New Zealand Law Society - Courts roundup 11 June - 17 June
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MB v R [2026] NZSC 76 (11 June 2026)
Successful appeal against conviction – MB convicted on 11 charges of serious sexual offending against C when MB was 36 and C was 15 – Appeal concerned Crown's use of counter-intuitive evidence (admitted by agreed statement under s 9 Evidence Act 2006, covering delayed reporting, grooming, coercive control and reasons for non-disclosure to caregivers) and Judge's failure to give adequate directions per DH v R – Heard with TW v R –
First ground counter-intuitive evidence – Court held prosecutor's use of the evidence in cross-examination of MB was problematic, putting specific paragraphs of the agreed statement to him "in relation to the facts here" to highlight similarity between his conduct and described offender behaviour (grooming, manipulation, threats) – Closing address similarly linked specific paragraphs to C's evidence, inviting jury to reason her account was more likely true because her behaviour matched the counter-intuitive evidence – Held this was impermissible diagnostic use contrary to DH v R, and use of "grooming" terminology in this diagnostic way compounded the error – Judge failed to give the mandatory direction that the jury must not treat C's behaviour as itself indicative abuse occurred, and did not intervene during the problematic cross-examination – Error assumed greater significance given the agreed statement's probabilistic language and its references to offender characteristics – Crown did not argue the Court could be sure the verdicts were correct – Held likely to have affected the result on this ground –
Second ground further examination-in-chief after EVI – Prosecutor's extensive additional questioning of C after her evidential video interview was played was said to be needlessly repetitive and impermissibly leading – CA had found some repetition but no unfairness – SC agreed, holding the leading questions were used legitimately to orient the witness to topics already in evidence before open questions were asked and some elicited proper fresh detail – No miscarriage arising from this ground –
Appeal allowed on the first ground, convictions quashed, retrial ordered.
TW v R [2026] NZSC 77 (11 June 2025)
Successful appeal against conviction (3–2) – TW convicted on five charges of sexual offending against his son and sentenced to 12.5 years imprisonment, reduced to 9 years 10 months by CA – CA dismissed conviction appeal – SC appeal argued counter-intuitive evidence (admitted by consent under s 9 Evidence Act 2006) misused by Crown in closing and Judge failed to give proper DH v R direction – Heard with MB v R which restates governing principles – Majority found agreed statement strayed beyond DH v R by describing abusers in probabilistic terms and detailing normal victim behaviour rather than confining itself to relevant misconceptions – Crown's closing referred to the evidence twice – First reference not itself problematic but second impermissibly linked the evidence to the complainant's account inviting jury to treat delayed/incremental disclosure as supporting credibility – Judge omitted mandatory DH v R direction and his own direction risked diagnostic use – Cumulative errors created reasonable possibility of different outcome in a pure credibility contest with no independent evidence – Miscarriage found, convictions quashed, retrial ordered –
Dissent (Ellen France and Kós JJ) – Agreed the probabilistic description of abusers in the agreed statement and the second closing reference were errors per DH v R but considered them immaterial given counter-intuitive evidence had only marginal relevance once the real defence (family dysfunction, fabrication) emerged – Would have dismissed the appeal.
Lanauze & Ors as Trustees of the Moriori Imi Settlement Trust v Attorney-General [2026] NZCA 244 (10 June 2026)
Unsuccessful appeals against strike-out of Declaration E and refusal of interim relief – Imi Moriori are original inhabitants of the Rēkohu group of islands – Longstanding dispute predating the Treaty between Imi Moriori and Ngāti Mutunga over customary rights and interests in the Chatham Islands – Crown entered Agreement in Principle 2022 and initialled Deed of Settlement December 2025 acknowledging Ngāti Mutunga as tangata whenua and recognising enduring customary interests through conquest – Imi Moriori sought declaration it would be unlawful for the Crown to transfer interests in henu or tangible miheke to Ngāti Mutunga and interim orders preventing Crown action recognising Ngāti Mutunga tino rangatiratanga –
Declaration E, though framed as a challenge to executive power, would dictate to the Crown what it could put before Parliament and plainly offends the principle of non-interference – Neither Elias CJ's dissent in Ngāti Whātua Ōrākei Trust v Attorney-General 4 nor Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd mandated a different response – Crown recognition of Ngāti Mutunga tino rangatiratanga may have immediate existential effect on Imi Moriori status in tikane Moriori and immediate consequences under Resource Management Act 1991 and Marine and Coastal Area (Takutai Moana) Act 2011 but targeted relief directed to those specific effects might in principle be available – Declarations (a)–(d) as to Imi Moriori customary rights can proceed if repleaded to avoid breach of non-interference principle – Appeals dismissed.
Nicholls v Nicholls [2026] NZCA 234 (4 June 2026)
Unsuccessful application for leave to appeal – Parties married in 1988, separated in 2022, and involved in relationship property proceedings concerning substantial assets held through trusts and companies – FC made interim distribution order releasing approximately AUD $4M of silver assets held through accounts with Perth Mint to the respondent wife – Applicant husband appealed and sought stay – HC partially granted stay, limiting respondent’s access to NZD $2M for housing, household items, legal expenses and living costs, but otherwise allowing interim distribution order to operate – HC subsequently declined leave to appeal the partial stay order –
Applicant argued FC erred in treating the silver as relationship property, maintaining it was owned by a company established during the parties relationship –
Applicant failed to identify arguable error of law or fact in the HC stay decision – Proposed grounds merely repeated arguments concerning ownership of silver assets that were relevant to the substantive appeal rather than stay application – Any alleged error lacked sufficient public or general importance and was not of sufficient significance to justify a second appeal – Substantive HC appeal was scheduled to be heard within weeks, making further delay unwarranted – Interests of justice favoured prompt resolution of relationship property dispute – Application for leave to appeal dismissed.
Solicitor General v Leef [2026] NZHC 1628 (11 June 2026)
Solicitor-General appeal – Respondent had pled guilty to displaying gang insignia in a public place contrary to s 7(1) Gangs Act 2024 – DC directed forfeiture to the Crown but not destruction, indicating it allowed possible return to the respondent –
Appeal successful – Section 7(3)(b), which states forfeited insignia to be destroyed or “otherwise disposed of”, did not allow return to the offender – DC order quashed – Matter remitted for lawful disposal.
R v Berg [2026] SSC 19 (5 June 2026)
B was convicted of sexual assault after trial judge accepted the complainant’s evidence that she did not consent and rejected B's claim of consensual intercourse – Appealed on grounds that trial judge failed to resolve inconsistencies and improperly used evidence - Saskatchewan CA dismissed the appeal – SC also dismissed the appeal confirming that a conviction must rest on proof beyond reasonable doubt, not on preferring one witness’s evidence over another –
Discussion on how trial judges should evaluate conflicting testimonial evidence – Clarified judicial use of leading case R. v. J.J.R.D stating it was about whether a trial judge’s reasons were detailed enough to allow an appeal court to review the decision but should not be used when assessing an accused person’s evidence in a criminal trial or directing the jury.
Commissioner of Taxation v Bendel [2026] HCA 18 (10 June 2026)
Unsuccessful appeal from Full FC – Concerned whether unpaid present entitlements (UPEs) owing by discretionary trust to corporate beneficiary constituted "loans" for purposes of Div 7A of Income Tax Assessment Act 1936 (Cth) –
Trustee of a discretionary trust resolved during the relevant income years to set aside trust income for a corporate beneficiary – Trust deed provided amounts set aside ceased to form part of general trust fund and were thereafter held on separate trust pending payment – Amounts remained unpaid –
Commissioner issued amended assessments on basis UPEs constituted provision of credit, financial accommodation, or transactions which in substance effected loans under s 109D(3) – Commissioner contended beneficiary's failure to require payment amounted to loan to trustee –
AAT set aside assessments – Full Court dismissed Commissioner's appeal, holding UPEs did not constitute loans for Div 7A purposes –
HC dismissed appeal – Held trust deed validly created separate trusts over amounts set aside for corporate beneficiary, with result that no debtor-creditor relationship arose between trustee and beneficiary – Failure to demand payment did not amount to provision of credit or financial accommodation and was not a transaction which in substance effected a loan – Appeal dismissed.
Abdel-Hady v Commonwealth of Australia [2026] HCA 17 (10 June 2026)
Answer to question of law – Commonwealth and its officers have no defence to liability for tort of false imprisonment with respect to immigration detention of plaintiff –
A, Austrian citizen, detained under s 189(1) Migration Act 1958 (Cth) following visa cancellation – A's thrombophilia rendered him medically unfit to travel by commercial aeroplane – No real prospect of removal from Australia in reasonably foreseeable future – NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs re-opened and overruled Al-Kateb v Godwin – Effect that ss 189(1) and 196(1) invalid in application to unlawful non-citizens with no real prospect of removal – Commonwealth accepted elements of tort of false imprisonment established and vicarious liability for detaining officer – Propounded novel common law defence to negate liability for period prior to NZYQ on basis officer acted in purported performance of statutory duty in conformity with Al-Kateb –
Proposed defence unanimously rejected – No development of common law can be inconsistent with constitutional principle – Recognition would subvert foundational constitutional principles of judicial authority and executive responsibility – Would transform executive’s duty to comply with law into common law immunity from consequences of action subsequently determined to have exceeded legal limits.