New Zealand Law Society - Courts roundup 29 October - 4 November 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Jetti v R [2026] NZCA 520 (28 October 2026)
Unsuccessful application by J for leave to bring a second appeal against a sentence of 9 months' imprisonment for driving with a breath alcohol level of 1048 micrograms per litre while subject to a zero alcohol licence – J had four earlier excess blood alcohol offences between May 2022 and March 2023 (with associated dangerous and careless driving charges) – J received a community-based sentence package in January 2024 which included intensive supervision, community detention, an alcohol interlock and a zero alcohol licence – DCJ adopted starting point of 15 months' imprisonment and applied a 25 per cent reduction for guilty plea and 15 per cent for alcohol addiction and rehabilitative steps – Home detention was declined despite the pre-sentence report recommending it and the prosecutor being neutral – DCJ found deterrence and denunciation were significant and the previous community-based sentence was “very much a last chance” – HCJ dismissed the appeal by J – Rejected arguments included that the DCJ failed to apply s 16(2) Sentencing Act 2002 and treated home detention as a community-based sentence and that DCJ relied on a misconception about non-engagement by J with the alcohol programme (which Corrections never delivered) and did not consider his personal circumstances – HCJ admitted evidence of the failure by Corrections but not of the family circumstances of J –
J appealed to CA on basis: comments by HCJ on a “proactive” offender wrongly shifted statutory responsibility for delivering the sentence to the offender; the DCJ was inconsistent in calling the decision “finely balanced” and then a “clear case” and gave inadequate reasons; that evidence of his personal and family circumstances should have been admitted and that cumulatively a miscarriage of justice occurred – CA noted high threshold for a second appeal under s 253(3) Criminal Procedure Act 2011 and that sentencing matters rarely raise questions of public importance – CA held the DCJ and HCJ were referring to the whole community-based sentence rather than any one component – DCJ primarily focused on community detention rather than the intensive supervision component – “Proactive” remark was a parenthetical aside and did not create a “proactive offender standard” or amount to an error of law – Failure by Corrections, though regrettable, could not excuse a deliberate decision to drive at such a high level while subject to a zero alcohol licence – CA found no inconsistency in the comments by the DCJ which were made at the start and conclusion of his evaluation - Reasons for rejecting home detention were sufficient – HCJ “busy list” comment related to the alleged inconsistency rather than excusing a lack of reasons – CA found the absence of evidence of family circumstances did not indicate a miscarriage given the repeat offending – DCJ and HCJ already knew from the pre-sentence report that J was a husband and father of two - DCJ was entitled to treat denunciation and deterrence as the most important purposes – CA held the grounds became no stronger cumulatively - Nine months' imprisonment for a fifth drink driving offence at 2.5 times the limit while subject to a zero alcohol licence was orthodox, within range and far from manifestly excessive – Application for leave to bring a second appeal against sentence declined.
Cummins v Body Corporate 172108 [2026] NZCA 515 (27 October 2026)
Unsuccessful appeal by C, a self-represented appellant, against an order of AJ adjudicating him bankrupt under s 36 Insolvency Act 2006 – BC relied on costs orders totalling $167,552.41 (about $190,000 with interest) arising from a long-running dispute over the remedial scheme for the leaky Hobson Apartments in Auckland – C was sole director and shareholder of Manchester Securities Ltd (in liquidation) – Manchester owned the level 12 penthouse – C did not dispute the debt but argued he had genuinely triable cross-claims exceeding $2M – These were a $1,914,756.75 claim under cl 21.2 of the scheme for consultants costs and a $164,552.79 claim under cl 10.2 for a credit for common property repairs – C also argued that no “special circumstances” justified adjudication – AJ found C had not shown genuinely triable cross-claims – AJ identified issues of liability and quantum, a lack of supporting documentation and doubt that C genuinely proposed to pursue them – AJ found that even if the cross-claims were genuinely triable, special circumstances existed which made it inappropriate to refuse to adjudicate C bankrupt –
CA granted the application by C to adduce further evidence of three documents, including deeds relating to the Manchester Trust and an assignment of the claims – BC did not oppose although the evidence was not fresh – CA held a cross-claim must be genuinely triable as to both liability and quantum – It must be a claim of true substance which the debtor genuinely proposes to pursue – It must also be supported by clear and persuasive grounds with a real evidential basis – CA found it remained open in principle for C to pursue a cl 21.2 claim to the extent the consultants costs gave significant benefit to the other owners – However, C had not provided supporting documentation to justify the costs or show the benefit – Claims therefore remained mere assertions – Same applied to the cl 10.2 claim – CA also noted that the 2026 Variation Judgment of Powell J had varied the scheme – It barred Manchester, C and anyone claiming through them from bringing claims relating to level 12 remediation costs – Claims were therefore no longer available and could not be genuinely triable – CA rejected the suggestion that the AJ failed to decide the issue before him – Task did not require determining the merits of the cross-claims – Their validity was in principle a matter for the Official Assignee after adjudication – CA, for completeness, found no error in the conclusion of the AJ on special circumstances – This was consistent with the wider litigation context and the orders of Powell J – Indemnity costs were awarded to BC – CA relied on the further unmeritorious appeal and the wider litigation context which included 10 previous unsuccessful appeals, leave applications or other applications to the CA by C or his interests –
Application for leave to adduce further evidence granted – Appeal dismissed – Costs on an actual and reasonable basis with quantum to be fixed by the Registrar if not agreed.
Heinrich v Misiuk [2026] NZCA 504 (19 October 2026)
Appeal against HC decision declining habeas corpus application brought by self-represented H, in relation to his son - HC held that although there was precedent for parents to apply for habeas corpus on behalf of children, that could not apply here because H’s son was not a minor and was not in the custody of either parent and concluded the application had “no merit whatsoever” – Deputy Registrar accepted notice of appeal for filing but considered on the face of the documents that the proceeding appeared to be an abuse of process and referred it to Judge to determine whether it should be struck out under s 164B Senior Courts Act 2016 –
Noted s 164B allowed a strike-out without hearing from the filer, but held, applying Wolfe v Governor-General of New Zealand and Re Rafiq, that proceedings which were merely unmeritorious or legally untenable were not plainly abusive and so were not proper candidates for strike-out under s 164B –
CA considered the appeal unmeritorious and the HC’s reasons compelling and observed that legal advice would undoubtedly reveal better legal alternatives for H to pursue his objectives, but held lack of merit alone did not justify striking out without hearing from appellant – Held H should be substituted as the appellant for the purposes of the appeal – Strike-out declined.
R v Pongia [2026] NZHC 3363 (29 October 2026)
P, aged 19, pleaded guilty to murder and causing grievous bodily harm following a fight between two groups – P introduced the only weapon, a knife, stabbing TA in the back – TA died at the scene – After P stabbed F in the abdomen after F punched him – F was discharged from hospital several hours later – P had had no criminal record other than burglary related and knife possession offending the previous day –
Held that life imprisonment would be manifestly unjust under s 102(1) Sentencing Act 2002 – Although the case was on the cusp, the combined effect of P’s age, age-related impulsivity and prospects of rehabilitation justified a finite sentence (Crown did not oppose) – P introduced a knife, stabbed an unthreatening victim from behind, seriously wounded a second victim, and chose to enter a fight in which he had no need to participate – Starting point of 30 years' imprisonment consistent with comparable cases – Guilty plea discount of 15 per cent allowed, exceeding the ordinarily applicable 10 per cent maximum under ss 9H, 9J and 9K Sentencing Act as avoided a potentially lengthy and difficult trial and provided certainty for the victims – Further 25 per cent discount principally reflected rehabilitation prospects, rather than background, which had little or no demonstrated role in the offending – No separate remorse discount was warranted as remorse was not sufficiently tangible or exceptional and was reflected in the rehabilitation allowance – Resulting sentence was 18 years' imprisonment for murder with a 9 year MPI necessary for accountability, denunciation, deterrence and community protection – For wounding F, P received 5 years' imprisonment, to run concurrently – First-strike warning was given following the murder conviction.
Dog Lovers of Monte Cecilia Inc v Auckland Council [2026] NZHC 3302 (22 October 2026)
Unsuccessful judicial review application – Society challenged Puketāpapa Local Board’s decision to remove off-leash dog exercise area at Monte Cecilia Park, Auckland, making entire park on-leash – Decision made despite public consultation overwhelmingly opposing change and Council Regulatory Practice Team recommending improved signage and enforcement instead –
HC rejected claim Board acted beyond its powers under Dog Control Act 1996 – Complaints about uncontrolled dogs and public safety provided sufficient basis to reconsider existing rules – Board not required to follow staff recommendation –
HC also rejected claim Board failed to consider relevant matters – Evidence showed Board had considered practicable alternatives, availability of other off-leash areas and impact on displaced dog owners – Although Board Chair had expressed clear preference for change, this did not establish predetermination – Elected representatives entitled to hold preliminary views provided they remain open to persuasion –
HC held decision not unreasonable – Court would not substitute its view for that of elected local board on contentious policy issue where statutory requirements had been met – Application dismissed.
The Kingdom of Spain v The London Steam-Ship Owners’ Mutual Insurance Association Limited (No 2) [2026] UKSC 36, (28 October 2026)
Appeal on issue of how the principle that a third party cannot take the benefit of a contract without accepting its burden, “the conditional benefit principle”, applies to a contract containing an arbitration clause – Action originated with 2002 environmental disaster when tanker “Prestige” was damaged in a storm and sank off the Spanish coast – Its cargo escaped causing widespread pollution along the Spanish and French coastlines – Spain and France (“the States”) pursued direct claims against the vessel’s liability insurer, the Club – Insurance contract was governed by English law and contained London arbitration and “pay to be paid” clauses – Earlier arbitral awards and English decisions established that the States’ claims were contractual in substance and that, by asserting them, the States became bound to arbitrate – Nevertheless Spanish proceedings under the Spanish Penal Code obtained judgment against the Club – Further arbitrations awarded compensation for defence costs and conditional indemnities against losses arising from enforcement of that judgment, treating the obligation to arbitrate as equitable – CA set aside the monetary relief – The Club appealed –
Appeal allowed unanimously – A third party entitled to enforce a contractual right who chooses to assert it becomes bound by the arbitration clause governing that claim in the same way as an original contracting party – The burden retains its contractual character: breach attracts common law damages, not equitable compensation – Conditional benefit principle not confined to negative or declaratory relief – The bar on injunctions against the States, and damages in lieu, did not preclude common law damages – Unlike an injunction, a damages award has no immediate coercive effect; enforcement is a distinct matter –
An appeal under s 69 Arbitration Act 1996 must concern a permitted question of law arising from the award which the tribunal was asked to determine, and must proceed on the tribunal’s factual findings – CA exceeded those limits by relying on causation and international-comity grounds outside the appeals’ scope – Common law damages cannot address uncommitted breaches, but may be payable conditionally when future loss results from an accrued cause of action – The awards were sustainable on that basis – Earlier decisions had not determined the obligation’s character or monetary remedies – Misclassifying the claim as equitable did not defeat relief unaffected in substance – No remission required – Awards confirmed subject to variations clarifying the contractual basis of monetary relief and deleting “equitable” from relevant France declarations.
Patterson v R [2026] VSCA 253 (30 October 2026)
Unsuccessful appeal against conviction – Successful Crown appeal against sentence –
P hosted lunch for four relatives, serving beef Wellingtons containing death cap mushrooms – Three guests died and one survived – P maintained poisoning was accidental from mushrooms she had innocently foraged – Convicted of three counts of murder and one of attempted murder, and sentenced to life imprisonment with a non-parole period of 33 years –
Leave to appeal granted on two grounds – First ground concerned jury sequestration – Jury sequestered at same hotel as informant and two prosecution solicitors, though the jury was on a separate floor – Applicable test was whether a fair-minded and informed member of the public might reasonably apprehend the jury might not discharge its function according to law, and that this required a factual basis beyond conjecture, guesswork or surmise – Sworn jurykeeper’s assurance of no interaction, status of those involved as officers of the Court, and separate arrangements meant risk of improper communication did not found such an apprehension – Merely sighting an interested person was not a communication – Second ground of appeal concerned admissibility of cell tower evidence and internet posts of death cap mushroom sightings – Court found evidence was relevant and of probative value as part of a circumstantial case showing opportunity to source death cap mushrooms prior to poisoning – Limits clearly explained to jury, so probative value not outweighed by unfair prejudice –
On sentence, Court found 30 year minimum non-parole period for murder (Sentencing Act 1991 (Vic) s 11A(4)) was a floor, not a guidepost – A 33-year non-parole period was not reasonably open given premeditated, sustained and calculated criminality, enormous betrayal of trust and elaborate cover-up – Inappropriate to fix a non-parole period, despite P’s age and restrictive prison conditions –
Conviction appeal dismissed – Crown appeal allowed, non-parole period set aside and no non-parole period fixed.
R. v. Moshfeghi Zadeh 2026 SCC 35 (30 October 2026)
Z drove through a red light at a busy intersection without slowing or braking – Following a collision with a vehicle travelling on a green light, his SUV flipped onto the sidewalk where it struck a father carrying his 18 month old daughter – Father was seriously injured and child died – Z conceded the dangerous driving offences’ actus reus – Trial judge acquitted Z of dangerous driving causing death and bodily harm on basis that his three to five seconds lapse of attention did not establish mens rea, stating that a momentary lapse without more could not establish the offence –
CA majority upheld the acquittals – Crown appealed to SC on basis that trial judge’s legal error materially affected the acquittals –
Majority decision determined judgment should be set aside and a new trial ordered on grounds that the earlier trial judge had been wrong to ask whether the man’s driving involved something more than a momentary lapse of attention – Judge’s reasoning following that question had been that a momentary lapse of judgment without more cannot establish the mens rea for the offence of dangerous driving – Question instead should have been whether his driving fell significantly below what would be expected of a reasonable driver in the same circumstances – This included the nature of the vehicle, speed, and prevailing road conditions in addition to being alerted by a number of clues before the lapse, including several red lights and a pedestrian crossing – Majority confirmed that momentary lapses are not assessed differently to other dangerous conduct: they must still be assessed in totality against the reasonable person standard – Error was inseverable from the trial judge’s reasoning and materially affected the acquittals – New trial ordered.