New Zealand Law Society - Courts roundup 29 January - 4 February 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Weiss v Police [2025] NZHC 68 (30 January 2026) Johnstone J
Partly successful application for leave to appeal on questions of law arising in DC alone trials resulting in convictions on charges under Trespass Act 1980 - Convictions related to protest occupation of pontoon in marine construction zone –
HC said: 1. Holder of coastal permit issued under Resource Management Act 1991 could lawfully exclude the entire public when reasonably necessary for permit's purpose - Included people asserting entitlement to occupy as matter of tikanga - 2. DC Judge's factual finding that reasonably necessary to exclude public from pontoon within construction zone not so clearly untenable as to amount to error of law - 3. Any mistake whether occupiers entitled as matter of tikanga to occupy construction zone mistake in law rather than fact, incapable of giving rise to defence of honest belief in facts or circumstances which would make presence lawful -
HC exercised power under s 299 Criminal Procedure Act, to amend or restate proposed questions of law - Leave to appeal amended questions granted under s 296(2) - In terms of s 300(1)(a), DC Judge rulings on amended questions confirmed.
R v BB [2026] SCC 1 (22 January 2026)
Unsuccessful appeal from Ontario CA – BB charged with sexual offences allegedly committed against two stepdaughters between 1999 and 2005 – Trial judge found him guilty of sexual assault based on forced sexual intercourse and oral sex involving one stepdaughter – Judge also placed conditional stay on related sexual exploitation charge – Conditional stay meant charge would only go forward if higher court later set aside sexual assault conviction –
BB appealed conviction to Ontario CA – Said trial judge misunderstood important evidence about when sexual assaults said to have occurred – In particular, one stepdaughter testified some of alleged sexual abuse occurred when she was 16 years old or younger, despite having previously denied it to police at age of 17 –
CA majority dismissed appeal – Said trial judge did not misunderstand evidence – Said trial judge entitled to rely on complainant’s testimony, which found to be detailed, consistent, and believable – Also emphasized trial judges responsible for weighing evidence, and appeal courts should not interfere unless clear error – BB appealed to SC –
SC unanimously dismissed appeal – Sexual assault conviction remained in place.
R v Hussein [2026] SCC 2 (23 January 2026)
Unsuccessful appeal from Ontario CA – Case about whether trial judge erred dismissing accused’s application to exclude parts of criminal record from evidence at jury trial –
Under s 12 Canada Evidence Act 1985, Crown might question accused about prior convictions for purpose of assessing credibility – However, trial judges retained discretion to exclude such evidence when prejudicial effect outweighed probative value –
Here, man fatally stabbed after night drinking alcohol with friends in apartment – No one witnessed stabbing – Of six people in apartment before stabbing, only accused not present when police arrived – Crime scene examination found accused’s blood in several apartment rooms, including bedroom where victim died – When accused arrested one week later, had deep cut on thumb – Central issues identity and mens rea –
At trial, accused asked judge to exclude all or part of criminal record from evidence – Accused had several youth and adult convictions – Judge dismissed application, saying criminal record probative value outweighed prejudicial effect – Jury convicted accused of second-degree murder – CA upheld conviction and said trial judge’s decision on record exclusion not unreasonable – Accused appealed to SC –
SC majority dismissed appeal – Said accused’s criminal record form of character evidence when admitted under s 12, Canada Evidence Act 1985 – Prior convictions used only to assess credibility and not to support improper reasoning accused committed offence because of past wrongdoing –
SC also clarified how judges should assess probative value and prejudicial effect – Most important factors included nature of prior convictions, how recent they were, and how similar they were to offence charged – Convictions involving dishonesty more likely to be helpful in assessing credibility, while crimes of violence generally have little value for purpose – When prior convictions similar to offence charged, serious risk jury would be unfairly influenced –
SC said here trial judge committed errors in principle when weighing probative value and prejudicial effect of accused’s criminal record – Trial judge overstated value of certain convictions, including youth offences and violent offences, and improperly considered strength of Crown’s case – Trial judge should have excluded accused’s youth offences and several highly prejudicial violent convictions –
However, Court said this was one of rare cases where curative proviso applied – Even though errors made, conviction could still stand because evidence of guilt overwhelming and trial outcome would have been same – Appeal dismissed.
Emond v Trillium Mutual Insurance Co Ltd [2026] SCC 3 (30 January 2026)
Unsuccessful appeal from Ontario CA – House severely flood damaged and declared total loss – House in area where conservation authority, public body protecting and managing natural resources, regulated development – Rebuilding house required extra work to meet conservation authority requirements –
Homeowners insured under standard form policy, which covered base amount in case house is damaged or destroyed – Policies usually listed costs insurance company would pay – Policy excluded extra rebuilding costs incurred from complying with laws or regulations (compliance costs) –
Policy also included guaranteed rebuilding cost endorsement – Allowed homeowners to recover rebuilding costs even if higher than base amount policy covered –
Insurance company agreed to pay for most rebuilding costs but not extra needed to comply with conservation authority requirements – Homeowners asked courts to declare guaranteed rebuilding cost endorsement required insurance company to pay all rebuilding costs, including compliance costs –
Superior Court of Justice Judge agreed with homeowners – CA allowed insurance company appeal – Homeowners appealed to SC –
SC majority dismissed appeal – Said insurance policies to be read as a whole and language of this policy clear – While guaranteed rebuilding cost endorsement increased amount paid to rebuild house, did not override compliance costs exclusion – Policy clearly excluded costs of extra work conservation authority requires – Consequently, insurance company not required to pay extra compliance costs – Appeal dismissed.
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