New Zealand Law Society - Supreme Court roundup 8 - 14 October 2021

Supreme Court roundup 8 - 14 October 2021

Supreme Court roundup 8 - 14 October 2021

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

New Zealand Supreme Court 

Judgment recall, “very special reason”

Biddle v R [2021] NZSC 129 (7 October 2021)

Unsuccessful recall application - On 19 July 2021, SC dismissed B’s application for leave to appeal against CA decision dismissing his appeal to that Court against his convictions for rape – B applied to recall SC judgment – Said was “a very special reason” why Court should recall its judgment – SC had previously said recall an exceptional step – SC said no reason, let alone a very special reason, for recalling leave judgment established - Application dismissed.

Judgment recall, “very special reason”

Foster v R [2021] NZSC 130 (7 October 2021)

Unsuccessful recall application - On 19 July 2021, SC dismissed F’s application for leave to appeal against CA decision dismissing his appeal to that Court against his convictions for sexual violation by unlawful sexual connection and indecent assault – F applied to recall SC judgment – Said was “a very special reason” why Court should recall its judgment – SC had previously said recall an exceptional step – SC said no reason, let alone a very special reason, for recalling leave judgment established - Application dismissed.

Three strikes regime, Bill of Rights

Fitzgerald v R [2021] NZSC 131 (7 October 2021)

Partially successful appeal – SC unanimously dismissed F’s appeal against conviction and, by a majority, allowed his appeal against sentence - Case concerned application of the “three strikes” regime in circumstances where the resulting sentence on conviction for a third strike offence under s 86D(2) of the Sentencing Act 2002 so disproportionately severe as to breach s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) - Appeal raised two primary issues - First was whether, notwithstanding the three strikes regime, the sentencing Judge retained a discretion to discharge the appellant without conviction under s 106 of the Sentencing Act - Second, which arose during SC hearing, whether s 86D(2) Sentencing Act could be interpreted as subject to a limitation that the requirement to sentence an offender to maximum sentence did not apply where to do so would breach s 9 of the Bill of Rights and New Zealand’s international obligations - Appeal against sentence allowed on second issue –

Four Judges agreed F’s sentence of seven years’ imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders, and was therefore so disproportionately severe as to breach s 9 of the Bill of Rights – Three Judges also agreed that this right not subject to reasonable limits under s 5 – all majority said Parliament did not intend, in enacting the three strikes regime, to require judges to impose sentences that breach s 9 of the Bill of Rights and New Zealand’s international obligations -  Possible, and thus necessary, to interpret s 86D(2) so that it did not require imposing sentences that would breach s 9 – Appeal on sentence allowed.

Alleged trial counsel error

Kissling v R [2021] NZSC 132 (7 October 2021)

Unsuccessful leave application – K pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm - Subsequent application to vacate his plea on the basis of trial counsel error unsuccessful - Was convicted and sentenced - Appealed unsuccessfully to CA against conviction on the basis of trial counsel error and maintaining that his application to vacate his guilty plea should have been allowed – Applied to SC for leave to appeal out of time –

K wished to raise a number of matters on appeal in support of submission that a miscarriage of justice has resulted - Some of these matters would have SC re-consider matters raised in CA such as an alibi notice issue - Also referred to other matters, including failure by counsel then acting to apply for discharge in the context of the first trial date; the failure of counsel on the appeal to follow instructions; and an affidavit K said counsel was meant to raise on the appeal - K maintained counsel did not act in his best interests – Nothing K raised gave rise to appearance of a miscarriage of justice - Criteria for leave to appeal are not met – Application dismissed.

Self-represented applicant, judgment recall

Chesterfields Preschool (in Liquidation) and anor v Commissioner of Inland Revenue [2021] NZSC 133 (8 October 2021)

Unsuccessful recall application – S sought recall of SC judgment of 12 July 2021 declining leave to appeal - Primary focus of three leave applications concerned Chesterfields Preschools Ltd (CPL)  liquidation - CPL associated with S and her former husband, H – SC did not see any matters raised as providing a basis to recall Court’s earlier judgment – Application dismissed, S to pay $500 costs to Commissioner.

Leapfrog appeal

Wairarapa Moana Ki Pouakani Inc v Mercury NZ Ltd and ors [2021] NZSC 134 (11 October 2021)

Successful leave application - applications for extensions of time to apply for leave to appeal in SC 93/2021 and SC 127/2021 granted - Leave to appeal in SC 93/2021 and SC 127/2021 granted for (Mercury NZ Ltd v The Waitangi Tribunal [2021] NZHC 654) - Approved question in each appeal is whether HC decision was correct - Mercury NZ Ltd should advise Court by 20 October 2021 whether it also wishes to pursue a direct appeal to SC on question of its standing before the Waitangi Tribunal – Application allowed.

High Court of Australia

Criminal law, “Full and proper disclosure”

Edwards v R [2021] HCA 28 (6 October 2021) 

Unsuccessful appeal from Supreme Court of New South Wales – Jury convicted E of six counts of aggravated sexual intercourse with a person aged above 10 and under 14 years of age, contrary to s 66C(2) of the Crimes Act 1900 (NSW) - A contended trial miscarried because of prosecution's failure to provide to his lawyers, in advance of the trial, a hard drive containing a copy of data stored on the appellant's mobile phone (Cellebrite Download), which police seized on his arrest - Office of Director of Public Prosecutions (ODPP) informed E’s lawyers Cellebrite Download existed in writing on three occasions before trial but did not serve a copy or otherwise provide any information from the Cellebrite Download – E’s lawyers only became aware of Cellebrite Download after the ODPP served a witness statement on the Friday before the trial was scheduled to commence –

HC unanimously said this case the verdict not affected by a miscarriage of justice and dismissed appeal – HC majority said no prosecutorial duty to disclose copy of Cellebrite Download because E, even with benefit of hindsight, could not show how Cellebrite Download  contents "would reasonably be regarded as relevant to the prosecution case or the defence case" as required by s 142(1)(i) of the Criminal Procedure Act 1986 (NSW) (the Act) or were "relevant to the reliability ... of a prosecution witness" as required by s 142(1)(k) - Majority said E’s arguments about forensic value of the Cellebrite Download did not rise above the level of speculation –

HC said in any event, E not able to show any respect in which his entitlement to a fair trial was adversely affected by not being provided with a copy of the Cellebrite Download - HC rejected his argument that, without Cellebrite Download, he had lost the chance of a different outcome at trial that might have resulted from further investigations, cross-examination and submissions – Appeal dismissed.

Apparent bias, party communication with Judge

Charisteas v Charisteas and ors [2021] HCA 29 (6 October 2021) 

Successful appeal from Full Court of Family Court of Australia – Husband and wife married in 1979 and separated in 2005 - In 2006, husband commenced proceedings under s 79 of the Family Law Act 1975 (Cth) (Act) for orders settling the property of the parties to the marriage - In 2011, FC Judge made orders for settlement of property (2011 Property Orders), which included orders providing for the early vesting of an identified trust (Early Vesting Orders) - On appeal, Full Court of the Family Court set aside the Early Vesting Orders but did not make any consequential orders, whether remitting that issue for rehearing or otherwise. In 2015, another Judge (trial judge) said 2011 Property Orders were not final orders and the Court retained power to make orders under s 79 of the Act - On 12 February 2018, trial judge purported to make orders under s 79 which did not set aside or vary the 2011 Property Orders but were inconsistent with them ( 2018 Property Orders) –

In May 2018, responding to enquiry from the husband's solicitor, wife's barrister disclosed that, between March 2016 and February 2018, she had communicated with the trial judge in person, by telephone and by text, although she said they had not discussed the substance of the case - Communications took place otherwise than in the presence of or with the previous knowledge and consent of the other parties to the litigation - Husband appealed the 2018 Property Orders on the grounds of apprehended bias and absence of power to make property settlement orders -  Full Court majority dismissed appeal –

Husband appealed to HC – It said 2018 Property Orders should be set aside on the ground of apprehended bias - Apprehension of bias principle was that judge disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide - Once a case underway or about to get underway, ordinary judicial practice that, save in the most exceptional of cases, there should be no communication or association between judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party - No exceptional circumstances here - Communications should not have taken place - A fair-minded lay observer would reasonably apprehend trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide – HC said matter must be remitted for rehearing before a single FC judge of the Family Court and FC retained power under s 79 to deal with the property the subject of the Early Vesting Order – Appeal allowed.

Judicial Committee of the Privy Council

Contract, land sale, consideration, specific performance

Gordon v Havener [2021] UKPC 26 (4 October 2021) 

Unsuccessful appeal from Eastern Caribbean CA (Antigua and Barbuda) – G and H were siblings – H entered into three written agreements, one in 2001 and two in 2007 to sell three plots of land to G (Contracts) - In 2006, G paid H  $3,000 -  G said payment in consideration for Contracts H disputed this, saying sum was to enable her to obtain legal services with respect to then pending litigation - Relying on Contracts, G entered into occupation of the plots, incurring costs relating to maintenance, improvements and property taxes - In 2009 and 2010, G wrote to H requesting she take steps to complete sale of the plots – H declined to do so.

G brought a claim for specific performance of Contracts or in the alternative damages - Trial judge dismissed G’s claim saying Contracts were invalid and unenforceable, and G had no claim in propriety estoppel - G appealed to CA - CA dismissed Mr G’s appeal saying while Contracts were valid, no consideration had been paid - G did not come to the court with "clean hands" in alleging he had paid the required consideration - Having found Contracts were valid, CA said claim in proprietary estoppel was not available,  appropriate remedy lying in contract –

G appealed to PC – Issues were (1) Whether CA erred to find no consideration with respect to contracts for sale of land and therefore could be no specific performance (or in the alternative damages).
(2) Whether a remedy based on propriety estoppel was available when a cause of action in contract was available.

PC said three reasons why appeal should be dismissed - First was that, for the reasons CA set out, trial judge clearly entitled to find, on the evidence, that the payment of US$3,000 not payment of consideration for Contracts of sale -  US$3,000 did not match agreed purchase prices – G did not explain why he had paid an excess sum - Sum paid almost five years after the making of the first contract of sale and over 18 months before the making of the second and third contract of sale - No explanation of why the dates did not align – H’s explanation for the payment , to enable her to obtain legal services in relation to the litigation was far more convincing - In any event, well-known PC practice of the Board not to go behind the concurrent findings of fact of two lower courts - Secondly, and in the light of that first reason, correct legal analysis was G failed to pay any part of the agreed purchase price under any of Contracts - H entitled to terminate Contracts for breach - Exercised her right to terminate the contracts by making clear to G- not least by defending G’s claims in this litigation - that she was treating Contracts as being at an end - As the contracts  terminated for G’s, he was not entitled to an order of specific performance and, as there has been no breach by H, he is also was not entitled to damages for breach of contract - Thirdly, CA entitled to decide and, in PC’s view, was correct to decide, that, having considered the pleadings and submissions, the only clear alleged representations or promises as regards the three plots of land were contained in the contracts of sale or, at least, were inextricably tied up with the contractual promises - Regarding contracts for sale of land that did not comply with formal requirements, proprietary estoppel could not, as a matter of principle, be invoked by a contract-breaker where the relevant promise was contained in the contract, or was inextricably tied up with the contractual promise, and that contract had been terminated for breach by the innocent party – Appeal dismissed.

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