New Zealand Law Society - Courts roundup 15 October - 21 October 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Duffy v R [2026] NZSC 151 (16 October 2026)
Unsuccessful application for leave to appeal against conviction on seven charges of sexual offending – Complainant alleged D sexually violated her between 1987 (when she was about 7 years old) and 1993 – She first complained to police in 1999 but matter was not taken further – In September 2020, following online publicity about D’s sexual offending against another young woman for which he had been imprisoned in 1995, she again complained to police – Jury found D guilty on all seven charges in September 2024 and D was sentenced to 8 years' imprisonment – CA dismissed conviction appeal –
D sought leave on three grounds – First, complainant disclosed prejudicial material in evidence, including references to D having spent time in prison and the existence of a Facebook group in which women complained about being evicted from a property he owned, which encouraged jurors to perform independent research – Judge had dismissed an application to discharge jury and later directed jury to ignore prior imprisonment and that the Facebook group had nothing to do with allegations of sexual abuse – Second, Judge’s directions in summing-up as to misconceptions, primarily concerning inconsistencies and delay, were in error – Third, illegitimate pressure was placed on jury during deliberations when, on a Friday afternoon after jury indicated they were unlikely to reach unanimous or majority verdicts, the Judge gave a combined Papadopoulos–majority verdict direction and jury shortly afterwards returned majority guilty verdicts –
SC held no risk of substantial miscarriage of justice arose on any ground – No evidence suggesting any juror had departed from their oath and undertaken independent research – Misconceptions directions did not cause miscarriage in light of this Court’s judgments in MB v R and TW v R – Combined direction did not cause miscarriage as jury had already turned their minds to majority verdicts before it was given – Issue of cumulative errors did not arise – Leave to appeal dismissed.
Smith v Chief Executive, Queensland Corrective Services [2026] HCA 37 (14 October 2026)
Successful appeal against Qld CA decision that extraction and freezing of eggs is “assisted reproductive technology” (ART), in which prisoners are prohibited by s 22(2) Corrective Services Act 2006 (Qld) (CSA) from participating or applying to participate –
S, a prisoner serving a 10 year sentence, applied to CE for approval to undergo egg extraction and freezing at her own cost – Evidence showed statistical reduction in fertility between ages 33-35 and 39-41, and S would be 39 at parole eligibility and 41 at sentence expiry – CE refused on basis that egg freezing was ART – Primary judge dismissed S’s application for statutory order of review, and CA dismissed her appeal, holding ART was broad and the only purpose of extracting and freezing eggs was to have them available for future reproduction –
HC unanimously held ART does not include egg extraction and freezing, though judges differed in their reasoning – Gordon A-CJ and Beech-Jones J found ART includes only technology directly assisting conception or reproduction, whereas egg freezing preserves fertility – This construction accorded with CSA purposes of humane containment, taking into account prisoner’s dignity and special needs by reason of age and sex – Explanatory Notes to s 22(2) CSA directed at prisoners procreating in custody, as the technological equivalent of the ban on conjugal visits – CA construction was too broad, and would in practice extend denial of right to procreate beyond imprisonment –
Edelman J found CA’s wide interpretation involved errors of literalism and contextomy, and that s 22(2) CSA applies to procedures, using technology, capable by themselves of achieving reproduction, being solely directed at extending ban on conjugal visits – Wide interpretation was also a non-conforming interpretation under s 48 Human Rights Act 2019 (Qld), since it unjustifiably limited rights to dignity and to access health services without discrimination – Rejected Attorney-General’s submission that s 22(2) had a punitive purpose –
Gleeson J found text presented two constructional choices, as to meaning of ART and of “participate”, resolved in S’s favour by CSA purposes – ART is defined by its end of achieving reproduction, which egg freezing achieves only by way of a further procedure - “Participate” could be construed broadly to extend to prisoner consenting to use of their eggs or sperm by a third party – Read purposively, s 22(2) CSA neither over nor under-inclusive in achieving aim of reinforcing ban on procreation by prisoners –
Jagot J found “reproductive” controls the meaning of ART, being technology the use of which results in procreation – Rejected submission that denying fertility preservation was a legitimate part of punishment and deterrence, since punishment lies in deprivation of liberty itself –
Appeal allowed – CE’s decision quashed and matter remitted for determination according to law – CE to pay S’s costs.
R v AM 2026 SCC 33 (16 October 2026 )
Two accused were charged with Criminal Code offences, including sexual services and human trafficking offences, arising from sexual services provided by the complainant – Accused had brought an application under s 276 Criminal Code to cross-examine the complainant regarding her previous sex work – They asserted the focus of the cross-examination would be on the financial and advertising aspects of the complainants work, rather than its sexual nature –
A pre-screening regime applies in s 276 to proceedings under certain sections of the Criminal Code and the earlier trial judge had refused the accused’s application stating it was irrelevant or suggestive of twin-myth reasoning – Subsequently, the accused were acquitted on the human trafficking charges but convicted of the sexual services offences – CA held the trial judge had erred in applying s 276 and new trials on the sexual services offences were ordered – This decision was appealed to the SC –
SC held that categorically adding the sexual services and human trafficking offences to the enumerated offences in s 276 would be contrary to Parliament’s intent – Extending the application of common law pre-screening rules set out in Seaboyer would be inappropriate given the foregoing conclusion –
Prior sexual-history evidence is not categorically irrelevant but it cannot be used to invoke the twin myths, demean a complainant, or establish a general propensity to engage in sex work – It may, however, support legitimate inferences arising from the commercial or contextual features of prior work, including the complainant’s state of mind, autonomy, working arrangements, and relationship with the accused – Here, the evidence that the accused wanted to introduce concerned the commercial nature of the complainant’s previous sex work, rather than its sexual nature – It was intended to show that the complainant had previously chosen to work in the sex trade voluntarily, rather than having been recruited or exploited by the accused –
SC concluded unanimously that while trial judges remain responsible for excluding improper questioning and discriminatory reasoning, in this instance the trial judge had erred by applying s 276, restricting cross-examination, and redacting the complainant’s preliminary-inquiry evidence – Appeal was dismissed, and the order quashing the convictions for the sexual-services offences and directing new trials was affirmed.