New Zealand Law Society - Courts roundup 26 March - 1 April 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
G (SC 130/2024) v R [2026] NZSC 19 (24 March 2026)
Successful appeal from CA – Concerned how adult should be sentenced for offending committed as young person – When person offended before turning 18, but not charged until 19 or older, becomes issue – Oranga Tamariki Act 1989 (OTA) provided such people not required to be brought before Youth Court – Instead, treated as, in effect, having “aged-out” of youth justice system and to be sentenced under Sentencing Act 2002 –
Issue here whether adult, when sentenced under Sentencing Act, should be sentenced taking into account outcome that would have applied had been charged when committed offending and dealt with in Youth Court –
G 19 years old when, in 2021, three sexual violation charges laid against him: two of unlawful sexual connection against separate victims and one of rape against third – G committed rape when 15 – Chose to go to trial on rape charge, found guilty and sentenced under Sentencing Act – Had G been charged before 19th birthday, OTA would have applied – G 18 when committed unlawful sexual connection offences, so OTA did not apply – Pleaded guilty to those charges –
On 9 April 2024, G sentenced in DC to three years four months’ imprisonment on all three charges, despite discounts for youth and other factors – CA dismissed G’s appeal against conviction and sentence – G appealed sentence to SC –
SC unanimously allowed appeal – Appeal allowed.
Heinemann v R [2026] NZSC 21 (26 March 2026)
Unsuccessful leave application – H applied for leave to appeal CA dismissing appeal against conviction on two charges of sexual conduct with child under 12 (one charge being representative) – Jury found H guilty, sentenced in DC to 20 months’ imprisonment (cumulative on previous sentence of three years and three months’ imprisonment) –
SC said proposed appeal did not raise matter of general or public importance – Not satisfied substantial miscarriage of justice in prospect if leave not granted – Application dismissed.
Bailey v R [2026] NZSC 20 (30 March 2026)
Successful appeal from CA – About unfitness to stand trial under Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) – Three step process – First, defendant found to be mentally impaired (on basis of evidence from two health assessors) might be found unfit to stand trial – If found unfit, court proceeded to involvement hearing, inquiring into whether defendant caused act or omission that formed basis of offence for which defendant charged – Finally, if found to be involved, court to make disposition orders under pt 2 subpt 3 –
Judgment here concerned whether applications for dismissal of charges (resulting in acquittal) or stay of proceedings could be considered between first and second step of CPMIP Act process – When defendant found unfit to stand trial but not yet found to have committed offending could instead seek dismissal of charge or stay of proceedings –
B alleged to have sexually assaulted three female pupils, all between six and nine years old at time, between 1982 and 1989 while caretaker at primary school – Crown brought eight charges against B for alleged historical offending –
In June 2021, B’s counsel advised DC in process of obtaining full health assessment of B – In October 2021, counsel applied for dismissal of charge under s 147 Criminal Procedure Act (CPA) on ground “time that has elapsed since the commission of the alleged offences … is such that it is not possible for the defendant to obtain a fair trial” –
After health assessment showed B suffering from degenerative condition affecting memory, likely caused by Alzheimer’s disease, direction reports be obtained under s 38 CPMIP Act to ascertain whether B fit to stand trial – Court received reports from two health assessors – Both considered B unfit to stand trial due to Alzheimer’s-type dementia – DC judge ruled B unfit to stand trial and directed involvement hearing take place in September 2023 –
After Judge’s ruling but before involvement hearing commenced, defence counsel renewed October 2021 application to dismiss charges, citing prejudicial delay and B’s advanced age and mental frailty – Crown resisted the application citing s 8A (and s 10) CPMIP Act, which said court “must” inquire into the defendant’s involvement following finding of unfitness to stand trial – On 17 August 2023, another judge granted defence application and dismissed charges –
CA allowed Crown’s appeal and set aside Judge’s order – Said once defendant found unfit to stand trial, mental impairment cannot be relied upon as basis for stay under s 147 CPA because would circumvent CPMIP Act processes –
SC unanimously allowed B’s appeal – Said, among other things, B entitled to apply for stay, or dismissal under s 147, after found unfit, so long as (1) application not wholly reliant on mental impairment on which unfitness finding made and (2) other factors preventing fair trial substantially engaged – Prerequisites met here, B’s application relying both on prejudicial delay and mental impairment – Also, medical reports identified (but did not assess) series of physical disorders affecting B’s capacity to participate in trial –
SC identified other issues in DC approach, meaning dismissal application should be remitted to be considered further – Appeal allowed, case remitted to DC.
Tamihere v R [2026] NZSC 22 (31 March 2026)
Successful appeal from CA - SC exercised jurisdiction under s 406(1)(a) Crimes Act 1961 to quash T’s convictions - Order directing retrial - Order prohibiting publication of unredacted version of judgment pending final disposition of retrial –
Under proviso to s 385(1) Crimes Act 1961, where appellate court found miscarriage of justice occurred, appeal against conviction might nonetheless be dismissed if appellate court itself satisfied of defendant’s guilt beyond reasonable doubt –
Specific issue here whether in 2024 judgment CA correct to apply proviso and decline to exercise jurisdiction under s 406(1)(a) Crimes Act to quash T’s convictions for murdering H and P –
T convicted following HC jury trial – Crown evidence largely circumstantial – Neither body found - Crown case relied on evidence of two trampers who identified T as man met near to where H and P’s car found and Ha’s evidence of conversations with T while on remand in prison –
T appealed to CA against convictions - Before appeal heard, H’s body found some 70 km by road from location where murders allegedly committed – CA had new evidence about discovery of H’s body indicating H had been killed near to where body found –
CA dismissed appeal in 1992 - Said new evidence relating to body discovery, when considered with evidence at trial, not such that might reasonably have led jury to return different verdict –
In 2017, Ha convicted of perjury relating to key aspects of evidence at T’s trial –
The following year, T applied to Governor-General to exercise Royal prerogative of mercy - Under s 406(1)(a) Crimes Act, Governor-General in Council could refer question of conviction to CA – Occurred in 2020 –
In July 2024 judgment CA ruled admitting Ha’s evidence may have affected jury’s verdicts - Therefore, miscarriage of justice – However, Court went on to apply proviso to s 385(1) and declined to quash T’s conviction – T appealed to SC –
SC unanimously allowed appeal – Said CA not right to embark on consideration of proviso here for two reasons - First, fundamental error at trial made trial unfair - Second, radical recasting of Crown theory of case meant, in applying proviso, T’s convictions upheld where issues raised, including questions of credibility and reliability, that had never been tested before jury –
SC quashed T’s convictions – Did not mean jury could not possibly be satisfied of guilt, but would need to be decided on retrial which Court directed - For Crown to decide whether or not to conduct retrial – Appeal allowed – Order directing retrial.
Easthope v Ale [2026] NZCA 83
Unsuccessful application by E for stay of execution of order - An order was made requiring E to deliver up vacant possession of a property to his sister A, the executor of his father’s estate – HC declined E’s application for stay of enforcement pending appeal -
Application for stay of execution should not be granted - Considering the principles relevant to an application for stay set out in Wootton v Wootton, a stay was not necessary – E’s strongest argument was that unless a stay was granted, his appeal right would be rendered nugatory as the property would be sold - However, E had no claim to full ownership of the property and there was no suggestion he was either willing or able to buy out the interests of the other beneficiaries - No realistic outcome in which property would not be sold – E’s principal claim was not against the property itself but against his mother’s estate’s half share in the property - That interest could be safeguarded by the undertaking of the trustees of both estates that, on sale of the property, they would hold 50 per cent of the net proceeds on trust, pending resolution of E’s claim - E’s unlawful occupation of the property had significant impact on other beneficiaries - No novelty or public interest in appeal and prospects of success low - Overall balance of convenience weighed against E – Application dismissed.
Mercury NZ Ltd v Māori Land Court [2026] NZCA 91
Appeal and cross-appeal concerning claims by twelve hapū and the Pouākani Claims Trust No 2 to tikanga rights, interests and responsibilities in respect of parts of Waikato River bed, its waters and adjacent lands - From 2002 to 2009, certificates of title to the River Bed were issued to the Crown and held by Mercury or Crown for its benefit - Pouākani claimants filed claims in the Māori Land Court (MLC) that River Bed Māori was customary land, and Crown held title as a fiduciary for them, and that they own the river water - MLC declined Mercury’s strike-out - On judicial review, HC held MLC had no jurisdiction over fiduciary duty and water claims but could consider customary land claim –
MLC had no jurisdiction to consider a claim relating only to water under the Te Ture Whenua Māori Act 1993 (Act) where there was no land with legal status to ground the claim - Text, context and purpose of the Act, including tikanga and case authorities, did not support jurisdiction to determine claims to water independently of land - Water claim may be considered by HC – CA bound by authority that s 18(1)(i) Act did not extend to fiduciary claims to General land or Crown land - Fiduciary duty claim may also be considered by HC - Customary land claim untenable - Parliament did not intend Māori customary land to be an exception to indefeasibility under the Land Transfer Act 1952, and case law confirmed customary rights were not an exception to registered title.
Te Rūnanga o Ngāi Tahu v Minister of Conservation [2026] NZHC 722 (25 March 2026) Osborne J
Unsuccessful interlocutory application by Rūnanga for direction proceeding be set down for urgent fixture – Minister successfully cross-applied for interim stay of proceeding – Substantive proceeding related to Crown’s obligations under 1997 Deed of Settlement and Ngāi Tahu Claims Settlement Act 1998 – Rūnanga sought three limbs of declaratory relief relating to: breach of Settlement; breach of s 4 Conservation Act 1987; breach of legitimate expectation of plaintiff – Interim stay based primarily on Parliamentary privilege and non-interference –
HC said relevant Bill constituted proceedings in Parliament – Protected by privilege and non-interference principle – Abuse of process for Court to be asked to engage in consideration of proposed legislation – Stay granted – Rūnanga application for urgent fixture fell away.