New Zealand Law Society - Courts roundup 17 November - 23 November 2022

Courts roundup 17 November - 23 November 2022

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

Sexual offending, physical violence, juror discharge

TUPA’I v R [2022] NZSC 132 (16 November 2022)

Unsuccessful leave application – T faced two charges of sexual offending against young family member (C) and 16 charges involving physical violence against C and her sibling – Three violence charges dismissed after Crown case closed – During jury deliberations on remaining charges, trial judge discharged juror (Juror 1) – Jury proceeded with 11 members – T acquitted on three violence charges and found guilty of remainder of charges – Trial judge sentenced him to seven years’ imprisonment –

T appealed unsuccessfully to CA against conviction – Applied for leave to appeal to SC – Proposed appeal would focus on Juror 1’s discharge –

SC said proposed appeal would largely reprise arguments CA considered – No material error in CA analysis – As CA observed, trial Judge “alive to the delicacy of the situation” where jury deliberating – Discharge decision reflected careful process that trial counsel supported – No submission at time that further directions required to address this particular fact combination – No question of general or public importance accordingly arose – No appearance of miscarriage of justice in CA assessment – Application dismissed.

Water rights, historic consents

Cloud Ocean Water Ltd v AOTEAROA WATER ACTION Inc and ors [2022] NZSC 133 (17 November 2022)

Successful leave application – Approved question whether CA correct to allow appeal.

Self-represented litigant, security for costs

Harrison v Harrison, Harrison and ors [2022] NZSC 135 (18 November 2022)

Unsuccessful leave application – Self-represented H applied for leave to appeal against CA decision striking out her leave application for failure to pay security for costs –

SC said application did not satisfy criteria for leave to appeal – Raised no matter of general or public importance – No risk of miscarriage of justice – Application dismissed.

Voting age, Bill of Rights, declaration of inconsistency

Make It 16 Inc v Attorney-General [2022] NZSC 134 (21 November 2022)

Successful appeal – M group seeking to have voting age lowered from 18 to 16 years – As part of advocacy legislative change, sought declarations in HC provisions setting minimum voting age in Electoral Act 1993 and Local Electoral Act 2001 were inconsistent with right to freedom from age discrimination under s 19 of New Zealand Bill of Rights Act 1990 (Bill of Rights) – “Age” for these purposes was any age from 16 years –

HC declined to grant declarations sought – Said while voting age provisions appeared inconsistent with s 19 right, inconsistency reasonable limit on right under s 5 Bill of Rights – CA disagreed, saying limit not justified but declined to make declarations – Court referred, among other things, to issues’ political nature –

M appealed to SC – SC majority allowed appeal regarding Electoral Act provisions and unanimously regrading Local Electoral Act – Granted declaration that provisions of Electoral Act and Local Electoral Act which provided for minimum voting age of 18 years were inconsistent with right in s 19 to be free from discrimination on basis of age; these inconsistencies had not been justified in terms of s 5 – Majority rejected argument for Attorney-General that issues’ constitutional nature meant Court should not inquire into consistency question at all – SC did not see that approach as consistent with its role, particularly where fundamental rights were involved –

Majority considered Court should fulfil its role which was to declare the law – Court also recognised there might be other matters Parliament should take into account to ensure position ultimately adopted had necessary democratic legitimacy – Appeal allowed.

New Zealand Court of Appeal

Appeal against sentence, sentencing discounts, manslaughter

Hohua v R [2022] NZCA 550

H charged with murder of P who died of a single stab wound inflicted by H during an altercation – H asserted self-defence, and jury returned manslaughter verdict – Sentence imposed 6 years and 3 months imprisonment – Whether sentence manifestly excessive with regard to starting point (7.5 years imprisonment) and weight given to H’s personal background – HELD: Offending appropriately placed in middle of band two of R v Taueki – Manslaughter verdict meant H was acting out of self-defence, albeit that the force used was unreasonable – Generally defensive nature of H’s actions, although not a defence to the charge, was properly viewed as a mitigatory feature of the offending – 6 month allowance (6.25 percent) for provocation appropriate – Starting point of 7 years 3 months properly reflected all the circumstances of offending – Greater discount of 25 percent warranted for consequences of post-traumatic stress disorder – Appeal allowed – Sentence of 5 years 3 months imprisonment substituted with minimum period of imprisonment of 2 years.

Appeal against conviction, manslaughter, expert medical evidence

Li v R [2022] NZCA 552

L convicted of manslaughter by failing to provide her husband (E) with the necessaries of life, thereby causing his death – Sentence imposed 5 years 7 months imprisonment – Immediate cause of E’s death was a number of infected pressure sores resulting in sepsis – Mr P, a plastic and reconstructive surgeon, gave expert evidence about the time frame in which those pressure sores were likely to have developed – Whether verdict unreasonable – HELD: Open to the jury reach guilty verdict on the basis of the evidence before it, even if accepted Mr P’s evidence that pressure sores could have appeared and caused E’s death within a period as short as 10 hours – Crown case did not depend on L being actively aware of the pressure sores, or of their full extent – L’s failure to care for E extended to allowing, and not alleviating, the conditions that enabled the pressure sores to develop in the first place and to progress swiftly – Also well open to jury not to accept that pressure sores had developed in as little as 10 hours – Appeal against conviction dismissed.

Trespass, summary judgment, indemnity costs

SPAK (1996) Ltd v Leroy [2022] NZCA 564

SPAK was the operator of an Auckland hotel intended for use as a managed isolation facility in response to the COVID-19 pandemic – Respondent L was building manager of apartments located within the same building – SPAK commenced proceedings in trespass against L, and obtained interim injunction restricting his entry into the hotel – Almost a year later, High Court granted summary judgment dismissing claim, finding SPAK had no arguable case against L and that it had an improper purpose in bringing the proceeding – Indemnity costs awarded – Law of trespass and easements – HELD: Conduct complained of consisted of a door-knock and brief exchange, and the deposit of a handful of letters over a barrier – L was entitled to do both by using right of way over the easement area – Judge correct to grant L’s application for summary judgment, and correct the incidents complained of were trivial and unworthy of court time – Strike out would have been warranted – However, Judge went too far in some of his observations as to improper purpose and indemnity costs not appropriate, though increased costs might be – Appeal against summary judgment dismissed – Appeal against award of indemnity costs allowed and remitted back to HC.

Name suppression, extreme hardship, mental health - Login Required

C (CA 123-2022) [2022] NZCA 566

Appellants faced charges of money laundering, supplying methamphetamine (Class A drug), and participation in an organised criminal group – Crown alleged appellants acted in a banking role, picking up and dropping off money, allowing significant sums to cash to be stored at their home – High Court declined to grant continued name suppression – Trial set down for May 2023 – Whether extreme hardship established – HELD: Difficulties which appellants’ employer would face did not come close to extreme hardship – On the basis of updating evidence concerning C’s mental health (fragile mental state, intensity of her suicidal ideation, and risk of serious self-harm or suicide), publication of appellants’ names would likely cause her extreme hardship – Substantial overlap between the extreme hardship and endangerment of safety grounds – Balance favoured interim name suppression – Appeals allowed and continued name suppression to apply to both appellants given their status as husband and wife, and other connections to each other.

New Zealand High Court

Parliamentary privilege, scope of

Staples and anor v Freeman and ors [2022] NZHC 2972 (14 November 2022) Doogue J

Examination of scope and reach of prohibition against "questioning" of "proceedings" in Parliament and whether and to what extent defendant who provided material to Member of Parliament is themselves also within scope of Parliamentary privilege – Here defendant providing information to Member of Parliament fell within privilege scope.

Defamation, damages

Staples and anor v Freeman and ors [2021] NZHC 1308 (14 November 2022) Doogue J

Reissue of judgment following examination of scope of Parliamentary privilege – F liable to S for defamation – F to pay $120,000 plus 2B costs.

Tokelau HC, guardianship

Council For the Ongoing Government of Tokelau v AB and ors [2022] NZHC 2991 (15 November 2022) Palmer J

HC, sitting as Tokelau HC, detailed reasons for making Tokelauan child Tokelau HC ward, under care of Minister of Education and Faipule of Atafu – Among other things, mentioned that Tokelau legislation did not provide for guardianship of child born out of wedlock – Common law relevant – Also relevant was Tokelau custom – Orders made as applied for.

Land, rating SunGold kiwifruit

Gisborne District Council v Bushmere Trust [2022] NZHC 2996 (16 November 2022) Palmer J

Successful leave application – Trust applied for leave to appeal to CA in test case involving rating of land used to grow SunGold Kiwifruit, because of significant issues and interests at stake – Application granted.

Judicial review, prisoners’ work, telephone call rates

Cheng and anor v Prison Manager, Auckland South Corrections Facility (Serco) and ors [2022] NZHC 3015 (18 November 2022) Downs J

Successful judicial review application – Corrections Act 2004 came into force 1 June 2005 – Act empowered Minister to fix earnings rates for prisoners' work. This judgment holds Corrections Act required Minister to fix rates under that Act – Minister acted unlawfully through not fixing rates – Act also said every prisoner who made outgoing telephone call could be required to meet call cost or pay fee chief executive of Department of Corrections set – Serco, which managed Auckland South Corrections Facility, set outgoing calls fee without required delegation of chief executive – HC said Serco acted unlawfully – Both applications granted.

Sentencing, murder

R v Cahill [2022] NZHC 3030 (18 November 2022) Gwyn J

Sentencing – C pleaded guilty to murder (s 172 Crimes Act 1961) and aggravated robbery (s235(b)) – At trial convicted of assault with weapon (s 202C) – Murder sentence life imprisonment – Section 104 Sentencing Act 2002 MPI 17 years (murder was committed during aggravated robbery and with high level of callousness) unless manifestly unjust – HC said 17 years MPI manifestly unjust because defendant had lesser role in offending than co-offender – Starting point for MPI set at 15 and a half years – Guilty plea discount 18 months – C pleaded guilty to murder charge as party after first trial resulted in hung jury – Further 18 months reduction for remorse and personal mitigating factors – End sentence 12 and a half years MPI for murder, seven years for aggravated robbery and 18 months for assault with weapon, to be served concurrently.

Supreme Court of Canada

Taxation, employee donation of share options to charity

Des Groseillers v. Quebec (Agence du revenu) [2022] SCC 42 (17 November 2022)

Unsuccessful appeal from Québec CA – DG worked for company that granted him stock options, which he donated to registered charities – Auditing his tax returns, Agence du revenu du Québec (ARQ) added donated stock option value to his employment income –

DG appealed ARQ’s decision to Court of Québec, which ruled in his favour – It said he received no benefit for donating his stock options, so their value should not be added to his employment income – ARQ then appealed to Québec CA, which sided with ARQ and restored agency’s original decision to add stock options to DG’s employment income – DG to SC –

SC unanimously dismissed appeal – Said CA correctly applied ss 50 and 422 Québec Taxation Act – Under s 50 if employee transferred stock options received under employee plan to another person or organisation they have no relation to, they are considered to have received taxable employment benefit equal to monetary value of those options – Section 422 said such donations were considered to have been made at stock options fair market value at time of gift – Appeal dismissed.

Intellectual property, patent infringement, compensation

Nova Chemicals Corp. v. Dow Chemical Co [2022] SCC 43 (18 November 2022)

Unsuccessful appeal from Federal CA – Nova Chemicals Corporation (Nova) and Dow Chemical Company (Dow) were plastics industry competitors – Dow patented thin but strong plastics used in products such as garbage bags and food wrappings – When Nova manufactured and sold products covered by Dow’s patent, Dow sued for patent infringement –

Federal Court said Nova violated Dow’s patent – Regarding remedy, Dow asked court to calculate award based on Nova profits from violating patent, accounting of profits – To determine money owed, court calculated revenues Nova earned selling infringing plastics then deducted what Nova paid to produce plastics –

Main chemical ingredient was ethylene – Nova produced ethylene for less than market cost, but Nova asked court to use market cost when calculating how much to deduct from its revenues – Federal Court refused – It deducted Nova’s ethylene production actual cost –

Dow said should also receive some profits Nova made after patent’s expiry that resulted from infringement, “springboard” profits – Federal Court agreed –

Nova appealed to Federal CA – It upheld original award – Nova appealed to SC –

SC majority dismissed appeal – Said lower courts calculated Nova’s accounting of profits correctly – Also said Dow entitled to springboard profits – Appeal dismissed.

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