New Zealand Law Society - Courts roundup 22 February - 28 February 2024

Courts roundup 22 February - 28 February 2024

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

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New Zealand Supreme Court

Sexual offences, insane automatism defence

Cook v R [2024] NZSC 12 (19 February 2024)

Successful leave application – C found guilty by jury of one charge of sexual violation by unlawful sexual connection and one charge of sexual violation by rape – On 8 September 2022 sentenced to eight years’ imprisonment by Judge Garland – Appealed conviction and sentence to CA – CA reduced sentence to 7 years – C sought leave to appeal conviction and sentence to SC –

SC granted leave – Approved question whether CA correct to treat C’s defence as insane automatism.

Self-represented litigant, company director

Kumar v Smartpay Ltd [2024] NZSC 13 (19 February 2024)

Unsuccessful leave application – Self-represented K applied for leave to appeal to SC against CA dismissing appeal against two HC judgments under which K liable to pay $850,427 to liquidators of Optimizer Corporation Ltd (OCL), company of which he had been director – S, OCL creditor, brought proceedings –

Leave application based on miscarriage of justice occurring – Procedural issues did not raise miscarriage – Other points might raise question of public or general importance, but not appropriate to address here – Application dismissed.

Self-represented litigant, fee waiver

Sixtus v Ardern [2024] NZSC 14 (20 February 2024)

Unsuccessful application for review of fee waiver decline – Self-represented S applied for review of deputy registrar’s fee waiver decline – No error – Application declined.

Self-represented litigant, air travel, Covid-19

Reihana v Foran [2024] NZSC 17 (22 February 2024)

Unsuccessful leave application – Self-represented R applied for leave to appeal from CA decision declining time extension to apply for hearing date allocation and to file case on appeal –

Claim related to proposed travel with Air New Zealand because he was not vaccinated against Covid-19 – Applied for judicial review, seeking range of relief –

SC said application would involve reviewing arguments made and addressed in CA – CA view delay significant – Raised no question of public or general importance or commercial significance – No risk of miscarriage of justice – Application dismissed.

Murder, insanity defence

Tu v R [2024] NZSC 15 (23 February 2024)

Unsuccessful leave application – T attacked and killed flatmate, H-W, with hammer – At time victim asleep with girlfriend, C – Following attack, T climbed into bed and tried to undress C – Only then did she wake and realise victim injured – T charged with murder – Defence insanity, based on schizoaffective and autism spectrum disorders – Jury rejected that defence and found him guilty – HC sentenced him to life imprisonment (MPI 12 years) –

T unsuccessfully appealed sentence, contending life imprisonment manifestly unjust due to role mental health played in offending and unique rehabilitative needs – Leave sought to appeal to SC – Counsel submit appeal “is a paradigm case for the Court to consider when significant mental illness falling short of insanity may displace the presumption of life imprisonment” –

SC said leave criteria not met – No question of general or public importance – Sentence consistent with previous case – Application dismissed.

Self-represented litigant, bankruptcy, time extension

Memelink v Collins & May Law [2024] NZSC 16 (23 February 2024)

Unsuccessful recall application – Self-represented M applied to recall SC judgment declining to extend time to apply for leave to appeal –

Underlying proceeding HC bankruptcy order from August 2018 – Time extension application to appeal order was made year out of time to CA – CA declined extension – M then sought time extension to appeal to SC – Application more than two years out of time – Declining application, SC said CA had applied SC principles from previous case – Also said HC Associate Judge said, even on M’s own analysis, his assets were exceeded by his liabilities by more than $5.5 million –

SC said in applying for recall of that judgement (more than year after its delivery) M made number of complaints against his former solicitor (and one of his creditors) – Also other complaints –

SC said recall exceptional procedure – No procedural or substantive error occurred that would result in miscarriage of justice in allowing bankruptcy order, made more than five years ago now, to stand – Application dismissed.

New Zealand Court of Appeal

Intellectual property, Copyright, Relationship property, Division of “balance of matrimonial property"

Alalaakkola v Palmer [2024] NZCA 24

Successful appeal on three questions of law on how copyright in artistic works created by one spouse during a relationship should be classified for the purposes of the Property (Relationships) Act 1976 (PRA) when the relationship ends – Whether the copyrights are property for the purposes of the PRA – If copyrights are property how should they be classified in terms of the PRA - If copyrights are property how should they be treated in terms of the PRA – HELD: Copyrights are property and should be classified as relationship property - Copyrights remain in the appellants exclusive legal ownership, with the respondent receiving a compensatory adjustment from other relationship property to ensure an equal division of relationship property.

Search warrant, admissibility, Drugs - Login Required

[W] v R [2024] NZCA 28

Criminal law, Sentence manifestly excessive, Leave to substitute sentence, Home detention

Whaanga v R [2024] NZCA 29

Successful appeal against sentence - Sentenced to two years two months imprisonment for four convictions relating to cannabis and synthetic cannabis possession for the purpose of supply - Whether the sentence was manifestly excessive due to insufficient recognition of addiction as a personal mitigating factor - Whether the sentence was manifestly excessive due to a failure to recognise the impact on appellants children and wife as a personal mitigating factor - Whether a discount should have been given to account for a forfeiture order made under the Misuse of Drugs Act 1975 - Whether leave should be given under s80K Sentencing Act 2002 for appellant to apply to substitute his sentence of imprisonment for one of home detention - HELD: A discount of 10 percent was appropriate for addiction that had a causative contribution to the appellants offending – Impact of incarceration on family warranted a discrete discount – 22 months imprisonment imposed – Order for pre-sentence report as to the suitability of the proposed home detention address.

Criminal law, Substituted sentence, Home detention

Whaanga v R [2024] NZCA 30

Successful application to substitute sentence of 22 months imprisonment with a sentence of six months home detention – HELD: Judgment follows two earlier judgments in which appellant was granted appeal against sentence, ordered a pre-sentence report as to suitability of a proposed residence for home detention, and granted leave to apply s80K Sentencing Act 2002 to substitute sentence of imprisonment with one of home detention – Six months home detention imposed.

Disclosure, Confidential information, Drugs - Login Required

[A] v R [2024] NZCA 31

Arson, Hearsay evidence, Admissibility - Login Required

MJT v R [2024] NZCA 32

New Zealand High Court

Gambling, venue licences, declaration

Feed Families not Pokies Aotearoa Inc v Secretary for Internal Affairs [2024] NZHC 217 (19 February 2024) Palmer J

Successful declaration application – FFNP sought declaration about whether Gambling Act 2003, as amended in 2013, allowed venue licence to benefit from minor change in location on approval by Secretary for Internal Affairs – HC said did not – Venue location change would only apply if territorial authority consents in accordance with relocation policy – Did not affect validity of licences Secretary amended since 2013 – Application allowed.

United Kingdom Supreme Court

Mental impairment, whether detention unlawful

Re; Application by RM (a person under disability) [2024] UKSC 7 (21 February 2024)

Successful appeal from CA – RM suffered from severe mental impairment – In 2018 charged with series of violent and sexual offences and committed for trial in Belfast Crown Court – Found to be unfit to be tried – Consequently, trial of facts took place without investigating RM’s intent or knowledge of actions, from which there could be no criminal conviction – Jury found he had committed unlawful acts alleged –

Because RM unfit to be tried, Crown Court made order admitting him to hospital for medical treatment under Mental Health (Northern Ireland) Order 1986 (1986 Order) – Also directed he should be treated as if unlimited restriction order made – Effect was RM was treated as if admitted to hospital under hospital order and could not be discharged without consent of Northern Ireland Department of Justice or Mental Health Review Tribunal (Tribunal) – RM detained in psychiatric ward –

In 2019 RM applied to Tribunal for discharge – Although Department of Justice opposed RM’s discharge from hospital, medical evidence indicated RM would shortly be given leave of absence to begin receiving treatment outside hospital in community-based setting as part of testing period, with view to ultimate discharge –

Under 1986 Order, patient could only continue to be compulsorily detained if suffering from mental disorder of nature or degree warranting detention in hospital for medical treatment – Tribunal acknowledged RM's care plan would involve him moving to live in community-based setting, but concluded he would nonetheless remain patient receiving treatment in hospital and denied him discharge –

RM applied for judicial review saying continued detention unlawful, in light of treatment plan, which did not envisage further hospital treatment – HC dismissed appeal upholding Tribunal decision – Northern Ireland CA (NICA) overturned Tribunal and HC decisions, saying they applied wrong legal test – Tribunal and Department of Justice jointly appealed to SC –

SC unanimously allowed appeal – Said two main questions arise in this appeal: 1) whether NICA correct to conclude that differences in 1986 Order wording, compared to legislation in England and Wales, supported conclusion lower threshold test for compulsory detention applied in England and Wales and 2) whether grant of leave of absence inconsistent with conclusion that patient still satisfied test for detention in hospital for medical treatment and should have no bearing on decision whether detention for medical treatment is warranted –

On 1) SC disagreed with NICA conclusion – Said, among other things, test for compulsory detention under 1983 Act same necessity test that applied under 1986 Order and NICA was wrong to hold otherwise – On 2) said in RM’s case, statutory conditions for detention under 1986 Order met notwithstanding decision that he should reside on long-term basis in community setting, initially on leave granted under 1986 Order – Tribunal right to refuse to discharge him and to hold that his continued detention in hospital lawful – Appeal allowed.

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