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.’
The Privy Council since 1848 only granted leave to hear 8 New Zealand criminal appeals. Dr Tony Ellis became one of only 5 Barristers who have ever successfully argued a New Zealand Criminal matter before the Privy Council.
Robert Lithgow said in his article “When Good Courts Go Bad” [2002] New Zealand Law Journal 149
“The successful appeals of Taito, Bennett and ten others is an unambiguous humiliation for the Court of Appeal of New Zealand. The guts of the decision is a step by step lesson in what a criminal appeal should be and how it should be conducted. The concepts are so basic; and so irrefutable when stated succinctly, that it is hard to understand how they could be lost sight of.”
SEE JUDGMENT
During Justice Arnold’s retirement speech he said of Taito v R (where he was the Solicitor- General appearing for the Crown) “the greatest forensic [court room] failure in New Zealand history”. See full speech here.
SEE SPEECH