New Zealand Law Society - Courts roundup 28 September - 4 October 2023

Courts roundup 28 September - 4 October 2023

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

High Court Coat of Arms

New Zealand Supreme Court

Validity of voluntary administration, tikanga

Tarahau Farming Ltd v Shearing Services Kamupene Ltd (in liquidation) [2023] NZSC 129 (27 September 2023)

Unsuccessful leave application – HC declaration that TF had validly been placed in voluntary administration under Companies Act 1993 subsequently overturned by CA (which declared that it had not) – TH judgment debtor to SSK, sought leave to appeal to SC –

SC said sole issue before CA and SC whether TH had validly been placed in voluntary administration – While TH wished to argue that voluntary administration under tikanga should be recognised by New Zealand law, issue did not arise given narrow issue before CA – Not necessary in interests of justice to hear appeal – Application dismissed.

New Zealand Court of Appeal

Wills, new evidence, Judge erred

Robinson v Beaman [2023] NZCA 468

Unsuccessful appeal against HC decision declining application to validate as B’s will a 2020 email, or alternatively, a 2019 draft will – Successful application to adduce new evidence – Judge was not satisfied B’s testamentary intentions were settled in relation to either document – Application to adduce further evidence - B described the 2020 email as “a start” and did not send the 2020 email to his solicitors, instead expressing a desire to find new lawyers, which was consistent with his testamentary intentions being unsettled - B appeared to be aware that to revoke his old 2014 will, any new will had to be legally valid – HELD: the 2020 email and 2019 draft will exhibited significant differences of outcome, indicating fluidity of testamentary intentions – Judge did not speculate on an alleged family violence incident in an improper way, nor did he err in commenting on the efficacy of B’s testamentary intentions – New evidence did nothing to alter the position - Application to adduce further evidence granted – Appeal dismissed. 

Evidence, juror deliberations

A v R [2023] NZCA 470

Unsuccessful application to obtain and admit juror deliberations in an appeal against conviction – A found guilty in HC by majority on charges of sexual violation by rape (x2) and kidnapping (x1) – Guilty plea to one charge of sexual conduct with a dependent family member – Acquitted on other sexual charges relating to the same complainant (x5) – Filed appeal alleged improprieties in the jury’s deliberations resulting in a miscarriage of justice – A wished to admit evidence of jury deliberations in support of his appeal – After HC trial the foreperson contacted A’s counsel by email expressing concern at the jury’s decision-making process – A applied for Court direction that an amicus curiae be appointed to interview the HC jury’s foreperson to ascertain the reasons for their views – General rule at common law that jury verdicts were required to remain inscrutable – Principle of finality was of paramount importance, as was need to maintain public confidence in the administration of justice – HELD: application fell well short of the exceptional circumstances threshold in s76 Evidence Act 2006 – Application to obtain and admit evidence of juror deliberations in an appeal against conviction declined.

Sentence, quashed and substituted

Tatterson v R [2023] NZCA 467

Successful appeal against sentence of 8 years, 4 months and 3 weeks’ imprisonment – T pled guilty to various serious sexual offending and related charges against his former partner M after drugging her – T filmed offending, assaulted M, resisted arrest, attempted to pervert the course of justice – Possession of drugs – Contention that 11 year starting point for sexual offending too high – Court’s view that combination of aggravating factors placed case firmly in Band 2 of the rape bands (R v AM) – HELD: Judge did not err in descriptions of offending – Sentencing starting point too high and 10 year starting point appropriate – Remorse warranted orthodox 5 percent discount rather than 2.5 percent – Appeal allowed – Sentence of 7 years and 5 months’ imprisonment substituted.

Fresh evidence, verdict questioned

Ratu v R [2023] NZCA 472 

Unsuccessful application to adduce fresh evidence – Unsuccessful appeal against conviction – R found guilty on charges of sexual violation by rape (x1) and indecent acts on a girl 12-16 years (x5) – Appealed on the grounds that fresh evidence from two witnesses showed that the verdicts of the jury could not reasonably be supported and should be quashed – Ms A’s evidence lacked credibility, fell well short of meeting the criteria for admission as further evidence for the purposes of this appeal, and could not be regarded as being fresh given a clear opportunity for her to give the evidence at trial – Ms C’s evidence could have been readily obtained prior to the trial, and would not have been of any material significance – HELD: interests of justice did not require the admission of either witnesses’ evidence – No miscarriage of justice had occurred as a consequence of the jury not hearing evidence – Jury’s verdicts not unreasonable – Application declined – Appeal dismissed.

Conviction and sentence, sexual offending

Taylor v R [2023] NZCA 476

Unsuccessful appeal against conviction and sentence of 17 years and 1 month imprisonment with a minimum period of imprisonment (MPI) of 8 years – Sexual violation by rape (x9) – Sexual violation by unlawful sexual connection (x5) – Doing an indecent act on a young person (x4) – Whether Judge misdirected the jury on the consent element in the charges for rape and unlawful sexual connection, resulting in a miscarriage of justice – Whether sentence manifestly excessive because the MPI of just under 50 percent of the total sentence was imposed in circumstances where the criteria in s86 Sentencing Act 2002 had not been satisfied – HELD: no substance in the contention that the Judge was diminishing or downplaying the significance of consent or reasonable grounds of belief in consent – Sentence and MPI were justified and not excessive – Appeals dismissed.

New Zealand High Court

Sentencing, murder

R v Pou [2023] NZHC 2681 (26 September 2023) Walker J

Sentencing – P found guilty of murder following jury trial – Beat partner one hundred times over long period of time at isolated rural property, killing her – High brutality level, cruelty, depravity, or callousness due to vicious and prolonged beating, disabling of victim, indifference to victim’s suffering – Also victim particularly vulnerable due to isolated rural location and disabling injury –  Section 104 Sentencing Act 2002 applied – 16 year minimum period of imprisonment (MPI) appropriate under s 102 but 17 year MPI not manifestly unjust – Life imprisonment with 17 year MPI.

Supreme Court of Canada

Admissibility, nexus of violence to national security

Mason v Minister of Citizenship and Immigration [2023] SCC 21 (27 September 2023)

Successful appeals from Federal CA – M and D foreign nationals in Canada – In 2012 M charged with attempted murder and discharging firearm following argument with man in bar – Charges eventually dropped because of delay – D alleged to have engaged in acts of violence against intimate partners – Some charges from these incidents dropped and he pleaded guilty to three others –

Following these incidents, Canada Border Services Agency officers prepared reports alleging M and D inadmissible to Canada under Immigration and Refugee Protection Act (IRPA) – Section 34(1)(e) IRPA said “a permanent resident or a foreign national is inadmissible to Canada on security grounds for engaging in acts of violence that would or might endanger lives or safety of persons in Canada” –

Reports led to admissibility hearings before Immigration Division of Immigration and Refugee Board of Canada – Two men ultimately found inadmissible to Canada – In their cases, immigration bodies interpreted “acts of violence” under s 34(1)(e) in broad sense, without requiring there to be link to national security or security of Canada – Meant both men’s violent conduct, despite posing no threat to national security, could justify finding them inadmissible in Canada under s 34(1)(e) –

M and D asked Federal Court of Canada to review decisions – In M’s case FC concluded Appeal Division’s interpretation of s 34(1)(e) unreasonable because “security grounds” under s 34(1)(e) needed link between alleged facts and national security – Applied same reasoning to D’s case – 

Minister of Citizenship and Immigration appealed to Federal CA, which allowed appeals – CA said immigration boards reasonably interpreted s 34(1)(e) as not requiring link to national security – M and D appealed to SC –

SC majority allowed appeals – Said appropriate review standard of review was reasonableness – Both decisions unreasonable – Said person could be found inadmissible under s 34(1)(e) only if they engage in acts of violence with nexus to national security or security of Canada – As neither M nor D alleged to have engaged in acts of violence with link to national security or security of Canada, s 34(1)(e) IRPA did not provide legal basis for inadmissibility of either person – Appeals allowed.