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Supreme Court 3 to 9 July

16 July 2020

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the last week are as follows:

Supreme Court of New Zealand

Leave application, Murder, Judgment recall

Uhrle v R [2020] NZSC 62 (9 July 2020)

Unsuccessful leave application - In 2013, U convicted, together with three others, of murder –  CA dismissed her appeal against conviction in 2015 - In 2016, SC dismissed an application for leave to appeal from CA decision - In 2018, U applied to bring a second appeal against conviction in the CA based on fresh evidence – CA said application properly characterised as recall of CA’s 2015 decision - CA declined to recall its decision - In 2019, U applied again to SC for leave to bring second appeal against conviction - Principal issue was SC jurisdiction to entertain a second application for leave to appeal - If so, what the basis for that jurisdiction was - SC unanimously dismissed U’s leave application – It said leave refusal final - Successive applications for leave not permitted - However, where proper grounds existed, the SC could recall its earlier decision declining leave and consider a second subsequent application - Said test for recall in the criminal jurisdiction had to be formulated to make it clear that reopening an appeal was an exceptional step - Civil jurisdiction test equally appropriate in the criminal jurisdiction - Recall not limited to only errors of procedure SC said three categories of cases in which a court might recall its judgment: 1) Since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; 2) Counsel failed to direct the court to a legislative provision or authoritative decision of plain relevance; 3) For some other very special reason justice required that the judgment be recalled  - Third ground likely to be most relevant in the criminal jurisdiction – Here, none of the three grounds was made out - Particulalry, there was no very special reason of justice requiring the 2016 leave judgment to be recalled - Proposed evidence faced several difficulties meaning it was not admissible - Matter is also more appropriately dealt with by way of application to the Criminal Cases Review Commission – Application dismissed.

Supreme Court of Canada

Canadian Coalition for Genetic Fairness v Attorney-General of Canada and Attorney-General of Quebec [2020] SCC 17 (10 July 2020)

Reference from Quebec re constitutionality of the Genetic Non‑Discrimination Act - Canadian Parliament passed the Genetic Non-Discrimination Act to make rules on genetic testing related to diseases - Act made it a crime to force someone to get that testing, or share their results, to sign a contract or buy something - For example, insurance companies could not make people get tested to get life insurance coverage - Parliament also made it a crime to collect, use, or share the results of someone’s genetic tests without their permission - Anyone breaking the rules could be fined up to $1 million or put in jail for up to five years, or both - Quebec government did not think Parliament had the power to make these rules - Canada’s Constitution gave different powers to the provinces and the federal government - For example, Parliament had the power to make criminal laws - Provincial legislatures (which make laws for each province) could make laws about property and civil rights - This included laws about buying and selling goods and services. If a provincial legislature or Parliament passes a law that only the other has the power to make, the law will be unconstitutional - Quebec Government asked the Quebec CA to decide if the rules were unconstitutional - Quebec A-G said the rules were unconstitutional because they were really about making rules for insurance and employment contracts and promoting health, not about making criminal law. Canadian A-G agreed – CA appointed amicus curiaeto argue that they were constitutional – CA agreed with A-Gs and said rules wre unconstitutional - Canadian Coalition for Genetic Fairness an intervener when CA heard the case – It said the rules fell under Parliament’s power to make criminal law because they protected people’s health, privacy, and equality - Coalition appealed CA decision to the SC – SC majority said the rules were constitutional - Said the rules were criminal law because they prohibited something and created punishments for breaking the rules, and because the rules were trying to prevent certain kinds of harm.

Hong Kong Court of Final Appeal

HKSAR v Kwan Ka Hei [2020] HKFCA 21

Unsuccessful appeal from First Instance Court (FCA) – On 16 December 2015, Appellant K was stopped and searched by the police -  Found to be carrying in his backpack 16 “smoke cakes” - “Smoke cakes” were a pyrotechnic substance which emitted smoke when ignited, but did not produce an explosion - Charged with and convicted by Deputy Magistrate after trial of the offence of possession of an explosive substance under section 55 of the Crimes Ordinance (Cap 200) (“CO”) - Court of First Instance Judge dismissed appeal against conviction – K appealed to FCA - “Explosive substance” not defined in the CO - Issue was whether the definition in section 2 of the Dangerous Goods Ordinance (Cap 295) (“DGO”), that “explosive” includes “any substance used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect”, was applicable, as both lower courts said – FCA said word bore same meaning in the DGO and the CO – Appeal dismissed.

Judicial Committee of the Privy Council

Disciplinary proceedings, failure to deliver timely decision

Chief Personnel Officer (Appellant) v Amalgamated Workers’ Union (Respondent) [2020] UKPC 17

On appeal from Trinidad and Tobago CA – R, a member of the Respondent union and had been in the Appellant’s employment since 1983 - The Appellant, CPO of the Port of Spain Corporation - brought disciplinary proceedings against R for the alleged theft of petrol - R suspended from work - The Appellant failed to deliver a decision on the disciplinary proceedings within ten days from the date on which the disciplinary proceedings - Respondent wrote to the Minister of Labour, reporting the existence of a trade dispute under s. 51(1)(b) of the Industrial Relations Act - The Industrial Court heard the dispute, and, in its judgment said the Appellant’s delay in making the decision was excessive and in breach of the collective agreement - Ordered R’s reinstatement without loss of seniority, emoluments and other benefits, and ordered that the Appellant pay R’s salary and other pecuniary benefits- CA upheld this order - Appellant accepts it was in breach of the collective agreement as found by the Industrial Court but took issue with the reinstatement and compensation order made – PC said Industrial Court had power to make the order it did – said, among other things, Corporation failures were so substantial that, in the Industrial Court’s view, the legality of the disciplinary process had been fatally undermined, necessarily rendering any subsequent dismissal for the alleged offence unfair – appeal dismissed.

Supreme Court of the United States

Grand jury access to Presidential financial records

Trump v Vance, District Attorney of the County of New York et al 19-635 (9 July 2020)

Unsuccessful appeal from 2nd Circuit CA - In 2019, the New York County District Attorney’s Office—acting on behalf of a grand jury—served a subpoena duces tecum on Mazars USA, LLP, the personal accounting firm of President Donald J. Trump, for financial records relating to the President and his businesses - The President, acting in his personal capacity, sued the district attorney and Mazars in Federal District Court to enjoin enforcement of the subpoena, arguing that a sitting President enjoys absolute immunity from state criminal process under Article II and the Supremacy Clause - DC dismissed the case under the abstention doctrine and, in the alternative, said the President was not entitled to injunctive relief – 2nd Circuit CA rejected the DC’s dismissal under abstention doctrine but agreed with the court’s denial of injunctive relief, concluding that presidential immunity did not bar enforcement of the subpoena and rejecting the argument of the United States as amicus curiae that a state grand jury subpoena seeking the President’s documents must satisfy a heightened showing of need – President appealed to SC – Majority said, among other things, Article II and the Supremacy Clause did not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.

Congressional access to Presidential financial records

Trump et al v Mazars USA LLP at al 19-715 (9 July 2020)

Partially successful appeal from DC and 2nd Circuit Cas - In April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses - House Committee on Financial Services issued a subpoena to Deutsche Bank seeking any documents related to account activity, due diligence, foreign transactions, business statements, debt schedules, statements of net worth, tax returns, and suspicious activity identified by Deutsche Bank - It issued a second subpoena to Capital One for similar information - Permanent Select Committee on Intelligence issued a subpoena to Deutsche Bank that mirrored the subpoena issued by the Financial Services Committee - House Committee on Oversight and Reform issued a subpoena to the President’s personal accounting firm, Mazars USA, LLP, demanding information related to the President and several affiliated businesses - Although each committee sought overlapping sets of financial documents, each supplied different justifications for the requests, explaining that the information would help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections - The President in his personal capacity, along with his children and affiliated businesses, contested the Oversight Committee subpoena in the District of Columbia  DC and the Financial Services and Intelligence Committees subpoenas in the Southern District of New York  -  In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose and violated the separation of powers - The President did not, however, argue that any of the requested records were protected by executive privilege – Re Mazars, the DC granted judgment for the House and the D. C. Circuit CA agreed saying the the Oversight Committee subpoena served a valid legislative purpose because the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates - Regarding Deutsche Bank, the DC denied a preliminary injunction and the 2nd Circuit CA affirmed in substantial part, holding that the Intelligence Committee properly issued its subpoena to Deutsche Bank as part of an investigation into alleged foreign influence in the U. S. political process, which could inform legislation to strengthen national security and combat foreign meddling - The court also concluded that the subpoenas issued by the Financial Services Committee to Deutsche Bank and Capital One were adequately related to potential legislation on money laundering, terrorist financing, and the global movement of illicit funds through the real estate market – The President appealed to SC – It said, among other things, the courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information – CA Judgments vacated, and cases remanded for further proceedings consistent with SC opinion.

Jurisdiction, “Indian Country”, Criminal jurisdiction

McGirt v Oklahoma 18-256 (9 July 2020)

Successful appeal from Oklahoma Court of Criminal Appeals - The Major Crimes Act (MCA) provided that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States” 18 U. S. C. §1153(a) - “Indian country” included “all land within the limits of any Indian reservation under the jurisdiction of the United States Government” §1151 - McGirt convicted by an Oklahoma state court of three serious sexual offenses - Unsuccessfully argued in state post conviction proceedings that the State lacked jurisdiction to prosecute him because he was an enrolled member of the Seminole Nation and his crimes took place on the Creek Reservation - Sought a new trial, which, he contends, must take place in federal court – SC said for MCA purposes, land reserved for the Creek Nation since the 19th century remained “Indian country” - Though early treaties did not refer to the Creek lands as a “reservation,” similar language in treaties from the same era has been held sufficient to create a reservation, and later Acts of Congress—referring to the “Creek reservation”—leave no room for doubt - Also, an 1856 Treaty promised that “no portion” of Creek lands would ever be embraced or included within, or annexed to, any Territory or State,” and that the Creeks would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property - Congress has since broken more than a few promises to the Tribe - Nevertheless, the Creek Reservation persists today - Once a federal reservation was established, only Congress could diminish or disestablish it - Doing so required a clear expression of congressional intent -  Oklahoma claimed, among other things, that Congress ended the Creek Reservation during the so-called “allotment era”, a period when Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribal members - Missing from the allotment-era agreement with the Creeks, however, was any statute evincing anything like the “present and total surrender of all tribal interests” in the affected lands - SC already rejected the argument that allotments automatically ended reservations. “The federal government promised the Creek a reservation in perpetuity - Over time, Congress has diminished that reservation - It has sometimes restricted and other times expanded the Tribe’s authority - But Congress has never withdrawn the promised reservation - As a result, many of the arguments before us today follow a sadly familiar pattern - Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye - We reject that thinking. If Congress wishes to withdraw its promises, it must say so - Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law - To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right”-  Gorsuch J, concluding majority reversal of CA.

Capital punishment

Barr, Attorney-General et al v Lee et al 591 US 2020 (14 July 2020)

Unsuccessful stay of death penalty - Plaintiffs all federal prisoners who had been sentenced to death for murdering children - The plaintiffs committed their crimes decades ago and have long exhausted all avenues for direct and collateral review - The first of their executions was scheduled to take place this afternoon, with others to follow this week and next month. To carry out these sentences, the Federal Government plans to use a single drug—pentobarbital sodium—that “is widely conceded to be able to render a person fully insensate” and “does not carry the risks of pain that some have associated with other lethal injection protocols” -  Hours before the first execution was set to take place, the District Court preliminarily enjoined all four executions on the ground that the use of pentobarbital likely constitutes cruel and unusual punishment prohibited by the Eighth Amendment - Vacatur of that injunction is appropriate because, among other reasons, the plaintiffs have not established that they are likely to succeed on the merits of their Eighth Amendment claim - That claim faces an exceedingly high bar - “This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual”  - The plaintiffs in this case have not made the showing required to justify last-minute intervention by a Federal Court - “Last-minute stays” like that issued this morning “should be the extreme exception, not the norm” - It is our responsibility “to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously,” so that “the question of capital punishment” can remain with “the people and their representatives, not the courts, to resolve” - In keeping with that responsibility, we vacate the District Court’s preliminary injunction so that the plaintiffs’ executions may proceed as planned – Majority declined stay – First federal execution in 17 years occurred hours after this ruling.

Last updated on the 16th July 2020