New Zealand Law Society - Courts roundup 7 July - 13 July 2022

Courts roundup 7 July - 13 July 2022

Courts roundup 7 July - 13 July 2022

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

New Zealand Supreme Court

Self-represented litigant, mortgagee sale 18 years previously

Anderson v NZI International Acceptances Ltd and ors [2022] NZSC 85 (11 July 2022)

Unsuccessful leave application – Self-represented A sought leave to appeal 2022 CA decision declining to recall 2006 CA decision on appeal against 2005 HC decision declining to give directions “that a proceeding in which an interim injunction had been granted by Holland J on 19 November 1987 … be set down for substantive hearing” - Interim injunction granted in 1987 restrained defendants (respondents here) from proceeding with mortgagee sale of A’s farm under Property Law Act 1952 (PLA) notices - Judgment recognised possibility that another PLA notice might be issued, giving A time to remedy breach which could then form basis for mortgagee sale in event of further default – That occurred –

CA in 2006 said A “…. not able to point to any unlawful act of the defendants leading to the sale of his property” 18 years earlier –

SC said, among other things, 2022 CA decision involved orthodox application of well-settled principles relating to recall - Context fact-specific - Proposed appeal did not raise any question of general or public importance - No real risk substantial miscarriage might occur if appeal not heard – Application dismissed.

New Zealand Court of Appeal

Criminal law, anti-money-laundering

Jiaxin Finance Limited (Jiaxin and F) v R; Che (C) v R [2022] NZCA 287 (1 July 2022) Kós P, Goddard and Katz JJ

Unsuccessful appeal against conviction for offending under AML/CFT Act – Jiaxin was money remitter, currency exchange business and reporting entity under the Act – Principal F and his mother C engaged in remitting funds on behalf of G, Chinese businessman living in Canada – Money-laundering transfers from China to New Zealand used systems outside formal banking arrangements – Offences comprised structuring transactions to avoid AML requirements and failing to conduct due diligence, keep adequate records and report suspicious transactions - CA upheld findings: (i) deposits were connected in time, method and recipient so as to amount to “transaction” under the Act – “Transaction” may be single deposit or series of related deposits - Not necessary to show deposits were part of larger cash sum; (ii) G was in substance Jiaxin’s customer – Distinguished position of third-party remitters dealing at arms-length as brokers; (iii) objective approach taken to s92 offence of failing to report suspicious transaction.

Sentence, strangulation, guideline judgment

Shramka (S) v R [2022] NZCA 299 (7 July 2022) Kós P, Miller and Clifford JJ

Unsuccessful appeal against sentence of 2 years 3 months imprisonment – Offending against former partner including strangulation under s189A CA – S challenged end sentence and discount for EM bail – CA discussed enactment of s189A and caselaw concerning offence of strangulation – Guidelines clarified aggravating factors; gave examples as reference points to sentencing; and addressed highest and moderate level offending - Less serious offending to be developed on case by case basis – S resentenced on basis of increased starting point, reduced uplifts, same discount for dysfunctional upbringing and rehabilitative efforts and slightly higher discount for time on EM bail – T v Police and Ackland distinguished – End sentence the same by different route – Sentence not manifestly excessive.

Misuse of drugs, sentence, naivety

Martin (M) v R [2022] NZCA 285 (1 July 2022) Goddard, Katz and Edwards JJ

Unsuccessful appeal against conviction; successful appeal against sentence – Importing methamphetamine (1.4kg) – M was unusually naïve and gullible - Persuaded to travel to Thailand to sign papers in return for USD10.5M – M concerned by request to bring back suitcase of “gifts” but reassured by the scammers and his search of the suitcase – Bag searched on arrival in New Zealand when M declared he was carrying luggage for another person - Pleaded not guilty but evidence admitted substance of Crown case – Sentenced on basis of recklessness – CA upheld conviction – Sentence manifestly excessive - Significant adjustment required to Zhang approach – Unfair to give undue weight to quantity of drugs where culpability no greater than for smaller quantity – Comparison with King – Resentenced on basis of 3 year starting point and discounts of 6 months each for personal mitigating factors and matters in psychiatric report – Decision to go to trial thereby missing out on guilty plea discount properly regarded as “bizarre” - Sentence reduced from 5.5 years to 2 years imprisonment.

Sentence, fraud, absence of loss

Zhang (Z) v R [2022] NZCA 267 (27 June 2022) Miller, Duffy and Ellis JJ

Unsuccessful appeal against sentence of 2 years 10 months imprisonment – Z pleaded guilty to dishonesty offending including theft by person in special relationship and obtaining by deception – Victims L and W had applied to immigrate to New Zealand under investor category – Z, investment broker, persuaded them to join syndicate to purchase investment land - Immigration consultant induced them to contribute 100 percent of purchase funds - Loan raised and mortgage concealed using forged documents – Victims paid $6M but suffered no loss as core investment was real and proved profitable – CA declined further allowance for fact offenders had made good the loss and victims were in financially advantageous position; 20 percent adjustment for reparation and improved position upheld given payments not genuinely indicative of remorse – Patterson applied - Mitha distinguished - Credit for personal circumstances including dependent children upheld.

Sentence, murder

Samson (S) v R [2022] NZCA 266 (27 June 2022) Gilbert, Mander and Fitzgerald JJ

Unsuccessful appeal against sentence of life imprisonment with MPI of 17 years – S aged 31 murdered young partner in brutal attack in presence of baby daughter – Psychiatrist’s report described severely disadvantaged upbringing including PTSD and physical sexual and psychological trauma at most severe end of spectrum – Report provided material assistance on causal connection of those factors with offending – Rejected 3.5 year reduction based on Gottermeyer – “Truly dreadful upbringing” helped to explain offending but culpability not sufficiently diminished to justify departure from 17 year MPI on grounds of manifest injustice – MPI upheld.

Supreme Court of Canada

Administrative law, Law Society, disciplinary process, delay, review intensity

Law Society of Saskatchewan v. Abrametz [2022] SCC 29 (8 July 2022)

Successful appeal from Saskatchewan CA – A belonged to Saskatchewan Law Society (society) - Practised law 49 years - In 2012, society audited A’s financial records, found irregularities and began disciplinary proceedings against him - Irregularities included high-interest loans to vulnerable clients and issuing cheques to fictitious person before endorsing and cashing them –

In 2013, society notified A that would be suspended temporarily - However, A allowed to continue practicing, subject to conditions - Included A retaining lawyer to supervise practice and its financial accounts - Also barred from accepting, endorsing and cashing cheques - Law society served A second notice in 2014, but A again allowed to continue practice under similar conditions –

A year later, society issued formal complaint against A and appointed Hearing Committee – Found guilty of four charges of conduct unbecoming of a lawyer in 2018 - Disbarred with no chance to apply to rejoin for almost two years -

During disciplinary proceedings, A said society took too long to investigate and decide case - Said was abuse of process - Hearing Committee dismissed argument but Saskatchewan CA agreed with A - Society appealed to SC -

SC majority agreed with society – Said no basis to set aside Hearing Committee finding – Said CA departed from proper role when substituted own fact findings –

Test to determine whether delays abuse of process set out in earlier SC case - Three steps: First, delay unreasonable – Context determined, including proceedings’ nature and purpose, delay length and causes, and complexity of case facts and issues; Second, delay must have caused person harm - Examples included psychological or reputational harm, disruption to family life and loss of work - When these two requirements met, courts investigated whether delay manifestly unfair to party or otherwise brings administration of justice into disrepute -

Here A had not shown Hearing Committee wrong in concluding delay long but not inordinate and there was no significant prejudice to A - Therefore, test not met, and CA should not have set aside Hearing Committee’s conclusions – Appeal allowed.

United Kingdom Supreme Court

Diplomatic immunity, exception to, modern slavery, human trafficking, worker exploitation

Basfar v Wong [2022] UKSC 20 (6 July 2022)

Successful direct appeal from Employment Tribunal – W Filipino migrant domestic worker who worked in B’s household – B diplomat representing Saudi Arabia in UK – W claimed was human trafficking victim - Said forced to work for B and  family in modern slavery after W brought  with them to UK in August 2016 – W said confined, at all times, to B’s house except to remove rubbish; held virtually incommunicado; made to work from 7am to around 11.30pm each day, with no days off or breaks; and subjected to other degrading and offensive treatment - After arriving in UK, allegedly paid nothing for seven months, then paid fraction of contractual entitlement in July 2017, and not paid again until  escaped in May 2018 –

W brought claim against B in employment tribunal for wages and breaches of employment rights - B applied to have claim struck out because had diplomatic immunity - Under article 31 Vienna Convention on Diplomatic Relations 1961 (Diplomatic Convention), incorporated into UK domestic law by Diplomatic Privileges Act 1964, diplomatic agents enjoyed complete immunity from criminal jurisdiction of receiving state and generally from civil jurisdiction - Exception for civil claims relating to “any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions” – B denied all allegations - For strike out purposes allegations assumed to be true - Issue whether alleged conduct “commercial activity exercised” by B within immunity exception (conduct alleged agreed to be “outside his official functions”) -

Employment tribunal declined to strike out W’s claim – Allowed B’s appeal but issued certificate case suitable for direct appeal to SC, “leapfrogging” CA – SC granted leave –

3-2 SC majority allowed appeal saying if facts alleged proved, B did not have diplomatic immunity against claim - Agreed with B’s contention that diplomat ordinarily employing domestic worker not “commercial activity” within meaning of exception - But exception scope could not be determined just by interrogating ordinary meaning of words used: also necessary to consider provision purpose - Contrary to purpose to interpret words “any … commercial activity” as including activities incidental to ordinary conduct of daily life of diplomats and their families in receiving state, such as purchasing goods and services for personal use –

However, majority rejected B’s contention same true of diplomat trafficking and exploiting domestic worker - Exploiting domestic worker by compelling to work in modern slavery not comparable to ordinary employment relationship incidental to daily life of diplomat - Material and qualitative difference between activities: employment voluntary relationship, entered into freely and governed by terms of contract, whereas essence of modern slavery that work extracted by coercing and controlling victim –

Extent of control B exercised over W’s person and labour on assumed facts so extensive and despotic to place W in position of domestic servitude - Further, on assumed facts B gained substantial financial benefit by deliberately and systematically exploiting Ms Wong’s labour for almost two years, initially for fraction of contractual entitlement to wages and latterly for no pay at all - Conduct accurately described as commercial activity practised for personal profit – Said hearing required to determine allegations’ truth – Appeal allowed.