New Zealand Law Society - Supreme Court round up 13 - 19 August 2021

Supreme Court round up 13 - 19 August 2021

Supreme Court round up 13 - 19 August 2021

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

New Zealand Supreme Court

Sexual violation, putting issues to jury

Foster v R [2021] NZSC 90 (12 August 2021) 

Unsuccessful leave application reissued – Applicant convicted of sexual violation by unlawful sexual connection and indecent assault after DC jury trial - Sentenced to six years imprisonment - Appealed against his convictions to CA - Appeal dismissed - Sought leave to appeal to SC against his convictions - Applicant and complainant both police officers based in the greater Auckland area who had been assigned to duties at the Waitangi Day celebrations – Leave application raised two broad issues -First concerned s 21 of the Evidence Act 2006 - Second concerns s 232 of the Criminal Procedure Act 2011 - Applicant said both issues matters of general or public importance and that a substantial miscarriage of justice might occur if appeal not heard – Said CA ought to have recognised that as this was a “she said, he said” case, it was for jury to decide what to make of the evidence the Judge prevented it from hearing, and the approach adopted required speculation - Said errors in combination deprived him of right to offer an effective defence – SC said did not raise matter of general or public importance – Rather, CA analysis fact-specific – SC said no appearance of error in analysis – Application dismissed.

Employment, Labour Inspector role

Gill Pizza and ors v A Labour Inspector [2021] NZSC 97 (12 August 2021) 

Successful leave application - Approved question is whether CA correct to conclude Employment Court erred in finding that, if a defendant asserted there was no employment relationship, Labour Inspector must first seek a declaration of employment status from the Employment Court under s 6(5) of the Employment Relations Act 2000 before commencing or continuing a proceeding under s 228(1) of that Act.

Costs, collective award

Houghton v Saunders and ors [2021] NZSC 98 (12 August 2021) 

Costs order – SC said costs award against G appropriate given recall application lacked merit and was irregular in a number of respects - Respondents were required to respond to it – But SC saw single award to all respondents as better reflecting effort required from them collectively to respond to  application - In the circumstances award costs of $2,500 to respondents collectively appropriate - In absence of agreement to the contrary among respondents, should be divided equally between first respondents on the one hand and the second and third respondents on the other – Award made.

Sex-related offending, complainant’s criminal record

Horton v R [2021] NZSC 99 (12 August 2021)

Unsuccessful leave application – Following DC trial H found guilty of violent and sex-related offending against a single complainant - Had earlier pleaded guilty to a single charge of supplying methamphetamine – H sought to appeal CA decision dismissing his appeal against conviction- Sought to argue that trial Judge caused a miscarriage of justice when he declined leave to cross-examine the complainant about her previous conviction for dishonesty offending – Applicant’s arguments related to applying settled principles to the particular facts of this case – Authorities consistently state that the test in s 37 Evidence Act 2006 to a witness’s prior criminal record is very much a contextual exercise – Here CA carefully assessed complainant’s list of prior convictions and came to the view that, in context, they would not be substantially helpful to jury in assessing the complainant’s veracity – No risk of miscarriage of justice – Application dismissed.

Dog control, strict liability

Newlands v Nelson City Council [2021] NZSC 100 (12 August 2021) 

Unsuccessful leave application - N charged with two offences under the Dog Control Act 1996 - First was a charge under s 33E(1)(a) of the Act, that being the owner of a menacing dog (named Baloo) she allowed the dog to be at large in a public place without a muzzle - Pleaded guilty to this offence - Second an offence contrary to s 57(2) of the Act, that she was owner of a dog that attacked an animal (being another dog named Jasmine) - N defended this charge but was convicted after a District Court trial - Under s 57(3) court must order destruction of a dog that has committed an attack in terms of s 57 “unless it is satisfied that the circumstances of the offence were exceptional and do not warrant destruction of the dog” – Judge said circumstances not exceptional ordered Baloo’s destruction - Also sentenced N to pay $1,000 emotional harm reparation to Jasmine’s owner - Appealed to HC unsuccessfully against her conviction under s 57 and against sentence - Focus of latter on  destruction order – Argued, among other things, s 57 not a strict liability offence, but rather one that required proof of negligence - HCJ rejected this, citing a CA decision - Applied for leave to appeal directly to SC – SC said strict liability here settled law – SC had not considered the point, but not satisfied that a point of law justifying an appeal to SC arose here -  No risk of  miscarriage of justice in the way the case determined at DC, HC level – Application dismissed.

Self-represented applicant, judgment recall

Alkazaz v Enterprise IT Ltd [2021] NZSC 101 (16 August 2021)

Partly successful application to recall judgment – Self-represented A applied for leave out of time to appeal directly against Employment Court dismissing his challenge against the Employment Relations Authority’s (ERA’s) refusal to reopen a prior investigation – Among other things, said minor factual errors in SC stay decision - Appropriate to correct through recall - No material effect on result - Substantive matters A raised moot.

Judicial Committee of the Privy Council

Damages claim following road accident

Harvey and anor v Brette and ors [2021] UKPC 23 

Unsuccessful appeal from Maritius SC - Claim for damages following a road traffic accident - On 8 March 2010, H driving his van along Royal Road, Mon Loisir - Collided with B who was then a seven-year-old child – B sustained serious injuries and was 100% incapacitated as a result of the accident -  Second and Third Respondents were B’s parents - Second Appellant van’s insurer.

At first instance judge said since the van under H’s garde and insured by the Second Appellant, Appellants liable for damages accident caused -  Appellants had not adduced any evidence to show that the accident was B’s exclusive fault – Therefore not necessary to consider eyewitness testimony  - Court of Civil Appeal (CCA)said trial judge misdirected herself when she declined to consider the available evidence - However, it dismissed Appellants’ because, upon a proper direction, the judge could not reasonably have come to a different conclusion on the liability issue – B appealed to PC Issues were (1) Should CCA have remitted the case to the trial judge to decide, in light of the available evidence, whether B responsible for accident or contributed to it?(2) Alternatively, was CCA’s assessment of evidence and conclusion that the Appellants were liable for the accident correct? On both issues, PC said CCA correct – Appeal dismissed.

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