New Zealand Law Society - Courts roundup 14 August - 20 August 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
J, Compulsory Care Recipient, by his Welfare Guardian, T v Attorney-General [2025] NZSC 103 (15 August 2025)
Partly allowed appeal from CA – Concerned correct approach to decision to extend compulsory care order under s 85 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (Act), and consistency between compulsory care regime and New Zealand Bill of Rights Act 1990 (Bill of Rights) –
J, 41 years old and autistic person with intellectual disability as defined in Act - Lived in secure healthcare facility under compulsory care order first made in 2006 when found unfit to stand trial on two charges of minor property-related offending - Compulsory care order extended numerous times since 2006, most recently for three years from April 2023, on basis J posed high or very high risk of committing acts of violence if released from care -
J, by welfare guardian T, challenged validity of compulsory care order’s renewal on multiple occasions since 2017, when Family Court (FC) extended order by 18 months and varied it to “secure” order, under which J transferred to psychiatric hospital - Appealed extension –
HC dismissed each claim and application, concluding J not unlawfully detained - CA heard joint appeal against HC judgment, and appeal against subsequent FC decision in 2020 to extend compulsory care order - On 20 December 2023, CA dismissed both appeals –
SC majority allowed appeal in part - Said CA approach to s 85 not correct – Said FC reviewing matter under Part 6 Act, to address J’s condition and status in accordance with SC’s approach to s 85 - Included care recipient’s liberty interests being starting point of proportionality inquiry, taking into account nature of original offending, length of period care recipient detained, and care recipient’s rehabilitative prospects – Appeal partly allowed.
Whakatōhea Kotahitanga Waka (Edwards) v Attorney-General [2025] NZSC 104 (15 August 2025)
Partly successful appeals - Second of two judgments relating to claims to customary rights in harbours, river mouths, beaches and seascape of eastern Bay of Plenty - First judgment addressed meaning of s 58 Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) - Section 58 set out test for making of customary marine (CMT) orders, one of the two types of orders provided for in MACA to recognise customary interests - Second type protected customary rights orders (PCRs) - Related to activity, use or practice meeting test in s 51 –
Judgment resolved remaining issues on seven separate appeals heard together - Issues included whether recognition orders be granted under MACA regarding navigable rivers within marine and coastal area, and application of the s 58 test and other provisions in MACA to specific separate appeals –
Regarding navigable rivers, SC said HC wrong to say s 261(2) Coal Mines Act 1979 extinguished customary rights and title in beds of navigable rivers - As customary rights and title to beds of navigable rivers not extinguished by s 261(2) beds of navigable rivers met MACA’s definition of “marine and coastal area” and recognition orders could be made for them, so long as other statutory requirements met - Given this conclusion, SC did not need to consider whether s 11(3) MACA resurrected customary title or rights – Attorney-General’s appeal dismissed –
Regarding Edwards claim SC said Courts below correct not to recognise mandate originally given to Edwards application - Hapū did not support Edwards application - Further, where, as here, takutai moana rights held at the hapū level, and clear iwi no longer spoke for Te Whakatōhea hapū on rights, could not be said application being brought for hapū - While iwi-wide approach preferable, how rights under CMT to be expressed, and holder of any such CMT, matters to be determined by successful groups - SC encouraged determination out-of-court according to tikanga processes – Appeal dismissed -
Regarding Te Upokorehe’s claim to exclusive rights SC upheld CA conclusion Te Upokorehe had not shown held mana exclusively in relation to Ōhiwa Harbour - Confirmed evidence relied on by Te Upokorehe to substantiate claim consistent with shared exclusivity, and reflective of nature of the seascape and strong links between groups in rohe - Te Upokorehe had claim in Waitangi Tribunal, as part of Wai 1750, alleging breaches of Treaty of Waitangi principles regarding Ōhiwa Harbour and abutting land - If any Tribunal findings cast real doubt on or contradicted SC conclusions, legislative response or, less desirably, recall of judgment might be necessary – Appeal dismissed -
Regarding Ngāti Muriwai application, SC said Ngāti Muriwai entitled to bring application as applicant group under s 9 MACA, as, at least, whānau applicant group - How rights to be given effect matter for hapū of Te Whakatōhea and Ngāti Muriwai to consider and determine according to tikanga – Appeal allowed -
Regarding Kutarere Marae, SC said Marae consists of multiple whānau groups, with primary tribal connections being with Te Whakatōhea - For the purposes of negotiation with Crown, an applicant group under MACA - Conclusion did not predetermine whether Kutarere Marae should succeed in establishing either PCRs or CMT – Appeal allowed.
Baker v R [2025] NZCA 398
Unsuccessful application by B for leave to bring a second appeal after HC dismissed appeal against conviction for endangering transport with reckless disregard – B shone a high-powered laser at the sky into the cockpit of a Boeing 767 cargo aeroplane – B was sentenced to 12 months' intensive supervision and ordered forfeiture of the laser - Issue was whether B's actions amounted to recklessness - Judge held there was sufficient evidence, and HC dismissed appeal, confirming correct test had been applied -
Leave declined - Proposed appeal fact specific, not raising any question of law - Evidence showed B used the laser to scan the sky, admitted possession, and also directed it at a helicopter - Could be inferred B appreciated the laser’s power, its painful effect on the eye, and the risk to low-flying aircraft near the airport - Widespread publicity of laser dangers further supported that inference - Application dismissed.
Carter v R [2025] NZCA 400
Successful appeal by C against sentence of five years four months' imprisonment for methamphetamine offending – C’s partner P sentenced to two years four months' imprisonment – C’s sentence reflected starting point of seven years six months' imprisonment - Five per cent uplift for previous offending - 13 per cent guilty plea discount - 20 per cent combined allowance for health, addiction, and s 27 factors - C challenged starting point, uplift, and guilty plea discount -
While movement between sentencing bands in Zhang v R was appropriate, sentencing Judge overstated C’s culpability without fully considering C's addiction, limited scale of involvement, and the fact C's actions were motivated by repaying her own supplier - Risk of double counting in charges, possibly overstating total methamphetamine quantity - Correct starting point was seven years' imprisonment – Five per cent uplift for prior offending excessive - Given C's limited criminal history and that only prior sentence was community-based, a two-month uplift was proportionate - 13 per cent discount for guilty plea inadequate when compared with 20 per cent given to P - Principle of parity, and late withdrawal of charges against C, C was entitled to the same 20 per cent discount - Appeal allowed - Sentence of four years four months' imprisonment imposed.
[S] v R [2025] NZCA 399
Dickson v Real Estate Agents Authority [2025] NZCA 404
Unsuccessful application by Free Speech Union against HC decision declining application for judicial review of cancellation of D's real estate licence, following refusal to complete compulsory 90-minute te ao Māori course as part of continuing professional development -
Central issue on appeal was statutory interpretation - Any broader questions, including those engaging New Zealand Bill of Rights Act 1990, could be properly and fully addressed by parties - Union’s proposed submissions unlikely to add anything beyond what the Court would already receive - Criteria for intervention settled in NZ and would not be assisted by overseas jurisprudence – No evidence that Union possessed special expertise enabling it to assist Court in a way that counsel for parties could not – Application refused.
R v Tupou [2025] NZHC 2287(13 August 2025) Lang J
Sentencing – T pleaded guilty to charges of murder and being in unlawful possession of firearm – Maximum penalty for murder life imprisonment, for being in unlawful possession of firearm four years' imprisonment –
T and victim from families engaged in long-running feud with each other –Resulted in numerous outbreaks of violence involving firearms – T encountered victim by chance when arrived at liquor store – Went to victim's vehicle and shot twice while victim sitting in driver's seat – No dispute life imprisonment appropriate – Starting point for MPI 12.5 years reflecting aggravating features of offending – One-year discount reflecting guilty pleas and six months for relative youth (23 years) and expressions of remorse – End sentence life imprisonment with 11 years MPI.
R v McLeod [2025] NZHC 2290 (13 August 2025) Radich J
Sentencing – Murder – M entered property at night, stabbed victim with knife while sleeping, apparent motive jealousy –
Sentenced to life imprisonment with 17 years MPI under s 104 Sentencing Act 2002 – Two aggravating factors under s 104(1A) engaged: unlawful entry into dwelling place and victim's unconsciousness making him "particularly vulnerable" – No manifest injustice in 17 years MPI.
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