The Queen v Chatha

[2008] NZCA 466

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 Crown

Judgment: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

1. 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.

2. Those applications were refused with reasons to be provided later.  We now provide our reasons. 

3. 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.

4. 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

1. 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.

2. 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’…