New Zealand Law Society - Courts roundup 25 August - 31 August 2022

Courts roundup 25 August - 31 August 2022

Courts roundup 25 August - 31 August 2022

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

New Zealand Supreme Court

Costs, awards of

Melco Property Holdings (NZ) 2012 Ltd v Hall [2022] NZSC 101 (24 August 2022)

Costs awards – In judgment delivered on 6 May 2022, SC allowed M’s appeal – After parties could not agree, SC ruled on costs – M awarded costs in SC $22,500 plus usual disbursements – CA costs order quashed – M awarded band A costs in CA with usual disbursements – M awarded 2B HC costs basis together with reasonable disbursements.

Self-represented litigant, judgment recall

Mailley v Shaw [2022] NZSC 100 (25 August 2022)

Unsuccessful recall application – Self-represented M applied to recall 3 August 2022 SC judgment that declined leave to appeal HC judgment – Nothing M advanced warranted recall - M merely attempting to relitigate issues already dealt with in leave judgment – Application dismissed.

Self-represented litigant, judgment recall

Little v New Zealand Law Society [2022] NZSC 103 (26 August 2022)

Unsuccessful recall application - Self-represented L applied to recall 23 June 2022 judgment that declined leave to appeal CA decision - Most arguments L advanced merely relitigated points already raised and rejected when refusing leave to appeal – Did not provide any ‘very special reason’ for recall – Application dismissed.

New Zealand Court of Appeal

Criminal procedure, application for leave, 20-year delay, fitness to stand trial, bill of rights

CG v R [2022] NZCA 389

Application by CG to appeal his three convictions for aggravated robbery dating between  1997 and 2000 - The proposed appeal was more than two decades out of time – CG wished to appeal  on the basis that he had never been fit to stand trial so his convictions gave rise to a miscarriage of justice – CG had a moderate intellectual disability - Expert evidence that CG was unlikely to have been fit to stand trial at the time he was convicted  - The Crown would not suffer prejudice – No victims faced the stressful possibility of a retrial – An extension of time was granted to file his appeal – HELD: Given CG’s clear and permanent impairments in key areas of cognitive function which were important for making choices about plea and the defence of a charge at trial, CG was not fit to plead or stand trial on any of the three charges the subject of the appeal – A miscarriage of justice had occurred – The convictions were quashed.

Criminal procedure, admissibility of statement without a lawyer present, exclusion of unreliable statements

Gebhardt v R [2022] NZCA 54

Gebhardt was charged with murdering his son by deliberately crashing his car with his son in the back seat – He was interviewed by the police after he was discharged from hospital, two months after the crash - He said he had no recollection of how the crash occurred - He denied intending to commit suicide, or intending to kill his son - Following that interview he was charged with dangerous driving causing death - Six months later, the charge was amended to manslaughter – A few months later Gebhardt turned up at the Police Station and requested a second interview - He said he did not want his lawyer present - He said he had murdered his son with a car and that his son’s death was intentional – Later that day he retracted the statement saying he was grieving and feeling guilty for his (non-intentional) part in his son’s death - Gebhardt was not suffering from any major mental illness, but had been diagnosed with “persistent complex bereavement disorder” both before and after the second interview he engaged in intermittent bizarre behaviours – Expert evidence concluded that there was a substantial risk that the evidence provided by the admissions was not reliable. – HELD: the circumstances in which the admissions were made indicated a significant risk that an innocent person in that position would falsely confess - There were no clear and obvious indications that the admissions made were reliable - The statement lacked internal consistency and coherence - The circumstances in which the second interview took place and the risk of unreliability fell withing s28 Evidence Act 2006 – The second statement was not admissible at trial.

Propensity evidence, previous convictions for sexual offending, assessment of probative value

R (CA650-2021) v R [2022] NZCA 388

R sought leave to appeal, pre-trial which  allowed an application by the Crown to offer propensity evidence against R who faced charges of sexual offending he was alleged to have committed against his 19-year-old stepdaughter, S – The propensity evidence was R’s previous convictions of indecent assault of his biological daughters and evidence from another step-daughter that he offended against her as well – The Judge was satisfied that the proposed propensity evidence demonstrated a tendency by R, when the opportunity arose, to engage in sexual contact with persons with whom he had a familial connection, and their similarly aged friends – The Judge concluded that the probative value of the evidence, which was  considered “medium to high”, outweighed the risk that the evidence might have an unfairly prejudicial effect on R – HELD: the historic nature of the previous offending did not materially impact the probative value of that evidence - The interval in time between the alleged offending was not significant – That interval was likely to be explained by R having a reduced opportunity to offend while imprisoned for much of that time - there were obvious similarities between the propensity incidents and the charged offending - Each event, proven or alleged,  involved an indecent assault or assaults at the more serious end of the scale - The probative value of the evidence of the offending against his biological daughters (when they were aged five and  seven) was diminished by their ages at the relevant time - Offending against children was different to offending against young people - admission of that evidence could unfairly predispose the jury against R -  The significant probative value of the proposed propensity evidence relating to the second offending against his biological daughters when they were slightly older and the alleged offending against his other step-daughter outweighed any risk that such evidence could have an unfairly prejudicial effect on R – The evidence was admissible – The appeal was allowed in part.

New Zealand High Court

Judicial review, gas prospecting permits

Students For Climate Solutions Inc v Minister of Energy and Resources [2022] NZHC 2116 (24 August 2022) Cooke J

Unsuccessful judicial review application – Related to decisions to issue prospecting permits for gas – HC said climate change issues not relevant considerations under Crown Minerals Act, purpose of which specified to be to promote mining (s 1A) - Challenge based on relevant considerations and unreasonableness dismissed – HC said climate change issues could become relevant given obligation to act consistently with Treaty of Waitangi principles - But other processes addressed climate change impacts on Māori, and impacts of measures to address climate change - Not for this decision-maker to reassess them – Court function limited to ensuring that challenged decisions had been lawfully made – Application dismissed.

Sentencing, murder, aggravated robbery

R v Te Aonui-Tawhai [2022] NZHC 2169 (29 August 2022) Palmer J

Sentencing – A-T pleaded guilty to murder, aggravated robbery, and assault with weapon – A-T and co-defendant patched Mongrel Mob members – Were in car when they saw and chased victim, L, who was on his motorcycle – L 63-year-old patched Outlaw Motorcycle gang member – A-T intended to take L’s patch as trophy - Pleaded guilty following statement of facts that alleged both he and co-defendant attacked L while he was lying on ground – A-T used knife to inflict 11 stab wounds to L’s upper arms and nose, and two incised wounds to his chest and right upper arm – A-T and, allegedly, co-defendant, kicked and punched L and took his patch – They left him lying on ground, bleeding – L died soon afterwards due to blood loss –

Sentenced to life imprisonment for murder, MPI 13 years – Concurrently sentenced to seven years’ imprisonment for aggravated robbery and 18 months’ imprisonment for assault with weapon.

Judicial Committee of the Privy Council

Compulsory land acquisition, compensation, injurious affection

Estate of Dame Bernice Lake QC (Deceased) and v Attorney General of Anguilla [2022] UKPC 33

Unsuccessful appeal, successful cross-appeal from Eastern Caribbean CA (Anguilla) - In 2003, Anguillan government compulsorily acquired 26 acres of land to expand Airport - Land part of 110 acre parcel owned by Dame Bernice Lake QC (Parcel 100) – Road separated Parcel 100 from another 260 acres her family owned (Parcel 126) - Following her death in 2011, Dame Bernice’s estate (Estate) and Conch Bay Development Limited (Company), which by then owned Parcels 100 and 126, brought claim against Anguilla government for $52.79m compensation - Estate awarded $1.26m - Company not awarded anything - Estate and Company together appealed to Eastern Caribbean CA - CA substituted $19.15m for $1.26m - Both sides appealed to PC – PC allowed Attorney General’s appeal in full – Among other things, when considering valuation methodology, referred to New Zealand Land Valuation Tribunal case – PC dismissed Estate and Company appeal relating to injurious affection of land it continued to own.