New Zealand Law Society - Courts roundup 21 July - 27 July 2022

Courts roundup 21 July - 27 July 2022

Courts roundup 21 July - 27 July 2022

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

New Zealand Supreme Court

Methamphetamine dealing, sentence

Philip v R [2022] NZSC 88 (20 July 2022)

Successful leave application - Approved question whether CA correct to allow Solicitor-General’s appeal against sentence imposed on P in HC – Followed three CA appeals heard together - All charged with methamphetamine dealing resulting from same police operation – Application allowed.

Self-represented litigant, protection order, breaches

Mitchell v R [2022] NZSC 89 (21 July 2022)

Unsuccessful leave application – Self-represented M convicted following DC jury trial on two charges of breaching protection order and three charges of attempting to breach protection order - Sentenced to two years and three months' imprisonment - Appeal against conviction and sentence to CA dismissed - Sought leave to appeal conviction and sentence to SC – SC said conviction appeal grounds intensely fact-specific – No matter of general or public importance – No risk of substantial miscarriage of justice – Regarding sentence, proposed issues particular to her case – Applications dismissed.

Self-represented litigant, judgment recall

Easton v Registrar of the High Court of New Zealand [2022] NZSC 90 (22 July 2022)

Unsuccessful recall application – E filed application which, amongst other matters, sought recall of SC judgment - Nothing advanced in application that would support judgment recall.

New Zealand Court of Appeal

Resource management – Consent to take and use water

Aotearoa Water Action Inc (AWA) v Canterbury Regional Council (Council) [2022] NZCA 325 (20 July 2022) Kos P, Cooper and Brown JJ

Successful appeal from HC decision upholding resource consents to take and use water for bottling and sale – Applicants relied on historical consents to take water for purposes of operating freezing works and wool scour without a fresh application to take water for bottling purposes – CA considered lawfulness of consent for water bottling activities in absence of new consents to “take” - Whether consent to “use” water under s14 RMA could be granted without application to “take” for same use – Whether activity of water bottling involved “use” of water under s14 – CA found “take” and “use” were to be considered as one activity - Council not authorised to grant consent limited to use of water for bottling without specific consent to take water for same use - Consents unlawful.

Family protection – Undue influence – Trustees’ duties – Unjust enrichment

Pollock (son) v Pollock [2022] NZCA 331 (25 July 2022) Brown, Clifford and Courtney JJ

Unsuccessful appeal from decision declining equitable claims founded on father’s actions excluding son from estate and family trust – Son worked for family business before father and son fell out – Son removed as a beneficiary from family trust and father divested himself of assets to frustrate claim against estate – Claims under FPA and Testamentary Promises Act, and for undue influence, unjust enrichment and breach of fiduciary duty by trustees in removal decision – HC would have made provision under FPA but for the lack of estate assets; found share transfer to avoid FPA claim not unlawful; no undue influence and no unjust enrichment arising from son’s work for business; trustees did not owe son fiduciary duties when exercising power of removal and removal was not irrational or disproportionate – CA considered principles relating to undue influence in Etridge – No undue influence in relation to specific complaints - Rejected argument of unjust enrichment based on notion of unconscionability in relation to gifts to avoid FPA - No error in determining there was no breach of trustees’ duties in removal decision – HC decision confirmed.

Search and seizure – Arbitrary detention – Public law compensation 

NZ Police v Deliu [2022] NZCA 328 (22 July 2022) Brown, Gilbert and Courtney JJ

Successful appeal against award of compensation for arbitrary detention and direction to provide written apology – Police executing search warrant at lawyer S’s office near D’s chambers – HCJ found search was unlawful under s143 SSA and D was unlawfully and arbitrarily detained when police stopped him from querying search and informed him he was detained – Award of $3,000 informed by unlawfulness of search, police behaviour and public interest in protecting s22 rights - CA considered whether HC erred in finding police conduct was “high-handed, overbearing and unreasonable”, plaintiff’s conduct could be taken into account when assessing remedies for breach of NZBORA, HC erred in compensation award and order for apology was available – Principles and caselaw relating to awards of public law damages – CA held: (i) D’s conduct was obstructive and warning warranted - police reaction not high-handed or over-bearing – declaration sufficient to vindicate contravention of right; (ii) Court-ordered apology had nature of mandatory injunction and was precluded under s17(1)(a) Crown Proceedings Act - Appeal against damages award and order for apology allowed.

Criminal law – Sentence – Discharge without conviction

Doyle (D) v R [2022] NZCA 307 (12 July 2022) French, Venning and Moore JJ

Unsuccessful appeal from refusal of discharge without conviction – Possessing MDMA for purpose of supply (40gm) – Early guilty plea – D in mid 20s had served in New Zealand Defence Force for number of years – Life unravelled when he discovered his long-term partner was having affair with platoon commander – D began using, and then dealing, MDMA to friends including members of defence force – Discharged from military - DCJ assessed gravity of offending as moderate taking into account early guilty plea, youth, loss of army career, efforts to rehabilitate and parallel military proceeding – Declined discharge without conviction on basis generic risk relating to employment prospects not out of all proportion to gravity of offending – CA compared offending to that in Rodrigo and Graham – Offending at lower end of moderate range – Consequences to career prospects relatively minor – Refusal of discharge without conviction upheld.

Sentence - “Stealthing”

Campos v R [2022] NZCA 311 (13 July 2022) French, Venning and Moore JJ

Unsuccessful appeal against sentence of 3 years 9 months imprisonment – Rape - First “stealthing” decision under R v AM – C removed condom during sexual intercourse with sex worker contrary to explicit agreement and warnings – Sentence based on starting point of 6.5 years (band 1 of R v AM) and discount of 42.5 percent - Whether starting point too high – Whether insufficient discount for personal circumstances – Societal attitudes to sex work in Philippines irrelevant – Crump distinguished – Discounts generous – Sentence confirmed.

New Zealand High Court

Party “donations”, Electoral Act

R v EF [2022] NZHC 1755 (22 July 2022) Jagose J

Judge-alone trial – EF and FG charged with obtaining by deception - Related to 'donations' solicited for New Zealand First political party's benefit - If "party donations" under s 207 Electoral Act 1993, would dishonestly have retained them against Act's requirement they be transmitted to party secretary – HJC said prosecution failed to prove beyond reasonable doubt funds "party donations" as defined - "Party donations" not merely funds given with intention of benefiting party but had to be received by party, or those involved in administering party affairs, to engage obligation to transmit funds to party secretary - Although 'donations' paid into bank accounts associated with EF and FG to benefit party, had not been given to anyone involved with party administration - Alternatively, if funds "party donations" prosecution had not proven beyond reasonable doubt EF and FG lacked claim of right.

Barrister, takedown order

Re Olsen [2022] NZHC 1781 (22 July 2022) Moore J

Barrister’s originating application for take-down order relating to fraudulent website impersonating him - Attempts to have website taken-down through various non-judicial means unsuccessful –

HC said had inherent power to make take-down orders to maintain public confidence in legal profession and facilitate administration of justice - Power exercised here as website plainly false and made for fraudulent purpose - No party opposed, no other efforts to remove website succeeded and no public interest in maintaining it - Application granted.

Judicial review

Dotcom and ors v Attorney-General [2022] NZHC 1708 (25 July 2022) Hinton J

Unsuccessful judicial review application - D challenged Deputy Solicitor-General's 2017 and 2022 decisions to send cloned and original seized devices to United States - Said no jurisdiction to deal with "mixed content" devices, breach of s 21 New Zealand Bill of Rights Act, failure to have regard to relevant factors and facts – HC declined application - Deputy Solicitor-General had jurisdiction; s 21 NZBORA not breached; relevant factors under s 27 of Mutual Assistance in Criminal Matters Act 1992, other material facts considered - Attorney-General applied to release NZ Police from password confidentiality undertakings – Attorney-General application successful.

Supreme Court of Canada

Murder, access to lawyer, confession, Canadian Charter

R v Lafrance [2022] SCC 32 (22 July 2022)

Unsuccessful appeal from Alberta CA - In 2015, police suspected L of having been involved in murder - Armed police officers entered his home to search it - Asked L if willing to answer questions and, when agreed, drove him to police station and interviewed him for over three hours - Police took blood sample, fingerprints, L’s cell phones and some clothing - Not told could contact lawyer – Several weeks later police arrested L for murder - This time police said could contact lawyer – L contacted Legal Aid, who advised he “get a lawyer” to discuss situation - Police then interviewed L for several hours - Police refused L's request to call father, since had already called Legal Aid, and pushed for more answers – L eventually confessed to  murder -

Before trial L said confession and other evidence taken during first encounter with police should not be used at trial - Said should have been allowed to talk to lawyer and should have been given second chance at contacting lawyer during second interview - Section 10(b) of Canadian Charter of Rights and Freedoms guaranteed that “everyone has the right on arrest or detention to retain and instruct counsel without delay and be informed of that right” -  

Trial judge refused L’s request and evidence used at trial – Judge said because police had not actually “detained” L during earlier interview, did not need to let him contact lawyer - Also, police not required to give second chance at talking to lawyer during later interview - Jury convicted L of murder –

L appealed conviction to Alberta CA - Majority agreed with him and ordered new trial be held without confession and without other evidence police obtained - Crown appealed to SC –

SC majority agreed with CA – L entitled to new trial – Said police violated L’s right to counsel on both occasions - Given “power imbalance” between police and person detained and because legal advice helped “cure” that imbalance, “these were serious breaches” - Whether police actually “detained” someone depended on three questions - First, how did person perceive or understand encounter with police — did person feel forced to comply with police instructions? Second, what did police actually do, and how and where did they do it? Third, how would another person of similar age, size, racial background and level of experience or sophistication have felt during encounter?

Here SC said police did in fact detain L after searching his home – Said right to counsel Charter guaranteed included not only informing detained person of right to talk to lawyer, but also giving them time and opportunity to actually get legal advice – Appeal dismissed.

United Kingdom Supreme Court

Deportation, foreign criminals

HA (Iraq) (Respondent) v Secretary of State for the Home Department (Appellant) [2022] UKSC 22 (20 July 2022)

Unsuccessful appeals from CA - Three conjoined appeals concerned statutory regime governing deportation of foreign criminals under section 117C of Nationality, Immigration and Asylum Act 2002 (2002 Act) - “Foreign criminal” for appeal purposes was person who was not British citizen, was convicted in UK of offence, and sentenced to imprisonment for at least 12 months - 2002 Act divided foreign criminals sentenced to imprisonment terms into two categories - Those sentenced to at least 12 months, but less than four years (medium offenders), could avoid deportation if could establish that effect on qualifying child or partner would be “unduly harsh” (“unduly harsh test”) - Known as Exception 2 - Exception 1, which related to length of lawful residence and integration, not in issue in this appeal - Those sentenced to at least four years (serious offenders) could avoid deportation if there were “very compelling circumstances, over and above those described in Exceptions 1 and 2” (“very compelling circumstances test”) - Whether deportation would produce unduly harsh effects for qualifying partner/child relevant there too -
Common ground that medium offender unable to satisfy unduly harsh test could nevertheless seek to show that very compelling circumstances test met - Very compelling circumstances test required full proportionality assessment to be carried out, weighing interference with rights of potential deportee and family to private and family life under article 8 European Convention on Human Rights against public interest in deportation - Proportionality assessment carried out in all foreign criminal cases unless medium offender could show that either Exception 1 or 2 applied -
HA and RA medium offenders, whilst AA serious offender - In each appeal, Secretary ordered deportation - First–tier Tribunal allowed appeal from – Upper Tribunal set First–tier Tribunal’s decision aside – It remade decision and dismissed appeal - CA allowed appeal from Upper Tribunal decision - Secretary of State appealed to SC –
SC unanimously dismissed all three appeals – Citing previous cases, said unduly harsh did not equate with uncomfortable, inconvenient, undesirable or merely difficult - Rather, posed considerably more elevated threshold - ‘Harsh’ in this context denoted something severe, or bleak -
Regarding very compelling circumstances test, principal legal issues concerned relevance and weight given to rehabilitation and proper approach to assessing seriousness of offending - In general, very compelling circumstances test required all relevant circumstances be considered and weighed against very strong public interest in deportation - Relevant factors included those European Court of Human Rights identified as being relevant toarticle 8 proportionality assessment, although weight given to factors fell within margin of appreciation of national authorities – Appeals dismissed.

Proceeds of crime, freezing assets

R v Luckhurst [2022] UKSC 23 (20 July 2022)

Unsuccessful appeal from CA - Proceeds of Crime Act 2002 (POCA) permitted variation to restraint order to cover reasonable legal expenses in respect of civil proceedings founded on same or similar allegations or facts as those giving rise to restraint order - POCA gave courts power to make restraint order freezing assets of alleged criminal, with overall aim of ensuring that State could confiscate proceeds of crime in event crime committed - Under POCA, variation to restraint order may be made to allow alleged criminal to cover reasonable legal expenses except, as set out in section 41(4) POCA, where legal expenses “relate to an offence” which gave rise to restraint order - Consequently alleged criminals could not seek restraint order variation to meet legal costs of defending against criminal prosecution for offence that gave rise to restraint order, or for instance, in proceedings resisting  restraint order imposition -

L charged with offences of fraud and theft relating to alleged involvement in Ponzi scheme - Assets subject to POCA restraint order - Due to stand trial in October 2022 - Separately, L also faced civil proceedings from investors in alleged Ponzi scheme - L applied for variation to restraint order so could pay £3,000 for legal representation in civil proceedings - Crown Prosecution Service (CPS) opposed variation, saying section 41(4) did not permit variation to cover such legal expenses where civil proceedings arose from  same or similar facts or allegations as criminal offence that gave rise to restraint order -

First instance judge said variation not permitted by section 41(4) as civil proceedings did “relate to” offence giving rise to restraint order - L appealed - CA disagreed with judge, saying section 41(4) did not prevent variation requested - CPS appealed to SC –

SC unanimously dismissed appeal – Said correct 41(4) POCA interpretation did not prevent restraint order variation to meet reasonable legal expenses in civil proceedings, even where civil proceedings arose from same or similar facts or allegations as offence that gave rise to restraint order  - Appeal dismissed.

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