The latest edition of the NZ Administrative Reports provides two compelling examples of the exercise by the Court of its discretion to grant relief despite there being strong public policy reasons not to do so.
At the trial of charges against Mr Namana, his co-offender and a primary witness for the Crown failed to appear as required during either of the two days of the Crown’s case. The prosecution, not having requested an adjournment before the trial got under way (when the likelihood of the attendance of the witness first appeared doubtful) proceeded to what was practically the close of the Crown case and then sought unsuccessfully the admission of hearsay statements from the witness. Having failed on that application, the Judge granted the prosecutor’s application to discharge the jury and ordered a retrial.
In the judicial review proceeding that followed – Namana v Wellington District Court [2012] NZAR 196 – Mallon J found the District Court Judge to have applied the wrong statutory test. The Judge had referred to the District Court’s “general jurisdiction to ensure that the interests of justice are met throughout a trial and during the wider process of resolution of charges”. Instead, the statutory test required the Judge to find that it was “highly expedient for the ends of justice” to discharge the jury without giving a verdict. It could not be said that the District Court Judge, had he been directed to the relevant power, would have made the same decision. It was not clear that the accused could not have been convicted on the evidence that was given.
The vexed issue for the Court, however, was whether or not to grant a remedy. The effect of granting relief would be to grant a stay whereas to grant no remedy would lend the Court to improving the prosecutor’s position in the same way as the flawed decision of the District Court Judge did. As the Court noted, it has to be remembered that the accused had not contributed to what had occurred, and would lose the right to be tried on the same evidentiary basis as should have occurred, had the trial not been aborted. By the same token, the public interest requiring serious charges to be determined at trial would not be served if the District Court Judge’s decision was set aside.
It was found that sometimes the public interest must give way to other considerations. Given that the prosecution’s application was wrongly granted and that the accused could not be put back in the position he would have been in had the application not been granted, the District Court’s order for a retrial was quashed.
Whata J was faced with a similar predicament in Lauren v Attorney-General [2012] NZAR 249 where there were strong public policy arguments in favour of no orders being made despite the existence of a clear legal error. In this case, an animal welfare inspector, believing he was lawfully appointed, entered on to land to find a terrible scene in which some 148 cows and calves were found dead or starving. As a result of his investigation on the farm, the inspector laid six informations against the plaintiff. The inspector was not, however, appointed lawfully because the appointer had exceeded his powers of appointment. The plaintiff sought judicial review to obtain orders prohibiting or staying the trial of the charges in the District Court.
While the appointment and delegation issues could have been raised in defence of the charges in the District Court, Whata J emphasised the importance of the High Court’s overriding supervisory jurisdiction and its need to be vigilant to uphold observance of the rule of law for its own sake. Despite the flaw in the inspector’s appointment being relatively trivial, and certainly technical, and despite the illegality having caused no injustice, the Judge found the underlying premise of judicial review to be the maintenance of the rule of law such that there was a need for strong reasons before refusing to grant relief. Public confidence in the integrity of enforcement processes depends, it was found, in the Court exposing invalidity when it arises. These constitutional principles ultimately outweighed public interest in the prosecution and declarations were made that any purported exercise of powers by the inspector was invalid.
Errors, therefore, are errors and will more often than not result in invalidity, despite the being strong public policy reasons to just let it rest.
The key and over-riding issue in the Lauren case is the welfare of 148 dead and starving cows and calves, plus dealing to the person responsibible for this cruelty – not the trivial issue of whether or not the good samaritan coming to their aid was carrying the right tickety-boo.
This finding is the kind of de-ethicalised ‘legal reasoning’ used by nazi prosecutors in Germany. It demonstrates that in NZ too the Law is an Ass..