New Zealand Supreme Court

Consent application

SKP Inc v Auckland Council and anor [2021] NZSC 35 (27 April 2021)

Unsuccessful leave application - application genesis was opposition to a resource consent Auckland Council granted to  Kennedy Point Boatharbour Ltd (KPBL), following public consultation - Consent authorised KPBL to build and operate a marina at Kennedy Point, Waiheke Island – Submitters opposed to the consent incorporated SKP in June 2017 – Environment Court confirmed resource consent in a decision delivered on 30 May 2018 following an appeal by SKP and another submitter - SKP then pursued a rehearing of its appeal in the Environment Court - Section 294(1) of the Resource Management Act 1991 allowed the Court to order a rehearing where “new and important evidence becomes available” or where there is a “change in circumstances” that in either case might have affected its original decision - Change in circumstances SKP relied on concerned status of the representative body of Ngāti Paoa for the purposes of resource consent applications – SC said SKP wanted to argue that Courts below departed from the usual approach to what constituted a change in circumstances for the purposes of s 294 - Related to HC conclusion that change had to be more than Council’s recognition of the status of a potential submitter and the Court’s approach to the counterfactual analysis – CA said proposed questions on appeal  did “not have implications beyond the particular factual matrix” – SC agreed, saying, proposed grounds of appeal were very much linked to the particular circumstances and the surrounding facts - No questions of general or public importance arose – No miscarriage of justice – Application dismissed.

Application for order

Kim Dotcom v United States of America and anor [2021] NZSC 36 (4 May 2021)

Unsuccessful application for order – D applied for order that, pending determination of the his application for leave to appeal to SC, a CA hearing on 6 May 2021 be adjourned until after application for leave to appeal had been determined  - On 4 November 2020, SC allowed D’s and his co-appellants’ appeal over their applications for judicial review of DC decision finding them eligible for surrender to the USA – On  22 February 2021, SC remitted proceedings to CA to identify  outstanding issues relating to judicial review appeals and resolving those issues – CA panel dealing with remitted appeals was same panel that dealt with the appeals when they first came to CA - On 3 March 2021, D applied to CA for panel to recuse itself from hearing remitted proceedings – In a minute dated 15 March 2021, application dealt with, saying : “The request by the appellants that the panel recuse itself is declined. Full reasons will be given in due course in our substantive decision on the remitted appeals”  - On 3 May 2021, D sought urgent orders regarding his leave application - Sought as a matter of urgency:” … an order that, pending determination of his application for leave to appeal, the 6 May 2021 hearing of the remitted appeal be adjourned until after the application for leave to appeal (and, if leave is granted, any appeal) has been determined” - SC judgment dealt with 3 May  application for adjournment order – Said application related to an interlocutory matter - Meant that both s 74(1) and (4) of Senior Courts Act 2016 applied – SC not persuaded interests of justice required making an order in the form sought – Application dismissed.

Supreme Court of Canada

Prosecutorial misfeasance, police brutality allegations

Ontario (Attorney-General) v Clark [2021] SCC 18 (30 April 2021)

Successful appeal from Ontario CA -  In June 2009, three Toronto Police Service officers arrested M and S in connection with a complaint of armed robbery and forcible confinement - Both men were charged and committed to stand trial - Before trial, M applied to stay the proceedings against him and to exclude evidence of a confession he made on the day of the arrest – Application based on his claim that police beat him during the arrest and caused him a serious rib injury - Assistant Crown Attorney and a senior Crown Attorney agreed that M’s confession would not be admissible - Charges against M were stayed - Jury trial against S proceeded and he was convicted - After conviction, S applied for a stay, alleging that the officers assaulted him and M during their arrest - M and S both testified on the stay application - Assistant Crown Attorney did not call the officers to give evidence and conceded that assaults occurred - Judge accepted the evidence and reduced S’s sentence - Her reasons described the assaults in detail and described the officers’ conduct as “police brutality” - Findings were reported in the media - Special Investigations Unit (SIU) and Toronto Police Service Professional Standards Unit (PSU) then conducted reviews of the allegations of misconduct against the officers - SIU discontinued its proceedings when M declined to participate;  PSU concluded that the alleged misconduct could not be substantiated -  

S appealed decision not to stay the proceedings – CA allowed S’s appeal and entered a stay of proceedings, noting the Crown did not contest the evidence of the assaults – CA strongly criticized the officers’ conduct - Findings were reported in the media - After the appeal, the SIU reopened its investigation and concluded that M’s rib injury post‑dated the arrest and evidence did not substantiate allegations against the police - An Ontario Provincial Police review concluded that the PSU investigation was thorough and that there was no reason to refute its conclusions - Officers sued Attorney General for negligence and misfeasance committed by the Assistant Crown Attorney, the senior Crown Attorney and the appeal Crown Attorney - Sought general damages for negligence and misfeasance, plus aggravated, exemplary and punitive damages - Claimed to have suffered irreparable harm to their reputations and credibility - Attorney General moved to strike the claim for failing to disclose a cause of action - Motions judge struck the negligence claim but allowed the misfeasance claim to proceed – CA upheld - Only misfeasance claim was appealed to SC – SC majority allowed appeal and struck out misfeasance claim – Said prosecutors did not owe specific legal duties to the police regarding how they carried out a prosecution - Misfeasance could not be used to get around this reality - Piercing Crown prosecutors’ immunity to make them accountable to police officers would put Crown prosecutors in perpetual potential conflict with their transcendent public duties of objectivity, independence, and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice - This meant officers’ misfeasance claim would not succeed – Appeal allowed.

Judicial Committee of the Privy Council

Appeal on point of law alone and certified as being point of law of general public importance

Fundhaven Ltd and anor v Executive Director of Securities Commission of the Bahamas [2021] UKPC 11 (26 April 2021)

Unsuccessful appeal from Bahamas CA - On 29 March 2011, F found guilty and fined in respect of several regulatory breaches – Under SC appealed to SC -  On 6 January 2012, SC upheld Committee finding but reduced the fine by roughly one-third, being satisfied that breaches had been made out for only two of the three years - F sought leave to appeal SC decision out of time by filing a Notice of Motion on 7 October 2013 - Section 21(1) of the Court of Appeal Act required that a person may only appeal SC judgment, order or sentence on ground which involved a point of law alone and which SC certified as being a point of law of general public importance - At first leave application hearing CA dismissed application as F did not have the necessary certificate from the court below - CA suggested F re-file application with a certificate - On 2 October 2013, F applied to court below to certify the appeal - CA deemed the certificate which had been issued unsatisfactory and agreed to consider for itself whether the appeal should be certified under section 21(1) – CA declined to certify the appellants’ application – Said did not raise  point of law of general public importance.- F appealed to PC – PC said certificate purportedly issued under section 21(1) had to identify and state what the point or points of law of general public importance were -  Certification process enabled point of law to be identified without the need for further inquiry – All CA should need to consider was the certificate -Should not be necessary and not appropriate for CA to trawl through the transcripts and the parties’ written and oral submissions seeking to “find” the point of law - Point of law must be stated in the certificate itself – PC said C A justified to conclude that the 16 appeal grounds raised points of fact or mixed fact and law rather than points of law alone -  CA then considered whether the suggested points of law were of general public importance and concluded that they were not – PC said CA correctly observed that points depended on matters of fact and it was difficult to see how they “transcend the circumstances of the parties and are of great public importance to The Bahamas' financial sector and to the public generally” – Appeal dismissed.

United Kingdom Supreme Court

Extradition, prison conditions, assurances

Zabolotnyi v Matezalka District Court (Hungary) [2021] UKSC 14 (30 April 2021)

Unsuccessful appeal from CA -  Mateszalka District Court, Hungary, requested Z’s  extradition under an accusation European Arrest Warrant (EAW) -  EAW in correct form and contained all necessary information - Z resisted extradition saying there was a real risk that he would be held in prison in Hungary in conditions which amount to inhuman or degrading treatment contrary to article 3 of the European Convention on Human Rights (ECHR), in particular due to the lack of personal space in cells - In 2015, the European Court of Human Rights (ECtHR) upheld a number of complaints of inhuman or degrading treatment contrary to article 3 arising from overcrowding in Hungarian prisons - In other decisions, the ECtHR has made it clear that, to comply with article 3, each detainee should normally have at least three square metres of floor space - In September 2017, District Judge (DJ) ordered Z’s extradition to Hungary – Said Hungary aware of obligations under article 3 ECHR and had taken significant steps to improve its prison estate and reduce overcrowding - He was satisfied the presumption that Hungary was compliant with article 3 ECHR had been restored, and that there was no need to request an assurance from Hungary regarding prison conditions in which Z would be held - Z appealed to  Divisional Court against extradition order - Before his appeal was heard, Divisional Court said in another case  that assurances in respect of prison conditions were required to permit extradition to Hungary - Following this decision, the Hungarian Ministry of Justice provided a personal assurance to Z that he would be held in one of two modern prisons, Szombathely or Tiszalök, in conditions that guaranteed him at least three square metres of personal space – Z applied for permission to rely on fresh evidence at his appeal hearing, which was not available to DJ at the extradition hearing - Evidence comprised reports detailing alleged breaches of assurances given to persons extradited to Hungary, drawn from accounts given by individual prisoners after their return - Three of those prisoners had been extradited to Hungary from the UK, and two from Germany - Divisional Court refused to admit reports and dismissed Z’s appeal - Said it could only consider evidence concerning alleged breaches of assurances given to a third state, such as Germany, if it was satisfied that the evidence was manifestly credible, directly relevant to the issue to be decided, and of real importance for the purpose of that decision – Z appealed to SC – SC unanimously said no heightened test -  However, it dismissed Z’s appeal because Divisional Court bound by section 27 of the Extradition Act 2003 to uphold the DJ’s extradition order - This was because the fresh evidence could not be considered decisive in favour of Z so could not have resulted in a different outcome in this case – Appeal dismissed.