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Supreme courts roundup, 20 to 26 March 2020

26 March 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

Barton v R [2020] NZSC 24 - 25 March 2020. Unsuccessful application for bail pending determination of application for leave to appeal.

Self-represented applicant seeking leave to appeal to Supreme Court - Serving sentence of three years two months and two weeks imprisonment - Appeal on grounds that sentence manifestly excessive - Seeking bail at least until submission on leave application filed - Submits that unable to comply with timetable for filing submissions in support of application for leave to appeal because of restrictions in prison - Denial of internet access to retrieve instructions sent to counsel in the Courts below - Application opposed by Crown on grounds that not in the interests of justice to grant bail - Court accepts Crown submission that bail not necessary to retrieve instructions to counsel - No other matters raised, including COVID-19, justify bail and applicant's history suggests a real risk of non-compliance with conditions. Application dismissed.

Nottingham v R [2020] NZSC 23 - 20 March 2020. Successful recall of judgment and grant of leave to appeal sentence.

Applicant sought recall of SC judgment of 12 December 2019 dismissing his application for leave to appeal from Court of Appeal decision - Nothing advanced which would warrant a recalling conviction decision – Court agreed with applicant that this aspect of the proposed appeal raised question of general principle - Judgment recalled and leave granted on the question of whether the Court of Appeal was correct to impose the maximum period of home detention in circumstances where the offender had already served a period of home detention.

P (SC 120/2019) v CIR and anor [2020] NZSC 22 -  18 March 2020. Unsuccessful application for leave to appeal.

The applicant P, and the second respondent, W, were the parents of A. P sought leave to appeal against a Court of Appeal dismissal of her appeal against a High Court decision declining her application for judicial review of the CIR’s decision - Issue was under what circumstances the Commissioner could reassess entitlement to, and liability for, child support under the Child Support Act 1991 - More broadly, it concerned when liability to pay child support ceased under s 25(3) of the Act, which in turn depended on the parents’ division of “ongoing daily care” - Applicant essentially sought to raise again her interpretation of the legislation - Although the application related to interpreting statute on a point not yet examined by the Court, arguments did not have sufficient prospects of success to warrant granting leave to appeal - Nothing raised in submissions suggested that Courts below erred in applying the legislation in circumstances of this case - No risk of miscarriage of justice - Application dismissed.

Y & P NZ Ltd v Yand Wang and anor [2020] NZSC 21 - 18 March 2020.  Unsuccessful application for leave to bring second appeal.

Applicant said it was entitled to cancel an agreement for sale and purchase of land when, contrary to the terms of the agreement, the purchaser insisted on treating the transaction as zero-rated for GST purposes - High Court and the Court of Appeal disagreed with applicant - Supreme Court said issues arising were not of general, public or commercial importance - Facts in this case had a number of unusual features - Courts below applied established authority to the facts of the case - Relatedly, Supreme Court was not satisfied the appeal had sufficient prospects of success to warrant the grant of leave in any event.

High Court of Australia

Partnership – assets of

Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7 - 18 March 2020. Successful appeal from Court of Appeal of the Supreme Court of Western Australia.

Majority said regarding two partnerships, a partner held titles to partnership property on trust for their fellow partners, each of whom had a non-specific interest in relation to all of the partnership property - Majority also said after partnerships had dissolved, declarations that title to particular partnership property was held on trust in the relevant proportions for each former partner were dutiable transactions within the meaning of s 11(1) of the Duties Act 2008 (WA).

Criminal law – Sentence – Irrelevant consideration

R v Goude [2020] HCA 8 - 18 March 2020. Successful appeal from the Court of Appeal of the Supreme Court of Victoria.

Issuewhether that Court took into account an irrelevant consideration when determining the respondent's appeal against sentence - Respondent pleaded guilty to murder contrary to common law and to infanticide and attempted murder contrary to ss 6(1) and 321M of Crimes Act 1958 (Vic) respectively – primary judge sentenced respondent to 26 years and six months' imprisonment with non-parole period of 20 years – Court of Appeal allowed appeal against sentence and re-sentenced respondent to 18 years' imprisonment with non-parole period of 14 years – Respondent's mental condition at time of offending called for application of principles stated in R v Verdins (2007) 16 VR 269 – Element of offence of infanticide included disturbance of balance of mind – Infanticide carried significantly shorter maximum penalty than offences of murder and attempted murder – Court of Appeal erred by evaluating appropriateness of sentences imposed for murder and attempted murder in light of lesser maximum penalty for offence of infanticide - Appeal allowed – Lower Court orders set aside – remitted to lower court further determination according to law.

Aboriginals – Native title to land and waters – Determinations of

Western Australia v Manado [2020] HCA 9 - 18 March 2020. Four successful appeals from Full Federal Court.

Confirmation of existing public access to and enjoyment of land or waters which were the subject of native title determinations under the Native Title Act 1993 (Cth) - s 212(2) of Native Title Act 1993 (Cth) provided that Commonwealth, State or Territory could by legislation confirm existing public access to and enjoyment of beaches and other categories of lands or waters – Western Australia Parliament enacted legislation confirming public access and enjoyment under s 212(2) – Federal Court judge made two determinations of native title over land and waters in the Dampier Peninsula, Western Australia, which included areas of unallocated Crown land comprising beaches and foreshores - Said because public access to and enjoyment of the relevant land and waters was not proscribed, it was a "privilege" which fell within the definition of "interest" as defined in s 253 of the Native Title Act, and was accordingly within the category of "other interests" in relation to the determination areas within the meaning of s 225(c) – On appeal Full Court said primary judge erred because ability of the public to access and enjoy the beaches and foreshores was neither a "privilege" nor an "other interest" - appellants appealed to the High Court - Allowing the appeals, the Court said confirmation of existing public access and enjoyment through legislation enacted in reliance on s 212(2) of the Native Title Act amounted to an "interest" in relation to land or waters within the meaning of the definition in s 253 of the Native Title Act and was therefore an "other interest" within the meaning of s 225(c) of that Act - The Justices reasoned differently on whether this was because the "interest" was a "privilege" or a "right".

Criminal law - Failure by accused to give evidence - Adverse inferences when disputed facts

Strbak v R [2020] HCA 10 - 18 March 2020. Successful appeal from the Court of Appeal of the Supreme Court of Queensland.

Under the common law of Australia, during a criminal trial (save in rare and exceptional circumstances), no adverse inference could be drawn by a jury (or the judge in a trial without a jury) from the fact that the accused did not give evidence - the principal issue before the Court was whether the decision in R v Miller [2004] 1 Qd R 548 ("Miller"), which permitted a sentencing judge, at a hearing of disputed facts following a plea of guilty, to more readily accept evidence or draw inferences invited by the prosecution in the absence of contradictory evidence given by the offender - Appellant did not give evidence at the sentencing hearing - Sentencing judge took into account the appellant's failure to give contradictory evidence before making findings adversely to her in relation to a number of contested facts, and concluded that she had inflicted the blunt force trauma causing death - High Court unanimously said Miller was wrongly decided. Given that a plea of guilty is a formal admission of each of the legal ingredients of the offence, and that the offence of manslaughter may be committed in a wide range of circumstances of varying implications as to culpability, the Court held that the appellant's plea of guilty to manslaughter did not relieve the prosecution of the obligation to prove the facts of its primary case without assistance from her - Appeal allowed, sentence quashed, and case remitted to the Supreme Court of Queensland for the appellant to be re-sentenced.

Murder - causation

Swan v R [2020] HCA 11 - 18 March 2020. Unsuccessful appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales.

Appellant and an accomplice were charged with the murder of 79-year-old K - K was an active man who was in apparently good health when the appellant and the accomplice attacked him after breaking into his home, causing severe injuries to his brain, face, kidneys and chest - Following the assault, K spent almost four months in hospital before being transferred to a high-level care facility - His mental and physical condition was so poor that he was unable to undertake, or comprehend, any daily living activities - Eight months after the assault, K suffered a fracture to the neck of his left femur. A decision was made not to operate on K and he died in hospital from the consequences of the fracture shortly thereafter -Whether appellant caused K’s death was a live issue at trial - There was no dispute on appeal that causation was satisfied where an accused's act was "a substantial or significant cause of death" or a "sufficiently substantial" cause of the death charged - High Court unanimously held that on the evidence it was open to the jury to convict the appellant. The Court dismissed the appeal.

Supreme Court of Canada

Canadian Charter – right to be tried within reasonable time

R v K.G.K [2020] SCC 7 (20 March 2020).  Unsuccessful appeal from Manitoba Court of Appeal.

Under section 11(b) of the Canadian Charter of Rights and Freedoms, anyone charged with a crime had the right to be tried in a reasonable time - In 2013, K.G.K. was charged with sexual crimes against a child. - His trial finished in January 2016 - trial judge took nine months to decide the case. In October 2016, he found K.G.K. guilty - The day before, K.G.K. asked for a stay of proceedings - He said that his case had taken longer than the usual 30-month maximum - He said the trial judge had taken too long to give his decision - In 2016, the Supreme Court of Canada decided R. v. Jordan - Jordan set out rules to decide how long was too long for a criminal trial - It said that most trials should finish either 18 or 30 months after a person was charged, depending on the type of trial - Crown argued that the time taken here was reasonable because K.G.K.’s case was “transitional” - It said the trial judge’s decision-making time did not count toward the time limit - The judge who dealt with K.G.K.’s stay request said the trial judge’s time should not be counted - A Court of Appeal majority agreed - All the Supreme Court judges agreed that the time a trial judge takes to decide a case does not count toward the time limit - The majority said at the time Jordan was decided, there was a real problem with delays in getting people to trial - The criminal justice system had become too accepting of those delays, but there was not any evidence of a problem with the time trial judges were taking to give their decisions - Jordan did not deal with that - Majority created a new approach to decide if a trial judge took too long to give their decision - It said that trial judges should be presumed to take only the time necessary to deliver a fair decision - Trial judges knew that criminal charges should be dealt with as quickly as possible - As the people dealing with all the evidence and arguments, they were in the best position to figure out how long they need to decide the case - If the accused could show that the trial judge took “markedly longer” than was reasonably necessary to make their decision, the proceedings will be stayed - Majority here said the trial judge took a long time, but not “markedly longer” than he should have - It also said the whole trial, and a lot of the time the trial judge took to decide, happened before Jordan came out - Majority said if this case had happened after Jordan, its decision would likely have been different - Besides the time the judge took, the majority said that any other delay in K.G.K.’s case was reasonable. This was because his case was “transitional.”

Hong Kong Court of Final Appeal

No decisions released during this period.

Judicial Committee of the Privy Council

No decisions released during this period.

Supreme Court of Ireland

No decisions released during this period.

Singapore Court of Appeal

No decisions released during this period.

Supreme Court of the United Kingdom

MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9 - 18 March 2020. Successful appeal from the Court of Appeal following decisions of two immigration tribunals.

Main issue was to what extent were immigration appeal tribunals (the tribunal) bound to accept the decisions of the National Referral Mechanism “NRM” on whether a person was a victim of trafficking - NRM was a process where “first responders” referred suspected trafficking victims to the Home Office – a process to put article 10 Convention on Action against Trafficking in Human Beings (ECAT) into practice – The second issue referred to the relationship between the individual’s rights under article 4 of the European Convention on Human Rights (ECHR) and the UK’s obligation under ECAT –MS was a Pakistani – He was subjected to forced labour, for which his step-grandmother received payment, and physical abuse – In 2013, NRM said there was no reasonable grounds to believe that he was a human trafficking victim – MS sought judicial review challenging that decision – He also unsuccessfully claimed asylum - leave to appeal granted as a result of judicial review application – This appeal was successful and the Secretary of State (SS) successfully appealed to the Court of Appeal – MS appealed to the Supreme Court – On the first issue the Court said The tribunal was not bound by the NRM for several reasons – 1) its jurisdiction: it was not able to judicially review NRM decisions; there was a fundamental difference between appeal and judicial review – 2) Tribunal appeals involved hearing evidence and making findings of fact on relevant matters in dispute – 3) The Tribunal’s role - its task was to decide whether the challenged decision was unlawful as incompatible with a Convention right or lawful – It did so on the basis of up-to-date facts – On the second issue the European Court of Human Rights (CHR) has said article 4 imposes positive obligations on the state to make domestic law compatible with ECHR obligations – The CHR has also said trafficking within the ECAT’s meaning fell within the scope of article 4 of ECHR – The Supreme Court here said it was not necessary to decide whether all obligations in ECAT where incorporated into the State’s positive obligations under the ECHR – Article 4 did not require operational measure of protection where the authorities were aware, or ought to have been aware of the risk that trafficking was occurring – It did not appear that MS had come to the attention of the police, secondly, he was removed from risk of further exploitation and the tribunal had decided that he would not be at further risk if he returned to Pakistan – However, there had not been an effective investigation into the breach of article 4 and this could not be done were MS to be removed to Pakistan - appeal allowed and Tribunal decision restored.

Supreme Court of the United States

Contract - discrimination

Comcast Corporation v National Association of African American-owned Media et al 589 U.S. 2020 - 23 March 2020.  Successful appeal from Ninth Circuit Court of Appeal.

Entertainment Studios Network (ESN), an African-American-owned television-network operator, sought to have cable television conglomerate Comcast Corporation carry its channels. - Comcast refused, citing lack of programming demand, bandwidth constraints, and a preference for programming not offered by ESN - ESN and the National Association of African American-Owned Media (collectively, ESN) sued, alleging that Comcast’s behaviour violated 42 U. S. C. §1981, which guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens” - District Court dismissed the complaint for failing plausibly to show that, but for racial animus, Comcast would have contracted with ESN - Ninth Circuit reversed, saying ESN needed only to plead facts plausibly showing that race played “some role” in the defendant’s decision making process and that, under this standard, ESN had pleaded a viable claim - Supreme Court said §1981 plaintiff bears the burden of showing that the plaintiff’s race was a “but-for” cause of its injury, and that burden remains constant over the life of the lawsuit - To prevail, a tort plaintiff typically must prove but-for causation. Normally, too, the essential elements of a claim remain constant throughout the lawsuit - Several clues, taken collectively, made it clear that §1981 followed the usual rules. The statute’s text suggested but-for causation: An ordinary English speaker would not say that a plaintiff did not enjoy the “same right” to make contracts “as is enjoyed by white citizens” if race was not a “but-for” cause affecting the plaintiff’s ability to contract - Court of appeals should determine in the first instance how the operative amended complaint in this case fared under the proper standard.

Last updated on the 26th March 2020