New Zealand Law Society - Courts roundup 13 August - 19 August 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
G v G [2026] NZSC 111 (14 August 2026)
Unsuccessful application for leave to appeal – CA had declined applicant an extension of time to file applications for leave in the CA, arising from FC proceedings concerning a protection order and parenting order made in favour of respondent – Applications for leave to appeal to CA filed around 12 months out of time –
CA found delay significant and inadequately explained, that respondent would suffer some prejudice from an extension, that issues raised were important to the parties but not of general or public importance, and that proposed appeals did not raise a question of law – CA noted absence of a question of law was "fatal" to the protection order appeal, which is confined to questions of law under s 179 Family Violence Act 2018 –
SC applied the settled extension of time test from Almond v Read – Found CA had already given applicant leeway as a self-represented litigant, while also noting his legal training and familiarity with civil procedure – Held a year's delay was properly treated as significant and potentially dispositive given the child's welfare was engaged – Found the passage of time meant the appeal would in any event be overtaken by subsequent FC decisions with more up to date information –
SC held the CA's assessment was only required to be impressionistic at the extension of time stage, per Almond v Read, and found no error given the relevant law was "well-settled" and applicant's contentions turned on adverse factual findings rather than points of law –
Leave criteria under s 74 Senior Courts Act 2016 not met – Respondent made no submissions (citing lack of resources), so no question of costs arose –
Application for leave to appeal dismissed.
CS (SC 29/2026) v R [2026] NZSC 107 (14 August 2026)
Unsuccessful application for leave to appeal – Applicant convicted of historic serious sexual offending against a family member committed when complainant was aged 6 to 11 – Applicant sought to reprise CA argument that a covertly recorded phone call between applicant and complainant, made with police advice and assistance, was inadmissible and caused a miscarriage of justice – Evidence had been adduced without objection via agreed statement of facts, raising potential trial counsel error –
SC accepted there was an available argument recording was inadmissible under Elliot v R principles, and that the "not plainly inadmissible" test and basis for challenging agreed-fact evidence on appeal may benefit from clarification – SC found this was not an appropriate vehicle to resolve those questions –
Applicant gave a voluntary police interview one week after the recording, and SC found inferences available from that interview were co-extensive with, or not materially different from, those available from the recording – Explained why experienced trial counsel did not object to the recording's admission – Arguably unfair that interview occurred without applicant being told of the recording, but this made no practical difference to the outcome –
SC held there was no real risk the trial outcome was affected by admission of the recording, so leave criteria under ss 74(1) and (2) Senior Courts Act 2016 not met –
Application for leave to appeal dismissed.
Butterfield v R [2026] NZSC 106 (13 August 2026)
Unsuccessful application for leave to appeal – Applicant convicted of refusing to give a blood sample after police checkpoint stop – Applicant argued breach of NZBORA rights and sought exclusion of evidence, sentence reduction, and permanent name suppression –
DC found applicant arbitrarily detained under s 22 New Zealand Bill of Rights Act 1990 (NZBORA) when returned to checkpoint, and that officer's act of pulling a drink bottle from applicant's hand was a "very minor and somewhat inconsequential" assault – DC and CA both held no causal link between these breaches and applicant's refusal to undergo evidential testing, so evidence remained admissible – No breach of ss 23(1)(b) or 23(5) NZBORA found –
CA upheld 6 month disqualification, declining to substitute a community-based sentence, and upheld refusal of permanent name suppression on the basis applicant had not shown "extreme hardship" –
SC declined to revisit DC's factual findings, which had been confirmed by CA – SC found no arguable miscarriage of justice and no question of general or public importance under ss 74(1) and (2) Senior Courts Act 2016, on conviction, sentence, or name suppression grounds –
SC continued interim name suppression for a short period to allow applicant to prepare for publication of his name –
Application for leave to appeal dismissed.
Scott v R [2026] NZSC 104 (12 August 2026)
Successful application by S for extension of time to apply for leave to appeal against CA dismissal of appeal against conviction, with leave to appeal to SC granted on that question –
Approved question for substantive appeal was whether CA correct to dismiss appeal against conviction –
SC directed Registrar to convene teleconference with counsel addressing two preliminary matters ahead of substantive hearing: (1) whether further evidence should be admitted concerning the practicalities of takedown orders in relation to prejudicial material available online, including "snippets" said to exist in this case; and (2) whether interested parties should be permitted to intervene in appeal – Counsel directed to file memoranda on these issues in advance of conference –
No reasons were given addressing merits of conviction appeal itself; the judgment is confined to procedural directions ahead of substantive hearing.
Robb v R [2026] NZCA 363 (7 August 2026)
Successful second appeal by R against a sentence of 26 months' imprisonment for burglary, theft, receiving and associated driving and dishonesty offending – Leave to bring second appeal granted given significance of arithmetical error –
R's offending included stealing vehicle worth $35,000, two petrol drive-offs, unlawfully entering enclosed yard, dangerous driving during a police pursuit that endangered other road users, failing to stop to ascertain injury and burgling a property to steal a vehicle and tools worth $50,000 – Sentencing Judge adopted 18-month starting point for lead burglary charge, applied a 14-month uplift for balance of offending (total starting point 32 months), allowed a 25 per cent guilty plea discount and a 10 per cent discount for rehabilitative prospects, before rounding to 26 months –
On first appeal, Grice J admitted a Hōkai Tapuwae report as fresh evidence and accepted additional 5 per cent discount for R's background and rehabilitative prospects was warranted, but mistakenly calculated its effect as amounting to "less than two months" and dismissed it as mere tinkering, thereby overlooking that corrected calculation would have produced a 24-month sentence, converting R's sentence from a long-term to a short-term one with an automatic release entitlement –
CA held correct application of an overall 25 per cent discount to 32 months starting point produced an end sentence of 24 months, and 2-month adjustment could not be dismissed as tinkering given its material practical consequences (applying Sweeney v R) – CA otherwise upheld 18 months starting point and uplifts as within range, and found no error in declining a discrete remorse discount given R's equivocal acceptance of responsibility –
Appeal allowed - Sentence reduced to two years' imprisonment with special release conditions - All other sentences and disqualifications undisturbed.
Health New Zealand v Healey [2026] NZCA 351 (3 August 2026)
Unsuccessful application by L, an employment advocate, for leave to represent respondent H in CA in opposing Health NZ's application for leave to appeal an EC decision under s 214 Employment Relations Act 2000 (ERA) –
L had H in Authority and EC, pursuant to s 236 ERA, filed a r 19A Court of Appeal (Civil) Rules 2005 memorandum opposing leave without first seeking Court's permission to appear – Following objection by Health NZ, L applied for leave to appear as a lay advocate, relying principally on her legal qualifications (a conjoint BA/LLB and a practising certificate held from 2002–2005) and her experience as an employment advocate –
CA reviewed governing principles on representation, self-representation, noting general rule confining rights of audience to practising lawyers under Lawyers and Conveyancers Act 2006, subject to a narrow residual discretion recognised in Re G J Mannix Ltd, exercised sparingly and treated as an exceptional expedient rather than norm – Court canvassed wide range of factors bearing on exercise of that discretion, including urgency, complexity, cost, litigant's circumstances, advocate's qualifications and remuneration, need for impartiality, and access to justice, emphasising that legal qualifications alone rarely justify leave –
CA held this was not an appropriate case for leave: employment appeals to CA were rarely straightforward even at leave stage, no urgency or undue burden was shown, and L's remuneration weighed against leave given her lack of ongoing professional or disciplinary accountability – Court also noted, with concern, L's repeated practice in prior proceedings (Turner and Young) of filing material on clients' behalf without first seeking leave –
Application declined - H given options to adopt existing memorandum or engage counsel - Costs awarded to Health NZ on a band A basis.
Tauroa v R [2026] NZHC 2348 (11 August 2026)
Appeal against sentence for dangerous driving causing death – T pleaded guilty to dangerous driving causing death after her 10-year-old stepbrother died when vehicle she was driving collided with a truck – T aged 23 with no previous convictions – Extremely dangerous and prolonged driving in wet conditions, including tailgating, dangerous overtaking and travelling at more than 120 km/h into a blind corner – T had consumed cannabis and was driving in breach of her restricted licence – DC adopted starting point of 4.5 years' imprisonment and allowed total mitigating allowances of 40 per cent for guilty plea, remorse, trauma and rehabilitation – End sentence of 2 years 8 months' imprisonment –
HC held youth and good character as first offender warranted further allowance - Total allowances of 45 per cent, and at most 47.5 per cent, were justified – Section 9R Sentencing Act 2002 permits 40 per cent cap on personal mitigating factors to be exceeded where adherence to the cap would result in manifestly unjust sentence – Exceeding the cap should be limited to the least extent necessary to avoid manifest injustice – Failure to take account of an important mitigating factor such as youth may have qualitative significance and result in manifest injustice – However, 55 per cent allowance required to make home detention available was not justified –
Sentence reduced to 2 years 4 months' imprisonment – Driving disqualification unchanged – Appeal allowed in part.
R v M and S [2026] NZHC 2343 (12 August 2026)
Judge-alone trial of two defendants each charged with wilfully attempting to obstruct, prevent, pervert or defeat the course of justice – Charges arose from investigation and prosecution of Alan Hall for murder and wounding in 1985 –
Alleged manipulation and non-disclosure of witness evidence – Witness had described man seen near homicide scene as Māori in his initial police records and statements, but that description was omitted from his statement used at H’s depositions and trial – Previous statements were not disclosed to H’s defence despite legal obligation to do so – Alleged offending comprised directing or arranging preparation of the altered statement and decision not to disclose earlier statements –
Both defendants found not guilty and acquitted.
R v D [2026] NZHC 2334 (13 August 2026)
Sentence – One charge of attempted murder of 3-year-old child – D held victim down and repeatedly cut his neck with a meat cleaver, causing severe injuries requiring surgery –
Offending fell within band three of R v Taueki, attracting a starting point of 9 to 14 years' imprisonment – Aggravating factors included modest premeditation, use of a weapon, severity of injuries, attack to neck synonymous with an attack to head, breach of trust, and victim's vulnerability – Notional starting point of 10.5 years' imprisonment –
HC accepted psychiatric evidence that D's culpability was diminished by an acute psychological crisis at the time of offending – Rejected defence contention that this was connected to an allegedly abusive relationship, finding no evidentiary basis for that claim and noting it would not have provided additional mitigation – Starting point reduced by 24 per cent to 8 years' imprisonment,15 per cent discount for guilty plea, 10 per cent discount for previous good character, no discount for remorse, (given continued minimisation of aspects of the offending), background, or rehabilitative efforts, 11 month discount for time spent on EM bail – End sentence 5 years 1 month's imprisonment –
Application for permanent name suppression declined – Identified hardships fell short of the required standard given victim's name suppressed by law anyway – Public interest in open reporting, particularly in relation to serious offending.
R v Ko [2026] HCA 29 (12 August 2026)
Unsuccessful Crown appeal against NSW CCA decision quashing K's conviction for attempting to import a commercial quantity of a border-controlled drug – K facilitated customs clearance and delivery of a consignment found to contain drug – Consignment intercepted before departure from Canada and drug substituted with an inert substance – Crown case was that K developed an awareness over time that the consignment contained a substance, and intended to import it –
At trial, judge directed jury that if satisfied K perceived a real or substantial chance a substance was present in the consignment, it was open to infer he intended to import it, provided that was the only reasonable inference available – CCA found jury direction inadequate, since it did not make clear that awareness of a real or significant chance would not, of itself, establish intent – Jury should have been directed to separately consider whether awareness sufficed to prove K intended to import the substance – Conviction quashed, retrial ordered – Crown appealed –
HC majority dismissed Crown appeal – Awareness of real or significant chance that an object contains a substance does not itself establish intent to import – Intent additionally requires proof that the accused's state of mind was that they were prepared to import the object even if a substance were present – Real risk existed that jury would have concluded K's perceived awareness alone sufficed to establish intent, since neither directions nor trial judge's summary of Crown case made clear that a further inferential step was required –
Steward and Gleeson JJ dissented, holding directions, read as a whole and in the context of Crown case that K's state of mind evolved into deliberate intent to import, adequately conveyed the requirement of intention distinct from mere awareness of risk – Appeal dismissed.
Farrugia v R [2026] HCA 28 (12 August 2026)
Unsuccessful appeal against NSW CCA decision dismissing F's appeal against sentence for conspiracy to traffic controlled drugs and dealing with proceeds of crime – Senior Counsel appeared for both F and co-offender K at joint sentencing hearing – Crown submitted K's offending more serious than F's and K should receive more substantial penalty – Senior Counsel disputed, submitting F's offending was more serious than K's, though both less serious than Crown's characterisation – Sentencing Judge accepted this and imposed longer sentence on F than K – On appeal, F claimed that Senior Counsel had been placed in position of conflict between his duties to F and K, and should have submitted that F's offending was similar to or less serious than K's – F adduced no evidence of instructions given to, or advice received from, Senior Counsel, maintaining privilege over those communications – CCA found evidence did not establish conflict of duty –
HC majority found there was a threshold of materiality for a specific error or procedural irregularity to vitiate a sentence, being whether the error or irregularity could realistically have affected Sentencing Judge's reasoning to the sentence imposed – Absent evidence of instructions given to or advice received from Senior Counsel, F had not established conflict or real or substantial possibility of conflict – No practical injustice shown, as F was not denied a reasonable opportunity to present his case –
Edelman J, dissenting, held an actual conflict arose independently of any instructions, since obligations under the Legal Profession Uniform Conduct (Barristers) Rules required Senior Counsel to promote best interests of both offenders without regard to the other, a duty he could not discharge once required to respond to the Crown's submission on relative culpability – Would have remitted matter to CCA to determine whether resentencing should occur there or in DC –
Jagot J, dissenting, found Crown's written submissions demonstrated a reasonably available argument in F's favour that Senior Counsel did not adopt, and this could only be explained by an unrecognised, irreconcilable conflict of duties – This vitiated the sentencing process regardless of any evidence of F's instructions, since accused cannot give informed consent to counsel subordinating his interests to co-accused's – Would have remitted matter to DC for resentencing before a different Judge – Appeal dismissed.