New Zealand Law Society - Courts roundup 18 May - 25 May 2022

Courts roundup 18 May - 25 May 2022

Courts roundup 18 May - 25 May 2022

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

New Zealand Supreme Court

Accident compensation, sexual assault

Roper v Taylor and anor [2022] NZSC 62 (17 May 2022)

Successful leave application -Applications arose from T’s civil proceedings against R for sexual assault and false imprisonment while Royal New Zealand Air Force employed both in late 1980s - In December 2020, SC dismissed Attorney-General (A-G) and R’s applications for leave to appeal against CA decision - SC reserved leave to make further application for leave to appeal allowing applicants to apply for recall of CA decision, which did not deal with s 21B Accident Compensation Act 2001 (ACC Act) – CA granted recall application - Reissued 2020 judgment concluding s 21B did not apply  -

SC said issues raised in appeal were: (a) Whether CA erred interpreting previous CA case and s 317 ACC Act - (b) Whether CA erred interpreting s 21B ACC (c) More generally, A-G wished to argue CA approach not consistent with ACC Act text, scheme and purpose – T said wanted to cross appeal against ruling on accident compensation cover – Applications allowed.

Costs, approach to

Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board and ors [2022] NZSC 63 (19 May 2022)

Costs judgment - On 30 September 2021, SC dismissed Trans-Tasman Resources Ltd (TTR) appeal - Judgment addressed issues arising from TTR’s application for marine consents and marine discharge consents to undertake seabed mining within New Zealand’s exclusive economic zone - SC reserved costs and sought submissions from parties if agreement could not be reached - Submissions for parties raised: (a) Should SC make costs order or should costs lie where they fall? (b) If costs awarded, what awards should be made? (c) Should SC direct CA to revisit costs orders?

SC said TTR to pay costs of $155,000 plus usual disbursements – CA costs awards stood – HC should determine costs in that Court in light of its judgment dismissing appeal.

Dishonesty, physiotherapist dealings with ACC

Reeves v R [2022] NZSC 64 (20 May 2022)

Unsuccessful leave application – R physiotherapist and registered treatment provider under accident compensation scheme – Convicted of dishonesty charges related to dealings with Accident Compensation Corporation (ACC) and convicted on three dishonesty charges - Sentenced to three months’ community work - Sought leave to appeal against CA dismissing appeal against conviction – Said two charges should not have been laid representatively and should have been broken up into smaller charges and trial judge failed to give unanimity direction –

SC said essential that great care taken when filing representative charges that relevant requirements met - Where situation changes during trial, as here, should be addressed appropriately by prosecution and trial judge, preferably by charges being split or withdrawn - CA recognised, where charges not split or withdrawn, issue could be addressed through unanimity direction – CA concluded  no risk of miscarriage of justice – SC said not sufficient prospect of successful argument to contrary to justify further appeal – Application dismissed.

Trustee Act, directions

Kain and ors v Public Trust and ors [2022] NZSC 65 (24 May 2022)

Unsuccessful leave application - Public Trust (PT) sought directions in HC under s 66 Trustee Act 1956 regarding two trusts - Two sets of applicants opposed - - HC largely made directions sought - Applicants’ appeal to CA against some directions dismissed except for one direction – Applicants sought leave to appeal to SC – SC said proposed appeal related to administration of two discretionary trusts – C settled both trusts - Part of larger network of trusts, companies and assets known as Couper-Kain Group - PT appointed trustee by agreement after HC directed original trustees be removed –

Applicants said various appeal grounds gave rise to questions of general or public importance and of general commercial significance - Various matters raised to support submission including, for example, proliferation of family trusts and the substantial wealth often held in these structures –

SC said issues largely turned on particular facts  – Application dismissed.

New Zealand Court of Appeal

Employment law, unjustified dismissal, redundancy

Caddy (Dr C) v Vice Chancellor, University of Auckland (UoA) [2022] NZCA 195 (18 May 2022) French and Clifford JJ

Unsuccessful application for leave to appeal from EC decision that termination of employment on grounds of redundancy was justifiable dismissal – Dr C was employed as senior lecturer in musicology at UoA – Role was disestablished in restructuring process following comprehensive review – EC found there were genuine reasons for decision and process was open to a fair and reasonable employer – UoA investigated options in good faith and made reasonable efforts to redeploy and consider other opportunities – Proposed question of law whether EC applied s103A test in finding dismissal justified – CA upheld decision on basis critical findings of fact meant s103 test satisfied – No prospect of successful appeal.

Admissibility of evidence, Bill of Rights, unlawful detention (login required)

Solicitor-General (SG) v Z [2022] NZCA 197 (19 May 2022) Dobson, Simon France and Hinton JJ

Appeals by Z and Crown relating to admissibility of two police interviews concerning complaints of sexual assaults against young women frequenting bar – Issues whether Z was detained at time of each interview; whether he was fairly informed of reason for interview; and whether evidence should be excluded if improperly obtained – DC found: (i) Z not detained at time of first interview and obligation to provide sufficient information was discharged; (ii) Z was detained at second interview and obligation fairly to inform was not met – evidence improperly obtained and exclusion was proportionate response – CA agreed Z was not detained at first interview but found obligation fairly to inform was not met due to failure to disclose true jeopardy – Evidence improperly obtained and exclusion was proportionate response – Crown appeal from decision excluding evidence obtained in second interview dismissed.  

Criminal law, propensity evidence (login required)

A v R [2022] NZCA 193 (18 May 2022) Dobson, Simon France and Hinton JJ

Unsuccessful appeal from decision admitting propensity evidence – A faced charge of wounding with intent to cause GBH – Alleged to have discharged makeshift firearm in altercation outside party – Firearm made of 2 pieces of pipe loaded with shotgun cartridge – Key issue identity – Propensity evidence comprised convictions for unlawful possession of firearm and ammunition to which A pleaded guilty – Firearm was homemade “gun” made of pipe discovered when searching A’s home address following road rage incident – DC admitted evidence on propensity basis based on idiosyncratic features of “gun” and striking similarity of firearm seized – Evidence highly relevant and of significant probative value given unusualness of weapon – CA considered possession of makeshift home-made gun assembled from 2 pieces of pipe was distinctive and unusual and there was sufficient genuine and logical connection with key issue of identity - Probative value high and there was no unfair prejudice – Admissibility upheld.

New Zealand High Court

Sentencing, murder

R v Joyce [2022] NZHC 1083 (17 May 2022) Eaton J

Sentencing – J guilty of murdering de facto partner - History of domestic violence against deceased – J covered deceased's body with leaves and vegetation before eventually confessing to police - Life imprisonment with MPI 13 years nine months.

Sentencing, murder

R v Prasad [2022] NZHC 1129 (20 May 2022) Osborne J

Sentencing - P guilty of murdering his estranged wife's partner - Took weapons to victim's apartment, broke in and waited to ambush him - Victim killed with multiple knife wounds and hammer blows - Life imprisonment with MPI 18 years 6 months' imprisonment - Also concurrent sentence three months' imprisonment earlier assault on wife.

Supreme Court of Canada

Family law, custody dispute, interests of child, new evidence on appeal

Barendregt v. Grebliunas [2022] SCC 22 (20 May 2022)

Successful appeal from British Columbia CA - Mother and father lived in Kelowna with two boys - When relationship ended in 2018, mother took children to her parents’ home in Telkwa, 10-hour drive from Kelowna –

Children split time between Telkwa and Kelowna before parents agreed children should remain in Kelowna with father until mother returned there - Never returned - Asked court to relocate children to Telkwa - If not, said willing to move to Kelowna, but father unwilling to move to Telkwa –

Trial judge said children could move to Telkwa with mother for in part because father might not be able to afford to stay in Kelowna home - Father appealed to British Columbia CA asking to present additional evidence about financial situation - CA sided with father - Allowed new evidence, saying it affected trial judge’s finding about father’s finances - Meant relocation could no longer be justified - Mother appealed to SC –

SC majority sided with mother – Said CA wrongly applied different new evidence test than one SC previously set out - Test applied to evidence even at appeal stage – Test said four criteria to be met to allow evidence: (1) despite party’s due diligence, evidence could not have been presented at trial; (2) evidence relevant; (3) evidence credible; and (4) could have affected result at trial – Here test not met because evidence about father’s finances could have been presented at trial if had taken all reasonable steps to obtain it in time.

SC said no reason for CA to change trial judge’s decision - Move in children’s best interests - Significant risk bitter relationship between parents would affect children if stayed in Kelowna - Also, mother needed parents’ help to care for children.

In such cases, question “whether relocation is in the best interests of the child, having regard to child’s physical, emotional and psychological safety, security and well-being”, SC said - Analysis highly fact-specific and discretionary, and possibility for change on appeal very narrow – Appeal allowed.

United Kingdom Supreme Court

Sentencing, reduction for guilty plea, effect of being caught red handed

R v Maughan [2022] UKSC 13

Unsuccessful appeal from Northern Ireland CA -  M and brother violently burgled house in County Down, and attempted to flee in householder’s car – Police apprehended them later and range of burgled items recovered - Further enquiries provided compelling evidence that in previous three days M and brother had committed or attempted to commit other burglaries - Did not accept responsibility -

M charged and brought before Magistrates’ Court on 26 July 2016 - Pleaded guilty at arraignment on charges of aggravated burglary and stealing, false imprisonment, burglary, attempted burglary and allowing himself to be carried at Downpatrick Crown Court on 14 September 2017 - No prior indication of intention to plead guilty.

Sentencing judge said M subject to reduced discount to sentence because (i) failed to accept responsibility for offending behaviour at interview or indicate an intention to plead guilty at any stage prior to arraignment and (ii) caught red handed in respect of some offences - Northern Ireland CA dismissed M’s appeal – M appealed to SC –

SC unanimously dismissed appeal – Said appeal concerned two sentencing policies: (1) to benefit from maximum sentencing discount defendant had to indicate intention to plead guilty at earliest opportunity, and (2) discount where defendant caught red-handed should not generally be as great as where viable defence possible –

Northern Ireland CA entitled to adopt sentencing policy which treated as relevant to sentencing discount failure to admit wrongdoing during interview - Such policy typical of those applied in all three United Kingdom jurisdictions over many years - In addition to saving time, costs, and promoting interests of victims and witnesses, early guilty pleas promoted public confidence in justice system -Northern Ireland CA made no error of law -

Reduction in discount where offender caught red handed long been recognised feature of sentencing practice throughout United Kingdom - Where offender left with little realistic choice but to plead guilty might not deserve the same level of encouragement to plead guilty - In England and Wales and in Scotland sentencing policy changed in recent years so full discount for early plea now given in cases where offender caught red handed - Did not render unlawful different policy Northern Ireland courts adopted – Appeal dismissed.