New Zealand Law Society - Courts roundup 27 June - 3 July 2024

Courts roundup 27 June - 3 July 2024

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

High Court Judges Bench

New Zealand Supreme Court

Murder, determinate sentence

Wheeler v R [2024] NZSC 73 (27 June 2024)

Unsuccessful leave application – W stabbed and killed RW, who owed him small drug debt – Pleaded guilty to murder and sentenced to life imprisonment with 10 years MPI – CA dismissed sentence appeal – Applied for leave to appeal to SC – Sought determinate rather than life sentence – Said life sentence manifestly unjust because of statutory requirement to impose not less than 10 years MPI when life sentence imposed –

SC said may be issue about whether mandatory MPI could, alone, render life sentence manifestly unjust, but this case did not raise issue – Concurrent fact findings in Courts below that ongoing risk of violence W presented made determinate sentence inappropriate in his case – No question of principle arose – Followed no matter of general or public importance arose, nor sufficient merit to suggest would be risk of substantial miscarriage of justice if leave not granted – Application dismissed.

New Zealand Court of Appeal

Criminal law, practice and procedure, suppression

Dallison v R [2024] NZCA 282

Unsuccessful appeal by three appellants against convictions for wounding with intent to cause grievous bodily harm, and sentences of six years four months imprisonment each - Crown case at trial was that the appellants travelled to a property with a shotgun to intimidate the victim and, in the course of doing so, one of them had shot the victim - Crown could not prove which of the appellants had fired the shotgun - Appellants did not give police interviews nor evidence at trial and the victim was discharged without giving evidence after he was uncooperative and refused to take the oath – Would not have been appropriate for the Judge to grant permission for the victim to give evidence without taking an oath or affirmation and then to treat him as a hostile witness because there could not be confidence he would answer questions in a truthful manner - Judge correct to decline to put self-defence to the jury because the jury could not conclude there was a reasonable possibility of self-defence without speculating - Judge’s reference to “plausible and credible” rather than “plausible or credible” was of no moment as the terms are synonyms - Judge’s reference to the absence of a “narrative” not an error – Sentence starting point and consideration of aggravating features appropriate - HELD: Appeals dismissed.

Murder, sentence, MPI

Thompson v R [2024] NZCA 266

Unsuccessful appeal against sentence of life imprisonment with a minimum period of imprisonment (MPI) of 17 years – Appellant pleaded guilty to murder of her daughter Comfort, as well two charges of ill treatment and one charge of injuring with intent - Comfort Thompson died in Waikato Hospital at the age of 18 months - She had suffered an irreversible, non-survivable brain injury, caused by blunt force trauma – Appellant appealed her sentence on the ground that the MPI imposed is manifestly unjust considering her difficult personal background and her remorse - Whether the Judge erred in setting the notional MPI - Whether the Judge erred in finding that an MPI of 17 years imprisonment would not be manifestly unjust - HELD:  There was some causal nexus between appellant's background and her culpability, but this was appropriately recognised by the 18 month discount to the notional MPI - Notional MPI was correctly assessed as being 16 years three months imprisonment - Judge was correct to find that the imposition of the statutory MPI of 17 years imprisonment was not manifestly unjust in all the circumstances - Appeal dismissed. 

Summary judgment, business relationship, financial liability

Nelson Honey & Marketing (NZ) Ltd v Pureality Trading Co Ltd [2024] NZCA 276

Unsuccessful appeal against summary judgment of the HC - Nelson Honey & Marketing (NZ) Ltd (NHM) is a manufacturer and supplier of honey and related products in New Zealand and overseas - NHM sought to market its products in China and engaged the second respondent to provide it with advice and assistance - It appears the second respondent incorporated Pureality Trading Company Ltd (Pureality) to be a vehicle through which those services would be provided - There was a proposal that NHM engage Horizon as its exclusive agent for the marketing and sale of NHM’s products in China - The Horizon Supply Agreement was reached, but never executed - NHM claimed that Horizon owed $1.745M in respect of products supplied to respondents who sold them in China - Horizon disputed its liability for the amount claimed - NHM sued the respondents - The HC granted a summary judgment application made by the respondents – The issue raised on the respondents' summary judgment application was whether either or both respondents were liable for the sum owed - NHM appeals against the grant of summary judgment to the respondents – Whether leave required was because the application was out of time – Whether the affidavits were non-compliant – Whether NHM’s breach of contract claim is reasonably arguable – Whether NHM’s restitutionary and negligence claims are reasonably arguable - HELD:  A formal grant of leave was not required - Leave was implicit in the timetable order made by the HC Judge - Argument that affidavits were non-compliant was totally without merit given that it seems the sworn affidavits were before the Judge - Court should not have been troubled with this issue - The Horizon Supply Agreement has no bearing on the relationship between NHM and the respondents - No evidential basis for respondents owing NHM a sum of $58,523 let alone the full $1.745M sum claimed - Restitutionary and negligence claims not reasonably arguable - Appeal dismissed.

Wounding with intent, party liability, inconsistent jury verdict, retrial - login required

[M] v R [2024] NZCA 280

New Zealand High Court

Council acting beyond powers, listing land as wāhi tapu

Kāpiti Coast District Council v Waikanae Land Company Ltd [2024] NZHC 1654 (21 June 2024) Johnstone J

Unsuccessful appeal from Environment Court and judicial review – HC agreed with Environment Court finding that Council acted beyond powers when using intensification planning instrument to list company's land as wāhi tapu in schedule 9 of its district plan – Listing  quashed.

Sentencing, attempted murder

R v Daveron [2024] NZHC 1658 (21 June 2024) Grice J

Sentencing – D sentenced following jury finding him guilty of attempted murder on 15 April 2024 (Crimes Act 1961, s 173)   Starting point of 11 years’ imprisonment adopted – Aggravating features included premeditation, serious injury, use of weapon and acting in revenge – Attacking head also relevant but only to very minor degree – No uplift for D's previous convictions –

15 percent discount applied overall for D’s cultural background factors and addiction issues – Pre-sentence reports demonstrated D's background of deprivation and frequent exposure to violence and substance abuse from young age – D had methamphetamine addiction at time of offending – MPI not necessary to meet s 86 Sentencing Act 2002 purposes – Sentenced to nine years four months’ imprisonment.

Sentencing, murder

R v Dickason [2024] NZHC 1704 (26 June 2024) Mander J

Sentencing – Jury found D (history of depressive disorder) was guilty of murdering her three young daughters –

Manifestly unjust to impose 17-year MPI or life imprisonment – Sentence 18 years imprisonment with no MPI – Order under s 34(1)(a)(i) Criminal Procedure (Mentally Impaired Persons) Act 1992 – D to be detained in hospital as special patient under Mental Health (Compulsory Assessment and Treatment) Act 1992 until relevant medical authorities determine fit to be transferred to prison.

Sentencing, murder, aggravated robbery

R v Hobson [2024] NZHC 1705 (26 June 2024) Moore J

Sentencing – Both sentenced for involvement in aggravated robbery of Sandringham superette and H for P’s murder in robbery aftermath –

Common ground life imprisonment for murder not manifestly unjust – HC said s 104 Sentencing Act 2002 not engaged – Murder not committed during aggravated robbery, nor committed in attempt to avoid detection for aggravated robbery or to otherwise subvert course of justice – Having regard to comparable cases and strong need to denounce and deter, HC said starting MPI 16 years warranted – Accounting for six-month uplift for H's personal aggravating factors and one-and-a-half year reduction for personal mitigating factors, HC said 15 years MPI appropriate – HC adopted six year starting point for aggravated robbery itself, allowing net reductions of 25 percent for each defendant on account of particular personal mitigating factors – H sentenced to life imprisonment with 15 years MPI, concurrently with four years six months for aggravated robbery – T sentenced to four years six months imprisonment.

Supreme Court of Canada

Judicial review, jurisdiction, Minister’s tax decision

Dow Chemical Canada ULC v Canada [2024] SCC 23 (28 June 2024)

Unsuccessful appeal from Federal CA – Addressed whether Tax Court of Canada had jurisdiction to consider company’s challenge to Minister of National Revenue’s decision – Minister refused to reduce company’s taxable income by adjusting value of “non-arm’s length” transaction company had concluded with foreign lender, downward transfer pricing adjustment –

“Non-arm’s length” transaction where parties related to each other – Could also be between unrelated individuals, partnerships or corporations depending on circumstances – In contrast, arm’s length transaction where both parties act in their separate interests – In tax context, distinction important because when evaluating transaction between two companies not at arm’s length, revenue agency wanted to ensure still collecting tax on transaction at fair market value –

DC concluded non‑arm’s length loan agreement to borrow money from related Swiss company – Agreement meant DC incurred interest expenses for its 2006 and 2007 taxation years – Also reported income for 2006 taxation year from manufacturing services provided to Swiss company –

Minister reassessed DC for its 2006 taxation year, applying transfer pricing rules set out in s 247(2) Income Tax Act 1985 – Under s 247(2), where taxpayer dealing with non-resident person with whom not at arm’s length (here, Swiss company) amounts in given transaction adjusted to reflect what would have been agreed to had people been dealing with one another at arm’s length – Applying s 247(2) resulted in significant increase in DC’s income in 2006 taxation year, meaning it would need to pay more tax –

 Minister exercised her discretion to refuse DC request for downward transfer pricing adjustment – DC asked Federal Court to judicially review Minister’s decision – Also objected to reassessment for 2006 taxation year and eventually appealed reassessment to Tax Court –

DC’s appeal asked whether Minister’s denial of request fell outside exclusive original jurisdiction of Tax Court – Tax Court said Minister’s discretionary decision under s 247(10) is essential component of taxpayer’s assessment – Went to correctness of that assessment and therefore could be reviewed by Tax Court under its exclusive jurisdiction to determine, on appeal, assessment correctness – Minister disagreed and appealed to Federal CA –

Federal CA allowed Minister’s appeal saying Federal Court had exclusive jurisdiction to conduct judicial review of Minister’s discretionary decisions under s 247(10) – Dow appealed to SC –

SC majority dismissed appeal – Said when Minister exercised discretion under s 247(10) to deny taxpayer’s request for downward pricing adjustment, decision fell outside jurisdiction Tax Court jurisdiction relating to appeal of taxpayer’s assessment – Minister’s discretionary decision not part of assessment – Meaning of “assessment” settled in law and Minister’s opinion formed under s 247(10) qualitatively distinct from that concept – As no express right of appeal to Tax Court, proper forum to challenge Minister’s discretionary decision under s 247(10) Federal Court, pursuant to its exclusive jurisdiction in judicial review under s 18(1) Federal Courts Act – Only Federal Court had jurisdiction to apply appropriate standard of review and access to appropriate range of administrative law remedies – Appeal dismissed.

United States Supreme Court

Presidential immunity

Trump v United States 603 US (2024) (1 July 2024)

Successful appeal from D.C. Circuit – Federal grand jury indicted former President T on four counts for conduct occurring during Presidency following November 2020 election – Indictment alleged after losing election, T conspired to overturn it by spreading knowingly false claims of election fraud to obstruct collecting, counting and certifying election results – T moved to dismiss indictment based on Presidential immunity, saying President had absolute immunity from criminal prosecution for actions performed within outer perimeter of official responsibilities, and indictment’s allegations fell within core official duties – DC denied T’s motion to dismiss, holding former Presidents did not possess federal criminal immunity for any acts – D. C. Circuit affirmed – Both DC and D. C. Circuit declined to decide whether indicted conduct involved official acts –

SC majority said under United States constitutional structure of separated powers, nature of Presidential power entitles former President to absolute immunity from criminal prosecution for actions within conclusive and preclusive constitutional authority – Also entitled to at least presumptive immunity from prosecution for all official acts – No immunity for unofficial acts.