Notable Cases
Todd Aaron Marteley v The Legal Services Commissioner (SC 61/2014) [2015] NZSC 127
In a unanimous decision the Supreme Court has allowed the appeal and restored the order made in the High Court that Mr Marteley receive legal aid for his conviction appeal. Moreover, the ability to grant legal aid in circumstances where no merit is apparent is not confined to exceptional cases as was previously held to be the case under legislation that preceded the 2011 Act. There is a statutory right to appeal against criminal convictions, and the function of the legal aid system is not to indirectly filter this right in respect of impecunious appellants. pdf here Supreme Court Press Release here
A v New Zealand (No 21/2015 United Nations Human Rights Council Working Group on Arbitrary Detention)
First victory any NZ lawyer has achieved before the Working Group on Arbitrary Detention.
Mr A 59 year old, who has been detained in custody for the last 45 of 46 years has been found to have been arbitrary detained for the last 11 years, and discriminated against because of his intellectual disability, and the Working Group calls for his release from prison and compensation. pdf here
Dean v New Zealand (United Nations Human Rights Committee 2009)
Third New Zealand case ever won before the United Nations Human Rights Committee. Also a Preventive Detention Case confirming and advancing the Rameka case. view here
EB v New Zealand (United Nations Human Rights Committee 2007)
Second New Zealand case ever won before the United Nations Human Rights Committee. Family Law case finding undue delay. view here
Rameka v New Zealand (United Nations Human Rights Committee 2003) 7 HRNZ 663
This case is listed in 50 Leading Cases on the Human Rights Committee (2007), complied by Raija Hanski and Martin Scheinin (a member of the Human Rights Committee 2005-2011).
First New Zealand case ever won before the United Nations Human Rights Committee since communications were accepted in 1989.
Preventive Detention Case. view here
Taunoa and others v. Attorney-General and others [2008] 1 NZLR 429, 7 HRNZ 379 (Supreme Court 2007)
Prisoners rights case attempting to improve the victories in the High Court and the Court of Appeal finding a breach of section 9 and section 23(5) of the New Zealand Bill of Rights Act and awarding compensation for being held in the Behavioural Management Regime at Auckland Prison. Whilst the case was mostly unsuccessful in the Supreme Court in that compensation was reduced, it is notable for the Chief Justices' dissenting judgement which a masterpiece of articulation of International Human Rights. view here
Beggs v Attorney-General [2002] NZAR 917 (CA) & [2006] 2 NZLR 129 (HC)
Forty one students who had protested in the grounds of parliament in 1997 brought a claim in the High Court based on freedom of expression and assembly, arbitrary arrest and false imprisonment. The case was settled in 2009. view here pdf here
R v Taito [2002] 3 NZLR 577, (2002) 19 CRNZ 224, 6 HRNZ 539 (Privy Council 2002)
Successful challenge to the way the Court of Appeal conducted criminal appeals since 1990. 'The requirement that a judgment of the Court of Appeal must be “in accordance with the opinion of the judges present” was incapable of fulfillment: section 59 of the Judicature Act 1908. Relying on the fact that three judges of the Court of Appeal had earlier concluded that legal aid should not be granted, the ex parte decisions were purely formalistic or mechanical acts involving no exercise of judicial judgment. It was the phenomenon of tabulated legalism against which Lord Wilberforce had warned in Fisher. Moreover the system of ex parte decisions was not authorised by the legislation. It follows that the dismissal of all the appeals under consideration pursuant to the ex parte procedure was of no force or effect.' view here
R v Smith [2003] 3 NZLR 617 (Court of Appeal 2002)
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 [2003] 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 de-terminations were similarly placed.
Any of the 1500 on seeking a new appeal were automatically granted one. view here
Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA)
Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 (CA)
Freedom of speech and censorship issues. view here and view here
Everitt v Attorney-General [2002] 1 NZLR 82 (CA)
Successful appeal of the lawfulness of a police strip search of a bicycle courier. pdf here
Note
in Fardon v Australia view here and Tillman v Australia view here 2010
the UN Human Rights Committee reversed Rameka v New Zealand in that preventive detention can now be an arbitrary detention, they say at 7.4 (4):
The "detention" of the author as a "prisoner" under DPSOA was ordered because it was feared that he might be a danger to the community in the future and for purposes of his rehabilitation. The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts. But psychiatry is not an exact science. The DPSOA, on the one hand, requires the Court to have regard to the opinion of psychiatric experts on future dangerousness but, on the other hand, requires the Court to make a finding of fact of dangerousness. While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of the past offender which may or may not materialise. To avoid arbitrariness, in these circumstances, the State Party should have demonstrated that the author's rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention, particularly as the State Party had a continuing obligation under Article 10 paragraph 3 of the Covenant to adopt meaningful measures for the reformation, if indeed it was needed, of the author throughout the 14 years during which he was in prison.