New Zealand Law Society - Courts roundup 28 July - 3 August 2022

Courts roundup 28 July - 3 August 2022

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

New Zealand High Court

Judicial review, tikanga-based adjudication, CNI forest land allocation

Cni Iwi Holdings Limited v Tūhoe Establishment Trust and ors [2022] NZHC 1880 (2 August 2022) Gwyn J

Judicial review of statutory, tikanga-based adjudication process to allocate CNI forests land amongst eight iwi on mana whenua basis – HC said process where two panel members issued decision with third panel member issuing subsequent decision valid majority decision-making process – Some Panel decisions outside statutory powers and-or failed to allocate land on basis of mana whenua interests - Two Panel members died in intervening period so decision could not be remitted back to Panel - Court directed parties to explore resolution options that upheld integrity of underlying Treaty settlement, before Court made directions.

Supreme Court of Canada

Sexual intercourse, consent

R v Kirkpatrick [2022] SCC 33 (29 July 2022)

Unsuccessful appeal from British Columbia CA - In March 2017, K and woman (W) met online and then in person in British Columbia – W agreed to have sex with K, but only if K wore condom - Had sexual intercourse twice one night - K wore condom first time - Second time did not, which W only realised afterward– K charged with sexual assault –

Section 273.1(1) Criminal Code defined consent as person’s voluntary agreement to “engage in the sexual activity in question” - At trial, W said had not consented to sexual activity in question, intercourse without condom - K asked judge to dismiss charge due to lack of evidence - Claimed Crown did not prove absence of consent, because W consented to sexual intercourse, regardless of condom use –

K said judge should apply SC 2014 ruling which established test for consent - Also involved complainant who said consented to having sex but only if accused wore condom - Accused pierced holes in condom without complainant knowing – SC said complainant consented to “sexual activity in question” there because agreed to sexual intercourse - However, SC said accused obtained complainant’s consent by fraud, contrary to s 265(3)(c) Criminal Code, since accused tampered with condom – Here K said W agreed to sexual intercourse, like previous case but there was no evidence of fraud –

Judge dismissed sexual assault charge against K due to lack of evidence – Applied 2014 case - Said because W agreed to have sex with K, consented to “the sexual activity in question” under section 273.1(1), although no condom was worn - Judge also said no evidence that K’s failure to wear condom fraud under section 265(3)(c) - Crown appealed to British Columbia CA – CA ordered new trial, saying judge should not have dismissed for lack of evidence - K appealed to SC -

SC majority said W provided evidence would not have had sex with K without condom - Some evidence W did not consent to sexual activity in question – Trial judge erred to say no evidence and dismiss charge - New trial required – Appeal dismissed.