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Supreme courts roundup, 21 to 27 February 2020

27 February 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

Sharma v R [2020] NZSC 12 (20 February 2020). Unsuccessful application for leave to appeal from the Court of Appeal.

The applicant sought leave to appeal on the basis his conviction on sexual violation by rape is inconsistent with the not guilty verdicts in the same trial on two charges of sexual violation by unlawful sexual connection – The applicant argued that the notion reasonable belief in consent in the first episode can co-exist with “no” and “stop” is a rape myth and that in relation to the first episode, the jury must have either not believed the complainant or believed her but not beyond reasonable doubt, and there was no evidence to make any difference in relation to the second episode – Whether the criteria for leave were met – Whether a question of public importance arose.

Ulrich v A-G [2020] NZSC 11 (20 February 2020). Unsuccessful application for leave to appeal directly from the High Court.

The HC determined that the applicant had not established a reasonably arguable case of a caveatable interest in a property – Whether the case is arguable turns on whether the applicant is a “successor” to the original owner under the offer-back provisions of the Public Works Act 1981 – The HC found that he was not - Williams v Auckland Council [2015] NZCA 479, (2015) – The applicant argued that a broader interpretation of “successor” than that in Williams should be adopted – Whether it was in the interests of justice to hear the appeal on a “leapfrog” basis.

High Court of Australia

No decision released during this period

Supreme Court of Canada

Newfoundland and Labrador (A-G) v Uashaunnuat (Innu of Uashat and of Mani‑Utenam) [2020] SCC 4 (20 February 2020). Unsuccessful appeal (majority) from the Court of Appeal from Quebec.

In 2013, two Innu First Nations, as well as a number of chiefs and councillors (Innu), filed suit in the Superior Court of Quebec against two mining companies responsible for a megaproject consisting of multiple open‑pit mines near Schefferville, Quebec and Labrador City, Newfoundland and Labrador, as well as port, railway and industrial facilities in Sept‑Îles, Quebec and railway winding through both provinces – The claimants seeking permanent injunction, damages and declaration that mining companies’ project violates Aboriginal title and other Aboriginal rights — Mining companies and Newfoundland and Labrador Crown seeking to strike portions of claim concerning property situated in that province — Whether Quebec courts have jurisdiction over entire claim — Civil Code of Québec, arts.3134, 3148.

S.H v R [2020] SCC 3 (19 February 2020). Unsuccessful appeal (majority) from the Court of Appeal for Ontario.

A majority view was that the evidence adduced by the Crown after the re-opening was essentially confirmatory of the evidence that had already been adduced by the Crown showing that the appellant had constructive possession of the drugs in question – The evidence led prior to the re-opening was overwhelming (majority) - Whether the Court of Appeal erred in applying the curative proviso to sustain the convictions.

Doonanco v R [2020] SCC 2 (18 February 2020). Successful appeal from the Court of Appeal of Alberta. Convictions put aside and a new trial ordered.

The Crown failed to disclose a Doctor’s report (Dr Glancy) before another Doctor (Dr Walker) completed her testimony – The Crown failed to cross-examine Dr Walker on the contents of that report – These factors interfered with the appellant’s ability to know the case she had to meet and make full answer and defence – Whether there was a miscarriage of justice.

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

DPP v F.E [2020] IESC 5 (26 February 2020). Successful appeal from the Court of Appeal. Order of the Court of Appeal quashed and replaced with sentence imposed by the Central Criminal Court.

The accused was the victim’s husband and after losing his job he became depressed – When sentencing the accused for the rape of his wife, the trial judge did not properly consider the extent of that contribution (depression) – The Court of Appeal reduced the sentence – Whether any error by the Central Criminal Court in sentencing was identified – Whether the alteration by the Court of Appeal accorded with the law.

Dwyer v The Commissioner of An Garda Sio [2020] IESC 4 (24 February 2020). Decision to refer questions to the CJEU under the provision of Article 267 on the Treaty on the Functioning of the European Union.

In the course of a trial of the respondent (Mr Dwyer) in respect of the murder of Ms O’Hara reliance was placed on evidence that linked Mr Dwyer to telephony data which identified the location at which those phones were on certain relevant occasions and, in respect of certain phones which were physically put in evidence, to link him to the content of certain communications which were found on those phones – The sole ultimate issue which this Court has to determine concerned the validity of s. 6(1)(a) of the 2011 Act – Whether s. 6(1)(a) of the 2011 Act was inconsistent with Article 15(1) of an earlier EU Directive, Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.

Singapore Court of Appeal

No decisions released during this period

Supreme Court of the United Kingdom

R v Secretary of State for the Home Department [2020] UKSC 7 (26 February 2020). Successful appeal from the Court of Appeal.

DN is a Rwandan national who had been granted refugee status but was subsequently convicted in the UK of certain offences - At the conclusion of DN’s imprisonment, the Secretary of State for the Home Department made a deportation order using powers conferred by the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (2004 Order) - On 31 January 2008, the Secretary of State for the Home Department, using its powers of administrative detention conferred by schedule 3, paragraph 2(3) of the Immigration Act 1971, made an order for the DN’s detention pending deportation - DN spent 242 days in detention pending deportation -DN brought a claim for judicial review of the deportation order, but the proceedings were stayed to enable the question of the legality of the 2004 Order to be resolved in EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] QB 633 - The Court of Appeal found that the 2004 Order was ultra vires and consequently unlawful - DN therefore amended his judicial review proceedings to concentrate on the lawfulness of the detention -  However, these proceedings were brought to a halt by the decision of the Court of Appeal in Draga. In light of the decision in Draga, it was agreed between the parties that the Administrative Court in this case was bound by the judgment of the Court of Appeal in R (on the application of Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842 (Draga) - It was therefore bound to find against DN on the question of whether his imprisonment was unlawful ab initio for public law error - DN appealed and the substantive appeal was heard by the Court of Appeal on 18 January 2018. The Court of Appeal dismissed the appeal, heard on 18 January 2018 – Whether Draga was correctly decided and whether the Court of Appeal in this case was, in fact, bound for the reasons it gave to follow Draga.

Supreme Court of the United States


McKinney v Arizona 589 U. S. _ (2020
)  (
25 February 2020). Unsuccessful appeal from the Supreme Court of Arizona.

The appellant was convicted by a jury on two counts of first-degree murder – After weighing aggravating and mitigating factors the trial judge sentenced him to death – Nearly 20 years later, the Ninth Circuit, on habeas review, held that the Arizona courts violated Eddings v. Oklahoma, 455 U. S. 104 by failing to consider, as a mitigating factor, McKinney’s posttraumatic stress disorder – On appeal the Arizona SC reweighed the aggravating and mitigating factors and upheld the sentence – Whether a state court of appeals, not a jury, can reweigh aggravating and mitigating circumstances on habeas corpus review in death penalty cases - Clemons v. Mississippi, 494 U. S. 738.

Rodriguez v Federal Deposit Insurance Corporation 589 U. S. _ (2020) (25 February 2020). Successful appeal from the United States Court of Appeals for the Tenth Circuit.

The internal Revenue Service (IRS) allows affiliated groups to file a consolidated federal return - If a dispute arises and the members have no tax allocation agreement in place, federal courts normally turn to state law to resolve the distribution question – Some courts have crafted their own federal common law rule, known as the Bob Richards rule (In re Bob Richards Chrysler-Plymouth Corp., 473 F. 2d 262) - The rule initially provided that, in the absence of an agreement, a refund belongs to the group member responsible for the losses that led to it - It has since evolved, in some jurisdictions, into a general rule that is always followed unless an agreement unambiguously specifies a different result – Soon after the United Western Bank suffered huge losses, its parent company was forced into bankruptcy – When the IRS issued the group a $4 million tax refund, the respondent receiver and the parent corporation’s bankruptcy trustee, petitioner Simon Rodriguez, each sought to claim it - A federal district court before the Tenth Circuit examined the parties’ tax allocation agreement, applied the more expansive version of Bob Richards, and ruled for the FDIC – Whether the Bob Richards rule is a legitimate exercise of federal common lawmaking.

Hernandez v Mesa 589 U. S. _ (2020) Unsuccessful appeal (majority)from the United States Court of Appeals for the Fifth Circuit.

The respondent,United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a cross-border incident– Mesawason U.S. soil and Hernández was on Mexican soil, having just run back across the border – Hernández’s parents claim he was playing a game with his friends – The Department of Justice investigation concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and declined to bring charges against him - The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico – The applicants unsuccessfully sued for damages in U.S District Court alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights pointing to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, in which the Supreme Court allowed a lawsuit seeking money damages from federal officials for violating the Constitution to go forward - Their appeal to the United States Court of Appeals for the Fifth Circuit was unsuccessful – The SC vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S – The Fifth Circuit again affirmed – Whether the ruling in Bivens could be extended to claims based on a cross-border shooting.

Last updated on the 27th February 2020