Although we have some reservations about the correctness of the Court of Appeal’s decision in R v Howse [2003] 3 NZLR 767; (2003) 20 CRNZ 826, it is reassuring to note a passage in the judgment that reinforces the primacy of justice over jurisdictional limitations:
"… The ultimate criterion on appeal is whether a miscarriage of justice has occurred. There cannot properly be any jurisdictional bar after trial preventing an accused from attempting to demonstrate such a miscarriage. Nor, for similar reasons, does it matter that evidence challenged on appeal was not challenged at trial. That does not jurisdictionally preclude this Court from addressing a point and giving effect to it if it has sufficient force." (para 15)
To suggest that the Court will not let itself be constrained by statutory limitations on its jurisdiction, if that constraint would lead to a miscarriage of justice, may be taking this dictum too far. However, one is reminded of the sensible approach of the House of Lords, which, when confronted with applying a statute that would have prevented a fair trial for the accused, held that the statute, although absolute in its terms, nevertheless was subject to an implied exception which the court could "read in": R v A [2002] 1 AC 45; [2001] 3 All ER 1, discussed in Mathias, "Criminal fairness in the House of Lords" [2002] NZLJ 435.
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