New Zealand Law Society - Supreme Court roundup 11 March - 16 March 2022

Supreme Court roundup 11 March - 16 March 2022

Supreme Court roundup 11 March - 16 March 2022

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

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.

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