Monday, December 05, 2005


The House of Lords and the New Zealand Supreme Court decided similar cases on 1 December 2005. Each concerned the rights of persons who had been convicted, and each involved sentencing. They differed, in general terms, in that the English case concerned a transitional question arising from a legislation change, whereas the New Zealand case concerned the effect of a change in the circumstances of the offender, namely his age, on his eligibility for the indeterminate sentence of preventive detention. Both cases were decided by applying considerations of fairness.

In R (on application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69 (1 December 2005) a literal reading of the relevant legislation required that the punitive period of a sentence of life imprisonment must be set by a High Court Judge on the papers and without an oral hearing. It was held that this should be read as being subject to an implied condition that an oral hearing must be permitted where that is necessary to comply with the prisoner’s right to a fair trial under art 6(1) of the European Convention on Human Rights.

Interestingly, this implication of an exception to an absolute legislative provision was accepted by the Secretary, once it had been decided that the absolute provision breached the Convention. There was, accordingly, no need to reconsider this approach to interpretation, which had been established in R v A [2002] 1 AC 45 (HL), where it was held that such implication was required by s 3(1) of the Human Rights Act 1998[UK], which provides:

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

International law was also relevant in Mist v R [2005] NZSC 77 (1 December 2005). Here, preventive detention could be imposed on an offender, who was otherwise eligible, if he was "not less than 21 years of age". The provision did not specify whether this age was to be taken as at the date of the commission of the offence, or at the date of sentencing.

The Court was unanimous that the answer was the age of the offender at the time of the offence. Three Judges decided this on a narrow point: the interpretation of s 4(2) of the Criminal Justice Act 1985 (legislation which has since been replaced with provisions clear on the point). The other two Judges, Elias CJ and Keith J, agreed with that, and added broader considerations, which included the need to read s 4 consistently with art 15 of the International Covenant on Civil and Political Rights. Gault J summarised the opposing arguments in a way that suggested they were finely poised, but at para 62, he expressed agreement with a generous interpretation of s 4(2) "in conformity", apparently meaning the requirement of consistency with rights to which Elias CJ and Keith J had referred.

Eilas CJ and Keith J referred to the need for fairness and due process (paras 28, 29) and to developments in human rights law over the last 30 years (para 39), and to the need to give individuals the full measure of their rights (para 45).

Implicit in this approach is compliance with s 6 of the New Zealand Bill of Rights Act 1990, which is as follows:

"Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning."

The Bill of Rights is, according to its statement of purpose, "An Act – … (b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights".

Article 15(1) of that Covenant states:

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."

The first sentence of this is echoed in s 26(1) NZBORA. The second and final sentences are reflected in s 25(g) of NZBORA, although the wording differs slightly:

"(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty."

Of course, in Mist it was the offender’s age, not the legislation, that had changed, but Elias CJ and Keith J, and implicitly Gault J, were prepared to apply the applicable provision consistently with art 15.

Significantly, this approach does not involve a close reading of s 6 NZBORA (which, indeed, was not cited in Mist). There was no agonizing over how strongly s 6 compelled an interpretation consistent with rights, and no attempt to contrast the approach required by s 6 NZBORA with the approach required of English courts by s 3 of the Human Rights Act 1998[UK]. The force of international rights law was recognised by three judges as relevant to the interpretation problem in Mist. As in Hammond, the rights-mandated approach to interpretation was accepted, without the need for argument over the strength of the legislative direction to conform to rights.

This has relevance to the forthcoming issue of the standard of proof imposed on the defence by reverse-onus provisions, which is essentially the question on which leave to appeal was granted in R v Hansen [2005] NZSC 74 (24 November 2005). Developments in international rights law have revealed an aversion to interpreting reverse onus provisions as placing legal burdens on the defence. Those developments can be followed in New Zealand without straining the words of s 6 of NZBORA.

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