Bain Decision Vindicates Opponents Of Abolition Of Appeals To The Privy Council

The recent decision of the Judicial Committee of the Privy Council confirms that the abolition of future appeals to the Privy Council was a mistake.

It is difficult to overestimate the significance of the ruling. The Law Lords have determined that Bain has suffered a “substantial miscarriage of justice'', at the hands of the Court of Appeal. Confidence in New Zealand’s judiciary will inevitably have been damaged.

David Bain was fortunate that his appeal process was commenced early enough to permit him to appeal to the Privy Council. Future accused will not have that advantage.

The Law Lords have again overturned a deeply flawed decision of the Court of Appeal. Would the New Zealand Supreme Court have done so?

Opponents of the 2003 reforms of the New Zealand appeal process pointed out very many practical and legal reasons why appeals to the Law Lords should remain. One of the principal arguments was that, however good the New Zealand judiciary might be, there is nothing to equal an independent outside body to ensure quality control.

The Bain case joins a series of appeals, from Taito v R to Harley v McDonald, where New Zealand courts have failed to identify a procedural or logical error in a Crown case. That is the role of appellate courts, and our courts are failing to perform it adequately. There is little confidence that the new Supreme Court will make much difference. The fundamental problem remains that our judiciary is too small in numbers, and the courts are overworked.

Before the establishment of the Supreme Court, the Court of Appeal was very short of judges. The Supreme Court took its best judges, leaving the Appeal Court decimated. It had to urgently recruit members from the High Court and elsewhere. It is common cause that, whilst many judges excel as trial judges, not all judges are suitable for appeal work. The number of suitable candidates for appeal court benches is very limited. So the High Court lost its best members to the Court of Appeal, and the Court of Appeal is largely made up of relatively inexperienced judges. Only the Supreme Court has a full complement of experienced judges. All courts are overworked and understaffed. Including the New Zealand Supreme Court.

The Privy Council by contrast has a full bench of the finest legal minds in the Commonwealth. It has the time, experience and knowledge to analysis the most difficult appeal arguments.

The majority of New Zealanders opposed the abolition of appeals to the Privy Council. Many because of the unilateral decision of the Government, in the face of considerable opposition and a majority call for a referendum; Many others because of the belief that we should retain access to the best appeal court in the world; Some because the abolition of appeals to the Privy Council was motivated in part by republicanism; Yet others because the cost of appeals was inevitably going to be higher under the new system.

When it comes to justice, we deserve the best in the work. The Privy Council provides that.

The Campaign for the Privy Council calls for New Zealand political parties to make the commitment to restore full access to the Judicial Committee of the Privy Council.

John Cox

ends

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