New Zealand Law Society - Supreme Court roundup 19 November - 25 November 2021

Supreme Court roundup 19 November - 25 November 2021

Supreme Court roundup 19 November - 25 November 2021

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

New Zealand Supreme Court 

Evidence, warning under s 122

Rippey v R [2021] NZSC 160 (23 November 2021)

Successful leave application - Approved question whether trial judge should have given a warning under s 122 of the Evidence Act 2006 - Court open to arguments about general approach to warnings under s 122 - Registry to provide copy of this judgment to Criminal Bar Association and Association invited to intervene in this appeal – Application granted.

Enforcement of foreign judgment, criteria for

Almarzooqi v Salih [2021] NZSC 161 (23 November 2021)

Unsuccessful leave application - Application related to enforcing foreign court judgment, order of the Personal Matters Court in Dubai, that S pay A deferred dowry on their divorce - A brought proceedings to enforce judgment in New Zealand - HC declined application because Dubai court did not, as a matter of New Zealand law, have jurisdiction in the matter– A sought leave to appeal CA decision upholding HC judgment – SC said when dismissing appeal, CA rejected the argument that New Zealand courts recognise the jurisdiction of a foreign court over a non-resident by reference to the principles, reflected in rr 6.27–6.29 of the High Court Rules 2016, when determining whether they have jurisdiction over a non-resident - Also rejected the argument that the specific context, namely “matrimonial proceedings”, could alter the position –

Seeking leave to appeal, A asked SC to reconsider conditions under which New Zealand courts enforce foreign court judgments – SC not satisfied that leave criteria met here – Current New Zealand law clear – No appearance of miscarriage of justice in CA decision – Application dismissed.

Sexual offences, new evidence

KL v R [2021] NZSC 162 (24 November 2021)

Unsuccessful leave application - KL convicted on one representative charge of committing an indecent act on a child under 12 years - Acquitted on six other charges of sexual and violent offending against the same complainant - Applied for leave to appeal against CA declining his application to adduce new evidence and dismissing his appeal against conviction – SC said matters KL sought to raise essentially reprised submissions in CA - Related to the particular facts of his case - No point of general or public importance arose - Nothing raised pointed to any apparent error in CA analysis – Consequently, no risk of a miscarriage of justice.

Leapfrog appeal from HC, COVID-19

NZDSOS Incorporated and anor v Minister For Covid-19 Response and ors [2021] NZSC 163 (24 November 2021)

Unsuccessful application to bring direct appeal – Applicants, incorporated societies representing certain doctors and teachers respectively, applied to HC for judicial review of Minister’s orders under s 11 of the COVID-19 Public Health Response Act 2020 (the Act) – HC dismissed application –

Applied for leave to appeal directly to SC from HC - Under s 75 of the Senior Courts Act 2016, SC could not give leave to appeal directly from a decision of a court other than CA unless (relevantly here) there were exceptional circumstances that justified taking proposed appeal directly to SC - Requirement applied in addition to the normal criteria for leave to appeal under s 74 of the Senior Courts Act – SC said s 75 exception did not apply here – Application dismissed.

High Court of Australia

Town planning, infrastructure contributions, Gold Coast

Sunland Group Ltd and anor v Gold Cast City Council [2021] HCA 35 (10 November 2021)

Unsuccessful appeal from Queensland CA - In 2007, Queensland Planning and Environment Court granted preliminary approval for the future development of land in the City of Gold Coast, under Integrated Planning Act, a predecessor to the Planning Act 2016 (Qld)  (Preliminary Approval) - Preliminary Approval contained four "conditions" regarding developer payment of infrastructure contributions to the Council - Two conditions also said calculations of infrastructure contributions would recognise existing infrastructure credits over the site -  In 2015, second appellant purchased the land - Sunland applied for a series of development permits, which the Council resolved to grant in 2016 –

In 1997, Integrated Planning Act introduced a new regime to permit local governments to levy infrastructure charges by notice - Both the Sustainable Planning Act 2009 (Qld) and the Planning Act maintained this regime - Section 6.1.31(2)(c) of the Integrated Planning Act preserved, as an interim measure, the capacity for a council to impose a condition on any development approval requiring payment of infrastructure contributions - In 2016, Council issued purported infrastructure charges notices to Sunland in accordance with the new regime in respect of each application - The infrastructure charges notices did not assess charges or allow credits in accordance with Preliminary Approval conditions - At the time of purchase in 2015, there was approximately $19 million of existing infrastructure credits approved in the Preliminary Approval - Dispute arose between Sunland and Council over whether Preliminary Approval conditions created a liability to pay infrastructure contributions – CA said primary judge erred to declare, among other things, that Council had power to collect infrastructure contributions calculated under and according to Preliminary Approval –

HC said Preliminary Approval conditions not of the kind s 6.1.31(2)(c) of the Integrated Planning Act, authorised and therefore imposed no liability to pay infrastructure contributions – Conditions ordinary and natural meaning could not be said to have required any payments, because data necessary to quantify liability not yet available or even identified - Rather, conditions served evident purpose of placing the developer on notice that contributions to infrastructure would be required in future and when that requirement would be imposed. For that reason, the majority concluded that the power under s 6.1.31(2)(c) had not been exercised – Appeal dismissed.

Evidence, prosecution cross-examination, prejudice, Criminal Appeal Act 1912 (NSW) impact

Hofer v R [2021] HCA 36 (10 November 2021)

Unsuccessful appeal from NSW CA – H convicted of eight counts of having sexual intercourse with another person knowing that the other person did not consent - Offences committed against two complainants on consecutive days in similar circumstances – H’s belief regarding consent was a key issue at trial – Accordingly, his credibility was important - During H’s cross-examination it became apparent that certain of his evidence which contradicted that of the complainants had not been put to them by defence counsel for comment, in breach of a case law rule - On each occasion, the prosecutor asked H to acknowledge the omission - Regarding two omissions, prosecutor put to H that those aspects of his evidence were, in effect, recently invented - Defence counsel did not pursue objections to suggestions - Trial judge did not direct the jury on the use of this evidence –

HC unanimously said prosecutor's questioning amounted to a miscarriage of justice - Questioning highly prejudicial because absent any directions from the trial judge, there was a real chance that the jury may have assumed that H had recently made up his story and rejected his evidence as not credible - Said not necessary to consider whether H’s counsel’s inaction separately resulted in miscarriage –

However, a majority of the Court held that the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied because no substantial miscarriage of justice had actually occurred - Applying the proviso, an appellate court had to decide whether, notwithstanding the error, guilt was proved to the criminal standard on the admissible evidence at the trial - Here, H’s evidence so glaringly improbable to not be capable of belief, such that it could not have given rise to a reasonable doubt as to his guilt - Nor was this a case where there had been a failure of process that involved a serious breach of the presuppositions of the trial, such that the proviso could not be applied; rather, the Crown's impermissible contention of recent invention was of little significance in the determination of the real issue in the trial – Appeal dismissed.

Police Administration Act 1978 (NT), person "not civilly or criminally liable" for acts done "in good faith" in actual or purported exercise of a power or performance of function

R v Rolfe [2021] HCA 38 (10 November 2021)

Successful appeal from Northern Territory SC FC– R a member of the Northern Territory Police Force (Police Force), charged with murder and alternative offences under the Criminal Code (NT) after a fatal shooting which occurred after he had been deployed to arrest the deceased – Before R’s trial, trial judge referred four questions to FC based on set of "assumed facts", which were not agreed, and some aspects of which were likely to be disputed at trial - During FC hearing, concerns raised about Question 3 being hypothetical in nature - To meet those concerns, parties suggested reformulating Question 3 as: "Does a 'function' under s 148B of the Police Administration Act 1978 (NT) (Act) include the functions listed in s 5(2) of the (Act)?" - Section 5(2) listed the "core functions" of Police Force, relevantly including "to protect life and property" and "to prevent ... offences" – FC reformulated Question 3, but not in form parties suggested - FC said protection s 148B afforded extended to performance of functions listed in s 5(2), and answered its reformulated Question 3 to say it would be open to the jury to find that R was acting in the exercise or purported exercise of a power, or the performance or purported performance of a function, under the Act –

Trial set to commence on 23 August 2021 - On 19 August 2021, Crown applied to HC for special leave to appeal from FC decision on Question 3 - On 23 August 2021, HC granted a stay of trial pending hearing application - On 10 September 2021, application was referred to FC of HC for argument as on appeal - Application heard on 2 November 2021 –

HC said FC erred in its reformulation of Question 3 and adopted parties' suggested reformulation - HC answered Question 3 in the negative, holding that relevant powers and functions to which s 148B applied common law powers, which s 25 of the Act conferred, and the power of arrest in s 124 of the Act - Common law and statutory powers subject to constraints, such as doing only that which was reasonable and necessary – HC said, unlike ss 25 and 124, s 5 identified principal Police Force functions but did not confer any particular power or function on its members – HC also emphasised that, while it was necessary to correct FC error, it should not be assumed that HC would do so in every case given the undesirability of fragmenting the ordinary course of criminal proceedings.

Supreme Court of Canada 

Insurance, insurer’s knowledge of circumstances

Trial Lawyers Association of British Columbia v Royal Sun Alliance Insurance Company of Canada [2021] SCC 47 (18 November 2021)

Unsuccessful appeal from Ontario CA - On May 29, 2006, D died in a motorcycle accident where other people were injured - Among them, B and C decided to sue his estate – D’s insurance company, Royal & Sun Alliance (RSA), proceeded to defend the estate in the two lawsuits - Three years after the accident, and more than a year into litigation, RSA learned D consumed alcohol immediately before the accident, putting him in breach of his insurance policy - RSA promptly stopped defending D’s estate and denied coverage – B and C were no longer eligible for $1 million under the insurance policy - Nearly three years later, C’s action went to trial - Result was a judgment against D’s estate as well as against B - There was also a judgment in B’s favour on his counter-claim against the estate –

B sought a declaration allowing him to recover judgment against RSA because the insurance company had waived its right to deny full coverage having provided a defence to D’s estate as the litigation progressed - Trial judge granted the declaration, saying RSA waived its right to deny full coverage - Ontario CA allowed RSA’s appeal - Said RSA could deny coverage, despite having provided a defence to D’s estate, because it did not know of his policy breach – B sought to appeal the decision to SC, but after being granted leave, he settled with RSA and dropped his appeal - Trial Lawyers Association of British Columbia (TLA) permitted to be substituted as appellant - Although the appeal was moot, TLA wanted to know how the Court would have decided the issue – SC  agreed to hear the appeal, but ultimately sided with RSA – SC majority said TLA conceded, rightfully in majority’s view, that waiver by conduct was precluded by Ontario Insurance Act as it read at the time - Statute required that waiver be given in writing and, in this case, the parties agreed that RSA had not given a waiver in writing - Majority also agreed with CA that RSA could deny coverage, despite having defended claims against D’s estate, because it did not know of his policy breach – Appeal dismissed.

Constitutional law, declaration of invalidity, Canadian Charter, prostitution laws

R v Albashir [2021] SCC 48 (19 November 2021)

Unsuccessful appeals from British Columbia CA – A and M were convicted in 2019 for offences that occurred between 2013 and 2016 - At that time, the men were operating a sexual escort service in Vancouver - Among the offences was a violation of section 212(1)(j) of the Criminal Code, which barred pimps from living off the money made by sex workers – In a 2013 case SC said Canada’s prostitution laws were unconstitutional, including section 212(1)(j) – Said law had criminalized all sex work, instead of focusing on controlling and abusive pimps - SC gave Parliament a one year “suspension period” to change the law, which it did in 2014 – A and M committed the section 212(1)(j) offences during that suspension period, but were charged after it ended - At their trial, the question was whether the old law had become unconstitutional, preventing the men from being convicted - Trial judge decided law unconstitutional at the time the crimes were committed and quashed charges against both men - Crown appealed to the British CA, which convicted the men – CA said SC declaration of unconstitutionality had never taken effect because Parliament had replaced section 212(1)(j) before the end of the suspension period - A and M appealed their convictions to SC –

SC dismissed appeals – Majority said a retroactive declaration meant law considered to have always been invalid - A prospective declaration, on the other hand, meant law invalid only after suspension period ended and the declaration of constitutional invalidity took effect –

In the 2013 case, the Court had not said whether declaration would apply retroactively or prospectively - But the purpose for the suspension was to continue to protect vulnerable sex workers while Parliament replaced section 212(1)(j) with a new law - In light of this purpose, the majority, in this case, said section 212(1)(j) was unconstitutional only after the suspension period had ended – Consequently, A and M were liable under this provision for their conduct during the suspension period, and could be charged and convicted under it – Appeal dismissed.

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