Determinations of a number of criminal appeals had for some time been processed by the New Zealand Court of Appeal under an ex parte procedure. The Privy Council in R v Taito  3 NZLR 577 held in 2002 that 12 such determinations were invalid and remitted all for hearing in the Court of Appeal. Smith was not one of the petitioners in the Privy Council, but his 1996 appeal against conviction and sentence had been dismissed after a similar ex parte hearing. On the basis of the conclusion reached by the Privy Council, Smith asked that his appeal be set down again.
It was accepted by the Crown that the determination of Smith’s appeal in 1996 was invalid. The practical question before the Court was how to deal with the matter, bearing in mind that an estimated 1500 other determinations were similarly placed.
Any of the 1500 on seeking a new appeal were automatically granted one.