New Zealand Law Society - Courts roundup 23 February - 1 March 2023

Courts roundup 23 February - 1 March 2023

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

High court sign with beehive reflection 2

New Zealand Court of Appeal

Murder appeal, s66 Crimes Act 1961
Fane v R [2023] NZCA 26

Unsuccessful appeal against conviction and sentence – Murder (x2) – Sentence imposed life imprisonment with minimum period of imprisonment of 17 years – Crown case that F a principal offender with murderous intent, or assisted his brother (A) knowing A had murderous intent, or the brothers formed a common purpose, s66(1) and s66(2) Crimes Act 1961 – HELD: sufficient evidence to conclude F was well aware of his brother’s intention to murder L, and must have appreciated a probable consequence of carrying out the plan to kill L would be the need to kill anyone who should witness the murder – Judge’s directions relating to F’s criminal liability under s66(2) not inadequate, or such to create any confusion regarding the law and applicable evidence – Sufficient evidence to find F held the necessary intention to render him a party under s66(1) – No basis to disturb sentence – Appeals dismissed.

Conflict of laws, jurisdiction
B v C [2023] NZCA 28

Unsuccessful appeal against determination that China not New Zealand (NZ) appropriate forum for claim – Appellants alleged respondent deceived them into investing money with company F Ltd – F Ltd based in China, and owned/operated by respondent at the relevant time – Funds from the investment were to enable appellants to support their application to immigrate to NZ – Respondent arrested in China 2015 and F Ltd ceased trading – Investment never repaid – Respondent owned a property in NZ that appellants obtained freezing order over to prevent disposal of – HELD: application to admit further evidence on appeal declined (not fresh and concerns whether qualified as expert evidence) – Apart from the fact some relevant representations allegedly made in NZ, Judge correctly identified the dispute had “a stronger locus in China rather than in NZ” – China appropriate forum – Appeal dismissed – Freezing order discharged.

Sentence appeal, aggravated robbery
Wharewhiti v R [2023] NZCA 29

Successful appeal against sentence of 2 years 1 month imprisonment – Aggravated robbery – Victim of aggravated robbery was a patched member of a rival gang – Co-offender B sentenced separately to 9 months home detention and 200 hours community work – Co-offender E sentenced separately while serving sentence of home detention on unrelated charge of wounding with intent, and had home detention sentence cancelled and sentence of 6 months community detention for both charges imposed with 18 months supervision – W was the youngest of the three offenders (aged 22 years at the time) – HELD: appeal turned on assessment of W’s prospects for rehabilitation – Significant references in the cultural report appeared to have been overlooked – Greater discounts for rehabilitative prospects and youth appropriate which would have meant home detention able to be considered – Time served meant home detention now inappropriate – Appeal allowed – Sentence of 12 months intensive supervision substituted.

Hague Convention, child abduction
Roberts v Cresswell [2023] NZCA 36

Successful appeal from High Court decision that there was a grave risk that return of parties’ children to France would place them in an intolerable situation – Children (aged 5 and 7 years) were born in France – Appellant father was French, and respondent mother originally from NZ – Family Court ordered return of children to France – Updating evidence on appeal including psychological report under s133 Care of Children Act 2004, and commenting on the mother’s psychological condition – French Court had modified its original interim orders to provide for shared care between the parents in the event the mother returned with the children to France – HELD: modified interim orders removed the risk the children would be separated for an extended period from their mother, or from both parents – Protective measures available and no grave risk that mother’s parenting would be impaired to intolerable situation extent – Appeal allowed – Order for children’s return to France reinstated.

New Zealand High Court

Declarations, Three Waters
Timaru District Council and ors v Minister of Local Government and anor [2023] NZHC 244 (21 February 2023) Mallon J

Unsuccessful declaration applications – Councils sought declarations under Declaratory Judgments Act 1908 of court’s inherent jurisdiction concerning democratic local governance and ownership of Three Waters infrastructure assets –

Crown opposed claim – Said court did not have jurisdiction to make declarations about “components”, “principles” or “features” rather than “rights” – Also said factors weighing against granting discretionary relief, in particular: proposed declarations too general and abstract to have utility; declaratory relief served no purpose; declaratory relief would infringe principle of non-interference in legislative process –

HC said whether declaratory relief should be granted question of jurisdiction and discretion – Appropriate to decline relief for reasons Crown advanced – Applications dismissed.

Insolvency Act 2006, s 152 order, tikanga relevance
Bamber and anor v Official Assignee [2023] NZHC 260 (23 February 2023) Harvey J

Unsuccessful appeal from DC – DC granted possession order of Rotorua property to Official Assignee (OA) under s 152 Insolvency Act 2006 – B said DC Judge should have allowed kaumātua to speak to affidavit evidence – Granting order and removing B’s from their papakāinga/home contrary to tikanga – Issue whether tikanga Māori relevant to issuing s 152 orders –

Section 152 procedural provision – Tikanga does not assist in application nor could tikanga override application – Also, tikanga principles raised did not assist Bs’ case – No evidence Ms B tangata whenua of rohe Rotorua property order made over – Oral evidence unlikely to assist – Tikanga relevant to matter in context of whanaungatanga but for OA and creditors not Court to apply, especially because creditor trust not party to appeal – Appeal dismissed.

United Kingdom Supreme Court

“Newspaper” meaning, statutory interpretation
News Corp UK & Ireland Ltd v Commissioners for His Majesty’s Revenue and Customs [2023] UKSC 7 (22 February 2023)

Unsuccessful appeal from CA – Under Value Added Tax Act 1994 (VAT Act), "newspapers" "zero-rated" – Between 30 August 2010 – 4 December 2016 (relevant period), did zero-rating apply to digital editions such as editions for e-readers, tablets, smartphones and websites? – Decision applicable to 1 May 2020, after which no dispute because Parliament extended zero-rating from then on to newspapers "when supplied electronically" –

News Corp UK & Ireland Ltd (News Corp) said digital editions zero-rated for relevant period, as were "newspapers" for VAT purposes – Commissioners for His Majesty's Revenue and Customs (HMRC) said not zero-rated – News Corp appealed – First-tier Tribunal said digital editions not "newspapers" for VAT Act purposes – Rejected News Corp's claim for recovery of over £35 million – Upper Tribunal allowed News Corp's subsequent appeal – HMRC appealed to CA which allowed its appeal – News appealed to SC –

SC unanimously dismissed appeal – Said modern approach to statutory interpretation required courts to ascertain words meaning in light of their context and purpose – In general, statute should be interpreted taking into account changes that have occurred since it became law, even if those changes could not have been reasonably foreseen at time statute was enacted - "always speaking principle" – Such changes might include technological developments, changes in scientific understanding, changes in social attitudes and changes in law – Exceptionally, always speaking principle not be applied where clear, from words used that relevant provision tied to historic interpretation –

Well established that zero-rating provisions had to be interpreted strictly, because they constituted exemptions to general principle that supplies of goods and services should be subject to VAT –

Starting point was ordinary meaning of "newspapers" in context as at 31 December 1975 – At that date, "newspapers" referred only to printed newspapers – Those were only kind of newspapers which existed at that time and digital editions lay many years in future – As at 31 December 1975, defining characteristics of newspaper included: that it was news communicated through medium of print in physical form; and that buyer of newspaper obtained complete access to news in that paper – No requirement of connectivity, so that access did not depend on owning or buying something else, such as device – Characteristics reflected conceptual difference between newspapers, which were goods, and digital editions, which were services – Difference one of kind, not merely degree – Given significant difference, could not be said to be irrational to distinguish between VAT treatment of printed newspapers and digital editions and rationality of such distinction borne out by fact that it was drawn in EU VAT law – Having regard to constraints of EU law, always speaking principle could not be applied to interpret "newspapers" as covering digital editions – Appeal dismissed.

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