The Judicial Committee of the Privy Council Decisions

Bain v. The Queen (New Zealand) [2009] UKPC 4 (16 March 2009)

Privy Council Appeal No 9 of 2006 David Cullen Bain Appellant v. The Queen Respondent FROM THE COURT OF APPEAL OF NEW ZEALAND

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REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE

8^th December 2008, Delivered the 16^th March 2009

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Present at the hearing:-

Lord Hoffmann

Lord Scott of Foscote

Lord Mance

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[Delivered by Lord Hoffmann]

1. On 10 May 2007 the Privy Council allowed an appeal by David Bain against his convictions in 1995 on five counts of murder and ordered a retrial. The appellant now petitions the Privy Council to discharge the order for a retrial and substitute an acquittal. The grounds for the application are that events which have occurred since the hearing before the Board, including the discovery of some information about previous matters, make it unjust for the appellant to be tried again. At the conclusion of the hearing on 8 December 2008 their Lordships announced that they would humbly advise Her Majesty that the petition should be dismissed. Their reasons follow.
2. On 26 July 2007 there was a hearing in the High Court before Panckhurst J at which counsel for the appellant advised that an application for a stay of the prosecution would be made. The judge directed that it should be heard before the end of 2007. No application had been filed by 2 November, when the judge directed that any pre-trial applications be filed before the end of that month. On 29 November 2007 he recorded that any such application was to be filed before the Christmas vacation.
3. A draft stay application without affidavits was filed on 21 December 2007. On 5 February 2008 the judge directed that any stay application was to be filed by 24 April and argued in the week commencing 12 May. By this time the judge was becoming anxious about the delay in bringing the case to trial. On 13 May the stay application was not yet ready and the judge felt that he had no option but to adjourn the trial, then fixed to begin in August 2008, to 16 February 2009.
4. On 21 August 2008 the appellant's counsel filed a memorandum indicating that this petition to the Privy Council would be filed and that in the meanwhile the stay application before the judge would not be pursued. The judge understandably expressed concern that an excursion to London might result in the stay application to his court being made on the eve of the date fixed for trial. Meanwhile, he gave a number of interlocutory rulings about the admissibility of evidence and the like, some of which were appealed to the Court of Appeal.
5. The High Court has an inherent jurisdiction to stay criminal proceedings if it considers that their further prosecution would be an abuse of process. Section 347 of the Crimes Act 1961, which permits an accused to apply to be discharged if it is established that no reasonable jury could find him guilty, is treated as a statutory basis for the exercise of a similar jurisdiction. Thus the Solicitor-General assured the Board that the High Court had as ample a jurisdiction to put an end to the proceedings if their prosecution would be unjust as the Board could exercise upon an application such as this.
6. The Privy Council, like other final courts of appeal, has an inherent jurisdiction to discharge or vary its own orders in cases in which this is necessary for the purposes of justice. But the exercise of this jurisdiction will be rare, because finality is generally in the interests of justice. In Taylor v Lawrence [2003] QB 528 the English Court of Appeal discussed the circumstances in which it would exercise the jurisdiction in cases in which it was for practical purposes a final court of appeal because the case was not of sufficient general public importance to justify leave to appeal to the House of Lords. Lord Woolf CJ said (at p.547):

"What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy."

7. Their Lordships express no opinion as to whether, if there had been no alternative effective remedy, it would have been established that "a significant injustice has probably occurred". They have not invited argument on the point because there plainly is an alternative effective remedy, namely, a stay application in New Zealand. That is not only an effective remedy but in their Lordships' opinion a far more suitable remedy, as the trial judge is already seised of the case, has heard a number of interlocutory applications and is fully acquainted with all its details. Their Lordships are of course not intending to suggest that upon an application for a stay, the judge should have to reconsider questions on which he has already given interlocutory rulings and which may be relevant to the question of whether the prosecution is an abuse of process. His rulings are binding upon the appellant unless and until they are challenged through the New Zealand appellate process.