New Zealand Law Society - Courts roundup 11 August - 17 August 2022

Courts roundup 11 August - 17 August 2022

Courts roundup 11 August - 17 August 2022

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

New Zealand Supreme Court

Joinder, individual in place of company

Cummins v Body Corporate 172108 [2022] NZSC 95 (10 August 2022)

Unsuccessful leave application - C sole director and shareholder of Manchester Securities Ltd (M) - M registered proprietor of Unit 12A Hobson Apartments - Involved in long-running dispute with Body Corporate 172108 (BC) over responsibility for repairs to make apartments weathertight - After M placed into liquidation, C sought joinder to two HC proceedings relating to Manchester’s obligation to pay its share of common property repair costs –

In decision to which present application related, CA said even if C had acquired some equitable interest in the unit following arrangements with M, that fell “well short of being a change or transmission that would make it necessary or desirable” for C to be made a party in place of M – SC said leave criteria not met - Proposed appeal would ultimately require Court to revisit concurrent factual findings of courts below - No question of general or public importance or of general commercial significance arose – Application dismissed.

Sexual offences

McLean v R [2022] NZSC 96 (12 August 2022)

Unsuccessful leave application – Following DC jury trial McL convicted of two charges of indecent assault, two charges of doing indecent act on young person and two charges of sexual violation by unlawful sexual connection - Sentenced to 11 years’ imprisonment – CA dismissed conviction appeal – Sought leave to appeal to SC –

SC said not in interests of justice to grant leave - No issue of principle arose - Rather, arguments advanced case specific and factual in nature - No risk of miscarriage if leave not granted – Application dismissed.

Sentencing, home detention

Nassery v R [2022] NZSC 97 (12 August 2022)

Unsuccessful leave application – N convicted following DC jury trial in  Auckland District Court on two charges of knife-based aggravated robbery (in each case, few hundred dollars cash and cigarettes from different dairies); one charge of stealing $50 worth of diesel from service station; and one charge of receiving stolen registration plates valued at between $20 and $30 –

Regarding sentence DC took five year starting point, deducted 50 per cent for background factors (addiction 20 percent, refugee and family background 20 percent, separate mental health issues five percent and other general factors such as EM bail five percent) – Left final sentence two years and six months – In CA argued guideline judgment and necessity of reaching two-year limit to qualify for home detention were applied too rigidly –

SC accepted question of principle might well arise in cases such as this about relationship between ss 15A and 16 and purposes and principles of sentencing set out in Sentencing Act - Not satisfied this was appropriate case to address issue – Application dismissed.

Jurisdiction, transitional provisions

Hall v R [2022] NZSC 98 (12 August 2022)

Reasons re jurisdiction – H’s appeal brought in reliance on transitional provisions governing appeals to SC following abolition of appeals to Privy Council - SC jurisdiction accordingly essentially depended on establishing H met criteria for application of transitional provisions and appeal was compatible with statutory framework for appeals to SC – SC satisfied had jurisdiction to consider H’s appeal.

New Zealand Court of Appeal

Police shooting, NZBORA, right to life

Wallace v Attorney-General [2022] NZCA 375 (15 August 2022) Miller, Gilbert and Goddard JJ

Unsuccessful appeal; successful cross-appeal - On 30 April 2000, armed police officers shot and killed W after he behaved violently in Waitara - Crown decided not to prosecute A, police officer who shot W because he acted in self-defence – W’s parents contested decision – HC allowed them to lay indictment charging him with murder – A acquitted –

Coroner and Independent Police Complaints Authority (IPCA) investigations identified police deficiencies handling the incident - Mother brought HC proceedings alleging Attorney-General and Police Commissioner had breached W’s right to life under s 8 New Zealand Bill of Rights Act 1990 – HC made declarations but declined compensation – Mother appealed – Attorney-General cross-appealed –

CA said s 8 extended to indirect actions of state actors, including police operations planning and control - Both New Zealand and European law recognised indirect state actions could engage right to life issue – Did not open door to systemic fault claims because courts had to find causal connection between state actors’ acts and death - Scope allowed for reasonable mistakes or errors of judgement - Any failure had to be egregious and substantial if to result in s 8 liability – CA said State’s obligation to investigate potentially unlawful deaths could be enforced under s 8 – Obligation satisfied here – Use of lethal force justified – Operation planning and control did not contravene s 8 – Judge right to say police investigation not International Covenant on Civil and Political Rights  (ICCPR) compliant because not sufficiently independent - No failure to give reasons for refusing to take over private prosecution – CA said delay might justify court refusing remedy – Here reasonable to await official investigations.

High Court of Australia

Surveillance devices, freedom of political communication

Farm Transparency International Ltd and anor v New South Wales [2022] HCA 23 (10 August 2022)

Special case concerning whether ss 11 and 12 of Surveillance Devices Act 2007 (NSW) (SD Act) were invalid because they impermissibly burdened freedom of political communication implied by Constitution (implied freedom) – FTI not-for-profit charity, had agitated and advocated for political and legal changes to animal agricultural practices and animal welfare standards with objective of ending modern farming and slaughtering practices – Published photographs, videos and audio-visual recordings of animal agricultural practices in New South Wales –

D an FTI director - Obtained recordings of farming or slaughter of animals through purported acts of trespass contrary to s 8 of  SD Act – FTI and D said ss 11 and 12 SD Act impermissibly burdened ability to publish information, including video recordings, that showed animal cruelty practices - Special case presented on basis that activities recorded, albeit cruel, were not established to be unlawful –

HC majority said ss 11 and 12 SD Act did not impermissibly burden implied freedom in application to, respectively, communication or publication by person of record or report, or possession by person of record, of the carrying on of lawful activity, at least where person was complicit in record or report being obtained exclusively by breach of s 8 of SD Act - Provisions had legitimate purpose of protecting privacy - Sections 11 and 12 achieved an adequate balance between benefit they sought to achieve and adverse effect on implied freedom.

Grievous bodily harm, acting in concert, deemed to be guilty

O’Dea v Western Australia [2022] HCA 24 (10 August 2022)

Successful appeal from Western Australia CA - Concerned meaning of s 7(a) Criminal Code (WA) and raised whether accused who did not actually do act constituting offence, or who Crown could not prove beyond reasonable doubt actually did act constituting offence, could be "deemed ... to be guilty of the offence" under s 7(a) –

O’D  charged jointly with W of offence under s 294(1)(a) Criminal Code of unlawfully doing grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm - Expert evidence led at trial inconclusive as to which act or acts of O’D or W or combination of their acts, caused victim's traumatic brain injury amounting to grievous bodily harm - Trial judge's directions to jury stated could convict O’D under s 7(a) if satisfied beyond reasonable doubt "Mr O'Dea and Mr Webb were acting in concert, each of them doing one or more of the acts which caused the traumatic brain injury" and that "[t]he relevant accused's acts were unlawful" – CA dismissed O’D’s appeal against conviction, concluding jury directions given not erroneous and open to jury to convict O’D under s 7(a) by amalgamating acts of each accused without concluding that W’s acts were unlawful –

HC majority said CA should have found trial judge erred in directions to jury, which amounted to  miscarriage of justice - Proper approach to s 7(a) required that accused person "actually does the act" which constituted offence – Appeal allowed.

Murder, inferences drawn from evidence

Dansie v R [2022] HCA 25 (10 August 2022)

Successful appeal from South Australia CA – D tried and convicted of murder of wife, by judge alone, in South Australia SC - Prosecution case was D deliberately pushed wife's wheelchair into pond with intention of drowning her - Defence case wife had drowned as  result of wheelchair accidentally entering water whilst D attempting to manoeuvre it away from pond - Issue at trial whether prosecution could prove that D murdered wife, thus excluding accidental drowning as reasonable possibility – CA majority dismissed appeal against conviction - Said inferences drawn, and weight given to those inferences, were primarily matters for trial judge as trier of fact –

HC unanimously said CA majority misapplied relevant test – Appeal allowed, matter remitted to CA for rehearing.