New Zealand Law Society - Courts roundup 1 September - 7 September 2022

Courts roundup 1 September - 7 September 2022

Courts roundup 1 September - 7 September 2022

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

New Zealand Supreme Court

Self-represented litigant, judicial review

Hunter v Auckland Council and ors [2022] NZSC 104 (2 September 2022)

Unsuccessful leave application – Self-represented H challenged resource consents B and AT Ltd had obtained from Council hearing panel – HC rejected judicial review application – CA rejected appeal – Sought leave to appeal to SC – SC said resolving appeal would require it to consider facts particular to this case – No question of general or public importance – No issue of miscarriage of justice – Application declined.

Self-represented litigant, time extension

Slavich v Attorney-General [2022] NZSC 105 (2 September 2022)

Unsuccessful application for time extension – Self-represented S on 12 May 2022, applied for leave to appeal against minute of HC Chief Judge, dated 24 March 2015 (minute) - Given over seven years delay since minute date, also required time extension to apply for leave – SC said could not grant leave unless in interests of justice to do so and, regarding leapfrog appeal, exceptional circumstances existed - Clear that neither test satisfied here - No point granting time extension – Application dismissed.

New Zealand Court of Appeal

Criminal procedure, appeal against conviction and sentence, minimum period of imprisonment, sexual offending

Ahmed v R [2022] NZCA 411 (29 August 2022)

A (school caretaker) convicted of sexual offending against a boy aged between 12 and 15 years old at the time – Conviction appeal on grounds Judge gave inadequate directions on consent – Minimum period of imprisonment (MPI) of 50 percent imposed on sentence of 11 years imprisonment appealed – Appeal filed 12 months out of time but as seriously arguable, in the interests of justice that appeal heard on the merits – Judge did not draw jury’s attention to evidence on which jury could have found that the Crown had not excluded consent or reasonable belief in it – HELD: miscarriage of justice not established – Way defence run meant Judge did not need to give elaborate directions on consent – No reason to think that the community needed more protection from A than determinate sentence provided – Appeal against conviction dismissed – MPI set aside.

Criminal procedure, appeal against conviction, injuring and wounding with intent to injure/reckless disregard, ill-treatment/neglect of a child

Ritika v R [2022] NZCA 415 (5 September 2022)

Charges related to injuries sustained by R’s 8 week old baby (multiple rib fractures and subdural haemorrhages) – Evidence about other injuries led at trial, but did not form the basis of any additional charges – Appeal on grounds Judge erred by failing to properly direct the jury on how it ought to approach the other injuries evidence, and by failing to give a lies direction – HELD: evidence about other injuries plainly relevant to how the charged injuries came about (had a high degree of probative value) and who caused the charged injuries – Little or no practical difference between s8 and s43 Evidence Act 2006 balancing tests – R not prejudiced by the absence of a propensity direction – Absence of a lies direction in the circumstances not capable of giving rise to a miscarriage of justice (difficult to see how R’s position would have been improved had such direction been given) – No miscarriage of justice – Appeal dismissed.

Employment Court jurisdiction, PTSD, no ACC cover, employer’s health and safety obligations

Board of Trustees of Melville High School v Cronin-Lampe [2022] NZCA 407 (29 August 2022)

Respondents were employed by School Board as guidance counsellors – Claim the Board failed to meet its health and safety obligations leading to respondents suffering post-traumatic stress disorder (PTSD) from dealing with multiple student suicides – ACC had determined the work-related mental injuries were not caused by a single event within the terms of s21B Accident Compensation Act 2001 (the Act) so employees not entitled to cover – At issue was jurisdiction of Employment Court and whether review and appeal options had to be exhausted under the Act first (s133(5)) – Intention of Parliament – HELD: no useful purpose served by requiring claimants to challenge by way of review or appeal decisions of ACC they agreed with – Employment Court had jurisdiction to hear a proceeding in which a claimant had made claims under the Act but review and appeal rights under that Act had not been exhausted.

Criminal procedure, appeals against conviction and sentence, alleged errors of counsel in conduct of trial, fresh evidence

C (CA 136-2019) v R [2022] NZCA 412 (29 August 2022)

C convicted of incest in relation to one daughter (R), and sexual violation charges in relation to another daughter (CC) – 15 years imprisonment imposed with MPI 9 years – R had three children and conclusion from DNA evidence was that C most likely biological father – Series of errors in conduct of trial by lawyer W alleged, including failures to adduce C’s medical records, obtain CC’s medical records, adhere to instructions, and instruct an independent DNA expert – Fresh evidence of DNA methylation – HELD: C adjudged fit to stand trial – Logical inference that C capable of giving evidence – C had not attempted to engage expert to examine him and confirm infertility which was central to defence to incest charges – Not clear on what basis W could have obtained CC’s medical records – Handwritten instruction by W, signed by C, a complete answer to C’s criticisms of not calling witnesses – Evidential basis for conviction on incest charges – Proposed evidence of whether CC’s genetic material might display increased DNA methylation not cogent – Appeals dismissed.

New Zealand High Court

Sentencing, manslaughter

R v Edwards [2022] NZHC 2209 (31 August 2022) Moore J

Sentencing - Manslaughter (one charge) - E repeatedly stabbed deceased with ballpoint pen - Aggravating factors extreme violence involved, targeted attacks to head, serious injuries causing death, use of weapon, victim vulnerability, home invasion element, breach of trust, and gang context - Cross-check with manslaughter cases resulted in 10 years' imprisonment starting point - 25 percent discount for guilty plea and 10 percent for personal background circumstances, remorse and willingness to participate in restorative justice - End sentence six years six months' imprisonment – 50 percent MPI for accountability, denunciation and deterrence.