New Zealand Law Society - Courts roundup 12 June - 18 June 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
H (SC 1/2024) v R [2025] NZSC 62 (10 June 2025)
Successful appeal – Concerned how young person transferred out of Youth Court to HC because of more serious charge on which then found not guilty - Should be dealt with on remaining charge that could have been disposed of in Youth Court – Issue turned on s276A Oranga Tamariki Act 1989, which provided where circumstances or reasons for transfer no longer applied, and charge is within Youth Court’s jurisdiction, proceeding went back to Youth Court unless interests of justice required otherwise –
H, 17 years old at time, and T were with group of young people – Group involved in fight with another group – Towards end of fight, T stabbed victim P – H ran in, kicked P, and fled scene – Stab wound proved fatal –
T charged with murder – H charged in Youth Court with injuring with intent to cause grievous bodily harm – Sometime later, H charged alongside T as party to murder – Because of murder charge, both charges against H transferred to HC – Injuring charge reduced to injuring with intent to injure and H pleaded guilty to that charge – At trial, T found guilty of murder, but H not guilty – H convicted and discharged in HC and declined permanent name suppression – CA dismissed appeal against both determinations –
SC said remaining charge should have been transferred back to Youth Court – Interests of justice did not require proceeding be retained in HC – SC said consequence of non-transfer was conviction which would not otherwise have been entered, constituting miscarriage of justice – Discharge without conviction substituted – Permanent name suppression allowed as would have applied in Youth Court – Appeal allowed.
Rafiq v Auckland Transport [2025] NZSC 63 (11 June 2025)
Unsuccessful application to waive filing fee – Self-represented R applied for review of Registrar’s refusal to waive filing fee for application to recall SC judgment of 26 March 2025 dismissing leave application – SC Judge said Registrar decision correct.
P v R [2025] NZCA 226
Jia v Yang [2025] NZCA 231
Appeal by appellant J against judgment granting respondents summary judgment in respect of a claim for repayment of a $3,000,000 loan plus interests and costs - Clause 20 of the contract provided for payment upon completion of the parties’ development scheme and once “shareholder dividends are payable and paid” - The relevant companies were put into liquidation - Associate Judge Brittain concluded the loan was repayable as a matter of construction or, in the alternative, it was appropriate to imply a term to make it repayable upon liquidation of the companies – Whether on the proper construction of the loan agreement, the loan became repayable on liquidation of the companies - Whether a term is appropriately implied requiring repayment upon liquidation of the companies -
It was not considered that the reference to shareholder dividends included liquidator distributions – Upon liquidation, a dividend was no longer capable of being “payable” or “paid” – It was not regarded as an available construction that the qualifying event is satisfied simply because, as a matter of law, satisfaction is impossible – That construction would delete the second precondition from Clause 20 – There was a significant lacuna in the contract – The case stands or falls on whether a term is appropriately implied to fill that lacuna - Implication of a term requiring repayment upon liquidation is essential to give effect to the reasonable expectations of the parties, objectively determined - The loan was for a significant sum and it was acknowledged it was never intended to be a gift - The proposed term is not unreasonable or contrary to the explicit terms of the contract and the alternative would be to leave a benevolent creditor to face a significant loss which does not make commercial sense within the context of the acknowledged favour granted to J by respondents – Appeal dismissed.
Fitzgerald v R [2025] NZCA 232
Appeal against sentence of three years and three months' imprisonment - F was convicted by a jury on one charge of theft by a person in a special relationship, three charges of using a document with intent to obtain a pecuniary advantage and one charge of theft – F appealed on grounds that the Judge was wrong to sentence him based on the amount stolen being $162,400 as it was submitted that this was a higher amount than the evidence could support, Judge overemphasised the breach of trust and victim’s vulnerability and did not recognise that the victim was partly to blame for choosing to trust F, and 10 to 15 per cent discount should have been given for personal mitigating circumstances –
No error in the Judge’s assessment of the amount - The seriousness of the breach of trust was relevant to the assessment of the offending and in the circumstances, choosing to trust the appellant did not mitigate the offending - A modest reduction on rehabilitative grounds may have been appropriate, but it would only offset the generous adjusted starting point - There was no error in the end sentence – Appeal dismissed.
The retrospective deeming effect s330(2) effectively reinstated Scott Forestry as a party from the outset of the proceeding – When Scott Forestry was struck-out, elements of its proceeding or claim, including its claim and the relief it sought, were struck-out - The purposive reading of s56(4) was required and the strike-out decision was a final determination in respect of its proceeding and claim for Scott Forestry – The application for leave to appeal was declined as leave to appeal was not required – Scott Forestry’s applied for extension of time to bring the appeal which was granted.
R v Cameron [2025] NZHC 1505 (10 June 2025) Dunningham J
Sentencing – C sentenced to life imprisonment for murdering 83 year-old P – Only question MPI – Starting point 12 years – Two-year deduction for guilty plea and personal factors including mental impairment – End MPI ten years.
Re Taueki (Ngāti Tamarangi) [2025] NZHC 1488 (9 June 2025, re-issued 13 June 2025) Grice J
Concerned applications under Marine and Coastal Area (Takutai Moana) Act 2011 (Takutai Moana Act) for recognition of customary marine title (CMT) in takutai moana – CMT recognition order gives holder certain rights in relevant area, including permission rights under Resource Management Act 1991 – However, public rights of access, navigation, and fishing expressly preserved under Takutai Moana Act – CMT area cannot be alienated or otherwise disposed of –
Hearing area from northern bank of Rangitīkei River to Whareroa (north of Paekākāriki), included offshore Kapiti Island and its islets – Six applicants made claims for recognition of CMT in various parts of takutai moana –
Final determinations recognised five applicant groups met test for CMT – Entitled to either shared exclusive or exclusive CMT over various parts of takutai moana in hearing area.
Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23 (11 June 2025)
Successful appeal from Victoria CA – Concerned definition of "improvements" in s2(1) Valuation of Land Act 1960 (Vic), to determine land site value – Issue whether "the effect of the work done or material used increased the value of the land" determined: at time of valuation; or at time work done or material used (that is, at time "improvements" made or constructed on land) –
“Landene” two-storey brick residence constructed in Queen Anne style in 1897 on St Kilda Road, Melbourne - Land on which Landene located (Land) surrounded by mostly commercial and residential development of much greater height and scale, reflecting zoning of Land and area surrounding it as “Commercial” - At time of relevant valuations, 1 January 2020 and 1 January 2021, Land subject to heritage overlay, which meant permit required to demolish or remove Landene –
CA said "the effect of the work done or material used increases the value of the land" to be determined at time work done, when "improvements" made to or constructed on Land – Consequently CA dismissed Valuer-General's appeal against Victorian Civil and Administrative Tribunal (VCAT) orders setting aside Valuer-General's decisions to adjust Land site value by $6,200,000 to $2,925,000 at relevant times –
HC unanimously allowed appeal – Said CA’s construction contrary to text, context and purpose of definition of "improvements" and, on analysis, would be impossible to apply in any practical way – Here, effect of “improvements”, being heritage overlay, effectively reduced land value from what it would be without that overlay and being bare land – Appeal allowed.
Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 23 (11 June 2025)
Extradition ruling following both parties’ application - On 23 September 2020, Circuit Court in Lodz sought A’s extradition to Poland to serve two-year penalty imposed for four connected fraud offences committed between 2007 and 2008 - Penalty initially suspended for five years, but then ordered to be implemented in full following A’s failure to comply with suspension conditions –
Following arrest in London on 21 January 2023, A opposed extradition on basis would disproportionately interfere with right to respect for private and family life under article 8 European Convention on Human Rights (ECHR) - Relied on possibility that, if succeeded in application under Polish Penal Code, would not have to serve remainder of sentence - District judge ordered A’s extradition to Poland to serve two-year sentence – HC dismissed appeal - However, in light of divergent approaches in the lower courts, HC certified two points of law of general public importance relating to relevance of possibility of early release in Poland –
A remanded in custody from day of arrest and as a result, by 21 January 2025, before expedited hearing in UK Supreme Court, A had served equivalent of entire sentence Polish Court imposed - Polish judicial authority withdrew extradition warrant and SC ordered A’s discharge - Nevertheless, on both parties’ application SC decided to hear appeal to determine points of law HC certified –
SC unanimously determined, save in rare cases, article 8 ECHR assessment in extradition cases should take account only of bare possibility of early release under Polish Penal Code and accord little weight to it - Said in most cases, extradition would interfere with exercise of requested person’s right to respect for private and family life under article 8 ECHR but would be necessary and proportionate interference.
R v Kinamore [2025] SCC 19 (13 June 2025)
Successful appeal from British Columbia CA – Concerned whether social media messages between accused and complainant evidence of complainant’s sexual history and therefore presumptively inadmissible - Messages contained references to complainant’s virginity as well as prior indications of sexual disinterest in accused – SC also asked to clarify rules for when Crown, rather than accused, used evidence of complainant’s sexual history –
K and complainant met at motorcycle shop and exchanged messages for a few months - Later met at K’s apartment - Afterwards, K charged with sexual assault - Both complainant and K testified at trial - Complainant described sexual assault - K described consensual sexual encounter - Crown tendered evidence of prior messages between complainant and K - In many messages, complainant repeatedly stated did not intend to have sexual relationship with K –
Trial judge found K guilty of sexual assault - K appealed conviction, saying trial judge erred to admit Crown-led evidence of prior communications between parties without voir dire – CA dismissed appeal, ruling communications not presumptively inadmissible because complainant’s social media messages indicating disinterest in sexual activity with accused fell outside exclusionary rule governing complainant’s sexual history during sexual offence trials – K appealed to SC –
SC unanimously allowed appeal - Said sexual inactivity evidence (encompassing evidence complainant has not previously engaged in, or preferred not to engage in, any sexual activity, certain types of sexual activity, or sexual activity under particular circumstances) formed part of complainant’s sexual history and thus presumptively inadmissible – New trial ordered – Appeal allowed.
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