New Zealand Law Society - Courts roundup 8 September - 14 September 2022

Courts roundup 8 September - 14 September 2022

Courts roundup 8 September - 14 September 2022

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

New Zealand Supreme Court

Evidence, warning about witness reliability

Winter v R [2022] NZSC 106 (6 September 2022)

Unsuccessful leave application – W and another convicted after trial of murder - Both pleaded guilty to kidnapping murder victim - Third person, M, unfit to stand trial - W unsuccessfully appealed to CA against conviction - Applied for leave to appeal to SC –

SC said proposed appeal turned principally on factual matrix - Not satisfied case appropriate for considering general questions about approach to warnings about reliability where witness might have motive to lie or approach as to directions regarding immunity - Court addressing s 122 Evidence Act 2006 warnings further in another appeal - Proposed appeal did not raise questions of general or public importance – No appearance of miscarriage of justice – Application dismissed.

Real estate, special condition

Liu v Future Sustainable Development Ltd [2022] NZSC 107 (7 September 2022)

Unsuccessful leave application - Dispute between parties over special condition in agreement for sale and purchase of residential land – SC said appeal related to interpretation of clause in contract between parties, thus related to particular facts - No point of general or public importance – No risk of miscarriage of justice – Application declined.

Judicial review, interim relief, sufficiency of

Stafford v Attorney-General and ors [2022] NZSC 108 (9 September 2022)

Unsuccessful leave application – In 2017 SC declared Crown owed fiduciary duties to reserve 15,100 acres (the Tenths) for benefit of customary land owners in Nelson area and to exclude their pā, urupā and cultivations (the Occupation Land) from land Crown obtained following 1845 selection of purchased land by New Zealand Company (Spain award) – SC  remitted questions of liability, loss and remedy to HC for determination at trial - Trial set down for hearing in August 2023 (the remedies proceeding) – S descendants’ kaumatua - Had standing to represent descendants of Māori customary land owners - Plaintiff in remedies proceeding –

Since Court’s decision, S had sought to ensure remaining land in Crown’s possession which comprises of Tenths or Occupation Land and other land which could form part of relief in remedies proceeding protected from disposal - Sought moratorium preventing sale of land in these categories held by “core” Crown, Crown entities and agents, and state-owned enterprises – Both HC and CA rejected his application – CA said sufficient protection through various undertakings from Attorney-General and Crown entities –

S applied for leave to appeal to SC – Said arrangements in place not sufficient and unfairly placed  burden on him rather than Crown as errant fiduciary – SC accepted matters such as scope of “Crown” land here and nature and extent of Crown’s fiduciary duties might raise questions of general or public importance – These would ultimately be dealt with in remedies proceeding – Undertakings provided sufficient to alert S to any proposed sale or disposition of land – Application dismissed.

New Zealand Court of Appeal

Criminal procedure, appeal against conviction, trial counsel error

Poihipi v R [2022] NZCA 421

P convicted of the murder of his girlfriend in 2019 (violent assault) – P was aged 19 years at the time – Suspected P had foetal alcohol syndrome but no formal diagnosis – P wanted psychedelic mushroom use and proximate methamphetamine use to be put into evidence to prove he did not realise death was likely – Whether there was a miscarriage of justice – HELD: no evidence of the mushrooms having any effect on P, and only inconsistent evidence he consumed any – Not a matter of whether P formed “intent to kill” because he was charged on the basis of reckless knowledge – In the circumstances, there was no reason to investigate the impact of P’s psychiatric state on his state of mind at the time of the killing – No error – Appeal dismissed.

Human Rights Review Tribunal, breach of privacy, Official Information Act, criminal record

Police v Williams [2022] NZCA 419

Police wrongly provided a copy of W’s criminal record to his ex-wife’s lawyer in response to a request made under the Official Information Act 1992 – Human Rights Review Tribunal struck out claim for breach of privacy by W on basis Police were immune from suit in terms of s48 OIA because the information was made available in good faith – High Court found the Tribunal could not make factual findings in the context of a strike-out application as to whether the statutory immunity under s48 applied – HELD: Tribunal not required to identify the elements of W’s claim and consider whether the claim as pleaded disclosed a reasonable cause of action – s48 provided an exemption from jurisdiction, akin to diplomatic immunity, not merely an exemption from liability – Police properly raised jurisdictional immunity in strike out application and discharged initial evidential onus by showing information provided in response to an OIA request – Sufficient to show that s48 was engaged absent any indication of bad faith – No basis to infer bad faith – Appeal allowed – HC judgment set aside and Tribunal decision reinstated.

Criminal procedure, appeal against sentence, violent offending against former partners

Jones v R [2022] NZCA 416

J was convicted of violent offending against two former partners (AB and CD) and sentenced to 5 years 10 months imprisonment – Whether sentence manifestly excessive – J aged 20 years at time of offending against AB (lead charge kidnapping), and aged 21 years at time of offending against CD who was aged 14 years old at the time – HELD: starting point of 3 years 6 months imprisonment for violent offending against AB, in all the circumstances was too high – Starting point of 2 years 9 months imprisonment appropriate – Global discount of 25 percent insufficient as failed to give appropriate recognition to full range of mitigating factors – Total discount available for personal mitigating factors was 35 percent – Additional discounts to reflect certain guilty pleas – Appeal allowed and with adjustments for totality, effective end sentence 2 years 7 months imprisonment.

New Zealand High Court

Sentencing, murder, manslaughter

R v Ellery and Barry [2022] NZHC 2251 (5 September 2022) Eaton J

Sentencing – E pleaded guilty to murder and B manslaughter - Deceased was B’s former partner who sought to rekindle relationship – E, B sought him out believing he had thrown brick through their bedroom window and smashed windows of E’s van - Made unannounced visit to his address intending to confront him and engage in physical assault - Deceased threw item at E and exited house to confront him - Events following unclear - However, not disputed that E stabbed deceased 13 times, inflicting fatal injuries - B unaware E armed - Not involved with, nor witness to, fatal assault –

E sentenced to life imprisonment - Section 104(1) Sentencing Act not engaged - Aggravating factors: serious violence, using knife, premeditation and offending on deceased's property - Six months uplift for prior convictions for offending using knife - Starting MPI 13 years' imprisonment - Twelve months' reduction to reflect guilty plea - Further 12 months' reduction reflecting personal factors outlined in detailed psychologist's  report confirming traumatic upbringing and mental health disorder – MPI 11 years imposed - Starting point for B four years three months' imprisonment with full credit for guilty plea - Further 15 percent for personal matters detailed in cultural report - Six months reflected 16 months on restrictive EM bail - End sentence twenty four months' imprisonment commuted to seven months' home detention reflecting six months custodial remand and positive rehabilitation prospects.

Judicial review, 1080 drop

Kōkako Lodge Trust v Auckland Regional Public Health Service and anor [2022] NZHC 2280 (7 September 2022) Moore J

Unsuccessful judicial review application – K applied urgently for interim order restraining council from conducting 1080 drop in area near lodge, on conditions that lodge would have to cease operating for period – HC said lodge had position to preserve - Would be required to cease operating for period if relief denied – Judicial review claim merits weak – PHS imposing conditions on permission to drop 1080 did not appear procedurally unsound, nor unreasonable - Repercussions to students not attending lodge outweighed by public interest supporting 1080 drop going ahead as scheduled - Application dismissed.