New Zealand Law Society - Courts roundup 29 June - 5 July 2023

Courts roundup 29 June - 5 July 2023

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

High court sign with beehive reflection 2

New Zealand Supreme Court

Name suppression, lifting of

Wallace and anor v R [2023] NZSC 74 (26 June 2023)

Unsuccessful applications for leave – W and Trust applied for leave to appeal CA decision declining name suppression – Order continuing suppression until 2 pm on 28 June 2023 to enable them to prepare for publication – Application dismissed.

Self-represented litigant, judicial review, strike out

D (SC 48/2023) v JDN [2023] NZSC 77 (28 June 2023)

Unsuccessful leave application – Self-represented D applied for leave to appeal from CA decision dismissing appeal HC decision to strike out judicial review application – Application concerned Family Court decision –

SC said proposed appeal did not meet leave criteria – Issues raised turned on particular facts – Nothing before Court showing sufficient doubt about correctness of decision to justify granting leave – Application dismissed.

Time extension, leapfrog appeal

Te Whānau a Kai Trust V Gisborne District Council [2023] NZSC 77 (29 June 2023)

Unsuccessful time extension application – HC dismissed Trust’s appeal against Environment Court decision relating to dispute about Gisborne Regional Freshwater Plan – CA declined leave to appeal – Trust applied for time extension for leave to appeal direct to SC –

SC said no extraordinary and compelling circumstances to justify direct appeal when CA declined leave in fully reasoned judgment – In any event, arguments sought to be raised essentially repeated arguments in Courts below and nothing raised suggested CA may have been wrong assessing proposed leave grounds, given how Trust pitched its case – Application dismissed.

Self-represented litigant, judgment recall, costs

DFT v Auckland High Court and ors [2023] NZSC 78 (28 June 2023]

Unsuccessful recall application – On 17 May 2023, SC issued judgment dismissing self-represented DFT’s application for leave to appeal against aspects of CA decision – SC ordered DFT to pay each of second and third respondents costs of $1,250 –

On 26 May 2023, DFT applied to recall SC judgment and for cancelling costs order – SC said no matter DFT raised provided basis for judgment recall – Further $500 costs orders for second and third respondents – Application dismissed.

New Zealand Court of Appeal

Conviction & sentence appeal

Wallace v R [2023] NZCA 6

Unsuccessful appeal against conviction and sentence of 2 years 4 months imprisonment – Indecent assault (x3) – Attempting to dissuade H from giving evidence (x2) – W was well-known philanthropist and patron of the arts – Complainants were guests in W’s house – Whether miscarriage of justice established – HELD: sufficient evidence for the jury to have concluded W sexually assaulted H and that W lied when he told the jury he entered H’s bedroom for innocent purposes – Submission that Judge failed to properly explain timing discrepancy rejected – Even if conviction in relation to charge 3 set aside, would not render the evidence in relation to charge 3 inadmissible as propensity evidence in relation to charges 1 and 2 – Not accepted there was any realistic possibility the jury would have misused hearsay statement in issue – Not accepted notional start point and uplifts were too high – Appeals dismissed.

Name suppression connected entity

Wallace v R [2023] NZCA 56

Unsuccessful application for continued name suppression – Whether extreme hardship would be caused to W or his connected entities if he no longer had name suppression, and publication of W’s name in conjunction with his convictions would be likely to create a real risk of prejudice to any retrial that might be ordered by the Supreme Court – Whether undue hardship would be caused to connected charitable trust and persons connected to it if W no longer had the benefit of name suppression – Two step analysis in D (CA 443-2015) v R – HELD: nothing extreme about the hardship described by W – Effects on W, his businesses and charitable interests were an ordinary and normal consequence of conviction and publication of the name of a high-profile offender with commercial and charitable interests – Principle of open justice meant potential investors and funders should make their decisions on a fully informed basis – Applications for name suppression declined.

Question of law, “unlawful taking” under s210 Crimes Act 1961 - Login Required

R v [X] [2023] NZCA 219

Building work, conviction appeal 

Cancian v Tauranga City Council [2023] NZCA 257

Unsuccessful application for leave to bring a second appeal against conviction – Carrying out building work otherwise than in accordance with a building consent – C was director and shareholder of Bella Vista Homes Ltd which acquired land near Tauranga to subdivide and build houses – Council declared some of the houses under construction to be dangerous – Whether appeal involved matter of general or public importance, or a miscarriage of justice might have occurred – HELD: grounds of appeal did not meet the criterial for a grant of leave – No legal basis to question Judge’s observation that two persons may supervise the same building work – Nothing to suggest the decision of the High Court was in error or otherwise risked a miscarriage of justice – Application for leave dismissed.

Name suppression, take down order - Login Required

NZME Publishing Ltd v R [2023] NZCA 258

Sentence appeal, importation & supply

McCaslin-Whitehead v R [2023] NZCA 259

Successful appeal against sentence of 4 years 2 months imprisonment – M pleaded guilty to 23 charges involving the importation and supply of MDMA and LSD – DC sentenced M to 12 months home detention – Crown appealed with permission of the Solicitor-General and HC replaced sentence with 4 years 2 months imprisonment – Whether HC erred in concluding DC sentence was manifestly inadequate – Whilst second appeal against sentence imposed by DC, was M’s first appeal against, and only opportunity to challenge, HC sentence of imprisonment – Question of overall approach taken in HC and its review of the starting point sentence identified in the DC both raised issues of general and public importance and the possibility of a miscarriage of justice supporting grant of leave to appeal – HELD: 10 year starting point within range of justifiable starting points open to the DC – Some discount warranted, but no more than 20 percent – DC sentence manifestly inadequate, but appropriate course was to maintain the non-custodial sentence reached in the DC (in line with well-settled principles governing appeals by the Crown) – Appeal allowed.

Contract, milk supply agreement

Woolley v Fonterra Co-Operative Group Ltd [2023] NZCA 266

Dairy farmer (W) entered into a milk supply agreement (MSA) with Fonterra – MSA empowered Fonterra to suspend milk collection in specified circumstances – Consequence of suspension that W would not receive payment for milk he produced and would be obliged to dispose of it at his own cost – W brought claim against Fonterra for breach of contract – HELD: HC not precluded by Environment Court’s earlier ruling from determining the sufficiency of the engineer’s certificate – Certificate did not satisfy the requirements of the enforcement order – Maintenance of the suspension following provision of the certificate was not a breach of an implied term restricting the exercise of Fonterra’s contractual discretion – Appeal dismissed.

Conviction appeal, family violence, adjournment application - Login Required

[X] v R [2023] NZCA 273

Transmission pricing methodology guidelines

Nova Energy Ltd v Electricity Authority [2023] NZCA 273

Costs of operating the national electricity grid recovered from users of electricity under a transmission pricing methodology – 2020 Guidelines effected substantial change in transmission pricing – Residual charge based on a measure of gross demand which included demand met by distributed or embedded generation behind the point of connection – Appeal focused on co-generation plants operated by Nova – Whether the Electricity Authority misinterpreted or misapplied the statutory objective, and/or acted irrationally or unlawfully – HELD: there was a case for treating co-generation differently, but the Authority came to a different view for reasons that were rational, consistent with its objectives, and available on the information before it – Appeal dismissed.

New Zealand High Court

Stay of prosecution, mental and physical health

R v Corkran [2023] NZHC 1602 (28 June 2023) Isac J

Successful application for stay of proceedings – C 91 years old – Awaited trial in August 2023 on eight charges of cruelty to children – Offending alleged to have occurred between 49 and 45 years ago at Lake Alice Hospital, where C psychiatric charge nurse – Crown contended C administered paraldehyde injections to children and young people as punishment in circumstances giving rise to criminal responsibility –

HC adjourned to consider evidence and submissions, including about C’s mental and physical condition – Stayed prosecution – Application allowed.

Sentencing, murder

R v Kipa [2023] NZHC 1642 (29 June 2023) Venning J

Sentencing – K pleaded guilty to murdering I – Life imprisonment not manifestly unjust – Provocation element – Life imprisonment MPI 10 years.

Judicial review, Māori Land Court

Mercury NZ Ltd v Māori Land Court and ors [2023] NZHC 1644 (29 June 2023) Cooke J

Partly successful judicial review application – M applied for judicial review of Māori Land Court decision permitting claims to continue in that Court – M had certificates of title under Land Transfer Act 2017 for Waikato River dams and hydro lakes – Claimants claimed Waikato riverbed as Māori customary land notwithstanding titles – HC said Māori Land Court rightly rejected Mercury's strike out application – Indefeasibility of title did not prevent Māori customary land claims given 2017 Act terms – HC said, however, further claims Māori Land Court recognise rights to water and land was held in fiduciary capacity should have been struck out – Application partly allowed.

Supreme Court of Canada

Sentencing, minimum period, common law discretion

R v Basque [2023] SCC 18 (30 June 2023)

Successful appeal from New Brunswick CA – On October 7, 2017, B stopped in downtown Moncton, New Brunswick, for driving her vehicle erratically – Charged with impaired driving and released on November 30 on condition that she not drive motor vehicle while awaiting trial – Pleaded guilty – First offence in 10 years, so treated as first offence – Between her initial appearance and sentence date, 21 months passed –

Section 259(1)(a) Criminal Code said first offence punishable by order prohibiting offender from driving motor vehicle for minimum one year – Also, s 719(1) said, except where otherwise provided, sentence commenced when imposed – Also, common law gives judges discretion to grant credit for time offender spent subject to driving prohibition before being sentenced – Interaction between Code provisions and common law rule at heart of appeal –

Provincial Court judge imposed $1,000 fine and one‑year driving prohibition on B under s 259(1)(a) – Then considered 21 months she had already been prohibited from driving and credited them against sentence – Also backdated order to November 30, 2017, first day of pre‑sentence prohibition, which meant she had already served entire sentence by decision date and not subject to any further driving prohibition – Crown appealed – Court of Queen’s Bench appeal judge sided with first judge – New Brunswick CA majority allowed appeal, saying law did not allow credit to be granted if resulted in prohibition imposed for less than minimum period required – Varied appeal judge’s decision to include new one‑year driving prohibition –

B appealed to SC – SC unanimously allowed appeal – Said granting credit based on common law discretion perfectly consistent with application of ss 259(1)(a) and 719(1) – Said coexistence rested on well‑known distinction between concept of “punishment”, which referred to total punishment imposed on offender, and “sentence”, being decision Court rendered which commenced day Court handed down –

Said s 259(1)(a) required court to impose total punishment of one year to be served, not to hand down sentence imposing one‑year prohibition that must be served prospectively – Interpretation in keeping with objectives of deterrence and punishment that underlay provision – “Parliament’s intention is respected whether the punishment is served before or after the offender is sentenced, because the effect on the offender is the same in either case” –

SC said sentencing judge correct to give credit for pre‑sentence prohibition, but decision to backdate sentence error – Judge could have imposed one‑year mandatory minimum driving prohibition on B, said sentence commenced when imposed, and then granted credit for pre‑sentence prohibition period already served – Here, because period exceeded one‑year minimum, minimum punishment objectives already met, and even surpassed – Consequently, no further prohibition required – Appeal allowed.

United Kingdom Supreme Court 

Judicial review, extraterritoriality 

R (on the application of Marouf) v Secretary of State for the Home Department [2023] UKSC 23 (28 June 2023)

Section 149 of Equality Act 2010 imposed public sector equality duty (PSED), procedural obligation requiring public bodies to have due regard to equality needs listed in section when exercising their functions – Appeal concerned PSED territorial scope – Raised whether public body required under PSED to have due regard to people living outside United Kingdom when exercising functions –

M Palestinian refugee in Lebanon, having fled Syrian conflict in Syria – Said should be treated as eligible to come to United Kingdom under Vulnerable Persons Resettlement Scheme (Resettlement Scheme) Government instituted in 2014 – However, Resettlement Scheme applied only to refugees United Nations High Commissioner for Refugees (UNHCR) referred – M outside UNHCR remit – Registered with United Nations Relief and Works Agency (UNRWA) – UNHCR had specific mandate to assist refugees by local integration in country where they were living, or by resettlement in third country – UNRWA had no such mandate – Followed that in practice, Palestinian refugees could not take part in Resettlement Scheme –

M brought judicial review proceedings challenging lawfulness of Secretary of State's adoption and operation of Resettlement Scheme – Ground directly relevant to appeal was that Secretary of State failed to comply with PSED because she did not have due regard to equality needs set out in that section –

HC said PSED had extraterritorial effect – On appeal, CA disagreed saying it did not – M appealed to SC –

SC unanimously dismissed appeal, referring, among other things, to presumption in domestic law that legislation is not intended to have extraterritorial effect – Well-established principle had been applied for many years to many enactments – In absence of express words, extraterritorial application of legislation may be implied but there was high threshold to overcome before any such implication – Appeal dismissed.

United States Supreme Court

Harvard, UNC admissions systems

Students for Fair Admissions, Inc. v President and Fellows of Harvard College No. 20–1199, Together with No. 21–707, Students for Fair Admissions, Inc. v. University of North Carolina et al

Successful appeal from First Circuit CA – Harvard College and University of North Carolina (UNC) two of the oldest institutions of higher learning in United States – Every year, tens of thousands of students applied to each school; many fewer admitted – Both Harvard and UNC employed highly selective admissions process to make their decisions –

Admission to each school could depend on student’s grades, recommendation letters, or extracurricular involvement – Could also depend on their race – Question to SC was whether admissions systems lawful under Equal Protection Clause of Fourteenth Amendment – SC majority ruled they were not.