Hengahan, Mark --- "The changes to final appeals in New Zealand since the creation of the New Zealand Supreme Court" [2011] OtaLawRw 579; (2011) 12 Otago Law Review 579

Last Updated: 7 April 2013

The Changes to Final Appeals in New Zealand Since the

^{Creation of the New Zealand Supreme Court}

Professor Mark Henaghan^*

I Introduction

In 1903, Sir Robert Stout said that:¹

“A great Imperial judicial tribunal sitting in the capital of the Empire, dispensing justice even to the meanest of British subjects in the uttermost parts of the earth, is a great and noble ideal. But if that tribunal is not acquainted with the laws it is called upon to interpret or administer, it may unconsciously become the worker of injustice.”

This statement implies that laws and their interpretation grow out of the context and history of each country. Laws are more than words on paper; they are expressions of a culture’s aspirations, beliefs and values. They can only be truly understood in terms of their history, where they have come from, why they were put in place, and their cultural context such as what we mean when we say “wee”² or “long drop”.³

A view of law that depends on history and culture for its interpretation rests on how that history is portrayed and which particular cultural norms prevail. New Zealand is a small country,⁴ but one with a diverse and changing cultural composition.⁵ Michael King, in the Penguin History of New Zealand, says that “... most New Zealanders, whatever their

* Professor and Dean of Law, University of Otago, Dunedin, New Zealand.

^{Thank you to Jo Murdoch, Jamin Tomlinson, Anthony Wicks and Sam}

^{McChesney, who provided invaluable research assistance for this article.}

^{Thank you to Professor Charles Rickett for his helpful comments on the}

^{draft of this article.}

^{1 Wallis and Others v Solicitor General, Protest of Bench and Bar, April 25,}

^{1903 [1840-1932] NZPCC Appendix 730 at 746. For the social history of}

^{the reform from an Anglo-Antipodean perspective see Richard Cornes}

^{“Appealing to History: the New Zealand Supreme Court Debate” (2004)}

^{24 Legal Studies 210.}

^{2 Word for “small” used commonly, mainly in the South Island of New}

^Zealand.

^{3 New Zealand term for outside toilet or bathroom.}

^{4 A June 2011 estimate by Statistics New Zealand puts the country’s}

^{population at 4,405,300. See Statistics New Zealand “National}

^{Population Estimates: December 2010 Quarter” <http://www.stats.}

^{govt.nz/browse_for_stats/population/estimates_and_projections/}

^{NationalPopulationEstimates_HOTPDec10qtr.aspx>.}

^{5 The 2006 census shows increases in ethnic diversity, numbers of people}

^{born overseas and numbers of languages spoken, and increases in}

^{agnosticism and non-Christian religiousness. This will entail ongoing}

^{changes in New Zealand’s overall cultural norms and perspectives.}

^{See Statistics New Zealand “Quick Stats About Culture and Identity”}

^{(2006) <http://www.stats.govt.nz/Census/2006CensusHomePage/}

^{QuickStats/quickstats-about-a-subject/culture-and-identity.aspx>.}

cultural backgrounds, are good-hearted, practical, commonsensical and tolerant.”⁶ That may well be true on a good day, however, the Springbok tour of 1981 showed quite a different face of New Zealand. Violence, intolerance and hatred prevailed as we disagreed amongst ourselves over the moral permissibility of hosting a rugby tour from a country that practised apartheid.⁷ It is in the way we disagree when the stakes are high that the divisions in our cultural fabric become clear. When there is such vehement conflicting views, one can identify different cultures and different historical perspectives in play. So, if law is totally dependent on culture and history for its interpretation, which culture and which history should it look to?

A major concern of those who opposed the introduction of the Supreme Court,⁸ was that the appointment process would become “politicised”, meaning that the government of the day would appoint judges whose values appeared to align with that government’s agenda.⁹ However, the practice so far in New Zealand has been to only appoint senior Court of Appeal judges to the Supreme Court (with the exception in 2007 of Bill Wilson, who had served on the Court of Appeal for less than a year).

The Chief Justice, Dame Sian Elias, said at the first sitting of the Supreme Court that the “conservative” nature of judicial method would ensure that there would be no “upheavals” in our law with the arrival of the Supreme Court.¹⁰ The essence of the common law judicial method is that “[n]o judgment is isolated from the existing order. A judge must always ensure that a decision fits within it, both to achieve a just solution for the parties, and to maintain the order for future cases ...”¹¹ Room is

6. Michael King The Penguin History of New Zealand (Penguin Books, Auckland, 2003) at 520.
7. Ibid, at 488. See also Trevor Richards Dancing on Our Bones: New Zealand, South Africa, Rugby and Racism (Bridget Williams Books, Wellington,

^1999).

^{8 Those who opposed the introduction of the Supreme Court included}

^{many Māori people, the business sector, and the National, New Zealand}

^{First and ACT Parties of Parliament.}

^{9 Politicised appointments are commonplace in the United States Supreme}

^{Court: See Henry Abraham The Judicial Process: An Introductory Analysis}

^{of the Courts of the United States, England, and France (6th ed, Oxford}

^{University Press, New York, 1993) at 71-74. Political ideology also}

^{motivated many of the appointments to the post-Mason High Court of}

^{Australia, where it was decided that more “capital C Conservatives”}

^{were needed on the bench. See Brice Dickson “Comparing Supreme}

^{Courts” in Brice Dickson (ed) Judicial Activism in Common Law Supreme}

^{Courts (Oxford University Press, New York, 2007) at 3-4. See also Fiona}

^{Wheeler and John Williams “‘Restrained Activism’ in the High Court of}

^{Australia” in Brice Dickson (ed) Judicial Activism in Common Law Supreme}

^{Courts (Oxford University Press, New York, 2007) at 24-44.}

^{10 Sian Elias, Chief Justice of New Zealand “Speech at the Special Sitting of}

^{the New Zealand Supreme Court” (Supreme Court, Wellington, 1 July}

^2004).

^{11 Ibid.}

left for judgments to “stray from established doctrine and precedent” only when “sound reason, laid out for all to assess” is given.¹² A major check on the power of the Supreme Court is that judges can only respond to “actual controversies brought before them by real litigants.”¹³ The Supreme Court of New Zealand has been fully operational for seven years, since 1 July 2004.¹⁴ As at 30 April 2011, 702 leave applications had been lodged,¹⁵ and 177 appeals had been heard by the Supreme Court.¹⁶

The Privy Council, which sat in London, was the final appeal court for New Zealand prior to the establishment of the New Zealand Supreme Court. A comparison between the last six years of the Privy Council and the first six years of the Supreme Court is used to identify changes in final appeals. The analysis illustrates that, since the advent of the Supreme Court, more cases go through to final appeal, the success rate of appeals is higher, and there is a marked increase in criminal case appeals. In the Supreme Court, statutory provisions, as opposed to common law cases, have become the predominant legal focus, and the volume of concurring judgments, as opposed to a single judgment, have increased significantly. The New Zealand Bill of Rights Act 1990 has emerged as the key legal text for interpreting criminal law statutes, which has brought out differences of opinions between the judges of the New Zealand Supreme Court.

II Major Trends in Workload, Success Rates, Areas of Law, and the

^{Legal Core of Appeals}

The statistics for this article are drawn from two time periods. The Privy Council figures are taken from the six year period from 1 January 1999 to 31 December 2004. The Supreme Court figures are based on the six year period from 1 July 2004 to 31 June 2010.

A Workload and accessibility

The fact the New Zealand Supreme Court is located in New Zealand and not in London, as the Privy Council was, has increased accessibility, and therefore workload. Between 1 January 1999 and 31 December 2004, the Privy Council delivered judgment and reasons in 65 cases. In the period from 1 July 2004 to 31 June 2010 the Supreme Court delivered judgment and reasons in 129 cases.

¹² Ibid.

^{13 Ibid.}

^{14 The Court was not able to hear appeals until after 30 June 2004 although}

^{it could take preliminary steps, such as hearing leave applications and}

^{interlocutory matters, before that. From 1 January 2004 to 30 June 2004,}

^{the Court issued 2 leave decisions.}

^{15 Of the 702 leave applications, 338 related to criminal appeals, and 364}

^{related to civil appeals. See Courts of New Zealand “Supreme Court and}

^{Court of Appeal Workload Statistics” (2011) <http://www.courtsofnz.}

^{govt.nz/from/statistics/annual-statistics/annual-statistics-2011/}

^{supreme-court-court-of-appeal-and-high-court-workload-statistics>.}

^{16 Of the 177 appeals heard by the Supreme Court, 57 were criminal appeals}

^{and 120 were civil appeals. Ibid.}

Focusing on appeals heard by the Privy Council and the Supreme Court does not acknowledge all the work carried out by both courts. Applications for leave to appeal form a large part of each court’s workload. The original plan for this research was to compare the number of applications to the Privy Council with the number of applications to the Supreme Court. This was not pursued, as the Privy Council did not have a comparable application process to the Supreme Court. Whereas all appeals to the Supreme Court are by leave,¹⁷ appeals to the Privy Council were as of right for civil claims in excess of $5000, by leave of the Court of Appeal, or by petition for special leave from the Privy Council.¹⁸

Applications for leave to appeal alone make up a very large portion of the Supreme Court’s work. In 2010 the Supreme Court heard 142 applications for leave.¹⁹ By way of contrast, the Privy Council heard only 49 petitions for special leave in the six years from 1999 to 2004.²⁰

B Success rate

There is a higher success rate for appeals in the Supreme Court than in the Privy Council. Since the Supreme Court hears all leave to appeal applications itself, this could create a filtering effect whereby more cases fail at the leave to appeal stage, accounting for at least part of the difference. In the six year time period between 1 January 1999 and

31 December 2004, the Privy Council dismissed 42 appeals (64 per cent), allowed 20 appeals (31 per cent) and allowed three appeals in part (five per cent). Of the three cross-appeals heard by the Board, all were dismissed. Between 1 July 2004 and 31 June 2010, the Supreme Court dismissed 63 appeals (49 per cent), allowed 61 appeals (47 per cent) and allowed five appeals in part (four per cent). Of the nine cross-appeals heard by the Court, four were dismissed, four were allowed and one was allowed in part.

C Areas of law subject to appeal

The graphs in the appendix illustrate the areas of law addressed in appeals before the two courts, and the success rate of appeals by area of law, in terms of both individual areas of law and broader “groupings” of areas.

The most frequent subjects of appeal in the Privy Council between 1999

¹⁷ Supreme Court Act 2003, s 12.

^{18 These were governed by Orders in Council made in Britain in 1910 and}

^{1972. See Peter Spiller, Jeremy Finn and Richard Boast A New Zealand}

^{Legal History (Brookers, Wellington, 1995) at 229.}

^{19 This figure is from a tally of the case summaries on the Courts of New}

^{Zealand website for 2007 and 2008 (some of the appeals lodged in 2007}

^{were granted in 2008). Courts of New Zealand, “Supreme Court Case}

^{Summaries” (2007) <http://www.courtsofnz.govt.nz/about/supreme/}

^{case-summaries>.}

^{20 Privy Council Office, “Appeal Statistics” (1999-2004) <http://webarchive.}

^{nationalarchives.gov.uk/20101103140224/http://www.privy-council.}

^{org.uk/output/Page34.asp>.}

and 2004 were tax law (10), contract law (10) and tort law (nine),²¹ while in the Supreme Court criminal procedure (22) was by far the most frequent subject of appeal.²² The private law grouping is the largest for each court (37 cases in the Privy Council, 58 cases in the Supreme Court). Private law cases accounted for 57 per cent of the Privy Council’s workload and

^{45 per cent of the Supreme Court’s workload.23}

The most marked change in the type of appeal heard by New Zealand’s highest appellate court since the advent of the Supreme Court has been the increase in the criminal grouping,²⁴ from three in the Privy Council to 42 in the Supreme Court.²⁵ The majority of appeals in the criminal procedure area (68 per cent) and the criminal grouping (62 per cent) have been allowed or allowed in part.

The opening up of the criminal justice system to second tier appellate scrutiny has provided a fertile ground for criminal appeals. A key element of this development is the New Zealand Bill of Rights Act 1990, which provides a range of rights against which statutory provisions can be interpreted and tested. Members of the Supreme Court have developed their own distinct philosophies in relation to the Act.²⁶ By way of comparison, there were far fewer appeals in criminal matters to the Privy Council and in those that were heard, the New Zealand Bill of Rights Act 1990 was not prominent in the opinions delivered.

D The legal core of appeals

Eighty of the 129 appeals (62 per cent) to the Supreme Court and 31 of the 65 appeals (48 per cent) to the Privy Council in the periods examined focused primarily on the interpretation of a statutory provision.²⁷

This difference is probably explained by the Privy Council’s higher predominance of private law cases, in which the relevant law is more commonly found in case law.

Arguments over miscarriages of justice and unfair trials are much more prominent in the Supreme Court during the periods studied. There were no appeals focusing on miscarriage of justice or unfair trials in the Privy Council from 1 January 1999 to 31 December 2004.²⁸ In the first six

²¹ See appendix figure 1.

^{22 See appendix figure 2.}

^{23 See appendix figures 3 and 4.}

^{24 This grouping includes all those cases categorised under the “criminal”,}

^{“criminal procedure” and “sentencing” areas in appendix figures 1 and}

^{2, as well as some of those categorised as “evidence” or “Bill of Rights”.}

^{The point of these “groupings” is to help communicate the “big picture”,}

^{which can be obscured by a multiplicity of categories.}

^{25 See appendix figures 3 and 4.}

^{26 See the section “The New Zealand Bill of Rights Act 1990” below.}

^{27 See appendix figures 5 and 6.}

^{28 See appendix figure 5. There were subsequently three miscarriage of}

^{justice cases Howse v R [2005] UKPC 30; Bain v R [2007] UKPC 33; and}

^{Barlow v R [2009] UKPC 30.}

years of the Supreme Court there were 10 such appeals.²⁹ This is clearly a result of the larger number of criminal appeals to the Supreme Court.

There have been fewer Supreme Court cases where the primary issue is the application of a settled precedent to the facts (four in the Supreme Court compared to eight in the Privy Council).³⁰ There have been more appeals involving conflicting precedents (eight)³¹ and gaps in the law (nine)³² in the Supreme Court, compared with the Privy Council, where there were only two³³ and five³⁴ respectively.³⁵ This trend accords with the role of the Supreme Court as a court focussed on developing the law, rather than a court concerned chiefly with error correction. The relatively small number of cases, and the fact that categorising cases in this way is often difficult and contestable, means that this trend is currently uncertain.

²⁹ See appendix figure 6. These were T v R [2006] NZSC 3; C v Complaints Assessment Committee [2006] NZSC 48; Jiang v R [2007] NZSC 51; Rajamani v R [2007] NZSC 68; Cumming v R [2008] NZSC 39; Jarden v R [2008] NZSC

^{69; Williams v R [2009] NZSC 41; Stewart v R [2009] NZSC 53; R v Gwaze}

^{[2010] NZSC 52; and Siemer v Solicitor-General [2010] NZSC 54.}

^{30 See appendix figures 5 and 6. In the Privy Council: Phipps v Royal}

^{Australasian College of Surgeons [2000] 2 NZLR 513 (allowed in part);}

^{Fifield v W & R Jack Ltd [2000] 3 NZLR 129 (dismissed); Brazier v Bramwell}

^{Scaffolding (Dunedin) Ltd PC7/2001, 18 December 2001 (dismissed);}

^{Hamilton v Papakura District Council [2002] UKPC 9 (dismissed 3:2);}

^{Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 1) [2002] UKPC}

^{50 (allowed); R v Attorney-General of England and Wales [2003] UKPC 22}

^{(dismissed 4:1); B v Attorney-General [2003] UKPC 61 (allowed in part);}

^{and Jones v Attorney-General [2003] UKPC 48 (allowed). In the Supreme}

^{Court: Taylor v Jones [2006] NZSC 113 (allowed); Skelton v Jones [2006]}

^{NZSC 113 (dismissed); Maruha Corporation v Amaltal Corporation Ltd [2007]}

^{NZSC 40 (allowed); and Huang v Minister of Immigration [2009] NZSC 77}

^(dismissed).

^{31 Sungsuwan v The Queen [2005] NZSC 57; Eastern Services Ltd v No 68 Ltd}

^{[2006] NZSC 42; Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC}

^{26; Aotearoa International Ltd v Paper Reclaim Ltd [2007] NZSC 26; Royal}

^{New Zealand Foundation of the Blind v Auckland City Council [2007] NZSC}

^{61; Owen v R [2007] NZSC 102; Z v Dental Complaints Assessment Committee}

^{[2008] NZSC 55; and Nielsen v Dysart Timbers Ltd [2009] NZSC 43.}

^{32 Sipa v R [2006] NZSC 52; Chirnside v Fay [2006] NZSC 68; Larsen v Rick Dees}

^{Ltd [2007] NZSC 39; Taunoa v Attorney-General [2007] NZSC 70; Rogers v}

^{Television New Zealand Ltd [2007] NZSC 91; Thom v Davys Burton [2008]}

^{NZSC 65; New Zealand Recreational Fishing Council Inc v Sanford Ltd [2009]}

^{NZSC 54; APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC}

^{93; and Television New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC}

^93.

^{33 W v W PC47/1998, 19 January 1999; and J v Bell PC52/1998, 19 January}

^1999.

^{34 Harley v McDonald PC9/2000, 10 April 2001; Glasgow Harley v McDonald}

^{PC50/2000, 10 April 2001; A v Bottrill [2002] UKPC 44; Pratt Contractors}

^{Ltd v Transit New Zealand [2003] UKPC 83; and Jennings v Buchanan [2004]}

^{UKPC 36.}

^{35 See appendix figures 5 and 6.}

^{III The Emergence of Concurring Judgments}

Seven Privy Council decisions (11 per cent) and 20 Supreme Court decisions (16 per cent) contained dissenting judgments. While the Supreme Court does not have a significantly higher frequency of dissenting judgments, a much lower proportion of Supreme Court judgments are delivered as a single judgment. A total of 57 Privy Council decisions (88 per cent) were delivered as one judgment and only one contained a separate concurring judgment, in which Lord Hutton and Lord Millett dissented on principle but agreed with the result.³⁶ As Justice Ruth Bader Ginsberg notes, “[t]he formal justification for this ... was that the Council functioned (in theory) as an adviser to the Crown and therefore should render its advice with one voice.”³⁷ In contrast, the Supreme Court delivered 78 decisions as one judgment (60 per cent), and 44 decisions contained separate concurring judgments (34 per cent).

These concurring judgments fall into three categories (which are not mutually exclusive). The first is where the judge agrees with the outcome proposed by the majority, but disagrees on a legal principle or on the proper method to be used to reach that outcome.³⁸ The second is where the judge agrees with the outcome and approach of the majority, but delivers a separate judgment in order to clarify a particular point that he or she feels the majority has neglected in their judgment.³⁹ The third is where the judge, in a case in which one or more judges have dissented, uses their own judgment to critique the reasoning of the dissenter(s).⁴⁰

One decision containing a range of concurring judgments increases the possibility of further arguments about what the decision actually means. As Aharon Barak has pointed out, “[e]very concurring opinion weakens the force of the judgment. The persuasive power of the judgment, its

³⁶ A v Bottrill [2002] UKPC 44.

^{37 Ruth Bader Ginsberg “Remarks on Writing Separately” (1990) 65(133)}

^{Wash L Rev at 135. See also Karl ZoBell “Division of Opinion in the}

^{Supreme Court: A History of Judicial Disintegration” (1959) 44 Cornell LQ}

^{186 at 188. As Blom-Cooper and Drewry note, however, there were “policy}

^{considerations in the heyday of Imperial power which dictated a single}

^{clear pronouncement for subject peoples not attuned to the institutions}

^{and conventions of their Imperial masters”. Louis Blom-Cooper and Gavin}

^{Drewry Final Appeal: A Study of the House of Lords in Its Judicial Capacity}

^{(Clarendon Press, Oxford, 1972) at 82.}

^{38 This is the most common type of concurring judgment. See generally}

^{Elias CJ’s judgment in Hansen v R [2007] NZSC 7.}

^{39 This type of concurring judgment is also common. Tipping J’s judgment}

^{in Larsen v Rick Dees Ltd [2007] NZSC 39 is a typical example.}

^{40 This is the least common type of concurring judgment. See Elias CJ’s}

^{judgment in Buddle v R [2009] NZSC 117 (where Blanchard J dissented),}

^{and the judgments of Henry and Gault JJ in Morgan v Superintendent}

^{Rimutaka Prison [2005] NZSC 26 (where Elias CJ dissented). In Z v Dental}

^{Complaints Assessment Committee [2008] NZSC 55 Anderson J delivered a}

^{dissenting judgment that primarily targeted the reasoning of Elias CJ’s}

^{dissenting judgment.}

force, and its ability to withstand criticism depend on consistency of the opinions.”⁴¹ Barak allows an exception when the problem is “new” and “the court is taking the first step of a long journey. The direction is not yet clear.”⁴² In these cases, it is “appropriate and desirable to express different and diverse opinions that will help shape the future law.”⁴³ It is generally accepted that appellate court judges create new law.⁴⁴ However, it is not helpful if this new law is unclear because final appeal court judges cannot agree on the details. The problem with concurring judgments is that, while the outcome of the appeal is clear, the law itself is blurred. Vector Gas Ltd v Bay of Plenty Energy Ltd (Vector Gas)⁴⁵ is analysed as an example of the confusion created by concurring judgments. Matenga v R,⁴⁶ (a decision given as an unanimous single judgment which provides clear direction as to the law) is discussed as a contrast.

Vector Gas – the Confusing Concurring Judgment

Vector Gas was about the meaning of a commercial contract. The phrase in dispute concerned the price for the supply of gas. The words used in the offer were “$6.50 per gigajoule ... for each gigajoule supplied”, and this offer was accepted by the other side. The issue was whether or not this price included the transmission costs of the gas or not. If so, $1.4m was owed; if not, $4.6m was owed. Harrison J in the High Court⁴⁷ held that the price did not include transmission costs because the agreement was an interim one pending court action and to ensure ongoing performance of an agreement that had not included transmission costs in the price. Harrison J held that if the transmission costs were included in the price, then it would be “well below market price” and, therefore, an experienced commercial company such as Bay of Plenty Energy Ltd would not have expected this to be the case.⁴⁸

The Court of Appeal⁴⁹ focused on a letter between the two parties’ solicitors. The Court held this letter was a “wholly new proposal” and there was no need to look at any previous agreements or negotiations when the price did not include transmission costs.⁵⁰ The lack of business reality about the agreement was accepted by the Court of Appeal on the basis that Vector Gas Ltd sought to preserve its reputation, and thereby had agreed to a lower price in the interim agreement.

41. Aharon Barak The Judge in a Democracy (Princeton University Press, Princeton, 2006) at 212.

^{42 Ibid.}

^{43 Ibid.}

^{44 Michael Kirby Judicial Activism: Authority, Principle and Policy in the Judicial}

^{Method (Sweet & Maxwell, London, 2004) at 29.}

^{45 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5.}

^{46 Matenga v R [2009] NZSC 18.}

^{47 Bay of Plenty Electricity Ltd v Vector Gas Ltd (HC Wellington CIV-2004-485-}

^{2287, 3 August 2007) at [130].}

^{48 Ibid, at [128].}

^{49 Bay of Plenty Electricity Ltd v Vector Gas Ltd [2008] NZCA 338.}

^{50 Ibid, at [91].}

This case was a prime opportunity for the Supreme Court to give clear guidance as to how commercial contracts should be interpreted. The Supreme Court were unanimous that the price in the contract did not include transmission costs. There were two points that all of the judges agreed upon. They agreed that, based on the correspondence between the parties, there was a “common assumption”⁵¹ that the price was not inclusive of transmission costs.⁵² The crucial letter, which the Supreme Court held established this common assumption, was sent by Vector Gas Ltd to Bay of Plenty Energy Ltd on 28 September, offering to supply gas (following termination of the 1995 agreement) at $6.50 per gigajoule “with transportation and metering passed through at cost.”⁵³ The other common thread was that the Supreme Court judges were unanimous that to interpret the contract price as including transmission costs did not make commercial sense.⁵⁴ Given these points of commonality, it was possible for the Supreme Court judges to write a unanimous judgment which provided agreed reasons for the conclusion.

There are a range of different cases,⁵⁵ and theories,⁵⁶ about the best way to interpret a contract. As Professor David McLauchlan has said “the wide diversity of opinion concerning core principles of the law of contract interpretation that one finds in the modern case law as well as the academic literature is truly remarkable.”⁵⁷ The Supreme Court did not have an enviable task making sense of this material. At the very least they could have worked together to form a unified approach that would provide guidance for the lower courts, the profession and the

⁵¹ Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5 at [142].

^{52 Ibid, at [73].}

^{53 Ibid, at [86].}

^{54 Ibid. Each of the judges’ comments about “commercial commonsense”}

^{are set out below:}

^{“... the business commonsense of the matter leads to the conclusion that}

^{“$6.50 per GJ” was not intended to cover anything other than the price}

^{of the gas itself.” (Blanchard J at [11]);}

^{“The construction proposed by BoPE would be wholly inconsistent with}

^{the commercial context” (Tipping J at [46]);}

^{“For NGC to have agreed to [BoPE’s] terms would be so extraordinary}

^{that it would flout business commonsense” (McGrath J at [82]);}

^{“This was more than a bad bargain for NGC [the gas company]. It would}

^{have defied commercial sense ...” (Wilson J at [137]).}

^{55 Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101; Investors}

^{Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR}

^{896 (HL); Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 98;}

^{Prenn v Simmonds [1971] 1 WLR 1381 (HL); Bank of Credit and Commerce}

^{International SA v Ali [2001] UKHL 8; [2002] 1 AC 251; Antaios Compania Naviera SA v Salen}

^{Rederierna AB, The Antaios [1985] AC 191; East v Pantiles (Plant Hire) Ltd}

^{(1981) 263 EG 61; River Wear Commissioners v Adamson (1877) 2 App Cas}

^{743; and Inglis v Buttery and Co (1878) 3 App Cas 552.}

^{56 See David McLauchlan “Contract Interpretation: What Is It About?” (2009)}

^{[2009] SydLawRw 1; 31 Sydney L Rev 5.}

^{57 David McLauchlan “Contract Interpretation in the Supreme Court – Easy}

^{Case, Hard Law?” (2010) 16 NZBLQ 229 at 230.}

^{business community.}

Instead, the concurring judgments meant that the legal basis for deciding the cases varied considerably among the judges. Blanchard J (with whom Gault J agreed) and Wilson J decided primarily on what they saw as the most commercially sensible interpretation. Tipping J decided primarily on the basis of the evidence of what he believed objectively the parties had agreed to. McGrath J decided primarily on the basis of estoppel by convention. Both Tipping and Wilson JJ accepted estoppel by convention as an alternative basis for their decisions.

The full implications and difficulties created by the differences between the judges are explained by David McLauchlan in his excellent article on the case. McLauchlan concludes that the case has left the law of interpretation of contracts in “a state of disarray.”⁵⁸ There is no perfect answer to what should be taken into account in interpreting a contract beyond the actual words used. Even when pre-contract negotiations are looked at, as was the case here, they do not necessarily provide a clear cut solution.

The Court of Appeal viewed the same pre-contract exchanges that the Supreme Court later drew a common assumption from, and interpreted them quite differently. The Court of Appeal took the view that Bay of Plenty Energy Ltd’s reply to Vector Gas Ltd’s offer on 28 September was a rejection of Vector Gas Ltd’s offer, and therefore there was no common assumption to build on.

McGrath J best explained the Supreme Court’s dismissal of the Court of Appeal’s view thus:⁵⁹

BoPE did reject an offer to settle the termination dispute, because it considered the price it would have to pay under the proposed new contract to be too high. It does not, however, follow that BoPE would consider the same price to be too high under an interim supply agreement.

However, it does not follow that Bay of Plenty Energy Ltd would not have considered the price to be too high merely because this was an interim agreement, rather than a final agreement.

The tension is between the quest for perfect justice, by trying to find out what the parties really intended, and the costs entailed. There is no guarantee of a certain answer. The pragmatic approach is to focus on the words used in the contract, and their logical interpretation, based on the actual language used.⁶⁰ The direction of the case law has been to look

⁵⁸ Ibid, at 265.

^{59 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5 at [92].}

^{60 As Professor Smillie notes, “...it is hardly surprising that some have been}

^{moved to suggest that a small number of decisions that fall short of the}

^{ideal of perfect justice may be a price worth paying for the virtues of}

^{certainty and efficiency. See John Smillie “Is Security of Contract Worth}

^{Pursuing? – Reflections on the Function of Contract Law” (2000) 16 Journal}

^{of Contract Law 148 at 152.}

at the surrounding context of the contract.⁶¹ In Vector Gas the Supreme Court needed to provide clear, unanimous guidance on when this can be done, what can be taken into account, and how it can be used. The Court effectively did this by looking at the pre-contract negotiations to find a common understanding between the parties. A single judgment that applied this approach would have served the New Zealand law of contract much better.

IV Matenga v R – The Advantage of the Single Unanimous Judgment

In Matenga v R,⁶² the Supreme Court was faced with the interpretation of the proviso to s 385(1) of the Crimes Act 1961, which deals with miscarriages of justice. The issue was how to apply the proviso to s

385(1)(c) of the Crimes Act 1961, which states that an appeal “must” be allowed if “on any ground there was a miscarriage of justice”. The proviso states that the Court has the power to dismiss an appeal “if it considers that no substantial miscarriage of justice has actually occurred”. The facts concerned two charges of sexual violation. A doctor ’s evidence was allowed at trial as to whether the complaint’s vaginal ripping was likely to have resulted from consensual activity. The doctor said in evidence that ripping of the type seen was “extremely rare” or “relatively uncommon” in consensual intercourse, though conceding that she could not say “it definitely was not consensual”. This evidence was held to be inadmissible on appeal because there was no secure clinical basis for it. The Court of Appeal held that the admission of this evidence created a “risk” of a miscarriage of justice, but that no substantial miscarriage of justice had occurred because the Crown case was “overwhelming” and they were “in no doubt that the jury would still have found an absence of consent, absent the inadmissible evidence”.⁶³

The Supreme Court gave its reasons for disagreeing with the Court of Appeal in a unanimous judgment delivered by Blanchard J.⁶⁴ The Court adopted the approach of the High Court of Australia in R v Weiss,⁶⁵ with two qualifications. First, the High Court in R v Weiss had held that “anything” which is a departure from applicable rules of evidence or procedure is a miscarriage of justice. The Supreme Court disagreed, noting “few trials are perfect in all respects”.⁶⁶ In order to meet the threshold for a miscarriage of justice an irregularity must be capable of affecting the result of a trial because “[a] miscarriage is more than an inconsequential or immaterial mistake or irregularity”.⁶⁷ The second major difference from the approach in R v Weiss is the relevance of the

61. See McLauchlan “Contract Interpretation in the Supreme Court”, above n 57.

^{62 Matenga v R [2009] NZSC 18.}

^{63 Matenga v R [2008] NZCA 260 at [42]- [43].}

^{64 Matenga v R [2009] NZSC 18.}

^{65 R v Weiss [2005] HCA 81; (2005) 224 CLR 300.}

^{66 Matenga v R [2009] NZSC 18 at [30].}

^{67 Ibid.}

jury returning a guilty verdict. The High Court of Australia considered such a verdict to be a relevant consideration in determining whether or not the proviso should be applied.⁶⁸ The Supreme Court held that because the original jury verdict was tainted by the miscarriage, the appeal court must form its own view on whether a finding of guilt was the only “reasonably possible verdict” notwithstanding the miscarriage.⁶⁹

According to Blanchard J, it is appellate courts that are the “ultimate arbiters of guilt in circumstances in which the proviso applies”.⁷⁰ Because it is an exception to the general rule that juries decide guilt rather than judges, the proviso should only be applied when “there is no room for doubt about the guilt of the appellant”.⁷¹ In determining the inevitability, or otherwise, of a verdict by the jury, the court must be aware of the disadvantage of not seeing or hearing the witnesses, and therefore will “often be unable to feel sure of the appellant’s guilt”.⁷² Further, before applying the proviso the court must be satisfied that the trial was fair in terms of s 25(a) of the New Zealand Bill of Rights Act 1990.⁷³

The trial in Matenga v R depended in large part on the credibility of the complainant and the accused. The only physical evidence was the evidence of the doctor that it was “extremely rare” for the injuries of the type suffered by the complainant to result from consensual intercourse. Once this evidence was ruled inadmissible, the Supreme Court said “[i]t is not enough that a jury could reasonably have convicted on the basis of the admissible evidence”.⁷⁴ Rather, the Crown needed to satisfy the court that the guilty verdict was “not only reasonable but inevitable”, a high test not satisfied on the facts.⁷⁵

A single judgment does not necessarily solve all problems. The word “inevitable” is itself open to interpretation. The Supreme Court offered further clarifications of the test, referring to there being “no room for doubt about the guilt of the appellant”,⁷⁶ the court “feel[ing] sure of the guilt of the [appellant]”,⁷⁷ and of a guilty verdict being “the only reasonably possible verdict, on the admissible evidence”.⁷⁸ This gives a clear sense of how the proviso is to be applied by a court.⁷⁹

⁶⁸ R v Weiss [2005] HCA 81; (2005) 224 CLR 300 at [43].

^{69 Matenga v R [2009] NZSC 18 at [33].}

^{70 Ibid, at [29].}

^{71 Ibid.}

^{72 Ibid, at [32].}

^{73 Ibid, at [31].}

^{74 Ibid, at [35].}

^{75 Ibid.}

^{76 Ibid, at [29].}

^{77 Ibid, at [31].}

^{78 Ibid.}

^{79 The Supreme Court also cleared up several of the ambiguities surrounding}

^{s 385(1) of the New Zealand Bill of Rights Act 1990. In particular, the}

^{relationship between the proviso and the four grounds of appeal listed}

^{at paragraphs (a)-(d) was settled, building on and clarifying previous}

^{cases such as Sungsuwan v The Queen [2005] NZSC 57 and Owen v R [2007]}

The Supreme Court’s reasoning in giving concurring judgments in some cases, and a single unanimous judgment in others, is not immediately apparent. From the viewpoint of the practising lawyer advising a client, a unanimous judgment with a clear sense of direction will generally be preferable. Leaving the law open, with multiple possibilities for the future, is nonetheless good for advocates, who can craft arguments around them. Concurring judgments leave room for development of the law, and the subtle differences between each judges’ view provides good material for academics to debate and analyse. However, the law will develop anyway, as new situations arise and challenge the boundaries of existing principles. The most helpful function a final appellate court can perform for society is to clarify the current state of the law on the issues that come before it.⁸⁰ This approach requires significant collegiality amongst judges in order to find common ground, as opposed to expressing their individuality.

V The New Zealand Bill of Rights Act 1990

While the Privy Council was New Zealand’s highest court for 13 years after the New Zealand Bill of Rights Act 1990’s passage, the Privy Council’s discussion of the Act was minimal.⁸¹ In particular, the Privy Council never discussed the key methodological sections 4-6, which were unique at the time. It may of course simply have been that cases were not routinely argued in terms of the Act.

The predominance of criminal procedure cases in the Supreme Court⁸² has meant that New Zealand Bill of Rights Act 1990 arguments have become central.⁸³ This centrality sheds light on differences of judicial opinion in the Supreme Court as to how the rights in the New Zealand Bill of Rights Act 1990 should be applied and to what extent. This is not

NZSC 102. It also clarified the relationship between s 385(1) and s 25(a) of the New Zealand Bill of Rights Act 1990 (right to a fair trial), addressed in the Privy Council case Howse v R [2005] UKPC 30 and the Supreme Court cases Condon v R [2006] NZSC 62; Rajamani v R [2007] NZSC 23; Wong v R [2008] NZSC 5; and Stewart v R [2009] NZSC 53.

80. See Ginsberg, above n 37. See also Bertha Wilson “Decision-Making in the Supreme Court” (1986) 36 University of Toronto Law Journal 227 at

^235-238.

^{81 This is partly due to the lack of criminal appeals to go before the Board.}

^{However, even in cases like P F Sugrue Ltd v Attorney-General [2005] UKPC}

^{44, which concerned unreasonable search and seizure (affirmed by s 21}

^{of the Bill of Rights Act), the Act was given only cursory treatment.}

^{82 There were 22 criminal procedure cases in the Supreme Court during the}

^{period 1 July 2004 to 31 June 2010.}

^{83 However, the causal relationship is unclear. It could be that an increase}

^{in criminal appeals has increased the Supreme Court’s focus on the New}

^{Zealand Bill of Rights Act 1990, or it could be that the Supreme Court’s}

^{greater willingness to entertain arguments framed in terms of the Act}

^{has increased the number of criminal appeals granted leave. The reality}

^{is probably somewhere in the middle.}

uncommon in Supreme Courts around the world.⁸⁴

Categorisation of judges as “activist” or “conservative” depends entirely on how one thinks law should be interpreted and applied.⁸⁵

Hence, to label judges “conservative” or “activist” merely invokes a clash of subjective perspectives, which depends entirely on ones’ own outlook. After all, as Geoffrey Robertson says of the High Court of Australia, “all judges are activists, especially those of your High Court brethren who so actively deploy strict construction to reach conservative conclusions”.⁸⁶

This paper avoids these labels and focuses instead on the reasons given by Supreme Court judges for their differing interpretations.

A The meaning of “cruel, degrading or disproportionately severe treatment or punishment” in s 9 of the New Zealand Bill of Rights Act 1990.

The Behaviour Modification/Management Regime (BMR), which operated at Auckland Prison, was the factual subject of the Supreme Court appeal in Taunoa v Attorney-General.⁸⁷ The issue was whether the BMR to which Mr Taunoa, Mr Robinson and Mr Kidman were subjected was “cruel, degrading, or disproportionately severe treatment or punishment” in terms of s 9 of the New Zealand Bill of Rights Act

1990.⁸⁸ A fourth appellant, Mr Tofts, joined Taunoa, Robinson and Kidman in their appeal against the quantum of damages awarded by the Court of Appeal.⁸⁹ In the Supreme Court Elias CJ held that there was no requirement to establish intent to inflict suffering on the victim.⁹⁰

The “conscious use of inhumane treatment” may constitute a breach of s 9 if it objectively amounts to a “denial of humanity” or “inhuman

⁸⁴ Dickson, above n 9, at 13.

^{85 Bruce Harris “Judicial Activism and New Zealand’s Appellate Courts”}

^{in Brice Dickson (ed) Judicial Activism in Common Law Supreme Courts}

^{(Oxford University Press, New York, 2007) at 273. See also Wheeler and}

^{Williams, above n 9, at 20.}

^{86 Geoffrey Robertson “Michael Kirby – An Appreciation” in Ian Freckleton}

^{and Hugh Selby (eds) Appealing to the Future: Michael Kirby and His Legacy}

^{(Thomson Reuters, Sydney, 2009) at xiv.}

^{87 Taunoa v Attorney-General [2007] NZSC 70.}

^{88 The High Court and Court of Appeal had held that the treatment of the}

^{prisoners had breached s 23(5) of the New Zealand Bill of Rights Act}

^{1990 (“Everyone deprived of liberty shall be treated with humanity and}

^{with respect for the inherent dignity of the person”). This was not cross-}

^{appealed by the Attorney-General; however, the Attorney-General did}

^{appeal against the damages awarded. The Attorney-General argued that}

^{damages were unnecessary, and alternatively that the damages awarded}

^{in the lower courts were too high.}

^{89 The Court of Appeal had found that the treatment of Mr Tofts breached}

^{s 9 of the New Zealand Bill of Rights Act 1990, as his mental disorder}

^{constituted an aggravating factor. This finding, and the lower courts’}

^{award of $25,000 damages to Mr Tofts, were not challenged by the}

^{Attorney-General.}

^{90 Taunoa v Attorney-General [2007] NZSC 70 at [69].}

treatment”.⁹¹ Actual harm to the individual is not required, according to Elias CJ, since a breach of the right is wrong in itself. A requirement to demonstrate harm would penalise those of greater fortitude.⁹²

International precedents from jurisdictions with provisions similar to s 9 of the New Zealand Bill of Rights Act 1990 were used by Elias CJ as the litmus test of whether or not the BMR was in breach of the Act. These precedents looked into solitary/close confinement,⁹³ lack of opportunity to exercise,⁹⁴ cell conditions,⁹⁵ and oppressive or degrading management.⁹⁶ On the basis of these cases Elias CJ concluded that when considered cumulatively the BMR was a breach of s 9 of the New Zealand Bill of Rights Act 1990 because it amounted to a “denial of humanity”.⁹⁷

The prisoners were kept in solitary confinement for 22-23 hours a day with inadequate ventilation and natural light,⁹⁸ they were deprived of other minimum standards such as exercise, hobbies, core programmes and other distractions,⁹⁹ and they were subjected to humiliations including routine strip-searching, control of toilet paper, restrictions on laundry and other hygienic matters, a lack of screening for toilets, derogatory remarks, and control and restraint procedures followed by deprivation of clothing.¹⁰⁰

By way of contrast, Tipping J claimed that “the international jurisprudence is somewhat elusive and inconsistent”,¹⁰¹ and considered that it did not support the finding that s 9 of the New Zealand Bill of

⁹¹ Ibid, at [69], [79]. Elias CJ compared s 9 with s 23(5) and considered that the conscious use of inhumane treatment on its own is sufficient to constitute a breach of the latter.

^{92 Ibid, at [94].}

^{93 Office of the High Commissioner for Human Rights “General Comment}

^{No 20” (1992) <http://www.unhchr.ch/tbs/doc.nsf/0/6924291970754}

^{969c12563ed004c8ae5?Opendocument>. See also Hutto v Finney 437 US}

^{678; Thomas v Baptiste [1999] UKPC 13; [2000] 2 AC 1; and Keenan v United Kingdom (2001)}

^{[2001] ECHR 242; 33 EHRR 38.}

^{94 Higgs v Minister of National Security [2000] 2 AC 228; Thomas; Spain}

^{v Procunier [1979] USCA9 795; 600 F 2d 189; and Office of the United Nations High}

^{Commissioner for Human Rights “Standard Minimum Rules for the}

^{Treatment of Prisoners” (1955) <http://www2.ohchr.org/english/law/}

^{treatmentprisoners.htm>.}

^{95 Hutto v Finney [1979] USSC 10; 437 US 678; Spain v Procunier [1979] USCA9 795; 600 F 2d 189; Battle v Anderson}

^{[1977] USCA10 209; 564 F 2d 388 (1977); Pugh v Locke 406 F Supp 318 (1976); and Holt v Sarver}

^{[1971] USCA8 196; 442 F 2d 304 (1971).}

^{96 Estelle v Gamble [1976] USSC 205; 429 US 97; Van der Ven v Netherlands [2003] ECHR 62; (2004) 38 EHRR 46;}

^{Valasinas v Lithuania (App no 44558/98, 24 July 2001); McFeeley v UK}

^{(1980) 20 DR 44 (E Comm HR); Campos v Peru (UNHRC, 577/1994); and}

^{Hoptowit v Ray [1982] USCA9 1366; 682 F 2d 1237 (1982).}

^{97 Taunoa v Attorney-General [2007] NZSC 70 at [95]- [111].}

^{98 Ibid, at [96].}

^{99 Ibid.}

^{100 Ibid, at [100].}

^{101 Ibid, at [278].}

Rights Act 1990 had been breached.¹⁰² Tipping J argued that the focus should be on the wording of s 9 itself, particularly since the term “disproportionately severe” is unique to New Zealand.¹⁰³ Tipping J considered that the inclusion of “torture” alongside “cruel, degrading, or disproportionately severe treatment or punishment” in s 9 indicated that the test for the latter should be pitched high (though not as high as for torture).¹⁰⁴ The impact on the victim must be greater than under a breach of s 23(5) of the New Zealand Bill of Rights Act 1990 which requires treatment with humanity and dignity.¹⁰⁵ Intent by the prison authorities and the infliction of harm on the individual were not seen as strictly necessary by Tipping J, but their absence would be a “highly material factor”.¹⁰⁶ Where both intent and harm are missing, Tipping J considered that a breach of s 9 is unlikely, though it could not be ruled out.¹⁰⁷ While Blanchard J proposed that “treatment or punishment is degrading if it gravely humiliates and debases the person subjected to it, whether or not that is its purpose”,¹⁰⁸ McGrath and Henry JJ agreed with Tipping J that intention to cause suffering will be highly material in assessing whether a breach of s 9 has occurred.¹⁰⁹ Blanchard J considered that the sheer length of time Taunoa had spent on BMR (a total of two sets of eight months, spread over two separate periods¹¹⁰) elevated his case to a breach of s 9 of the New Zealand Bill of Rights Act 1990,¹¹¹ but that a breach of s 9 in relation to Robinson and Kidman had not been made out.¹¹² While McGrath J agreed that the length of time on BMR could be a relevant factor,¹¹³ he nonetheless disagreed that Taunoa’s case had been sufficiently severe,¹¹⁴ and held that there had been no breach of s 9. Henry J simply agreed with the approach and outcome proposed by Tipping J without further comment.¹¹⁵

Concepts such as “cruel, degrading or disproportionately severe treatment or punishment” are inevitably dependent on the values and perceptions that each judge brings to them. It is legitimate (as Elias CJ did) to look at international precedents where the concepts are used to

¹⁰² Ibid, at [279].

^{103 Ibid.}

^{104 Ibid, at [280].}

^{105 Ibid, at [277].}

^{106 Ibid, at [283], [291], [295]. Elias CJ plays down the centrality of these}

^{factors at [69], [94].}

^{107 Ibid, at [295].}

^{108 Ibid, at [171].}

^{109 Ibid, at [359], [383].}

^{110 Ibid, at [130].}

^{111 Ibid, at [216].}

^{112 Ibid, at [212].}

^{113 Ibid, at [355].}

^{114 McGrath J stated: “...although the treatment continued for a very long}

^{time, it involved none of the wider elements of brutality or added cruelty}

^{by prison officials that would certainly, in the New Zealand context,}

^{elevate its character above the threshold.” Ibid, at [362].}

^{115 Ibid, at [382]-[384].}

draw a comparative line in the sand. It is also legitimate (as Tipping J did) to look at surrounding words such as “torture” and surrounding sections such as s 23(5) of the New Zealand Bill of Rights Act 1990 to assess the possible meaning of the words in question.¹¹⁶ Ultimately each judge looked at how the prisoners were treated, and used acceptable legal techniques to find legal values that were applied to the open texture of the particular case.

Given the significant difference in interpretation, it was inevitable that there would be a major disagreement as to the appropriate remedies. Elias CJ upheld the High Court ruling on damages for the victims ($65,000 to Taunoa, $40,000 to Robinson and $8,000 to Kidman).¹¹⁷ Tipping J proposed reducing the damages by more than 50 per cent on the basis that remedies for breach of the New Zealand Bill of Rights Act 1990 were meant to acknowledge the presence of two victims, the immediate victim (the appellants) and society as a whole.¹¹⁸ An award of damages does not really reflect the damage to society as a whole, since an award of damages actually indirectly punishes the taxpayer.¹¹⁹ Thus damages should be restricted to a vindication of the right and compensation for tangible harm.¹²⁰ Given that the harm to Taunoa was intangible, Tipping J considered that the only relevant factor in calculating the damages should be a vindication of the right.¹²¹ Considering the High Court’s awards to have been “wholly erroneous”,¹²² Tipping J proposed damages of $25,000 to Taunoa,¹²³ and used this as the benchmark for awards of $15,000 and

$4,000 to Robinson and Kidman respectively.¹²⁴ Blanchard J proposed slight reductions in the awards to reflect the fact that there was “little or no likelihood that the conduct will ever be repeated”¹²⁵ and proposed awards of $35,000, $20,000 and $4,000 to Taunoa, Robinson and Kidman respectively.¹²⁶ Despite disagreeing with Blanchard J as to whether s 9 of the New Zealand Bill of Rights Act 1990 had been breached in relation to Taunoa, McGrath J agreed with the reductions he proposed.¹²⁷ Henry J agreed with Tipping J’s awards.¹²⁸ Because there was no majority opinion on the exact quantum of damages to be awarded, the figures proposed by Blanchard and McGrath JJ were adopted. The reasoning behind this

116. This is the principle of noscitur a sociis which means “a word is known by the company it keeps”.
117. The award of $25,000 to Tofts was not challenged by the Attorney-General, and was not altered.

^{118 Taunoa v Attorney-General [2007] NZSC 70 at [317].}

^{119 Ibid, at [320]-[321].}

^{120 Ibid, at [317], [333].}

^{121 Ibid, at [333].}

^{122 Ibid, at [331]-[332].}

^{123 Ibid, at [333].}

^{124 Ibid, at [327], [335].}

^{125 Ibid, at [268].}

^{126 Ibid, at [271]-[273].}

^{127 Ibid, at [373]-[374].}

^{128 Ibid, at [386].}

was that a 3-2 majority (Elias CJ, Blanchard and McGrath JJ) supported damages being no lower than this quantity, and a 4-1 majority (Blanchard, Tipping, McGrath and Henry JJ) supported damages being no higher than this quantity.¹²⁹

While the differences between the judges’ awards are small, what they signify is the judges’ individual views on confinement of prisoners and what should happen if their rights are breached. From a prisoner ’s point of view, the widest interpretation of s 9 of the New Zealand Bill of Rights Act 1990 is that taken by Elias CJ, and the narrowest is that taken by Tipping J. Behind these legitimate legal choices lie larger political implications about how those in prison should be treated.¹³⁰

More emphasis on collegiality could have led to more common ground. This is more challenging when fundamental rights are at stake and the judges saw the prisoners’ treatment in different ways.

B The methodology of the New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990, in particular s 5, requires a weighing exercise by judges. Section 5 reads:

5. Justified limitations

^{Subject to section 4 of this Bill of Rights, the rights and freedoms}

^{contained in this Bill of Rights may be subject only to such reasonable}

^{limits prescribed by law as can be demonstrably justified in a free and}

^{democratic society.}

Judges must first identify and analyse “reasonable limits prescribed by law”, and secondly, weigh these limits against the rights in question, by reference to what “can be demonstrably justified in a free and democratic society”. As Thomas J observed in Brooker v Police,¹³¹ carrying out this task is a matter of “balancing one or more interests or values against one or more other interests or values in order to reach a decision”. Thomas J encouraged judges to carry out the process in a “principled, structured, and transparent” way. Inevitably, given the openness of the principles at stake, such as what is “demonstrably justified in a free and democratic society”, judges’ subjective views of what is right and wrong influence the outcome.

Currently there are three schools of thought within the Supreme Court

¹²⁹ Ibid, at [10].

^{130 It is noteworthy that Tipping and McGrath JJ considered that the length}

^{of time that Mr Taunoa had spent on BMR – the factor that ultimately}

^{led Blanchard J to conclude that there had been a breach of s 9 in relation}

^{to Mr Taunoa – was mostly attributable to his being a difficult prisoner,}

^{which affected the question of what constituted “disproportionate}

^{severity” (at [287] per Tipping J; and at [357] per McGrath J). Significantly,}

^{Elias CJ highlighted (at [97]) that “protests against the unlawfulness [of}

^{BMR] were treated as troublemaking”, although McGrath J disputes the}

^{extent to which Mr Taunoa’s disruptive actions were truly in the nature}

^{of protest (at [357]).}

^{131 Brooker v Police [2007] NZSC 3 at [153].}

as to the correct approach to this prior interpretive inquiry. The dominant approach, held by Tipping and Blanchard JJ, and largely accepted in the lower courts, is that where a statutory provision purports to limit one of the rights affirmed in the New Zealand Bill of Rights Act 1990, the only “reasonable limits” able to be considered are those which fulfil a purpose of the provision in question.¹³² On the other hand, McGrath J would recognise two factors able to be invoked as “reasonable limits” on a protected right, the purpose of the statutory provision in question, and other protected rights.¹³³ Hence, a statutory provision which purports to limit a protected right may actually have its ambit extended if doing so upholds another protected right, notwithstanding that this may be ancillary to the provision’s purpose.¹³⁴ Finally, Elias CJ would read down s 5 of the New Zealand Bill of Rights Act 1990 altogether and look, in the first instance, to the most rights-consistent meaning of a statutory provision available.¹³⁵ Whether a meaning more in line with traditional interpretive techniques, but less consistent with rights, could nonetheless count as a “reasonable limit” on the right is not addressed at all.

These three interpretations of the New Zealand Bill of Rights Act 1990 reflect three different views of the Act’s purpose. Tipping and Blanchard JJ’s approach reflects the view that the Act’s purpose is to protect individuals from unreasonable interference by the state. McGrath J’s approach reflects the view that the Act’s purpose is to protect individuals from unreasonable interference by the state or by other individuals. Elias CJ’s approach reflects the view that the Act’s purpose is to protect individuals from the state, whether or not such interference may be “reasonable”.¹³⁶ In both Brooker v Police,¹³⁷ and Z v Dental Complaints

¹³² Hansen v R [2007] NZSC 7 at [92], [104] per Tipping J. When a statute appears to conflict with a right, this right is then identified (at [92]) and then weighed against the “purpose” of the limiting measure (at [104]).

¹³³ As McGrath J stated (in Hansen v R [2007] NZSC 7 at [186]): “rights are part of a social order in which they must accommodate the rights of others and the legitimate interests of society as a whole.” Blanchard J in Hansen v R [2007] NZSC 7 claimed that his approach is the same as that of Tipping J (at [62]), even though he appeared to allow for a wider range of limiting factors to be invoked (at [59]). However in Brooker v Police [2007] NZSC 3 he applied the more restricted test, weighing the right in question (freedom of expression) against the purpose of the statute only (at [59]).

¹³⁴ There is even evidence that McGrath J would go beyond these two factors to consider any “reasonable limit” on a right. See Hansen v R [2007] NZSC

7 at [186]. However in practice, most notably in Brooker v Police [2007] NZSC 3, he only considered competing rights and the express statutory purpose. See Brooker v Police [2007] NZSC 3 at [117]- [119].

^{135 Hansen v R [2007] NZSC 7 at [6].}

^{136 Alternatively, Elias CJ’s approach could be seen to reflect the view that}

^{talk of a “reasonable” interference by the state is oxymoronic: if a right}

^{has been breached or limited this will never be “reasonable”.}

^{137 Brooker v Police [2007] NZSC 3.}

Assessment Committee,¹³⁸ the different interpretations accorded to the relevant law fundamentally affected the resulting balancing exercise.

Brooker v Police¹³⁹ was a case concerning disorderly conduct. Mr Brooker had been arrested after holding a protest outside the home of a police officer, Ms Croft, with whom he had a grievance. Because Mr Brooker had been exercising his right to freedom of expression, a right protected under s 14 of the New Zealand Bill of Rights Act 1990, each judge accepted that the provision under which he had been charged – s 4(1)(a) of the Summary Offences Act 1981 – should be read narrowly. However, the judges disagreed over whether this narrow reading should be broadened by considering Ms Croft’s right to privacy.

Privacy is not a right affirmed by the New Zealand Bill of Rights Act

^{1990. However, McGrath and Thomas JJ noted s 28 of the New Zealand}

^{Bill of Rights Act 1990, which provides that:}

“An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.”

To McGrath and Thomas JJ, the question was therefore whether privacy was an “existing right”.¹⁴⁰ To answer this question they considered international instruments to which New Zealand was a party, in particular article 17 of the International Covenant on Civil and Political Rights, which the New Zealand Bill of Rights Act 1990 affirms.¹⁴¹ The two judges then weighed the right to freedom of expression against the right to privacy in the context of the case, and found that Ms Croft’s right to privacy should prevail over Mr Brooker ’s right to freedom of expression.¹⁴² They therefore would have upheld Mr Brooker’s conviction and dismissed the appeal.

The majority (Elias CJ, Blanchard and Tipping JJ) did not consider whether New Zealand recognises a right to privacy, based on the view that such a right could not be relevant to the case. The idea underpinning Elias CJ’s and Tipping and Blanchard JJ’s interpretations of the New Zealand Bill of Rights Act 1990 is that the Act is designed to protect individuals from interference by the state alone, and not from other individuals. Thus, Ms Croft’s right to privacy could only be weighed against Mr Brooker ’s right to freedom of expression if one of Parliament’s purposes in enacting s 4(1)(a) of the Summary Offences Act 1981 was to uphold citizens’ rights to privacy. The most that Blanchard and Tipping JJ seemed willing to concede was that the privacy interests of other citizens (in this case Ms Croft) could be of relevance to the extent that they coloured the meaning to be given to “disorderly” in s 4(1)(a) of

¹³⁸ Z v Dental Complaints Assessment Committee [2008] NZSC 55.

^{139 Brooker v Police [2007] NZSC 3.}

^{140 Ibid, at [214].}

^{141 Ibid, at [215]-[216].}

^{142 Ibid, at [141]-[146] per McGrath J; at [274]-[277] per Thomas J.}

the Summary Offences Act 1981.¹⁴³ They did not discuss privacy as an independent right. Elias CJ took a narrower view, holding that since s

4(1)(a) of the Summary Offences Act 1981 is an offence against public order, it is not designed to protect the “interest” or “important value” of privacy.¹⁴⁴ This value or interest is protected by other areas of the law, such as trespass, harassment and defamation, and Mr Brooker ’s conduct fell well below such a level.¹⁴⁵

In Z v Dental Complaints Assessment Committee,¹⁴⁶ the appellant dentist, Z, had been charged with and then acquitted of the indecent assault of three of his patients. After his acquittal, his accusers had complained to the Dental Council. The Council referred the matter to the Complaints Assessment Committee, who formulated charges to be heard by the Dentists Disciplinary Tribunal. The appellant argued that this amounted to abuse of a statutory power because it undermined the status of his jury acquittal, it constituted double jeopardy contrary to s 26(2) of the New Zealand Bill of Rights Act 1990, and his culpability for a crime was being determined by a process which lacked the protections offered by the criminal law.

The case turned on whether the professional charges had been framed in an identical manner to the criminal charges. This was decided by considering what the objective of the professional charges were, which determined the approach that the Tribunal ought to take in respect of the charges, in particular the burden of proof to be used.¹⁴⁷

Elias CJ considered that several factors pointed towards the need to use the criminal burden of proof. Although the case was technically a “civil” case, there were no competing claims of litigants that would call for a balance of probabilities to be used.¹⁴⁸ The consequences of a finding of guilt were very severe, including removal from the profession.¹⁴⁹ Finally, international precedent favours the adoption of the criminal standard of proof in such cases.¹⁵⁰ Given these factors, Elias CJ concluded that there needed to be “compelling reason” to depart from the stricter processes of

¹⁴³ Ibid, at [60], [89].

^{144 Ibid, at [11], [41].}

^{145 Ibid, at [37]. The approaches taken by the three majority judges in Brooker}

^{v Police [2007] NZSC 3 are roughly consistent with their approaches in}

^{Hansen v R [2007] NZSC 7. In Brooker v Police [2007] NZSC 3 at [59] and}

^{[91] Blanchard and Tipping JJ weigh the value of freedom of speech,}

^{against that of public order, as their approach in Hansen v R [2007] NZSC}

^{7 dictates. Elias CJ does not perform this balancing exercise, but goes}

^{straight to a consideration of how narrowly the meaning of “disorderly”}

^{can be read to accord with the right to freedom of expression.}

^{146 Z v Dental Complaints Assessment Committee [2008] NZSC 55.}

^{147 Ibid. As McGrath J noted at [95], if a “lower standard of proof [than beyond}

^{reasonable doubt] is appropriate, the argument against allowing the ...}

^{proceedings is weaker.”}

^{148 Ibid, at [4].}

^{149 Ibid.}

^{150 Ibid, at [27], [28], [30]-[33], [39]-[49].}

the criminal law, and that such reason was absent.¹⁵¹ This interpretation is consistent with the strong reading of rights in the New Zealand Bill of Rights Act 1990 by Elias CJ.

The majority consisting of McGrath, Blanchard and Tipping JJ, as well as Anderson J who dissented, argued that Elias CJ had misread the purpose of the Tribunal’s hearings’ process. The purpose was not merely to punish, but to ensure standards of professionalism and the protection of the public.¹⁵² The rationale was essentially consequentialist, rather than retributive. The public interest was seen as a countervailing factor to be weighed. The severity of the consequences of a finding of guilt, according to the majority, does not affect the standard of proof, since beyond reasonable doubt is used in relation to minor criminal offences as well as major ones, and a balance of probabilities is used in civil cases irrespective of the consequences of the outcome.¹⁵³ Anderson J dismissed the weight of international precedent, as “the cogency of reasoning rather than its preponderance is the important thing”.¹⁵⁴ This is consistent with the reading of rights in terms of whether it is reasonable in the circumstances to uphold them.

In Hansen v R,¹⁵⁵ the Supreme Court was required to weigh the right to be presumed innocent until proven guilty under s 25(c) of the New Zealand Bill of Rights Act 1990, against the purpose of the reverse onus in s 6(6) Misuse of Drugs Act 1975 (this test being implied by s 5 of the New Zealand Bill of Rights Act 1990). Although Elias CJ, Tipping, McGrath and Anderson JJ all approached the test in slightly different ways,¹⁵⁶ they all agreed that the reverse onus could not be reconciled with the s 25(c) of the New Zealand Bill of Rights Act 1990 right. It is a good sign that those judges who prefer an interpretation that allows for reasonable limits on rights were prepared to find the limits in this case unreasonable. It means that each case is looked at afresh in terms of the right in question, and the consequences for upholding it or not. Therefore, although s 4 of the New Zealand Bill of Rights Act 1990 dictated that Parliament’s preferred meaning be adopted, this meaning was nonetheless in breach of the s 25(c) right. Blanchard J balanced the importance of the s 25(c) of

¹⁵¹ Ibid, at [68].

^{152 Ibid, at [97], [145].}

^{153 The majority’s argument on this point is somewhat ambiguous, since they}

^{also hold that the seriousness of the charge should affect the “quality” of}

^{the evidence required, but not the standard of proof.}

^{154 Z v Dental Complaints Assessment Committee [2008] NZSC 55 at [142].}

^{155 Hansen v R [2007] NZSC 7.}

^{156 The approaches of Elias CJ and Tipping J in Hansen v R [2007] NZSC 7 are}

^{discussed above. Although McGrath J used the test laid out by Tipping J,}

^{he added some obiter dicta (particularly at [186]) which anticipated his}

^{later dissenting judgment in Brooker v Police [2007] NZSC 3. Anderson J}

^{in Hansen v R [2007] NZSC 7 took a similar approach to Elias CJ, reading}

^{down s 5 in favour of s 6, and holding that s 5 would only be of interpretive}

^{effect where it assisted the s 6 aim of adopting the most rights-consistent}

^{meaning (at [265]-[266]).}

the New Zealand Bill of Rights Act 1990 right against the social objective of overcoming the difficulties involved with proving drug trafficking offences to the normal criminal standard, and concluded that the latter was a “reasonable limit” on the former.¹⁵⁷

Since the establishment of the Supreme Court, the New Zealand Bill of Rights Act 1990 has become the key legal text for interpreting criminal law statutes. The open texture of the Bill of Rights Act 1990 has brought out divergent opinions amongst Supreme Court judges, and is a further example of the tendency towards judicially individualised legal interpretation.

VI Conclusion

Two stand out changes have emerged from this analysis of the Supreme Court’s decisions during the first six years of its existence, as compared with the final six years of Privy Council judgments. First, there are a much higher number of concurring judgments in the Supreme Court, as opposed to the typical use of single judgments in the Privy Council. Concurring judgments work best if all the judges are singing from the same song sheet. Difficulties occur when the result is unanimous, but judges (as was the case in Vector Gas) give quite divergent reasons for that result. This leaves the law in an unclear state, which is unhelpful for lower courts, legal practitioners and the community.

Secondly, there has been a marked increase in the number of criminal appeal cases that have arrived at the Supreme Court. The New Zealand Bill of Rights Act 1990 has become central in interpreting criminal statutory provisions. Supreme Court judges have taken different approaches in ascertaining the scope of the rights, and the significance of the rights to statutory interpretation. This is understandable given the open texture of the New Zealand Bill of Rights Act 1990. The approaches range from giving the New Zealand Bill of Rights Act 1990 a strong reading, to giving rights a reasonable reading depending on the circumstances of the case and the purpose of the statute, which is currently the predominant practice.

Overall, the Supreme Court has made final appeals more accessible. The Court appears to be making astute decisions in granting leave to appeal, because the success rate of final appeals is sufficiently high to show that the cases being heard have considerable merit. The Court is transparent in its reasoning,¹⁵⁸ and Elias CJ’s prediction, at the first sitting of the Supreme Court, that the “conservative” nature of judicial method and setting out reasons for all to see will prevent major “upheavals”,

¹⁵⁷ Hansen v R [2007] NZSC 7 at [67]- [69], [81]-[83].

^{158 This transparency is enhanced by Supreme Court decisions, full transcripts}

^{of Counsels’ arguments and interchanges between Counsel and the Bench}

^{during the hearings, all being available on the Supreme Court website.}

^{See “Supreme Court Transcripts” Courts of New Zealand <http://www.}

^{courtsofnz.govt.nz/from/transcripts/transcripts//from/transcripts/}

^{supreme-court-transcripts-2010>.}

is proving to be true.¹⁵⁹ The final plea I make to the Supreme Court, is not to lose one of the great strengths of the Privy Council, the single unanimous judgment that clarifies the law.¹⁶⁰

APPENDIX

Figure 1: Privy Council appeals by area of law, showing success rates

12

10

8

6

Dismissed

4

Allowed in

₂ part

Allowed

0

Figure 2: Supreme Court appeals by area of law, showing success rates

25

20

15

Dismissed

¹⁰

Allowed in part

⁵ Allowed

0

¹⁵⁹ Elias, above n 10.

^{160 Collective wisdom works best. See J Surowicki The Wisdom of Crowds:}

^{Why the Many Are Smarter Than the Few (Anchor Books, New York, 2005).}

Figure 3: Privy Council appeals by grouping of law, showing success rates

40

35

30

25

20

15

Dismissed

10

Allowed in

₅ part

Allowed

0

Figure 4: Supreme Court appeals by grouping of law, showing success rates

70

60

50

40

30

Dismissed

20

Allowed in

₁₀ ^part

^Allowed

0

Figure 5: Legal Core of appeals to the Privy Council

35

30

25

20

15

10

5

0

Figure 6: Legal core of appeals to the Supreme Court

90

80

70

60

50

40

30

20

10

0