New Zealand Law Society - Courts roundup 25 June - 1 July 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
BW v Commonwealth of Australia [2026] NZSC 81 (23 June 2026)
Successful appeal by BW against order for surrender on extradition – Extradition would be unjust or oppressive under s 8(1)(c) Extradition Act 1999 –
CA erred in interpretation and application of s 8(1)(c) - Causal link between delay and resulting oppression or injustice required – "Unjust or oppressive" sets high threshold, reinforced by public interest in extradition for serious offending – Holistic assessment of all circumstances required, including circumstances of alleged offender and seriousness of offending – Public interest relevant but section did not require balancing of public against private interests – Comity not to be treated as separate, heavily weighted principle – More serious offending makes oppression harder to establish, but lengthy or prosecutorial delay diminishes that weight – "Ordinary results" of extradition (disruption to family and cultural connections) capable of contributing to oppression in combination with other factors even where none individually exceptional –BW not responsible for delay – Interests of children to be given considerable weight –
BW's relative youth at time of alleged offending, difficulties in defending charge, strong evidence of reconnection with whānau and iwi, and birth of son pointed to oppression – Interim name suppression continued pending application for permanent suppression –
Ellen France J agreed with majority's test and outcome but, differing from Miller J, considered referral to Minister of Justice not appropriate – Sufficient information before Court to find surrender oppressive –
Miller J dissenting – Extradition Act 1999 provided four main decision-making pathways including discharge, surrender and referral to Minister – Would have referred case to Minister under s 48(4)(a)(i) on basis discretionary restriction in s 8(1)(c) may apply –
BW ineligible for surrender - Appeal allowed.
Repia v R [2026] NZSC 82 (23 June 2026)
Unsuccessful appeal by R against decision which held while an involvement hearing may extend to mental elements integral to the actus reus, or defences like mistake or self-defence when supported by objective evidence, proof of subjective mental states was not required – Reasonable belief in consent was not inherent in the actus reus and therefore did not arise for consideration at the involvement hearing – R charged with sexual violation – Whether Crown required to prove absence of reasonable belief by R that the complainant consented at a s 10 Criminal Procedure (Mentally Impaired Persons) Act 2003 involvement hearing –
Section 10(2) required Crown to prove more than the physical (actus reus) elements where an element combined objective and mental aspects – In sexual violation cases, absence of a reasonable belief in consent was such a composite element and must be established at involvement hearing where there was an objective, independent evidential basis for asserting such a belief – A defendant could not ordinarily rely on evidence arising solely from the mental impairment that rendered them unfit to stand trial – Complainant's resistance and lack of consent clear – R’s asserted belief in consent could only be explained by his mental impairment, and the doctor's file note recording his statements was inadmissible because it was self-reporting evidence affected by that impairment – Crown had established necessary elements, including the absence of a reasonable belief in consent, and the finding of involvement was upheld – Appeal dismissed.
F (SC 98-2025) v R [2026] NZSC 78 (11 June 2026)
Sentence appeals by two “aged-out offenders”, F and N, both decided by CA before SC's decision in G (SC 130-2024) v R, which changed sentencing methodology for aged-out offenders by requiring likely Oranga Tamariki Act 1989 (OTA) outcome to be considered before sentencing under Sentencing Act 2002 – Crown accepted G (SC 130-2024) v R applied and appeals must be allowed – Parties agreed to remittal to DC, rather than resentencing by SC –
F was convicted of two representative rape charges committed when 15-16 and sentenced under band two of R v AM with a 30 per cent youth discount – N was convicted of rape committed when 15-16 and pleaded guilty to two charges of sexual conduct with a young person when 18-19 – CA had already reduced N's sentence on appeal –
SC allowed appeals and remitted for resentencing in DC as better placed to monitor rehabilitative and accountability interventions under ss 25-27 Sentencing Act 2002 and assess likely YC outcome once those concluded –
Crown sought further general guidance on: relationship between G (SC 130-2024) v R and R v Taueki, adjustment to Taueki framework in relation to aged-out offenders, combined sentencing for aged-out and adult offending, starting point of "community-based sentence" in youth justice, sentencing outcomes & applicable law under OTA –
SC rejected Crown's submission that G (SC 130-2024) v R be treated as having limited retrospective effect customary for guideline judgments, holding G (SC 130-2024) v R not a guideline judgment and must be applied on its terms –
Miller J (had dissented in G (SC 130-2024) v R), now agreed appeals must be allowed but added that the two-step methodology should not be confused with Taueki methodology – Notional YC outcome is an end sentence, not a starting point, and second stage is an evaluative exercise as to whether that outcome should change, not a calculation of aggravating and mitigating factors – Appeals allowed.
Kirkham v Winkelmann [2026] NZCA 269 (23 June 2026)
Unsuccessful application by applicants K and company T for leave to appeal two interlocutory HC decisions – K and respondents W and F former law firm partners – K expelled from partnership for gross misconduct, expulsion upheld by arbitrator, no appeal of award – Two HC proceedings followed – Substantive proceeding by W and F for transfer of trust property (with K's counterclaim alleging unlawful conspiracy), and K's separate application to set aside arbitral award for fraud or corruption – Associate Judge granted W and F's procedural application directing proceedings be tried together with oral evidence given once and declined K's challenge to privilege over 2019 legal advice and "without prejudice" letter – Leave to appeal to CA was declined –
Application for leave to appeal did not meet high threshold under s 56(5) Senior Courts Act 2016 – No rule requiring single judgment for multiple applications heard together – HC has broad discretion under High Court Rules to make procedural orders – No prejudice caused by procedural orders – No error as to privilege, legal advice given to W and F personally, not to partnership, and "without prejudice" letter privileged under s 57(1) Evidence Act 2006 as containing settlement offer – Proposed appeal raised no issue of general or public importance – Submission that Chief Justice's familial relationship with W warranted heightened scrutiny rejected as misconceived – Grounds remained available on appeal of substantive decision – Leave declined.
Edmonton (Police Service) v McKee [2026] SCC 24 (26 June 2026)
Unsuccessful appeal from Alberta Court of King's Bench – M sought disclosure of disciplinary records relating to lead investigating detective – Police advised there were no relevant disciplinary records because earlier finding of misconduct had been administratively expunged from detective's disciplinary record under the Alberta Police Service Regulation – Defence later discovered Crown possessed misconduct decision from unrelated prosecution and sought disclosure – Crown concluded misconduct was serious, relevant to detective's credibility, and should be disclosed, but Edmonton Police Service opposed disclosure –
Application judge held expungement provisions did not prevent disclosure in criminal proceedings and ordered disclosure – Chief of Edmonton Police Service appealed to SC –
SC dismissed appeal – Administratively expunged police disciplinary records remained subject to first-party disclosure regime established in McNeil and were not converted into third party records requiring an O'Connor application merely because they had been removed from officer's disciplinary file – Administrative expungement for disciplinary purposes did not alter constitutional disclosure obligations owed to accused –
Police required to identify and provide Crown with misconduct records that were "obviously relevant", while Crown retained responsibility for independently assessing relevance and determining what must be disclosed under its Stinchcombe obligations – Threshold for relevance remained low and was not confined to categories of misconduct identified in McNeil – Where police withheld misconduct information, they were required to advise the Crown what had been withheld and why – Administrative expungement provisions applied only to future disciplinary proceedings concerning the police officer and did not prevent disclosure of relevant misconduct records in criminal proceedings – Appeal dismissed.
Resler v Anglin [2026] SCC 23 (19 June 2026)
Unsuccessful appeal from Alberta CA – Whether civil action alleging misfeasance in public office against a provincial Chief Electoral Officer should be struck as disclosing no reasonable cause of action –
Candidate in a provincial election alleged during campaign Chief Electoral Officer improperly exercised statutory powers relating to election sign enforcement and electoral administration – Unsuccessfully challenged the underlying administrative decisions through separate proceedings and later commenced civil action alleging bad faith, deliberate misuse of public authority, and interference with electoral prospects, seeking damages for misfeasance in public office and related claims –
Applications judge struck the action – CA reinstated most of claim – Chief Electoral Officer appealed –
SC dismissed appeal – On a motion to strike, pleaded facts must be assumed true unless it is plain and obvious claim discloses no reasonable cause of action – Allegations, if proven, were capable of satisfying the elements of misfeasance in public office, including deliberate unlawful conduct and knowledge that harm to the plaintiff was a likely consequence –
Claim was not a collateral attack on election result because it did not seek to invalidate election or alter its outcome, but instead sought damages for alleged misconduct in the conduct of the electoral process –
Prior proceedings concerning validity of administrative decisions did not determine whether statutory powers had been exercised in bad faith or for an improper purpose – Accordingly, action was not barred by issue estoppel or abuse of process –
Neither the office of Chief Electoral Officer nor governing legislation conferred absolute immunity from bad faith allegations – Statutory good faith immunity provisions did not preclude the claim at the pleadings stage – Appeal dismissed.