New Zealand Supreme Court

Guilty plea, reduced charges, instructions to counsel

Fei He v R [2021] NZSC 29 (25 March 2021)

Unsuccessful leave application – F went to trial in DC on six charges of possession for sale or supply of non-approved psychoactive substances, one representative charge of sale of a non-approved psychoactive substance, and two charges of money laundering -  Crown case was that she was ringleader of a sophisticated operation involving psychoactive substances having a value of approximately $4 million – Her trial lawyers advised in writing before the trial that, in view of the evidence against her and the difficulties with her proposed defence, it was in her interests to plead guilty - During the trial, Crown prosecutor proposed a deal: F would plead guilty to one representative charge of possession for sale and supply of non-approved psychoactive substances and one representative charge of sale of a non-approved psychoactive substance - Remaining charges would be dismissed under s 147, Criminal Procedure Act 2011 -  Reduced charges she faced from nine to two - Also reduced maximum cumulative penalty she faced to four years’ imprisonment - Apparent reason for offer was delays in the progress of the trial meant mistrial becoming a real possibility – F decided to accept offer - Signed written instructions to counsel confirming she would plead guilty to the two psychoactive substance charges and other charges would be withdrawn. Evidence before CA was that document was signed in presence of a Mandarin-speaking translator (F was a Mandarin speaker) – F appealed to CA against conviction - Said her guilty plea was entered under pressure from her trial lawyers, and miscarriage of justice occasioned - Appeal was dismissed – CA heard evidence from F and her trial counsel - Both were cross-examined – CA accepted trial counsel’s evidence - Said it did not find F’s evidence that she was placed under undue pressure credible – F applied for leave to appeal to SC against her conviction and CA credibility finding - In the face of CA’s very clear credibility evaluation of SC did not see F’s arguments as having sufficient prospects of success to justify the cost and expense of a further appeal – Application dismissed.

ACC cover, Claim against drug manufacturer

Austin v Roche Products (New Zealand) Ltd [2021] NZSC 30 (31 March 2021)

Unsuccessful appeal from CA – For many years A took prescription drug, Roaccutane, which RPNZ distributed in New Zealand – A said Roaccutane caused him to suffer excessive and painful bone growth in his spine – Aimed to sue RPNZ and related companies in negligence for his injuries – A already claimed and received cover under Accident Compensation (ACC) scheme - Under Accident Compensation Act 2001 (ACC Act), someone could not sue for compensatory damages for personal injury ACC scheme covered – RPNZ applied to strike out A’s claim because ACC Act barred claim - Also applied to strike out the entire proceeding as time-barred under Limitation Act 1950 – HC refused to strike out A’s claims – CA agreed that proceeding could not be struck out on limitation ground but struck out claim as ACC Act barred it – CA said ACC scheme covered A’s injuries -  A granted leave to appeal to SC - Said not entitled to ACC cover because injuries were an ordinary consequence of consuming Roaccutane - Meant claim against RPNZ should not have been struck out - Approved question whether A’s compensatory damages claim should have been struck out because injuries not an ordinary consequence of the consumption of Roaccutane - Accident Compensation Corporation (Corporation) raised two new issues not raised in Courts below - One  was whether SC had jurisdiction to deal appeal at all, given s 133(5) of the ACC Act – This said if someone had claim under ACC Act and right of review or appeal regarding that claim, “no court” could “consider or grant remedies in relation to that matter if it is covered by [the] Act” - Corporation said possible consequence of this was that A challenge his ACC cover via ACC Act processes, not through the courts – RPNZ agreed with his argument – A said s 133(5) did not apply to him because he was too late to review or appeal his cover - Therefore did not have a right of review or appeal in relation to his claim SC said s 133(5) applied to A - Challenge that he did not have cover unusual, but could be made under the Act’s dispute resolution scheme - That he was out of time did not mean he could avoid the Act’s procedures altogether - Might still make late application to Corporation for review under s 135(3) – SC therefore did not have jurisdiction to deal with A’s appeal – SC ordered proceeding struck out one month after  date of judgment unless A applies for review under s 135, and stay of proceeding pending completion of that process – Appeal dismissed.

Sexual offending, methamphetamine supply

R v Pou [2021] NZSC 31 (31 March 2021)

Unsuccessful leave application – P convicted after a District Court jury trial on seven charges of sexual connection with a young person, a representative charge of supplying methamphetamine, four representative charges of doing an indecent act on a child and one charge of possession of methamphetamine for supply - Sentenced to 11 and a half years imprisonment - Appealed against conviction and sentence to CA - appeal dismissed - Sought leave to appeal to SC against conviction – Following unsuccessful recall application to CA, P’s counsel applied to amend the application for leave to appeal to SC - SC judgment dealt with the points raised in the amended leave application – No matter of general or public importance raised – issues fact specific – no miscarriage of justice – Application dismissed.

Supreme Court of Canada

Constitutional law, federal versus provincial powers, “national concern”

Reference re Greenhouse Gas Pollution Pricing Act [2021] SCC 11 (25 March 2021)

Canadian Parliament passed the Greenhouse Gas Pollution Pricing Act in 2018 (Act), based on the consensus that greenhouse gas emissions contributed to global climate change - In Canada, the federal government passed the Act to implement its commitments - Specifically, the law required provinces and territories to implement carbon gas pricing systems by January 1, 2019 or adopt one the federal government imposed - Three provincial governments – Saskatchewan, Ontario and Alberta – challenged the Act’s constitutionality, referring the legislation to their respective CA’s - Saskatchewan and Ontario CA’s found the Act constitutional - Alberta CA found it unconstitutional – Attorney General of British Columbia, who had intervened in the Alberta CA, Attorney General of Saskatchewan and the Attorney General of Ontario appealed as of right to SC – SC majority said Act was constitutional - Said global warming caused harm beyond provincial boundaries and was matter of national concern under the “peace, order and good government” clause of the Constitution – Said Act would only apply where provincial or territorial pricing systems not strict enough to reduce global warming – SC said “national concern” a well-established but rarely applied doctrine of Canadian constitutional law - Application of doctrine is strictly limited in order to maintain the autonomy of the provinces and respect the diversity of confederation - However, the federal government had authority to act in appropriate cases, where there was a matter of genuine national concern and where the recognition of that matter was consistent with the division of powers – Canadian constitution divided federal and provincial powers – SC said Canada had a federal system of governance requiring balance between federal and provincial powers - Said this concept, known as federalism, was a foundational principle of Canada’s Constitution – SC said the term “carbon tax” was often used to describe the pricing of carbon emissions – However, this had nothing to do with the concept of taxation, as understood in the constitutional context - Said fuel and excess emission charges the Act imposed were constitutionally valid regulatory charges and not taxes.

UK Supreme Court

Equal pay, comparator, cross-establishment comparison

Asda Stores Ltd v Brierley and ors [2021] UKSC 10 (26 March 2021)

Unsuccessful appeal from CA - appeal arose from the trial of a preliminary issue in the equal pay claims that Brierley and others (Claimants)  brought against Asda Stores Limited (Asda) one of the UK’s major supermarket retailers - Threshold requirement for equal pay claims to be brought is that claimants must be able to compare themselves to a valid comparator - Comparator must be real person employed by the same, or an associated employer - If claimants chose comparator based at another establishment (which would involve making a "cross-establishment comparison", "common terms" had to apply at both claimants’ and the comparator’s establishments (terms did not have to be identical or the same) – Common terms requirement found in section 79(4)(c) of the Equality Act 2010, which replaced the earlier provision, section 1(6) of the Equal Pay Act 1970. The present equal pay claims were brought under both the 2010 and 1970 Acts because they related to periods when the earlier legislation was still in force – claimants in appeal predominantly women and employed in Asda’s retail business - Sought compensation based on six-year period prior to commencing proceedings in 2014 – Said  they received less pay than a valid comparator for the same work - Claimants’ chosen comparators were Asda employees employed at Asda’s distribution depots, who were predominantly men - Retail and distribution locations were separate from one another – meant claimant relied on  cross-establishment comparison - Essential question appeal was whether common terms applied between claimants’ and comparator’s establishments, satisfying the common terms requirement in the equal pay legislation - Asda applied to dismiss claims saying comparator issue should be determined against claimants - Claimants succeeded before the employment tribunal - Employment Appeal Tribunal (EAT) and CA dismissed Asda’s appeals - Asda appealed to SC – SC dismissed appeal – Dismissal did not  mean claimants’ claims for equal pay succeeded - At this stage all that was determined was they could use terms and conditions of employment enjoyed by the distribution employees as a valid comparison – Appeal dismissed.