Taito v. R (New Zealand)

Taito v. R (New Zealand) [2002] UKPC 15 (19 March 2002)

Privy Council Appeals Nos. 50 and 59 of 2001

Fa’Afete Taito Appellant

v.

The Queen Respondent

and

James McLeod Bennett and 10 Others Appellants

v.

The Queen Respondent

(Consolidated Appeals)

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 19th March 2002

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Present at the hearing:-

Lord Bingham of Cornhill

Lord Steyn

Lord Hope of Craighead

Lord Hutton

Lord Rodger of Earlsferry

[Delivered by Lord Steyn]

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There are twelve criminal appeals from decisions of the Court of Appeal of New Zealand before the Privy Council. Each appellant had a statutory right, reinforced by a provision of the New Zealand Bill of Rights Act 1990, to appeal without leave from decisions of lower courts to the Court of Appeal. After conviction and sentence each appellant lodged a notice of appeal. None of the appellants could afford to pay for legal representation. They all applied for legal aid. The decisions on legal aid were in effect taken on paper by three judges of the Court of Appeal who conducted no hearings and did not meet to discuss the merits of the cases. The applications were dismissed. Three of the appellants

sought a review of the refusal of legal aid. Those challenges were dismissed without hearings and without reasons. In accordance with the practice then prevailing the cases were listed on various dates for ex parte dismissal by the Court of Appeal.

Having failed to obtain legal aid none of the appellants were represented before the Court of Appeal and they were not present at the proceedings. All had been informed that they had the right to lodge written submissions. Some availed themselves of the right but most did not do so. When no submissions were lodged the Court of Appeal, consisting of three members, routinely dismissed the appeals without examination of the merits of the appeals and without reasons. When written submissions had been lodged, the Court of Appeal dismissed the appeals with brief reasons which were prepared by one of the judges who advised against legal aid or by the review judge. The members of the Court of Appeal disposing of such appeals were called “the delivery judges”: occasionally one or more of the delivery judges had dealt with the refusal of legal aid but it was not considered necessary for the members sitting to have any knowledge of the circumstances of the case. The view then taken was that, if the three members of the Court of Appeal had already concluded that the particular case did not merit legal aid, it had no realistic prospect of success. This is in broad and necessarily imprecise outline the system under which the appellants’ appeals were dismissed by the Court of Appeal. This system has now been replaced by legislation passed by Parliament in 2000 and 2001.

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