New Zealand Law Society - Supreme Court roundup 25 June - 1 July 2021

Supreme Court roundup 25 June - 1 July 2021

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

New Zealand Supreme Court

Fee waiver, Deputy Registrar decision 

Zhang v District Court at Wellington [2021] NZSC 69 (23 June 2021)

Unsuccessful application to review Deputy Registrar fee waiver decision – Self-represented Z applied for leave to appeal from HC striking out two applications for judicial review as abuse of process under r 5.35B of the High Court Rules 2016 - On 4 June 2021, SC Deputy Registrar declined Z’s application for waiver of leave to appeal filing fee of $1,100 - Said proposed appeal did not concern  matter of genuine public interest - Rather, it raised issues specific to Z’s case – Z applied for SC Judge to review decision – Judge said ultimate issue before SC on proposed appeal would be whether HC erred to strike out claims - Having reviewed extensive material Z filed, Judge agreed with Deputy Registrar –- Application dismissed.

s 182 Family Proceedings Act, trust

Little v Little and ors [2021] NZSC 70 (24 June 2021) 

Unsuccessful leave application - Concerned s 182 of the Family Proceedings Act 1982 -  application for leave to appeal directly from HC – SC said not one of those exceptional cases justifying a leapfrog appeal, particularly given CA declined to grant leave to appeal to it - Both HC and Family Court applied relevant test and made the same findings, that trust a nuptial settlement - Nothing L raised suggested factual findings in Courts below might have been erroneous – Application dismissed.

Land acquisition RMA, PWA

Dromgool and ors v Minister for Land Information [2021] NZSC 71 (24 June 2021)

Partially successful leave application – Approved question whether CA correct to interpret Minister’s role and obligations when deciding application under s 186(1) of the Resource Management Act 1991 (RMA) – In particular whether Minister had to be satisfied that proposed land taking fair, sound and reasonably necessary for achieving the objectives of the network utility operator or whether sufficient that Minister is satisfied the proposed taking capable of meeting that test – Leave application concerned easements under the Public Works Act 1981 over Northland land including R’s to enable Top Energy Ltd (T), a network utility operator, to build a transmission line - Under RMA s 186(1) network utility operator like T, a requiring authority, could apply to Minister under the Public Works Act (PWA), to compulsorily acquire land required for a project or work - Where Minister agreed to the compulsory land acquisition under s 186, negotiation period required to try to reach agreement on acquisition - If no agreement,  Minister could proceed to take the land under PWA People with an estate or interest in relevant land could object to the Environment Court which considered objection under s 24 PWA - Section 24(7) provided that Environment Court amongst other things, be satisfied that the proposed taking would be “fair, sound, and reasonably necessary” for achieving Minister’s objectives for objector’s land to be taken – Here, Environment Court said taking met s24(7)  test and reported accordingly – D  appealed to HC which allowed appeal in part – Minister appealed to CA – CA allowed appeal – D sought leave to appeal to SC - On question of correct approach to decision-making under s 186(1), and three other grounds relating to various aspects of the decision-making processes adopted here – SC allowed s186 (1) ground, but no leave on others – Said second ground did not add to approved question and remaining two turned on facts – Application partly successful.

Murder, murderous intent, consent

Kempson v R [2021] NZSC 74 (29 June 2021)

Unsuccessful leave application – Following HC trial K found guilty of murdering Grace Millane (M) - Later sentenced to life imprisonment with MPI 17 years – CA dismissed appeal against conviction and sentence - Sought leave to appeal conviction to SC – K put three arguments to SC: (a) way issues were left to jury meant it did not have to deal with whether M’s death culpable homicide before considering murderous intent (b) order of question trail meant consent not to be addressed unless Crown case on s 167(b) Crimes Act rejected - Meant intent and recklessness inquiry was “to be determined as if the deceased did not consent” - Said to have “made it impossible for a jury to determine whether K subjectively appreciated the risk deceased could well die” (c) consent as a defence to a charge of murder resting on s 167(b) not precluded by s 63 Crimes Act or otherwise –

SC said if Trial Judge right to find murderous intent finding excluded consent, no need for jury to separately address the culpability of the homicide - Judge summarised  issues bearing on murderous intent in summing up - Did not, in that part of the summing up, direct the jury to address murderous intent assuming no consent - Numerous references to defence arguments on “consent”, “accident”, “breath play” or related words - He put to the jury defence arguments about consent as relevant to whether murderous intent had been established – Both HC and CA concluded consent did not, at least here, provide a defence to intentional infliction of bodily injury known to be likely to result in death – SC said insufficient doubt on  conclusion to warrant leave being granted - Difficult to see how court could responsibly hold that consent a defence to violence carried out with murderous intent – Also, jury’s verdict showed they were sure that if K did not intend to kill M, he at least intended to inflict bodily injury which he knew was likely to result in death – Application dismissed.

Law practitioner, complaint

A Lawyer v New Zealand Law Society and anor [2021] NZSC 75 (30 June 2021) 

Unsuccessful leave application -  In 2015, three complaints about L to New Zealand Law Society (NZLS) - Complaints referred to the Wellington Standards Committee No 2, second respondent - Committee exercised its powers under the Lawyers and Conveyancers Act 2006 to inquire into the complaints and appoint an investigator – L sought judicial review of Committee’s decisions and conduct of investigation – HC accepted decisions were, as a matter of law, amenable to judicial review but dismissed the application because not one of those exceptional cases where Court would intervene in a preliminary decision - L appealed to CA - Dismissing appeal, CA agreed with HC that no demonstrable error warranting intervention – L sought leave to appeal to SC – SC said HC and CA both said judicial review available for preliminary decisions, but cases where intervention justified were likely to be “exceptional” – Said  legal principles that should be applied to reviewability of preliminary decisions might raise question of general or public importance – However, L took no issue with principles, nor way principles stated in Courts below - Rather, complaint over application to facts here - Proposed appeal would turn essentially on how CA applied principles to particular facts - No question of general or public importance arose – Application dismissed.


Supreme Court of Canada

Jury trial, peremptory challenges

R v Chouan [2021] SCC 26 (26 June 2021)

Successful appeal and unsuccessful cross-appeal from Ontario CA - In 2019, Parliament modified how juries selected in Canada – Amendments to Criminal Code abolished accused persons’ peremptory challenges of jurors, modified challenges for cause, and vested trial judges with the power to stand aside prospective jurors to maintain public confidence in the administration of justice - Amendments came into force on the same day that jury selection in C’s trial for first degree murder scheduled to begin, depriving C of the right to remove a limited number of prospective jurors from the jury without providing a reason for doing so -  C challenged constitutionality of abolishing peremptory challenges saying it infringed his right to a fair and public hearing before an independent and impartial jury under Canadian Charter s11 (d) and his right to the benefit of trial by jury guaranteed under Charter s 11 (f)  - C also said amending Act lacked any transitional provisions therefore operated only prospectively and did not apply to his trial - Trial judge dismissed C’s constitutional challenge - Said amendments applied to C’s trial - Jury selection proceeded without peremptory challenges - C convicted of first degree murder and appealed from his conviction – CA  overturned C’s conviction and ordered a new trial - Said abolition of peremptory challenges was constitutional, but that since the amendments affected an accused’s substantive right to participate in the selection of the jury, they operated only prospectively and did not apply to C’s trial - Crown appealed to SC on the issue of the temporal scope of the abolition of peremptory challenges - C cross‑appealed on the constitutionality of the amendments abolishing peremptory challenges – SC majority said constitutionality of the jury selection process had to be considered as a whole -  Reviewed the process following Parliamentary amendments – Said jury selection process continued to guarantee each accused’s right to a fair trial before an independent and impartial jury – Said protections began long before day on which the accused appeared in court to select the jury - Said provincial authorities constantly at work, compiling a representative jury roll of eligible jurors, as part of a process that provided a fair opportunity for a broad cross‑section of society to serve as a juror – Appeal allowed, cross-appeal dismissed.


United Kingdom Supreme Court

Arbitral award against foreign state, service requirements

General Dynamics v State of Libya [2021] UKSC 22 (25 June 2021)

Successful appeal by Libya from CA - Section 12(1) State Immunity Act 1978 (SIA) governed the process for instituting court proceedings against a foreign State - Provided that "any writ or other document required to be served for instituting proceedings against a State" shall be transmitted through the Foreign, Commonwealth and Development Office (FCDO) to the relevant State’s Ministry of Foreign Affairs -General Dynamics United Kingdom Ltd (General Dynamics), sought to enforce an arbitration award of over £16 million plus interest and costs (Award) made in 2016 by an International Chamber of Commerce arbitral tribunal against the appellant, the State of Libya (Libya) - Libya had not paid any of the sums due to GD under the Award - On 21 June 2018, GD issued proceedings to enforce the Award in England and Wales, where GD believed Libya to hold relevant assets - On 20 July 2018, HC ordered enforcement (enforcement order) – Allowed GD to enforce the Award in the same way as a judgment or court order under section 101(2) and (3) of the Arbitration Act 1996 (1996 Act) - Following evidence of civil unrest and political instability in Libya, HC exercised its discretion under rules 6.16 and 6.28 of the Civil Procedure Rules (CPR) to dispense with formal service of the arbitration claim form and enforcement order on Libya - Libya applied to vary the enforcement order  to set aside service dispensation and to require formal service through the FCDO, in accordance with section 12(1) SIA – Libya’s application successful at first instance, but, on GD’s appeal, CA said formal service through FCDO not required and service dispensation should be restored - Libya appealed to SC – SC majority allowed Libya’s appeal - Said a broad reading of section 12(1) of the SIA appropriate, on account of international law and comity which were in play - Words "other document required to be served for instituting proceedings against a State" in section 12(1) wide enough to apply to all documents by which notice of proceedings in this jurisdiction is given to a defendant State – In particular context of enforcement of arbitration awards against a State, relevant document would be the arbitration claim form where court requires one to be served, or otherwise the order granting permission to enforce the award - Where section 12(1) applied, procedure it established for service on a defendant State through the FCDO was mandatory and exclusive, subject only to the possibility of service in accordance with section 12(6) in a manner agreed by the defendant State – Appeal allowed.


Director of Public Prosecutions v Ziegler and ors [2021] UKSC 23 (25 June 2021)

Successful appeal by Z and others from CA - In September 2017, Defence and Security International arms fair held at the Excel Centre in East London – Z and associates (protesters) strongly opposed to arms trade – Protest action consisted of lying down in the middle of one side of an approach road leading to the Excel Centre, and locking themselves to lock boxes, hollow boxes containing bars to which protesters attached their arms - Police present at the scene anticipating demonstrations - Officers tried to persuade protesters to remove themselves from the road -  When this failed, they were arrested - Took roughly 90 minutes to remove protesters from the road as lock boxes were constructed in a way which made them hard to disassemble - Protesters charged with wilful obstruction of a highway without lawful authority or excuse, contrary to section 137(1) of the Highways Act 1980 (1980 Act) - Were acquitted following a trial at Stratford Magistrates’ Court - district judge had regard to the appellants’ article 10 and 11 ECHR rights - Said prosecution had not proved protesters’ highway obstruction of the highway, which was limited, targeted, and peaceful, was unreasonable - Protesters therefore had a defence of lawful excuse for s 137 purposes --

DPP appealed by way of case stated to the Divisional Court - It allowed the appeal and directed that convictions be entered – Said assessment of proportionality of the interference with the protesters’ ECHR rights was wrong, essentially because the district judge failed to strike a fair balance between the interests of the protestors and those of other members of the public - Parties agreed that the issues in the appeal, as certified by the Divisional Court as points of law of general public importance, were:

  1. What was the test to be applied by an appellate court to an assessment of the trial court in respect of a statutory defence of lawful excuse when Convention rights are engaged in a criminal matter?
  2. Was deliberate physically obstructive conduct capable of constituting a lawful excuse for the s 137 purposes, where the impact of the deliberate obstruction on other highway users was more than de minimis (i.e. minimal), and prevents them, or was capable of preventing them, from passing along the highway?

SC majority allowed appeal - Order directing convictions set aside - Dismissal of charges against protesters restored - Section 137(1) 1980 Act to be read compatibly with the ECHR - Involved considering whether public authority’s interference with protestors’ rights proportionate - If not proportionate, such that the interference was unlawful, protestor had statutory defence of lawful excuse – Divisional Court conventionally applied appellate test for appeals by way of case stated in criminal proceedings, including in cases involving proportionality issues – Question whether the court’s conclusion was one which was reasonably open to it – not Wednesbury irrational or perverse – Appeal allowed.

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