New Zealand Law Society - Courts roundup 1 May - 7 May 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Erwood v Minchin [2025] NZSC 45 (30 April 2025)
Unsuccessful recall application – Self-represented E sought recall of SC 27 March 2025 judgment dismissing application to appoint amicus curiae to assist preparing submissions on leave application –
SC said recall application substantially attempt to re-argue application to appoint amicus curiae – Application dismissed.
W (SC 17/2025) v New Zealand Police [2025] NZSC 46 (1 May 2025)
Unsuccessful leave application – W sentenced to eight months’ imprisonment after pleading guilty to exposing young person to indecent material under s 124A Crimes Act 1961 – Given sentence, automatically placed on Child Sex Offender Register (Register) –
Appealed unsuccessfully against sentence to HC – Given leave for second appeal to CA, impact on sentencing decisions of registration on Register – CA dismissed appeal, generally registration should only reduce sentences for child sex offenders in exceptional cases – Nothing exceptional about circumstances here – Sought leave to appeal to SC –
SC said whether threshold for making some allowance for registration properly characterised as “exceptional”, was question SC might wish to consider at some point – Premature for Court to address question here – CA saw threshold as one that applied “generally speaking” leaving open possibility of further development – Further, issue would be raised in something of factual vacuum where applicant completed term of imprisonment, release conditions had expired, and W accepted should be on Register – Also difficult to see registration would have impacted sentence here – No risk of miscarriage of justice if proposed appeal not heard – application dismissed.
D (SC 3/2025) v Allan [2025] NZSC 47 (1 May 2025)
Unsuccessful recall application – On 4 April 2025, SC dismissed self-represented D’s leave application – D applied to recall judgment – On 16 April, SC dismissed recall application –
D filed application to recall 16 April recall judgment, saying never filed first application for Court to reject – SC said did file recall application which was considered and dismissed – Further application dismissed.
Elliot v New Zealand Police [2025] NZCA 129
Unsuccessful appeal against conviction - E found guilty of one charge of theft over $1000 – E ordered to serve community based sentence and pay $5000 reparation to victim – E sought leave to bring second appeal against conviction on grounds of miscarriage of justice and both DC and HC failed to consider contract law under Contract and Commercial Law Act 2017 - Case should have been heard in civil jurisdiction not criminal jurisdiction – E employment advocate – Represented victim in personal grievance claim on a no fee no win basis, and if successful agreed payment would be 50 per cent of award – Dispute settled – Victim awarded $10,000 – E advised victim that Work and Income New Zealand would stop benefit and take award – E suggested award paid to firm and E pay portion of award in cash – Victim denied she received any cash payment even though receipt signed by E and victim recorded receipt of $10,000 in cash – High threshold for leave to be granted for second appeal – Usually restricted to grounds advanced in first appellate court – Advance of new grounds of appeal allowed if real possibility miscarriage of justice occurred at trial which went uncorrected on first appeal - DC had accepted contractual framework in which charge arose – Theft charge turned on subsequent factual dispute which was whether agreed amount paid to victim – Ample evidence that receipt did not reflect reality of situation – Arguments raised did not constitute grounds for granting leave – No matter of general or public importance – No miscarriage of justice – Application for leave to bring second appeal declined.
Tomar v Khatri [2025] NZCA 142
Unsuccessful application for recall of judgment declining T extension of time to appeal against order adjudicating him bankrupt – T claimed judgment was substantively wrong as K was permitted to submit fresh evidence without giving T an opportunity to respond, and judgment contained numerous factual inaccuracies which misrepresented case history – Fresh evidence related to earlier judgments for application to annul the bankruptcy and an application for leave to appeal an earlier decision – No reliance was placed on these and was relevant purely by way of history to application for extension of time – Judgment stands unless and until it is set aside – No alleged factual inaccuracies had been identified - Application for recall is limited in scope and not an opportunity to relitigate – Not a backdoor means of appealing - Application for recall is declined – No operative ground and was without merit.
Tomar v Khatri [2025] NZCA 126
Unsuccessful application by T for stay of Order prohibiting T from continuing existing litigation, bringing new proceedings, or filing applications against K in the HC unless he first pays outstanding costs awards in K’s favour totalling $98,998 – Order made by inherent power of HC - T sought stay pending outcome of his appeal and to enable him to pursue litigation against K in the interim without having to pay costs awards first - Legal principles for stays pending determination of an appeal guided by factors outlined in Keung v GBR Investment Limited – Not clear how allowing T to continue to litigate against K would assist him to challenge his bankruptcy – T’s appeal would not be rendered nugatory if stay not granted – T also raised concerns regarding conduct of counsel to assist the Court – Role of counsel to assist is to provide independent, impartial assistance to the Court – Impartiality does not equate to neutrality in the sense of having no position at all – Counsel to assist is entitled to set out their own views and analysis in respect of any issue before the Court in respect of which meaningful assistance can be provided – Their responsibility is not to avoid adopting a stance but to ensure that any stance is guided by objective legal analysis to assist the Court effectively - Stay application dismissed – Allegations regarding counsel to assist unfounded and do not disclose any matter that would justify counsel to assist being replaced.
Chen v Sun [2025] NZCA 139
Unsuccessful second appeal under s 303 Criminal Procedure Act 2011 (CPA) – C had sought leave from HC to bring first appeal on question of law under s 296 CPA – HC declined leave to appeal – As there was no determination of the first appeal by HC, CA had no jurisdiction to hear the application for leave to bring a second appeal - Application for leave to bring second appeal declined for want of jurisdiction.
[D] v R [2025] NZCA 110
[H] v R [2025] NZCA 114
[V] v R [2025] NZCA 122
[R] v R [2025] NZCA 134
Aitken v Judicial Conduct Commissioner [2025] NZHC 987 (29 April 2025) Isac J
Unsuccessful judicial review application – Judicial Conduct Commissioner recommended Attorney-General appoint Judicial Conduct Panel to inquire into matters concerning alleged conduct of serving District Court Judge, A (Judge) – Events giving rise to case took place in Northern Club, November 2024 – Judge briefly left private function attended by judges and their partners and interaction occurred with attendees of separate New Zealand First function –
On 10 February 2025, A sought judicial review of Commissioner’s decision; and interim orders preventing Acting Attorney-General from appointing Judicial Conduct Panel until A’s application for judicial review determined – HC granted interim orders on 17 February 2025 –
HC said none of alleged errors were made out – First, while Commissioner’s decision did not expressly set out any legal standard warranting consideration of judge removal, not error of law – Case involved single allegation of misconduct – Second, although Commissioner’s reasons briefly stated, sufficient to explain how reached conclusions – Third, decision based on sufficient preliminary examination – Finally, HC said Commissioner adequately determined initial scope of any eventual Panel inquiry – Application dismissed.
R v Jetson [2025] NZHC 1022 (30 April 2025) Eaton J
Sentencing – J pleaded guilty to murder – With three others involved in plan to rob victim – Victim lured to primary offender's address – J rendered victim unconscious but not present when weapon introduced or fatal blows administered – J and one co-defendant transported victim to car park with severe injuries while other two co-defendants cleaned up assault scene – J and two co-defendants drove to victim's address and burgled house – Victim vulnerable due to age and being heavily outnumbered – Robbery premeditated – J pleaded guilty before re-trial commenced, following form of sentence indication confirming life imprisonment would not be imposed – J aged 20 at time of offending –
HC said life sentence manifestly unjust due to J's youth at time of offending, low cognitive functioning and developmental, medical and behavioural issues at time of offending, as well limited role in murder, influence exerted on him by primary defendant, and lack of knowledge that weapon present – Finite sentence appropriate – Starting point 24 years' imprisonment adopted – 20 per cent deduction for youth and rehabilitative prospects, 15 per cent deduction for guilty plea, 15 per cent deduction for personal factors and mental health, one year deduction for time spent on EM bail – End sentence 11 years' imprisonment with six years’ MPI.
MB Technology v Orbis Blockchain Technologies [2025] NZHC 1012 (1 May 2025) Jagose J
Successful share register rectification – MBT ( incorporated in British Virgin Islands), primarily sought to enforce claimed entitlement to have its name entered in Orbis (New Zealand company, now formally renamed Orbis Technology (OT)) share register, because of payments under share subscription and transfer agreements respectively with Orbis and M and K (United Kingdom residents) – Also sought compensation, proportionate amount of dividends subsequently paid to shareholders, plus interest –
Alternatively, sought damages for breach of agreements – Also sought damages based on investment being obtained by OT misleading and deceptive conduct – Also sought transfer of some 113 worth of bitcoin cryptocurrency tokens –
HC said MBT's name wrongly omitted from OT share register – Share register rectification ordered – Because compensation for dividends paid to shareholders only claimed against OT, compensation for dividends received by M and K could not be awarded – However compensation could be awarded in respect of shares under subscription agreement, with interest – All other claims dismissed: investment not obtained by alleged conduct, and no agreement regarding transferring 113 bitcoin worth of tokens.
R v Perry [2025] UKSC 17 (30 April 2025)
Unsuccessful appeal from CA – Defence statement filed by accused in effectively every criminal case in Northern Ireland Crown Court – Purpose to set out nature and factual and legal basis of accused’s defence – In this appeal, certified question whether interpretation of defence statement question of law for trial judge –
P appealed against conviction for collecting or making record of information likely to be useful to terrorist, contrary to s 58(1)(a) Terrorism Act 2000 – Non-jury trial, certificate issued under section 1 Justice and Security (Northern Ireland) Act 2007 –
On 28 February 2018, police searched P’s house – Information subject of P’s conviction contained in coded notes handwritten on cigarette papers in perfume box found on bookshelf close to computer workstation – Prosecution case coded notes referred to individuals using ciphers and related to previous police search operation in 2015 which resulted in arrest and prosecution of Kevin Nolan for possession of firearms, ammunition and explosives – Nolan sentenced in 2017 –
P’s evidence at trial notes related to papers put through her letterbox anonymously shortly before Christmas 2017, she then made handwritten copies – P wrote on issues relating to policing and approaches made by MI5 – P considered papers were sent to her in connection with work – Although P could not make much sense of papers, concluded were sent to her as utility spent, could not recall why formed that opinion –
P’s defence statement referred notes being forwarded to P “some considerable time” after events leading to Nolan’s conviction and after sentence – In next sentence said: “Any currency in the information contained in the notes was considered by the Defendant to have long since dissipated” –
Judge concluded, among other things, “obvious meaning” of defence statement was P knew notes related to 2015 arms find and Nolan’s conviction in 2017 which was inconsistent with oral evidence notes made little or no sense – One of number of reasons judge gave for concluding did not believe P’s evidence about notes –
On appeal against conviction P contended judge’s interpretation of defence statement erroneous rendering conviction unsafe – CA considered issue of interpretation of defence statement to be one of law – Alternatively, if question of fact, CA said judge’s assessment of meaning of defence statement justified and indeed “irresistible” –
SC unanimously dismissed P’s appeal – Said whether interpretation of defence statement issue of law for trial judge or question of fact depended on nature of statement and purpose for which it is relied upon – Where issue as to legal effect of document, matter for judge – Where issue as to meaning intended or understood by parties, matter for jury –
In this appeal, issue was meaning of defence statement as P understood or intended– Issue of fact to be determined by jury (or, in non-jury trial, by judge) – Judge questioned P on how judge considered it would be understood by person reading defence statement – Raised question of fact – Would be very unusual for SC to disturb fact finding, especially when CA had confirmed finding – Appeal dismissed.
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