The Queen v Chatha
[2008] NZCA 466
•3 November 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA685/2007
[2008] NZCA 466
THE QUEEN
v
ARSHAD MAHMOOD CHATHA
Hearing:30 October 2008
Court:Glazebrook, Rodney Hansen and Miller JJ
Counsel:A Shaw and A J Ellis for Appellant
N P Chisnall for CrownJudgment:30 October 2008
Reasons for judgment: 10 December 2008 at 4.00 pm
| JUDGMENT (RECUSAL NO 2) |
The applications are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
First recusal application: Glazebrook J [5]
Second recusal application: the whole Court [15]
Third recusal application: Rodney Hansen and Miller JJ [23]
Fourth recusal application: Miller J [30]
Declaration of inconsistency [32]
Result [36]
Postscript [37]
Introduction
On 30 October 2008, at the resumption of the hearing of Mr Chatha’s appeal against conviction and sentence on matters relating to immigration fraud, Mr Ellis, for Mr Chatha, made applications for the recusal of:
(a) Glazebrook J;
(b)The entire Court;
(c)Rodney Hansen and Miller JJ; and
(d)Miller J.
Those applications were refused with reasons to be provided later. We now provide our reasons.
Mr Ellis, in the alternative, asked for a declaration that the provisions of the Judicature Act 1908 which relate to the assignment of High Court judges to sit on divisions of this Court are inconsistent with the New Zealand Bill of Rights Act 1990 (Bill of Rights). He also asked that this issue be referred to a Full Court. This judgment also deals with those applications.
An earlier application for the recusal of Miller J had been refused on 23 September 2008, the first day of hearing of Mr Chatha’s appeal in R v Chatha [2008] NZCA 427 (Recusal No 1). That recusal application had been made on the ground of alleged bias resulting from Miller J being from the same common room as the trial Judge for Mr Chatha’s trial, MacKenzie J. The reasons for refusing that application are being released on the same date as this judgment and the judgment in the substantive appeal: R v Chatha [2008] NZCA 547 (the substantive judgment).
First recusal application: Glazebrook J
On 25 September 2008, Mr Ellis wrote to the Registrar of this Court in the following terms:
1.I write as counsel for Mr Chatha to you in your capacity as Registrar. Please note this is not a request to the judicial branch of the NZ Government.
2.Please advise on what date, and by whom Justice Miller was authorised (if he was) to sit as a Judge of the Court of Appeal on the above mentioned case.
3.Please also provide a copy of the documentation of the appointment.
4.Please be good enough to respond by email as I will be overseas shortly, and please send the original documentation to Antony Shaw Counsel also on the record.
The Registrar referred the letter to Glazebrook J as presiding Judge in Mr Chatha’s appeal. Glazebrook J issued a minute on 6 October 2008 in the following terms:
[1] The Registry has (quite properly) passed on Mr Ellis’ letter of 25 September 2008 to the Court.
[2] As Mr Ellis will be aware the assignment of judges to divisions of the Court is not a matter for the Registry but is a matter of routine judicial administration: see R v Jessop CA13/00 19 December 2005 at [113]. Documents relating to matters of routine judicial administration are not provided to parties or their counsel.
[3] In addition, the matters set out at [2] of Mr Ellis’ letter are irrelevant. The fact that a High Court Judge acts as a Judge of this Court is conclusive evidence of his or her authority to do so – see s 58G of the Judicature Act 1908 and Jessop v R [2006] NZSC 14 at [4].
Mr Ellis objects to that minute on the following grounds:
(a)It was issued without authority as it did not come within the matters that can be decided by a single judge set out at s 393 of the Crimes Act 1961.
(b)What counsel is aware of is not a matter for judicial speculation.
(c)The minute breached the doctrine of separation of powers.
(d)The minute breached Mr Chatha’s right to freedom of information. Counsel is entitled to know whether Miller J was appointed properly and, if so, on what date that occurred.
As to [7](a), s 393 of the Crimes Act is not exhaustive. There are many matters of administration relating to appeals that may be dealt with by a minute of one Judge (for example timetabling orders and extensions of time to file submissions). In many cases the composition of a Court to hear an appeal will not be set at the time such matters arise. Where a Court is constituted, the presiding Judge, before issuing a minute, will usually consult with the other members of the Court before issuing any minutes dealing with routine administrative matters related to the appeal (as in fact happened in this case). There is, however, no obligation to do so.
As to [7](b), the minute was drafted on the natural assumption that Mr Ellis, as counsel in R v Jessop CA13/00 19 December 2005 and in Jessop v R [2006] NZSC 14, would be aware of the comment of this Court in Jessop at [113], that the nomination of Judges of the High Court to sit on divisions of this Court is a matter of routine judicial administration.
As to [7](c), Mr Ellis was inquiring of the Registrar about matters of judicial administration. It would have been quite improper for the Registrar to provide the information without (at least) consulting the presiding Judge. We fail to see how it can be a breach of the separation of powers for Glazebrook J to issue a minute relating to matters of judicial administration.
As to [7](d), s 58G(1) of the Judicature Act is in plain terms. It says that the fact that a Judge of the High Court acts as a Judge of this Court “is conclusive evidence of the Judge’s authority to do so”. It has been confirmed by the Supreme Court in Jessop that this provides a definitive answer to any recusal application based on contentions that any assignment of High Court Judges to a division of this Court is unlawful. The Supreme Court said:
[4] Mr Ellis was disposed to renew in this Court the challenge he made to the membership of the division of the Court of Appeal which sat on the rehearing of the appeal. He would contend that the appointment of a High Court Judge to sit on the appeal was unlawful. This contention is hopeless in the face of the statutory authorisation in s 58A of the Judicature Act 1908 for the assignment of High Court Judges to divisions of the Court of Appeal and the statement in s 58G of that Act that the fact that a Judge of the High Court acts as a Judge of the Court of Appeal is conclusive evidence of the Judge’s authority to do so and that no judgment or determination given or made by the Court of Appeal while the Judge so acts may be questioned on the ground that the occasion for the Judge so acting had not arisen or had ceased to exist. It should also be noted that since the judgment below was given the Privy Council has in a devolution appeal from Scotland rejected the view that the use of temporary Judges is contrary to the European Convention requirement for an independent and impartial tribunal. [Kearney v Her Majesty’s Advocate [2006] UKPC D1]
Mr Ellis has not pointed to any reason why this Court should provide information on matters of judicial administration that can have no effect on the validity of the composition of the Court.
More importantly, however, Mr Ellis did not explain to the Court why any of the grounds outlined at [7] should lead to Glazebrook J recusing herself, even if any of Mr Ellis’ concerns had been valid. There is nothing in any of the matters raised by Mr Ellis that could suggest that Glazebrook J may decide Mr Chatha’s appeal otherwise than in accordance with its merits or why any impartial informed observer might think that could be the case.
The application for the recusal of Glazebrook J was accordingly without foundation. (We note that a similar recusal application had been made and declined by this Court in Jessop: see at [117] of that decision.)
Second recusal application: the whole Court
Mr Ellis next sought recusal of the whole Court. This was on the basis that Mr Chatha had applied for Miller J to recuse himself at the hearing of 23 September 2008. Miller J had refused the application and the other members of the Court had agreed with that decision with reasons to follow. In Mr Ellis’ submission, this means that the other members of the Court have been privy to Miller J’s reasons, which have still not been provided to Mr Chatha. Mr Ellis submitted that this is in breach of “natural justice”. He also submitted that Mr Chatha has now been denied the opportunity to ask for the reasons to be reviewed by another panel of the Court.
As noted in R v Chatha (Recusal No 1) at [2], decisions on whether a judge will recuse him or herself are for the individual judge, even on multi-member courts. As a matter of convention, however, recusal applications will be discussed with the other members of the Court who are sitting on the appeal in question. Although ultimately the decision is one for the impugned Judge, concurrence of the other members of the panel in any decision would be sought, given that the other members of the panel have an obvious interest in ensuring a Court free of both actual or presumptive bias. If any of the other Judges had a concern, this would almost inevitably lead to a recusal application being granted.
The recusal application relating to Miller J was made in open Court in the course of the hearing – ie once the panel had been seized of Mr Chatha’s appeal. Where an application is made in the course of the hearing the convention that a recusal application would be discussed with the other members of the panel and that any decision on the recusal application would be by consensus applies with even more force.
Glazebrook and Rodney Hansen JJ on 23 September 2008 agreed with Miller J that there were no grounds for Miller J to recuse himself. The application was accordingly dismissed with reasons to follow. As is clear from the record, there were no formal reasons given at that stage. These reasons were prepared subsequently (in fact by Glazebrook J and not Miller J as she was writing the judgment for Mr Chatha’s appeal).
We do not understand the submission that this has somehow breached Mr Chatha’s rights to “natural justice”. Mr Ellis made full submissions on the recusal application in open Court. The decision to refuse that application was communicated in open Court with reasons to follow. The deliberations of the Judges in the course of coming to their decision and preparing the formal reasons are privileged and never made available to the parties: R v Dean [2005] 2 NZLR 323 at [14] (CA). Parties are only ever entitled to the formal reasons issued by the Court.
Further, there is no mechanism or jurisdiction for a recusal decision of a superior court to be “reviewed” by another panel. Such a decision may be subject to appeal on a stand alone basis (although whether there can be such an appeal before the substantive appeal has been decided may be unclear). Alternatively, the wrongful refusal of a recusal application could be a ground of appeal against any decision on the substantive appeal. In either case, it is the decision itself rather than the formal reasons which would be the subject of the appeal.
Whether, in addition to any right of appeal, there should be a mechanism provided for review of a recusal decision by another panel is a policy matter that would need to be addressed by Parliament and/or in the rules of Court. We refer to a recent paper which discusses issues relating to recusals in the United States by the Brennan Center for Justice: Sample, Pozen and Young Fair Courts: Setting Recusal Standards (2008), although much of the report is inapplicable to jurisdictions where judges are not elected. See also the discussion in Campbell and Lee The Australian Judiciary (2001) at 134 – 5 and 146 – 150.
In any event, it is difficult to see how any failure to provide formal reasons for dismissing a wholly meritless recusal application could provide any grounds for alleging bias or presumptive bias with regard to the merits of Mr Chatha’s substantive appeal. This recusal application is also wholly without merit.
Third recusal application: Rodney Hansen and Miller JJ
The next application was for the recusal of Rodney Hansen and Miller JJ for “systemic reasons”. These included inter alia the short term nature of their assignment to sit on divisions of this Court and the fact that they enjoy different terms and conditions from members of the Permanent Court. Mr Ellis also challenges the “last minute” nature of Miller J’s assignment to replace Ronald Young J on the panel for Mr Chatha’s appeal. In Mr Ellis’ submission, this would have militated against Miller J’s ability to prepare for the hearing and his independence would be particularly compromised if he were assigned only to hear Mr Chatha’s appeal.
This application is totally hopeless in the face of s 58G of the Judicature Act and the Supreme Court’s decision in Jessop, referred to above. Mr Ellis asserts that he was justified in making his application as this Court and the Supreme Court in the Jessop appeals had not been asked to address a submission that s 58G and the associated provisions of the Judicature Act should be read consistently with the Bill of Rights.
Mr Ellis did not explain why this would provide a justification for this Court to depart from the Supreme Court decision in Jessop. Nor was it clear how the plain words of s 58G and the associated Judicature Act provisions could be read down to preclude Rodney Hansen and Miller JJ from sitting on Mr Chatha’s appeal.
As to the submission that the short term nature of Miller J’s assignment to this division of the Court particularly militated against his independence, this is also unsustainable. There is nothing in the statute that puts any lower limit on the duration of any assignment of a High Court Judge to sit on divisions in this Court. Further, Miller J regularly sits on divisions of this Court.
For completeness, we record that, although non-compliance with the Judicature Act provisions cannot, because of s 58G, provide grounds for Mr Chatha to challenge the Court’s decision in Mr Chatha’s appeal, the statutory procedures were followed with regard to Miller J sitting on Mr Chatha’s appeal.
We turn now to the “last minute” nature of Miller J’s assignment to Mr Chatha’s appeal. Late changes to panels to hear appeals will sometimes be inevitable. If that occurs, counsel may need to give fuller oral submissions including on the background to the appeal to compensate for the more limited preparation time. The judges involved would of course, in addition to hearing those fuller submissions, read all necessary material after the hearing.
In this case Mr Ellis accepts that Ronald Young J could not have sat on Mr Chatha’s appeal as certain of his actions were at issue in the appeal: R v Chatha (the substantive judgment) at [38] – [39], [44], [47], [76], [84] – [86], [109] ‑ [112]. In the event, Miller J had more than adequate time to prepare for hearing Mr Chatha’s appeal, given the split hearing and the fact that very little material had been filed on behalf of Mr Chatha before the first day of hearing on 23 September 2008.
Fourth recusal application: Miller J
The final request was for the recusal of Miller J on different grounds from the application made on 23 September 2008. We had some difficulty in understanding the basis of this application. It appeared to be based on the proposition that Miller J, in a decision in the High Court which is currently under appeal (Smith v Attorney-General HC WN CIV 2005-485-1785 9 July 2008), failed to deal with a submission relating to the publication of Regulations. Miller J therefore (or so we apprehended the submission) cannot in this case deal with the same issue, which appeared to be either the non-publication of the reasons for the refusal of the first recusal application or the non-publication of his assignment to sit in this Court.
Either way, we cannot see any similarity between the issues in Smith and the issues raised by Mr Ellis. Even had there been, there is no way that this could impinge on Miller J’s consideration of Mr Chatha’s substantive appeal. Again this application was wholly without merit.
Declaration of inconsistency
Mr Ellis, in the alternative, asked for a declaration of inconsistency with the Bill of Rights. Assuming that such declarations can be made (which has not been decided either in the civil or criminal context: see Belcher v Chief Executive of the Department of Corrections [2007] NZSC 54 at [6]), this is not a case where we would consider such a request for the following reasons:
(a)It was made without warning in the course of the resumed hearing of Mr Chatha’s appeal. We thus did not have the benefit of considered submissions or evidence from the Crown; and
(b)It is unrelated to the substantive grounds of Mr Chatha’s appeal.
In any event, we were not convinced that any of the arguments put forward by Mr Ellis as to inconsistency with the Bill of Rights have validity. We do not wish to say too much about this as it would involve rehearsing some of the arguments in Wikio v The Attorney-General HC WN CIV 2004-485-2198 11 July 2008, which is under appeal. However, we comment that Mr Ellis’ argument before us appeared to confuse the issue of measures necessary to protect the judiciary from improper influence from outside the judiciary (for example security of tenure, which all High Court Judges enjoy) with measures necessary to ensure the independence of appellate bodies from improper “influence” relating to the judge under appeal.
As noted in R v Chatha (Recusal No 1) at [17], the judge under appeal has no personal stake in his or her judgment. Further, in criminal matters the judge’s role with regard to fact-finding is limited. The same applies at appellate level in criminal matters. It is in the fact-finding role that decisions would be most at risk from bias and, as a consequence, perceived bias. Mr Ellis’ argument also fails to address the advantages of current trial judges operating in an appellate role and the fact that this is a common model in (at least) the common law world: R v Chatha (Recusal No 1) at [19].
Mr Ellis asked that the panel refer this issue to a Full Court. There is no basis for this request and it is declined. (Note a similar request was made and declined in the Court of Appeal in Jessop at [121]. See also R v Davis [2007] NZCA 577 at [35].)
Result
All applications are declined.
Postscript
The applications for recusal were all without merit. Responsible counsel would not have advocated the making of such applications and would strongly have advised his or her client against doing so.
In this case, the Court heard extensively from Mr Ellis in support of the applications and has prepared full reasons for refusing them, despite the issue he raised having been settled by the Supreme Court in Jessop.
Such indulgence is unlikely to be extended to any future applications made on the same grounds and Mr Ellis may well be at risk of a personal costs order being made against him if similar applications are made in future cases.
We are uncertain if Mr Chatha is legally aided. If he is, the Registry should provide a copy of this judgment and the judgment in R v Chatha [2008] NZCA 427 to the Legal Services Agency.
Solicitors:
Crown Law Office, Wellington
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