R (SC 64/2022) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZSC 40
The Court dismissed the recusal application because the mode of judicial appointment relied on by the applicant does not give rise to a reasonable apprehension that the judges will not decide the case objectively and on its merits; to accept the argument would unrealistically disqualify the senior judiciary.
Source-derived case information.
- Citation
- [2023] NZSC 40
- Parties
- Appellant: R (SC 64/2022); Respondent: Chief Executive of the Department of Corrections
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 26 April 2023
- Procedural Posture
- Supreme Court Appeal; Application for Recusal / Application for Recusal Decided After Leave to Appeal Granted
- Outcome
- Application for recusal dismissed.
- Legal Topics
- Apparent Bias, Judicial Appointments, Recusal, Judicial Independence
Source-derived case record
Summary, issues, holding and outcome
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Parties
R (SC 64/2022)
Appellant
Chief Executive of the Department of Corrections
Respondent
Procedural Posture
Supreme Court Appeal; Application for Recusal / Application for Recusal Decided After Leave to Appeal Granted
Legal Issues
- 1 Whether judges should recuse because they are appointed on the advice of the Attorney‑General or Prime Minister
- 2 Whether the method of judicial appointment creates a reasonable apprehension of bias
- 3 Whether acceptance of the applicant's argument would disqualify the senior judiciary
Ratio Decidendi
The Court dismissed the recusal application because the mode of judicial appointment relied on by the applicant does not give rise to a reasonable apprehension that the judges will not decide the case objectively and on its merits; to accept the argument would unrealistically disqualify the senior judiciary.
Court Disposition
Application for recusal dismissed.
Orders
- Application for recusal dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
R (SC 64/2022) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2023] NZSC 40 [26April 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF APPELLANT PROHIBITED BY S 201 OFTHE CRIMINAL PROCEDURE ACT 2011 AND PURSUANT TO SS 107RAAND 107G OF THE PAROLE ACT 2002. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360347.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 64/2022[2023] NZSC 40BETWEEN R (SC 64/2022)AppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: Glazebrook, O'Regan and Williams JJCounsel: A J Ellis and G K Edgeler for AppellantB C L Charmley for RespondentJudgment: 26 April 2023JUDGMENT OF THE COURTThe application for recusal is dismissed.____________________________________________________________________REASONS[1] On 11 April 2023, we delivered our judgment granting the appellant leave toappeal.1 We dealt with that application for leave despite Mr R's application to recuseall members of the Court from considering the application for leave and, if leave wasgranted, then the substantive appeal. In this judgment we give our reasons fordeclining to recuse ourselves from considering the case.1 R (SC 64/2022) v Chief Executive of the Department of Corrections [2023] NZSC 31.[2] Counsel for Mr R, Mr Ellis, submits that, because judges are appointed on theadvice of the Attorney-General, they are tainted by dependence on the largesse of theSenior Law Officer. Particular factual or other distinctions are drawn in relation toindividual judges. For example the fact that the Chief Justice is appointed on theadvice of the Prime Minister rather than the Attorney-General is said to render hereven more apparently partial. An allegation of apparent bias is also made against thelate Simon France J.[3] The essence of Mr Ellis' submission is that a judicial appointments commissionshould be established in order to ensure a more constitutionally appropriate distanceis maintained between the judiciary and the executive on matters of judicialappointments.[4] As the Court of Appeal noted in Lawler v R, to accept the core of Mr Ellis'argument would be to disqualify the entire senior judiciary for apparent bias in anycase in which the Crown is a party, leaving his client without a bench to hear his appealat all.2[5] We do not in any event accept that, on the grounds advanced, there arecircumstances surrounding the appointment of the judges of this Court that mightpossibly lead to a reasonable apprehension that we may decide the case other thanobjectively and on its merits.[6] The application for recusal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent2 Lawler v R [2013] NZCA 308 at [79].