New Zealand Law Society - Supreme Court roundup 31 March - 6 April 2022

Supreme Court roundup 31 March - 6 April 2022

Supreme Court roundup 31 March - 6 April 2022

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

New Zealand Supreme Court

“Final” CA leave decline, no jurisdiction

PN (SC 24/2022) v New Zealand Police [2022] NZSC 30 (30 March 2022)

Unsuccessful leave application – P convicted after judge-alone trial of various charges including threatening to kill and threatening grievous bodily harm – HC dismissed appeal against sentence and conviction – CA declined leave to appeal for second appeal against conviction and sentence – Deputy Registrar rejected application for leave to appeal to SC – Said SC had no jurisdiction to consider proposed appeal - P sought review of Registrar’s decision –

SC said under s 213(3) Criminal Procedure Act 2011, CA dismissing application for leave “final” - Precluded appeal to SC – No point in SC treating application as application for leave to appeal directly from HC – Application declined.

Council funding, visitor attraction, major events

Auckland Council v C P Group Ltd and ors [2022] NZSC 31 (30 March 2022)

Successful leave application - Approved ground whether CA correct to allow appeal – Related to Auckland Council (Council) imposing targeted rate on selected commercial accommodation providers to help fund expenditure on visitor attraction and major events – Application allowed.

Leapfrog appeal, trial judge reasons

Stevens v R [2022] NZSC 32 (30 March 2022)

Unsuccessful direct appeal application - Following DC judge-alone trial, S guilty of 13 charges involving violence and sexual offending against partner – HC dismissed appeal against conviction and sentence - CA dismissed application for leave to bring second appeal against conviction and sentence – Sought leave to appeal to SC – SC said appeared to be appeal against HC judgment –

Section 237 Criminal Procedure Act 2011 and s 75 Senior Courts Act 2016 applied - Meant in addition to satisfying usual leave criteria, applicant had also to satisfy SC of exceptional circumstances warranting SC taking appeal directly - SC slow to allow leave to appeal directly where CA considered and dismissed leave application –

SC said most notable feature here was reasons trial Judge gave for finding S guilty did not per se provide analysis enabling reader to understand in any detail allegations against S - Instead, reasons proceeded generally on basis that, if complainant’s narrative accepted and S’s rejected, convictions appropriate, apart from three charges alleging sexual violation, threatening to kill and injuring with intent to cause grievous bodily harm –

HC Judge concluded reasons given met s 232 Criminal Procedure Act requirements - Did not give rise to question of general or public importance, no appearance of miscarriage of justice –

SC did not see other issues raised on S’s behalf provided appropriate basis for allowing leapfrog appeal – Application declined.

Self-represented litigant, mortgages, bankruptcy

Zhang v Westpac New Zealand Ltd [2022] NZSC 34 (31 March 2022)

Unsuccessful leave application – Self-represented Z obtained loans from W using registered mortgages over two properties as security - After Z defaulted W sold properties as mortgagee – W obtained summary judgment for shortfall after sale - Also issued bankruptcy proceedings – HC declined Z’s application to set aside summary judgment and ordered Z adjudicated bankrupt –

CA declined Z’s appeal against HC decision and  application to admit new evidence – Sought leave to appeal to SC –

SC said proposed appeal would turn on assessing facts - No questions of general or public importance or commercial significance arose - No appearance of miscarriage of justice in the civil sense – Application declined.

Torts, climate change

Smith v Fonterra and ors [2022] NZSC 35 (31 March 2022)

Successful leave application - Approved question whether CA correct to dismiss appeal and allow cross appeal – CA had said case essentially related to response of tort law to climate change – Application allowed.

Forestry right, proceeds from sale, mistake

Biscuit Creek Forest Ltd v Vallance and anor [2022] NZSC 36 (1 April 2022)

Unsuccessful leave application – B sought leave to appeal CA decision regarding the Vs selling 44.7 per cent share in proceeds of logs felled under registered forestry right – CA described this as “owner’s share” and agreement as “OS agreement” – Parties entered OS Agreement under common mistake (that Vs owned owner’s share, rather than Trust) –

Mistake significance related to OS Agreement GST treatment - Owner’s share price GST inclusive, based on assuming no GST payable because Vs not GST-registered - However, Trust GST- registered so would have been liable for GST of almost $175,000 – CA said mistake meant substantially unequal exchange of values disproportionate to consideration offered, upholding similar HC ruling - Section 28 Contract and Commercial Law Act 2017 engaged – CA said remedy order cancelling contract under s 28(2)(b), which although different in nature from HC remedy, had same effect –

BC applied for leave to appeal to SC – SC said issues particular to facts of case – No risk of miscarriage of justice – Application declined.

Barrister’s fees, recovery, procedural skirmishes

EA v Rennie Cox Lawyers [2022] NZSC 37 (4 April 2022)

Unsuccessful leave application – RC filed proceeding to recover barrister’s fees $95,738.51 plus interest in DC in March 2012 – EA did not respond to claim - Instead, matter mired in ongoing procedural disputes - Latest procedural skirmish CA judgment from which EA sought leave to appeal – CA judgment allowed RC’s appeal, reinstated DC timetable directions with variations –

SC said whether EA’s analysis correct dependent on facts - Did not give rise to question of general or public importance – Nor did SC see appearance of miscarriage in the civil sense in CA’s interpretation of facts – Proposed ground based on District Court Rules 2009 also turned on facts - Application dismissed.

Indecent act on child, photographs

Seymour v New Zealand Police [2022] NZSC 38 (4 April 2022)

Unsuccessful leave application - After judge-alone trial, S guilty of indecent act on child under s 132(3) Crimes Act 1961 - Offending involved S, then 66 years of age, taking two photographs of 10-year-old girl, K, while asleep in his care - S’s appeal to HC against unsuccessful – CA dismissed appeal  –

Sought leave to appeal to SC on two grounds: First, CA erred finding, under s 132, act of taking photograph capable of being indecent act; Second, CA wrong to find SC decision allowed for consideration of surrounding circumstances to determine whether act capable of being indecent was in fact indecent –

SC said proposed appeal would reprise arguments about effect of SC’s earlier decisions - Insufficient prospects of success here – Inappropriate case to consider broader questions of general or public importance that might arise from criminalising aspects of visual recording by photographs or other medium – Application dismissed.

Self-represented litigant, Imitation explosive device

Maid v R [2022] NZSC 39 (4 April 2022)

Unsuccessful leave application – Self-represented M aviation security (AVSEC) officer at Dunedin International Airport - Convicted after jury trial of taking imitation explosive device into security enhanced area (SEA) in breach of s 11(1A) Aviation Crimes Act 1972 - Sentenced to three years’ imprisonment – Sought leave to appeal CA dismissing appeal against conviction –

SC said case against M circumstantial - Not seen assembling device or carrying it into SEA - However CA said strong circumstantial evidence device taken into SEA - More than open to jury to accept evidence - Complaints regarding summing up also dismissed –

SC said numerous appeal grounds, many not raised in CA, all ultimately based on facts – No issue of public or general importance – No suggestion of miscarriage of justice – Application dismissed.

Supreme Court of Canada

Possession of loaded restricted firearm, evidence, Trial Judge directions

R v Samaniego [2022] SCC 9 (25 March 2022)

Unsuccessful appeal from Ontario CA – S and another (co-accused) went to Toronto nightclub - Security guard allowed co-accused in, as they were good friends - Did not allow S because S had previously threatened him - Later police called about gun at nightclub - Arrested S and co-accused for possession of loaded restricted firearm –

Crown called security guard as witness - Testified S threatened him when he did not allow him into club and showed him gun tucked into waistband - Guard also said co-accused came out of club to resolve situation, took gun away from S then went back in, but later came out again, dropped gun in front of guard and picked back up - Crown’s position was that both had gun at some point –

S's lawyer said only co-accused had possession of gun and security guard lying to protect co-accused because co-accused was his friend -

During trial, judge made four rulings limiting questions security guard could be asked, including questions about who dropped gun and who picked it up - Jury eventually convicted S -

S appealed conviction to CA – Said trial judge’s rulings wrong – CA majority disagreed, saying trial judge’s rulings trial management decisions and did not affect trial fairness – S appealed to SC -

SC majority said, despite error on one ruling, S had fair trial – Appeal dismissed.

Maple syrup, theft of, compensation  

R v Vallières [2022] SCC 10 (31 March 2022)

Successful appeal from Quebec CA - V and others stole maple syrup - Theft discovered in July 2012 when Fédération des producteurs acéricoles du Québec (Federation) did routine inventory check at its warehouse - Found barrels containing water instead of maple syrup - Federation controlled Quebec maple syrup production - Provincial police arrested 16 people, including V –

V guilty of fraud, trafficking and theft - Stolen syrup worth over $18 million - During Quebec Superior Court trial, said he sold syrup for $10 million and made a personal profit of around $1 million -

V sentenced to eight years prison and fined over $9 million - Judge ordered fine based on s 462.37(3) Criminal Code, which said fine to be equal to stolen property value when property could not be returned to owner - “fine in lieu”.

V appealed to Quebec CA - CA reduced fine to around $1 million, V’s profit.

Crown appealed to SC – SC unanimously sided with Crown – Said Code clear – V had 10 years to pay fine or had to serve six years prison - Section 462.37(3) wording meant court did not have the discretion to limit a fine to profit – Appeal allowed.

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