New Zealand Law Society - Courts roundup 24 April - 30 April 2025
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Cook v R [2025] NZSC 44 (28 April 2025)
Unsuccessful appeal from CA – Concerned whether defence of involuntary act based on “sexsomnia” (parasomnic sleep disorder characterised by displays of sexual behaviour while asleep), in law defence of insanity or one of sane automatism – Insanity involved “disease of the mind” making actor incapable of understanding nature of act – Sane automatism involves act committed without conscious volition, not caused by disease of mind – CA in previous case said defence premised on sexsomnia to be treated insanity defence under s 23 Crimes Act 1961 –
Birthday party held at C’s flat – One participant became intoxicated, passed out – Put to bed in C’s room, while he continued partying – Later woke to find C joined her in bed and was sexually violating her –
After initial denials, C accepted sexual contact occurred – At trial advanced sexsomnia defence – Adduced supporting evidence from family members, former partners, and expert psychiatric evidence –
HC trial Judge classified defence as insane automatism, based on “disease of the mind”, meaning s 23 Crimes Act engaged – Provision placed reverse onus on C to prove, on balance of probabilities, suffering from disease of mind at time of alleged offending – Judge rejected defence argument to be categorised instead as sane automatism – Jury did not accept insanity defence, finding C guilty of sexual violation by unlawful sexual connection and sexual violation by rape – On latter charge sentenced to eight years’ imprisonment, and on former, concurrently, to three years’ imprisonment –
CA upheld Judge’s classification – Dismissed C’s appeal against conviction, but reduced sentence to seven years’ imprisonment –
Question before SC whether CA correct to classify defence as one of insanity – In substance, appeal against reasoning in previous CA case –
SC unanimously dismissed appeal – Traced evolution and interrelationship of insanity and sane automatism defences in New Zealand and across common law world – Explained why classification as one or other defence necessary, assessed apparent disadvantages of insanity classification, analysed proper meaning to be given to expression “disease of the mind” in s 23 Crimes Act – Considered whether related limits on presumption of innocence were demonstrably justified in terms of Bill of Rights –
SC said previous CA decision essentially correct – Said sane automatism available only where absence of conscious volition arose from event or condition not properly classified as disease of mind – Where automatism proceeded from disease of mind, defence to be classified as insanity per s 23 – Insanity only defence that could properly be put to jury here – Appeal dismissed.
Hong v Kinnon [2025] NZCA 117
Two appeals – One allowed in part - Property purchased by trust – Bulk of purchase paid by H who at the time was trustee and lawyer – Basis of payment disputed – H transferred property into his own name – Current trustees sought to recover property – H counterclaimed alleging payment a loan, he had been defrauded and he was equitable owner – Jagose J determined counterclaim and held H’s payment was made in discharge of personal liability as trustee to settle purchase for beneficiaries – H was entitled to be reimbursed however counterclaim was dismissed as it was pleaded on basis H made advance or loan which had no factual foundation – Harvey J determined causes of action and agreed with Jagose J conclusion as to the nature of H’s payment – Harvey J held that H breached his fiduciary duty and declared H held property on constructive trust and ordered account of profits – H appealed both decisions –
Appeal allowed in part against decision of Jagose J – H had not been defrauded and findings in this respect upheld - Dismissing counterclaim left H unable to enforce proprietary interest as subsequent claim would be open to challenge as abuse of process – Best course to remit counterclaim to HC for H to make application to amend pleading to enforce proprietary interest – Appeal against decision of Harvey J dismissed.
Hart v R [2025] NZCA 120
Unsuccessful appeal against sentence of 6 years 6 months' imprisonment – Single charge of sexual violation by rape – Whether there was an error in the starting point – End sentence mirrored starting point – Offending fell within band one of R v AM – Two aggravating features identified in R v AM were present in H’s offending to moderate degree – Victim was asleep and vulnerable – Harm to victim moderate – Starting point did not assume a level of violence beyond that inherent in the act of rape – An inference of premeditation also available on the facts –
Starting point adopted by judge justified – Appeal dismissed.
Telus Communications Inc v Federation of Canadian Municipalities [2025] SCC 15 (25 April 2025)
Unsuccessful appeal from Federal CA – Appeal about legislation giving Canadian Radio-television and Telecommunications Commission (CRTC) power to grant telecom carriers access to public places for purpose of constructing, maintaining and operating their “transmission lines” – Under ss 43 and 44 Telecommunications Act, (access regime) CRTC can set access terms when carrier and relevant public authority do not agree on terms –
In 2019, CRTC initiated broad review of mobile wireless services and related laws – Topic reducing barriers for mobile wireless infrastructure, including 5G – Various parties, including several carriers, commented about obtaining access to different infrastructure types to deploy mobile wireless networks –
Consultation raised whether CRTC had power under access regime to regulate carrier access to public property for 5G small cell antennas – Previous-generation mobile wireless networks relied on approximately 13,000 large cell antenna towers across Canada to transmit intelligence from wireline networks to users’ devices like cell phones – 5G connectivity across Canada requires estimated 250,000 to 300,000 small cell antennas – 5G small cell antennas mounted on structures such as telephone poles, lamp posts, bus shelters, or buildings, many of which located on municipally owned public property – 5G infrastructure deployment across Canada requires carriers to access public property to install, maintain and operate 5G small cell antennas –
CRTC’s interpretation of “transmission line” in access regime led to conclusion did not have power to determine carriers’ access to 5G small cell antennas on public property – CRTC said “transmission line” did not include 5G small cell antennas or any wireless infrastructure for two reasons – First, ordinary meaning of “transmission line” and other parts of Act indicate Parliament intended to refer only to wireline infrastructure – Second, narrow interpretation of “transmission line” appropriate given other legislation, such as approval process for placing antenna systems under Radiocommunication Act – Carrier appealed CRTC’s decision to Federal CA, which confirmed CRTC’s interpretation of “transmission line” –
Several carriers appealed to SC, seeking declaration that “transmission line” included 5G small cell antennas –
SC majority dismissed appeal – Said ordinary meaning of “transmission line” and text of ss 43 and 44 Telecommunications Act had strong physical and linear connotation that readily applied to wireline infrastructure like wires or cables, not to antennas – Likewise, broader Act context, including other defined terms and Act’s legislative history, supported narrower interpretation –
General Act policy objectives, such as facilitating orderly telecommunications development, did not require interpretation of “transmission line” most advantageous to carriers – Parliament intended to leave site access up to good faith negotiation between carriers and relevant public authorities such as municipalities – Parliament’s balance of carriers’ interests against those of public authorities to be respected – Appeal dismissed.
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