New Zealand Law Society - Courts roundup 28 April - 4 May 2022

Courts roundup 28 April - 4 May 2022

Courts roundup 28 April - 4 May 2022

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

New Zealand Court of Appeal

Trusts and trustees

Mason (M) v Triezenberg (co-trustees) [2022] NZCA 138 (27 April 2022) Clifford, Mallon and Moore JJ

Unsuccessful appeals from decision removing M as trustee and vesting powers of appointment and removal in co-trustees – M1 and M2 trusts settled by M and wife with assets acquired through family business – Wife developed Alzheimer's and trustees’ relationship became dysfunctional concerning her care - M took steps to remove co-trustees and appoint son in their place - HC found deeds of removal and appointment were invalid and it was necessary to remove M as trustee - M viewed trust assets as his to deal with as he liked and his rigidity and extreme hostility to co-trustees made trust administration impossible – On appeal, M challenged order for removal on basis deed removing co-trustees and appointing son was valid, Judge should not have intervened in M1 trust where issues settled and dispute resolution process could resolve future issues and actions of co-trustees were hostile and they should have been removed – CA confirmed HC findings.

Criminal procedure – Stay (login required)

R v X(CA71/2022) [2022] NZCA 152 – 29 April 2022 – Gilbert, Woolford and Dunningham

Successful Crown appeal from stay of prosecution - X charged with serious sexual offending against niece between 2001 and 2003 – Trial issue consent – Delay from first complaint to laying charges 17 years – DC found prejudice arising from delay and non-availability of witnesses (X’s wife, complainant’s mother and medical professionals) meant fair trial was not possible – Appeal issues included whether Judge correct to take into account inadmissible evidence under s44 Evidence Act and death or non-availability of close witnesses whose evidence was unknown or otherwise available – CA concluded stay not justified as matter of law - No evidence of tangible delay-related prejudice to justify stay of such serious charges. 

Criminal procedure – Sentence (login required)

E v R [2022] NZCA 135 (27 April 2022) Collins, Lang and Mallon JJ

Unsuccessful appeal against conviction, sentence and refusal of permanent name suppression – Rape (x2) – E was foreign national aged 32 with no previous convictions - Alleged rape of passenger while working as Uber driver - Complainant vulnerable due to effects of ecstasy and alcohol – Trial issue consent – Whether trial counsel failed properly to advise concerning need to give evidence – CA upheld: (i) conviction – not required to advise E he needed to give evidence given weaknesses in complainant credibility and reliability – adverse consequences of not explaining why he lied to police mitigated by closing address and summing up; (ii) sentence of 7 years 3 months; – (iii) refusal of name suppression based on extreme hardship for wife and children due to exclusion from ethnic community.

Criminal procedure - Sentence (login required)

R v K [2022] NZCA 149 (29 April 2022) Collins, Thomas and Mallon JJ

Unsuccessful application for leave to appeal against conviction; successful Crown appeal against sentence of 15 years imprisonment and MPI of 8 years - K aged 43 convicted of rape (x6) and USC (x4) against work colleague F – F victim of prior rape and vulnerable – K previously sentenced to 8 years for sexual violence against girlfriend - On parole at time of offending – Conviction appeal challenged counterintuitive and telecommunications evidence – CA affirmed counter-intuitive principles are equally applicable to adult complainants and did not require expert evidence – CA found HC sentence manifestly inadequate - Pattern of serious sexual offending with high risk of future offending - Positive response to treatment unlikely given failure to accept offending - Escalating trajectory despite age disturbing - ESO would not sufficiently protect community – Sentence quashed and preventive detention substituted - MPI of 8 years.

New Zealand High Court

MIQ places, judicial review, NZBORA

Grounded Kiwis Group Inc v Minister of Health and ors [2022] NZHC 832 (27 April 2022) Mallon J

Successful judicial review application – Restrictions placed on overseas New Zealanders’ right to return to New Zealand - GK challenged restrictions as unjustified limit on right to enter New Zealand affirmed in New Zealand Bill of Rights Act 1990 (NZBORA) - Focussed on aspects of restrictions in period between 1 September 2021 and 17 December 2021 (Relevant Period) – HC said MIQ system did not sufficiently allow individual circumstances to be considered and prioritised where necessary - Inevitable would operate unjustly in individual cases when demand for places significantly exceeded supply, as  during Relevant Period and frequently before that –

MIQ system did not sufficiently allow for individual circumstances because most MIQ vouchers available through lottery-like “virtual lobby”  - Mechanism could not appropriately give effect to citizens’ right to enter - Emergency allocation process intended to ameliorate but categories too tightly set, narrowly interpreted in some cases, limited places available in MIQs for people who met criteria –

A more sophisticated system reasonably available that better prioritised and would have met Government’s public health strategy - Application successful.

Crown legal obligations to Mana Whenua

Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843 (28 April 2022) Palmer J

Unsuccessful application for declarations - Ngāti Whātua Ōrākei sought declaration had ahi kā and mana whenua in central Tāmaki Makaurau (Auckland) - Other iwi opposed on basis Ngāti Whātua Ōrākei conceive of mana whenua as exclusive of their customary interests - Ngāti Whātua Ōrākei also sought declarations about Crown’s legal obligations regarding their mana whenua - Crown opposed this -

After 11 week hearing in 2021, HC said prepared to make declaration that Ngāti Whātua Ōrākei currently had ahi kā and mana whenua, regarding area where Ngāti Whātua Ōrākei claimed, with all related tikanga obligations, according to tikanga, historical tribal narrative and tradition of Ngāti Whātua Ōrākei -

Court also prepared to make declaration that tikanga, historical tribal narratives and traditions of Marutūāhu Rōpū (other than Ngāti Pāoa), Ngāi Tai ki Tāmaki, and Te Ākitai Waiohua did not currently recognise that Ngāti Whātua Ōrākei had ahi kā and mana whenua, as those concepts conceived of by Ngāti Whātua Ōrākei, regarding area - HC invited  parties to make submissions about whether should make those two declarations.

Court inclined not to make declarations about Crown’s obligations. But invites submissions about whether should make declarations along lines that: duties of active protection of tikanga, and of acting reasonably and in good faith, with mutual cooperation and trust in relation to tikanga, will bear on Crown decisions affecting tikanga interests in Treaty settlement context.

HC said, depending on context, Crown needed to take reasonable steps to understand, recognise and respect tikanga of iwi and hapū, and actively protect ability of iwi and hapū to exercise their tikanga.

Depending on context, Treaty of Waitangi might also require iwi and hapū to engage in tikanga-consistent processes with other iwi and hapū about  status of relevant properties at tikanga – HC declined Ngāti Whātua Ōrākei applications but reserved leave for any interested party to make submissions including on alternative declarations.

Sentencing, manslaughter, second strike, NZBORA

R v Wirihana [2022] NZHC 863 (28 April 2022) Edwards J

Sentencing – W sentenced on one charge of manslaughter, second-strike offence under three strikes regime - At partner’s home when four men arrived in car and attacked him - W hit on head with shovel and chased - Went inside house and emerged with knife - Deceased driver of car attempted to run over W, pinned his partner against another car, before crashing into side of house – W entered car from passenger’s side and stabbed deceased in neck –

Seven years starting point adopted – Provocation element - Eight months uplift for prior offending – 10 percent discounts for s 27 report factors, 10 percent to reflect rehabilitative prospects and remorse, and 25 percent for early offer to plead guilty - End sentence four years six months imprisonment - Court declined to make s 86C(4) Sentencing Act 2002 order – Said requiring W to serve sentence without parole disproportionably severe as breach of s 9 New Zealand Bill of Rights Act 1990 - Conclusion reached in light of possible proximate repeal of three strikes regime, nature of offending, matters raised in s 27 report and rehabilitative prospects.

Judicial review, Resource Management Act National Policy Statement, vegetable exemption

Muaūpoko Tribal Authority Inc v Minister for Environment [2022] NZHC 883 (29 April 2022) Edwards J

Unsuccessful judicial review application – M challenged Minister’s decision to include “vegetable exemption” in National Policy Statement for Freshwater 2020 (NPS-FM 2020) - Vegetable exemption allowed regional councils to set targets for certain water quality attributes below national bottom lines if achieving national bottom lines would compromise domestic fresh vegetable supply and food security – M said exemption would permit historical pollution and continue degradation of Lake Horowhenua and Hōkiō stream.

HC said for regional councils to decide whether water quality targets to be set below, at or above bottom lines - In doing so, regional council had to give effect to other parts of NPS-FM 2020 including Te Mana o te Wai and requirement to involve tangata whenua in decision-making - Because of other provisions, vegetable exemption did not contravene Resource Management Act 1991, nor Treaty of Waitangi principles - All relevant factors taken into account and adequate consultation on exemption – Applications dismissed.

New Zealand Supreme Court

Identification issue

Hall v R [2022] NZSC 51 (3 May 2022)

Successful leave application – Approved question whether CA correct to dismiss appeal - Crown accepted had been substantial miscarriage of justice because evidence relevant to jury’s assessment of offender’s identity materially altered and relevant documentation not disclosed to H - Crown accepted necessary in interests of justice that SC hear and determine H’s appeal despite delay - Crown also would not oppose appeal and accepted H’s convictions should be quashed – Would not seek retrial order – Leave granted in general terms – Appeal to be set down as soon as possible.

Supreme Court of Canada

Judge fell ill, evidence from hearing admissible

R v J D [2022] SCC 15 (22 April 2022)

Successful appeal from Quebec CA - In 2012, J.D. charged with 18 counts of sexual offences involving young people committed between 1974 and 1993 in Quebec - Two complainants were his children (C.D. and S.D.) - Judge alone trial started in 2016 - J.D.’s daughter (C.D.) testified over two days - Soon after, judge fell ill and trial postponed –

Section 669.2(3) Criminal Code set out process if judge could not continue trial but had not rendered verdict – Here, new trial started before another judge - At new 2017 trial, parties agreed to file original transcript of C.D.’s testimony so would not have to testify again - New judge also heard testimony from other complainants and found J.D. guilty on nine counts of sexual offences –

J.D. appealed to Quebec CA – CA ordered new trial on counts concerning his children - Said trial judge should have conducted two-part test before permitting C.D.’s initial testimony to be filed as evidence at new trial – Said would have ensured accused truly agreed with decision to file testimony and that filing would not affect trial fairness - Crown appealed to SC -

SC unanimously allowed Crown appeal – Said law did not require new judge to conduct test before allowing transcript given at first trial to be filed as evidence at second trial, if parties agreed – Appeal allowed.

United Kingdom Supreme Court

Judicial review, local government elections, voter ID scheme

R (on the application of Coughlan) v Minister for the Cabinet Office [2022] UKSC 11 (27 April 2022)

Unsuccessful appeal from CA – C challenged Minister’s orders regarding 10 local authorities (“Pilot Orders”) - Pilot Orders authorised schemes to temporarily change rules set out in secondary legislation governing local elections - Schemes implemented for local government elections in May 2019 - Each introduced new requirement for some form of voter identification for those elections –

HC dismissed challenge on merits - CA granted permission to appeal in view of “important constitutional function served by local government elections” – CA dismissed appeal on merits - C appealed to SC –

Primary issue in appeal whether Pilot Orders were ultra vires Minister’s legal powers because pilot schemes they sought to establish not schemes within meaning of s 10(2)(a) Representation of the People Act 2000 - Second issue whether pilot schemes authorised for lawful purpose under s 10(1) Representation of the People Act 2000, consistent with policy and objects of that Act - Appeal did not concern merits or otherwise of decision to introduce pilot schemes, nor merits of voter identification schemes in general, but only whether decision to introduce pilot schemes lawful –

SC said pilot orders not ultra vires and authorised for lawful purpose under s 10 (1) – Appeal dismissed.