufficiently specific to constitute a bill of attainder. If it does so, however, it will raise serious constitutional issues going beyond the question of retrospective legislation. In view of the fact that this appeal is being dismissed in any event, it is not necessary to reach a final decision on the point. But if there is a further appeal relating to s 2(4) and it is established that the subsection was aimed at an ascertainable person or group of persons (even though not the appellant in any such further appeal), this Court will be placed in a difficult position. The unconstitutionality of the provision and its departure from the rule of law will be clear. What can the Court do? Certainly, it would wish to avoid a confrontation with Parliament. But if the Court is to defend the integrity of the judicial function it will, as I see it, have no alternative but to confront the issue head on.

The alternative interpretation

Notwithstanding that s 2(4) is constitutionally objectionable, I am unable to bring myself to agree with the interpretation put forward by Gault J in the judgment of the majority. Section 6 of the Bill of Rights Act directs the Court, whenever an enactment can be given a meaning that is consistent with the rights contained in the Bill of Rights, to prefer that meaning to any other meaning. On this basis, it is argued, s 2(4) can be interpreted so as to confine the retrospective application of the mandatory minimum sentence to the short 15 day period between the commencement of the Crimes Amendment Act and the Criminal Justice Amendment Act.
My difficulties with this approach can be shortly stated. First, I am not convinced that s 6 can be invoked to support an interpretation which is clearly not Parliament’s intent. It is, of course, well established that the notion of “Parliament’s intent” is frequently a fiction. Often Parliament has not addressed the question in issue at all or, if it has, it has not made its meaning clear. Language is inherently equivocal. As Andrew Butler states in “Strengthening the Bill of Rights” (2000) 31 VUWLR 129, at 133, s 6 operates on the principle of the “malleability of language” and encourages the Courts to exploit that feature. Thus, a purposive approach is adopted in order to give the statutory provision a meaning which will presumably accord with Parliament’s intent. In such a case, the Courts should undoubtedly adopt that interpretation which complies with the Bill of Rights. Where, however, Parliament’s intention is unequivocal and the alternative interpretation is clearly not what Parliament intended, I doubt that s 6 authorises the Court to adopt such a meaning.
Indeed, such an approach is inconsistent with s 4. Section 4, as evidenced by the legislative history of the Bill of Rights, is designed to confirm Parliament’s legislative sovereignty. To attribute to a statutory provision which is neither equivocal nor malleable in its terms a meaning which is admittedly contrary to Parliament’s discernible intent is to effectively challenge Parliament’s primacy.
Secondly, the judicial task of interpreting the text of a statute has little point unless it is associated with the objective of ascertaining Parliament’s intention. This approach holds good even though, as just acknowledged, Parliament may not have addressed the point in issue or there may be a clear gap in the legislation. In such cases an intention in line with the purpose and policy of the legislature can be attributed to Parliament in accordance with the purposive approach to the construction of a legislative enactment. But this is a far cry from attributing to Parliament a meaning which it did not intend.
Thirdly, even if s 6 is construed expansively, any alternative interpretation which is proffered should be tenable. See the decision of this Court in Moonen v Film and Literature Board of Review [1999] 5 HRNZ 224, at para [16]. If the Court proclaims a statute to mean something that does not meet this threshold requirement, then, even though that meaning may be more consistent with the Bill of Rights, the Court will be seen to have acted arbitrarily. The construction will be seen to be unduly strained and the credibility of the judicial system will be impaired. I am bound to say that I am not persuaded that the interpretation put forward by the majority is sufficiently tenable to permit of this Court’s support.
Finally, the interpretation is unduly dependent on happenstance in an area where happenstance should have little or no import. Human rights deserve a studied and principled approach. Yet, in this case the alternative interpretation is available only because, for one reason or another, the commencement date of the two Acts became separated in time. Had the enactments proceeded in parallel the alternative interpretation would crumble. In the case of fundamental rights, an approach which is less random in its application is to be preferred.

The declaration formulated

Criticism of s 2(4) is not, of course, restricted to myself. Both Henry J in his separate judgment, and Gault J speaking for the majority, have strongly criticised the subsection. Indeed, I would not be unhappy with a declaration in terms of the majority’s indication of their opinion in para [33] of their judgment. For the above reasons, however, I would make a formal declaration in the following terms:

1. Section 2(4) of the Criminal Justice Amendment Act (No 2) 1999 is inconsistent with –

(a) Section 25(g) of the New Zealand Bill of Rights Act 1990, and
(b) New Zealand’s commitment to Article 15(1) of the International Covenant on Civil and Political Rights.

In terms of s 5 of the Bill of Rights, it has not been demonstrated that the subsection is a reasonable limitation on the right contained in s 25(g), such as can be demonstrably justified in a free and democratic society.

Solicitors

H S Edward, Rotorua, for Appellant
Crown Law Office, Wellington, for Crown

[2000] NZCA 69

31 May 2000