New Zealand Law Society - Courts roundup 20 April - 26 April 2023

Courts roundup 20 April - 26 April 2023

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

Auckland High Court 2

New Zealand Supreme Court

Sexual violation, unreasonable jury verdict

Sharma v R [2023] NZSC 34 (14 April 2023)

Unsuccessful leave application – In DC S found guilty of one charge of sexual violation by unlawful sexual connection and acquitted on five other charges of sexual violation against complainant (M) –

On appeal S said conviction unreasonable as it could not be reconciled with not guilty findings on other charges – CA said jury verdict not unreasonable – Dismissed appeal –

SC said leave criteria not met – Issue related to particular facts – No matter of general or public importance – No miscarriage of justice – Application dismissed.

Water bottling plant dispute, resource consents, tikanga effects

Sustainable Otakiri Inc v Whakatāne District Council and anor; Te Rūnanga O Ngāti Awa v Bay Of Plenty Regional Council and anor [2023] NZSC 35 (17 April 2023)

Successful leave application – Applications stemmed from dispute relating to proposed expansion of water bottling plant in Bay of Plenty – In 2016, Creswell NZ Ltd (Creswell), second respondent in both applications, entered into sale and purchase agreement for land and water distribution/bottling business – Creswell sought consents from Bay of Plenty Regional Council to take water for bottling operation, amongst other activities – Also sought consent from Whakatāne District Council to vary conditions which applied to existing land use consent to allow expansion of water bottling plant and construction of new facilities – Consents granted and subsequently upheld in Environment Court (subject to conditions) –

On appeal, HC, amongst other issues, considered whether bottles “end use” could be considered – HC dismissed appeals – CA largely considered same questions as HC – CA refused leave on whether HC erred to find Environment Court correct to exclude consideration of negative tikanga effects – CA affirmed HC decision on all issues, with exception CA holding that Whakatāne District Council should have dealt with proposal as new activity –

SC granted leave to both applicants to appeal against CA decision – Leave also granted Te Rūnanga o Ngāti Awa to appeal against HC decision on negative tikanga effects.

Self-represented litigant, company liquidation

Jindal v Orange Capital Ltd (in liquidation) [2023] NZSC 36 (19 April 2023)

Unsuccessful leave application – Self represented J Orange Capital Ltd (company) sole director and shareholder – After company was placed into liquidation, liquidator sued J for outstanding balance of his shareholder’s current account company – Liquidator applied for summary judgment seeking recovery of $82,277 – Liquidator largely successful in DC – Judge entered summary judgment for $68,680.03 plus costs and disbursements –

J appealed to HC – Partially successful – HC reduced judgment amount to $50,696.49 but rejected J’s arguments that summary judgment should not have been entered against him –

On question of law for which leave granted, CA upheld HC finding that DC had jurisdiction to determine liquidator’s claim for balance due on J’s shareholder’s current account with company –

J sought leave to appeal to SC – SC said J’s arguments limited to facts – Application dismissed.

Instructions, prison informant

Tihema v R; Jetson v R [2023] NZSC 37 (20 April 2023)

Successful leave applications – Approved question for T is whether CA correct to determine that no miscarriage of justice arose from failure to obtain instructions from T at conclusion of Crown case on election to give evidence –

Approved question for J whether CA correct to determine that no miscarriage of justice arose from trial Judge’s directions relating to evidence of prison informant – Applications granted.

Building Act, longstop provisions

Beca Carter Hollings & Ferner Ltd v Wellington City Council [2023] NZSC 38 (21 April 2023)

Successful leave application – Approved question whether CA right to conclude Building Act longstop provisions did not apply to contribution claim – Application granted.

Self-represented litigant, judgment recall

Dunstan v Attorney-General [2023] NZSC 39 (21 April 2023)

Unsuccessful recall application – Self represented D applied for judgment recall – SC said general rule that judgment, once delivered, stood for better or worse, subject to appeal – Decision to recall judgment only made in exceptional circumstances – Application dismissed.

New Zealand Court of Appeal

Forfeiture, Māori land

Kiwi v Commissioner of Police [2023] NZCA 106

Unsuccessful appeal and cross-appeal relating to forfeiture orders – K pleaded guilty to a number of charges relating to methamphetamine dealing and sentenced to 9 years imprisonment – HC found 135 Kairua Rd property purchased with the proceeds of methamphetamine dealing and forfeiture order made – 224A Kairua Rd was build on Māori freehold land and Judge considered Te Ture Whenua Māori Act 1993 prohibited forfeiture under the Criminal Proceeds (Recovery) Act 2009 – HELD: further evidence in relation to acquisition of 135 Kairua Rd neither fresh nor cogent, and not admissible – Assets forfeiture order could be made in respect of Māori freehold land, but could not be made in respect of a house that was a fixture, separate from the land to which it was affixed – K had no interest in the house or land at 224A Kairua Rd that was capable of forfeiture – Appeals dismissed.

Water supply, subdivision

Thirty Eight Moffat Ltd v Auckland Council [2023] NZCA 107

Unsuccessful appeal seeking declarations in relation to the validity and interpretation of Auckland Council Water Supply and Wastewater Network Bylaw 2015 – Dispute between developer and Watercare about ownership of a watermain – Developer wanted watermain vested in Watercare so it became part of the public water network, and would be owned and maintained by Watercare – HELD: developer’s proceedings were misconceived – Watercare did not derive its power to decline to accept vesting of infrastructure from the 2015 Bylaw – Even if the 2015 Bylaw was invalid, that would not call into question Watercare’s ability to decline to accept ownership of the watermain under the lane – Appeal dismissed.

Conviction appeal – Login Required

Jenkins v R [2023] NZCA 109

Child Sex Offender Register

C (CA 537-2022) v R [2023] NZCA 121

Unsuccessful appeal against making of registration order under s9 Child Protection (Child Sex Offender Government Agency Registration) Act 2016, placing C on the Child Sex Offender Register – C aged 57 years, and convicted of one charge of doing an indecent act on a child under 12 years old – Sentence imposed 10 months home detention, 6 months post-detention and special conditions, as well as registration on the register – D (SC 31-2019) v Police considered registration a two-stage process – HELD: C’s offending appropriately assessed as being of a moderately serious level – Age difference between C and the victim was 47 years which was significant aggravating feature of offending – C presented a real and genuine risk of reoffending sexually against children generally, and specifically against any female children who happened to be in his care or in his home in circumstances where an opportunity to offend arose – Appeal dismissed.

New Zealand High Court

Home detention, cancellation

R v Nelson-Bell [2023] NZHC 799 (17 April 2023) Jagose J

Successful Department of Corrections application to cancel home detention sentence under s 80F Sentencing Act 2002 – HC initially imposed one year home detention sentence after granting 75 per cent discounts in mitigation for youth and offender's background – Said N-B failed to comply with sentence conditions – Failure went beyond initial institutional failing of home detention provider – HC said sentence not proven appropriate to meet purposes and substituted sentence of one year one month's imprisonment in line with initial sentence, adjusted to consider time served on home detention – Application granted.

Judicial review, transfer of trust property

Khan and ors v New Zealand Muslim Association Inc and ors [2023] NZHC 802 (18 April 2023) Jagose J

Unsuccessful application for judicial review of transfer of trust property following invalid alterations to trust deed and terminations of applicants' (K’s) trusteeships – K said transferee knowingly received property in breach of trust, transferor liable in equitable estoppel for inducing K to believe transfer would be paused and Registrar's deregistration of trust after transferring its property was improper – HC said prior settlement agreement precluded knowing receipt as no foundational breach of trust could be proven – No inducement occurred giving rise to equitable estoppel – Claim against Registrar, even if freestanding, could not succeed as Registrar appropriately applied statutory test for dissolution – Application dismissed.

Supreme Court of Canada

Breath test, approved screen device, Canadian Charter

R v Breault [2023] SCC 13 (13 April 2023)

Unsuccessful appeal from Quebec CA – In 2017 police stopped B who was walking away from parked vehicle – Officers wanted to take breath sample from B but did not have approved screening device (ASD) – Radioed nearby officers to obtain ASD –

While still waiting for device, officers demanded B provide breath sample – B refused three times to provide required sample, even after told that refusing without reasonable excuse to comply with demand was criminal offence – Given B’s repeated refusals and denial he had driven vehicle, and given device had not yet arrived, officers eventually cancelled request – B then charged with refusing to comply with police demand to provide breath sample –

Under s 254(2)(b) (now s 320.27(1)(b)) Criminal Code police could demand someone “provide forthwith” breath sample if person suspected of drinking and driving within previous three hours – Test had to be done using ASD – When person blew into device, provided officers with reading that determined if sufficient alcohol in person’s body to warrant full breathalyser test – Anyone who refused to take test without reasonable excuse committed criminal offence –

Quebec municipal court said B guilty of refusing to comply with demand to provide breath sample – Quebec Superior Court dismissed B’s appeal – Quebec CA allowed B’s appeal and acquitted him – Crown appealed to SC –

SC unanimously dismissed appeal – Said validity of demand to provide breath sample required police to have immediate access to ASD at time demand made – Said word “forthwith” in s 254(2)(b) had to, as general rule, be given strict interpretation reflecting ordinary meaning, namely “immediately” or “without delay” – At this step of detection procedure, detained driver did not have right to counsel as guaranteed under s 10(b) of Canadian Charter of Rights and Freedoms, since driver had to provide breath sample immediately – Limit on right justified because detention very brief – Essential to constitutional validity of provision that interpretation given to “forthwith” be consistent with ordinary meaning – Appeal dismissed.

United Kingdom Supreme Court

Terrorism, release on licence, ECHR

Morgan and ors v Ministry of Justice (Northern Ireland) [2023] UKSC 14 (19 April 2023)

Successful appeal from CA – M and others (M) convicted of terrorism offences – On 13 November 2020, sentenced to determinate custodial sentences – In accordance with Criminal Justice (Northern Ireland) Order 2008 (2008 Order), judge specified "custodial period" of half sentence term – Gave rise to obligation on Department of Justice to release M on licence (e.g. living in community while complying with set rules) when had served half sentences –

On 29 April 2021, Counter Terrorism and Sentencing Act 2021 (2021 Act) received Royal Assent – Section 30 2021 Act introduced Article 20A (Article 20A) into 2008 Order – Article 20A said prisoners convicted of certain terrorist offences would not be released from custody at halfway point, but rather cases would be referred at two-thirds point to Parole Commission which would not direct release on licence unless satisfied it was no longer necessary for protection of public that prisoners should be confined – End date of M’s determinate custodial sentences unaltered –

M challenged s 30 of 2021 Act, which inserted Article 20A – On appeal to CA said changes effected by Article 20A:

  • Breached Article 5(1) of European Convention on Human Rights (ECHR) as change to sentences not foreseeable;
  • Breached Article 7(1) of ECHR as retrospectively changed penalty for offences committed.

CA declared s 30, inserting Article 20A, incompatible with Article 7(1) of ECHR – Given that decision, made no determination about Article 5 of ECHR – CA said changes to M’s sentences caused by Article 20A were redefinition or modification of scope of penalty imposed applied retrospectively in breach of Article 7 ECHR –

Ministry appealed declaration of incompatibility with Article 7(1) ECHR – M given permission to cross-appeal on Article 5 ECHR – Issues for SC were compatibility of s 30, inserting Article 20A, with Articles 5 and 7 ECHR –

SC unanimously allowed Ministry appeal regarding Article 7 of ECHR and sets aside CA declaration of incompatibility – M’s cross appeal on Article 5 ECHR dismissed – Said s 30 compatible with Articles 7 and 5 ECHR – Appeal allowed, cross-appeal dismissed.

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