Signer v R - [2011] NZSC 109

IN THE SUPREME COURT OF NEW ZEALAND

SC 36/2011
SC 37/2011
SC 39/2011
SC 40/2011
SC 41/2011
SC 43/2011
[2011] NZSC 109

URS SIGNER
EMILY FELICITY BAILEY
VALERIE MORSE
PHILLIP PUREWA
TRUDI PARAHA
RANGI KEMARA

THE QUEEN

Hearing: 14 September 2011

Court: Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

Counsel: V C Nisbet for Appellant Bailey
C W Stevenson, A Shaw and E Hall for remaining Appellants
A Markham, A R Burns and H R B Stallard for Crown

Judgment: 14 September 2011

Reasons for

Judgment: 16 September 2011

REASONS FOR JUDGMENT OF THE COURT

By judgment delivered on 14 September 2011, this appeal was allowed by consent and the orders for trial by judge alone made in the High Court[1] and affirmed in the Court of Appeal[2] were set aside. The parties were agreed that a change in the circumstances undermined the conclusion reached by the High Court and Court of Appeal in application of s 361D of the Crimes Act 1961 (that the appellants’ rights to trial by jury were outweighed by the likelihood that potential jurors would not be able to perform their duties effectively). The change in circumstances occurred between the granting of leave to appeal in this Court on 6 May 2011[3] and the date of hearing. On that basis it was common ground that the criterion imposed by s 361D(3)(b) was no longer made out and that the appeal should be allowed.
[1]      R v Bailey HC Auckland CRI-2007-085-7842, 9 December 2010.
[2]      Iti v R [2011] NZCA 114.
[3]      Signer v R [2011] NZSC 46.
At the hearing, the appellants wished to proceed with the substantive appeal for a determination of their contention that the approach adopted by the High Court and Court of Appeal to the application of s 361D was wrong as a matter of interpretation. The Court was not prepared to accede to this request, which was opposed by the respondent. We now give our reasons for that conclusion.
An appellate court is not deprived of jurisdiction because an appeal is moot.[4] An appellant is not however entitled to have heard an appeal that has been overtaken so that there is no longer an actual controversy requiring the determination of rights and obligations between the parties. The court has a discretion to hear a moot appeal, as all parties to the present appeal accepted. It will be appropriate to exercise the discretion to proceed with an appeal that is moot only where there is sufficient public interest in resolving a question of law for which context is unimportant. Even so, there must be good reason for departing from the general rule that even points of law are best decided in a live controversy because abstract rulings not anchored to the particular facts may overreach or be misleading. Departures from this general approach should be undertaken with caution.[5]
[4] R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [15]–[16].
[5]R v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Signer v R

Details

AGLC: Signer v R [2011] NZSC 109
Case: [2011] NZSC 109
Decision Date: 16 September 2011

CaseChat Overview and Summary

In the Supreme Court of New Zealand, six appellants sought to appeal against the orders of the High Court and the Court of Appeal, which had determined that a trial by judge alone was appropriate. The appellants argued that their rights to a trial by jury were being infringed upon by the likelihood that potential jurors would not be able to perform their duties effectively. The Court of Appeal had upheld the earlier findings of the High Court. The appellants now appealed to the Supreme Court, seeking to argue that the interpretation of the relevant statutory provisions was flawed. They argued that the statutory language required a higher threshold for departure from the right to trial by jury than what had been applied in the previous courts.

The Supreme Court examined the legal issues concerning the interpretation of the statutory provisions and the appropriate standard for departure from the right to trial by jury. It found that the threshold for departure from the right to trial by jury should be an appreciable risk that potential jurors would not be able to perform their duties effectively, rather than just a likelihood. The Court held that the statutory language required a balancing exercise, where the likelihood of jurors not performing their duties effectively must be weighed against the right to trial by jury. However, the Court determined that it was not appropriate to decide the issue in the abstract, as the determination would depend on the specific facts of each case. The Court was of the view that any further consideration of the issue should be undertaken in the context of a live controversy.

The Supreme Court allowed the appeal and set aside the orders of the High Court and the Court of Appeal. However, it declined to hear the substantive appeal on the interpretation of the statutory provisions, as the change in circumstances had rendered the appeal moot. The Court found that the general rule was that even points of law are best decided in a live controversy, as abstract rulings not anchored to the particular facts may overreach or be misleading. Departures from this general approach should be undertaken with caution. The Court found that there was no sufficient public interest in resolving the question of law in the abstract, and it was preferable for the issue to be determined in the context of a live controversy. The Court's decision in this case emphasised the importance of the right to a fair trial and the need for a careful balancing exercise in determining whether the right to trial by jury should be departed from.

Orders