New Zealand Law Society - Courts roundup 13 June - 19 June 2024

Courts roundup 13 June - 19 June 2024

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

Porirua District Court v2

New Zealand Supreme Court

Information suppression, criminal proceedings

Farish v R [2024] NZSC 65 (11 June 2024)

Successful appeal from CA – Case concerned courts’ ability to suppress information relating to criminal proceeding because publishing information would be likely to endanger someone’s safety – Because F judge, Court’s judgment considered various public interests arising, including public interest in judges not being seen to receive special treatment when applying for suppression orders –

In August 2022, D tried to kill landlord of his business premises – Inflicted serious injuries on landlord and another victim – At time F was D’s girlfriend – F also District Court judge – Played no role in D’s offending – D applied for F’s name, address, occupation and other identifying particulars to be suppressed, saying public knowledge of their connection would risk his safety in prison – DC granted application, but HC later revoked suppression order – D appealed to CA – Crown filed submissions that disclosed information about F not in evidence and not connected to D’s offending – Caused F to intervene in proceeding –

F sought two suppression orders in CA – First application under s 205(2)(c) Criminal Procedure Act 2011 said publication of certain information in evidence adduced and submissions in D’s court proceeding would be “likely to endanger the safety of any person”, but especially herself – Second application, under s 202(1)(c) Criminal Procedure Act, sought suppression of her identity because publication would be likely to endanger her safety – In July 2023, CA dismissed D’s appeal – Also declined F’s two suppression applications –

On 30 October 2023, SC granted F leave to appeal CA refusal to order suppressing information – Declined leave to appeal CA’s refusal to order suppressing F’s identity –

SC unanimously allowed appeal – Made permanent order under s 205 Criminal Procedure Act prohibiting publication of certain evidence and submissions.

New Zealand Court of Appeal

Murder, integrity of verdicts, directions of judge - Login required

[B] v R [2024] NZCA 222

Personal grievance, dispute over interpretation of employment agreement, jurisdiction

Breen v Prime Resources Co Ltd [2024] NZCA 223

Successful application for leave to appeal – Applicant partially succeeded in the Employment Relations Authority in a personal grievance claim against his former employer, Prime Resources - On appeal, the Employment Court held the applicant’s complaint was not a personal grievance for the purposes of s103 Employment Relations Act 2000 (ERA) because it derived solely from an issue over the interpretation of the employment agreement and the Authority therefore lacked the jurisdiction to determine it – The applicant’s remedy was to pursue the dispute process under s129 of the ERA and the Authority’s determination was set aside - Applicant applied for leave to appeal – Respondent opposed the application - Whether the Employment Court erred in its construction and application of s103(3) of the ERA - Whether leave to appeal should be granted on the question of whether s103 of the ERA is a jurisdictional bar to Mr Breen’s personal grievance - HELD:  There is need for clarification of the approach to the property construction and application of s103 of the ERA - Accordingly, the issue is one of law and is seriously arguable, such that leave to appeal should be granted.

Extended supervision order, sexual offending, children

Sloss v Chief Executive of the Department of Corrections [2024] NZCA 226

Unsuccessful appeal against extended supervision order (ESO) of five years – Sexual offending against children – Objectionable publications – Whether there was no jurisdiction for the Judge to make an ESO because the Chief Executive was unable to establish one of the threshold requirements for the making of such an order - The court may only make an ESO where it is satisfied that the offender has a pervasive pattern of serious sexual offending – Appellant contends that his history of sexual offending did not establish this essential element - Errors by the Judge not viewed as being particularly material – Offending demonstrates a pervasive pattern of offending - HELD: Appeal dismissed.

Sexual offending, young person, leave to appeal, extension of time - Login required

[T] v R [2024] NZCA 228

New Zealand High Court

Name suppression

R v Dallison [2024] NZHC 2968 Isac J

Unsuccessful application for continued name suppression – D charged with several serious offences – Sought continued suppression of personal details of partner, sitting District Court Judge, saying publication of relationship would create risk to his safety while in prison –

HC reviewed order under s 208(3) Criminal Procedure Act 2011 – Material change in circumstances in duration of time D remanded in custody without evidence of safety risk – Two stage test: first threshold test not made out; D did not establish real and appreciable risk to safety from publication – Second limb: interests of justice, public interest in relationship, did not weigh in favour of suppression – Suppression order revoked.

High Court of Australia

Parole, terrorist-related activities

R v Hatahet [2023] HCA 23 (12 June 2024)

Successful appeal from New South Wales CA – Appeal concerned whether sentencing judge erred by not taking account of likelihood (if any) of release on parole, because of s 19ALB Crimes Act 1914 (Cth), when fixing imprisonment sentence of imprisonment – Section 19ALB provided Attorney-General could not make parole order for person involved in, or convicted of, certain terrorist-related activities unless satisfied exceptional circumstances existed to justify order –

H pleaded guilty to, convicted of, offence under s 6(1)(b) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) of engaging in hostile activity in foreign State – New South Wales, DC sentenced H to imprisonment for five years with three-year non-parole period – Sentencing judge took into account several factors under s 16A Crimes Act but did consider likelihood (if any) of H being released on expiry of his non-parole period – Attorney-General refused parole under s 19ALB Crimes Act –

Allowing appeal against sentence, CA said likely application of s 19ALB relevant consideration when sentencing and therefore sentencing judge erred not taking section into account – Expectation and reality parole would be refused, together with H's previous more burdensome incarceration, meant H continued to suffer more onerous imprisonment conditions – Warranted one year sentence reduction – Resentenced to four years’ imprisonment with three-year non-parole period –

Issues before HC – Firstly, whether CA erred concluding sentencing judge should have considered s 19ALB – Secondly, whether expectation parole would be refused due to s 19ALB applying warranted imposing lesser sentence – HC unanimously said CA erred to take into account likelihood parole would be refused – Power to grant parole vested in executive, not judiciary and too speculative for judge to predict what might happen at expiry of non-parole period – Prospects of securing release on parole not relevant to judicial sentencing task of sentencing – To decide otherwise would lead to outcomes inconsistent with core object of sentencing; need to ensure offender’s adequate punishment – Would also undermine s 19ALB legislative purpose – HC allowed appeal and set sentence reduction aside.

United Kingdom Supreme Court

Misleading falsehood, damages, injury to feelings

George v Cannell [2024] UKSC 19 (12 June 2024)

Successful appeal from CA – Concerns tort of malicious falsehood, committed when someone maliciously publishes words that cause another person financial loss – Main issues raised: (1) whether s 3(1) Defamation Act 1952 removed need, in specified circumstances, for claimant to prove financial loss to establish defendant’s liability and (2) if so, whether claimant who successfully relied on s 3(1) could recover damages for injury to feelings related to publication of malicious falsehood, even if no financial loss caused to them –

Second defendant, LCA Jobs Ltd, recruitment agency, employed G – C owned and operated LCA – After G resigned from LCA, another recruitment agency employed her – Soon began targeting LCA’s clients – C told two third parties, one being G’s new line manager and LCA client, G breaching employment contract with LCA – In fact, as C knew, no contract prohibiting G from soliciting business from LCA’s clients –

HC said statements to two third parties false and malicious (because C did not believe them to be true); but statements had not caused G any financial loss (because she showed copy of her contract to her line manager, who saw that it contained no relevant restriction and because LCA client she had approached had decided not to do business with her new employer anyway) – Judge also said claim could not succeed in absence of any financial loss and, therefore, dismissed claim – On appeal, CA reversed decision, saying sufficient to establish liability under s 3(1) that false statements likely to cause financial loss, even though no loss occurred – CA also said, because liability made out, G could recover damages for injury to her feelings – Defendants appealed to SC –

SC 3-2 majority allowed appeal – SC unanimously said s 3(1) enabled claimant to establish liability for malicious falsehood where falsehood is likely to cause financial loss even if, in fact, it did not; claimant could only recover damages (other than merely nominal damages) for financial loss actually suffered – Majority said compensation for injury to feelings could only be recovered if injury consequent on financial loss caused by maliciously false statement – As no financial loss caused here, G entitled only to nominal damages – Appeal allowed.