I’ve just read the High Court’s decision not to grant bail to Teina Pora ahead of his appeal against conviction to the Privy Council (copy attached here). It’s a curious decision, because Lang J both accepts that the High Court has an inherent jurisdiction to grant bail, and that the Court has no jurisdiction to grant bail in relation to appeals to the Privy Council.
At para 31 of the judgment, Lang J holds open the right of the High Court to invoke its inherent jurisdiction to grant bail, but limits the use of that jurisdiction to situations “where it would be manifestly unjust and patently wrong for a sentenced prisoner to remain in custody until his or her appeal could be heard by the Privy Council”. The full paragraph is as follows:
I leave open the possibility that the Court may need to review the position in the future in the event that the facts of a particular case require that to be done. It is possible to imagine a situation arising where it would be manifestly unjust and patently wrong for a sentenced prisoner to remain in custody until his or her appeal could be heard by the Privy Council. If no other practical solution could be found, this Court might need to reconsider whether it should resort to its inherent jurisdiction to ensure that an injustice is not perpetuated. The present case does not come close, however, to justifying that step being taken.
However, the problem for Mr Pora is that the Bail Act 2000 grants an explicit ability for the Court to grant bail in relation to appeals against conviction to the District Court (s 53), the High Court (s 54) and the Court of Appeal and Supreme Court (s 55). There’s no mention in the Act of appeals to the Privy Council. Justice Lang notes that Parliament amended the Bail Act to include the Supreme Court when the Supreme Court Act 2003 was passed, and concludes that Parliament must have made the conscious decision to not include any provision relating to the Privy Council. Therefore, Parliament did not intend for prisoners to be granted bail ahead of appeals to the Privy Council.
Essentially, Lang J reaches the conclusion that the Court should not over-turn the will of Parliament by exercising the High Court’s inherent jurisdiction to grant bail, except in situations where to not do so would result in a manifestly unjust and patently wrong outcome. That’s a serious threshold to reach…
Is the decision the right one? I’m in two minds. On the one hand, I can appreciate how Lang J has reached the decision that was reached, and the Court does not want to lightly bypass the supposed will of Parliament.
However, I think that a completely opposite decision was easily available to the Court if it wished, and that such a decision would have been more in the interests of justice.
The line of reasoning that would have allowed the Court to invoke its inherent jurisdiction, flows from the timeline of when the Bail Act and Supreme Court Act were passed, and when the case of Zaoui v Attorney-General  1 NZLR 577 (SC) was decided. Justice Lang noted that, in 1982, the Court of Appeal in Re Brown v Attorney-General (1987) 15 NZLR 165 ruled that the Court has no power to “suspend the execution” of a lawfully executed sentence of imprisonment. This was the only case that could be pointed to in which bail had been sought by a prisoner ahead of an appeal to the Privy Council. Thus, the situation as at 1982 was that the Court did not have inherent jurisdiction to grant bail to a sentenced prisoner, even where the Privy Council had granted an appellant leave to appeal.
In 2000, the Bail Act was passed, and it seems logical that Parliament failed to include a provision relating to the Privy Council due to Parliament’s belief that no ability to seek bail was in existence at that time. Parliament was therefore continuing with the status quo position. Likewise, when the Supreme Court Act was passed in 2003, the status quo would have been consciously preserved.
However, the Zaoui decision essentially stated that the High Court may exercise its inherent jurisdiction to grant bail, unless there is an express statutory exclusion. Justice Lang, in Pora, looks at the Zaoui decision in light of its particular context – namely, that Mr Zaoui was being detained under a warrant issued by the District Court. Therefore, Lang J concludes that the Court in Zaoui did not intend for its observations on inherent jurisdiction to overturn the existing wisdom that sentenced prisoners cannot be granted bail.
It would have been an easy thing for Lang J to have come to the complete opposite decision – that the Court’s observations in Zaoui were meant to be applied broadly and that the decision in Re Edwards had been effectively overturned. The decision as to bail would then come down to a broad range of matters, whatever the Court thought was relevant really. Such a decision would, to my mind, be far more in the interests of justice than the creation of a threshold of manifest injustice.
Of course, at the end of the day, I’m not commenting on whether Mr Pora should have received bail. The High Court, having declined jurisdiction, didn’t need to look at any arguments as to why bail should be granted or declined. I simply think it’s a pity that the jurisdiction was declined.