New Zealand Law Society - Courts roundup 10 August - 16 August 2023

Courts roundup 10 August - 16 August 2023

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

High Court Judges Bench

New Zealand Supreme Court

Judge recusal

D (SC 64/2023) v N (SC 64/2023) and ors [2023] NZSC 99 (8 August 2023)

Unsuccessful leave application – Self-represented D sought leave to appeal against CA President’s decision recorded in Minute dated 17 May 2023 – Dismissed applications to recuse three CA judges from dealing with 10 appeals D pursued – Some determined, and some President described as “at various points in the appeal process” –

SC said leave criteria in s 74 of Senior Courts Act 2016 not met – Application dismissed.

Time extension, judicial review, private prosecutions

Dunstan v Attorney-General and ors [2023] NZSC 100 (9 August 2023)

Unsuccessful leave application – Self-represented D sought leave to appeal CA decision refusing time extension to appeal against HC judgment dismissing judicial review of DC decision declining to authorise commencement of five private prosecutions –

SC said none of criteria for appeal in s 74(2) Senior Courts Act 2016 made out here – Proposed appeal turns on particular facts – No question of general or public importance – Nor did anything D raised give rise to appearance of miscarriage of justice – Application declined.

Share valuation

Smalley v Williamson and ors [2023] NZSC 101 (10 August 2023)

Unsuccessful leave application – Proposed appeal related to valuation of shares held in companies providing financial advisory and investment services in Christchurch – Shares were being sold to remaining shareholders following transfer notice S issued in September 2018 –

Sought leave to appeal against CA decision basically on basis that valuation wrong and courts below erred in principle when evaluating whether valuer had complied with terms setting out agreed valuation basis –

SC said case depended on particular facts therefore raised no issue of general or public importance or commercial significance – Nothing S raised suggested analysis in courts below in error or risk of miscarriage of justice – Application declined.

Evidence, reasonableness of verdict

Kuru v R [2023] NZSC 102 (10 August 2023)

Successful leave application – K submitted appeal raised three questions of general or public importance: (a) whether CA correctly assessed reasonableness of jury verdict; (b) whether admission and use of police officer’s evidence caused miscarriage of justice and, more generally, whether police officers providing expert gang evidence should be treated same way as any other expert; and (c) whether jury correctly directed on party liability – Application granted.

Manslaughter, sentence reduction

French v R [2023] NZSC 103 (10 August 2023)

Unsuccessful leave application – F pleaded guilty to manslaughter and sentenced to three years imprisonment, cumulative on seven years and two months imposed relating to earlier drug and firearms-related charges –

F appealed to CA against three-year sentence – CA allowed appeal and reduced sentence to two years six months – F sought leave for further appeal to SC to argue, if leave to appeal granted, that CA sentence reduction insufficient – Focus of proposed appeal discount for problems F faced in prison –

SC could not see CA having overruled earlier decisions – F’s submission overruling gave rise to matter of public importance not accepted – No appearance of miscarriage of justice in way CA addressed appeal against manslaughter sentence – It did after all allow appeal – Application declined.

Special plea. Previous conviction, Bill of Rights

Mitchell v New Zealand Police [2023] NZSC 104 (11 August 2023)

Unsuccessful appeal – On 19 September 2019, at 2:47 am, police pulled over M in Christchurch – Evidential breath alcohol test showed breath sample contained 649 micrograms of alcohol per litre of breath –

On 3 November 2019, M charged under ss 32(1)(b) and 56(1) Land Transport Act 1998 – Section 32(1)(b) charge M drove motor vehicle on road with breath containing alcohol while subject to zero alcohol licence – Section 56(1) charge M drove motor vehicle on road with breath alcohol level exceeding 400 micrograms of alcohol per litre of breath –

M attempted to plead guilty to both charges – However, DC judge however invited him to enter guilty plea to only one charge – Conviction was entered on s 56(1) charge and special “previous conviction” entered on s 32(1)(b) charge, under s 46(1)(b) Criminal Procedure Act 2011 – Section 46 said if “previous conviction” plea entered, court must dismiss charge if satisfied defendant has been convicted of (a) “the same offence as the offence currently charged, arising from the same facts” or (b) “any other offence arising from those facts” – (b) in issue in this appeal – Section 26(2) New Zealand Bill of Rights Act 1990 also relevant, providing: “No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again” –

On 10 February 2020, different DC judge said “previous conviction” plea applied to s 32(1)(b) – Said two offences—Ss 32(1)(b) and s 56(1)—shared common punishable act, “the defendant driving on a road having alcohol in his system and having drunk alcohol before driving” – Section 32(1)(b) charge later dismissed, and M sentenced on s 56(1) conviction –

Police appealed to HC – HC allowed appeal, saying judge erred to find “previous conviction” plea applied to s 32(1)(b) charge – Said two offences did not arise from “the same facts” as required for special plea –

M appealed to CA, but appeal dismissed – CA said fact two offences shared some common facts did not engage special plea in s 46(1)(b), and dual convictions under ss 32(1)(b) and 56(1) remained permissible and appropriate –

M appealed to SC – SC unanimously dismissed appeal – Said Court’s task to construe s 46 in light of its purpose and context, which included s 26(2) Bill of Rights – Section 46(1)(b) required examination of whether facts making second charge punishable substantially same as for first charge – Focus on whether physical acts committed (or omitted) rendered defendant liable under each charge were substantially same – Here, sufficient difference between common punishable acts meaning special plea clearly displaced – Appeal dismissed.

Self-represented litigant, judicial conduct

O’Neill v Judiciary of Auckland High Court and ors [2023] NZSC 105 (10 August 2023)

Unsuccessful leave application – Self-represented O’N filed application in HC styled as “an application to the head-of-bench, and formal complaint to same” – HC registrar referred application to HC Judge under r 5.35A of High Court Rules 2016 for consideration under r 5.35B – Rule 5.35B empowered judge to strike out or make other directions relating to proceeding if satisfied proceeding “plainly an abuse” of HC process – Judge then issued judgment striking out O’N’s proceeding –

Appealed to CA – Set down for hearing and, after O’N did not appear, set down for hearing again two days later – Failed to appear on second occasion – CA decided to deal with appeal on papers and dismissed appeal, giving reasons month or so later – CA upheld HC strikeout decision – CA approach mirrored way it dealt with another O’N appeal to CA –

O’N sought leave to appeal to SC – SC said not give leave to appeal unless satisfied that necessary in interests of justice to do so – Section 74(2) Senior Courts Act 2016 set out criteria –

No basis to contest findings of Courts below that HC application did not set out legal cause of action, did not adequately identify proposed defendants and, to extent related to particular judges, was confronted with absolute immunity from suit that judges had – If O’N wished to complain about judicial conduct within Judicial Conduct Commissioner’s jurisdiction, should direct complaint to Commissioner, not courts – Application dismissed.

New Zealand Court of Appeal

Admissibility of statements in police interview - Login Required

[M] v R [2023] NZCA 346

Trial counsel error

Papps v R [2023] NZCA 352

Being in possession of items with the intention of using them for manufacturing methamphetamine (Class A drug) (x7); being in possession of utensils for the purpose of consuming methamphetamine – Sentence imposed 7 months home detention and 100 hours community work – Whether miscarriage of justice established – Trial counsel (H) error – Whether sentence manifestly excessive – HELD: No miscarriage of justice because of certain words included in the question trail as would not have contributed to jury’s decision to find P guilty on some charges – Conceded there was insufficient evidence to support charges 10 and 11 – P justified in feeling aggrieved about aspects of H’s performance prior to commencement of the trial, but transcript revealed H challenged the Crown case with considerable vigour and delivered a persuasive closing address – No prospect a miscarriage of justice occurred – Sentence of community work appropriate, but sentence of home detention adjusted to 5 months to reflect fact P should not have been convicted on charges 10 and 11.

Conviction and sentence appeal

Horn v R [2023] NZCA 353

Sexual violation by rape – 5 years 11 months imprisonment imposed – Disabling charge dismissed at end of Crown case – Whether illegitimate prejudice associated with the evidence on disabling charge so significant H could not receive a fair trial – HELD: Jury did not need to be sure of the reasons victim was unable to give consent, only that she did not consent – Judge’s decision to dismiss charge did not mean all the evidence supporting the charge became inadmissible in tending to prove the rape charge – Noteworthy neither the defence nor the Judge considered it necessary to intervene to stop Crown counsel cross-examining H on the orange juice and what it might have contained – Judge not required to give a detailed or tailored direction at time he advised the jury charge one had been dismissed – Regrettable the Judge did not give more tailored directions in respect of the proper use the jury could put evidence that victim had been drugged, if they accepted that to be the case, but no miscarriage of justice – 10 percent discount for H’s poor health was generous and 10 percent discount for s27 Sentencing Act 2002 report not inadequate (causal connection not particularly strong) – Appeals dismissed.

Contract interpretation, insurance policy

Catherwood v Asteron Life Ltd [2023] NZCA 357

Unsuccessful appeal from decision rejecting C’s assertion that respondent insurer was in breach of a life insurance policy – C’s position that was entitled to payment of sum insured because, in early to mid-2019, he was “terminally ill” and the policy required treatments available to him be ignored which meant his life expectancy at the time was not greater than 12 months – At issue was the meaning of the words “regardless of” in the phrase “and regardless of any available treatment” found in the definition of “terminally ill” – Dictionary definitions and context considered – Noted contra proferentem rule did not assist – HELD: Words “regardless of” could bear two different meanings, “disregarding” and “despite” – Only reasonable interpretation available was that definition of terminally ill, construed objectively, was intended to take account of available medical treatment – Appeal dismissed.

Conviction and sentence appeal

Goodwin v R [2023] NZCA 358

Accessing a computer system for a dishonest purpose (representative) – Sentence imposed 350 hours community work and $52,010 reparation – G and his wife continued to take war disability pension payments paid to Mrs G’s father for just over 3 years after he died – Mrs G was formally discharged pursuant to s147 Criminal Procedure Act 2011 – Whether Judge erred in declining G permission to withdraw his guilty plea – Whether G given proper opportunity to advance an application for a discharge without conviction – HELD: G understood the bargain he reached with the Crown and was advised by experienced counsel (B) before the trial – G knew from B’s advice that without payment of reparation, he would not be discharged without conviction – G not able to point to a defence to the charge – No error in refusing G’s application to withdraw guilty plea – Factors of age and clean record insufficient for discharge without conviction given offending took place over 3 years, the amount taken was significant, no reparation paid, and no remorse – Appeals dismissed.

Fisheries Act, total allowable catch

Fisheries Inshore New Zealand Ltd v Royal Forest & Bird Protection Society of New Zealand Inc [2023] NZCA 359

Majority decision, Goddard J dissenting – Unsuccessful appeal concerning the 2019 total allowable catch (TAC) set for the East Coast tarakihi stock – 2019 TAC reduced the total allowable commercial catch by 10 percent, and implemented an industry rebuild plan – Forest & Bird successfully challenged the 2019 decision – Broad issues for determination were how to determine “appropriate period” within which the rebuild had to occur under s13(2)(b) Fisheries Act 1996 , and whether the Harvest Strategy Standard (HSS) specified a default probability standard for rebuild of 70 percent that was relevant to rebuilding plans for stocks below the “soft limit” – HELD: Necessary for the “period appropriate to the stock” under s13(2)(b)(ii) to be determined solely by reference to scientific factors – HSS did specify a default minimum acceptable probability standard for a rebuild plan of 70 percent – This standard, and the reasons for it, were implied mandatory considerations in setting the 2019 TAC – Appeal dismissed.

New Zealand High Court

Sentencing, murder, assault with intent to injure

R v Taumata [2023] NZHC 2099 (7 August 2023) Grice J

Sentencing – Jury found M guilty of one charge of murder and one charge of assault with intent to injure – Life imprisonment, MPI 10 years six months – Aggravating factors: extent of violence, vulnerability of victim, breach of trust, offending in home – MPI starting point 12 years – 12-month uplift for previous convictions – Global discount two years six months for personal mitigating factors, including low level of intellectual functioning and cognitive disability, and personal background, deprivation, societal cultural disconnection from te ao Māori and whakapapa, education difficulties, drug abuse, gang violence, lack of support – Assault with intent to injure, 14 months' imprisonment concurrent.

Sentencing, murder

R v Gu [2023] NZHC 2109 (9 August 2023) Moore J

Sentencing – Jury found G guilty of W’s murder – HC satisfied that s 104(1)(b) engaged but not s 104(1)(e) – Manifestly unjust to impose 17-year MPI as would not reflect available discounts for personal circumstances and totality – Notional starting MPI 16 years six months' considered to accurately reflect role and culpability in offending – Discounts: six months for status as foreign prisoner, and 28 months for time spent on pre and post-sentence detention – Total discounts 34 months from starting MPI of 16 years and six months, producing notional MPI 13 years eight months' imprisonment.

Interim injunction, life support treatment

Maharaj and ors v Te Whatu Ora of Auckland [2023] NZHC 2128 (9 August 2023) Eaton J

Unsuccessful interim injunction application – Patient placed on life support treatment following heart attack – Clinicians concluded no possible available treatment to address heart attack such that patient could survive without life support treatment – Intended to discontinue treatment – Family opposed course and wanted further opinions – Family sought interim injunction to prevent discontinuance of life support – Te Whatu Ora sought declaration discontinuing treatment lawful – HC said medical conclusion of continued treatment being inappropriate correct – No grounds for granting interim injunction – Not one of rare cases when court should act as arbiter of clinical decisions – Application dismissed.

Misleading conduct, Fair Trading Act

Commerce Commission v Vodafone New Zealand Ltd [2023] NZHC 2149 (11 August 2023) Moore J

Successful cross-appeal, unsuccessful appeal – On 16 November 2018, Vodafone New Zealand Ltd (Vodafone) pleaded guilty to nine representative charges of misleading conduct in relation to services pursuant to s 11 of Fair Trading Act 1986 (FTA) – Charges related to representations on website about availability of fibre-to-the-home broadband services (availability charges) –

On 23 April 2021, following Judge-alone trial, Vodafone convicted of nine further representative charges of misleading conduct under s 11 FTA – Related to branding and advertising of Hybrid Fibre Coaxial network (branding charges) –

On 14 April 2022, DC judge imposed $2,250,000 fine on all charges – Vodafone appealed convictions on branding charges and sentence imposed on all charges – Commission opposed Vodafone’s conviction appeal and cross-appealed sentence for manifest inadequacy –

Vodafone appeals dismissed – Commission's cross-­appeal against sentence allowed – $2.25M fine quashed, Vodafone ordered to pay $3.675M.

High Court of Australia

Trans-Tasman proceedings, state court jurisdiction

Zurich Insurance Company Ltd and Anor v Koper and Anor [2023] HCA 25 (8 August 2023)

Unsuccessful appeal from New South Wales CA – Concerned Trans-Tasman Proceedings Act 2010 (Cth) (TTPA) application to proceedings in State jurisdiction – TTPA implemented bilateral agreement relating to trans-Tasman court proceedings – Section 9 TTPA permitted initiating document Australian court issued relating to civil proceeding to be served in New Zealand, without need for court to give leave or be satisfied of any connection between proceedings and Australia – Section 10 TTPA provided service of initiating document in New Zealand under s 9 had same effect as if document had been served in place of issue –

K registered proprietor residential unit in Auckland, New Zealand apartment block designed and constructed by Brookfield Multiplex Constructions (NZ) Ltd (BMX NZ) – K, as representative of other unit registered proprietors, obtained judgment against BMX NZ in New Zealand HC for defective building design and construction – K afterwards and again as representative of other registered proprietors, brought proceedings in New South Wales SC against ZIC, BMX NZ insurers, seeking leave to bring substantive proceedings against them under s 4 Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) (Claims Act) –

Section 4 Claims Act entitled claimant with contractual claim against insured person to bring proceedings in New South Wales court to recover from that person's insurer amount of any indemnity payable under insurance contract – Appeal argued on basis that K’s entitlement to bring proceedings against ZIC in New South Wales SC depended on whether claims against BMX NZ in New Zealand HC could be brought in SC – Whether notional proceedings could have been brought depended, in turn, on whether BMX NZ could have been served with originating process SC issued and whether service would have been effective through ss 9 and 10 TTPA –

HCA unanimously rejected ZIC’s argument that ss 9 and 10 TTPA could not validly apply to initiating document SC issued relating to civil proceeding in matter in State jurisdiction – Said, subject to Constitution, process service in proceedings involving exercise of jurisdiction by State court within legislative power of Commonwealth Parliament under s 51(xxiv) of Constitution, regardless of whether jurisdiction to be exercised by State court federal or State jurisdiction – Appeal dismissed.