New Zealand Supreme Court

MDMA supply, perverting course of justice, cultivating cannabis, jury direction

McGirr v R [2022] NZSC 19 (9 March 2022)

Unsuccessful leave application – Gathering at McG’s house - Present were B and H – Around midnight, while in spa pool, McG realised B under water and either unconscious or dead - McG and H evidence differed on detail of what happened next – 

McG charged with supplying MDMA to B and H, attempting to pervert course of justice and cultivating cannabis - Pleaded guilty to last charge, jury trial on three others - Not guilty on supply charges - Guilty of attempting to pervert course of justice –

CA dismissed appeal against conviction – Sought leave to appeal to SC based on alleged Judge misdirection to jury – SC said law clear - Did not raise question of general or public importance – Said may have been misdirection, but no miscarriage of justice – Application dismissed.

Wounding with intent, kidnapping, theft, jury direction

Anderson v R [2022] NZSC 20 (9 March 2022)

Unsuccessful leave application – Jury convicted A of wounding with intent to cause grievous bodily harm, kidnapping and theft (under $500) - Co-defendant guilty of assault and theft – CA dismissed A’s appeal against conviction based on miscarriage of justice – Sought leave to appeal to SC –

Sole appeal issue CA decision regarding trial Judge ruling on jury direction – SC said whether direction should have been given based on particular facts - No question of general or public importance - No error in CA fact assessment - Nothing A said raised appearance of miscarriage of justice – Application dismissed.

Murder, judgment recall, direct appeal

Marteley v R [2022] NZSC 21 (9 March 2022)

Unsuccessful recall application – M pleaded guilty to murder in September 2010 - Sentenced in November 2010 to life imprisonment with 14 years MPI – Sought leave to appeal 2018 CA decision - 2018 decision declined leave to withdraw notice of abandonment of appeal against his murder conviction - Alternatively, M sought leave to appeal directly to SC against conviction - Second time M attempted to appeal directly to SC against conviction - First leave application dismissed in 2017 - Subsequent applications to recall that decision also dismissed, with SC directing registry not to accept further applications from M on matter –

SC said no jurisdiction to hear appeal against CA refusing recall in criminal proceedings – SC treated application as seeking a recall of its 2017 decision - Nothing M raised justified recall or direct appeal to SC – M not without remedy – Had applied to Te Kāhui Tātari Ture | Criminal Cases Review Commission – Application dismissed.

Judicial Committee of the Privy Council

Same-sex marriage, recognition

Attorney General for Bermuda v Ferguson and ors [2022] UKPC 5 (14 March 2022)

Successful appeal from Bermuda CA - Section 53 Bermudan Domestic Partnership Act 2018 (DPA) confined marriage as between man and woman - DPA effective notwithstanding Human Rights Act 1981 (HRA) – HRA protections not available to support same-sex marriage - Bermudian Constitution (Constitution) expressed fundamental rights and freedoms –

F and others (F) challenged s 53 on three grounds: (1) Passed primarily for religious purpose against Constitution’s secular nature; (2) Unconstitutionally hindered F’s belief in same sex marriage; and (3) Unconstitutionally afforded them and others different treatment –

PC allowed appeal – Said no Constitutional provision nullifying legislation enacted for religious purpose – Said judgments from other jurisdictions did not provide template for other common law jurisdictions, including Bermuda, where society developed differently – Force in argument favouring same-sex marriage, as would accommodate diversity within society - However, international instruments and other countries’ constitutions could not be used to read into Constitution right to legal recognition of same-sex marriage – Appeal allowed.

United Kingdom Supreme Court

Social housing, tenancy, termination, forfeiture

Croydon London Borough Council v Kalonga [2022] UKSC 7 (9 March 2022)

Partly successful appeal from CA – Council granted K fixed-term secure five-year tenancy – Served K with notice seeking possession for rent arrears and anti-social behaviour – Either would breach tenancy conditions and, subject to issues on appeal, be grounds for seeking possession under Housing Act 1985 (1985 Act) –

Two issues in appeal - First whether Council could determine K’s tenancy and seek possession or whether prevented because of statutory protections under 1985 Act for public sector fixed-term tenancies - Second whether K’s tenancy agreement contained forfeiture clause, which allowed Council to terminate lease because of K’s default –

K succeeded on both preliminary issues in HC and CA - Council appealed to SC - SC allowed appeal in part – 1985 Act did not demonstrate Parliament intended possession regime to apply to all fixed–term secure tenancies - Those without early termination provisions immune until fixed term end - Not Parliamentary intention to expose tenant to loss of contractual security of tenure earlier than landlord could have obtained possession under tenancy terms –

SC conclusion on first issue fatal to Council’s case – Also said regardless of whether K’s tenancy agreement contained forfeiture clause, Council had not sought to rely on clause –

Regarding second issue, SC said whether clause amounted to forfeiture clause matter of substance – Landlord not permitted to dress up forfeiture clause as something else to avoid relief from forfeiture being available to tenant – K’s agreement permitted Council to seek Court possession order "at any time" if tenant breached agreement terms - Forfeiture clause applying established test - Courts below wrong to conclude otherwise –

SC said HC right to dismiss claim where Council had not sought termination in lieu of forfeiture but Judge’s declarations only partially correct because tenancy agreement contained forfeiture clause - Meant Council appeal partly succeeded.