New Zealand Supreme Court

Recall application, Evidential video, editing

McGeachin v R [2020] NZSC 95 (14 September 2020)

Unsuccessful application to recall Judgment – M convicted following a jury trial in 2013 for offences of physical and sexual violence committed against two former partners (JO and CF) between the late 1980s and 2011 – CA dismissed his appeal against conviction – SC in February 2017 dismissed application to extend time to appeal to it  - In late 2017, dismissed application to recall that judgment - In August 2018, SC deferred decision on M’s second application for a recall, so he could apply to CA to  recall its appeal decision on his appeal - On 20 March 2020, CA declined his recall application - M renewed his second application to recall SC decision - The main issue M raised in second recall application to SC was that the Evidential Video Interview (EVI) of one of the complainants had been edited before being presented to the jury at his trial - Argument was editing removed material indicating that there may have been collusion between the two complainants – M said, among other things,  miscarriage of justice arose from edits to EVI – SC said all of the points M raised relate the facts of his particular case - No point of general or public importance arose  - Further, CA in latest recall decision thoroughly examined M’s complaints about his original appeal and concluded no risk of a miscarriage of justice - Nothing M raised suggests CA analysis in error – Recall application declined.

Evidence, prison informants

Roigard v R [2020] NZSC 94 (14 September 2020)

Unsuccessful appeal from CA - R convicted after trial for the murder of his son and for theft in a special relationship. He was sentenced to life imprisonment – R unsuccessfully appealed to CA - granted leave to appeal against conviction to SC - Appeal focussed on two Crown witnesses evidence at trial - Both had been in prison with R and gave evidence as to admissions they said R had made to them in prison - Both witnesses were aware of potential benefit they might obtain from giving their evidence, had received a sentencing discount for assistance provided and had a history of dishonesty – Issue for SC was whether their evidence should have been excluded under the Evidence Act 2006 – SC considered approach to excluding evidence from prison informants and particularly to what extent reliability issues could be considered when determining whether the evidence’s probative value outweighed risk of unfair prejudice under s 8(1) of the Evidence Act - Issue arose because of concerns regarding prison informants’ reliability and credibility - Concerns highlighted by social science studies establishing linkage between this type of evidence and miscarriages of justice – SC majority dismissed appeal – Both witnesses’ evidence directly raised the common concerns associated with incentivised prison informant evidence – However, significant portions not challenged- Also, both witnesses’ evidence largely conformed with other witnesses’ evidence at trial. Therefore, the majority said probative value of both witnesses’ evidence favoured admission under s 8(1), and issues of credibility and reliability were properly for the jury who had the full picture of the witnesses’ incentives and history of dishonesty - Two judges dissented - Said updates in social science literature suggest incentivised prison informant evidence particularly problematic and linked to miscarriages of justice – Said one informant’s properly admitted but the other’s should have been excluded – Appeal dismissed.

Sentencing, Cook Islands offence, prosecution, conviction and sentence in NZ

O’Caroll v R [2020] NZSC 92 (14 September 2020)

Successful appeal of sentence - O, a New Zealander, pleaded guilty to indecent assault, an offence under the Cook Islands Crimes Act 1969, for offending in the Cook Islands – But O not convicted in the Cook Islands - Prosecuted, convicted and sentenced in New Zealand, under s 155 of the Cook Islands Act 1915 (an Act of the New Zealand Parliament) – HC said home detention would be most appropriate, but it could not impose home detention, since Cook Islands law did not provide for this – Said had no choice but to sentence O to a term of imprisonment – O unsuccessfully appealed to CA – CA said had no jurisdiction to hear the appeal - In any case, it agreed with HC that home detention not available - SC granted O leave to appeal against CA decision - Issues were: (1) whether CA had jurisdiction to hear the appeal; and (2) whether HC had  power to impose home detention - Issues turned on interpretation of s 155 of the Cook Islands Act - Unusually, both parties in this case agreed that CA wrong – SC unanimously allowed O’s appeal – On (1) SC said CA had jurisdiction to hear the appeal - Section 155(1) provided HC could exercise its jurisdiction over offences committed in the Cook Islands “in the same manner” as if the offence had been committed in NZ -  That meant it exercised its jurisdiction subject to the appeal rights that would ordinarily apply - Also consistent with New Zealand Bill of Rights Act 1990 and International Covenant on Civil and Political Rights - Both recognised  convicted person’s right to appeal against their sentence – On (2) SC said HC could impose home detention - Language of s 155(4) indicated it was intended to limit only the maximum sentence for which an offender could be liable - Quashed O’s sentence of 22 months’ imprisonment and substituted 10 months’ home detention – Appeal allowed.

Supreme Court of Canada

Strategic lawsuit against public participation 

1704604 Ontario Limited v Pointes Protection Association and ors [2020] SCC 22 (10 September 2020)

Unsuccessful appeal from Ontario CA - 1704604 Ontario Ltd (Company)  was a land development company in Sault Ste. Marie, Ontario - It wanted to build a neighbourhood on an area that was part of a wetland - Some local residents were against the plan - Said it would destroy the wetland and cause other damage to the environment - Formed a group called Pointes Protection (PP) - Company needed approvals from the local Conservation Authority and City Council - Conservation Authority approved the plan. PP said decision wrong - Asked a court to review it - While this was happening, Council said no to the plan - Company appealed Council decision to the Ontario Municipal Board, which decided on planning disagreements – PP agreed not to go to court about Conservation Authority decision – PP agreed not to say that the Conservation Authority’s decisions were against the law or not allowed - Company lost at the Municipal Board hearing - During hearing, a PP representative testified about the company’s plan - Said plan would hurt the environment and destroy part of the wetland - Company said this went against the agreement - Sued for breach of contract and asked for $6 million in damages – PP said company was wrongly trying to stop residents from speaking out - Said company was trying to silence criticism on an important public issue - Said this was a “strategic lawsuit against public participation,” or “SLAPP.” SLAPPs not about genuine legal claims - About intimidating and silencing critics, getting people to settle and stop speaking to avoid the time and money it would cost to go to court - Like some other provinces, Ontario had law to stop SLAPPs before they ever got to trial – Motion judge said lawsuit not a SLAPP and could go forward – CA said it was a SLAPP and dismissed it – Company appealed to SC - All SC agreed this was a SLAPP - Said SLAPPs hurt people’s right to freedom of expression, and that freedom of expression important to democracy  - Was the first time SC dealt with Ontario’s new rules about SLAPPs - Another case, Bent v Platnick (noted below) was also about SLAPPs - SC heard both cases on the same day – Appeal here dismissed.

Defamation, Strategic lawsuit against public participation 

Bent v Platnick [2020] SCC 23 (10 September 2020)

Unsuccessful appeal from Ontario CA - B a lawyer and president of the Ontario Trial Lawyers Association (OTLA), whose members represented people hurt in car accidents – P was a doctor insurance companies hired to look at other medical professionals’ reports written - Would write final reports giving medical opinions on how badly people were hurt - In 2014, B sent an email to the OTLA mailing list - Said P had misrepresented and changed other doctors’ reports to make her clients’ injuries look less serious - Meant people who were hurt would get fewer insurance benefits - Emails sent to OTLA list were supposed to be confidential, but someone shared the message about P - An insurance industry magazine published the full email in an article – P said B wrong - said that in one case he clearly made his own conclusions based on information from other doctors who didn’t know Ontario’s accident benefits law - In another case, a doctor made a mistake in a report and later fixed it - P asked B to apologize. She did not, so he sued her and her law firm for defamation and asked for over $16 million in damages and lost income – B said claim a SLAPP -  SLAPPs were lawsuits used to stop people from speaking out on something that was important to the public - Ontario had law to stop SLAPPs before they ever go to trial - Motion judge agreed with B that the defamation suit was a SLAPP and should be stopped - CA said not a SLAPP and could go forward – SC majority said not a SLAPP and should be allowed to continue, but P had to show three things: (1) he had a likely chance of winning. (2) B had no valid defence (3) it was more important to the public that his lawsuit be allowed to go forward than it was to protect Ms. Bent’s expression - Said P showed these three things - Said that the motion judge made mistakes applying the law on SLAPPs, about defamation law, and about the evidence – Said P had a likely chance of winning because B’s email sent to 670 OTLA members and talked about P by name – Also P showed he lost about $600,000 in income because of the damage to his reputation - P also showed at this stage that there was a basis in fact to find that B  had no valid defence - Majority said the email was a personal attack and that B did not confront P about anything before she sent it - Said harm to P more important to the public than protecting Ms. Bent’s freedom of expression in this situation - Majority said because a court says a lawsuit not a SLAPP and can go forward does not mean it will succeed - Means the person deserves to have their day in court - In a trial, the court will hear much more evidence and argument, and will have much more to base a decision on – Appeal dismissed.