New Zealand Supreme Court 

Sexual offences, Asperger’s Syndrome

Judd v R [2021] NZSC 174 (9 December 2021)

Unsuccessful leave application – R convicted at retrial on two charges of engaging in sexual conduct with 13-year old girl (he was 26 years old at the time) – Before sentencing, was referred to  registered clinical psychologist who diagnosed him with Asperger’s Syndrome - Trial Judge sentenced him to 12 months’ home detention - Served sentence – CA dismissed appeal against conviction- Applied to SC for leave to appeal – CA appeal included further evidence from psychologist – Leave application included further psychologist’s report –

SC said ability of people with disabilities to get fair trial a matter of general or public importance – But did not arise here – CA fact findings were  not unfair because of his undiagnosed Asperger’s Syndrome – R essentially seeking second evaluation of evidence adduced in CA - Factual question – Did not involve matter of general or public importance – No miscarriage of justice – Appeal dismissed.

Sexual offences, ESO

Taakimoeaka v Chief Executive, Department of Corrections [2021] NZSC 175 (10 December 2021) 

Unsuccessful leave application - Extended supervision order (ESO) imposed on T for five years commencing December 2020 – CA dismissed appeal against decision – Sought leave to appeal to SC – SC said matters T sought to raise essentially issues related to particular facts of this case - No point of general or public importance arose – CA carefully considered challenge to ESO  - Nothing raised suggested CA analysis may have been wrong - No risk of miscarriage of justice – Appeal dismissed.

Wounding with intent

Johnson v R [2021] NZSC 176 (10 December 2021)

Unsuccessful leave application – J convicted of wounding with intent to cause grievous bodily harm - Sentenced to seven years’ imprisonment – CA dismissed appeal against conviction and sentence – Applied for leave to appeal to SC – SC said J raised same arguments that were before CA which rested on particular facts - As J conceded, no point of general or public importance arose - Also, nothing raised any apparent error in CA analysis - No risk of miscarriage of justice – Appeal dismissed.

Assault on daughter, approximately six-year timeframe

C v R [2021] NZSC 177 (10 December 2021)

Unsuccessful time extension application – C guilty after jury trial on three charges of assaulting her daughter – Two were representative charges - Earlier pleaded guilty to fourth charge of assault, also against her daughter - Offending spanned a period of approximately six years, when daughter between three and nine years old - Sought discharge without conviction under s 106 of the Sentencing Act 2002 - Trial Judge declined application and sentenced her to 12 months’ supervision – CA dismissed her appeal against that decision – Applied for time extension for leave to appeal to SC – Points raised personal to her – No risk of miscarriage of justice – Application declined.

Easements, extinction of, Property Law Act 2007

Parklands Properties Ltd v Reynolds and ors [2021] NZSC 179 (13 December 2021)

Unsuccessful leave application – P sought leave to appeal against CA allowing an appeal by first and second respondents  (Reynolds) against HC decision – HC judgment dealt with P’s application to extinguish easement under s 317 of Property Law Act 2007 - Section 317(1) set out list of matters that might justify extinguishing an easement - Court had to be satisfied that at least one applied - If satisfied, Court then had discretion to extinguish easement or not - HC Judge said criteria in s 317(1)(a)(i), (ii) and (iii) satisfied, but criteria in s 317(1)(b) and (d) were not - Then exercised discretion in favour of extinguishing easements - Awarded $300,000 compensation to Reynolds under s 317(2) - The appeal allowed, with some disagreement among Judges - HC orders extinguishing easements and requiring compensation payment set aside –

As SC saw it, assessment on main point of disagreement between CA Judges did not turn on interpretation of law but on way relevant judges considered question of changes in neighbourhood - Essentially factual questions, though the differing views within CA and between CA majority and HC meant no unanimity on issues –

SC had considered s317 issues in another case - Given recent consideration of s 317 no matter of general or public importance or matter of commercial significance arose here - Nor did any miscarriage of justice arise – Application dismissed.

Sexual offending against child

Taylor v R [2021] NZSC 178 (14 December 2021)

Unsuccessful leave application – Following jury trial in September 2020, T guilty of four charges of sexual offending against single child complainant – CA dismissed appeal against conviction – Sought leave to appeal to SC – SC not persuaded arguable issues of general or public importance - No appearance of miscarriage of justice – Application dismissed.

Land Transport Act, multiple offences

Mitchell v Police [2021] NZSC 180 (14 December 2021)

Successful leave application – M granted leave to appeal – Approved question whether CA right to dismiss appeal.

Rape, informed decision not to give evidence

Mutsamwira v R [2021] NZSC 181 (15 December 2021)

Unsuccessful leave application – M convicted after trial of sexual violation by rape – CA dismissed   appeal against conviction – Sought leave to appeal to SC – M wished to argue that miscarriage of justice occurred because CA erred to rule he made an informed decision not to give evidence and decision made on sound advice – SC not satisfied proposed appeal raised any question of general or public importance - Rather, would turn on particular facts – No appearance of miscarriage of justice – Application dismissed.

Joint venture and other dealings, orders regarding parties

Te Warena Taua and ors v Tahi Enterprises Ltd and anor [2021] NZSC 182 (15 December 2021)

Partially successful appeal - By consent, orders made in HC and CA granting discovery of  register of iwi members set aside and other orders substituted - Leave reserved to parties and any iwi member to apply to HC for modifications of orders - HC could make orders, including any additional or ancillary orders – No SC costs order – CA costs orders in favour of the respondents set aside - Respondents had to pay appellants costs calculated for a standard appeal on band A basis and usual disbursements – HC costs orders stood –

Appeal concerned breach of contract, unjust enrichment and related claims by Tahi Enterprises Ltd (Tahi), and L, Tahi’s sole shareholder and director - Claims related to joint venture agreement and other dealings between Tahi and members of Te Kawerau ā Maki (the iwi) during 2007 and 2008 - Progress in proceedings stalled while parties sought to resolve issues about who was entitled to speak for whom – Various orders made to clarify position.

Cross-appeal re HC decision

Wairarapa Moana Ki Pouākani Inc v Mercury Energy Ltd and ors [2021] NZSC 183 (15 December 2021)

Successful application by first respondent for leave to cross-appeal - Approved question whether HC’s decision on the first respondent’s claim in that Court was correct – Leave granted.