New Zealand Law Society - Courts roundup 16 November - 22 November 2023

Courts roundup 16 November - 22 November 2023

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

Christchurch Courts

New Zealand Supreme Court

Criminal Procedure, referred question

Re Solicitor-General’s Reference (No 1 Of 2023) From CA636/2021 ([2022] NZCA 504) [2023] NZSC 151 (17 November 2023)

Referral under s 317 Criminal Procedure Act 2011 – Solicitor-General referred question of law to SC – Question arose from CA decision allowing D’s appeal against conviction for aggravated robbery – Reference allowed issue of law to be raised without affecting original case outcome – Meant SC determining question did not affect D’s conviction being quashed –

D and A charged with aggravated robbery but D charged under s 235(b) Crimes Act 1961 and A under s 235(a) – Section 235 said offence if any person: (a) robs any person and, at the time of, or immediately before or immediately after, the robbery, causes grievous bodily harm to any person; or (b) being together with any other person or persons, robs any person –

Crown prepared summary of facts – D pleaded guilty – Sentenced to four months’ community detention and nine months’ supervision – A pleaded not guilty and went to trial – Acquitted of aggravated robbery and other charges, including wounding with intent –

D appealed conviction to CA, essentially saying no reasonable basis for conviction given A’s acquittal – CA allowed appeal and quashed conviction – Said D’s guilty plea could not be reconciled with A’s acquittal – Accordingly miscarriage of justice –

SC granted leave to Solicitor-General on following question:

“On the facts as set out in the Court of Appeal decision and the relevant documents on which guilty pleas were entered, did Mr Anderson’s acquittal mean that Mr Darling could not, in law, have been convicted of the offence with which he was charged, despite his guilty plea?”

SC unanimously agreed CA wrong in law about effect of A’s acquittal on D’s conviction– Answer to referred question “No”.

Self-represented litigant, name suppression

Singh v Auckland District Health Board [2023] NZSC 152 (17 November 2023)

Unsuccessful leave application – Self-represented S applied for leave to appeal against CA decision dismissing various applications, including one for name suppression – Proceedings between S and ADHB began in Human Rights Review Tribunal where S claimed, among other things, she had been discriminated against –

HC struck out and dismissed various applications including for name suppression – CA said appropriate to deal with on papers – Dismissed application for time extension to lodge appeal saying delay not explained and dismissed name suppression application –

SC said no matter of public or general importance arose – No appearance of miscarriage of justice – Application declined.

New Zealand Court of Appeal

Indecent assault, indecent act, historic offending, miscarriage of justice - Login Required

[L] v R [2023] NZCA 561 

Murder, extension of time, minimum period of imprisonment

Wheeler v R [2023] NZCA 563

Successful application for extension of time – Appellant pled guilty to murder and sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 10 years – Whether but for this minimum requirement personal mitigating circumstances would have warranted an MPI of no more than 6-8 years – Sought that life sentence be quashed and replaced with a finite sentence of 14-16 years’ imprisonment with an MPI of 6-8 years – Whether Judge erred in finding that the source of manifest injustice must be the life sentence itself, rather than the 10 year MPI – HELD: Extension of time granted – Life sentence is not manifestly unjust in this case, taking into account that the MPI is 10 years – Finite sentence not appropriate in this case – Appeal dismissed.

Extended supervision order, sexual offences

Reuben v Chief Executive of the Department of Corrections [2023] NZCA 564

Successful appeal against extended supervision order (ESO) – Appellant had a history of sexual offending – Sentenced in 2018 to 4 years’ imprisonment for the index offending (sexual violation) and concurrently to 12 months’ imprisonment for the indecent act, 12 months’ imprisonment for injuring with intent to injure, and 9 months’ imprisonment for theft – Pled guilty to a charge of doing an indecent act in a public place in 2022 – Interim supervision order (ISO) imposed upon release pending ESO application – Whether there was a pervasive pattern of serious sexual offending – Whether there a high risk of future sexual offending – HELD: Court was concerned with appellant’s current risk not potential future risk – Appellant not at high risk of committing further relevant sexual offences – ESO quashed – Application for name suppression dismissed.

Relationship property, relationship debt, advances by trust

Johnson v Johnson [2023] NZCA 566

Partially successful appeal – During marriage appellant was recipient of several advances from the trust – HC ruled that although the advances were loans and hence repayable, a number of them were not relationship debts – Appellant appealed the finding that certain advances were not relationship debts – Respondent cross-appealed in respect of the finding that the advances were loans – HELD: Application for leave to adduce further evidence on appeal granted – Appeal allowed – Relationship debt claimed reduced by 50 per cent – Specific advances identified as relationship debts – Cross-appeal dismissed.

Admissibility of evidence, opinion evidence, sexual violation - Login Required

[S] v R [2023] NZCA 567 

Fitness to stand trial, Foetal Alcohol Spectrum Disorder - Login Required

[M] v R [2023] NZCA 573 

Extradition, procedure, judicial review - Login Required

[P] v R [2023] NZCA 574 

Defamation, liability, responsible communication on a matter of public interest

Christian v Bain [2023] NZCA 579

Unsuccessful appeal against liability and costs – Two articles were published in 2019 about the apparent misuse of local authority dumping facilities by Smart Environmental Ltd (Smart), a waste management company closely associated with the appellant – The respondent was a competitor and former employee of Smart and was the initial and principle source for the articles – HC found that the publications contained imputations defamatory of the appellant, and that the respondent was responsible for them as a joint tortfeasor – The respondent succeeded in making out the defence of responsible communication on a matter of public interest – Whether HC wrong to find that respondent was a joint tortfeasor – Whether HC wrong to find the articles defamatory of the appellant – Whether HC wrong to find that the defence of responsible communication on a matter of public interest was made out by respondent – HELD: Court was satisfied that the respondent assumed sufficient responsibility for the substance of the allegations about the appellant – Articles were defamatory of the appellant – Allegations were serious but they were of real public importance – Appeals and cross-appeal dismissed.

New Zealand High Court

Judicial review, fluoridation, NZBORA

New Health New Zealand Inc v Director-General of Health [2023] NZHC 3183 (10 November 2023) Radich J

Successful judicial review application – HC ruled Director-General of Health erred by not considering New Zealand Bill of Rights Act 1990 (NZBORA) when issuing orders for 14 local councils to fluoridate drinking water – Director-General required to turn mind to whether directions given under s 116E  Health Act 1956 in each case reasonable limit on right to refuse medical treatment – Needed to be satisfied and, if satisfied, needed to say why – Application allowed.

Sentencing, murder

R v Taua [2023] NZHC 3205 (14 November 2023) McQueen J

Sentencing – T pleaded guilty to murdering H – Sentenced to life imprisonment with minimum period of imprisonment (MPI) ten years – Section 104 Sentencing Act 2002 not engaged – Starting point for MPI 11 years – One year discount for guilty plea – HC accepted background factors and remorse would justify further discount but did not quantify discount given requirement for MPI at least ten years.

Cryptopia, liquidation application, directions

Ruscoe v Houchens [2023] NZHC 3224 (15 November 2023) Palmer J

Unsuccessful application to make submissions – ET applied to make submissions on Cryptopia Ltd liquidators’ application for directions on distribution – Timing and process prejudiced liquidators, counsel assisting Court, others and HC in considering and responding to submissions – Court made directions to hear ET applications to be joined to proceedings and by liquidators to examine VC, who was behind ET.

High Court of Australia

Jury trial, misconduct, juror research

HCF v R [2023] HCA 35 (15 November 2023)

Unsuccessful appeal from Queensland CA – Concerned whether miscarriage of justice following undisputed irregularity of jury's conduct –

Day after jury returned verdicts, juror delivered note to Deputy Registrar about jury's deliberations – Caused trial judge to authorise Sheriff of Queensland to investigate under s 70(7) Jury Act 1995 (Qld) – Trial judge sentenced HCF following day – Investigation subsequently revealed combination of conduct involving: (1) one juror researching definitions of and sentences for rape and unlawful carnal knowledge; (2) juror informing other jury members about research; and (3) other jury members not informing trial judge of juror’s conduct, all contrary to trial judge directions – HCF appealed convictions to CA saying conduct gave rise to miscarriage of justice – Appeal dismissed.

HC majority said in cases of jury or juror misconduct, to establish miscarriage of justice, what would fair-minded and informed member of public might reasonably apprehend jury (or juror) might not have discharged or might not discharge jury function of rendering verdict according to law, on evidence and according to judge’s directions – Here, objective nature and extent of misconduct meant only might provide basis upon which someone might speculate jury might not have discharged its function as required – Appeal dismissed.

Party, co-accused, evidence admissibility

McNamara v R [2023] HCA 36 (15 November 2023)

Unsuccessful appeal from New South Wales CA – Concerned s 135(a) Evidence Act 1995 (NSW), empowered court to refuse to admit evidence relevant and otherwise admissible in proceeding if probative value substantially outweighed by danger evidence might be unfairly prejudicial to "a party" – Question here whether "a party" included co-accused in joint criminal trial –

McN co-accused, R tried by jury in NSW Supreme Court on single indictment for murder and supplying large commercial quantity of methylamphetamine – During trial, to support duress defence, McN sought to give evidence R told him he "did" another person, shot person and had murdered or been involved with murders of other persons – R’s Counsel objected to proposed evidence, saying probative value to McN substantially outweighed by real danger of unfair prejudice to R – Trial judge excluded evidence under s 135(a) –

CA dismissed appeals – One ground of McN's appeal that trial judge lacked power to exclude proposed evidence about person R had allegedly killed because R not "a party" to McN's trial – CA rejected argument –

HC unanimously dismissed appeal – Said CA correct to hold "a party" in s 135(a) extended to and included co-accused in joint trial – Joint trial "a proceeding" to which each co-accused "a party" – Interpretation reflected common law position in Australia – Strong principle and policy reasons to support judicial discretion to exclude evidence where probative value outweighed by prejudicial effect on another co-accused – Appeal dismissed.

United Kingdom Supreme Court

Limitation, “deliberate commission”

Canada Square Operations Ltd v Potter [2023] UKSC 41 (15 November 2023)

Unsuccessful appeal from CA – Limitation Act 1980 (1980 Act) set out limitation periods for bringing different kinds of legal claims – Section 32(1)(b) postponed commencement of ordinary limitation period where any fact relevant to claimant’s right of action “deliberately concealed” from them by defendant – Section 32(2) provided, for s 32(1) purposes, “deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty” –

SC asked to clarify meaning of phrases “deliberately concealed” in s 32(1)(b) and “deliberate commission of a breach of duty” in s 32(2), to determine whether P’s claim against CS issued too late and therefore time barred – Meaning of “deliberate commission of a breach of duty” in s 32(2) also considered in Privy Council judgment in Primeo Fund v Bank of Bermuda (Cayman) Ltd [2023] UKPC 40, handed down on same date as this judgment (see above).

On 26 July 2006, P entered into agreement with CS, then known as Egg Banking plc – Agreement credit agreement within meaning of Consumer Credit Act 1974 (1974 Act) – P borrowed £20,787.24 from CS, comprising cash loan of £16,953.00 and payment protection premium of £3,834.24 (premium) – Premium related to P’s purchase of payment protection insurance policy ("PPI Policy”), which CS arranged on her behalf – Over 95% of premium paid to CS as commission on PPI Policy sale – Sum paid to insurer only £182.50 – CS did not tell P about commission – Agreement ended on 8 March 2010 –

On 14 December 2018, P issued claim against Canada Square, seeking to recover amounts for PPI Policy, plus interest – P said CS failure to disclose commission rendered relationship between them “unfair” within meaning s 140A 1974 Act – CS said too late for P to claim because s 9 1980 Act imposed six-year limitation period which had long expired – Relying on s 32, P contended claim not time barred because limitation period did not start to run until she found out about commission after taking legal advice in November 2018 –

County Court said s 32 applied and P could take claim – CS appealed unsuccessfully to CA – CA said both s 32(1)(b) and s 32(2) operated to postpone commencement of six-year limitation period, so P’s claim not time barred – CS appealed to SC –

SC unanimously dismissed CS appeal – Said P’s claim not time barred – Section 32(1)(b) 1980 Act postponed commencement of six-year limitation period until November 2018, when P advised premium likely to have included substantial commission – However, CS failure to disclose commission not deliberate breach of duty for s 32(2) purposes – CA wrong to say CS also deprived of limitation defence through that section – Appeal dismissed.

Asylum, refoulement, Rwanda Policy

R (on the application of AAA (Syria) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023)

Unsuccessful Home Secretary appeal from CA – Under Home Secretary’s Rwanda policy, certain people claiming asylum in UK would be sent to Rwanda where Rwandan authorities would decide claims – If claims successful, granted asylum in Rwanda – SC required to decide whether Rwanda policy lawful – Legal question Court asked to decide on evidence and established legal principles, including law as laid down by Parliament – Court said not concerned with and should not be regarded as supporting or opposing any aspect of political debate surrounding policy –

Legal basis for Rwanda policy set out in paragraphs 345A to 345D Immigration Rules, in accordance with s 3 Immigration Act 1971 – Broadly speaking, permitted Home Secretary to treat asylum claim as inadmissible if claimant had opportunity to apply for asylum in safe third country but did not do so – Claimant could then be removed from UK to any safe third country which agreed to accept them – Under paragraph 345B, country would only qualify as safe third country if “non-refoulement” principle respected there – Principle required asylum seekers not returned, directly or indirectly, to country where life or freedom would be threatened on account of race, religion, nationality, membership of particular social group or political opinion, or they would be at real risk of torture or inhuman or degrading treatment –

On 13 April 2022, UK and Rwandan governments entered into Migration and Economic Development Partnership (MEDP), recorded in Memorandum of Understanding and two diplomatic “Notes Verbales” – Based on arrangements and assurances given in MEDP, Home Secretary decided Rwanda safe third country to which asylum seekers could be removed –

Several asylum seekers challenged both lawfulness of Rwanda policy and Home Secretary’s decisions to remove each particular claimant to Rwanda – United Nations High Commissioner for Refugees (UNHCR), UN Refugee Agency, intervened in proceedings – Divisional Court said Rwanda policy in principle, lawful – However, way in which Home Secretary implemented policy in claimants’ individual cases procedurally flawed – Decisions in those cases would consequently be quashed and remitted to Home Secretary for reconsideration –

Appeal to CA concerned only challenge to lawfulness of Rwanda policy – CA majority said Rwanda policy unlawful – On evidence before Divisional Court, substantial grounds for believing real risks asylum claims would not be properly determined by Rwandan authorities – Therefore, real refoulement risks – Unless and until deficiencies in Rwandan asylum system corrected, any removal of asylum seekers to Rwanda under MEDP would breach s 6 Human Rights Act 1998 – Home Secretary appealed to SC –

SC unanimously dismissed Home Secretary’s appeal and upheld CA conclusion that Rwanda policy unlawful because substantial grounds for believing asylum seekers would face real risk of ill-treatment by reason of refoulement to their country of origin if they were removed to Rwanda – Appeal dismissed.

Judicial Committee of the Privy Council

Madoff Ponzi scheme, custodian and bank liability, limitation “deliberate commission”

Primeo Fund (in Official Liquidation) v Bank of Bermuda (Cayman) Ltd [2023] UKPC 40 (15 November 2023)

Partly successful appeal and cross-appeal from Cayman Islands CA – Concerned litigation arising from Madoff multi-billion-dollar Ponzi scheme –

Primeo operated as investment fund – Sought funds from customers and from 1994 invested them with Bernard L Madoff Investment Securities LLC (BLMIS) – BLMIS represented  invested funds in securities safely held in designated accounts on behalf of all its clients – BLMIS offered consistently high rates of return which were attractive to Primeo and customers, so that over time Primeo invested large sums with BLMIS –

Later emerged that BLMIS only able to offer such high rates of return because used by Bernard Madoff to carry on fraudulent Ponzi scheme – Under scheme BLMIS accepted funds from clients, including Primeo, but rather than purchasing securities as supposed to, immediately diverted funds to pay other clients to prop up scheme and give illusion client funds properly invested to achieve high rates of return –

From 2004, Primeo also began investing indirectly with BLMIS by purchasing shares in two feeder funds associated with Madoff, Alpha Prime Fund Limited (Alpha) and Herald Fund SPC (Herald). On 1 May 2007, Primeo entered transaction whereby switched its remaining direct investments in BLMIS to turn them into an indirect investment through Herald –

To operate investment fund, Primeo appointed Bank of Bermuda (Bank) as fund administrator and HSBC as custodian of assets held in fund – To fulfil obligations as custodian, in 2002 HSBC appointed BLMIS as sub-custodian of securities supposed to be held for benefit of Primeo’s customers – Agreed HSBC liable from 2002 until Herald Transfer took effect on 1 May 2007 for any breach of duty committed by BLMIS relating to failing to keep securities safe, regardless of whether HSBC at fault itself or not (strict liability claim) –

Eventually, BLMIS Ponzi scheme collapsed – On 11 December 2008 Madoff charged with fraudulently operating scheme – Emerged BLMIS massively insolvent and securities supposed to be held for clients did not exist – Primeo could not recover funds it had invested directly and indirectly with BLMIS and placed into liquidation – Liquidator sought to pursue various claims on behalf of Primeo in effort to recover some of money lost –

On 20 February 2013, Primeo brought claims against Bank and HSBC in Grand Court of Cayman Islands for breach of contractual duties as Primeo’s administrator and custodian – Trial judge dismissed Primeo’s claims, principally because Bank and HSBC had caused no loss – Claims also barred by rule against recovery of reflective loss which prevented shareholder (here, Primeo) from claiming for same loss suffered by company in which shares held (Alpha and Herald) against same alleged wrongdoers – Cayman Islands CA dismissed Primeo’s appeal primarily because reflective loss rule barred claims – Court also ruled on range of other issues relevant if Primeo succeeded in appeal against reflective loss determination –

Primeo appealed to PC – Bank and HSBC cross-appealed on various issues – PC heard appeal against reflective loss determination as preliminary point, because if appeal failed no other issues would arise – PC allowed Primeo’s appeal against reflective loss determination – Meant wide range of other issues ­– Judge and CA decided issues did arise and had to be determined – Issues arising grouped under three headings: (1) extent of liability and damages; (2) statutory limitation of claims; and (3) contributory negligence – PC judgment addressed Primeo’s appeal and cross-appeal to challenge CA decisions from competing perspectives –

Unanimous PC judgment allowed Primeo’s appeal in part and cross-appeal in part – Regarding liability and damages, PC said, among other things, Primeo suffered immediate and real loss for which HSBC liable and losses in principle capable of being measured – Said Bank negligent in performing contractual obligation as administrator to calculate Primeo’s net asset value from time to time between 1996 and 2005 and grossly negligent making calculations from 2005 onwards, when its knowledge of relevant state of affairs had changed –

On limitation, PC said relevant ordinary limitation period in Cayman Islands six years – However, s 37(2) Cayman Islands Limitation Act (1996 Revision) postponed commencement of ordinary limitation period where “deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time” – Agreeing with CA, PC said recklessness over whether breach of duty committed distinct from “deliberate” commission of breach of duty, as s 37 (2) required –

However, commencement of limitation period on Primeo’s strict liability claim against HSBC postponed – PC said none of Primeo’s claims in respect of HSBC’s responsibilities as custodian time barred under s 37(1)(b), or under s 37(1)(a) which referred to fraud, since was fraud and deliberate concealment of relevant facts by BLMIS as HSBC’s sub-custodian – BLMIS HSBC’s agent in fulfilling HSBC’s own obligations owed to Primeo as custodian –

Regarding contributory negligence, on facts, PC said defence not available to HSBC because specific duties in contract not same as any concurrent duty in tort, such as obligation to exercise reasonable skill and care – Regarding claim against Bank, where defence did apply, PC said CA right to allow Primeo’s appeal against 75 percent reduction in its damages as judge decided and ruled instead that 50 percent reduction appropriate because judge had not attached proper weight to fact that Bank professional service provider as much at fault as Primeo in causing damage – Appeal and cross-appeal allowed in part.

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