New Zealand Law Society - Supreme Court roundup 24 - 30 September 2021

Supreme Court roundup 24 - 30 September 2021

Supreme Court roundup 24 - 30 September 2021

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

New Zealand Supreme Court 

Review of fee waiver

Easton v Registrar of the High Court of New Zealand [2021] NZSC 123 (22 September 2021) 

Unsuccessful leave application – E sought leave to appeal directly to SC from HC - HC dismissed his application for review of HC Registrar’s decision not to waive filing fee for judicial review application - Convicted after trial of two road transport infringement offences, one of which was that, being in charge of a vehicle, he parked on a road on a flush median or traffic island - Appealed unsuccessfully against conviction to HC - Then filed judicial review proceedings seeking to challenge the decision to dismiss his appeal - Registrar declined to waive filing fee for these proceedings – HC Judge dismissed application for review of Registrar’s decision – Judge said application did not meet the criteria for fee waiver, genuine public interest – SC said nothing E raised questioned HC Judge’s assessment that  fee waiver not met – Application dismissed.

Recall, amended wording

Poutama Kaitiaki Charitable Trust Inc and anor v Taranaki Regional Council and ors [2021] NZSC 124 (23 September 2021) 

Successful recall application – SC recognized that sentence in a leave decline could be misinterpreted – Judgment re-issued with amended wording.

Discharge application

Taueki v New Zealand Police [2021] NZSC 125 (23 September 2021)

Unsuccessful leave application – Self-represented T facing assault charge in DC - Unsuccessfully sought discharge, apparently both at common law and under s 147 of the Criminal Procedure Act 2011 - Applied for leave to appeal directly to SC against application dismissal – DC Judge said possible for T to “appeal the ruling on a question of law” – SC said presumably relying on what DC Judge said, he sought to invoke s 296 of the Criminal Procedure Act to support leave application – SC said s 296 conferred right of appeal for dismissal of a charge under s 147 - Did not confer similar right to refusal of application for dismissal – Faced same problem re common law issue - Act did not provide for right of appeal against refusal to discharge – Also, under s 297(1)(b), first appeal court was HC – SC had no jurisdiction to hear proposed appeal – Application dismissed.

Evidence, complainant unavailable as witness

Huritu v New Zealand Police [2021] NZSC 126 (24 September 2021)

Unsuccessful leave application – H convicted after judge-alone trial of assault and breach of a protection order - Following an unsuccessful appeal against conviction in HC, H obtained leave to appeal to CA - CA dismissed appeal - Sought to appeal to SC – Charges involved H’s partner who failed to attend at court twice – Judge granted police application to admit her formal statement as hearsay evidence, because she could not be found - Proposed appeal directed primarily to two grounds - First, whether CA correct to conclude that complainant “unavailable as a witness” because she could not “with reasonable diligence be … found” as contemplated by s 16(2)(d) of the Evidence Act 2006 so that her formal written statement to police could be admissible - Second, whether Court erred to say requirements in s 22(5) Evidence Act for dispensing with hearsay notice applied H said issues raised questions of general or public importance – SC said, as CA had said, whether reasonable diligence test met required factual inquiry – To reach view that reasonable diligence test met here CA said relevant circumstances included that complainant had not appeared at the initial trial date and had been located, arrested and released on bail to appear on the new trial date –

CA said there was “justification in the circumstances for the Judge to conclude that the complainant had deliberately failed to appear on the second occasion” – CA also accepted Crown’s submission that in determining whether reasonable diligence test was met, a court should not be “influenced by a consideration of what role the witness will play in the trial” if they are located and give evidence -Said where witness not available, did not follow automatically that person’s hearsay statement would be admissible - Other aspects to admissibility test, including reliability and whether statement’s probative value outweighed by risk statement would have an unfairly prejudicial effect on the proceeding – CA also considered all of the bases in the statute for dispensing with hearsay notice –

SC said there might be room for differing views about reasonableness of steps police took in this case in light of their responsibilities, the complainant’s earlier non-appearance and the history of the relationship between the applicant and complainant - Possibility did not detract from the factual nature of inquiry to be undertaken – Also, assessment made here one which, on the face of it, came within the policy of the legislative scheme - Second point concerning dispensation with notice, largely fell away if leave not granted on first point, but again ultimate inquiry would be a factual one -  Leave criteria not met – Application dismissed.

Supreme Court of Canada

Publication ban, affidavit, Court functus officio

Canadian Broadcasting Corporation v Manitoba [2021] SCC 33

Successful appeal from Manitoba CA – O convicted of first-degree murder in 1987 and sentenced to life in prison with no chance of parole for 25 years - In 2009, O asked Manitoba’s Minister of Justice to review his conviction - Later that year, he was released from prison pending the outcome of that review - By then, he had served 23 years of his sentence - In 2014, the Minister of Justice asked CA to decide if there had been a miscarriage of justice at trial - During its proceedings, CA ordered a publication ban on affidavit, which O wanted to submit as evidence - CA did not accept affidavit into evidence, but ordered publication ban to remain in effect indefinitely - In 2018, CA said miscarriage of justice had occurred at O’s 1987 trial - Said he did not have access to important information that could have helped his defence at the time - CA set aside O’s conviction – In May 2019, Canadian Broadcasting Corporation (CBC) asked CA to lift publication ban so that it could read affidavit – CA refused, saying it had already given its judgment in the case – Said it no longer had authority to reconsider the publication ban –

CBC asked SC to rule on whether CA could lift ban – SC majority ruled courts of appeal may consider lifting their own publication bans after the end of proceedings - Said court could not rehear a case after rendering its judgment because of functus officio - But afterwards, court still had authority to control access to court record – Consequently, court might reconsider publication ban made during the case – Said even after case came to an end, “important decisions about the openness of the court record may need to be taken” – Did not mean CA appeal could reconsider a publication ban at any time or for any reason – Could do so in two situations: first, if there was a change in circumstances; or second, if someone affected by the publication ban, such as the media, was not given notice at the time of the ban – Here SC said no change of circumstances – CA had still to decide if CBC’s request met second condition – Case referred back to CA to do so.

United Kingdom Supreme Court

Asylum, detained fast track procedure, structural unfairness

R (on application of TM (Vietnam)) v Secretary of State for the Home Department [2021] UKSC 41 (22 September 2021) 

Unsuccessful appeal from CA - Detained Fast Track procedure (DFT) was a system for processing asylum claims - Individuals were detained pending Secretary of State’s determination of their claims, and there was an accelerated timetable for preparation and hearing of appeals against the refusal of asylum claim - No longer challenged that this system was unfair - Was originally contained in the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2003, which were then replaced by the Fast Track Procedure Rules 2005 (FTR 2005) - FTR 2005 in turn replaced in October 2014 by the Fast Track Rules 2014 (FTR 2014) -  In July 2015, CA upheld an order quashing the FTR 2014 as ultra vires because they were structurally unfair and unjust and created an unacceptable risk of unfairness -

Appeal involving TM about the FTR 2005 - Principal issue was effect of structural unfairness in the FTR 2005 on individual appeal determinations – First-tier Tribunal (FTT) heard  TM’s unsuccessful appeal under the FTR 2005 - In these judicial review proceedings, she failed on her claims before a Judge that appeal determinations under FTR 2005 were automatically a nullity (so the appeals would potentially have to be reheard) and that the appeal determination in her case was unfair – CA upheld that judgment – In appeal to DC TM sought primarily to establish that determination of her appeal was automatically a nullity – SC unanimously dismissed appeal – First judgment (from Lady Arden)  took TM’s submissions in turn and dismissed them – Rejected TM’s principal submission that the FTT’s determination was automatically a nullity and without effect - That system was structurally unfair did not mean that it operated unfairly in every case - Agreeing with another Judge, Lady Arden accepted CA jurisdictional reason  -  that FTT in determining an appeal in a way which was procedurally unfair would be acting without jurisdiction, so unfairness had to be shown in the individual case - Also rejected submission that determination was "inextricably linked" to the systemic unfairness –

Lady Arden affirmed principle that a court order was valid until set aside – Distinguished judicial bias cases which could lead to automatic nullity – Said TN failed to show that the rules impacted adversely on her in the conduct of the hearing - CA guidance given for determining unfairness was helpful – To determine unfairness, tribunals had to apply anxious scrutiny and might apply principle of overall fairness – Appeal dismissed.

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