Friday, October 16, 2020

Vagueness, stays, and fast-track: three recent decisions

A cluster of interesting cases occurred this week.




On handling broad statutory definitions of offences, and broad descriptions of conduct that comes within such definitions, see R v Abdirahman-Khalif [2020] HCA 36. The ways of being liable for the full offence included what would normally count as preparation so as to restrict potential liability to the attempt.


Stays of criminal proceedings for misconduct by officials


No stay was justified in Smith v R [2020] NZCA 499, but the Court extensively reviewed the common law on this topic. The New Zealand court would not question the lawfulness of a deportation order made by a foreign court (here, in Brazil) of competent jurisdiction.


No fast-track of an appeal against an interim order for name suppression


In a minute the President of the Court of Appeal declined to fast-track the (second) appeal against an interim order for name suppression in Director of the Serious Fraud Office v ABC and DEF.


You have to laugh at this one. Refusal of fast-track rendered the appeal moot, as a hearing on the question of an order (as distinct from an interim order) for name suppression would soon occur (or not occur if an order was no longer sought).


Personally – and this is just me, as the point hasn’t been raised in these proceedings – I don’t think there is any right of appeal against the making of an interim order for name suppression. The main point of an interim order is to allow an opportunity for preparation of an application for an order, and who would object to that? The media, of course.

My reasoning: we should note the terminology in the relevant provisions of the Criminal Procedure Act 2011. The terms concerning suppression are “order”: s 200(1), which may be “permanent” or “limited” in term or period: s 208, and “interim order”: ss 200(4), 206.


A Registrar may make an interim suppression order: s 206(1). This section describes an interim order as being made “under s 200(4)”. Similarly, s 200(5) refers to interim orders made “in accordance with subsection (4)”. These usages are consistent with orders being distinct from interim orders: the former are made under s 200(1) and the latter under s 200(4).


As far as appeals are concerned, the media may appeal under s 283(2)(c), and this section refers to orders. The interpretation provision relevant to this is s 282, which defines (for the purposes of appeals) “suppression order” as an order made under, inter alia, s 200. Consistently with the usage relevant to s 200, this would refer to orders but not to interim orders. Significantly, there is no right of media appeal against an interim order made by a Registrar under s 206.


It would be absurd to say that the media may appeal against an interim order for suppression made by a Community Magistrate or a District Court Judge, but not against an interim order made by a Registrar. Accordingly, there is no right of media appeal against an interim order for suppression.

There is a small complication, arising from s 200(5), which allows a court to “renew” an interim order. That can only be done where the same grounds exist as for an order, so I would say that a renewed interim order is really a limited order. [1] It may be renewed by a Registrar, pursuant to s 206(4), which reinforces its difference from an interim order which a Registrar may only make once and not renew: s 206(2) and (3).


There is little assistance to be gained on this topic from the NZ Law Commission’s Report No 109 (22 October 2009) “Suppressing Names and Evidence, although at [6.4] the Commission notes that a Registrar should not have the power to make an order for suppression, and at [6.52] the importance of the media’s ability to report on the administration of justice is recognised, with a recommendation that the media be given appeal rights in respect of orders. The Commission proposed ([3.7] and [3.71]) that there should be a special process for applications for interim name suppression, to allow parties the opportunity to obtain legal advice and gather supporting evidence to make an application for name suppression. The possibility of an appeal against an interim order was not considered.


Nor is there any mention of the possibility of an appeal against an interim order in the report of the select committee on the Criminal Procedure (Reform and Modernisation Bill) 243-2, the precursor to the Criminal Procedure Act 2011.


Well, wasn’t that interesting.


[1]  Where the existence of a right of appeal is not in doubt, terminology tends to be used loosely, so that the expression “interim order” is used to include a limited order. See, for example, Standfast v R [2019] NZCA 666, a case memorable for its use of the splendid phrase “gangs and other religious groups” (at [35]).