New Zealand Law Society - Supreme Court roundup 12-18 Mar

Supreme Court roundup 12-18 Mar

Supreme Court roundup 12-18 Mar

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

New Zealand Supreme Court

Name suppression

Parker v R and anor [2021] NZSC 20 (11 March 2021)

Unsuccessful leave application – P sought leave to appeal against CA judgment dismissing his appeal against HC decision declining his application for name suppression – SC not satisfied in the interests of justice to grant leave, applying test set out in s 74 of the Senior Courts Act 2016 – CA’s  interim suppression order in its judgment would lapse - To provide P with opportunity to communicate the result as he needed to, SC ordered continuing suppression of his name, address, occupation and any identifying particulars until 2 pm on Friday 12 March 2021 - After that, no impediment to reporting P’s name – Application dismissed.

Sexual offending, no miscarriage of justice

Nancarrow v R [2021] NZSC 21 (11 March 2021)

Unsuccessful leave application – N convicted of sexual offending against three young persons -  Offending historic (ranging from 1970–1986)  – Applied for leave to appeal against CA decision dismissing his appeal against conviction – SC said CA thoroughly examined issues raised – CA said ultimately none of alleged flaws in trial, including a number no longer pursued, caused a risk of a miscarriage of justice - No error of principle involved in CA decision and matters raised related to particular facts and circumstances of case – Nor did anything N raised suggest that CA conclusion on miscarriage of justice was erroneous – Application dismissed.

“Procedural imbroglio”, extent of relief

ESR Group (NZ) Ltd v Burden and ors [2021] NZSC 22 (11 March 2021) 

Unsuccessful leave application - Arose out of a procedural imbroglio in a copyright dispute between the respondents (collectively Plantation) and ESR – In proceeding commenced in 2014 (2014 proceeding), Plantation alleged ESR infringed Plantation copyright in technical drawings of furniture making up its “Irish Coast Collection” – In question here was extent to which Plantation could seek relief against ESR – SC said scope for argument as to the correctness of CA approach - meant simply that an appeal would be arguable - Argument would substantially focus on minutiae of the way in which 2014 proceeding conducted and would not raise any question of general or public importance or of commercial significance – No risk of miscarriage of justice – Application dismissed.

Supreme Court of Canada

Sexual offences, inconsistent jury verdicts

R v R V [2021] SCC 10 (12 March 2021)

Successful appeal from Ontario CA – V charged with sexual offences against an underage person between 1995 and 2003 - Specifically, charged with sexual assault, sexual interference and invitation to sexual touching - Jury convicted V of sexual interference and invitation to sexual touching - Same jury said he was not guilty of sexual assault based on the same evidence - V appealed his convictions - Said guilty verdicts unreasonable because they were inconsistent with not guilty verdict - Crown cross-appealed the not guilty verdict, claiming instructions to jury were so unnecessarily confusing it amounted to error of law – CA majority said convictions for sexual interference and invitation to sexual touching unreasonable -  Inconsistent with not guilty verdict on the sexual assault charge – Also said no legal error in instructions to the jury - Set aside convictions and substituted not guilty verdicts – Crown appealed to SC – SC majority set out framework to analyse cases where accused alleged verdicts inconsistent - Said in some cases, prosecution could try to reconcile verdicts that appeared to be inconsistent if they were the result of a legal error in instructions to the jury – Said  burden on prosecution to satisfy an appellate court to a high degree of certainty that there was a legal error in the instructions to the jury and that the error: (1) had an impact on the not guilty verdict; (2) did not have an impact on the guilty verdict; and (3) demonstrated jury did not find the accused guilty and not guilty of the same conduct – Here majority said trial judge misdirected jury on sexual assault charge, which was a legal error - Specifically, trial judge left jury members with mistaken impression that element of “force” required for sexual assault was different than element of “touching” required for sexual interference and invitation to sexual touching - Majority said to a high degree of certainty, that the legal error: (1) had a significant impact on the not guilty verdict of sexual assault; (2) did not have an impact on the guilty verdicts; and (3) demonstrated that the jury did not actually find V guilty and not guilty of the same conduct, because the jury had not been given the right explanation of what “force” meant – SC reinstated guilty verdicts, set aside not guilty verdict on sexual assault charge and entered a stay of proceedings on that charge - Meant criminal process stopped instead of ordering a new trial – Appeal allowed.

High Court of Australia

Procedure, competing applications, considerable overlap between

Wigmans v AMP Ltd and ors [2021] HCA 7 (10 March 2021)

Unsuccessful appeal from New South Wales CA – Related to how court should respond to competing applications to stay one or more open class representative proceedings commenced under Pt 10 of Civil Procedure Act 2005 (NSW) regarding the same controversy - Following evidence from AMP executives at the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry on 16 and 17 April 2018, five open class representative actions were brought against AMP Limited -  Considerable overlap between claims made in proceedings, although were not identical - Representative plaintiff in four proceedings filed notice of motion in New South Wales SC seeking orders that each other proceeding be permanently stayed - Application made (and ultimately granted) for remaining proceeding to be consolidated with one of the other four proceedings, Komlotex Pty Ltd had filed (consolidated Komlotex proceedings) - Primary judge, adopted "multifactorial approach" - Said consolidated Komlotex proceedings should proceed and  other proceedings should be stayed - Gave most weight to a comparison of competing funding proposals, costs estimates and net hypothetical return to members -Said Komlotex funding model  likely to provide the best return for group members - W, the representative plaintiff in the proceeding filed first in time, appealed on grounds that consolidated Komlotex proceedings were an abuse of process – HC majority said there could be no "one size fits all" approach and, where defendant's interests were not differentially affected, court had to determine which proceeding going ahead would be in the best interests of group members - SC power to grant stay of competing representative proceedings not confined by rule or presumption that the proceeding filed first in time was to be preferred - Further, while litigation funding arrangements not a mandatory consideration relevant to exercising stay power, they were not irrelevant - Primary judge assumed no basis for distinguishing between legal teams and litigation funders in each matter and tested  likelihood of achieving particular results by applying the common assumptions to each case - W conducted her case consistently with those assumptions, and there was no error in the primary judge's approach - Primary judge's approach not the only manner in which a court might determine which proceeding going ahead would be in the best interests of group members - Appropriate approach would invariably depend on the nature of the case in hand – Appeal dismissed.

Visa cancellation, notice

Minister for Immigration and Border Protection v EFX 17 [2021] HCA 9

Unsuccessful appeal from Full Federal Court - Concerned meaning and operation of s 501CA(3) of the Migration Act 1958 (Cth) - Sub-section said Minister must, in the way that the Minister considers appropriate in the circumstances, give a person whose visa has been cancelled a written notice of the original decision to cancel and particulars of relevant information, and must invite the person to make representations, within the period and in the manner ascertained in accordance with the Migration Regulations 1994 (Cth), about revocation of the original decision – Minister’s delegate cancelled E’s visa under s 501(3A) - Email attaching a letter from the delegate and enclosures sent to correctional centre where he was detained - On 4 January 2017, a corrective services officer handed the letter and enclosures to E - Letter explained the decision to cancel his visa - Also explained that E had an opportunity to make representations about revocation of the decision "within 28 days after you are taken to have received this notice" - Letter incorrectly stated that E was taken to have received the notice at the end of the day the email was transmitted (being 3 January 2017) – E submitted to FC that Minister failed to comply with s 501CA(3) for essentially two reasons - First, Minister failed to "give" the written notice and particulars and to "invite" representations because the letter and enclosures were not delivered to him in such a way that he could understand their substantive content given, amongst other things, his limited capacity to understand English - Secondly, neither the Minister nor delegate personally delivered written notice, particulars, and invitation to E -  FC rejected both submissions - On appeal, Full Federal Court majority accepted them - Minister appealed to HCA -  E argued that Full Court's decision should be upheld because invitation to make representations did not specify the period within which to make such representations -  HCA said verbs "give" and "invite" in s 501CA(3) bore their ordinary meanings of, respectively, deliver and request formally - Expression "in the way that Minister considers appropriate in the circumstances" only concerned with delivery or request method – Recipient’s capacity to understand the written notice, particulars, and invitation referred to in s 501CA(3) not relevant to whether duties in sub-section had been performed – HCA also said duties in s 501CA(3) not required to be performed personally by Minister or delegate who made cancellation decision - However, it said invitation to make representations "within the period ... ascertained in accordance with the regulations" must crystallise the period either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the invitation - Letter provided to E did not do so – Appeal dismissed.

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