New Zealand Law Society - Supreme Court roundup 19-26 November

Supreme Court roundup 19-26 November

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the past week.

New Zealand Supreme Court

Methamphetamine manufacture and distribution, appeal against sentence

Harding v R [2020] NZSC 127 (17 November 2020)

Partially successful leave application – H sentenced to 28 and a half years’ imprisonment with MPI 10 years after pleading guilty to 11 charges relating to methamphetamine manufacture and distribution – H appealed to CA against conviction and sentence - Conviction appeal said sentencing Judge should have granted leave to vacate four guilty pleas (all related to manufacturing charges) – Appeal dismissed – Sentencing appeal postponed pending the outcome in Zhang v R - Then argued on appeal that Zhang altered sentencing levels for H’s offending - Appeal against sentence dismissed by a differently-constituted panel – H sought leave to appeal to SC against conviction and sentence - Application for leave to appeal against conviction dismissed - Application for leave to appeal against sentence granted on whether CA correct to dismiss sentence appeal.

GBH, appeal against conviction on substituted charge

Stretch v R [2020] NZSC 128 (18 November 2020)

Unsuccessful leave application – S convicted along with two associates of causing grievous bodily harm with intent (s 188(1) of the Crimes Act 1961) – S convicted because he was a party to the offending under s 66(2) of the Crimes Act – On appeal to CA, conviction under s 188(1) quashed and conviction of causing grievous bodily harm with reckless disregard for the safety of others under s 188(2) substituted - Sought leave to appeal to SC against his conviction on substituted charge – SC said in effect, S making same argument SC rejected in a previous case that formulation used in a jury direction failed to distinguish between “possibility” and “likelihood” – SC said no proper basis to distinguish previous case – SC would not normally overrule a previous decision, especially one that reflected a longstanding test (as the case here), unless there was evidence that current law causing difficulty in administration or injustice in its outcome – Application dismissed.

Rape, conviction appeal

Crump v R [2020] NZSC 129 (20 November 2020)

Unsuccessful leave application – C tried by jury for raping his then partner - At trial, complainant said though she initially made advances on him, she made it clear she did not consent to sexual intercourse – C said complainant the one who initiated the intercourse, and he did not immediately realise that she had withdrawn consent part way through - Jury found C guilty – C appealed conviction and sentence to CA – CA allowed sentence appeal – C applied for leave to appeal conviction – SC said no matter of general or public importance arose in respect of any of the three grounds C raised – No risk of miscarriage of justice – Application dismissed.

Employment, Self-represented applicant, appeal direct to SC

Rachelle v Air New Zealand [2020] NZSC 130 (20 November 2020)

Unsuccessful leave application – R commenced proceedings against Air New Zealand Ltd in the Employment Relations Authority claiming unjustifiable dismissal and other grievances - Claim dismissed - Went to Employment Court (EC) - Eight causes of action but five struck out and remainder dismissed - Sought leave to appeal to CA against EC decision – Leave declined - After CA decision, EC delivered a decision dealing on costs in EC, awarding $44,000 to Air New Zealand – Self-represented R applied for leave to appeal to SC against CA decision refusing leave and EC costs judgment – No right of appeal to SC from CA leave decline – Leave application treated only as application for leave to appeal costs judgment - Costs decision orthodox application of Employment Court Guideline Scale - Nothing indicating that decision wrong in law - Certainly nothing to indicate exceptional circumstances justifying a direct appeal from the Employment Court to SC – Application declined.

Supreme Court of Canada

Canadian Charter, sex offender registry, discrimination

Ontario (Attorney-General) v G [2020] SCC 38 (20 November 2020)

Unsuccessful appeal from Ontario CA - In 2001, G had his first and only mental health episode - Charged with two counts of sexual assault against his then-wife - In 2002, found “not criminally responsible on account of mental disorder” - Meant that he did not know what he was doing, did not know that it was wrong, or both - Also meant he did not have any kind of criminal record - Ontario Review Board gave G an “absolute discharge” in 2003 - Meant Board did not need to monitor him - Never charged with any other crime again - Even though he got the absolute discharge G was placed on Ontario’s sex offender registry - Had to report to the police every year - Police could also randomly check up on him - His name could not be deleted from the list, even if he died - G said this was discriminatory - Said it breached ss 7 and 15(1) of the Canadian Charter of Rights and Freedoms - Section 7 protected everyone’s right to life, liberty, and security of person - Section 15(1) said everyone had the right to be treated equally - Judge who heard the Charter application said G’s rights not breached - CA agreed that section 7 rights not breached, but said section 15 rights were – Attorney-General appealed to SC - SC agreed that G’s section 15 right to be treated equally and without discrimination was breached – Said many people wrongly thought those with mental disabilities were always, and by nature, dangerous - Majority said Ontario’s sex offender registry law was discriminatory under section 15 – Did not provide a way for people found not criminally responsible to get off the list or to not have to report - People who were found guilty had ways to do this - This discriminated against people like G based on mental disability – Majority did not need to consider s 7 because it already found a Charter breach under section 15 – Appeal dismissed.

Judicial Committee of the Privy Council

Trial continuation, location of judge and court, COVID

Attorney-General of the Turks and Caicos Islands v Misick and ors [2020] UKPC 30 (13 November 2020)

Unsuccessful appeal from Turks and Caicos CA – M and others defendants (Defendants) in criminal proceedings which began on 7 December 2015 (Criminal Proceedings) in the Turks and Caicos Islands (TCI) – Judge in Criminal Proceedings, though a TCI Supreme Court judge, resided in Jamaica, travelling to TCI when court in session - Trial so far, over 490 sitting days, prosecution closing case on 20 September 2018 - On 12 March 2020, judge adjourned Criminal Proceedings following WHO declaration that Covid-19 a global pandemic – On 20 March 2020, TCI Governor issued Emergency Proclamation regarding Covid-19 - On 17 April 2020, Governor made Emergency Powers (Covid19) (Court Proceedings) Regulations 2020 (Regulations) which came into force on 20 April 2020 - Provided for remote hearings of criminal and civil proceedings - Regulation 4(6) said: “The courtroom shall include any place, whether in or outside of the Islands, the Judge or Magistrate elects to sit to conduct the business of the court: Provided always that the video and audio link facility at the said location must be accessible remotely to the court recorder, interpreter in the appropriate cases, parties, counsel and witnesses ” - On 23 April 2020, Crown applied to resume Criminal Proceedings following Regulation 4(6) – On 24 April 2020, Defendants applied to TCI SC for declarations that Regulation 4(6) unlawful - On 18 June 2020, SC declared Regulation 4(6) purported to create a courtroom outside the TCI jurisdiction - All other relief denied - On 20 June 2020, Attorney General applied to appeal SC declaration - On 7 July 2020, Defendants also applied to appeal SC decision to deny other relief - On 31 August 2020, CA allowed Attorney General’s appeal but dismissed Defendants’ appeal – Defendants appealed to PC on two grounds - First, said Regulation 4(6) in breach of TCI Constitution, as it purported to allow Supreme Court to sit outside TCI (ultra vires issue) - Second, said application of Regulation 4(6) to trial would create an inequality of arms in breach of sections 1 and 6 of the Constitution, as Defendants would be forced to conduct their cases remotely, while Crown able to present its case in the ‘ordinary way’ (inequality of arms issue) – PC dismissed appeal – Said, like CA majority, Regulation 4(6) did not purport to allow SC to sit outside the TCI - Rather, it deemed the place where the judge sat physically to be part of the courtroom in the TCI – Regulation 4(6), properly construed, supported conclusion that it merely deemed judge to be sitting wherever court assembled, notwithstanding his or her actual location – Regarding the inequality of arms, PC said, in effect, it was being asked to interfere in the trial process by making a preclusive ruling as to the trial’s future conduct – Appeal dismissed.

United States Supreme Court

Incarceration, conditions, 8th Amendment prohibition on cruel and unusual punishment

Taylor v Riojas and ors 592 US (2020)

Successful appeal from 5th Circuit - T an inmate in the custody of the Texas Department of Criminal Justice - Alleged that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells - First cell covered, nearly floor to ceiling, in “‘massive amounts’ of faeces”: all over floor, ceiling, window, walls, and even “‘packed inside the water faucet’” - Fearing that his food and water would be contaminated, T did not eat or drink for nearly four days - Correctional officers then moved T to a second, frigidly cold cell, which equipped with only a clogged drain in the floor to dispose of bodily wastes - T held his bladder for over 24 hours, but eventually (and involuntarily) relieved himself, causing the drain to overflow and raw sewage to spill across the floor - Because the cell lacked a bunk, and because T was confined without clothing, he was left to sleep naked in sewage – 5th Circuit CA properly held that such conditions of confinement violated the Eighth Amendment’s prohibition on cruel and unusual punishment - But, based on its assessment that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,” the court said prison officials responsible for Taylor’s confinement did not have “‘fair warning’ that their specific acts were unconstitutional” – SC said CA erred in granting the officers qualified immunity - “Qualified immunity shields an officer from suit when he or she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted” - No reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house T in such deplorably unsanitary conditions for such an extended period of time - Although officer-by-officer analysis would be necessary on remand, record suggested that at least some officers involved in T’s ordeal were deliberately indifferent to the conditions of his cells - One officer, upon placing T in the first faeces-covered cell, remarked to another that T was “‘going to have a long weekend “ - Another officer, upon placing Taylor in the second cell, told T he hoped T would “‘f***ing freeze’”) - Confronted with the particularly egregious facts of this case, any reasonable officer should have realized that T’s confinement conditions offended the Constitution – SC granted T’s petition for certiorari, vacated CA judgment, and remanded the case for further proceedings consistent with SC opinion.

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