The Supreme Court explained why the original trial had been fundamentally unfair and why the Court of Appeal should not have upheld the convictions anyway, despite those serious problems with the trial. It also addressed the constitutional importance of the jury’s role when the Crown case has been substantially recast. The result was not only legally rigorous but publicly intelligible. Readers can understand why convictions entered more than 35 years earlier had to be quashed and a retrial ordered. It shows that the system is capable of recognising and correcting serious errors, even many years later. That public explanation is itself an important part of maintaining confidence in our justice system.
This decision illustrates several of the court’s real strengths. First, it shows the value of a final appellate court that is physically and culturally close to New Zealand. Before 2004, most people in Tamihere’s position, having already lost in the Court of Appeal, would have had no realistic further recourse. The Privy Council heard a tiny number of New Zealand criminal appeals and was notoriously cautious about interfering with convictions. The Supreme Court gave Tamihere a genuine last opportunity to have serious questions about the fairness of his trial examined thoroughly at the highest level inside New Zealand. And credit for reaching that result must also go to his criminal defence barristers, whose persistence and hard work over many years deserves real recognition. I bet there were times when they felt exhausted and disheartened.
Second, the court had the time and resources to grapple with a complex, high-stakes matter in a way that busy trial judges and an overworked Court of Appeal cannot always manage. Trial judges must keep complex criminal trials running fairly and efficiently for everyone involved. The Court of Appeal handles a high volume of cases. The Supreme Court can step back, review the entire history of the litigation, the evolution of the evidence, and the constitutional implications of what an appellate court should and should not do. That depth of consideration is one of its greatest strengths.
The Tamihere judgment is also an example of the court’s willingness to correct decisions of lower courts. Defenders of the Supreme Court point out that it has shown genuine independence by overruling Court of Appeal decisions where it considered them wrong. Far from lacking autonomy, as some once feared, the court has demonstrated that it will apply the law rigorously and without fear or favour or undue deference to judges in lower courts. This helps maintain trust in the fairness of our justice system.
Beyond individual cases, the Supreme Court has brought wider improvements. It hears substantially more final appeals than the Privy Council ever did, dramatically increasing access to justice for New Zealanders. Litigants no longer need the resources or stamina to pursue an appeal to London. They have a domestic final court that is both more accessible and more attuned to New Zealand conditions.
The court has also played an important constitutional and rights-protecting role. Through declarations of inconsistency with the Bill of Rights Act, judicial review, and rights-consistent interpretation of statutes, it helps hold the other branches of government to account while operating within the framework of parliamentary sovereignty. Supporters say this promotes accountability, social stability and a modern, inclusive legal system. It engages with systemic issues rather than simply deciding one dispute at a time.
Lady Deborah Chambers, KC
Transparency and public understanding have improved. The court’s website provides judgments, media releases and case summaries that are far more accessible than in the past. A quick google brings Tamihere’s decision to your phone in seconds. Proceedings are routinely livestreamed or recorded. The practice of the court is to publish written submissions, chronologies and outlines of argument for appeal hearings. This is open justice in action. Open practices lead to open justice, which is a principle I find far more convincing than the heavy hand of the Privacy Act, which I suspect has done more harm than good. The court actively encourages public visits, including guided tours and programmes for school groups and students. These initiatives help demystify the highest court.
The bench itself has become more diverse. The Supreme Court has had a stronger female presence than many comparable courts, and appointments have maintained high standards while bringing a wider range of experience and perspectives to the table. A court that better reflects the society it serves is better placed to command broad public confidence.
Taken together, these features show a Supreme Court that has matured into a valuable New Zealand institution. It has improved access to justice, demonstrated independence, contributed to a more modern and inclusive legal system, and made its work more visible and understandable to the public. It is, in short, doing much of what it was established to do.
No institution is perfect and the court has also attracted legitimate criticism. Given its power and influence, we should expect a high level of legal, media and political scrutiny. Arguably, we have not always seen enough.
Next week, in Part 2, we will look at the bad and the ugly: the criticisms that have been levelled at the court’s judgment-writing style and at some of its substantive decisions.
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