New Zealand Law Society - Courts roundup 14 December - 17 January 2024

Courts roundup 14 December - 17 January 2024

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

Wellington Court

New Zealand Supreme Court

Murder, verdict

W (SC 60/2023) v R [2023] NZSC 164 (12 December 2023, reissued 14 December 2023)

Partially successful leave application – Approved questions 1) whether CA correct to conclude that media take down order not required in circumstances; and 2) whether CA correct to conclude verdicts not unreasonable in light of admissible evidence relating to potential culpability of H (deceased).

Self-represented litigant, review application

Siemer v Attorney-General [2023] NZSC 165 (12 December 2023)

Unsuccessful leave application – Self-represented S applied for leave to appeal from judge-alone decision under s 49(3) of Senior Courts Act 2016 – Judge declined S’s application for review of Deputy Registrar’s decision not to dispense with security for costs –

SC Judge said question whether S established he fell within either regs 5(2)(a) or 5(2)(b) Supreme Court Fees Regulations 2003 – He had not – Application dismissed.

Self-represented litigants, costs

Nottingham v Attorney-General [2023] NZSC 167 (18 December 2023)

Unsuccessful leave application – Self-represented N and McK commenced three proceedings in HC (one being habeas corpus application) challenging Government’s response to COVID-19 pandemic – HC struck proceedings out and awarded costs against applicants – SC application concerned only costs issues –

SC said leave criteria not met – Substantive merits of underlying proceedings (or lack thereof) not in issue: applicants did not appeal against HC substantive judgment – Costs award orthodox – No matter of public or general importance – Substantial miscarriage of justice not likely – Application dismissed.

Sexual offences, complainant credibility

H (SC 69/2023) v R [2023] NZSC 166 (20 December 2023)

Unsuccessful leave application – H convicted following jury trial of three charges of indecent assault on complainant, young person under 16 years, three charges of sexual violation by unlawful sexual connection and two charges of rape – Sentenced to 13 years’ imprisonment – Appeal to CA failed – Sought leave to appeal to SC – Sole issue raised whether trial Judge should have given jury reliability warning under s 122(2)(c) Evidence Act 2006 –

SC said given complainant’s credibility dominant issue at trial, did not see omission of s 122(2)(c) caution as prejudicial, such that miscarriage of justice may have arisen – Application dismissed.

Self-represented litigants, fee waiver

Application by Zhong [2023] NZSC 168 (20 December 2023)

Unsuccessful fee waiver application – Self-represented Z and D applied for leave to appeal CA judge’s and for review of Deputy Registrar’s fee waiver decline –

SC said documents supporting application failed to show (by large margin) that Deputy Registrar may have been wrong in his conclusion – Application dismissed.

Possible defences

Kaitai v R [2023] NZSC 169 (22 December 2023)

Partially successful leave application – Approved question whether CA correct to dismiss appeal against conviction, so far as based on defences of accident, involuntariness and lack of intent.

New Zealand Court of Appeal

Freshwater management, National policy, Exemptions

Muaupoko Tribal Authority Inc v Minister for the Environment [2023] NZCA 641

Successful appeal and cross-appeal – Challenge by way of judicial review of cl 3.33 National Policy Statement for Freshwater Management 2020 – Referred to as the “vegetable exemption” - The vegetable exemption proposed putting in place a special regime for freshwater bodies in two major vegetable growing areas [in Horowhenua and in Pukekohe] - The exemption would permit the regional councils in those areas to set freshwater quality targets in their regional plans that were below the national bottom lines stipulated in the NPS-FM for nitrate-related attributes in freshwater – Appellant and the cross-appellant commenced separate proceedings in the HC, both by way of judicial review, challenging the legality of the vegetable exemption - Both alleged that the vegetable exemption was unlawful, breached the principles of Te Tiriti o Waitangi | The Treaty of Waitangi and both sought orders setting it aside – HC dismissed applications for review – HELD: Consultation with mana whenua and kaitiaki inadequate - Appeal and cross-appeal allowed - Clause 3.33 and Appendix 5 of the National Policy Statement for Freshwater Management 2020 are quashed - The Minister for the Environment directed to reconsider whether there should be an exemption for the vegetable growing areas in Horowhenua and Pukekohe and, if there is to be an exemption, what form such exemption should take.

Islamic marriage, mahr, nikah, Enforcement in overseas jurisdictions

Salih v Almarzooqi [2023] NZCA 645

Successful appeal against HC decisions that the proper law of the contract was United Arab Emirates (UAE) law, and that under UAE law the mahr [required gift from husband to wife] became payable upon the fact of divorce, regardless of the ground on which it was granted - HC also held that if New Zealand law applied, the nikah [Islamic marriage contract] would be similarly enforceable and the mahr therefore payable – Whether the Judge erred in finding that the proper law of the nikah is UAE law – If so, whether the nikah was unenforceable under New Zealand law by reason of the Domestic Actions Act 1975 (DAA), the Property (Relationships) Act 1976 (PRA) and/or public policy considerations - If the nikah was enforceable under New Zealand law: (i) Properly interpreted, does the nikah require the appellant to pay the mahr by reason only of the fact of the divorce order made by the Dubai court - (ii)  Is the respondent entitled to rely on the factual findings made by the Dubai court – HELD: Judge erred in finding the correct law of the nikah was UAE law – New Zealand had the closest and most real connection with the contract – Nikah is not unenforceable by reason of the DAA, the PRA, or public policy reasons – Respondent not entitled to rely on factual findings of the Dubai court as appellant had not submitted to the jurisdiction of that court - Interpretation of the nikah would require expert evidence as to Sharia law - There is insufficient evidence before this Court to make a finding on this point – Appeal allowed – Case remitted to HC for reconsideration.

Society, Election, Leadership dispute

Rohit v Daya [2023] NZCA 649

Unsuccessful appeal in a leadership dispute between members of the Yogi Divine Society (NZ) Inc (YDSNZ) – In 2019 the Secretary was advised of the appointment of Sadhu Premswaroopdas as President and Trustee of the Indian Trust after the acceptance of the resignation of the previous Swamiji, Swamiji Hariprasadji in 2018 – Nothing was done to recognise this as requested – Further steps taken by some members – Appellant sought declarations in the HC as to who should be regarded as the leader or Swamiji of YDSNZ – Respondent sought declarations by way of counterclaim – Respondent succeeded – Whether Sadhu Premswaroopdas was the successor of Swamiji Hariprasadji as Swamiji of YDSNZ – Whether the resolutions passed at the Indian Trust SGM were invalid and of no effect – HELD: YDSNZ constitution established that it functioned separately from the Indian Trust, and no basis for construing the Constitution as contemplating that the Swamiji’s successor as President of the Indian Trust would, by virtue of such appointment, be the Swamiji of YDSNZ – Appellant’s concerns with SGM dismissed – Appeal dismissed.

Fitness to stand trial, Mental impairedness - Login Required

[W] v R [2023] NZCA 650

Corrections, Access to property, Objectionable item 

Hudson v Attorney-General [2023] NZCA 653

Successful appeal against Corrections’ ability to restrict prisoners’ access to property they have reasonable grounds to believe is objectionable or may interfere with the effective management of the prison – Appellant requested two men’s magazines from a friend – Request crossed out by Corrections officer – Conceded in both proceedings that there was no lawful basis to do so – Whether the restriction of access to magazines breached appellant's right to freedom of expression – HELD: Corrections restriction on access does not represent a demonstrably justified limit on appellant’s s14 New Zealand Bill of Rights Act 1990 right - Appeal allowed – No order for relief.

Accident compensation, Question of law, Business classification

Accident Compensation Corporation v Anderson & O’Leary Ltd [2023] NZCA 654

Successful appeal against DC and HC decisions which favoured the respondents challenging the ACC reclassification of their businesses resulting in higher employer levies than previously – Leave granted to appeal on question of law – Whether the HC was correct to conclude that s170(2) Accident Compensation Act 2001 will only be engaged where an employer operates two or more separately identifiable businesses, each of which must be a separate and distinct activity - Respondents are each engaged in multiple activities - ACC is therefore required to apply s170(2) – HELD: Appeal allowed – HC judgment set aside.

Fraud, Complaints against lawyer, Extensive proceedings

Mailley v Shaw [2023] NZCA 659

Unsuccessful application for special leave to appeal – Applicant brought proceedings in the HC against Mr Shaw, who had previously represented him in extradition proceedings, and the New Zealand Law Society (NZLS) – Respondents both applied to strike out the proceedings - Associate Judge granted both strike out applications - Decision was upheld on review - Leave to appeal against the Review decision was declined by the HC – Applicant seeks special leave to appeal - Whether special leave to appeal should be granted - HELD:  Application declined - The proposed appeal does not raise any issues of sufficient importance to outweigh the cost and delay of an appeal, nor does it give CA an opportunity to clarify any aspect of the law - It merely seeks to challenge the HC’s findings of fact and the application of settled legal principles.

Animal welfare, Adduce evidence, Propensity evidence - Login Required

[K] v R [2023] NZCA 662 

Question of law, Mental injury, Sexual abuse, Earnings-related compensation

Accident Compensation Corporation v TN [2023] NZCA 664

Unsuccessful appeal on question of law – Whether HC erred in finding that the date on which a claimant “suffered” a personal injury for the purposes of the definition of “potential earner” in s6 Accident Compensation Act 2001 is the actual date of the claimant’s injury, rather than the deemed date in s36(1) – Facts not in contest – Cover for mental injuries as a result of severe and protracted sexual abuse acknowledged – Appellant held that statutory provisions meant respondent did not meet criteria for earnings-related compensation – Intent and interpretation of legislation  – HELD: Appeal dismissed – HC did not err.

Sexual violation, Miscarriage of justice, Retrial - Login Required

[P] v R [2023] NZCA 667

New Zealand High Court

Sentencing, manslaughter

R v Moore [2023] NZHC 3686 (11 December 2023) Eaton J

Sentencing – M pleaded guilty to manslaughter – Use of vehicle as weapon – Lacked factors aggravating other manslaughters where vehicle used as weapon – More serious than vehicular manslaughters involving reckless or dangerous driving – Starting point seven years, nine months – Uplift reflected previous convictions and offending while on bail – 20 percent guilty plea credit available in light of strong evidence for manslaughter – Remorse present and consistent – Full suite of criminogenic factors and operative addiction – 35 percent discount for other personal mitigating factors warranted – MPI not appropriate – Sentence four years, one month imprisonment – Disqualification from driving.

Sentencing, murder following perceived slight

R v Wong-Tung [2023] NZHC 350 (14 December 2023) Muir J

Sentencing – Guilty of N’s murder following jury trial – Responding to perceived slight against young relative, W-T arranged for N to be brought to cul-de-sac in Weymouth, Auckland – Parties to plan aware some form of retribution would be carried out – On 21 November 2021, W-T arrived at pre-arranged rendezvous with associates – N arrived shortly after, driven by his uncles and effectively captive in SUV back seat – W-T went to SUV, gained entry through rear door and brutally attacked N with large knife – After attack, N's uncles drove him to medical centre – N died later that day – W-T sentenced to life imprisonment with MPI 15 years.

Judicial review, te Uruwera hut demolition

Tuna v Te Urewera Board and ors [2023] NZHC 3680 (14 December 2023) Downs J

Judicial review – Decision making over hut network demolition in Te Urewera – Resolving to demolish huts without plan to accord, in immediate to short term at least, with principles in s 5(1)(b), (c) and 5(2) Te Uruwera Act 2014 – Board failed to give effect to principles and acted unlawfully – By demolishing huts, Tūhoe Te Uru Taumatua (TUT) acted contrary to principles in s 5(1)(b), (c) and 5(2) – TUT also acted unlawfully by demolishing huts: (a) relying on unlawful Board resolution; and (b) without annual operational plan – Crown acted unlawfully failing to prepare annual operational plan for years 2021/2022 and 2022/2023; by supporting huts' demolition without annual operational plan – Board and Crown acted unlawfully by purporting to adopt retrospective annual operational plan authorising huts' demolition – Crown's adoption of wholly retrospective annual operational plan striking example of reviewable error – Board and TUT did not act unlawfully over consultation – Court requested further submissions on relief.

Sentencing, gang retribution murder

R v Pukepuke [2023] NZHC 3700 (14 December 2023) Lang J

Sentencing – P pleaded guilty to murdering K, shooting him on two occasions in head and neck at close range in K’s home at night – P travelled from distance and obtained firearm and two motor vehicles to enable him to travel to and from K’s home – P longstanding Mongrel Mob member – Committed murder as retribution for Mongrel Mob member earlier shot and killed at same address –P travelled to address intending to shoot occupant as retribution – Sections 104(1)(b) and (c) Sentencing Act 2002 engaged because offending involved heightened degree of planning as well as unlawful entry of dwelling house at night – Offending did not reach brutality level or callousness necessary to engage s 104(1)(e) – MPI 16 years imprisonment ordinarily appropriate before taking into account early guilty plea – But for guilty plea, not manifestly unjust to impose 17 years’ MPI – P twice applied to vacate guilty plea – Diminished guilty plea value as acknowledgement of responsibility for offending – One year three months discount rather than usual two years – P also entitled to nine months’ discount reflecting mitigating factors contained in s 27 report – Life imprisonment with 15 years MPI.

Sentencing, murder

R v Leota-Lu [2023] NZHC 413 (15 December 2023) Anderson J

Sentencing – LL convicted of murder following jury trial – Deceased suffered 94 sharp force injuries – Aggravating features: high level of brutality; frenzied and brutal attack nature; LL failed to seek assistance; deceased physically vulnerable; and use of several weapons, at least three knives and screwdriver –

Life imprisonment appropriate – Personal mitigating factors offset by personal aggravating factors – Callousness of murder – Indicated MPI 17 years appropriate and not manifestly unjust.

Relief following successful challenge

Wallace v Chief Executive, Department of Corrections [2023] NZHC 592 (15 December 2023) Cooke J

Partly successful relief application following earlier successful challenge to Department closure of Arohata Prison for other than high security and remand prisoners, including ground of discrimination against women ([2023] NZHC 2248) – Applicants sought mandatory orders requiring Arohata to fully reopen – Chief Executive said resource constraints meant only one wing could reopen for limited number of prisoners – Application for mandatory orders not granted, but Chief Executive required to reconsider decisions so Court could address unlawfulness, with direction that resource constraints could not be reason not to comply with legal requirements – Court also expressed concerns relating to wider failure to meet minimum standards elsewhere in prison network – Application partly successful.

Sentence appeal

Box v R [2023] NZHC 3759 ((18 December 2023) Harvey J

Unsuccessful sentence appeal – B convicted of historic child sex offending – Argued on appeal greater discount for cultural matters, particularly effects of colonisation, should have been awarded, bringing sentence into threshold to consider home detention – HC said although colonisation had demonstrable negative effects on Indigenous communities, including Māori, which could create criminogenic factors, little evidence to support existence of those factors in B’s background – In any event, serious offending requiring sentence of imprisonment to meet sentencing principles – Appeal dismissed.

Financial markets Conduct Act, declarations of contravention

Financial Markets Authority v CBL Corporation Ltd (In Liquidation) [2023] NZHC 3842 (21 December 2023) Gault J

Court approval of recommended declarations of contravention and pecuniary penalties under Financial Markets Conduct Act 2013 (FMCA) following admissions by CBL Corporation Limited (in liq) (CBLC) and its independent non-executive directors (INEDs) in proceedings by Financial Markets Authority – CBLC and INEDS admitted making misleading statements and failing to make required disclosures – Declarations sought appropriate – Recommended pecuniary penalty starting points for CBLC and each of INEDs and 30 per cent discount for admissions and other mitigating factors within range – Declarations of contravention of fair dealing and disclosure provisions of FMCA made as sought – Pecuniary penalties imposed: $5.78m against CBLC, $1m against Sir John Wells, $1.1m against H, $1m against D and $1m against M.

Judicial review, vaping products

ALT New Zealand Ltd v Attorney-General [2023] NZHC 3855 (21 December 2023) Churchman J

Unsuccessful judicial review application – Review of regulations reducing maximum nicotine strength of reusable nicotine salt vaping products from 50mg/ml to 28.5mg/ml dismissed – HC said: 1) no enforceable duty to consult in respect of regulations, being subordinate legislation, in any case consultation undertaken adequate; 2) no legitimate expectation for applicants to be consulted, in any case those with commercial interest consulted adequately, no legitimate expectation change to regulations would be informed by independent expert analysis and/or advice; 3) no failure to take into account relevant considerations; 4) making of regulation within scope of empowering provision, not ultra vires – Application dismissed.

Health and Safety at Work Act, trustee liability

Worksafe New Zealand Mahi Haumaru Aotearoa v RH & Jury Trust [2023] NZHC 3871 (21 December 2023) Harvey J

Partially successful appeal on question of law against finding under s 147 Criminal Procedure Act 2011 that trust is not person for Health and Safety at Work Act 2015 (HSWA) purposes and could not be charged with offence under HSWA – Second finding that trustees could not be charged collectively as "body of persons" under HSWA – Appeal allowed in part – Trustees collectively fall into definition of "body of persons ... unincorporate" and could be charged as PCBU under HSWA – Expansive reading required to give effect to HSWA purpose to achieve effective deterrence in light of different penalties available for individuals and entities – However, given availability of this interpretation, interpretation that trust is person unnecessary and contradictory to established trusts principles – Appeal partly successful.

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