New Zealand Law Society - Courts roundup 23 March - 29 March 2023

Courts roundup 23 March - 29 March 2023

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

court of appeal

New Zealand Supreme Court

Costs, Family Court proceedings

Newton and anor v Family Court at Auckland [2023] NZSC 23 (21 March 2023)

Costs – Judgment dealt with costs issues arising out of 27 September 2022 judgment – SC said Attorney-General had to respond to two failed leave applications and to application for stay – Nothing N raised suggested costs order should not be made – Costs orders for Attorney-General and another respondent.

Attempting to possess methamphetamine for supply, offence?

Mesman v R [2023] NZSC 25 (23 March 2023)

Unsuccessful leave application – M pleaded guilty in DC to attempting to possess methamphetamine for supply – Sentenced to 12 months intensive supervision with rehabilitation related conditions – Despite plea, appealed (unsuccessfully) against conviction to CA – Sought leave to appeal to SC – M argued in CA (and proposed to argue) not possible to attempt possession – Question raised whether attempted possession of methamphetamine for supply offence known to New Zealand law –

SC said application raised potential question of general or public importance, but Court not satisfied that sufficient prospects of success to warrant leave grant – Followed Court did not see any risk of miscarriage of justice – Application dismissed.

New Zealand Court of Appeal

Conviction, sentence appeals

Kempson v R [2023] NZCA 78

Unsuccessful appeals against convictions and sentences – K convicted of various sexual (including sexual violation) and violent offending against former partner (Ms K), and O following two judge-alone trials – Total cumulative sentence of 11 year imprisonment imposed – Whether miscarriage of justice established – HELD: Both Judges adequately assessed the totality of evidence and credibility of the relevant complainant – Sufficient reasons were provided for findings – No miscarriage of justice in convictions – Little causal connection between K’s background and his offending and discounts of 6 and 8 percent were within the available range – K’s personal mitigating factors did not warrant any greater discount – Overall sentence imposed was appropriate to account for the totality of offending, and principles of sentencing – Appeals dismissed.

Employment, question of law

Chief Executive of the Ministry of Business, Innovation and Employment v Hairland Holdings Ltd [2023] NZCA 81

Partly successful application for leave to appeal – Case arose out of the investigation of a complaint made to the Labour Inspector by five hairstylists who had worked for respondent (HHL) – Labour Inspector formed preliminary view that the hairstylists were employees and HHL had breached certain minimum employment standards – Post Gill Pizza Ltd v Labour Inspector conceded the Authority had jurisdiction to determine employment status when action under s228(1) Employment Relations Act 2000 – Whether Employment Court right to dismiss Chief Executive’s application for strike out – HELD: first proposed question of law was reasonably arguable, and also a question of general and public importance which should appropriately be determined at an interlocutory stage – Abuse of process was an intensely factual inquiry with each case turning on its own facts and second question not appropriate for appeal – Leave to appeal granted on proposed question one but not question two.

Resource consent, subdivision

The Canyon Vineyard Ltd v Central Otago District Council [2023] NZCA 74

Unsuccessful application for leave to appeal – BDL owned a vast farming property in Central Otago – Council granted resource consent to 12 out of 14 residential building platforms – CVL unsuccessfully appealed the Council’s decision to the Environment Court, and then High Court – Whether proposed question of law suitable for appeal – HELD: First proposed question of law about kaitiakitanga arguably of general and public importance in a case where it might affect the outcome, but this was not such a case – Second proposed question of law misstated the High Court’s approach and not arguable the incorrect test was applied to determine whether the proposal maintained the rural amenity value as required by Objective 4.3.3, nor to whether the proposal was “contrary to” the Objective and the relevant policies – Third proposed question on jurisdiction of the Environment Court to amend the plan that formed part of its final decision not arguable and accidental error capable of correction by the Environment Court – Application dismissed.

New Zealand High Court

Sentencing, Sofitel shooting

R v Reihana and ors [2023] NZHC 580 (21 March 2023) Moore J

Sentencing – R, P and TP convicted of discharging a firearm with intent to cause grievous bodily harm, Sofitel shooting – R pleaded guilty before trial, P and TP found guilty after jury trial – TP also sentenced for possession of firearm and explosives, prohibited firearm and magazine, and prohibited ammunition – Also possession of cannabis for supply – Pleaded guilty to these charges before trial –

Starting point of five years, six months' imprisonment adopted for R, principal offender who discharged firearm – Discounts totalling 30 per cent giving end sentence of three years, 10 months' imprisonment – Four years' imprisonment starting points adopted for two secondary offenders, P and TP – 15 per cent discount for P, giving end sentence of three years, five months' imprisonment – 18 months uplift for TP for additional firearm and cannabis charges – 36 per cent discounts, giving end sentence three years six months' imprisonment.

Sentencing, corruption and bribery

R v Goel and anor [2023] NZHC 585 (22 March 2023) Osborne J

Sentencing – Jury found G and S guilty of 14 charges of corruption and bribery of official under to s 105 Crimes Act 1961 – G also guilty of four charges of corrupt use of official information under s 105A and two charges of obtaining by deception under s 240 – S additionally guilty of one charge of obtaining by deception under s 240– S also guilty of nine charges of obstructing a Serious Fraud Office (SFO) investigation under s 45 Serious Fraud Office Act 1990 – Gave false or misleading information to SFO when SFO required him to provide information –

G Westland District Council's asset manager – S engineer with asset management skills providing services to Council – G sentenced today to a total term of imprisonment of three years and eight months' imprisonment and S three years and seven months' imprisonment.

Court file, access to, Pike River

Re Harder (No2) [2023] NZHC 620 (24 March 2023) Mallon J

Successful application for access to documents – Judgment followed on from judgment delivered on 22 December 2022 and to be read with it – That judgment provided context for application for access to HC file in judicial review of dismissal of charges arising from Pike River coal mine tragedy – Also sets out relevant rules for accessing court documents under Senior Courts (Access to Court Documents) Rules 2017 – HC granted access to some documents but sought further information, directed inquiries about potentially interested parties in application and directed oral hearing to consider application balance – Application granted as set out in judgment.

Supreme Court of Canada

Impaired Driving, evidence, Canadian Charter

R v McColman [2023] SCC 8 (23 March 2023)

Successful appeal from Ontario CA – Police spotted McC driving all-terrain vehicle (ATV) out of convenience store parking lot onto highway – Followed ATV – Caught up to McC about one minute later, when he had pulled onto private driveway of his parents’ home – Officers observed obvious impairment signs – Said McC unable to stand up straight and smelled strongly of alcohol – McC told officers might have had 10 beers that evening – Officers arrested him for impaired driving and brought him to police station, where he did two breathalyser tests – McC charged with impaired driving and operating motor vehicle with blood alcohol concentration above legal limit –  

At trial, one officers said did not see any impairment signs of impairment before stopping McC – Said were exercising authority to conduct random sobriety checks under s 48(1) Ontario Highway Traffic Act (HTA) – Ontario Court of Justice convicted McC of driving with excess blood alcohol, imposed $1,000 fine, and prohibited him from driving for one year –

McC appealed – Said sobriety stop illegal under s 48(1) being conducted on private property – Said officers breached his rights under s 9 Canadian Charter of Rights and Freedoms to not be arbitrarily detained – McC said evidence obtained during stop should have been excluded from trial under s 24(2) Charter – Section 24(2) said evidence obtained in way that breached accused’s Charter rights be excluded from trial if admitting it would bring administration of justice into disrepute –  

Ontario Superior Court of Justice agreed with McC, set aside conviction, and acquitted him – When CA came to same conclusion, Crown appealed to SC –

SC unanimously allowed appeal, set aside acquittal and restored conviction – Said officers did not have authority under s 48(1) to conduct random sobriety stop in private driveway – However, due to evidence nature and importance and offence seriousness SC said admitting evidence warranted – Appeal allowed.

United Kingdom Supreme Court

Ukraine, Russian loan, payments under

Law Debenture Trust Corporation plc v Ukraine [2023] UKSC 11 (15 March 2023)

Successful appeal – Arose from contractual dispute between Ukraine and Law Debenture Trust Corporation plc (Trustee), acting for Russian Federation (Russia) –

In 2013, Ukraine issued Eurobonds (Notes) with nominal value of US $3 billion, carrying interest at 5 per cent per annum to Russia – Russia paid subscription money to Ukraine – Amounted to $3 billion loan from Russia to Ukraine, repayable December 2015 – Notes constituted by trust deed – Trustee and Ukraine chose to have trust deed governed by law of England and Wales and had exclusive jurisdiction to hear any disputes arising out Trust – Trust entered into by Ukraine represented by its Minister of Finance, acting on instructions from Cabinet of Ministers of Ukraine –

Ukraine said undertook transaction after economic and political pressure from Russia on Ukraine to not sign Association Agreement with European Union and to accept Russian financial support instead – Pressure alleged to be unlawful under international law and illegitimate – Russia since interfered militarily across Eastern Ukraine – SC heard appeal before Russia's February 2022 invasion, not asked to consider invasion or events since –

After making initial payments, Ukraine failed to repay Notes when matured on 21 December 2015 – Trustee issued proceedings against Ukraine, claiming sums due to Russia – Ukraine filed defence, which alleged that, first, Ukraine lacked capacity to enter into transaction under Ukrainian law – Secondly, Minister of Finance lacked authority to enter transaction – Thirdly, Ukraine entitled to avoid Notes because of duress arising from Russia's illegitimate threats and pressure – Fourthly, Ukraine entitled to rely on public international law doctrine of countermeasures to decline to make payment under Notes –

Trustee applied for summary judgment – Trial judge granted application – Ordered Ukraine to pay sums due under Notes – On appeal, CA upheld trial judge's conclusions on capacity, authority and countermeasures, but said claim could not be decided without trial because Ukraine had arguable and justiciable defence of duress – Ukraine appealed to SC –

SC unanimously ruled Trustee not entitled to summary judgment – Ukraine permitted to defend claim at HC trial before High Court – Majority said Ukraine should be permitted to defend claim duress ground, but only to extent that based on duress of person or goods resulting from Russia's alleged threatened use of force – Said Ukraine's defences on capacity, authority and countermeasures should be struck out – One judge agrees with majority on capacity and authority, however would have allowed duress defence to proceed to trial on broader basis than majority –Said countermeasures defence should proceed – Appeal allowed.

Lawyer Listing for Bots