New Zealand Law Society - Courts roundup 12 October - 18 October 2023

Courts roundup 12 October - 18 October 2023

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

High court sign with beehive reflection 1

New Zealand Supreme Court

Self-represented litigant, recall, recusal

Jones v New Zealand Bloodstock Finance and Leasing [2023] NZSC 133 (11 October 2023)

Unsuccessful applications for judgment recall and Judge recusal – Self-represented J applied to recall SC judgment of this Court delivered on 2 August 2023 (declining leave to appeal) and for leave to adduce further evidence, recusal of Judges, stay of execution and further directions –

SC said recall exceptional procedure – Nothing raised here warranted recall – Applications dismissed.

New Zealand Court of Appeal

Sexual violation, fresh evidence

Smith v R [2022] NZCA 448

Successful application to adduce fresh evidence – Unsuccessful appeal against conviction on two charges of sexual violation by unlawful sexual connection – Sentenced to 6 years 3 months’ imprisonment – Whether evidence of complainant unfairly repeated – Whether defendant received inadequate advice – HELD: some questions by Crown counsel were leading but no miscarriage of justice arose – Not inappropriate or unfair – Both parties willing to adduce fresh evidence on counsels’ advice to defendant – No error or failure to give appropriate and adequate advice – Application to adduce fresh evidence granted – Appeal dismissed.

Prior acquittal evidence

Williams v R [2022] NZCA 553

Unsuccessful appeal against conviction for two representative charges of unlawful sexual connection and one charge of doing an indecent act on a young person – Sentenced to 11 years’ imprisonment – Whether acquittal propensity evidence was wrongly held to be admissible at defendants re-trial – Whether, if the evidence was admissible, the standard of proof for the jury’s assessment of the acquittal propensity evidence ought to have been beyond reasonable doubt – Whether evidence given by complainant’s mother about W’s sexual behaviour towards her amounted to inadmissible propensity evidence which ought not to have been admitted – HELD: principle, confirmed by the Supreme Court in Fenemor, that prior acquittal evidence admissible was not displaced in this case by the factual differences between that case and the present – Standard of proof for admissibility of propensity evidence was on the balance of probabilities – Error in admission of the mother’s evidence without a propensity direction had not led to an unfair trial – Appeals dismissed.

Lease, jurisdiction, declaratory relief

Whai Rawa Railway Lands LP v Body Corporate 201036 [2023] NZCA 490

Successful application for leave to appeal HC decision dismissing applicant’s strike out claim – Respondent sought to vary the amount of ground rent payable to the appellant, seeking a declaration that the rental clause was harsh or unconscionable – Whether HC had jurisdiction to vary the lease by way of declaratory relief – Contended that the respondent’s claim was untenable and reliant on a misapplication of provisions in the Residential Tenancies Act 1986 (RTA) and Unit Titles Act 2010 (UTA) – HELD: Judge should have determined the statutory interpretation issue as was an issue which potentially had broader significance than the present case – Submission that findings on the scope and meanings of the relevant provisions of the UTA and RTA were likely to have significant ramifications for ground lessors and lessees connected with unit title developments throughout New Zealand – High threshold recognised in Greendrake v District Court of New Zealand crossed – Application for leave to appeal granted.

Employment, strike action

Public Service Association, Te Pūkenga Here Tikanga Mahi v Te Whatu Ora – Health New Zealand [2023] NZCA 492

Unsuccessful application for leave to appeal decision of Employment Court concerning the legality of proposed strike action – Leave sought to appeal two prior judgments in respect of an application for an interim injunction – Applicant notified strike action – DHBs considered the only outstanding matters between the parties related to pay equity matters and filed an urgent interim injunction application and strike was injuncted – Substantive matter subsequently heard by the Full Court – Whether the Court erred in conclusion that: (a) bargaining about pay equity during collective bargaining was unlawful without employer’s consent; or (b) strike action relating to pay equity issues raised in collective bargaining was unlawful – HELD: Court properly applied settled authority in reaching its determination on the dominant purpose question, considered the evidence before it and the available parliamentary materials, and undertook a comprehensive analysis of the legislative scheme – Judgment not susceptible to criticism as having reached an incorrect legal or factual outcome on the basis of the material before it – Application for leave to appeal declined.

Sexual offending

B (CA 589/2022) v R [2023] NZCA 499

Unsuccessful appeal against conviction and sentence of 10 years 3 months’ imprisonment for five charges of sexual offending – Whether the Judge failed to put the defence case properly in summing up – Whether the Judge made impermissible use of counter-intuitive evidence presented at trial – Whether discount on sentence of 15 percent for personal and cultural background sufficient – HELD: Judge made it clear to the jury what offending the appellant did and did not acknowledge in the summing up, and no substance to this ground of appeal – Judge directed jury appropriately regarding counter-intuitive evidence – Judge did not err – Discount on sentence within available range – Appeal dismissed – Name suppression for appellant continued to protect the identity of the complainant.

New Zealand High Court

Sentencing, murder

R v Komene [2023] NZHC 2850 (11 October 2023) Venning J

Sentencing – K murdered former partner – Section 104 Sentencing Act 2002 not engaged – History of domestic violence – Starting point 13.5 years minimum period of imprisonment (MPI) – Early guilty plea, limited remorse – Life imprisonment and 11 years MPI.

High Court of Australia

Unreasonable jury verdict, expert evidence

Lang v R [2023] HCA 29 (11 October 2023)

Unsuccessful appeal from Queensland CA – Two grounds raised on appeal: first, whether jury verdict unreasonable (unreasonable verdict ground), second, whether forensic pathologist opinion evidence inadmissible as not based on expert knowledge (expert evidence ground) –

Deceased 68 years old when died from blood loss from stab wounds to abdomen – Injuries inflicted in early hours of 22 October 2015 while lying in bed in apartment – L and deceased only people in apartment at time of death – Accepted at trial in Queensland Supreme Court and on appeal that in circumstances only two possibilities: either L murdered deceased or suicide – Prosecution's case L murdered deceased – To support case, prosecution relied on evidence from pathologist over L's objection – Ruled on by trial judge in pre-trial hearing that deceased's wounds more likely inflicted by another person than self-inflicted – L convicted and sentenced to life imprisonment –

CA unanimously dismissed L’s appeal – On unreasonable verdict ground, said guilty verdict not unreasonable – On expert evidence ground, CA said no error in trial judge's ruling that pathologist could give expert opinion evidence at trial – L granted leave to appeal to HC –

On unreasonable verdict ground, HC unanimously said jury verdict not unreasonable and dismissed appeal ground – Said, taken as whole, evidence admitted at L’s trial sufficient for jury to exclude as reasonable hypothesis that deceased died by suicide –

On expert evidence ground, HC majority said admitting pathologist’s evidence involved no "wrong decision of any question of law" (Criminal Code (Qld), s 668E) – Opinion that wounds more likely inflicted by another person than self-inflicted substantially founded on specialised knowledge within field of forensic pathology – Expert evidence ground also dismissed.

Supreme Court of Canada

Constitutional law, Federal Environmental Impact Assessment Scheme

Reference re Impact Assessment Act [2023] SCC 23 (13 October 2023)

Partly successful reference from Alberta CA – Related to constitutionality of federal environmental assessment scheme under Impact Assessment Act (Act) – SC asked to consider whether Act and one of its regulations went beyond Parliament’s legislative authority under Constitution –

Alberta’s Lieutenant Governor referred two questions regarding scheme to province’s CA – First, asked whether Act unconstitutional, in whole or in part, as being ultra vires under Constitution – Second, asked whether regulations unconstitutional, in whole or in part, because they applied to matters entirely within provincial legislative authority under Constitution – CA majority said Act and regulations ultra vires Parliament and therefore entirely unconstitutional –

Attorney General of Canada appealed to SC – SC majority allowed appeal in part – Said ss 81 to 91 not challenged – However, scheme balance, “designated projects” portion, ultra vires Parliament thus unconstitutional for two overarching reasons – First, not directed at regulating “effects within federal jurisdiction” as defined in Act, because these effects did not drive scheme’s decision-making functions – Second, defined term “effects within federal jurisdiction” did not align with federal legislative jurisdiction – Overbreadth of these effects exacerbates constitutional frailties of scheme’s decision-making functions –

Wagner CJ said “[e]nvironmental protection remains one of today’s most pressing challenges. To meet this challenge, Parliament has power to enact a scheme of environmental assessment. Parliament also has the duty, however, to act within the enduring division of powers framework laid out in the Constitution” – Also Wagner CJ said “it is open to Parliament and the provincial legislatures to exercise their respective powers over the environment harmoniously, in the spirit of cooperative federalism”, adding that “both levels of government can exercise leadership in environmental protection and ensure the continued health of our shared environment.”

Judicial Committee of the Privy Council

Banking, customer identity disclosure

Stanford Asset Holdings Ltd and anor v AfrAsia Bank Ltd [2023] UKPC 35 (10 October 2023)

Successful appeal from Mauritius SC – In February 2022, following alleged fraud, over USD $11 million transferred from account belonging to Stanford Asset Holding (SAH) Limited at AfrAsia Bank Limited (AfrAsia) to bank account of Key Stone Properties Limited (Key Stone) – Approximately USD $4 million remained in Key Stone account and had been frozen – Remainder had been transferred into accounts of unknown third parties – SAH applied to compel AfrAsia to disclose information about identity of recipients of any of allegedly misappropriated funds – Application objective to trace, freeze and recover funds –

Mauritius SC refused relief sought, setting aside SAH application – SAH granted final leave to appeal to PC –

Among other things, PC said relevant civil authorities investigating alleged fraud and had wide range of statutory powers to obtain information for that purpose – However, not wrong for Court to afford appropriate and proportionate assistance to fraud victim to pursue their own civil remedies, or that Court should only do so where cause for complaint about how public agencies are performing their duties – No criticism of public authorities – Public authority investigating suspected fraud not same as fraud victim seeking to recover their money – Interests, priorities unlikely to be identical; nor in any event might authority’s special powers be relevant where crime proceeds no longer in jurisdiction – Disclosure orders granted – Appeal allowed.

Lawyer Listing for Bots