New Zealand Law Society - Courts roundup 19 October - 25 October 2023

Courts roundup 19 October - 25 October 2023

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

Book on stand in Wellington High Court

New Zealand Supreme Court

Foreign country deportation

Smith v R [2023] NZSC 134 (17 October 2023)

Unsuccessful leave application – Application from S’s deportation following escape from custody in New Zealand while on short-term release – Deportation from 3rd Federal Criminal Court in Rio de Janeiro, Brazil –

SC said proposed appeal raised no question of general or public importance – Deportation under order, validity of which not challenged before Brazilian courts so no error or misconduct established – Factor distinguished case from others where disguised extradition claim successful – Application declined.

Marine and coastal area, Māori claims

Paul v Attorney-General [2023] NZSC 135 (19 October 2023)

Unsuccessful leave application – Late P long-standing New Zealand Māori Council member and former Mataatua District Māori Council Chair, applied to HC under s 98 Marine and Coastal Area (Takutai Moana) Act 2011 for orders recognising customary marine title over all New Zealand’s marine and coastal area, “on behalf of all Māori” – Application purpose said to be protective: to enable Māori groups who had not yet applied to do so after six-year statutory deadline prescribed in s 100 –

Subsequently amended application to be for eight named applicants for some 75 percent of marine and coastal area –

SC said while arguments advanced of general importance, not necessary in interests of justice to hear and determine appeal – Application dismissed.

Takedown order

Exley v NZME Publishing Ltd [2023] NZSC 136 (19 October 2023)

Successful leave application – Approved question whether CA correct to quash HC takedown order – Application granted.

Indecent assault, evidence

Mohammed v R [2023] NZSC 137 (20 October 2023)

Unsuccessful leave application – M convicted of three charges of indecent assault after DC jury trial – Application for discharge without conviction refused – Sentenced to seven months’ home detention and required to pay $7,000 emotional harm reparation to complainant –

Unsuccessfully appealed to CA against conviction – CA rejected submission Crown used lies in M’s statement to bolster victim’s credibility or relied on M’s lies as evidence of guilt – SC said M’s submissions supporting leave application largely repeated those in CA – Not in interests of justice to grant leave – Application dismissed.

New Zealand Court of Appeal

Tax fraud, second appeal

Coleman v Commissioner of Inland Revenue [2023] NZCA 494

Successful application for an extension of time – Unsuccessful application for leave to bring second appeals against conviction and sentence on 42 charges of tax fraud – Sentenced to 4 years 9 months’ imprisonment – On first appeal conviction in respect of charges 2 to 34 allowed and retrial ordered on those charges – Charges subsequently withdrawn by IRD as not in the public interest – Applicant appealed for a second time – Court has a discretion to extend time for filing an application for leave to appeal  in appropriate cases – Evidence reviewed and absence of opposition noted – Whether conviction involved a matter of general or public importance, or a miscarriage of justice occurred – Appeal against sentence not progressed, but neither was it formally abandoned at first appeal – Respondent’s position was that there was simply no jurisdiction for a second appeal because there has been no determination of a first appeal – HELD: extension of time to file appeal granted – Trial counsel’s conduct fell below the standard expected of a trial lawyer, but no miscarriage of justice occurred – No jurisdiction for second appeal against sentence – Leave to appeal declined.

Party to murder, EM bail, suitability of bail address - Login Required

[B] v R [2023] NZCA 500 

Murder, admissibility of witness statements - Login Required

[FI] v R [2023] NZCA 505 

Extension of time, COVID-19 policy

Reihana v Foran [2023] NZCA 506

Unsuccessful application for extension of time – Applicant filed proceedings against Air New Zealand and its Chief Executive Officer in relation to the airline’s Covid-19 vaccination policy – Proceedings struck out in HC – Appeal treated as having been abandoned – Application for extension of time to apply for allocation of a hearing date and to file case on appeal – HELD: delay significant on part of applicant – No good reason advanced for not complying with obligations – Application declined.

Leave to appeal, unsuccessful arguments

Sharma v Foster-Bohm [2023] NZCA 509

Unsuccessful application for leave to appeal – Respondents were employees of INC New Zealand Inc (IHC) and had their employment terminated as part of a restructuring – Applicant was engaged to represent them making a claim for unjustifiable dismissal – Claim was raised outside of statutory timeframe and failed – Respondents brought claim against applicant alleging negligence, breach of contract and breach of fiduciary duty – Respondents were successful in DC – Applicant's subsequent appeals were unsuccessful – Applicant sought leave to bring second appeal, but sought to raise the same arguments that were raised and rejected in the HC – HELD: leave should not be granted – Application declined.

Unconscionable bargain, breach of contract, fiduciary duties

Pfisterer v Claims Resolution Service Ltd [2023] NZCA 511

Unsuccessful appeal against HC decision – Appellant reached an impasse with her insurer after the Canterbury earthquakes of 2010-2011 – First respondent was engaged to help reach a resolution – Attempts at resolution failed - Second respondent was engaged but the relationship between them and the appellant broke down – First respondent issued proceedings against appellant seeking to recover approximately $100,000 – Appellant raised a variety of defences including allegations of misleading and deceptive conduct, unconscionable bargain, breach of contract by first respondent, and breach of fiduciary duty by both first and second respondents – HC found in favour of first and second respondents – Whether Judge erred in findings in relation to first and second respondents - HELD: Judge did not err in findings – Appeal dismissed.

New Zealand High Court

Sentencing, manslaughter

R v Nagel [2023] NZHC 2908 (17 October 2023) Dunningham J

Sentencing – N pleaded guilty to manslaughter – Sentenced to two years' imprisonment – Leave granted to apply for home detention.

Sentencing, manslaughter

R v Champion [2023] NZHC 2949 (20 October 2023) Dunningham J

Sentencing – C pleaded guilty to manslaughter – Sentenced to two years' imprisonment with special condition imposed on release as per pre-sentence report.

Supreme Court of Canada

Murder, party liability

R v Johnson [2023] SCC 24 (13 October 2023)

Unsuccessful appeal from Ontario CA – Related to jury instructions on J’s trial and conviction in shooting deaths of two brothers, aged 18 and 22 – No eyewitnesses to murders, no security cameras in stairwell where shootings occurred – However, surveillance footage captured J, brothers, and fourth man heading towards stairwell just prior to shooting – Video also showed J and fourth man running away from stairwell short while later – Absence of footage from within stairwell meant impossible to know who, between J and fourth man, killed brothers –

J only one charged – At trial, Crown theory was J murdered first brother as revenge for implicating him in previous crime, and killed second brother to prevent him from avenging first brother’s death – Before jury started deliberations, however, trial judge instructed it on two possible ways could find J guilty under s 21 Criminal Code: either as “principal” who shot deceased, or as party who “aided” fourth person in committing crimes, concept known as “party liability” – No difference between being aider or principal to offence, as all equally culpable – Jury subsequently convicted J of two counts of first-degree murder –

J appealed conviction to Ontario CA – CA majority dismissed appeal – Appealed to SC –

SC unanimously dismissed appeal – Said CA majority correct to conclude trial judge properly left party liability to jury – Evidence on record provided party liability with air of reality – Appeal dismissed.

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