New Zealand Supreme Court

Self-represented litigants, lack of jurisdiction

Nottingham and ors v Real Estate Agents Authority and anor [2023] NZSC 51 (11 May 2023)

Unsuccessful leave application – Self-represented N, N and Mc K (applicants) applied for leave to appeal CA decision dismissing their appeal – Applicants appeal to CA under s 120 Real Estate Agents Act 2008 – Section 120(3) provided: “[t]he decision of the Court of Appeal on any appeal under this section is final” – Application for leave to appeal to SC dismissed for want of jurisdiction – Application dismissed.

Emotional distress, false imprisonment, breach of duty of care, ACC impact

Roper v Attorney-General and anor [2023] NZSC 49 (12 May 2023)

Successful appeal from CA, unsuccessful cross-appeal – HC dismissal of T’s claim for compensatory damages for wrongful imprisonment upheld –

T joined Royal New Zealand Air Force (RNZAF) in 1985 aged 18 – Stationed Whenuapai – Rank aircraftman, lowest non-commissioned rank – R her superior – At relevant time sergeant (three ranks higher than T) – T said R bullied, verbally abused, sexually harassed, inappropriately touched and falsely imprisoned her between 1985 and 1988 – Included indecently assaulting her while she was driving him home late at night and regularly locking her and leaving her in tyre cage – Said she complained about conduct, but RNZAF failed to do anything –

T filed civil proceedings in HC, pleading four causes of action: assault, intentional infliction of emotional distress, false imprisonment (against both R and RNZAF) and breach of duty of care as employer (against RNZAF) – Failed in HC but partially succeeded in CA – SC granted R and RNZAF leave to appeal against CA judgment in part and also granted T leave to cross appeal – Main issue before SC how accident compensation (ACC) regime applied to T’s claim –

SC unanimously dismissed cross appeal and allowed appeal – On cross appeal, SC agreed with CA that T had cover under 1982 and 2001 ACC Acts and this meant that her claim for compensatory damages barred under s 317(1)(a) and (b) 2001 ACC Act –

Allowing appeal SC said s 317 excluded any claim for compensatory damages – Section 317 effect that if assaults were material cause of mental injury, whether false imprisonment was also material cause was irrelevant – Section 317 engaged in either case – T could not sue for compensatory damages for false imprisonment – Appeal allowed, cross appeal dismissed.

Jury direction, lack of objection

W (SC 120/2022) v R [2023] NZSC 50 (12 May 2023)

Unsuccessful leave application – W sought leave to appeal against CA decision dismissing conviction appeal for violent and sexual offending against single complainant – Had been sentenced to 11 years imprisonment –

SC said W sought to reprise argument advanced in CA: trial Judge failed to give jury tailored directions regarding purpose of relationship evidence and use to which it could properly be put – Secondly, said CA wrong rely on lack of objection from “experienced trial counsel” and trial Judge’s experience when assessing whether failure to provide directions caused miscarriage of justice –

SC saw no risk of miscarriage of justice here – Application dismissed.

New Zealand Court of Appeal

Sentence appeals

Esfehani-Bahadori v R [2023] NZCA 146

Appellants convicted following police investigation, “Operation Maddale” – Significant methamphetamine (Class A drug) distribution syndicate – E sentenced to 5 years 6 months imprisonment for possession of methamphetamine for supply (x3) (at least 2.5kg) – S sentenced to 11 years imprisonment for possession of methamphetamine for supply (x2) (at least 2kg), money laundering, and subsequent offending while on electronically monitored (EM) bail – Whether sentences manifestly excessive – HELD: E’s sentence clearly not excessive and appeal dismissed – Money laundering charge supported sentencing Judge’s view that S’s role was at the upper end of lesser – Ample justification for selecting starting point a little above the bottom of band 5 in Zhang v R, but effective combined starting point of 14 years imprisonment was too high having regard to both totality and parity – S’s appeal allowed and sentence calculated adopting a 12 year starting point for totality of the offending, resulting in end sentence of 9 years 6 months imprisonment.

Counter-intuitive evidence - Login Required

Bruce v R [2023] NZCA 159

Successful appeal against conviction – B found guilty of 33 offences of violence and sexual violence following High Court jury trial – Sentence imposed 19 years imprisonment – Offending concerned five former partners of B – B’s case was that all of the sexual behaviour was consensual, or he had a reasonable belief in consent – Whether miscarriage of justice established – Principles in relation to counter-intuitive evidence (DH v R) – HELD: infraction of first principle (counter-intuitive evidence should not be linked to the circumstances of the complainant in the case in which the evidence is given) in prosecutor’s use of the word “uncanny” and explicit linkage between certain evidence – Error not subsequently remedied by prosecutor or Judge – Miscarriage of justice established – Appeal allowed and convictions quashed – Retrial ordered.

Appeal, further evidence

Bach v Serco [2023] NZCA 160

Successful application to adduce further evidence in support of appeal – B claimed was sexually assaulted by a prison officer during the course of a routine “pat-down” prior to visiting time when he was a serving prisoner – Not satisfied with Serco’s handling of his complaint, B filed judicial review proceedings – High Court dismissed claim – B wished to adduce further evidence on appeal in order to respond to one of the reasons given by the Judge – HELD: as a matter of natural justice, litigants should not discover when reading a judgment that their claim had been dismissed for reasons that were not addressed in the pleadings, evidence, or submissions – Interests of justice best served by allowing B to adduce his further brief affidavit – Application granted.

Civil procedure

D v Ministry of Social Development [2023] NZCA 164

Applications to add Attorney-General as a party – Benefits Review Committee (the Committee) made a decision on behalf of the Ministry of Social Development (MSD) about D’s disability allowance – D not given notice of hearing and the Committee decision was made in her absence – D brought judicial review proceedings and sought damages under the New Zealand Bill of Rights Act 1990 – HELD: to be named as a party to civil proceedings against the Crown, a government department had to be capable of being sued in its own name – MSD was not such a department – Attorney-General appropriate respondent under s14(2)(c) Crown Proceedings Act 1950.

New Zealand High Court

Sentencing, manslaughter

R v Sweeney [2023] NZHC 1095 (9 May 2023) Downs J

Sentencing – Cousins BS and FS sentenced together – BS on two charges: assault with intent to injure; and assault with weapon – FS manslaughter – BS two and a half years imprisonment – FS four years imprisonment.

Sentencing, murder

R v Vi [2023] NZHC 1118 (11 May 2023) Downs J

Sentencing – Murder – Family violence following earlier violence – Late guilty plea – Sentence: life imprisonment with 11 years and nine months MPI.

High Court of Australia

Breaking and “entering”

BA v R [2023] HCA 14 (10 May 2023)

Successful appeal from New South Wales CA – Concerned whether, to commit offence under s 112 of Crimes Act 1900 (NSW) by breaking and entering any dwelling-house and committing serious indictable offence therein, person must be trespasser, i.e., someone who entered premises without lawful authority –

BA and complainant in domestic relationship and apartment co-tenants under residential tenancy agreement – By about May 2019, relationship broke down – BA moved out, removed most possessions and ceased paying rent, but remained on lease as co-tenant – In July 2019, BA demanded to be let into locked apartment while complainant home – When complainant refused entry, BA kicked in door, grabbed complainant by shoulders, shook her, yelled at her, and seized her mobile phone and threw it on floor –

In New South Wales District Court BA pleaded guilty to common assault, intimidation and destruction of property but pleaded not guilty to offence contrary to s 112 – Trial judge directed not guilty verdict, saying Crown failed to establish essential precondition to liability because, as tenant at time of alleged offence, BA had right to enter and could not be guilty of breaking and entering into his own premises –

CA allowed appeal against BA’s acquittal saying entry into dwelling-house under pre-existing right to enter involved "break" if made without actual occupant’s consent or those entitled to occupy premises –

HC majority allowed appeal – Said composite elements of "breaks and enters" in s 112(1)(a) required trespass, being entry into premises of another without lawful authority – BA’s occupation right under tenancy agreement not mere permission to occupy qualified by purpose in entering apartment conduct causing damage to premises – BA had lawful authority to enter apartment by use of force that would constitute "break" in absence of such authority – Authority not conditioned on complainant's consent, nor removed by fact BA ceased to occupy apartment prior to residential tenancy agreement expiring – Appeal allowed.