Warren v The Attorney General of Pitcairn [2025] PNCA 2 (8 July 2025)

IN THE COURT OF APPEAL OF THE PITCAIRN ISLANDS

CA 1/2023
[2025] PNCA 2

IN THE MATTER of an appeal against Supreme Court decision 2/2022
[2023] PNSC 3 in respect of the validity of the swearing in of the Chief Justice

BETWEEN MICHAEL CALVERT WARREN
Appellant

AND THE ATTORNEY GENERAL OF PITCAIRN
First Respondent

AND THE GOVERNOR OF PITCAIRN
Second Respondent

Hearing: 15 June 2025 on Pitcairn Island (via AVL)
16 June 2025 New Zealand

Coram: Young P
Dean JA
Dobson JA

Counsel: A J Ellis for Appellant
D E Kelly & K Raftery KC for Respondents

Judgment: 8 July 2025

JUDGMENT OF THE COURT

Table of Contents

Para

Introduction [1]

Background facts [3]

The Supreme Court decision [11]

Issues for this appeal [14]

Are the issues moot? [16]

The law [17]

The arguments on appeal [19]

Decision [22]

Issues 3 and 4 [32]

Outcome [33]

Introduction

[1] This is an appeal from the decision of Haines J in respect of the validity of the swearing in of the current Chief Justice of the Pitcairn Supreme Court on 20 January 2022.^[1] The relevance of this issue to the appellant is that Heath CJ heard appeals by Mr Warren against his conviction and sentence in the Magistrate’s Court on 6 December 2021 on three charges of behaving in an indecent manner in a public place on Pitcairn.^[2]
[2] At the commencement of the hearing, Mr Warren’s counsel argued that the President of this Court should recuse himself from hearing this appeal. The President declined to recuse himself.^[3]

Background facts

[3] The background (and undisputed) facts to this appeal are set out in Haines J’s judgment at paragraphs [33] to [38].^[4]
[4] In brief, Blackie CJ reached the mandatory retirement age of 75 on 21 January 2022. The Governor appointed the Hon Paul Heath QC as his successor. On 14 January 2022, Blackie CJ wrote to the Governor setting out his view that two Chief Justices could not sit at the same time. Therefore, he proposed to retire as Chief Justice on 19 January 2022 so his successor could be appointed the following day. He went on to advise that it would be appropriate that the Governor appoint him as “Acting Chief Justice” until the incoming Chief Justice was sworn in and had assumed the functions of the office. He could then administer the oaths to the new Chief Justice as his last act for the Pitcairn Supreme Court.^[5] On 16 January 2022, the Governor duly appointed him to be the Acting Chief Justice with effect from 19 January 2022.^[6]
[5] On 20 January 2022, a special Court sitting was held on Pitcairn with video-links to New Zealand. Blackie CJ presided during the first part of this sitting and administered the oath of allegiance and judicial oath to the incoming Chief Justice. Heath CJ then took over as the presiding officer of the Court. The new Chief Justice, in turn, then administered the oaths to the two new Justices of the Pitcairn Court of Appeal, Asher and Dobson JJ. (No issue was taken by the appellant in relation to their appointments, including their selection to sit on this appeal in late April 2025 but later adjourned with a different coram to 16 June 2025).^[7]
[6] Shortly after the 20 January sitting, Dr Ellis, as Mr Warren’s counsel, wrote to the Governor and Attorney General, among others, broadly questioning the validity of Blackie CJ’s appointment as Acting Chief Justice and how the special sitting was managed.^[8] Then, by a memorandum to the Supreme Court dated 9 May 2022, in the context of a case management hearing before Heath CJ, Dr Ellis challenged the validity of Blackie J’s appointment as Acting Chief Justice. He submitted: ^[9]

As a consequent Charles Blackie ACJ could not lawfully swear Your Honour into office, and your Honour cannot lawfully carry out duties until lawfully sworn in. Any previous actions on this case are a breach of the Constitution, as were any prior acts on this case.

[7] For the removal of doubt, at a court sitting on Pitcairn on 13 June 2022, with a video-link to New Zealand, the oath of allegiance and judicial oath were re-administered to Heath CJ by Lovell-Smith J, then the most senior judge of the Supreme Court. Between taking office on 20 January 2022 and re-swearing his oaths on 13 June 2022, the Chief Justice did not hold any substantive hearing or make any substantive decisions in any matter affecting Mr Warren, including his appeals on the indecency charges. During that time he issued three procedural case management minutes.^[10] On 16 June 2022, Mr Warren initiated the litigation, the subject of this appeal.
[8] One remaining factual matter, unrelated to Blackie CJ’s appointment, can be conveniently set out at this point of our judgment. This appeal was originally to be heard on 29 and 30 April 2025 with a coram of Young P, Asher and Dobson JJ. However, members of the Court became aware during the weekend of 26-27 April 2025 that Asher J was no longer a judge of the Pitcairn Court of Appeal. Section 54 of the Constitution of Pitcairn provides that justices of the Court of Appeal only hold office until they attain the age of 75, unless their appointment is extended for a further period not exceeding two years. No extension was made and therefore Asher J was no longer a judge of this Court and able to sit on the appeal. No other member of the Court was available to sit at such short notice.
[9] The Court acknowledged the late advice of the abandoned fixture and that this was understandably upsetting to both counsel and the appellant. The responsibility to ensure compliance with the constitutional provisions fell on the Attorney General’s office, which had offered its apology to all parties for the oversight.^[11]
[10] On the face it, this matter seemed irrelevant to the issues in this appeal. However, Dr Ellis argued that this “significant event” was directly relevant and “demolish the Respondents’ mootness argument”. Hence the need to explain the circumstances of the change of panel for the hearing of this appeal.

The Supreme Court decision

[11] Haines J heard Mr Warren’s challenges to Blackie J’s appointment as Acting Chief Justice, and his ability to lawfully administer the oaths of office to Heath CJ on 20 January, over two days, 12-14 December 2022 (Pitcairn time). He delivered a comprehensive (36 page) judgment on 17 May 2023 (Pitcairn time). The gist of those challenges were that Blackie CJ should not have advocated for his own appointment as a judge; could not be appointed Acting Chief Justice since no such position existed under the Pitcairn Constitution; and because he did not take the oath of allegiance and judicial oath following this appointment he could not, in turn, lawfully administer those oaths to Heath CJ.
[12] In summary, Haines J found that:

• (a) The former Chief Justice was lawfully appointed as an Acting Judge under s 52(2) of the Constitution. It was immaterial that the Governor’s notice appointed him as “Acting Chief Justice” as opposed to an Acting Judge. This description was to be read only as a “condensed description of the office and of the role intended to be played by Blackie CJ ... at the 20 January 2022 sitting”.^[12]
• (b) Despite the lawful appointment, Blackie CJ’s omission to take the oaths (required by s 52(5) of the Constitution) meant he could not enter upon the functions of his office, including administering the oaths to the new Chief Justice. He rejected the Crown’s submission that oaths were not required because the Chief Justice would not be called on for “active judicial services”.^[13]
• (c) However, the de facto officer doctrine applied. Blackie CJ was a judge-in-fact of the Supreme Court and therefore able to administer lawfully the oaths to Heath CJ. Authorities Haines J relied on in applying the doctrine included Warren v R [2015] PICA 1. There, the Pitcairn Court of Appeal applied the doctrine in the context of an earlier unsuccessful challenge by Mr Warren to the validity of Blackie CJ’s original appointment in 2000.^[14]

[13] At the end of his judgment, Haines J considered the Crown submission that the issues were moot given the new Chief Justice re-swore his oaths on 13 June 2022. Although he described the submission as a “strong” one, he considered – albeit with “some disquiet” – there was good reason in the public interest to exercise his discretion to determine Mr Warren’s claims.^[15] In those circumstances he did not reach any conclusion as to whether the issues were moot.

Issues for this appeal

[14] The parties agreed – in a joint list of issues dated 17 April 2025 – that the following four issues be determined by this Court:

CA1/2023

2. Are the issues raised moot? And if so, should the Court dismiss the appeal?
3. Was Justice Blackie lawfully appointed as an acting judge?
4. Is the de facto doctrine still valid, and if so did Justice Blackie have authority as a de facto judge to administer oaths to Chief Justice Heath?
5. Should Haine J’s decision be overturned because of his comments about counsel?

[15] During the hearing, after discussion with the Court, Dr Ellis advised the Court that issue 5 was no longer pursued.

Are the issues moot?

[16] The respondents argue that the issues in this case are moot and we should dismiss the appeal. We agree.

The law

[17] As Haines J noted at paragraph [122] of his judgment:

It has always been a fundamental feature of the common law judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved. A limited discretion applies in the area of public law. However, that discretion is exercised with caution. Issues which are academic between the parties should not be heard unless there is good reason in the public interest for doing so. See R v Secretary of State for the Home Department, ex parte Salem [1999] UKHL 8; [1999] AC 450 (HL) at 456-457[1999] UKHL 8; , [1999] 2 All ER 42 at 47, applied in R (on the application of Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, [2021] 1 All ER 780 at [40].

[18] The doctrine is helpfully summarised in Michael Fordham’s Judicial Review Handbook as follows: ^[16]

Hypothetical/academic issues: utility. Courts do not like holding moots. One of the great values of public law is in clarifying and guiding, prospectively. But even that function is recognised as a function which arises out of deciding a specific dispute requiring resolution. In general, judges need persuading that it is right to entertain a judicial review challenge where the sole issues are, or have become, academic or hypothetical. Sometimes it will be in the public interest to grasp the nettle, rather than leave the uncertainties for yet further litigation in the future. The position on appeal may be different too, since there will be a binding judgment which may be erroneous and need considering, even though it may have become academic to the parties.

The arguments on appeal

[19] The competing arguments can be briefly summarised since we address these more fully in our reasons below for finding the issues are, indeed, moot.
[20] The respondents say the issues are moot because:

• (a) The question of the validity of Blackie CJ’s appointment is academic and a point of principle only. Any deficiencies in his appointment were cured when Heath CJ re-swore his oaths on 13 June 2022. The appeal lacked any merit, Mr Raftery said, “other than to satisfy a whim of Mr Warren’s that he believes there has been judicial maladministration of some sort”.
• (b) The fact that the earlier fixture for this appeal had to be abandoned and this challenge to Blackie CJ’s appointment did not, as Dr Ellis contended, show recurring problems with judicial appointments requiring reassessment of the process of appointment of judges. There was no correlation, Mr Raftery argued, between the issues of Blackie CJ’s “appointment” and the “assignment” or “allocation” of Asher J to sit on this appeal. To use the word “appointment” in relation to the issue of Asher J’s ability to sit on this appeal was, he said, “unfortunate and misleading”.
• (c) The only three matters Heath CJ dealt with in the period between 20 January and 13 June were administrative and dealt with nothing of substance or anything that affected Mr Warren’s rights.
• (d) There is no public interest requiring determination of issues 2 and 3. Mr Raftery argued that, were it not for the “tone and strong language” Dr Ellis used in his extensive criticisms of Blackie CJ, and by inference the administration of justice on Pitcairn, Haines J “might have been tempted to say the issues were moot”. It was only the need for public confidence in Pitcairn’s justice system that led the Judge to determine Mr Warren’s claims.

[21] The appellant says the issues are not moot because:

• (a) There is a recurring and unresolved issue of invalid judicial appointments. Dr Ellis submitted that since filing his submissions, “significant events”, that is the adjournment of the earlier fixture for this appeal, had arisen which “demolish the ... mootness argument”. The fact Asher J could not sit on the appeal “precisely mirrors”, he said, “the constitutional irregularity at issue in the appeal – unlawful judicial appointment or action – and proves such errors are not remote or unlikely, but ongoing and systemic”.^[17]
• (b) Nor are the issues abstract or academic because on prior occasions the entire Court of Appeal had to be re-sworn and Robertson P of the Court of Appeal had to be sworn in three times before the authorities were able to comply with lawful appointment procedures. That history, he argued, along with the recent adjournment, “exposes a pattern of systemic administrative failure in judicial appointments”.^[18]
• (c) More generally, Dr Ellis contended that the underlying issue of judicial legitimacy has real and practical implications for the rule of law and public confidence in the judiciary. The appeal is therefore not moot.

Decision

[22] We find the issues are moot. We agree with the respondents that Mr Warren’s points are ones of principle only. They are now academic
[23] First, as already noted, to avoid doubt the Chief Justice re-swore his oaths before Lovell-Smith J at the sitting on 13 June 2022. As Haines J said: “The validity of the appointment of Heath CJ [as Chief Justice] is not itself challenged”.^[19] Nor was it challenged that Heath CJ re-swore his oaths on 13 June so he could lawfully preside over Mr Warren’s appeals against his conviction and sentence for indecent behaviour. In a minute dated 17 June 2022, Heath CJ expressly records: “Dr Ellis has confirmed that Mr Warren does not object to me dealing with this proceeding, or the new appeals to be filed and served on or before 27 June 2022 from this point on.”^[20]
[24] Secondly, during the period between 20 January 2022 and 13 June 2022, Heath CJ did not hold any substantive hearing or make any substantive decisions relating to Mr Warren. The only actions he took were to issue three procedural case management minutes. All three minutes were issued on the papers. No contested issues arose on any of these minutes.
[25] The first minute was dated 2 February 2022. Its sole purpose was to “establish a mechanism for Mr Warren’s challenges to orders made in the Magistrates’ Court to be determined as soon as practicable”.^[21] Dr Ellis had filed one document which purported to be both an application to the Magistrate’s Court to state a case and an appeal to the Supreme Court against the sentence imposed on Mr Warren on 6 December 2021. Heath CJ directed the Registrar to separate out the two parts of the document: with the application for the case stated to be referred to the Magistrate and the appeal against sentence to remain in the Supreme Court for determination.
[26] The second minute was dated 1 April 2022. The Registrar had referred Mr Warren’s application for a rule nisi to Heath CJ. Heath CJ directed the Registrar to arrange a case management conference for the application to be considered in conjunction with Mr Warren’s appeal against sentence.
[27] The third minute was dated 10 May 2022. By this time, Mr Warren had four applications or appeals on foot. Heath CJ had scheduled an audio-visual conference for the following day to consider what directions should be made in relation to these matters. Pertinently, the Chief Justice recorded that by a memorandum dated the day before (9 May), Dr Ellis had challenged “the validity of my appointment”.^[22] (Strictly, this description of the issue was not entirely accurate: Mr Warren’s challenge was only that the Chief Justice had not been “lawfully sworn into office”.^[23]) Accordingly, the scheduled hearing for the next day was adjourned and Heath CJ went on to note that Mr Warren might “need to issue a proceeding to challenge my appointment, in which case the Registrar is directed to refer the application to another Supreme Court Judge”.^[24] He appropriately took no further action pending resolution of the challenge.
[28] Like Haines J, we are satisfied that these three matters were purely administrative. Heath CJ dealt with nothing of substance or anything which affected Mr Warren’s rights, including his right to a fair trial on his appeals against conviction and sentence. Neither in his written, or oral submissions, did Dr Ellis suggest otherwise in relation to these three specific matters. Rather, his submissions were directed to his general proposition that Blackie CJ’s appointment was unlawful and therefore Heath CJ could not lawfully take any action on his client’s matters before 13 June 2022 (when he re-swore his oaths).
[29] Thirdly, these facts are unique to this case and, as Mr Raftery put it, they do not raise “uncertainties” about the validity of any other judicial appointment. We reject Dr Ellis’s argument to the contrary: that the “exact error under challenge has [been] repeated” with recent events.^[25] The need to re-allocate the coram for this appeal, for the reasons explained at paragraph [8] above, has nothing to do with issues of the validity of Asher J’s appointment or the administration of oaths. The argument is misconceived. As to Dr Ellis’s reliance on other occasions when Pitcairn judges had to be re-sworn, these are in the past and each peculiar to its own facts. As such, this is not a case where it is in the public interest to “grasp the nettle, rather than leave the uncertainties for yet further litigation in the future”.^[26] There are no unresolved uncertainties or pending litigation.
[30] Finally, we do not consider, as Haines J did, there is any reason in the public interest to consider the other issues in this appeal. At paragraph [127] Haines J said:

... I have decided, with some disquiet, to determine the claims made by Mr Warren. As already mentioned in this decision the submissions advanced on [Mr Warren’s] behalf, often in language best described as unhelpful to the dispassionate determination of the issues, were severely critical of Blackie CJ and by inference, the administration of justice in Pitcairn. It is in the public interest those criticisms be ventilated and subjected to objective judicial assessment.

[31] It is unsurprising that for these reasons Haines J did not decide the claim by the respondents that the issues were moot. Mr Warren’s criticisms of the former Chief Justice included that he acted “in his own cause”; his actions were “not only inappropriate, but unconstitutional, and self-serving”; his requested appointment was “no more than a whim or impulse”; he “unlawfully lobbied for his own appointment”; when he was originally appointed he thought he was “getting a sinecure”; and that the Chief Justice and the Governor together “usurped” Lovell-Smith J’s position to carry out the functions of Chief Justice.^[27] All these criticisms were subject to detailed objective assessment by Haines J and there is no need, in the public interest, for this Court to do so again.

Issues 3 and 4

[32] Given our finding the issues are moot there is no need to consider the remaining issues, except to say that had we done so, we would have reached the same outcome as Haines J did in the Supreme Court.

Outcome

[33] The appeal is dismissed.

________________________

Justice Young
President

________________________

Justice Dean

________________________
Justice Dobson

---

^[1] Warren v Attorney General & Anor [2023] PNSC 3.

^[2] Warren v R [2024] PNSC 1. Heath CJ upheld convictions and sentences of $50 on each charge. An appeal to this Court from Heath CJ’s judgment was unsuccessful: Warren v R [2024] PNCA 1.
^[3] Warren v Attorney General & Anor [2025] PNCA 1.
^[4] Above n 1.
^[5] Letter from Blackie CJ to the Governor, 14 January 2022.
^[6] Notice of Appointment of Acting Chief Justice, 16 January 2022.
^[7] Asher and Dobson JJ re-swore their oaths before Heath CJ on 14 October 2022.
^[8] Case on Appeal at pp 61-79.
^[9] Memorandum of Counsel for the appellant, 9 May 2022, at para 7.
^[10] Warren v Attorney General & Anor, above n 1, at [6].
^[11] Memorandum of Young P, 2 May 2025.
^[12] Warren v Attorney General & Anor, above n 1, at [50](c).
^[13] Warren v Attorney General & Anor, above n 1, at [63]-[69].
^[14] Above n 1, at [91]-[107].
^[15] Above n 1, at [121]-[127].
^[16] 6^th ed, Hart Publishing, Oxford, 2012, at para 4.6.
^[17] Submissions in reply on behalf of the appellant, 15 June 2025, para 1.2.

^[18] Submissions in reply on behalf of the appellant, above n 17, para 1.4. Dr Ellis noted in his Supreme Court submissions (SC 2/2022, 25 November 2022) at n 24, that all three judges of the Court of Appeal were required to attend a special sitting on Pitcairn having previously not publicly (and therefore lawfully) sworn their oaths: Warren v The Queen [2013] PICA 1. In January 2014, Robertson P was sworn in again for the third time as he had been incorrectly sworn in as President rather than Acting President.
^[19] Warren v Attorney General & Anor, above n 1, at [10].
^[20] Minute (No 4) of Heath CJ, 17 June 2022, at [12]. (SC 1/2022)
^[21] Minute (No 1) of Heath CJ, 2 February 2022, at [1]. (SC 1/2022)
^[22] Minute (No 3) of Heath CJ, 10 May 2022, at [3]. (SC 1/2022)

^[23] Warren v Attorney General & Anor, above n 1, at [10]. See also Memorandum of Counsel for the appellant, above n 9, at para 3, and Dr Ellis’s written submissions in the Supreme Court, 25 November 2022, at para 60. (SC 2/2022)
^[24] Minute (No 4) of Heath CJ, 10 May 2022, at [8]. (SC 1/2022)
^[25] Submissions in reply on behalf of the appellant, above n 17, at para 1.3.
^[26] Fordham’s Judicial Review Handbook, above n 16, at para 4.6.

^[27] Dr Ellis’s written submissions in the Supreme Court, above n 22, at paras 86, 88, 109, 126 and 131.