New Zealand Law Society - Courts roundup 9 June - 15 June 2022

Courts roundup 9 June - 15 June 2022

Courts roundup 9 June - 15 June 2022

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

New Zealand Supreme Court

Self-represented litigant, sexual offences

Lihou v R [2022] NZSC 72 (10 June 2022)

Unsuccessful time extension application – Self-represented L convicted after HC jury trial of abduction for purpose of sexual connection, assault, rape and sexual violation of 17 year old female complainant - Sentenced to preventive detention with MPI nine years four months – Appeal to CA against conviction and sentence dismissed – Applied to SC for leave to appeal against CA conviction but not sentence - Application dismissed – Sought leave to apply  for time extension to appeal against CA  sentence decision – Application over six years out of time –

L submitted over 150 pages of supporting material - Included historic material regarding earlier convictions, recent psychiatric assessments, submission to Royal Commission of Inquiry into Abuse in Care –

SC not satisfied proposed appeal merits justified granting leave -  Case did not give rise to matter of general or public importance - No indication of miscarriage of justice in  way CA assessed the appeal against sentence - Whatever weight given to L’s personal circumstances, could not outweigh high risk of further serious offences – No point in granting time extension – Application dismissed.

Self-represented litigant, registrar’s decision

Applications by Siemer [2022] NZSC 73 (10 June 2020)

Unsuccessful application to review Registrar’s decisions - Registrar referred to SC Judge three matters where S challenged decisions and either explicitly or implicitly sought review under s 82(3) Senior Courts Act 2016 – Judge  reviewed challenged decisions – All applications dismissed.

New Zealand Court of Appeal

Trusts and trustees, costs

Kain v Public Trust [2022] NZCA 239 (10 June 2022) French, Venning and Cull JJ

Costs awards on decisions: (i) dismissing appeals by K interests in relation to HC directions to Public Trust; (ii) allowing appeals in relation to direction concerning settlor’s wishes – Principles as to costs in trust litigation.

Defamation, qualified privilege, disciplinary complaints (login required)

A v B [2022] NZCA 181 (12 May 2022) Clifford, Collins and Goddard JJ

Unsuccessful appeal from decision that complaint concerning doctor (W) lodged with B’s employer was protected by qualified (and not absolute) privilege – B sued A in defamation concerning statements that B accessed medical records without A’s consent and intimidated her – B claimed she accessed records at A’s request when A in brief relationship with B’s former partner – Evidence that A held significant animosity towards B – DHB found B breached code of conduct by accessing A’s records - Lodged complaint with Medical Council after reaching confidential settlement – In defamation proceeding A pleaded matters in complaint were protected by absolute privilege – CA upheld HC view that qualified privilege applied – Employment nature of complaint did not trigger absolute privilege as it would in disciplinary action – Scope of absolute privilege not to be extended so as to deprive B of defence – Qualified privilege in DHB complaints protected interests of health consumers and community – Result that liability in defamation restricted to statements motivated by ill-will or where improper advantage taken of opportunity to complain.

Construction contracts, mortgages, caveats

LSK Builders 2011 Limited (LSK) v Chamberlain (Cs) [2022] NZCA 228 (7 June 2022) Brown, Clifford and Lang JJ

Unsuccessful appeal from decision declining order that caveat not lapse – LSK was engaged to build new home for the Cs – Contract conferred rights to register mortgage over Cs’ residential property to secure payment of moneys due and owing and to maintain caveat to protect contractual rights – Parties in dispute as to sum owed – After lodging caveat LSK registered all obligations mortgage with “stated priority limit” (s92 PLA) – Amount claimed as owing exceeded limit - Associate Judge found caveat became redundant once mortgage registered and should lapse – CA agreed contractual right to maintain caveat was spent once right to be protected was exercised – Caveat could not be sustained.

Unit titles, sale of land, breach of warranty

Miles v Gadd [2022] NZCA 227 (7 June 2022) Gilbert, Katz and Edwards JJ

Unsuccessful appeal from decision dismissing claim for breach of warranty that vendor had no knowledge or notice of any fact indicating possibility of purchaser incurring any other liability under Unit Titles Acts – Weathertightness issues 8 months after settlement of purchase of apartment in multi-unit development – Appeal questions: (i) meaning of “any other liability” – whether liability extended to possible liability for levy to address defects beyond unit purchased; (ii) if so, did vendor have knowledge or notice of any fact which might give rise to possibility of liability – HC found vendor’s understanding was objectively reasonable and warranty conditions not satisfied – CA disagreed on this point - Warranty was not confined to liabilities relating to specific unit and could extend to wider issues arising from facts vendor had knowledge of – Judge not wrong to find vendor had no knowledge or notice of facts relevant to warranty.

Sentence, NZBORA, three strikes regime (login required)

CL v R [2022] NZCA 235 (9 June 2022) Brown, Lang and Mallon JJ

Successful appeal against sentence – 9 years imprisonment without parole –Sexual and violent offending during relationships with 2 complainants – Second strike offending – Sentencing before Fitzgerald - Whether order to serve sentence without parole meant sentence was disproportionately severe – Personal mitigating factors included childhood sexual abuse, ADHD, insight into offending and remorse – Starting point upheld - Discount for family background and upbringing increased – Sentence under three strikes principles disproportionately severe under s9 NZBORA – Sentence imposed 8.5 years with MPI of 4 years 3 months.

New Zealand High Court

Judicial review, interim orders, cycleway construction suspension

N Bhana and Company Ltd and ors v Wellington City Council [2022] NZHC 1338 (8 June 2022) Simon France J

Successful application for interim orders - Application to suspend work on cycleway pending substantive challenge - Delay three months to enable challenge grounds, including whether power used to build cycleway available - Applicants identified arguable case Council could not use power relied on - Strong basis for interim orders – Three month delay not critical to project – Application granted.

Name suppression

R v AB [2022] NZHC 1339 (9 June 2022) Jagose J

Unsuccessful name suppression application – AB, along with one other, faced manslaughter charges – Sought name suppression because of extreme hardship for self and undue hardship for family - She, family and employer had received through social media vituperative comments and threats over alleged role in manslaughter - Application not granted - Although comments and threats she and those connected to her received deplorable, did not meet relevant hardship thresholds for suppression - Court said allowing publication of accounts and reports of proceedings would not worsen situation because  negative social media activity already occurring - Court had limited ability to control  social media discourse - Continuing suppression would not assist – Application declined.

Sentencing, murder

R v Akash [2022] NZHC 1387 (14 June 2022) Downs J

Sentencing – A murdered pregnant girlfriend by stabbing and wounding her 30 times with knife - Common ground offending engaged s 104(1)(e) of Sentencing Act 2002: high level of brutality, cruelty, depravity or callousness - A mentally unwell at time, albeit defence of insanity rejected at trial - 18-year MPI reduced by three years because of ill mental health - 17-year MPI manifestly unjust because A seriously unwell at time of offence -15-year MPI.

High Court of Australia

Constitutional law, citizenship, depriving person of

Alexander v Minister of Home Affairs and anor [2022] HCA 19 (8 June 2022)

Referral to Full Court of questions concerning validity of s 36B Australian Citizenship Act 2007 (Cth) - Section 36B empowered Minister for Home Affairs to determine person ceased to be Australian citizen if satisfied,  inter alia, that person engaged in proscribed conduct, including foreign incursions and recruitment, which demonstrated person repudiated allegiance to Australia - Provision challenged on grounds including not supported by Parliament’s power to make laws with respect to "naturalization and aliens" under s 51(xix) of Constitution, and that incompatible with Ch III Constitution, powers of judiciary  –

A acquired Australian citizenship by birth - Turkish citizenship by descent – In 2013  departed Australia for Turkey and, at some point, travelled to Syria - Qualified Security Assessment (QSA) said A joined Islamic State, designated "terrorist organisation", by August 2013, and had likely engaged in foreign incursions and recruitment by entering or remaining in "declared area", on or after 5 December 2014 - In July 2021, Minister determined under s 36B, partly relying on QSA information, A ceased to be Australian citizen –

HC majority said s 36B Citizenship Act purported to give Minister judicial function to adjudge and punish criminal guilt – Effect of Minister's determination under s 36B to deprive A of entitlement to enter and live at liberty in Australia - Determining facts which enliven power to impose such punishment was power which a court, part of federal judicature, could exercise under Ch III Constitution.

Migration Act, s 501, unlawful detention

Thoms v Commonwealth of Australia [2022] HCA 20 (8 June 2022)

Referral of question of law to Full Court - Whether T’s detention under s 189(1) Migration Act 1958 (Cth) (Act) unlawful  - HC unanimously said s 189(1) could validly apply to non-aliens who were reasonably suspected of being unlawful non-citizens -  

T New Zealand citizen - Held temporary visa to reside in Australia - On 27 September 2018, Minister cancelled visa under s 501(3A) - Became "unlawful non-citizen" under s 14(1) of Act - On 28 September 2018, T detained purportedly under s 189(1) – Two other officers subsequently reviewing case continued his detention – T released from detention on 11 February 2020 -

T said detention unlawful – HC said detention lawful because objective facts at time gave reasonable grounds for each officer to suspect T unlawful non-citizen.

Supreme Court of Canada

Murder, jury instructions, appellate review

R v Goforth [2022] SCC 25 (10 June 2022)

Successful appeal from Saskatchewan CA – In 2016, jury convicted G’s of unlawfully causing bodily harm to two-year old - Found wife guilty of second degree murder of four-year old, husband guilty of manslaughter – G’s fostering both children

G appealed to Saskatchewan CA - CA set aside convictions and ordered new trial - Said trial judge erred in instructions to jury in two ways - First, wrong in description of mens rea requirement - Second, failed to properly instruct jury regarding G’s evidence that only children’s secondary caregiver - Crown appealed to SC –

SC majority agreed with Crown - Said jury properly instructed - Trial judges had to be allowed some flexibility in language used to instruct  jury - Role to simplify law and evidence - An appeal court reviewed any alleged errors in instructions in evidentiary context, entire jury instructions and trial as whole – Here instructions not perfect but  adequate - No reasonable possibility jury confused about mens rea requirement or misled about what Crown had to prove for G to be guilty of either manslaughter or unlawfully causing bodily harm – Appeal allowed.