New Zealand Law Society - Courts roundup 14 September - 20 September 2023

Courts roundup 14 September - 20 September 2023

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

Exterior view of the Supreme Court in Wellington

New Zealand Supreme Court

Self-represented litigant, Court jurisdiction

Re Slavich [2023] NZSC 122 (13 September 2023)

Unsuccessful application to review Registrar decision – Self-represented S attempted to file memorandum – Registrar refused to accept memorandum – Said Court had no jurisdiction to provide explanation sought in memorandum –

SC said Registrar correct not to accept memorandum for filing – As Registrar explained in response to S, SC jurisdiction appellate – Did not have power to issue advisory explanation sought here and nor to make orders sought – Application dismissed.

Self-represented litigant, ROMI

G (SC 50/2023) v Commissioner of Police and ors [2023] NZSC 123 (14 September 2023)

Unsuccessful leave application – Self-represented G New Zealand citizen, convicted in Australia of supplying prohibited drugs in commercial quantities – Sentenced to eight years’ imprisonment in September 2015 – In November 2015, Returning Offenders (Management and Information) Act 2015 (ROMI) enacted – Released on parole in 2019, G deported to New Zealand – Determination under ROMI Act that G “returning prisoner” –

G sought judicial review – Successful in HC – CA allowed appeal, saying s 25(g) of NZBORA and s 6 of Sentencing Act 2002 not engaged –

Prior to delivery of CA decision, Parliament passed ROMI Amendment Act 2023, “said to be intended to ensure continued application of Act to those whose offending predated Act’s commencement” –

G wished to advance 10 grounds of appeal – Primary grounds revolve around CA construction of legislation and, in particular, CA concluding ROMI Act intended retrospective effect and excluded right to hearing prior to exercise –

SC said Amendment Act effect was only person now affected by this decision is G – Release conditions long expired so appeal largely moot – Therefore proposed appeal involves no matter of general or public importance – Matters G raised might be arguable, but no substantial miscarriage of justice would occur unless proposed appeal is heard – Not necessary in interests of justice for Court to hear and determine G’s proposed appeal – Application dismissed.

Profit forfeiture, CPR Act

Zhou and anor v Commissioner of Police [2023] NZSC 124 (14 September 2023)

Unsuccessful leave application – Commissioner applied to HC for profit forfeiture orders under Criminal Proceeds (Recovery) Act 2009 (CPR Act) against Z, and company associated with him, Levonz Investment Ltd (Levonz) – HC Judge made orders – Said Z’s unlawful benefit $2,214,000 and Commissioner entitled to recover under CPR Act – Z and Levonz appealed unsuccessfully to CA –

SC accepted might be argument on question of whether CPR Act regime criminal in nature would raise matter of public importance – However, not appropriate to grant leave in circumstances where point not argued in either Court below – No risk of miscarriage of justice – Application declined.

New Zealand Court of Appeal

Company law, fair trading

Gapes v Dempsey Wood Civil Ltd [2023] NZCA 435

G was sole director of PRDL, a company formed for the purpose of carrying out a substantial residential property development – PRDL contracted with respondent (DWCL), a large civil works contracting company – PRDL subsequently placed in receivership – G found to have breached his duties as a director under s135 and s136 Companies Act 1993 and award made under s301 – G ordered to pay DWCL a sum pursuant to s43 Fair Trading Act 1986 (FTA) – HELD: Email from G was misleading and deceptive in the circumstances, advising that $4M was being held when knew it was unlikely to be available for DWCL – DWCL relied on the email in continuing to work on the development – Damages awarded under s301 were calculated by reference to the same losses suffered by DWCL over the same period and were subsumed in the judgment given in respect of the FTA claim – Orders made in the HC under the Companies Act set aside without opposition, and appeal otherwise dismissed.

Search warrant, evidence admissibility - Login Required

[H] v R [2023] NZCA 438

Sentence, preventive detention

Tawhai v R [2023] NZCA 444

Successful appeal against sentence of preventive detention with minimum period of imprisonment (MPI) of 5 years – Assault on a person in a family relationship; Wounding with intent to injure – T had a number of convictions for violent offending against women with whom he’d been in an intimate relationship – Failure to take up rehabilitative opportunities pivotal to decision to impose preventive detention rather than a finite sentence – HELD: Reservations about appropriateness of attempting to justify imposing preventive detention on assumed basis it would act as an incentive for the offender to undertake or submit to treatment – Judge’s concern needed to be considered in light of expert views of a clinical psychologist, and a forensic psychiatrist, that T was willing to engage in appropriate treatment and was likely to do so – T had taken a number of positive rehabilitative steps while incarcerated – Unfortunate the sentencing Judge was not given greater assistance as to whether the less restrictive option of a finite sentence coupled with the likelihood of an ESO on suitable terms was appropriate – Appeal allowed – Sentence of 3 years imprisonment with MPI of 2 years substituted.

Evidence, DNA testing

Ang v R [2023] NZCA 445

Interlocutory applications on evidence admissibility for conviction appeal on sexual offending charges – A sought to advance new evidence about memory, and to have swabs, blood, and urine samples released for analysis – Appeal on grounds that the jury could not exclude the reasonable possibility the complainant confabulated her allegations due to her alcohol consumption – Sought to have swabs tested in the hope would exclude A’s epithelial cells – HELD: Memory evidence would not have been admissible at trial and no risk omission to lead it there occasioned a miscarriage of justice – No reason to release blood and urine samples for further testing for purposes of appeal given application based on speculation Dr M would be able to use the results to say something about confabulation – In the circumstances, possibility that the absence of epithelial cells in relevant swabs might have probative value couldn’t be excluded – Appropriate swabs be released for testing – Whether results of testing admissible would have to be decided in the future – Orders as above.

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[F] v R [2023] NZCA 448

Sentencing discounts, sexual offending

Howard v R [2023] NZCA 449

Appeal against sentence of 6 years 3 months imprisonment – Historic sexual offending – Indecency between a man and a boy (x9); Indecent assault on a boy under 12 (x2) – H employed as a teacher at Dilworth School – Whether sentence manifestly excessive – HELD: Maximum sentence for s140(1)(c) Crimes Act 1961 offending at relevant time was 10 years imprisonment, but same offence now under s134(3) had maximum of 7 years imprisonment – Under s25(g) New Zealand Bill of Rights Act 1990, W entitled to the benefit of the lesser penalty – On the facts of this case, the correct maximum penalty did not affect the starting point analysis – Judge appropriately compared offending with that of another teacher at the school – Starting points and uplifts within available range – 10 percent allowed for remorse and payment of reparation insufficient – 15 percent discount appropriate (total discount of 35 percent) – No discount for age, or poor health – No evidential foundation for causative contribution due to W being a victim of sexual abuse as a child – W not entitled to discount for fact did not offend for some 20 years – Appeal allowed in part – Sentence of 5 years 10 months imprisonment substituted.

New Zealand High Court

Sentencing, murder

R v Esera [2023] NZHC 2542 (12 September 2023) Harvey J

Sentencing – Jury found E guilty of murder – Life imprisonment imposed with 11 years MPI – Aggravating factors: use of weapon, premeditation, fleeing scene, disposal of evidence, extent of loss – Personal mitigating factors: no previous convictions and efforts at rehabilitation, family history of alcoholism and own alcohol problems contributed to offending.

Sentencing appeal, using document to obtain COVID-19 wage subsidy

Downey v Ministry of Social Development [2023] NZHC 2589 (15 September 2023) Harvey J

Sentence appeal – D convicted of 14 charges of fraudulently using document to obtain COVID-19 Wage Subsidy – Appealed against DC Judge refusal to impose home detention –

HC said DC Judge correct to prioritise denunciation and deterrence imposing imprisonment sentence – Offending related to exceptional aid schemes calling for stern response.

High Court of Australia

Report, legislative “proceedings”

Crime and Corruption Commission v Carne {2023] HCA 28 (13 September 2023)

Unsuccessful appeal from Queensland CA – Key issue whether s 8(1) Parliament of Queensland Act 2001 (Qld) (POQ Act) precluded CA from making declaration concerning Crime and Corruption Commission (Commission) "Report" – If Report preparation and presentation were Legislative Assembly of Queensland "proceedings" Report could not be impeached or questioned in any court –

In June 2018, Commission received anonymous complaint against C, who was Queensland Public Trustee – Complaint alleged C had been involved in corrupt conduct and was guilty of maladministration – Commission commenced investigation into allegations – Ultimately resulted in Commission taking two actions under CC Act: referring certain information to Attorney-General; and making several recommendations to Acting Public Trustee regarding Public Trust Office operations –

Following investigation, Commission prepared Report, which Commission sought to make public by tabling it in Legislative Assembly with assistance from Parliamentary Crime and Corruption Committee (Committee), Commission's parliamentary oversight body –

C brought proceedings in Supreme Court to prevent Report tabling – Application dismissed – However, overturned on appeal – CA majority said Report not report for purposes of s 69(1) purposes, making declaration accordingly –

HC said, on facts, preparation and presentation of Report not brought within scope of Legislative Assembly "proceedings" – This was because Report not prepared for, or presented to, Committee for purposes of transacting Committee business; Commission prepared and presented to Committee for Commission's own purpose of making Report public – Consequently, parliamentary privilege did not attach to Report – Appeal dismissed.