New Zealand Law Society - Courts roundup 13 April - 19 April 2023

Courts roundup 13 April - 19 April 2023

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

High court sign with beehive reflection 2

New Zealand Supreme Court

NZBORA, extended supervision

R (SC 64/2022) v Chief Executive Department of Corrections [2023] NZSC 31 (11 April 2023)

Successful leave application – Approved question how does New Zealand Bill of Rights Act 1990 affect exercise of court’s discretion to renew Extended Supervision Order when individual concerned also subject to Compulsory Care Order?

Rape, consent, propensity evidence

Holmes v R [2023] NZSC 33 (13 April 2023)

Unsuccessful leave application – Following DC retrial jury found H guilty of three charges of rape (one of which was representative), two charges of sexual violation by unlawful sexual connection, and one charge of male assaults female – Sentenced to 15 years six months imprisonment on lead sexual offences – Nine years, two months (or approximately 60 per cent of sentence) MPI imposed – CA dismissed appeals against conviction and sentence –

H in relationship with sole complainant – Had child together – Relationship lasted around two years – Relevant events occurred during relationship –

H had three potential grounds for conviction appeal – First related to nature and quality of consent – Second, (related), ground challenged content of counter-intuitive evidence discussed above – Third challenges admissibility of propensity evidence –

SC not satisfied question of general or public importance arose or risk of miscarriage on any ground advanced – Also, no issue of principle or risk of miscarriage arising from sentence imposed – Application dismissed.

New Zealand Court of Appeal

Sentence appeal - Login Required

C (CA 388-2022) v R [2023] NZCA 99

Sentence appeal

Rawiri v R [2023] NZCA 104

Successful application for leave to appeal sentence of 27 months imprisonment – R convicted following guilty plea of 11 charges including breaching a sentence of intensive supervision (x3), as well as several driving and firearm offences – HC considered lower starting point of 3 years appropriate, but considered credit for guilty plea should not have been at the maximum, and rejected argument that a discount should have been allowed on account of R’s age (aged 24 at time of offending) given R’s extensive criminal history so end sentence not manifestly excessive – Whether miscarriage of justice – HELD: Arguable a full discount for guilty plea appropriate despite long delay between charges being laid and guilty plea, given proceeding appeared to be significantly disrupted by the Covid pandemic – R never given any discount for approximately 10 months spent on electronically monitored (EM) bail without incident – Arguable end sentence manifestly excessive – Leave to appeal granted.

High Court of Australia

Investment disputes, ICSID Convention, Australian court jurisdiction

Kingdom of Spain v Infrastructure Services Luxembourg S.À.R.L. & anor [2023] HCA 11 (12 April 2023)

Unsuccessful appeal from Full Court FCA – Related to interpreting Convention on Settlement of Investment Disputes between States and Nationals of Other States (1965) (ICSID Convention) – Issue whether, and to what extent, entry by foreign State into ICSID Convention, and agreement to Arts 53, 54 and 55, constituted waiver of foreign State immunity under Foreign States Immunities Act 1985 (Cth) (Act) from Australian court processes concerning recognition and enforcement of arbitral awards –

ISL relying on Energy Charter Treaty (1994), commenced arbitral proceedings against Kingdom of Spain (Spain) under ICSID Convention – ISL obtained award of €101m and brought proceedings in FCA to enforce award under International Arbitration Act 1974 (Cth), which gave effect to ICSID Convention in Australia – Issue whether Spain waived foreign State immunity under ss 9 and 10 Act, which said foreign State immune from jurisdiction of Australian courts except where submitted to jurisdiction by agreement (including by treaty) –

Primary judge said Spain's agreement to Arts 53, 54 and 55 waived immunity from recognition and enforcement, but not from execution of award – Spain ordered to pay ISL €101m with interest – On appeal, Full Court said immunity from recognition waived, but immunity from court execution processes (and perhaps also from enforcement) had not – New orders made, including for award to be recognised as binding and for judgment to be entered against Spain for €101m –

HC unanimously dismissing appeal said as Spain subject to binding ICSID award, agreement to Arts 53, 54 and 55 ICSID Convention amounted to waiver of foreign State immunity from jurisdiction of Australian courts to recognise and enforce, but not to execute, award – Appeal dismissed.

Ministerial delegation, unreasonable, unlawful

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & ors; DCM 20 v Secretary of Department of Home Affairs & anor [2023] HCA 10 (12 April 2023)

Successful appeals from Full Court FCA – HC majority said Ministerial instructions to departmental officers regarding Commonwealth executive power (Ministerial Instructions) and purported officer decisions complying with Ministerial Instructions exceeded Commonwealth executive power –Purported to instruct officers to make decision which legislation stipulated only Minister could personally decide –

Ministerial delegate refused D and DCM (D) visa applications – Administrative tribunal affirmed refusal – D requested Minister exercise power under s 351(1) Migration Act 1958 (Cth) (Act) to substitute more favourable decision for tribunal's adverse decision "[i]f the Minister thinks that it is in the public interest to do so" – Under s 351(3), power only exercised by Minister personally –

Ministerial Instructions instructed departmental officers not to refer such requests to Minister unless satisfied case had "unique or exceptional circumstances" – Officers not satisfied – Following Ministerial Instructions, Department finalised D’s requests without referral –

At first instance and on appeal to Full Court, D unsuccessfully argued departmental officers' decisions legally unreasonable – Full Court refused leave to raise new ground alleging Ministerial Instructions unlawful –

HC granted D leave to appeal on both unlawfulness and unreasonableness grounds – HC said power conferred personally on Minister by s 351(1) comprised two distinct decisions, each involving non-delegable exercise of statutory power: (1) procedural decision to consider or not to consider whether to make substantive decision; and (2) substantive decision to substitute or not to substitute, in public interest, more favourable decision – Minister, exercising executive power under statute, could not delegate either of these decisions to departmental officers –

HC said broad criterion of "unique or exceptional circumstances" in Ministerial Instructions required, in effect, departmental officer to evaluate public interest and make decision entrusted exclusively to Minister – Ministerial Instructions exceeded s 351(3) limitation imposed on Commonwealth executive power – Decisions purportedly complying with Ministerial Instructions therefore unlawful –

HC said because departmental officers' decisions not decisions made under Act, appeals not excluded from Federal Court jurisdiction of under s 476A(1) and accordingly not excluded from HC appellate jurisdiction under s 73 Constitution – Appeals allowed.

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