Supreme Court roundup December - January
Decisions, proceedings and news from the New Zealand Supreme Court over December and January.
WM v R  NZSC 139 (10 December 2020)
Unsuccessful leave application - In 2018, WM convicted after District Court jury trial on seven charges of sexual violation by unlawful sexual connection and one charge of indecent assault on a boy under 12 (his son A) – Offending occurred between 1996 and 1999, when A was aged between four and seven years and again between 2000 and 2002 when A was aged between seven and ten years - All charges were representative - Some years earlier WM’s ex-wife had complained to the police alleging that WM had regularly raped her in the late 1990s - WM pleaded guilty to two representative charges of rape and was sentenced to three years’ imprisonment - A was present at the sentencing - Crown applied pre-trial to lead the evidence of WM’s convictions for raping his wife (the prior convictions evidence) as propensity evidence relating to offending against A - Application unsuccessful - Crown intended to appeal against ruling, but before that occurred defence agreed that prior convictions evidence could be adduced at the trial for offending against A - Agreed statement of facts provided to the jury under s 9 of the Evidence Act 2006 – WM appealed to CA against his convictions for the offending against A, alleging trial counsel error – CA reviewed the evidence of the applicant and his trial counsel about reasons for allowing evidence of the prior convictions to be before the jury – CA said applicant had agreed to this strategy after extensive discussion with his counsel – SC did do not consider issue a matter of general or public importance: rather an assessment taking into account the particular facts – SC also not satisfied that argument based on miscarriage of justice had sufficient prospects of success to justify further appeal – Application dismissed.
Rameka v R  NZSC 140 (10 December 2020)
Unsuccessful leave application - Earlier in 2020 SC dismissed R’s application for leave to appeal against CA decision dismissing his appeal against conviction for cultivating cannabis – R’s conviction based on evidence obtained following the execution of a search warrant at his property – After SC dismissal of earlier leave application R applied to CA for an unredacted version of the search warrant application - Application under the Senior Courts (Access to Documents) Rules 2017 (the Access Rules) - CA judgment dismissing said CA had seen an unredacted copy of the search warrant application - In a minute dated 13 October 2020, CA Judge declined R’s application - Judge considered said reasons for redacting information in response to R’s pre-trial application under the Criminal Disclosure Act continued to apply and provided a proper basis to decline his new request under the Access Rules – SC said leave criteria for application not met - Proposed appeal concerned routine application of the Access Rules and would not raise any issue of general or public importance – Nor for reasons set out in SC’s first judgment was there any risk of a miscarriage of justice – Application declined.
Woods v Police  NZSC 141 (10 December 2020)
Successful appeal – W sentenced in the District Court on various charges to eight months’ imprisonment with standard and special release conditions to apply six months after sentence expiry date - W experienced psychotic episodes while serving the sentence and required hospitalisation - Department of Corrections considered existing release conditions insufficient to manage W’s risk to Department and the public - Department applied to vary conditions so the he could be released to Toruatanga, supported accommodation - DC granted application imposing additional conditions on W requiring him to reside at the specified address, engage in a reintegration programme from 8 am to 8 pm each day, stay at the address between 8 pm and 8 am each day, and to comply with electronic monitoring - W offended again and DC re-imposed conditions - W appealed to HC twice saying combination of conditions as varied and re-imposed amounted to intensive monitoring and residential restrictions, both of which were not permitted by the Sentencing Act- HC dismissed both appeals – CA majority dismissed W’s appeal – W appealed to SC - SC unanimously allowed the appeal - Said combination of conditions meant he was in substance subject to residential restrictions which the Court did not have power to impose under the Sentencing Act - Was because the exclusion in s 93(2B) of the Act prohibited such conditions being imposed - Combination was therefore imposed unlawfully – Appeal allowed in respect of conditions.
Wooton v Wooton  NZSC 142 (11 December 2020)
Unsuccessful leave application – MW applied to CA for leave to appeal against HC decision on certain interlocutory applications she made - Also applied under r 12(3)(a) of the Court of Appeal (Civil) Rules 2005 for an order staying the High Court proceedings between her and PW pending the determination of her application for leave to appeal - In a judgment issued on 5 October 2020, CA judge declined her stay application - Now sought SC leave from this Court to appeal against CA Judge’s decision - SC had dismissed her stay application on 29 October 2020 - Because proposed appeal to SC against CA order on an interlocutory application, SC could not grant leave unless satisfied that both the criteria for leave to appeal set out in s 74(1) and (2)5 of the Senior Courts Act 2016 and the additional requirement in relation to interlocutory appeals in s 74(4)6 were satisfied – SC said CA judge’s decision an orthodox decision based on well-established criteria – SC said matter of public importance did not arise – Substantial miscarriage of justice test not met – Application declined.
Faloon v Planning Tribunal at Wellington and ors  NZSC 144 (16 December 2020)
Unsuccessful applications to recall judgment and review Registrar’s decision – SC said general rule was judgment once delivered had to stand for better or worse - There were exceptions - Nothing self-represented F raised provided grounds for recall of SC judgment – Nor were there grounds to review Registrar’s decision not to accept an interlocutory application for filing – Applications dismissed.
M v Attorney-General and ors  NZSC 145 (16 December 2020)
Partially successful leave application - Approved question: Was M detained unlawfully after 20 December 2008 because the direction of the Attorney-General under s 31(4) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that he be detained as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 was not issued until 14 January 2009 and if so for how long? – M sought leave to appeal on all 10 grounds of appeal CA rejected in its decision dismissing his appeal from HC decision – Also advanced two further grounds of appeal that CA did not consider – SC said approved question raised a matter of general and public importance and granted leave on that question - Not satisfied that leave criteria for any other grounds – Application partially successful.
Bradley v R  NZSC 147 (17 December 2020)
Unsuccessful leave application – B convicted after trial of five representative charges of rape of two young relatives A and R - Charges spanned a period of some two and a half years when the complainants were aged between seven and nine - Sentenced to 15 years’ imprisonment – CA dismissed his appeal against conviction – Sought leave to appeal to SC – First appeal ground was his difficulties with verbal tasks likely affected CA assessment of his credibility - SC had not been provided with any evidence about his verbal difficulties – Said if he wished to pursue this would need to go back to CA with evidence and seek a recall of CA judgment - SC reserved leave to seek to appeal again if that application was unsuccessful - None of the other matters B raised gave rise to any question of general or public importance – Rather proposed appeal would turn on the particular facts - Nor does anything B raised regarding these matters suggest a miscarriage of justice in the CA assessment of the issues - Application dismissed with leave reserved to seek to appeal to SC if an application for recall to CA unsuccessful.
O’Neill v Bridgeman and ors  NZSC 148 (18 December 2020)
Unsuccessful leave application – Self-represented O issued proceedings against the three respondents in respect of their actions (or inactions) in senior roles in the Ministry of Justice regarding their dealings (or non-dealings) with him - Primarily in issue were his concerns about how court officers dealt with him, concerns he said he raised with them without satisfactory (for him) result - Allegations in statement of claim generally expressed alleging failures to comply with legal duties and perversion of justice - Further material supplied to HC fleshed out and added to allegations - Language used at times was abusive and in some respects scandalous – HC struck proceedings out – CA dismissed subsequent appeal – Applied for leave to appeal to SC – HC and CA judgments provided clear guidance on mechanisms for challenging court officer decisions under High Court Rules 2016 - Proposed appeal did not raise any issue of general or public importance - Submissions in support of his application for leave did not identify basis for doubting HC and CA judgments - Proceedings an abuse of process and likewise disclosed no reasonably arguable cause of action – Applications dismissed.
Terry v NZ Police  NZSC 149 (18 December 2020)
Unsuccessful leave application – Self-represented T sought leave to appeal against a decision dismissing application for review of a decision of CA Deputy Registrar declining to accept for filing a notice of application for leave to appeal to CA – SC said clear T had well and truly exhausted his appeal rights and SC had no jurisdiction to determine present application - Appeal rights were exhausted after an HC decision - All steps taken since then have been beyond the jurisdiction of the relevant courts – Application dismissed.
Frucor Suntory Ltd v Commissioner of Inland Revenue  NZSC 150
Successful leave applications - Approved grounds were whether CA correct to allow the appeal and whether CA correct to hold that shortfall penalties did not apply.
Attorney-General v Family First New Zealand  NZSC 151 (18 December 2020)
Successful leave application – Approved question whether CA correct to allow the appeal – CA had set aside Charities Registration Board decision to remove FFNZ from Charities register and issued declaration that FFNZ qualified for registration under the Charities Act 2005.
K v R  NZSC 154 (18 December 2020)
Successful application to continue name suppression – K sought s leave to appeal against CA decision of the Court of Appeal refusing to continue suppression of his name – to allow SC time to consider application SC extend the suppression order until further Court order.
Roper v Taylor and anor  NZSC 152 (21 December 2020)
Unsuccessful leave application with leave reserved for the applicants to further apply for leave to appeal to SC on false imprisonment issue if application to CA to recall its judgment unsuccessful - Applications arose out of civil proceedings T brought against R for sexual assault and false imprisonment while both were employed by the Royal New Zealand Air Force in the late 1980s – In 2016 T withdrew a police complaint and filed High Court proceedings against both R and the Air Force alleging that R’s actions caused her extreme distress, depression, anxiety and post-traumatic stress disorder – T also argued that the Air Force was vicariously liable for Mr Roper’s actions and had breached its duty of care as her employer – HC said on the balance of probabilities that R did assault and falsely imprison T as alleged – Also said those actions caused T’s post-traumatic stress disorder, but not anxiety or depression – However Court said that T’s claims time-barred by the Limitation Act 1950 - While it did not need to decide the point the Court also said T had accident compensation (ACC) cover for her injury - On appeal T challenged aspects of HC rulings - CA unanimously dismissed most of the grounds raised but by a majority reversed HC decision on the limitation issue - Attorney-General applied for leave to appeal the false imprisonment issue - R applied for leave to appeal both the false imprisonment limitations issues - T opposed the applications but if leave granted sought leave to cross-appeal on issues of accrual and ACC cover for her assault claim - In a minute dated 29 October 2020 SC raised potential relevance of s 21B of the Accident Compensation Act 2001 which might cover T independently of grounds already argued - Section not raised or addressed in either of the Courts below – SC said would not be appropriate to hear an appeal on the false imprisonment issue until the parties have had an opportunity seek to argue the s 21B issue in the Court of Appeal – Regarding limitation ground SC said did not meet leave criteria as arguments advanced essentially challenged CA assessment of the evidence - No question of general or public importance arose - SC also satisfied that ground did not meet the higher threshold for a miscarriage of justice for civil appeals – Leave applications dismissed - Leave reserved for the applicants to further apply for leave to appeal to SC on false imprisonment issue if application to CA to recall its judgment unsuccessful.
Herd and anor v Haines and anor  NZSC 155 (21 December 2020)
Unsuccessful leave application – Haines and N succeeded in HC action brought against He and RH Ltd for recovery of losses they said resulted from He and RH Ltd’s default under a contract for the sale and purchase of a game fishing vessel – Herd and RH Ltd appealed unsuccessfully to CA - Sought leave to appeal to SC - Under the contract for sale and purchase, Haines and N agreed to sell the vessel to Herd - Vessel registered in Vanuatu and contract subject to Vanuatu law – SC said proposed appeal would reprise arguments that were addressed in CA - Would not involve considering any matter of general or public importance or commercial significance - Ultimately no real dispute as to the principles applicable to contractual interpretation in Vanuatu as applied by the lower Courts - Rather determining proposed appeal would require considering fact-specific questions about the parties’ particular contractual arrangements - Further nothing raised gave rise to the appearance of a miscarriage of justice in CA’s assessment of the facts as that term was used in the context of civil appeals – Application dismissed.
Su v R  NZSC 156 (22 December 2020)
Unsuccessful application for extension of time to apply for leave – S said delay related to a recall application in CA – Crown said S’s recall application was some three and a half months after the delivery of the appeal decision – SC said no adequate explanation for delay in submitting application to it - In any event SC said leave criteria not met - Application dismissed.
Synlait Milk Ltd v New Zealand Industrial Park Ltd and anor  NZSC 157 (22 December 2020)
Successful appeal – S built an infant formula factory - Land where factory built subject to two restrictive covenants which among other things restricted land use to grazing, farming and forestry – S’s plant in breach of the covenants - Issue on appeal was whether covenants should be modified under s 317 of the Property Law Act 2007 so that restriction removed or covenants extinguished altogether - After the hearing but before judgment delivered, the parties advised that they had settled the dispute - Settlement unconditional notice of filed - SC nevertheless decided to deliver judgment - Issues appeal raised were matters of general importance and the SC views differed markedly in some respects from CA - However settlement meant that judgment did not determine respective rights and interests of the parties to the dispute – SC said three of the grounds for modification in s 317(1) were made out - s 317(1)(d) criteria – modification would not cause substantial injury - s 317(1)(a)(ii) – that covenant ought to be modified because of a change in the character of the neighbourhood – was established - s 317(1)(b) – continuation in force of the covenant would impede the reasonable use of the burdened land in a different way or to a different extent from that which could reasonably have been foreseen when the covenant was created – was also made out – SC said there was no reason to decline to exercise the discretion in s 317(1) to modify the covenants – It would have allowed the appeal and modified the covenants by deleting the clause that limited the use of S’s burdened land to lifestyle farming, grazing and forestry - Would also have allowed S’s appeal against CA decision that NZIPL was entitled to indemnity costs – SC accepted that NZIPL’s opposition to the s 317 application amounted to “enforcement” - However, it said reference to “enforcement” in the covenants included only successful enforcement. NZIPL was therefore not entitled to indemnity costs - Given the nature of a s 317 application SC said no costs award should have been made against NZIPL in HC, even though it was unsuccessful – However normal costs principles apply on appeal – SC would therefore have awarded costs to S on the usual basis if the dispute had not been settled.
Kempson v R  NZSC 158 (22 December 2020)
Unsuccessful leave application – K applied for leave to appeal CA refusal to continue name suppression following dismissal of his appeals against murder conviction and sentence - Said a matter of general or public importance arises because a failure to extend the suppression order would amount to an erosion of fair trial rights for defendants seeking retrial – Also said a substantial miscarriage might occur if leave is not given because if he succeeded in obtaining leave to appeal to SC against his murder conviction and the appeal was successful a retrial would be ordered – SC did not see any point of general or public importance arose here – Rather a matter of applying the law to the specific facts of the present case – Nor was it satisfied that any substantial miscarriage of justice will occur if leave not granted – Application dismissed.
Denny v R  NZSC 159 (22 December 2020)
Unsuccessful application for judgment recall – Following a jury trial D was convicted of intentionally causing grievous bodily harm by using his vehicle to run over the complainant, B – Appeal to CA against conviction and sentence was unsuccessful - Application for leave to appeal to SC against conviction was dismissed in a judgment delivered on 9 June 2017 – Sought further leave to appeal to SC based on further evidence from a defence expert that tyre marks at the incident scene could not be from D’s vehicle meaning the jury verdict was unreasonable – SC said application had to be treated as an application to recall Court’s earlier judgment declining leave to appeal and that the only applicable ground for recall here is whether for some “very special reason” justice required recall – Test not met here – Recall application dismissed.
Lu and anor v Industrial and Commercial Bank of China (New Zealand) Ltd and anor  NZSC 160 (23 December 2020)
Unsuccessful application for review of Deputy Registrar decline to waive filing fee – SC Judge agreed with the Deputy Registrar that the judgments raised issues particular to this set of facts and applied well-settled principles relating to tests for an extension of time and to a strike-out – Application dismissed.
Warren also Known as Te Rangatira Tangata Whenua v Chief Executive of Department of Corrections  NZSC 161 (23 December 2020)
Unsuccessful leave application – W serving a sentence of preventive detention for attempted murder and wounding with intent to cause grievous bodily harm – HC Judge issued warrant on 11 August 2017 – Another Judge dismissed his application for habeas corpus on 10 December 2020 - Sought leave to appeal from that judgment - Application for habeas corpus and application for leave to appeal based on a Māori sovereignty argument – December 2020 application was third such application; the first having been brought while he was in custody awaiting his trial and the second after his conviction and sentence – Third application dismissed under s 15(1) of the Habeas Corpus Act 2001 as raising substantially the same questions as were considered in his earlier applications - Judge also said that it was clear that W was lawfully detained under the August 2017 warrant – SC said submissions in support of the application for leave disclosed no basis for doubting the correctness of the judgment - Proposed appeal did not raise a question of general or public importance and no appearance of a miscarriage of justice – Leave application dismissed.