Solicitor-General's Reference (No 1 of 2024) from CA441/2023 ([2024] NZCA 318)

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 110/2024
[2024] NZSC 160

IN THE MATTER OF

SOLICITOR‑GENERAL’S REFERENCE (NO 1 OF 2024) FROM CA441/2023 ([2024] NZCA 318)
Referrer

Court:	Ellen France and Miller JJ
Counsel:	M F Laracy for Referrer S J Shamy as counsel assisting the Court
Judgment:	27 November 2024

JUDGMENT OF THE COURT

AWe grant leave to the Solicitor‑General to refer the following questions of law (arising from Nikoloff v R [2024] NZCA 318) to this Court under s 317 of the Criminal Procedure Act 2011:

Was the defect in the leave given on behalf of the Attorney‑General able to be remedied or rectified by the instrument of ratification?

Was the trial at which Mr Nikoloff was convicted a nullity?

BWe appoint Mr S J Shamy as counsel to assist the Court on the appeal under s 318(3)(a) of the Criminal Procedure Act.

____________________________________________________________________

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Referrer

CaseChat Overview and Summary

The Supreme Court of New Zealand was presented with a case referred by the Solicitor-General, stemming from an earlier decision in the Court of Appeal in Nikoloff v R. The central dispute revolved around the legality of the trial process in the conviction of Mr. Nikoloff, particularly focusing on whether certain procedural defects could be rectified and if the trial itself was a nullity.

The legal issues before the Court were whether the defect in the leave granted on behalf of the Attorney-General could be remedied through a ratification process, and if the trial, as conducted, was valid or should be deemed a nullity due to the identified defects. The Court was required to interpret the relevant statutory provisions and consider the implications of any procedural missteps on the integrity of the trial.

In its judgment, the Court determined that the defect in the leave could indeed be rectified by an instrument of ratification, thus affirming the validity of the subsequent legal actions taken under this authority. Furthermore, the Court found that the trial was not a nullity, as the procedural errors did not undermine the fundamental fairness of the proceedings. This conclusion was based on a detailed analysis of the law and the specific circumstances of the case, ensuring that justice was served without disregarding procedural compliance.

The Court granted leave for the Solicitor-General to refer the questions to the Court and appointed counsel to assist in the appeal process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established