New Zealand Law Society - Supreme Court Roundup 4-10 December

Supreme Court Roundup 4-10 December

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

New Zealand Supreme Court

Reasons for orders

Ellis v R [2020] NZSC 137 (7 December 2020)

Following decision on 13 November 2020, reasons for order rescinding existing suppression orders and, in their place, suppressing the name and identity of the complainant, all members of her family, her boyfriend, and any other identifying particulars.

Rape, evidence, hearsay

P v R [2020] NZSC 138 (8 December 2020)

Unsuccessful leave application – P convicted following District Court jury trial on five charges of historic sexual offending - Victims were his sisters, A and S - Regarding A, P convicted of one representative charge of rape and two specific charges of rape - Regarding S, he was convicted of one representative charge of rape and one specific charge of rape - Appealed CA against convictions - Appeal dismissed – Applied to SC for leave to appeal - application focused on one of the grounds of appeal that CA rejected - Sought to argue again that email evidence a hearsay statement that should not have been allowed - Said ground raised an issue of general or public importance and also that a miscarriage of justice would occur unless leave granted – SC disagreed – Application dismissed.

High Court of Australia

Family law, foreign divorce, property settlements, maintenance, res judicata

Clayton v Bant [2020] HCA 44 (2 December 2020

Successful appeal from Full Court of Family Court of Australia - issue raised whether a ruling from Personal Status Court of Dubai (Dubai Court) in husband’s divorce proceedings against wife (the Dubai proceedings) precluded wife from pursuing property settlement proceedings and spousal maintenance proceedings against husband under the Family Law Act 1975 (Cth) (the Act) - Wife and husband married in Dubai in 2007 where they had a child and lived partly in the United Arab Emirates (UAE) and partly in Australia - They separated in 2013 and the wife and child remained in Australia - In 2013, the wife sought parenting orders in proceedings commenced in the Family Court, which were later amended to also seek orders for property settlement and spousal maintenance - In 2014 husband instituted Dubai proceedings, and in 2015 the Dubai Court granted the husband an "irrevocable fault-based divorce", which dissolved the marriage, and also ordered the wife to pay an amount corresponding to advanced dowry and costs - Husband applied to the Family Court for a permanent stay of the property settlement and spousal maintenance proceedings on the basis that the ruling of the Dubai Court operated as a bar to those proceedings through res judicata, cause of action estoppel and/or "Anshun estoppel" – Primary judge dismissed husband's stay application saying Dubai proceedings did not involve issue of the wife's right to claim property from husband other than certain joint investment property, and did not deal with any right of the wife to alimony but rather described it as "untimely" - On appeal, Full Court unanimously allowed the husband's appeal and ordered a permanent stay of the property settlement and spousal maintenance proceedings – Said Dubai proceedings determined the same cause of action as the property settlement proceedings and so gave rise to a "res judicata estoppel" Also said as wife had chosen not to press a claim for alimony that was available in the Dubai proceedings, she was precluded from pursuing a claim for spousal maintenance by Anshun estoppal – HCA unanimously allowed appeal from Full Court - Plurality said Dubai Court ruling could not give rise to res judicata as the rights to seek orders for property settlement and spousal maintenance under ss 79 and 74 of the Act could only "merge" in the final judicial orders of a court having jurisdiction under the Act to make the orders - Regarding property settlement proceedings, Dubai Court ruling not capable of founding a cause of action estoppel or an Anshun estoppel because the right to seek a share in joint investment property in Dubai proceedings was not in any degree equivalent to the nature of the right to seek the discretionary alteration of property interests under s 79 of the Act – Regarding spousal maintenance proceedings, while the nature of the rights to alimony under the law of the UAE and to spousal maintenance under s 74 of the Act were substantially equivalent, there was a significant difference in the coverage of the two rights, in that it had not been shown that the former was able to be claimed beyond the date of divorce – This meant wife's choice not to claim alimony in Dubai proceedings could provide no foundation for the operation of an Anshun estoppel - Remaining Justices also said Dhubai Court ruling raised no res judicata, cause of action estoppel or Anshun estoppel – Appeal allowed.

Common law implied licence, domestic violence, police entry to premises

Roy v O’Neill [2020] HCA 45 (9 December 2020)

Unsuccessful appeal from Northern Territory CA - On 1 June 2017, Domestic Violence Order (DVO) was issued against R to protect her partner in circumstances where she had consumed alcohol - On 6 April 2018, three police officers visited unit where R and her partner resided - At the time, Northern Territory police engaged in wider operation which targeted domestic violence - An officer knocked on the unit’s flyscreen door - Officer called R to the door for DVO check - R answered door in a state of intoxication and was requested to take a breath test - Test positive for alcohol, suggesting a violation of DVO condition - Regulation 6 of the Domestic and Family Violence Regulations (NT) required a defendant to comply with a reasonable direction by an officer to submit to a breath test but did not authorise entry onto premises for that purpose - Section 126(2A) of the Police Administration Act (NT) authorised entry onto premises, but only if the officer believed on reasonable grounds that a contravention of a DVO had occurred, was occurring or was about to occur – In proceedings brought for DVO breach, evidence from the breath test excluded on the ground that it was obtained unlawfully - Trial judge said police did not have the power to attend at the unit to check R’s compliance with the DVO under reg 6, nor under s 126(2A) because the officer did not hold the requisite belief - On appeal, Northern Territory SC agreed with trial judge that neither provision applied and went on to say police did not have an implied licence for the purpose of investigating whether a breach of the law had occurred - On further appeal, CA said police had a dual purpose in entering the premises: to determine whether the DVO was being honoured and to check on R’s partner’s wellbeing - Police officers had an implied licence because the latter purpose involved lawful communication with the occupier of the unit and did not involve an interference with the occupier's possession, or injury to the person or property of either occupier - Dismissing R's appeal, HCA majority said police officers had an implied licence to enter onto the premises – All HCA Justices accepted that that the common law would not imply a licence for police where entry for the sole purpose of exercising coercive powers - However, the majority said could not be inferred from the unchallenged evidence that the officer who administered the breath test intended to do so when he entered onto the premises regardless of the appellant's condition when he first observed or spoke to her – CA correct to say police had a purpose of enquiring about the welfare of R’s partner - That purpose sufficient foundation for an implied licence - Once officer observed the R’s state of intoxication, he had the requisite belief for the purposes of s 126(2A) and was authorised to remain on the premises and to require a sample of the appellant's breath – Appeal dismissed.

Immigration, Refugees, application for protection visa, Immigration Assessment Authority Review

Minister for Home Affairs v DUA 16 and anor, Minister for Home Affairs v CHK 16 and anor [2020] HCA 46 (9 December 2020)

Partially successful appeal from Full Court of FCA - CHK16 and DUA16 each paid a registered migration agent to provide submissions on their behalf to the Immigration Assessment Authority (the Authority) - Agent fraudulently provided pro forma submissions to Authority concealing this from her clients in the belief that, if she disclosed this fact, her clients would not have paid for her professional services - In CHK16's case personal circumstances referred to in the submissions concerned the wrong person; they contained no personal information relevant to CHK16's claims - In DUA16's case the submissions contained some personal information that was relevant to DUA16's claims, but also contained information that related to someone else - In both cases the Authority was unaware of the agent's fraud, but noticed that the submissions contained information that concerned another individual and disregarded this information - Federal Circuit Court set aside Authority's decision in both cases because Agent’s conduct stultified performance of Authority functions – Full Court of Federal Court majority dismissed appeal - The Minister appealed to HCA saying agent's fraud had not been shown to have had any effect on Authority’s statutory function under Pt 7AA of the Migration Act 1958 (Cth) - By notices of contention each of CHK16 and DUA16 argued that the Full Court's decision should be upheld because it was legally unreasonable for the Authority not to have exercised its power to obtain corrected submissions, involving potentially new information, from the Agent when it knew that the submissions concerned the wrong person in whole or in part. – HCA said agent's fraud did not vitiate the Authority's decision because it had not been shown that the agent's fraud had affected a particular duty, function, or power of the Authority - However, the Court upheld the notice of contention in CHK16's case, concluding that it was legally unreasonable for the Authority to have failed to request submissions pursuant to s 473DC of the Migration Act in circumstances where it was aware that CHK16 intended to provide submissions, that those submissions might contain new information, and that the submissions in fact provided concerned the personal circumstances of another individual entirely - No unreasonableness in DUA16's case because the Authority drew the reasonable conclusion that the information relating to another individual had been included by mistake.

Murder, provocation

Peniamina v R [2020] HCA 47 (9 December 2020)

Successful appeal from Queensland CA – s 304 of the Criminal Code (Qld), reduced what would otherwise be murder to manslaughter - s 304(3) excluded the defence (save in extreme and exceptional circumstances) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation "based on" anything done, or believed to have been done, by the deceased to end or change the relationship or indicate such an end or change (collectively, "to change the relationship") - P killed his wife with sustained ferocity in circumstances in which it was open to find that he was angered by a belief that she had been unfaithful to him and that she may have been planning to leave him and take their four children with her - In conversations with police he said that during an argument she threatened him with a knife and, in trying to disarm her, he sustained a deep cut to his hand (conduct with the knife) – P said he lost control because of the conduct with the knife - Jury directed that in order to rely on provocation P had to prove, on the balance of probabilities, that: (1) he killed his wife while in a state of temporary loss of self-control induced by her conduct with the knife; (2) an ordinary person in his position might have been induced to so lose self-control as to form, and act upon, an intention to kill or do grievous bodily harm; and (3) his loss of self-control was not "based on" anything done, or believed to have been done, by his wife to change the relationship ("the sub-s (3) limb") - Jury found the P guilty of murder – P challenged his conviction in the QCA, saying trial judge erred in directing the jury that he was required to prove the sub-s (3) limb when he had contended his loss of self-control was caused only by the conduct with the knife - QCA majority dismissed his appeal, holding that the use of the words "based on" in s 304(3), in contrast with "caused by" elsewhere in s 304, invited consideration of whether the sudden provocation was, in fact, founded upon something done by the wife to change the relationship - On this view, notwithstanding that the jury may have been satisfied that the conduct with the knife caused the appellant to lose his self-control, the trial judge was right to instruct the jury to go on to consider the sub-s (3) limb – HCA majority said s 304 required an accused first to nominate something done, or believed to have been done, by the deceased and secondly to prove not only that the killing was done in a state of loss of self-control but that the state was induced by the nominated conduct - Leaving aside extreme and exceptional circumstances, whether s 304(3) excluded the defence was a question of law requiring consideration only of whether the nominated conduct was something done to change the relationship - Here, it was fanciful to suggest that the conduct with the knife was itself such an act and the trial judge was wrong to direct the jury that the appellant was required to prove the sub-s (3) limb - Appeal allowed and new trial ordered.

Judicial Committee of the Privy Council

Bribery, forum conveniens

Livingston Properties Equities Inc and ors (Respondents) v JSC MCC Eurochem and anor (Appellants) [2020] UKPC 31 (30 November 2020)

Successful appeal from Eastern Caribbean CA - Appellants commenced proceedings against the Respondents (and other defendants) in the British Virgin Islands (BVI) in 2015 to recover bribes allegedly paid to or for benefit of Russian defendants - Appellants initially granted permission to serve proceedings on defendants located outside of BVI - Respondents applied to set aside that permission and challenged BVI Court jurisdiction to try the claims - At first instance application dismissed but on appeal to the Eastern Caribbean CA - CA overturned decision and granted stay of the proceedings saying Russia a more appropriate forum - Central issues in appeal to PC whether CA erred in finding that (i) Russia was an available forum with competent jurisdiction; and (ii) the more appropriate forum for trial of the case - Second issue concerned the CA application of forum non conveniens principles and the relative weight that should be afforded to different factors in determining where is clearly and distinctly the most appropriate forum to try the underlying claims – PC allowed appeal and restored first instance judge’s orders.

Undue delay, late submissions

Philip v Commissioner of Police and anor [2020] UKPC 32 (30 November 2020)

Successful appeal from Trinidad and Tobago CA – P said on 21 September 2007 he was unlawfully physically evicted from his home by his sister, her husband, a bailiff and others in the presence of a uniformed police officer - Said sister purported to purchase the property from him but transaction was not, and could not be, completed – Said the police officer facilitated the eviction - In December 2008, P brought a claim against his sister for ejectment - Court permitted him to withdraw that claim in April 2010 - On 11 July 2013 P claimed relief against either one or both of the respondents under s.14 of the Constitution because of police officer's alleged facilitation of an unlawful eviction causing P to suffer loss and damage - On 11 October 2013 Judge dismissed the claim because of "undue delay" and, in order for the claim to succeed, "it would have needed to be determined…that the eviction was actually unlawful" which "would normally be achieved by succeeding in a claim against the claimant's sister or her servants/agents -" That claim had been withdrawn - In further written reasons the judge expressed doubts as to the strength of the evidence P relied on - At the appeal hearing, P asked the Court for a retrospective extension time to file written submissions which had been filed belatedly – Extension refused - In absence of written submissions, appeal dismissed without the Court hearing the substantive arguments – PC said CA proceeded too hastily to dismiss P’s appeal - Although his written submissions had been filed late, they were still available to other parties also to the court, some weeks before the listed hearing date for the appeal – Appeal allowed.

Trespass, failure to file written submissions

Crick and anor v Brown [2020] UKPC 32 (30 November 2020)

Unsuccessful appeal from Trinidad and Tobago CA - Underlying dispute concerns a plot of land situated between B’s land and land C occupied - B said he acquired the State land and that C and NC wrongfully commenced occupation of the land in May 2006 - They disputed B’s claim – HC ruled for B, ordered delivery up of possession of the land to him and awarded him damages of $5,000.00 for trespass – They appealed to CA - It directed their written submissions should be filed on or before 29 December 2016 and hearing listed for 12 April 2017 - By hearing day they had not filed their written submissions and on hearing day applied to adjourn hearing to file their written submissions – B did not object to application- CA refused adjournment application and dismissed their appeal saying there was no proper reason for failure to file their written submissions – They appealed to PC – It dismissed appeal.

United Kingdom Supreme Court

Parole, transfer to open prison conditions, costs, discretion to award

R (on the Application of Gourlay) v Parole Board [2020] UKSC 50 (4 December 2020)

Unsuccessful appeal from CA - G serving life sentence, MPI had expired - In 2014, Parole Board decided not to direct his release on licence and not to recommend his transfer to open prison conditions - G challenged decisions by judicial review - Parole Board did not take part in proceedings - HC said Parole Board’s decision not to recommend G for transfer to open conditions unlawful - G applied for order requiring Parole Board to pay costs he incurred in bringing his judicial review claim - HC decided not to make order, following the practice that, if a court or tribunal adopted neutral stance in proceedings in which its decision is challenged, it would not be liable for claim costs unless there are exceptional circumstances – CA upheld HC decision – G appealed to SC - Said practice no longer correct, CA wrongly treated decision on which practice based as binding precedent, and practice did not apply to Parole Board in any event – SC unanimously dismissed appeal – Said s51 Senior Courts Act 1981 provided HC and CA had discretion about costs awards subject to court rules - Court rules included general rule that, if court decided to order costs, the unsuccessful party would be ordered to pay successful party’s– However Rules not a comprehensive code - Also important that appellate courts established principles upon which the courts’ discretion exercised - Responsibility for developing those principles fell principally upon CA - Generally, principles were practice matters rather than law – SC would ordinarily be slow to intervene in practice matters because it was generally less well placed to assess what changes in practice could appropriately be made – Here HC took full account of G’s issues and reached a decision which reflected established practice – CA also did not commit any error of law - In particular, its approach was not inconsistent with the rules of court – Appeal dismissed.

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