New Zealand Law Society - Courts roundup 30 June - 6 July 2022

Courts roundup 30 June - 6 July 2022

Courts roundup 30 June - 6 July 2022

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

New Zealand Supreme Court

Time extension, habeas corpus

Barton v Chief Executive, Department of Corrections [2022] NZSC 81 (1 July 2022)

Unsuccessful leave application - In December 2020, serving prisoner B applied for habeas corpus, alleging Parole Board failures in refusing to grant parole – HC refused application because B’s dispute with Parole Board did not make underlying detention unlawful - On 27 July 2021, B applied for time extension to appeal HC judgment under r 29A Court of Appeal (Civil) Rules 2005 - CA declined to grant extension concluding proposed appeal “clearly hopeless” - B sought leave to appeal to SC –

SC advised that B died shortly after release - Some time sought to allow executor to consider position – SC said nonetheless, would proceed to determine leave application for leave - Quite plain proposed appeal did not meet leave criteria – Application dismissed.

Time extension, jurisdiction, leapfrog appeal

C (SC 22/2022) v R [2022] NZSC 82 (1 July 2022)

Unsuccessful time extension application – Self-represented C convicted after jury trial on four charges of sexual offending against step-daughter and one representative charge of supplying her with cannabis - Charges related to events between 2010 and 2015 – C sentenced to four years’ imprisonment, with two years MPI on 12 October 2016 - On 17 November 2020, C filed notice of appeal against conviction in CA – Notice approximately four years out of time so C required time extension under s 231(3) Criminal Procedure Act 2011 – CA declined time extension application - On 2 February 2022, C applied to CA for recall of judgment - Application dismissed –

Sought leave to appeal CA time extension decision to SC – SC said no jurisdiction to hear application – Possible that leapfrog appeal from DC conviction decision available – Had to meet leave criteria in s 74 Senior Courts Act 2016 - No risk of substantial miscarriage of justice if leave not granted - No exceptional circumstances justifying leapfrog appeal to SC – Application dismissed.

Disclosure obligations, liability for failings

Lyttle v R [2022] NZSC 83 (4 July 2022)

Unsuccessful leave application – L convicted of murder after lengthy jury trial and sentenced to life imprisonment with 11 years MPI - Appealed conviction – CA allowed appeal and ordered  retrial – L applied for charge to be dismissed under s 147 Criminal Procedure Act 2011 - Application successful and charge dismissed -  Delays bringing L to trial included fixture adjournments, aborted trial and unsuccessful applications for stay of proceedings - Delays due to significant and repeated police failures to comply with disclosure obligations under Criminal Disclosure Act 2008 –

L applied to HC for $150,000 costs award against prosecutor for disclosure failings under s 364(2) of Criminal Procedure Act – HC ordered $75,000 costs against police, but no order against Crown prosecutor who took over case in October 2016 - Both Crown and L appealed against HC decision - CA dismissed both appeals – L sought leave to appeal to SC –

SC said prosecution disclosure obligations an important issue – Said disclosure failings here both serious and repeated, had significant impact on conduct of  proceeding - However, argument L wanted to make confined to which Crown agency should be subject to award - Both HC and CA said police responsible for disclosure failures, not Crown prosecutor – SC not satisfied in interests of justice to grant leave when essential issue would be challenge to factual findings in Courts below in present case, rather than evaluating principles relating to disclosure obligations under Criminal Disclosure Act or costs awards under s 364 of Criminal Procedure Act – Application dismissed.

Self-represented litigant, relationship property

Tomar v Tomar [2020] NZSC 84 (4 July 2022)

Unsuccessful leave application – Self-represented VT appealed to HC against two Family Court judgments regarding property relationship issues between him and MT - HC dismissed appeals and declined application for leave for second appeal to CA - VT sought leave to appeal from CA - application dismissed – VT applied to SC for leave to appeal against CA decision - Registrar refused to accept application because SC had no jurisdiction to hear appeal from CA decision declining leave – VT sought review of Registrar’s decision and stay of decisions in Courts below – Applications referred to three Judge panel –

Panel said clear SC had no jurisdiction to hear and determine the proposed appeal – Application dismissed.

New Zealand Court of Appeal

Judicial review, passports, terrorism (login required)

A(CA677/2020) v Minister of Internal Affairs [2022] NZCA 257 (20 June 2022) Miller, Clifford and Gilbert JJ

Unsuccessful appeal from decision declining review of decision cancelling passport on grounds A intended to travel to Syria and Iraq to join ISIL for purpose of engaging in or facilitating “act of terrorism” and was danger to security of country other than New Zealand (sched 2 Passports Act, now s27GA and s5 Terrorism Suppression Act) – A argued statutory criteria not met - In particular, there was insufficient reason to find intention to travel to ISIL-controlled territory still less to engage or facilitate terrorist acts and cancelling passport was not necessary to achieve statutory objectives – Whether cancellation decision unlawful or unreasonable - Court considered treatment of classified security information; criteria for cancellation and adequacy of information in Ministerial report; definition of “terrorist act” and what was required to engage in or “facilitate” act of terrorism; standard of review; alleged duty of candour; exceptions for armed conflict from “terrorist act”; and infringement of protected rights – HC decision upheld.

Criminal law, common purpose liability, sentence

Burke (B) v R [2022] NZCA 279 (29 June 2022) Brown, Mallon and Moore JJ 

Unsuccessful appeal against conviction and sentence – Manslaughter as party under s66(2) Crimes Act – 5 years 2 months imprisonment - H died by stabbing in course of gang related punishment – Principal W pleaded guilty to murder – B acquitted of murder as party but found guilty of manslaughter – Focus of appeal on directions concerning common purpose liability and nature and extent of foreseeability of level of violence required by secondary party – B denied knowing W had knife and claimed he believed H was to receive “hiding” - Majority concluded secondary party would be liable under s66(2) if likelihood unlawful act would do more than trivial harm was known to be probable consequence of prosecuting common purpose – Mallon J dissented on legal test but found verdict of manslaughter inevitable applying alternative test (knowledge of risk victim would be killed) – Conviction and sentence upheld.

Sentence, misuse of drugs

Cavallo v R [2022] NZCA 276 (30 June 2022) Kós P, Miller and Collins JJ

Successful appeals against sentence, drug dealing and money-laundering - Appellants part of international organised criminal group - Imported 3 shipments of cocaine from South America through Port of Tauranga – H imported 76kg, supplied 25kg from first 2 shipments and transferred $1.4985M to money-laundering ring – S assisted H and transferred $1.192M – S and C assisted H to import third shipment of 46kg - Guilty pleas – Argued sentences manifestly excessive given lesser harm of cocaine compared to methamphetamine – Expert evidence admitted on comparative harm and toxicity – R v Ingram applied - Harm was core factor in sentencing discretion – Intra-class differentiation required where evidence showed different levels of harm – Cocaine powder less toxic and harmful than methamphetamine and should generally be sentenced around 5 percent below comparable starting points for methamphetamine – HC sentences of 23 years, 27.5 years and 24 years imprisonment reduced to 17 years 8 months, 23 years 4 months and 20 years 5 months respectively.

New Zealand High Court

Sentencing, dangerous driving causing death

R v Fleming [2022] NZHC 1517 (29 June 2022) Osborne J

Sentencing – F pleaded guilty to five charges of dangerous driving causing death - maximum penalty 10 years' imprisonment (increased from 5 years in 2011) - Sentenced to two years six months' imprisonment and disqualified from driving for five years - Credit allowed in sentence for guilty pleas, youth and cognitive deficits, remorse, and good character.

Judicial review, corrections, Cell Buster

Cripps and anor v Attorney-General [2022] NZHC 1532 (30 June 2022) Ellis J

Partially successful judicial review application - C and B brought judicial review proceedings alleging regulations made in 2009, 2012 and 2017 purporting to authorise use of pepper spray in prisons unlawful on three general grounds - Focus particularly on Cell Buster, device that pumped pepper spray into closed cell and used in "control and restraint" incidents for "cell extraction" - removing prisoner from cell –

First challenge ground that regulations only authorised pepper spray substance, not spray deployment mechanism – HC said although regulations framed in "unhelpful and confusing manner", ambiguity not sufficiently uncertain to render regulations void –

Second, when approving regulations Ministers had insufficient information to be satisfied (as Corrections Act required) that using pepper spray (and Cell Buster in particular) consistent with humane prisoner treatment – HC said based on evidence before Court, Ministers did not know using Cell Buster being proposed - Nor aware of matters related to humane use –

HC rejected third ground, that using Cell Buster in prisons could never be consistent with ss 9 and 23(5) of the NZBORA - Case showed rights compliance necessarily fact specific - Not difficult to conceive examples where using pepper spray would be more humane than other means of force (including using other non-lethal weapons, such as batons) that had long since been approved for use in prisons –

Declarations that:

a)  prior to approving regulations in 2009, 2012 and 2017, Ministers could not have been reasonably satisfied that use of Cell Buster in prisons would be consistent with humane treatment of prisoners (as required by s 85(3) of the Corrections Act);

b)  to extent regulations purported to authorise use of Cell Buster in prisons, they did not lawfully do so; and

c)  use of Cell Buster in prisons pursuant to those regulations therefore unlawful.

Shortly after plaintiffs' application heard, 2017 regulations repealed and new regulations relating to pepper spray came into force - Although draft new regulations before Court, not subject of plaintiffs' claim and were addressed at hearing - Unlawfulness finding did not extend to new regulations – Court said seemed likely that aspects of findings relating to second review ground would be relevant to regulations – Application partly allowed.

Sentencing, attempted murder

R v Dick-Karetai [2022] NZHC 1536 (30 June 2022) Dunningham J

Sentencing – D pleaded guilty to attempted murder – Maximum sentence 14 years’ imprisonment - Accumulated discounts of 40 per cent off 11 years and six months starting point brought end sentence to six years 11 months – No MPI.

Sentencing, murder

R v Bariball [2022] NZHC 1555 (30 June 2022) Paul Davison J

Sentencing – MB pleaded guilty to one charge of murder, one charge of injuring with intent to injure and two charges of ill-treatment of child - Offending caused five-year old M’s death – SB, MB’s sister, pleaded guilty to attempting to prevent course of justice - Offending also related to events surrounding S's death –

Regarding MB, s 104(1)(g) Sentencing Act 2002 engaged because of M's inherent vulnerability as child - Aggravating features included loss of M's life, particular cruelty involved, gross breach of trust, M's vulnerability as child, additional aggravating features in s 9A Sentencing Act - No mitigating features - Starting point 18 years six months adopted -18 months discount for early guilty pleas and five per cent for personal circumstances produced notional 16 years one month MPI - Court said not manifestly unjust to impose 17 year MPI under s 104 –

Regarding SB, 17 months' imprisonment starting point for attempting to prevent course of justice -  25 per cent discounts for early guilty pleas and five per cent for personal circumstances - Crown did not oppose home detention for SB - Court considered home detention appropriate - MB sentenced to life imprisonment with 17 year MPI for M’s murder and concurrent sentences of two years for injuring with intent to injure, and three years for ill-treatment of child - SB sentenced to six months' home detention for attempting to prevent course of justice.

Supreme Court of Canada

Constitutional law, Canadian Charter, evidence, sexual cases, complainant’s records

R v JJ [2022] SCC 28 (30 June 2022)

Successful appeals from British Columbia, Ontario CAs - J accused of sexual assault in British Columbia – R accused of same in Ontario - Both argued sections 278.92 to 278.94 Criminal Code unconstitutional - Provisions set out how judge decided whether complainant’s private documents (“records” in Criminal Code) could be used by accused during their trial for sexual offence - Known as record screening process - Provisions also used to decide how evidence of complainant’s past sexual activity could be used – J had records of communications between himself and complainant - Wanted to use records to cross-examine complainant - R wanted to cross-examine complainant in his case, but on evidence of her past sexual activity –

Before trial, both J and R asked judge to rule record screening process violated three of their rights under the Canadian Charter of Rights and Freedoms: right to remain silent and to not self-incriminate, right to fair trial, and right of accused to present evidence in defence and challenge evidence against them –

In J’s case, judge found one aspect of record screening process unconstitutional - Both Crown and J appealed the judge’s decision to SC -

In R’s case, judge found entire record screening process unconstitutional - Complainant asked SC for leave to appeal - Said affected right of sexual assault complainants to participate in decision-making about how details of their private sexual lives would be used in public courtroom – SC gave leave –

SC majority said screening process constitutional - Accused’s rights not violated - Right to silence not issue because not forced to testify during record screening process - Right to fair trial did not mean could receive most advantageous or beneficial trial possible - Finally, right to present and challenge evidence not unlimited - Ambushing complainants with their own highly private records at trial could be unfair to complainants and might be contrary to search for truth.

Sections 278.92 to 278.94 created to remove barriers preventing sexual assault victims from coming forward - Goal to have process to protect complainants’ interests in  own private documents when accused had documents and wanted to use them at trial - Process balanced rights and interests of accused, complainant and public – Appeals allowed.

Judicial Committee of the Privy Council

Bias, appearance of

Smith and anor v Attorney General of Trinidad & Tobago and ors [2022] UKPC 28 (27 June 2022)

Successful appeals from Trinidad and Tobago CA – S and G (S) defendants in preliminary inquiry relating to fraud and corruption-related offences arising from awarding of contracts for development and construction of Piarco International Airport between 1997 and 2000 – Chief Magistrate (now deceased) conducted preliminary inquiry between June 2002 and January 2008 -

In December 2007, S and other inquiry defendants applied to Chief Magistrate to recuse himself because of appearance of bias, or alternatively, to refer matter to HC for constitutional relief - Chief Magistrate refused applications and committed S and other defendants to stand trial in January 2008 - No indictment filed since and trial had not taken place -

S challenged Chief Magistrate’s ruling on recusal applications and other aspects of his conducting of  preliminary inquiry through judicial review and constitutional motion – HC rejected proceedings in 2009 – CA rejected appeal in 2017 – Appealed to PC – It said issues whether CA entitled to conclude Chief Magistrate's ruling not vitiated by appearance of bias or by deprivation of S’s right to due process and fair hearing.

PC said when various sources of concern considered together, observer likely to agree with S’s submission that by January 2008 Chief Magistrate hopelessly compromised - Given everything happening in full glare of publicity his mind must have been in turmoil -

Allowed both appeals and quashed CA decisions – Said CA erred by failing to hold that test for apparent bias satisfied and recusal should have followed - Both the application for judicial review and claim for constitutional relief granted - Consequentially 7 January 2008 committal decision quashed - Any other consequential matters remitted to HC – Appeals allowed.