New Zealand Court of Appeal

Law practitioners – Trans-Tasman Mutual Recognition (TTMR)

Little (L) v New Zealand Law Society [2022] NZCA 121 (8 April 2022) Kos P, Brown and Goddard JJ

Unsuccessful appeal from decision declining judicial review of NZLS failure to issue practicing certificate (PC) – L practiced as barrister in NSW – Admitted as barrister and solicitor of NZHC under TTMR Act in 2012 but did not apply for NZ PC – NZLS declined PC in 2020 because L was not holder of current Australian PC – L argued he met the mutual recognition requirements at the time of 2012 admission and entitlement to PC crystalised at that point – CA upheld HC decision declining review – Under the Act mutual recognition required 2 authorisations, namely admission to the bar and PC - Separate notification required for each step and notification not given to NZLS – L not “registered in an equivalent occupation in an Australian jurisdiction” at time he applied and not entitled to PC under s17(2).

Sentence – Legislation (login required)

M v R [2022] NZCA 112 (6 April 2022) Kós P, Woolford and Dunningham JJ

Unsuccessful application for leave to appeal from decision declining to adjourn sentencing – M convicted of third strike offence under three strikes-regime – M faced: (i) mandatory imposition of 14 years imprisonment (subject to s9 NZBORA); (ii) mandatory denial of parole unless order manifestly unjust – Bill repealing three-strikes regime before Parliament with coming into force date of 1 Jul 2022 – No provision for retrospective effect – M sought adjournment until after Bill in force which HC declined – CA considered legal principles relating to law change - Constitutional principle that Parliament was the decider of whether pending legislative change would be enacted - Principles in Ngati Whatua Orakei, Kebilene and Walsall Justices (W) – Decision refusing adjournment upheld.

Misuse of drugs - Sentence

McMillan v R [2022] NZCA 128 (11 April 2022) Dobson, Brewer and Edwards JJ

Unsuccessful appeals against sentence by M and T; successful Crown appeal against sentence of home detention (P) - Methamphetamine supply operation - (1) M, leading role as wholesale dealer, late guilty plea on lesser charges, found guilty on most serious charges – Band 5 of Zhang – Appeal related to role/starting point, disparity with co-offenders and lack of discount for mitigating factors – Sentence of 18 years upheld; (2) T, significant role in supply - Guilty plea – Appeal concerned quantity/role, starting point and discount for background/addiction - Sentence of 9 years 1 month upheld; (3) P delivered methamphetamine and cash – Agreed amount 6kg - Guilty plea based on sentence indication – Judge sentenced on facts drawn from M’s trial rather than agreed statement and lesser category of offending – CA reviewed power to revisit sentence indication under s116(2) CPA, use of information from co-defendant’s trial and adequacy of Crown opportunity to contest contrary view – Sentence of 3.5 years substituted.

Sentence – Intentional damage

Fugle (F) v R [2022] NZCA 124 (11 April 2022) Brown, Lang and Mallon JJ

Unsuccessful appeal against sentence – F, angry that Council officers were undertaking subdivision compliance inspection, recklessly operated 20 tonne digger so as to damage their vehicle – Substantial risk to safety of officers – Comparative cases – Combination of community detention and community work imposed to assist F’s ability to travel for business reasons – CA found recklessness at higher end - Sentence confirmed.

New Zealand High Court

Judicial review, vaccine mandates

NZDSOS Inc and anor v Minister for Covid-19 Response and anor [2022] NZHC 716 (8 April 2022) Cooke J

Unsuccessful judicial review application – NZDSOS challenged vaccine mandates in health and disability, and education sectors - Mandates established in October 2021 -  Government announced in March 2022 would be discontinued in education sector, narrowed in health and disability sector – Court said mandates lawful as demonstrably justified limit on right to refuse medical treatment when imposed – Court could not conclude unjustified prior to Government announcements notwithstanding increased transmissibility of Omicron variant reduced mandate justification – Mandate exemption also not unreasonable – Applications dismissed.

New Zealand Supreme Court

Self-represented litigants, leapfrog appeal, dog control

Johnston and anor v Auckland Council [2022] NZSC 40 (6 April 2022)

Unsuccessful leave application – Self-represented Js convicted after Judge-alone DC trial on two charges under s 57(2) of Dog Control Act 1996 - Section provided owner of dog that attacked person, stock, poultry, domestic animal, or protected wildlife committed offence – HC dismissed appeal – Applied for leave to leapfrog appeal –

SC said under s 75 of Senior Courts Act 2016, SC could not grant leave for leapfrog appeal unless satisfied not only that s 74 appeal standard met but also exceptional circumstances justified direct appeal to SC – Requirements not met – Application dismissed.

Sexual offending, “pervasive pattern”

Coleman v Chief Executive Department of Corrections [2022] NZSC 41 (7 April 2022)

Unsuccessful leave application – C convicted of indecent assault offences in 2011, sexual exploitation of person with significant impairment in 2014 - Since then committed several minor offences - Chief Executive (CE) sought extended supervision order (ESO) for C – DC refused – Although “pervasive pattern of sexual offending and sexualised behaviour”, no pervasive pattern of serious sexual offending – CA overturned decision and imposed five-year ESO – C sought leave to appeal to SC –

SC said nothing C raised suggested pervasive pattern test needed modification or that, here, test led to erroneous CA conclusion - No matter of public or general importance or any risk of miscarriage of justice – Application dismissed.

High Court of Australia

Taxation, trust income, “presently entitled”

Commissioner Of Taxation v Carter & ors [2022] HCA 10 (6 April 2022)

Successful appeal from FC – C trust estate beneficiaries -Trust deed said if trustee did not pay, apply, set aside or accumulate any part of trust income in given accounting period, trustee would hold  income in trust for specified beneficiaries, including C - Accounting period defined as 12-month period ending 30 June -  Ensured in each accounting period, whole trust income distributed if not otherwise dealt with – In 2014 trustee did not pay, apply, set aside or accumulate trust income – Commissioner issued assessment to C regarding 2014 income year (2014 Assessments) including as assessable one-fifth trust income because C "presently entitled" to income within meaning of s 97(1) Income Tax Assessment Act 1936 (Cth) – On 30 September 2016, C disclaimed interest in trust income - Subsequently objected to 2014 Assessments relying on disclaimers –

Appeal on question of law from Administrative Appeals Tribunal – Full FC said C’s disclaimers operated retrospectively to disapply s 97(1) for 2014 income year –

HC unanimously said s 97(1) directed to position existing immediately before income year end to identify beneficiaries to be assessed with trust income - Events occurring after income year end could not disentitle beneficiary "presently entitled" immediately before income year end – C’s disclaimers not effective to retrospectively expunge Commissioner’s rights existing at midnight on 30 June 2014 – Appeal allowed.

Negligence, duty of care

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022)

Successful appeal from New South Wales CA – T  experienced and very able horse rider and campdraft contestant - During multi-day Association event, over roughly 45 minutes, four other contestants had falls while competing - After first three falls, S approached event organiser - Said competition should stop because ground becoming slippery - After fourth fall, S again approached organiser and said thought ground "unsafe" - Shortly after, T competed and fell when horse slipped - Suffered serious spinal injury –

CA said T’s injuries resulted from materialisation of obvious risk – Dismissed appeal – She appealed to HC –

HC majority allowed T’s appeal – Said Association breached duty of care, breach caused T’s injuries,  injuries not materialisation of obvious risk of dangerous recreational activity - Reasonable person in Association’s position would have foreseen probability harm would occur if competition not stopped until arena inspected for safety - Risk properly characterised as substantially elevated physical injury risk of falling from horse that slipped due to deterioration of arena surface – Appeal allowed.

Supreme Court of Canada

Constitutional law, alleged unlawful search, Canadian Charter

R v Stairs [2022] SCC 11 (8 April 2022)

Unsuccessful appeal against conviction from Ontario CA – In 2017, police in Oakville, Ontario responded to report about man hitting woman in car - Later identified as S – Empty car parked in house driveway – Police knocked on front door - When no one answered, entered through side door - Inside, found woman with bruised face - Found and arrested S in basement - Police then found drugs (methamphetamine) in basement living room –

S charged with possession of drugs for purpose of trafficking, assault and breach of probation - At trial, S said police not allowed to search home, drug evidence could not be used against him - Invoked section 8 Canadian Charter, which protected people from “unreasonable search or seizure” - Police testified they searched basement living room to address safety concerns -

S convicted of all charges - Appealed drug conviction to Ontario CA – CA said police search had not violated his section 8 Charter right - He then appealed to SC –

SC majority dismissed appeal – Said search complied with s 8 because: (1) S’s arrest lawful; (2) Search related to his arrest, was of surrounding area only and conducted for safety reasons; and (3) Search accounted for increased privacy interests in home - Meant drug evidence could be admitted at trial -

“A fundamental and longstanding principle of a free society is that a person’s home is their castle”, majority said – However, privacy interest balanced with valid law enforcement objectives - Police could search home for safety reasons if search conducted in reasonable manner and accounted for greater expectation of privacy in person’s home – Appeal dismissed.

Judicial Committee of the Privy Council

Undue influence, lawyer

Nature Resorts Ltd v First Citizens Bank Ltd [2022] UKPC 10 (4 April 2022)

Unsuccessful appeal from Trinidad and Tobago CA - D Nature Resorts Limited (NR) principal shareholder and director - Lawyer W, other NR  Director – D in 2007 agreed to sale of 75% of his NR shares - Subsequently executed documents  at W’s office in March 2008, including transferring shares to purchasers and mortgage by which NR conveyed lands to First Citizens Bank Limited (FCB) - Mortgage secured FCB loan to purchasers to finance share purchase - Purchasers subsequently defaulted on repayments to FCB – FCB exercised sale power under mortgage - Negatively affected value of the shares D still owned - NR sought declaration mortgage void and unenforceable - HC and CA refused application – NR appealed to PC - FCB sought permission to cross-appeal on whether CA entitled to find rebuttable presumption of undue influence regarding mortgage (rebutted on the facts) –

PC majority said case primarily about undue influence doctrine – Law in Trinidad and Tobago same as English law - Undue influence claim failed - CA entitled to decide undue influence presumption (if established) rebutted on the facts - Although not necessary, majority said cross-appeal should succeed because, as mortgage readily explicable, no presumed undue influence of W over NR/D in respect of mortgage deed – Appeal dismissed.

Murder, new evidence, time taken for hearing

Edwards v R [2022] UKPC 11 (4 April 2022)

Successful appeal from Jamaica CA – H died in her home on 5 September 2003 - E charged with murder - Case centred on whether E fatally shot H or whether she had committed suicide - Jury convicted E on 31 October 2013 and on 5 November 2013 sentenced to life imprisonment with 35 years before eligible for parole – CA dismissed E’s appeal against conviction but reduced his sentence to 20 years before parole eligibility – E granted final leave to appeal to PC on whether ten year delay between incident and trial contravened Jamaican Constitution – Separately sought permission to appeal to the PC against conviction on various grounds which, taken together, suggested proceedings constituted a miscarriage of justice - Also applied to admit fresh evidence in support of submissions –

PC said leading case on admitting fresh evidence on appeal to PC was 2013 appeal from New Zealand - Overriding test new evidence should be admitted if interests of justice required –Ultimate question whether, taking account of fresh evidence, conviction could be regarded as safe – PC said not here – PC also expressed concerns about other aspects of case – Appeal allowed.