New Zealand Law Society - Courts roundup 25 May - 31 May 2023

Courts roundup 25 May - 31 May 2023

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

court of appeal

New Zealand Supreme Court

Name suppression

E (SC 13/2023) v R; LF (SC 14/2023) [2023] NZSC 61 (23 May 2023)

Successful leave applications – E’s application granted – Approved question is whether CA correct to dismiss E’s appeal in so far as it sought suppression of LF’s name under ss 200(1) and 200(2)(f) Criminal Procedure Act 2011 – LF’s application extension of time by LF to appeal direct to SC against HC judgment granted – Leave to appeal granted – Approved question whether HC correct to decline to grant LF permanent name suppression – Interim order prohibiting publication of LF’s name, address, occupation or identifying particulars pending SC determination of appeals.

Family law, return of children

Cresswell v Roberts [2023] NZSC 62 (25 May 2023)

Unsuccessful leave application – C sought leave to appeal CA decision ordering return of her two children to France under Care of Children Act 2004 (Act) – Also sought time extensions to appeal earlier procedural decisions –

SC said time extension criteria for earlier matters not met – Not in interests of justice to grant leave here – Application declined.

New Zealand Court of Appeal

Criminal Law, Criminal Practice, Summing up, Judicial Directions

Kaitai v R [2023] NZCA 184

Unsuccessful appeal against conviction for murder - The appellant claimed discharge of the gun was accidental/involuntary and caused by the victim pulling the gun towards him, totally independently of the appellant, breaking the chain of causation - Whether the summing up on causation was unfair, the Judge gave insufficient directions on intent and unintentional discharge, and the Judge made unfair comments on the appellant’s right to silence – HELD: The Judge’s summing up on causation was not unfair - When the summing up was read as a whole, and in particular alongside the question trail, the defence was fairly presented – The question trail neatly encapsulated in a straightforward and clear way what the jury was required to decide - It fairly captured the defence of involuntary/accidental discharge - The directions on intent and unintentional discharge were not insufficient - The causation direction was not unbalanced  - The concept of an accident would have been well understood by the jury and in the circumstances of the case did not require further elaboration- s33 of the Evidence Act allowed a judge to comment on the fact that a defendant had  not given evidence at trial, but that must be used carefully and sparingly - The comments made by the Judge regarding the appellant’s right to silence were not capable of carrying the connotation that if she were innocent she would have given evidence - The comments were made in the context of explaining how the jury should go about its task of determining her actual knowledge and actual intentions despite the absence of any sworn evidence from her  on those topics – The appeal was dismissed.

Companies, Liquidation, Appointment of an unlicensed administrator

Shearing Services Kamupene Ltd (in liquidation) v Tarahau Farming Ltd [2023] NZCA 196

Successful appeal on whether Tarahau Farming had been placed in voluntary administration pursuant to the terms of the Companies Act 1993 - Shearing Services was a judgment creditor of Tarahau Farming - Tarahau Farming owned a dry stock farm, being general land held in two freehold titles - The ultimate shareholder, Maunga Hikurangi Inc represented  whānau and hapū that have an ancestral connection to the land - The parties shared a common director - Shearing Services was placed into liquidation on the application of the Commissioner of Inland Revenue - The liquidators of Shearing Services brought proceedings in the High Court seeking recovery of advances it had made to Tarahau Farming - Unsuccessfully attempted to appeal and to set aside the judgment. In doing so, it incurred further judgment debts for costs - In response to Shearing Services’ demand for payment, Tarahau Farming advised the liquidators that it had gone into voluntary administration and had appointed an (unlicensed) administrator - Shearing Services applied to the High Court for orders that the administration was invalid – The High Court found that, in spite of there being no resolution complying with the Act, the defect was one of form only and capable of remedy, Tarahau Farming was therefore in voluntary administration under the Act - The appointment of an unlicensed administrator was a defect of substance but could be remedied by the appointment of someone who was properly qualified - HELD: Tarahau Farming had not been put into voluntary administration under the Companies Act 1993 - None of the formalities required for a voluntary administration under the Act were complied with - It was fundamental that a quorum of the board of directors reach agreement as to the matters set out in s239I of the Act and pass the required resolution - The directors had not intended to subject Tarahau Farming to the consequences of a voluntary administration under the Act and had not considered the formal requirements - The defect could not be dismissed as one of form only and capable of remedy.

Criminal Evidence, Admissibility of co-conspirator’s hearsay statement - Login Required

Wilde v R [2023] NZCA 197

New Zealand High Court

Interim orders Crown process

Hata and anor v Attorney-General and ors [2023] NZHC 1255 (25 May 2023) Cooke J

Unsuccessful application for interim orders – H and R, for Ngāti Irapuaia o Waioweka hapū, applied for interim orders preventing Crown and Whakatōhea Pre-Settlement Claims Trust from entering Deed of Settlement settling Whakatōhea’s Treaty grievances – Interim relief sought pending determination of hapu judicial review challenge of several decisions and processes Crown followed to reach settlement –

HC said pleaded case had little prospect of success; alternative claim might be available, however interim relief would offend against non-interference principle; application unjustifiably delayed to detriment of those supporting settlement – Application dismissed.

Sentencing, murder

R v Brown [2023] NZHC 1267 (26 May 2023) Johnstone J

Sentencing – B murdered two-and-a-half-year-old girl – Offending was committed with "a high level of brutality and callousness" – B sentenced to life imprisonment – MPI 15 years.

Supreme Court of Canada

SLAPP, defamation, freedom of expression

Hansman v Neufeld [2023] SCC 14

Successful appeal from British Columbia CA – Centered on defamation claim after public debate around initiative to equip educators with resources to teach students about sexual orientation and gender identity – In 2016, British Columbia Ministry of Education launched “Sexual Orientation and Gender Identity 123” (SOGI 123) – Aimed to foster inclusion and respect for students who might face discrimination in school because of gender identity or expression – N elected public school board trustee publicly criticized initiative in online posts, which triggered significant controversy including calls for him to resign – H gay man, teacher and former president of British Columbia Teachers’ Federation, publicly denounced N’s views, including to news media, calling them bigoted, transphobic and hateful – Accused N of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools, and questioned whether N should remain school board trustee –

N sued Mr H for defamation – H asked court to dismiss claim under province’s Protection of Public Participation Act (Act) – Said N launched “strategic lawsuit against public participation” (SLAPP) – Act aimed to counter SLAPPs – When court saw protecting free debate on public interest matters outweighed harm to plaintiff, s 4 Act instructed court to dismiss claim –

Judge dismissed N’s claim – Said had effect of suppressing debate on public interest matters – Said protecting H’s expression outweighed harm N likely suffered – CA disagreed and allowed claim to continue – H appealed to SC –

SC majority restored first judge’s order dismissing N’s claim said public interest in protecting H’s speech outweighed public interest in remedying reputational harm to N – Said N suffered limited harm, as continued to express views despite public reaction and won re-election year later –

SC said H spoke out to counter what he and others perceived to be discriminatory and harmful speech against transgender and other 2SLGBTQ+ youth, “groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity” – Response to N’s statements neither disproportionate nor gratuitous –

Said “[t]he closer the expression lies to the core values of [freedom of expression], including truth-seeking, participating in political decision-making and diversity in the forms of self-fulfilment and human flourishing, ‘the greater the public interest in protecting it’” – H’s speech aligned with these values – Appeal allowed.

Judicial Committee of the Privy Council

Statutory interpretation, local government representation

Maharaj (Appellant) v The Cabinet of the Republic of Trinidad and Tobago and anor [2023] UKPC 17 (18 May 2023)

Successful appeal from Trinidad and Tobago CA – Raised statutory construction issues in context of local government elections in Trinidad and Tobago – Specifically, concerned effect of amendments to Municipal Corporations Act 1990 (MCA) by Miscellaneous Provisions (Local Government Reform) Act 2022 (2022 Act) regarding Councillors and Aldermen office periods –

On 2 December 2019, local government elections held in Trinidad and Tobago – Councillors and Aldermen elected for 3-year period in accordance with unamended provisions of MCA – Due to lose office in December 2022 and further local elections due to be held by March 2023 –

2022 Act significantly changed internal structure of local government, including changes to periods of office of Councillors and Aldermen from 3 to 4 years – 2022 Act did not immediately come into effect but provided that whole Act or specified provisions were to come into operation on such date or dates as might be fixed by Presidential Proclamation – Small number of 2022 Act provisions, including amendments to increase office terms of office, brought into force by Proclamation on 7 November 2022 –

Issue in appeal whether amendment to Councillor and Aldermen office periods, from 3 to 4 years, applied to Councillors and Aldermen in office on 7 November 2022 (incumbents) as well as to those elected in future – Government’s position that amendments applied to incumbents, meaning incumbent representatives served additional one-year term until December 2023, with elections postponed for one year – M applied for judicial review and interim relief to challenge this interpretation –

First instance court refused application for interim relief – CA dealt with underlying construction issue, dismissed appeal, and granted permission to appeal to PC –

PC majority allowed appeal – Said, among other things, electing representatives for fixed or maximum period foundation on which democratic society built  – Inimical to representative democracy that representatives chosen by anyone other than electorate – Not for Parliament, still less Government, to choose representative – If effect of relevant amendments applied to incumbent representatives, would be Government, rather than electorate, to choose representatives for another year – Appeal allowed.

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