New Zealand Law Society - Courts roundup 28 March - 3 April 2024

Courts roundup 28 March - 3 April 2024

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

Christchurch Courts

New Zealand Supreme Court

Indecent assault

Sachu v R [2024] NZSC 24 (25 March 2024)

Unsuccessful leave application – S convicted after trial on one charge of indecent assault of female acquaintance – Appealed against conviction unsuccessfully to CA – Applied for leave to appeal to SC because of trial counsel incompetence – In particular, failure to cross-examine Crown witnesses on several material inconsistencies relating to what were central matters in dispute – Said miscarriage of justice might occur if appeal not heard –

SC said proposed appeal would reprise arguments in CA – No challenge to principles CA applied – No question of general or public importance – No appearance of miscarriage of justice – Application dismissed.

New Zealand Court of Appeal

Sexual charges, Propensity evidence, Retrial - Login Required

[O] v R [2023] NZCA 555

Theft in special relationship, Charge split, Erroneous jury direction

Coleclough v R [2024] NZCA 80

Successful appeal against charge of theft by a person in a special relationship (x2) – Sentenced to 6 months community detention and reparation payments – Appeal on grounds Judge’s decision to split the original single charge in two was wrong and unfair; - Judge materially misdirected the jury on mens rea; - No properly instructed jury could reasonably have convicted; Judge invited the jury to speculate about the meaning of a particular piece of evidence in a way that was prejudicial to the appellant; - And failing any of those grounds appellant should have been discharged without conviction – Court may not add a charge on its own motion - Judge’s directions on mens rea in relation to both charges were inadequate - HELD: Appeal allowed – Convictions quashed – No retrial ordered.

Breach of NZ Bill of Rights, Covid-19 restrictions, Religion

Free to Be Church Trust v Minister for Covid-19 Response [2024] NZCA 81

Appellant (FTBC) represents a group of churches whose right to manifest their religious beliefs was limited by the vaccination requirements imposed on gatherings by the COVID-19 Public Health Response (Protection Framework) Order 2021 (Order) - FTBC accepts that at the time the Order was made the limits were justified – Claims the justification ceased to be sufficient in early 2022 once the Omicron variant of COVID-19 was prevalent in the community, and that New Zealand Bill of Rights Act 1990 (NZBORA) required the relevant restrictions under the Order to be removed by mid-February 2022 at the latest – FTBC filed judicial review proceedings in March 2022, seeking review of the Order - Judicial review application dismissed - Whether there was a delay in removing COVID-19 gathering restrictions that breached the NZBORA – HELD: On the basis of the documents which are before this Court, the process adopted by the Minister to remove the relevant right-limiting measures by 4 April 2022 in the context of a fast-developing and complex public health crisis appears to have been prompt and efficient - Court not prepared to find that the time taken to make the Minister's decision, or the short delay from the date of the Minister's decision to remove the right-limiting measures to when that decision became effective, were inconsistent with NZBORA - Appeal dismissed.

Sexual charges, Judges summary inadequate, Miscarriage of justice, Retrial - Login Required

[R] v R [2024] NZCA 83

Murder, Propensity evidence, Admissibility - Login Required

[M] v R [2024] NZCA 87

New Zealand High Court

Duty of care

Re: Gore Street Apartments also known as “Harbour Oaks”: Body Corporate 366567 v Auckland Council [2024] NZHC 32 (26 March 2024) Walker J

Partly successful claims for breach of duty of care – Body Corporate/unit owners in 40-storey tower block constructed between 2004-2006 claimed remedial and consequential losses associated with 13 alleged fire, structural, external and internal moisture defects –

Issues included: whether Body Corporate entitled to sue under Unit Titles Act 2010 and was owed duties of care versus duties owed to unit owners; effect of vendor assignments of claims; whether Building Act 2004 altered legal framework; scope of duty of care owed by council and contractors; how long-stop limitation provisions in s 393 Building Act 2004 operated; whether each claimed defect existed; whether non-compliance with Building Code; whether negligence causative of non-compliance with Building Code –

HC issued 469-page judgment on 30 January 2024, re-issued 26 March 2024, upholding some, but not all, claims against Auckland Council, Clark Brown, Mapei, Chenery and Holmes – Claims against Equus rejected.

United Kingdom Supreme Court

Tort, statutory liability, damages for pain, suffering and loss of amenity

Hassam v Rabot [2024] UKSC 11 (26 March 2024)

Unsuccessful appeals and cross-appeals from CA – Sums at stake in two test cases in appeal small, but clear that thousands of cases potentially affected by decision – Statutory reforms under Civil Liability Act 2018 (2018 Act) to claims for whiplash injuries (WLI) caused by negligent driving – Question at issue on appeal how should damages for pain, suffering and loss of amenity (PSLA) be assessed, where PSLA caused by both WLI and non-whiplash injury (NWLI) suffered in same road traffic accident –

Generally, claims in England and Wales for PSLA damages in negligence determined by applying common law principles – Where multiple injuries, judge assesses damages for PSLA caused by each separate injury by referring to well-established guidelines, before “stepping back” to look at total PSLA for all injuries – Judge may then adjust total to avoid over or under-compensating claimant –

However, when Parliament passed 2018 Act, approach to WLI claims changed significantly – Regulations fixed amount to be awarded for PSLA at “tariff amount”, that varied only by reason of duration of WLI and was significantly lower than damages awarded for WLIs at common law –

Two claimants in appeal, R and B, injured in separate car accidents caused by other drivers – Both claimants suffered WLIs and NWLIs which caused them PSLA – District Judge heard both cases – In R’s case, Judge assessed tariff amount for WLI at £1,390 and NWLI damages, assessed at common law, at £2,500, producing initial total of £3,890 – As R’s PSLA concurrently caused by WLIs and NWLIs, Judge stepped back and reduced R’s total damages to £3,100 –

B’s tariff amount assessed at £840 with NWLI damages at £3,000, producing initial total £3,840 – Again, PSLA caused concurrently by WLIs and NWLIs – Judge reduced B’s total damages to £2,800 –

Defendants appealed to CA, saying any PSLA caused by both WLIs and NWLIs already compensated for in tariff amount, so only PSLA caused exclusively by NWLIs could be compensated for in addition to tariff amount – Referred to as “first approach” – Claimants cross-appealed, saying tariff amount and PSLA damages for NWLI should have simply been added together without any deduction for overlap – Referred to as “second approach” – CA majority said District Judge’s approach, adding tariff amount and NWLI PSLA damages together and then reducing latter to avoid overcompensation for concurrently caused PSLA, correct (although overall award to B increased to £3,500) – Referred to as “third approach” – The Master of the Rolls (in his dissenting judgment) endorsed first approach –

Defendants appealed to SC – Claimants cross-appealed – SC unanimously dismissed appeals and cross-appeals – Said CA majority took right approach (as essentially did District Judge) in assessing damages for PSLA concurrently caused by WLIs and NWLIs – Appeals, cross-appeals dismissed.