New Zealand Law Society - Supreme Court Roundup 6-12 November

Supreme Court Roundup 6-12 November

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

NZ Supreme Court

Sentencing, third strike, declaration of inconsistency

Fitzgerald v R [2020] NZSC 119 (3 November 2020)

Partially successful leave application – F serving seven-year sentence imposed under s 86D(2) Sentencing Act 2002 (the Act), part of the three strikes regime - Sought leave to appeal on three issues: (a) interpretation of s 106 of the Act in context of third strike offences; (b) CA refusal to grant declaration of inconsistency in respect of s 86D(2) ; and (c) whether HC should have amended F’s charge under s 136 of the Criminal Procedure Act 2011 - Leave granted on first ground – On second ground, SC not satisfied this was a suitable case to consider the jurisdiction to make a declaration of inconsistency in the context of criminal appeals – On third ground SC not satisfied sufficient prospects of success on facts to justify granting leave – Application partially successful.

Extradition, eligibility for surrender

Ortmann and ors v United States of America and anor [2020] NZSC 120 (4 November 2020)

USA requested O and others’ (Appellants) Extradition to USA to face trial for criminal copyright infringement and other related charges - 13 charges in total - Request under Treaty on extradition between New Zealand and USA - Issue on appeal was whether Appellants were eligible for surrender in respect of these charges under Extradition Act 1999 - Extradition under Extradition Act a two-stage process - First, court had to determine whether person eligible for surrender to the requesting country - If court finds person eligible for surrender, then for Minister of Justice, at the second stage, to determine whether person should be surrendered – Here, proceedings related only to first stage – In December 2015, DC said appellants were eligible for surrender to USA on each of the 13 counts with which they were charged - Appellants appealed against DC decision through case stated – HC and CA dismissed appellants’ case stated appeals, upholding DC decision - Appellants also applied for judicial review of DC decision - Applications alleged DC made procedural and substantive errors, some of which overlapped with grounds Appellants raised in case stated appeals – HC dismissed applications - CA dismissed appeals from HC decision, concluding that judicial review proceedings were an abuse of process – CA said grounds raised in judicial review duplicated grounds Appellants raised in case stated appeals – Also said Appellants attempting to bypass the appeal provisions in the Extradition Act - Meant CA did not consider merits of judicial review applications for judicial review - Appellants granted leave to appeal to SC against CA findings that they were eligible for surrender and judicial review proceedings were an abuse of process – SC dismissed the appeals against CA finding in case stated appeals that Appellants eligible for surrender, except regarding count 3 (conspiracy to commit money laundering) – SC allowed judicial review appeals and sought further submissions on this aspect of the case - Final determination on whether Appellants eligible for surrender on counts 1, 2 and 4–13 would be made after the judicial review appeals were resolved.

Supreme Court of Canada

Constitutional law, Canadian Charter, Corporation rights

Quebec (Attorney-General) v 9147-0132 Quebec Inc [2020] SCC 32 (5 November 2020)

Successful appeal from Quebec CA - Corporation found guilty of carrying out construction work as a contractor without holding current license for that purpose, an offence under s 46 of Quebec’s Building Act - Under s 197.1 of that Act, the penalty for offence under s 46 a mandatory minimum fine which varied depending on whether offender an individual or a corporation – Quebec Court imposed the then minimum fine for corporations of $30,843 - Corporation challenged the constitutionality of the mandatory minimum fine, saying it offended its right to be protected against cruel and unusual treatment or punishment under - s 12 of Canadian Charter - Court dismissed challenge, saying expanding rights protection intrinsically linked to individuals to include corporate rights would trivialize s 12 protection – Corporation appealed - Quebec Superior Court similarly said s 12 did not cover corporations - Provision purpose was protecting human dignity, a notion meant exclusively for natural persons - Quebec CA majority allowed corporation’s appeal, saying since corporations could face cruel treatment or punishment through harsh or severe fines, s 12 could apply to them - Dissenting judge said s 12 did not apply to corporations – Quebec Attorney-General appealed to SC – SC allowed appeal and set CA decision aside – All judges said s 12 protected people, not corporations - Majority said s 12 did not protect corporations from cruel and unusual treatment or punishment because text “cruel and unusual” denoted protection that only human beings could enjoy - Court’s jurisprudence on s 12 , in both French and English versions, marked by the concept of human dignity - Existence of human beings behind the corporate veil not sufficient to ground s 12 claim of right on behalf of a corporate entity, in light of the corporation’s separate legal personality – Appeal allowed.

Tort, duty of care, economic loss

1688782 Ontario Inc v Maple Leaf Foods Inc [2020] SCC 35 (6 November 2020)

Unsuccessful appeal from Ontario CA - Mr. Sub is a chain of Canadian sandwich shops – In 2008, some Mr. Sub franchisees were affected by Maple Leaf Foods (MFL) recalling meat products that had been processed in one of its factories in which a listeria outbreak had occurred - Following recall, franchisees experienced a shortage of product for six to eight weeks - At the time, an exclusive supply agreement governed relationship between Mr. Sub and MFL – Agreement between Mr. Sub and franchisees required franchisees to purchase ready to eat meats from MFL - No contractual relationship ever existed between the franchisees and MFL, each being linked to the other indirectly through separate contracts with Mr. Sub – Franchisees sued MFL - Franchise agreement said they could not sue Mr Sub - Said MFL responsible for their lost sales, profits, business value, and customer goodwill because of the recall - Motion judge said MFL responsible for shop owners’ losses – CA said it was not – SC majority said MFL did not owe the shop owners for the money they lost or the damage to their reputation – For MFL to be legally responsible, the shop owners would have to show that it owed them a duty of care in tort-- Though the common law readily imposed liability for negligent interference with and injury to the rights in bodily integrity, mental health and property, it had been slow to accord protection to purely economic interests - Pure economic loss might be recoverable in certain circumstances, but there was no general right in tort protecting against the negligent or intentional infliction of pure economic loss – Appeal dismissed.

High Court of Australia

Title, indefeasibility

Deguisa and anor v Lynn and ors [2020] HCA 39 (4 November 2020)

Successful appeal from full court of South Australian Supreme Court – s 69 of the Real Property Act 1886 (SA) ("the Act") provided that: "[t]he title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the original certificate of such land, be absolute and indefeasible". Restrictive covenants in common building schemes could not be registered under the Act - D and another person (D) were registered proprietors of a lot of land in Fulham (Lot 3") - D obtained planning approval to subdivide Lot 3 and build two townhouses - Lot 3 and 51 other allotments were once part of a large parcel of land which was subdivided and sold in the mid-1960s as part of what L and others (L) claimed to be a common building scheme - The certificate of title (CT) for Lot 3 referred in its schedule of dealings to a memorandum of encumbrance (Memorandum) – Memorandum lodged for registration and recorded on a cancelled CT for Lot 3 when in 1965 it was first sold - Memorandum terms relevantly prohibited erection of any building or buildings other than "a dwellinghouse", and also prohibited the erection of "multiple dwellings" - On the back-cover sheet of the Memorandum there appeared a handwritten requisition by the Land Titles Office, stating "[i]s the encumbrance part of a common building scheme? If not to what land is it appurtenant" - Handwritten requisition gave rise to the Memorandum being relodged, with a typed statement by a land broker that "[t]his encumbrance forms portion of a common Building Scheme". Neither the Memorandum of Encumbrance itself nor the CT identified the other lots intended to be benefited by the restrictive covenants in the Memorandum - L contending that building two townhouses on Lot 3 would infringe the restrictive covenants in the Memorandum, commenced proceedings in the DC to prevent the construction - Primary judge said D sufficiently notified of the restrictive covenants and were therefore bound by them – Also said L had standing to bring the proceedings, and Memorandum terms prohibited D’s proposed construction of the townhouses. Majority of the Full Court of the Supreme Court agreed – D appealed to HCA – It said D not notified of the restrictive covenants in accordance with s 69 of the Act - A person was not notified of an encumbrance or qualification upon the title of the registered proprietor of land that could not be ascertained from a search of the certificate of title or from a registered instrument referred to in a memorial on the certificate of title - D not required to undertake further inquiries and searches to ascertain the extent of the common building scheme referred to in the land broker's notation in the Memorandum - Given this conclusion, the Court said not necessary to consider whether A had standing to enforce the common building scheme or whether the covenant on its terms prevented the appellants' proposed construction – Appeal allowed.

Sexual offences, Judge’s jury direction

GBF v R [2020] HCA 40 (4 November 2020)

Successful appeal from Queensland CA – GBF convicted of six counts of sexual offences against his half-sister ("the complainant") when she was aged 13 and 14 years - Prosecution case wholly dependent upon accepting complainant's evidence - GBF did not give or call evidence - Trial judge directed the jury in unexceptional terms with respect to the presumption of innocence and the onus and standard of proof, instructing the jury that the appellant's silence could not be used as a makeweight, to fill gaps in the prosecution's evidence or to strengthen its case - However, later, after referring to the complainant's evidence, judge instructed the jury to: "bear in mind that [the complainant] gave evidence and there is no evidence, no sworn evidence, by the [appellant] to the contrary of her account. That may make it easier" ("the impugned statement") – GBF challenged convictions in the QCA, contending that, in effect, the impugned statement was a direction to the jury that the absence of evidence from him might make it easier to find him guilty - QCA said the impugned statement should not have been made but found that there was no real possibility: (1) jury may have misunderstood the earlier correct directions; and (2) GBF been deprived of a real chance of acquittal. Their Honours held that the impugned statement had not occasioned a miscarriage of justice - Took into account that neither prosecutor nor defence counsel applied for any redirection arising from the statement - GBF appealed to HCA – HCA accepted GBF’s submission that impugned statement’s effect was to invite the jury to engage in a process of reasoning that was contrary to the earlier correct directions. Impugned statement encouraged the jury to find it easier to accept the complainant's allegations because GBF had not given sworn evidence denying them – This process of reasoning false because it proceeded upon a view that an accused may ordinarily be expected to give evidence - Not supportable in an accusatorial system of criminal justice - QCA wrong to find impugned statement not an irregularity amounting to a miscarriage of justice – HCA allowed the appeal, set aside the appellant's convictions and ordered that a new trial be had.

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