New Zealand Law Society - Courts roundup 2 May - 8 May 2024

Courts roundup 2 May - 8 May 2024

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

2022 04 13 Coote Supreme Court 173

New Zealand Supreme Court

Self-represented litigant, no appeal

Slavich v Wellington District Court [2024] NZSC 41 (29 April 2024)

Unsuccessful judgment recall application – Self-represented S sought recall of SC 16 April 2024 judgment declining application for review of Deputy Registrar decision to reject application for leave to appeal because appeal not against decision made in the proceeding for s 68 Senior Courts Act 2016 purposes –

SC said absence of statutory jurisdiction rendered S’s attempt to invoke appeal rights futile – Application dismissed.

Self-represented litigant, costs appeal

Strange v Casey Farms [2024] NZSC 42 (30 April 2024)

Unsuccessful leave application – Self-represented S sought leave to appeal directions from single CA Judge managing application to appeal HC costs judgment – Directions that S not file irrelevant or abusive material when making submissions –

SC said arguable decisions mere matter of administration and SC lacked jurisdiction – Rather than resolving issue, assumed it had jurisdiction – Said application manifestly did not meet statutory leave criteria; raised no question of general or public importance and no question of miscarriage of justice – Application dismissed.

Yogi Divine Society, governance

Rohit v Daya [2024] NZSC 43 (30 April 2024)

Unsuccessful leave application – Concerned internal governance of Yogi Divine Society (NZ) Inc (YDSNZ) –

SC said proposed appeal particular to parties and YDSNZ constitution – Raised no issue of general or public importance – Nor did it appear there may have been substantial miscarriage of justice – Application dismissed.

Self-represented litigant, Tax, appropriate forum

Taylor v Commissioner of Inland Revenue [2024] NZSC 44 (30 April 2024)

Unsuccessful leave application – Self-represented T sought leave to appeal CA declining application for extension of time to appeal HC judgment – DC delivered default judgment for unpaid tax and interest and penalties –

CA declined time extension as appeal against DC default judgment “clearly hopeless” – Under s 109 Tax Administration Act 1994, tax assessment challenged only in proceedings under that Act – T did not follow procedure – Consequently, could not dispute assessments in DC debt recovery proceeding Commissioner then took against him –

SC said nothing T raised suggested CA wrong on law – No miscarriage of justice (as term used in civil context) – No question of general or public importance – Application dismissed.

Sexual offences, behavioural evidence

B (SC 6/2024) v R [2024] NZSC 45 (2 May 2024)

Unsuccessful leave application – B found guilty after trial on several charges of sexual assault and indecency against H – CA dismissed his conviction appeal – Applied for leave to appeal to SC on grounds evidence about H’s behavioural changes over offending period not admissible – As evidence adduced at trial, said miscarriage of justice resulted because trial Judge did not direct jury on evidence proper use –

SC said principles applicable to behavioural evidence of this nature not challenged here – Rather, resolution of proposed appeal would essentially raise questions about CA assessment of facts – No question of general or public importance arose – No appearance of miscarriage of justice in CA assessment – Application dismissed.

Immigration, deportation liability

Bolea v R [2024] NZSC 46 (3 May 2024)

Successful appeal from CA – Concerned how sentencing court is to treat risk of deportation when considering application for discharge without conviction under s 106 Sentencing Act 2002 –

B pleaded guilty to one charge of participating in organised criminal group – B Australian national and held New Zealand resident class visa – Under s 161(1)(b) Immigration Act 2009, she became liable for deportation if convicted of offence for which court may impose term of two or more years’ imprisonment – Participation in organised criminal group such offence – B’s liability for deportation meant subject to Immigration New Zealand assessment to determine whether should be deported, taking into account gravity of her offending and her personal circumstances –

B applied for discharge without conviction under s 106 Sentencing Act – If discharged, B not liable for deportation under Immigration Act – Section 107 Sentencing Act said discharge without conviction may only be granted if court is “satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence” –

B said likely prospect she would be deported to Australia, resulting in separation of her young family, consequence out of all proportion to gravity of her offending – Because of his immigration status, partner would be unable to join her and their young child in Australia – Unchallenged evidence at sentencing if B not granted discharge without conviction, deportation liability notice would “almost certainly” be issued –

HC sentencing Judge did not grant B discharge without conviction – Judge distinguished between liability to deportation (referring to exposure of B to Immigration New Zealand processes associated with being liable to deportation) and risk of actual deportation (referring to possibility B actually deported) – While accepting B’s liability to deportation consequence of her conviction for s 107 purposes, Judge said risk of B being deported is consequence of her offending, not of her conviction – Meant that risk of actual deportation was not considered as part of s 107 analysis –

B appealed sentence to CA, primarily saying sentencing Judge wrong to find risk of actual deportation not consequence of her conviction – CA dismissed B’s appeal –

SC unanimously allowed appeal – Emphasised unchallenged evidence that if B not granted discharge without conviction, deportation liability notice would “almost certainly” be issued – In such situation, SC said both liability for deportation and risk of actual deportation should be treated as consequences of her conviction for s 107 purposes – This was because under Immigration Act deportation liability notice issued only when intended to deport individual in question – Further, judge’s obligation to consider discharge under s 107 applied regardless of whether there was any later process in which decision maker might consider similar factors – For example, assessment undertaken by Immigration New Zealand –

SC also highlighted several more general matters relating to s 107 analysis – Said determining whether risk of actual deportation is consequence of conviction under s 107 required individual assessment of defendant’s particular circumstances – If there was credible evidence based on past practice that, in ordinary course, deportation liability notice would issue unless there was specific evidence to contrary – Exposure to deportation should be treated as consequence of defendant’s conviction – Same approach should be followed where clear Immigration New Zealand would not look beyond conviction to consider all circumstances of offending – Position might be different if conviction would not affect issuing of deportation liability notice – For example, if discharge without conviction would not change fact that defendant would still be liable for deportation for another reason –

Even where exposure to deportation is consequence of conviction, SC said did not mean discharge without conviction would necessarily be granted – Determining whether consequence would be out of all proportion to offending in question for s 107 purposes, court had to be satisfied there was real and appreciable risk of that consequence occurring –

SC said there might be situations where mere exposure to procedures relating to deportation, including assessment undertaken by Immigration New Zealand, could be disproportionate consequence to relevant offending –

SC quashed B’s conviction for participating in organised criminal group – B’s application for discharge without conviction is remitted to HC for reconsideration on basis that application would benefit from further evidence – Appeal allowed.

New Zealand Court of Appeal

Neglect, Vulnerable adult, Interests of child - Login Required

C (CA 153-2023) v Police [2024] NZCA 136

Unlawful detention, Failure to follow instructions, Unfair trial - Login required

[M] v R [2024] NZCA 141

Criminal law, Starting point, Uplift

Richards v R [2024] NZCA 142

Unsuccessful appeal against sentence of 6 years 4 months imprisonment for conviction for aggravated robbery and of breaching post-detention conditions – Whether the Judge adopted too high a starting point (8 years 6 months) and uplift (15 per cent) and applied an insufficient discount for background (15 per cent) - HELD: Starting point was appropriate and open to the Judge - Uplift was appropriate and did not over-penalise the offending – Appellants background cannot be seen as making a particularly significant contribution to the index offending and was addressed by giving a discount - End sentence is appropriate - Appeal is dismissed.

Sexual violation, Propensity evidence - Login Required

[S] v R [2024] NZCA 148

New Zealand High Court

Sentencing, manslaughter, burglary, aggravated assault

R v Kiro [2024] NZHC 853 (23 April 2024) Whata J

Sentencing – K pleaded guilty to one charge of manslaughter, one burglary and two charges of aggravated assault – Entered home through back window late at night – Discovered in victim's granddaughter's bedroom by other granddaughter – House occupants struggled with K to stop him from leaving – Victim had permanent line attached to jugular for dialysis treatment – Amidst struggle, line damaged and she lost large amount of blood in short period of time – Died as result –
Six-years six months starting point appropriate; five years for manslaughter uplifted 18 months for burglary and assaults – Offending serious because involved domestic burglary late at night with sexual intent, but did not involve serious physical violence – Cumulative 20 per cent discount for personal mitigating features and 25 per cent discount for guilty plea - End sentence three years seven months imprisonment.

Gas transmission, distribution methodologies

Major Gas Users’ Group Inc v Commerce Commission [2024] NZHC 959 (29 April 2024) Radich J, Lay Members Professor A Van Zijl and Dr J Walker

Unsuccessful appeal from Commerce Commission – MGUG appealed two decisions under Part 4 of Commerce Act 1986: one amending input methodologies for gas transmission and distribution services; and one determining default price-quality path for gas transmission and distribution services – Both decisions responded to government signalling on phase-out of natural gas because of climate change – Effect of input methodologies decision to enable Commission to adjust asset lives of gas pipeline assets – Effect of default price-quality path decision to utilise adjustment to bring forward depreciation of gas pipeline assets – Appeal from input methodologies decision under s 52Z Commerce Act so could only succeed if HC satisfied there was amended or substituted input methodology materially better to meeting Part 4 purpose s 52A, or input methodologies purpose in s 52R – Appeal from default price-quality path decision under s 91(1B) so could only succeed if Commission made error of law –
HC dismissed appeal from input methodologies decision – HC said MGUG’s proposals not materially better at meeting s 52A or s 52R purposes – HC also dismissed default price-quality path decision appeal – Appeals dismissed.

Sentencing, murder, assault

R v S [2024] NZHC 1015 (30 April 2024) O’Gorman J

Sentencing – S sentenced after jury trial on two charges: murder of eight-month-old daughter; and assault of daughter on at least one other prior occasion – At time offended S 24 years old – Baby started crying and behaved like scared of S which made him angry – S punched her several times in stomach, including keeping one hand behind her head while doing so – Medical evidence established S’s punches ruptured baby’s bowel, ultimately leading to inflammation and infection resulting in death three days later – S did not seek medical attention for her –

Life imprisonment MPI 17 years – Presumption of life imprisonment under s 102 Sentencing Act 2002 not manifestly unjust – S’s youth did not displace presumption – Section 104 engaged as S’s daughter particularly vulnerable and murder was committed with high degree of callous indifference, also shown by S’s subsequent failure to obtain medical care for her – 17 years MPI consistent with comparable cases, having regard to relevant aggravating and mitigating factors – Statutory minimum 17 years not manifestly unjust – Concurrent sentence three months’ imprisonment for assault of baby on another occasion.

Canada Supreme Court

Canadian Charter, Courts Martial, independence of

R v Edwards [2024] SCC 15 (26 April 2024)

Unsuccessful appeals from Court Martial Appeal Court – Concerned whether requirement under National Defence Act that military judges be military officers violated right to hearing by independent and impartial tribunal guaranteed under Section 11(d) Canadian Charter of Rights and Freedoms

Appeals by nine members of Canadian Armed Forces accused of various service offences under Code of Service Discipline, forming part of National Defence Act – Service offences, which included offences specific to military personnel and offences under Criminal Code and other Canadian laws tried before court martial, military court with same powers, rights and privileges as superior court of criminal jurisdiction – Military Judges presided over Courts martial – National Defence Act required them to have been lawyers and military officers for at least 10 years – As officers, military judges part of chain of command –

In courts martial, most accused challenged National Defence Act requirement military judges presiding over courts martial be officers – Said requirement violated right to hearing by independent and impartial tribunal under s 11(d) Charter – Divided loyalties of military judges as judge and officer said to deflect them from proper exercise of judicial duties and left them vulnerable to pressures from chain of command –

Under Canadian law, courts evaluated independence and impartiality under s 11(d) by asking whether informed and reasonable person would perceive tribunal at issue as independent – In courts martial, some military judges said lacked judicial independence because of dual status of judge and officer – Said s 11(d) rights infringed – Court Martial Appeal Court disagreed – Said informed person, viewing matter realistically and practically and having thought matter through would conclude military judges sufficiently impartial and independent to meet requirement under s 11(d) Charter – Rights not infringed – Accused members appealed to SC – 

SC majority dismissed appeals – Said Canadian Armed Forces members appearing before military judges entitled to same guarantee of judicial independence and impartiality under s 11(d) as accused appearing before civilian criminal courts, but this did not require systems be identical in every respect – As presently configured in National Defence Act, Canada’s system of military justice fully ensured judicial independence for military judges in way that took account of military context and specifically legislative policies of maintaining discipline, efficiency and morale in forces and public trust in disciplined armed forces – Properly understood, military context did not diminish judicial independence – Appeals dismissed.

Right to trial in official language of choice

R v Tompouba [2024] SCC 16 (3 May 2024)

Successful appeal from British Columbia CA – Concerned framework Court of Appeal applied when accused person appeals conviction because not informed of their right to be tried in official language of choice first time they appeared before judge, where no decision on language rights at first instance –

Section 530 Criminal Code guaranteed to every accused right to be tried in official language of choice – To ensure accused’s choice free and informed, s 530(3) imposes duty on judge before whom accused first appears to ensure that accused advised of right and of time before which they had to apply for trial before judge or judge and jury, who spoke official language of choice –

T bilingual Francophone convicted of sexual assault following trial conducted in English in British Columbia Supreme Court – During judicial process leading to T’s conviction, judge did not ensure he was advised of right to be tried in French, contrary to s 530(3) – T did not apply for trial in French or raise breach of his right to be advised of his right to apply –

T appealed conviction to British Columbia CA – Asserted for first time that he would have liked trial to be conducted in French – T alleged language rights violated due, among other things, to judge breaching duty under s 530(3) –

CA dismissed appeal – Said judge’s breach error of law warranted its intervention – However, evidence did not make it possible to decide certain key questions, including when T learned of his fundamental right, whether he would in fact have chosen trial in French if had had opportunity to do so and whether he had not made free and informed choice to have trial in English – Said evidence insufficient and T not met burden of persuading Court judge’s breaching duty in s 530(3) resulted in violation of fundamental right to be tried in official language of choice – T appealed to SC –

SC majority allowed appeal – Said s 530(3) imposed two‑pronged informational duty on judge before whom accused first appears: to ensure that accused is duly informed of their fundamental right and of how it is to be exercised and, where circumstances required, to take necessary steps to inform accused – Appeal allowed.

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