New Zealand Law Society - Courts roundup 10 September - 16 September 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Johnson v R [2026] NZCA 435 (11 September 2026)
Unsuccessful application by J for leave to bring a second appeal against conviction – J convicted at trial of one representative charge of common assault arising from an altercation at a farm – J sentenced to community work – J’s first appeal to the HC against conviction was dismissed although his appeal against sentence succeeded in part –
Conviction appeal turned on whether the trial judge should have given a s 122(2)(c) Evidence Act 2006 reliability warning regarding the complainant farmer's evidence – Farmer's alleged motive to minimise his own culpability (having threatened J with a firearm which was captured on video) - Osborne J in HC held no direction was necessary because the farmer's reliability and possible motive to lie were squarely before the jury via extensive cross-examination and the judge's summing up - CA held that whether a reliability warning was required was fact-specific to the case and not a matter of general or public importance - No miscarriage of justice was likely to occur and noting the jury had already acquitted J on three of the four charges –
Application for leave to bring a second appeal against conviction declined.
R v Tumaialu [2026] NZHC 2750 (9 September 2026)
Sentencing for manslaughter – T pleaded guilty after stabbing victim once with a knife during mutual physical confrontation at a boarding house, causing victim's death –
Starting point of 6.5 years, having regard to use of weapon, resulting death, victim's vulnerability as a fellow resident and minor premeditation involved in bringing knife to confrontation – Starting point increased by 4 months for offending being committed while T subject to sentence and continuation of history of violent offending –
Guilty plea entered at second trial callover, after disclosure of pathologist's report and confirmation of fitness to plead (20 per cent reduction for guilty plea) - Held disclosure of evidence relevant to determining whether guilty plea was entered at "first reasonable opportunity" for purposes of ss 9H and 9I Sentencing Act 2002 – Further 10 per cent reduction for T's background and mental health, reducing culpability to some degree –
Sentenced to 4 years 10 months' imprisonment – No MPI imposed – Although community protection was potentially relevant, Parole Board was better placed to determine community protection on release – Subject to first warning under three strikes regime.
In the Petition of DM [2026] UKSC 32 (9 September 2026)
Father applied under the Hague Convention for the return to the United States (Florida) of 14 year old child (H) wrongfully retained in Scotland – Mother (M) opposed return under art 13(b) Hague Convention, contending she faced a real risk of suicide if the children returned without her and that her death would expose the child to extreme psychological harm or an intolerable situation – M had history of mental health difficulties and suicide attempts, and the Lord Ordinary found a real risk that she might die by suicide if the children were returned without her, causing them extreme psychological harm – H strongly wished to return to Florida –
Legal issue on appeal was whether the child’s views could be considered in determining the art 13(b) defence; how an alleged risk of parental suicide should be assessed; and whether, once grave risk was established, the Court could nevertheless order return in the exercise of discretion –
Appeal dismissed unanimously – H’s views were capable of being considered under art 13(b), but were not determinative and did not address or mitigate the decisive risk arising from M’s possible suicide – Only reasonable conclusion was that return created a grave risk of psychological harm which H could not reasonably be expected to tolerate –
A child should ordinarily have an opportunity to be heard where appropriate to age and maturity, but the Court determines the weight of the views, including whether they are authentically the child’s own – An alleged suicide risk required especially careful examination – Even a small probability may amount to grave risk where the prospective harm is exceptionally serious – Question of whether grave risk exists was binary, not “borderline” – Once established, Court must give the most anxious consideration to why the child should nevertheless be exposed to harm that the child could not reasonably be expected to tolerate – First-instance Judge had not done so –
Inner House’s order refusing return affirmed, although it had erred in excluding H’s views from the art 13(b) assessment – In re E (Children) (Abduction: Custody Appeal) applied –
Appeal dismissed.
R v B-C 2026 SCC 30 (11 September 2026)
Unsuccessful appeal against Ontario CA decision – CA reduced B-C's conditional sentence to 20 months as a remedy for unreasonable post-verdict sentencing delay contrary to s 11(b) Canadian Charter of Rights and Freedoms (CCRF) (trial within a reasonable time) –
B-C was found guilty of sexual assault in October 2021, with sentencing proceedings not concluding until December 2022 – Applied for stay of proceedings, arguing the delay breached s 11(b) – Trial judge held post-verdict sentencing delay was subject to a 5 month presumptive ceiling under Ontario CA authority R v Charley and dismissed the application, finding net delay of just under 4 months – CA revised the delay calculation, found 5 month ceiling exceeded, s 11(b) infringed, and reduced B-C's sentence to 20 months as an enhanced mitigating factor – B-C appealed to SCC seeking a stay, the Crown cross-argued the presumptive ceiling approach itself was wrong –
SC found no separate presumptive ceiling should be imposed for post-verdict sentencing delay, overruling R v Charley – Sentencing is an individualised, information-dependent process of variable length and complexity, making it ill-suited to a fixed ceiling – Correct test for post-verdict sentencing delay is whether the time taken was markedly longer than it reasonably should have been in all the circumstances, consistent with the standard applied to trial delay and to verdict deliberation time – Assessment is contextual and objective, informed by factors including overall duration of delay, complexity of the case, information explaining specific periods of delay, parties' conduct, and comparison with comparable cases having regard to local circumstances –
Found CCRF s 24(1) confers broad remedial discretion – Remedy ordinarily appropriate for unreasonable post-verdict sentencing delay is a reduction in sentence, with a stay of proceedings reserved for exceptional cases –
Applying correct test, SC found sentencing proceedings in this case did exceed what was reasonably necessary, and CA's reduction of B-C's sentence to 20 months was a proper and proportionate remedy –
Appeal dismissed.
Haines (by his litigation guardian) v Attorney General of NSW [2026] HCA 34 (9 September 2026)
Successful appeal against NSW CA decision extending H's status as a forensic patient – Appeal allowed by consent following a concession by the Attorney-General –
H had been a forensic patient since 2017 following a finding of unfitness to be tried – NSW SC dismissed A-G's application for a second extension order as not satisfied to high degree of probability under s 122(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) of either limb s 122(1)(a), that H posed an unacceptable risk of serious harm, or limb s 122(1)(b), that the risk could not be adequately managed by less restrictive means –
A-G appealed on two grounds, the first concerning the SC Judge’s treatment of expert evidence, the second concerning how the SC Judge had approached the statutory test in s 122(1)(b) – CA rejected first ground of appeal but allowed appeal on second ground, treating it as common ground that s 122(a) was satisfied to the requisite standard – On appeal to HC, A-G conceded this finding was incorrect, since s 122(a) had been substantially disputed before the SC judge and decided in H's favour –
HC accepted A-G’s concession, finding that it was not common ground that s 122(a) had been satisfied – Determination of remaining issues would have no practical utility given the concession –
Appeal allowed, CA orders set aside.
Coal Mining Industry (Long Service Leave Funding) Corporation v Orica Australia Pty Ltd [2026] HCA 30 (9 September 2026)
Successful appeal from Full Federal Court – Whether Orica's shotfirers were "eligible employees" under Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) for the purposes of the portable long service leave scheme – Whether exclusion in cl 4.3(g) Black Coal Mining Industry Award 2010, for the supply of shotfiring services by an employer not otherwise engaged in black coal mining industry, applied to the "location limb" of the definition –
Orica employed shotfirers who worked at open-cut black coal mines in NSW and Queensland, using explosives to expose coal seams for extraction – Primary judge held shotfirers were "eligible employees", but Full FC allowed Orica's appeal, holding they were not –
HC allowed appeal – Held definition of "eligible employee" contained distinct "employer" and "location" limbs, with requirement that employee be employed by an employer engaged in the black coal mining industry applying only to employer limb – Under location limb, relevant employees were those whose duties were carried out at or about a place where black coal was mined and were directly connected with the day to day operation of a black coal mine –
The cl 4.3(g) exclusion did not apply to location limb - Orica's shotfirers were "eligible employees" and covered by the statutory long service leave scheme – Cross-appeal by Orica dismissed –
Appeal allowed and Full FC's orders set aside.
Inter IKEA Systems C-298/23 (8 September 2026)
In 2022 right wing political party Vlaams Belang publicised its Belgian asylum and immigration reform plan under the title “IKEA-PLAN - Immigratie Kan Echt Anders”, using signs corresponding to IKEA trade marks and imagery resembling IKEA assembly instructions – Inter IKEA brought infringement proceedings against Vrijheidsfonds, which had conducted the campaign – Vrijheidsfonds admitted using the marks without consent but argued that its political expression, including alleged political parody, constituted “due cause” under EU trade mark law – After a preliminary ruling the case was appealed to the CJEU on the issue of whether reliance on freedom of expression was sufficient to establish due cause for a third party’s unauthorised use of a trade mark with a reputation, and how the national court must assess that defence –
CJEU held that reliance on freedom of expression was insufficient – Third party must identify specific grounds connecting the use of the mark with the exercise of that freedom and demonstrate that those grounds take precedence over the proprietor’s rights and interests – IKEA is an acronym made up of proper names: Ingvar Kamprad (the founder of Ikea) Elmtaryd (the name of his family farm) Agunnaryd (the nearby parish where it was located) – Court determined it was not therefore a word element with a semantic meaning that would justify use by a third party – National Court must balance the proprietor’s right to property and commercial interests against the third party’s freedom of expression and interests; neither right was absolute –
Relevant considerations included whether the mark was used in good faith; whether the expression concerns the mark, its proprietor, its commercial practices, goods, or services; whether the use contributed to a debate in the public interest; the intensity, extent, and methods of use; the detriment caused to the mark or proprietor; and the risk that the public may infer the proprietor’s agreement with or support for the political message – A proprietor need not tolerate use causing disproportionate detriment or impairing the substance of the exclusive rights conferred by registration –
It was uncontested that the IKEA trademarks, which already had a reputation, were used by Vrijheidsfonds in the context of a debate on asylum and immigration policy – CJEU (subject to the referring Court) noted that this debate had no connection to the IKEA trademarks and the use of them in that context was merely “riding on their coat-tails” – Inter-IKEA argued the use of their trademarks in this context ran counter to its political neutrality – The marks and visual identity were reproduced closely, repeatedly and online –
Final decision was that use of the IKEA marks was capable of causing significant detriment to their reputation and to the proprietor’s interests – Use solely to exploit the marks’ reputation to reinforce and disseminate a political message did not appear to outweigh the proprietor’s rights and interests, subject to verification by the referring Court – Referring Court must determine, by applying that balancing exercise, whether the use was supported by due cause.
State of New Mexico v Sandoval; In re Aarons Supreme Court of New Mexico No. S-1-SC-40845 (9 September 2026)
New Mexico Supreme Court fined defence attorney A USD$5,000 for submitting a brief by ChatGPT containing fake police testimony, wholly fabricated witnesses and misrepresentation of legal authority – A used ChatGPT to prepare an appeal and signed and filed the brief without checking its factual assertions or authorities and failed to disclose the errors to the client – A did not tell the client about the order-to-show-cause proceedings or provide the related pleadings – Court found that A displayed a lack of remorse and concern for the client –
A was in direct contempt of court and was referred to the Disciplinary Board, barred from appearing before the Court pending the disciplinary process, and ordered to pay USD$5,000 to the State Bar of New Mexico Client Protection Fund within 30 days – Court appointed the Law Office of the Public Defender to provide new counsel, struck the existing briefs, and directed that a new briefing order issue after replacement counsel entered an appearance.