Pora v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/2014
[2014] NZCA 74

BETWEEN	TEINA ANTHONY PORA Applicant
AND	THE QUEEN Respondent

Hearing:	13 March 2014
Court:	O’Regan P, Wild and Miller JJ
Counsel:	J G Krebs and I Squire for Applicant M D Downs and Z Hammill for Respondent
Judgment:	17 March 2014 at 11 am

JUDGMENT OF THE COURT

The application for bail is dismissed.

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REASONS OF THE COURT

(Given by O’Regan P)

The applicant, Mr Pora, has been in prison for 21 years, having been sentenced to life imprisonment for rape, murder and aggravated burglary. He applied for, and was granted, leave to appeal against his convictions to the Judicial Committee of the Privy Council. His counsel, Mr Krebs, told us he expects the appeal to be heard in the last quarter of this year.
The applicant applied to this Court under s 55 of the Bail Act 2000 for bail pending the disposition of his appeal to the Privy Council.
We indicated to counsel at the hearing of the application that we would determine the issue of jurisdiction before hearing submissions on the merits. Having heard from Mr Krebs on that issue, we reached the clear conclusion that this Court does not have jurisdiction to deal with the present application. We did not therefore go on to consider the merits.
We can set out our reason briefly. Section 55(1) says the section applies to a person who “is appealing [his or her] conviction or sentence, or both, to the Court of Appeal or the Supreme Court”. The applicant’s appeal is to neither this Court nor the Supreme Court. Section 55 does not apply to him.
Mr Krebs accepted that s 55 did not apply to a person whose appeal was to the Privy Council. But he said the Court should interpret s 55 broadly and accordingly appeals to the Privy Council should be seen as equivalent to appeals to the Supreme Court. There was, he said, no logical basis for any distinction between the two.
We accept that the applicant is exercising what is, in effect, a second appeal to the Privy Council which is similar in substance, though not in form, to a second appeal to the Supreme Court. But it would be wrong for this Court to read into s 55 words that are not there. This Court’s jurisdiction is statutory, and it cannot assert a jurisdiction that Parliament has not given it.
The fact that this Court does not have jurisdiction to deal with the present application under s 55 is not the end of the matter, however. There appears to be an alternative pathway to the obtaining of bail, but from the High Court rather than this Court. As was established by the Supreme Court’s decision in Zaoui v Attorney‑General, the High Court has an inherent jurisdiction to grant bail in situations where no statutory power exists and there is no statutory provision excluding such jurisdiction.[1] Counsel for the Crown, Mr Downs, indicated to us that the Crown may wish to dispute that the inherent jurisdiction applies to the applicant’s situation. We do no more, therefore, than indicate the possible avenue provided by the High Court’s inherent jurisdiction. It will be for that Court to determine whether the inherent jurisdiction applies and if so, whether it should be exercised in the applicant’s favour.
[1]Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) at [30]-[31].
We indicated to Mr Krebs that we considered the present application should have been made to the High Court. To facilitate the process of bringing an application before the High Court, we undertook to direct the Court of Appeal Registry to forward to the High Court Auckland Registry the material filed in this Court with a request that the High Court accept this as sufficient to initiate an application to the High Court for the grant of bail in its inherent jurisdiction. The Court of Appeal Registry has now done this.
Having decided this Court has no jurisdiction to grant bail, we formally dismiss the application. We express no view on the merits of the application.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Teina Anthony Pora v The Queen involved the applicant, Mr Pora, who sought bail pending an appeal to the Judicial Committee of the Privy Council against his conviction for life imprisonment for rape, murder, and aggravated burglary. The applicant had been in prison for 21 years. The court had to decide whether it had the jurisdiction to grant bail under s 55 of the Bail Act 2000, given that the appeal was to the Privy Council and not the Court of Appeal or the Supreme Court. The court found that the Bail Act did not extend to appeals to the Privy Council and therefore lacked the jurisdiction to grant bail under that section. However, the court acknowledged that there may be an alternative pathway to obtaining bail through the inherent jurisdiction of the High Court, as established in Zaoui v Attorney-General, and suggested that the applicant should pursue that option.

The legal issues before the Court of Appeal were whether it had jurisdiction to grant bail to the applicant under s 55 of the Bail Act 2000, and if not, whether there was an alternative pathway to obtaining bail through the inherent jurisdiction of the High Court. The court concluded that it did not have jurisdiction to grant bail under the Bail Act as the applicant's appeal was to the Privy Council. However, the court recognised that the High Court has an inherent jurisdiction to grant bail in situations where no statutory power exists and there is no statutory provision excluding such jurisdiction. The court suggested that the applicant should pursue this alternative pathway to obtaining bail through the High Court.

The Court of Appeal found that it did not have jurisdiction to grant bail to the applicant under s 55 of the Bail Act 2000 as the applicant's appeal was to the Privy Council and not the Court of Appeal or the Supreme Court. The court emphasised that its jurisdiction is statutory and cannot extend beyond what Parliament has granted. However, the court acknowledged that there may be an alternative pathway to obtaining bail through the inherent jurisdiction of the High Court, as established in Zaoui v Attorney-General. The court suggested that the applicant should pursue this alternative pathway and directed the Court of Appeal Registry to forward the material filed in this Court to the High Court Auckland Registry with a request that the High Court accept this as sufficient to initiate an application for the grant of bail in its inherent jurisdiction.

The Court of Appeal formally dismissed the applicant's application for bail. It expressed no view on the merits of the application and suggested that the applicant should pursue the alternative pathway to obtaining bail through the inherent jurisdiction of the High Court. The court directed the Court of Appeal Registry to forward the material filed in this Court to the High Court Auckland Registry with a request that the High Court accept this as sufficient to initiate an application for the grant of bail in its inherent jurisdiction.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established