New Zealand Law Society - Courts roundup 3 April - 9 April 2025
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Tsao v Chen [2025] NZSC 20 (27 Match 2025)
Unsuccessful leave application – Self-represented T applied for leave to appeal to SC from CA declining time extension to appeal against HC decision – HC struck out proceeding, disclosed no reasonably arguable cause of action –
SC said no challenge to principles CA applied – No questions of general or public importance or general commercial significance arose – Rather, proposed appeal would turn on application of settled principles to facts – No appearance of miscarriage of justice in CA assessment – Application dismissed.
Erwood v Minchin [2025] NZSC 21 (27 March 2025)
Unsuccessful application to appoint amicus curiae – Self-represented E applied for leave to appeal CA decision – Applied to appoint L as amicus curiae – SC understood M counsel assisting CA and available for SC –
SC said not necessary to appoint amicus curiae or counsel to assist – Application dismissed.
Re Dunstan [2025] NZSC 22 (27 March 2025)
Unsuccessful application for orders, successful intervention application – Self-represented D applied for various orders and for certain judges to recuse themselves – Attorney-General applied to intervene –
SC said appropriate that Attorney-General intervene – Applications dismissed.
Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals [2025] NZSC 23 (28 March 2025)
Unsuccessful leave application – Self-represented D sought leave to appeal CA declining application for review of Deputy Registrar’s decision declining D’s application for fee waiver in CA appeal –
SC said scope of Registrar’s power to decline where satisfied party is unable to pay fee might raise question of general or public importance – However, leave criteria not met – Recall appeal abandoned 4 February 2025 – Sealed notice of result issued under r 26B Court of Appeal (Civil) Rules 2003 – Appeal accordingly moot –
In circumstances, not necessary in interests of justice for SC to hear appeal on approach to fee waiver – Application dismissed.
Watson v R [2025] NZSC 24 (28 March 2025)
Unsuccessful leave application – W convicted of ten historic sexual offences, found not guilty on five other charges – Sentenced to eight years six months’ imprisonment – CA dismissed appeals against conviction and sentence – Sought leave to appeal to SC –
SC said regarding conviction appeal leave criteria not met – Issue confined to facts – No issue of general or public importance, no risk of miscarriage of justice – Regarding sentence, nothing W raised suggested any error of principle – Applications dismissed.
Davis v Robinson [2025] NZSC 25 (1 April 2025)
Unsuccessful leave application – Self-represented D sought leave to appeal CA upholding HC strike-out decision – DC judge in separate proceedings declined D’s applications for interim injunction and suppression orders pending determination of substantive application for takedown and other orders under s 19 of Harmful Digital Communications Act 2015 (in respect of certain media articles about D) – D began proceedings against DC Judge in HC, alleging defamation, malicious falsehood and misfeasance in public office – Proceedings struck out – CA upheld strikeout –
SC said no appearance of error in CA approach – Not necessary in interests of justice for SC to hear and determine proposed appeal – No risk of miscarriage of justice nor did proposed appeal involve matter of general or public importance or general commercial significance – Application dismissed.
Cheng v R [2025] NZSC 26 (3 Aril 2025)
Unsuccessful leave application – C pleaded guilty to 18 charges of drug offending – Sentenced to nine years six months’ imprisonment – Unsuccessfully appealed sentence to CA – Sought leave to appeal to SC –
SC said matters C wished to raise essentially challenge factual assessments made in Courts below determining appropriate sentence – Nothing of general or public importance – No appearance of miscarriage of justice – Leave criteria not met – Application dismissed.
Winston v Health New Zealand | Te Whatu Ora, Te Toka Tumai Auckland [2025] NZSC 27 (3 April 2025)
Unsuccessful leave application – Self-represented W sought leave to appeal directly to SC from HC decision – HC made various orders relating to guardianship of W’s young child, F, to enable her ongoing medical treatment for cancer –
Before granting leave for direct appeal from HC, SC had to be satisfied in interests of justice for Court to hear and determine appeal and that there were exceptional circumstances justifying direct appeal to SC – Test not met here – Application dismissed.
Lawyers for Climate Change Action NZ Inc v Minister of Climate Change [2025] NZCA 80
Unsuccessful appeal against refusal to judicially review climate change advice - Commission provided advice for purpose of setting first three emissions budgets under the Climate Change Response Act 2002 whether NZ’s nationally determined contribution was compatible with contributing to the global effort under the Paris Agreement to limit global average temperature increase to 1.5ºC above pre-industrial levels -
Commission had not failed to comply with statutory requirement to meaningfully consider what’s required to meet goal and recommend budgets consistent with it - Emissions budgets intended to serve the dual purpose of Act — 2050 target and contributing to the 1.5ºC goal - Commission had not made an error of law in using modified activity-based accounting methodology – NZ had never set its targets or measured progress towards them on the basis of land-based accounting - Activity-based accounting used under Kyoto Protocol and Paris Agreement - Data relating to accounting under those international agreements included NZ’s Greenhouse Gas Inventory - Definition of “net accounting emissions” wide enough to capture emissions and removals accounted for under MAB accounting - Commission’s advice not unreasonable - Court not attracted by idea of variable standard of review – Appeal dismissed.
[S] v [S] [2025] NZCA 82
K (CA507/2024) v R [2025] NZCA 84
R v [W] [2025] NZCA 87
[B] v R [2025] NZCA 88
[D] v R [2025] NZCA 89
R v Wharekura [2025] NZHC 751 (1 April 2025) Radich J
Sentencing – Jury found W guilty of P’s murder and McG’s attempted murder under ss 172 and 173 Crimes Act 1961 – On murder charge, Court sentenced W to life imprisonment with MPI 13 years three months’ – On attempted murder, W sentenced to concurrent sentence five years ten months' imprisonment.
Waru v Police [2025] NZHC 732 (1 April 2025) Becroft J
Unsuccessful appeal against DC refusing to award costs against prosecution under s 364 Criminal Procedure Act 2011 – Application concerning two procedural errors police prosecutors made during prosecution – Errors were failing to disclose relevant video to defence, and failing to engage in case management discussions and complete case management memoranda – DC correct, procedural errors were "significant" to attract costs award under s 364 –
Judge addressed wider issues emerging from appeal, operation and effectiveness of case management procedures introduced in 2011 – Seemed, from information here, procedures sometimes not engaged resulting in longer rather than shorter periods to resolve criminal cases – Appeal dismissed.
Brown v Police [2025] NZHC 708 (31 March 2025) Grice J
Unsuccessful appeal against conviction – B convicted in DC of wearing prohibited gang insignia in public place under s 7 Gangs Act 2024 – Captured on Council CCTV cameras wearing cap displaying gang wording in gang colours – Appeal against refusal to grant discharge without conviction dismissed – HC said particular offending classified at lowest level, no intimidatory behaviour or other aggravating factors, nor any complaint from members of public – Nevertheless, culpability not “zero” B pleaded guilty to relevant charge – DC correct, consequences for B of conviction not out of all proportion to offending, according to discharge without conviction test – Test application not affected by issue of whether offence provision consistent with right to freedom of expression under New Zealand Bill of Rights Act 1990 – Appeal dismissed.
CZA19 v Commonwealth of Australia [2025] HCA 8 (2 April 2025)
Answer to preliminary question – HC unanimously ruled in two proceedings detention of alien as unlawful non-citizen under ss 189(1) and 196(1) Migration Act 1958 (Cth) (Act) did not become constitutionally invalid because alien had pending application for protection visa and no real prospect of removal becoming practicable in reasonably foreseeable future –
CZA19 arrived in Australia in 2009, was arrested and charged with offence on arrival, and issued criminal justice stay visa – On release on parole in 2018, CZA19's visa ceased – CZA19 detained under s 189(1) Act as unlawful non-citizen – CZA19 applied for protection visa – On 10 November 2022, Administrative Appeals Tribunal (AAT) said CZA19 satisfied criterion for protection visa in s 36(2)(aa) Act as real risk if removed from Australia to country of citizenship CZA19 would suffer significant harm – CZA19 remained in detention until 13 May 2024 –
DBD24 entered Australia in April 2013, was detained under s 189(1) Act and released into community detention – DBD24 arrested in 2021 charged with drug offences, convicted, and imprisoned – DBD24 released in June 2023 and detained under s 189(1) Act – In November 2021, DBD24 applied for protection visa – On 18 December 2023, AAT said DBD24 satisfied s 36(2)(aa) Act – DBD24 remained in detention until 1 October 2024 –
In May 2024, CZA19 sought declaration detention from 10 November 2022 unlawful, because from that time no real prospect of removal becoming practicable in reasonably foreseeable future in light of AAT's decision – In July 2024, Federal Court ordered CZA19's entitlement to relief be heard as separate question – Question removed into HC – November 2024, special case filed stating for HC question whether, in purported application to DBD24 between 18 December 2022 and 1 October 2024 (or part thereof), ss 189(1) and 196(1) Act invalid on ground following AAT's decision no real prospect of removal becoming practicable in reasonably foreseeable future –
HC said CZA19's and DBD24's claims inconsistent with Act constitutional principle Provisions – Alien’s detention valid if detention which provisions required and authorised limited to what is reasonably capable of being seen as necessary for purposes of deportation or to enable application for entry permit to be made and considered.
Australian Competition and Consumer Commission v J Hutchinson Pty Ltd [2025] HCA 10 (2 April 2025)
Unsuccessful appeals from Full Court FCA – Appeals regarding nature of "understanding" as term used in Pt IV of Competition and Consumer Act 2010 (Cth) (Act), including in ss 45E(3) and 45EA – Section 45E(3) prohibited person from arriving at understanding with organisation of employees that contained provision included for purpose of preventing or hindering person from acquiring or continuing to acquire goods or services from another person from whom person has been accustomed, or is under obligation, to acquire those goods or services – Section 45EA prohibited person from giving effect to provision of understanding if, because of provision, arriving at understanding by person contravened s 45E(3) –
In March 2016, H Pty Ltd (H) entered subcontract to perform waterproofing works at project site – Subcontractor did not have enterprise agreement with Construction, Forestry and Maritime Employees Union (CFMEU) – On 11 June 2016, CFMEU threatened H with industrial action at project site if subcontractor was allowed to come back onto site – H reacted by excluding subcontractor from site and terminating subcontract – At no point did H give CFMEU verbal or written assent would terminate subcontract or cease to acquire services from subcontractor –
Australian Competition and Consumer Commission (ACCC) alleged, and FC ruled H contravened ss 45E(3) and 45EA Act by making, and giving effect to, arrangement or arriving at understanding with CFMEU containing provision to effect H would terminate subcontract with, or otherwise cease to acquire services from, subcontractor; and CFMEU knowingly concerned in, or party to, and induced H's contraventions of ss 45E(3) and 45EA –
Full Court allowed H and CFMEU appeals, saying no relevant arrangement or understanding between H and CFMEU – ACCC appealed to HC, saying "understanding" for Act purposes if one person makes threat and demand to second person, and second person capitulated to threat and acted as demanded –
HC rejected ACCC's contention, saying arrival at "understanding" for s 45E(3) purposes required proof of express or tacit communication between parties of commitment on part of one party to do that which other party has demanded of it – Appeal dismissed.
R v Churchill (Pseudonym) [2025] HCA 11 (2 April 2025)
Successful appeal from Victoria CA – Concerned whether, in sexual offence trial under Evidence Act 2008 (Vic) and Jury Directions Act 2015 (Vic), where prosecution relied on evidence complainant distressed when making pre-trial complaint to support complainant's version of events, there were "substantial and compelling reasons" for trial judge to warn jury: (1) before distress evidence could be used jury had to be satisfied there was causal link between distress and alleged offending; and (2) such evidence generally carried little weight –
Following trial in Victoria County Court in September 2022, C found guilty of two offences of incest contrary to s 44(2) Crimes Act 1958 (Vic) relating to single complainant – Evidence at trial of distress on complainant’s part when she first complained about offences to her mother – Trial judge gave circumstantial evidence direction regarding complainant's distress evidence –
CA allowed C’s appeal, saying trial judge's directions on use jury could make of distress evidence gave rise to substantial miscarriage of justice – CA said if distress direction given, required trial judge to direct jury specifically about need for jury to be satisfied rational causal link between distress and alleged offending; and warn jury distress evidence generally carried little weight – CA quashed C's convictions and ordered retrial –
HC unanimously said CA wrong to hold such directions required – Said where evidence of distress accompanying pre-trial complaint admitted as indirect or circumstantial evidence of offending conduct, for jury to determine whether to accept evidence and weight to be given to evidence – Use of evidence as indirect or circumstantial evidence could be addressed through appropriate general directions regarding drawing conclusions and distinction between direct and circumstantial evidence – CA orders set aside and in place of those orders, C’s appeal to CA dismissed.
R v Chizanga [2025] SCC 9 (24 March 2025)
Unsuccessful appeals from Ontario CA – Person shot multiple times in restaurant washroom area, M and C charged with first degree murder –
Before trial, Crown moved to have video admitted as prior discreditable conduct evidence – Video footage appears to show M, C and another person at motel evening before shooting – Showed C knocking on motel room door while M holding assault-style firearm –
Trial judge ruled video admissible – After written ruling released before video was played for jury, M and C moved to have trial judge reconsider decision on prior discreditable conduct motion, which was dismissed – Jury eventually found both men guilty of second degree murder – M sentenced to imprisonment for life and 16 years without eligibility for parole – C sentenced to imprisonment for life and 12 years without eligibility for parole –
M and C appealed convictions raising, among grounds, trial judge erred in admitting video as evidence of prior discreditable conduct – Also said trial judge failed to properly instruct jury on permissible use of such evidence –
CA majority dismissed appeals – Said trial judge applied correct legal test when deciding to admit video, and assessment of probative value and prejudicial effect of video reasonable – Further, said trial judge correctly instructed jury on permitted and prohibited uses of video –
SC majority dismissed appeals and affirmed second-degree murder convictions – Appeals dismissed.
R v Donowa [2025] SCC 10 (26 March 2025)
Unsuccessful appeal from Ontario CA – Appeal about what counted as “firearm” for purposes of various firearm offences in Criminal Code – Term defined in s 2 Code to mean barrelled weapon from which any projectile can be discharged and capable of causing serious bodily injury or death, including frame or receiver of weapon or anything that can be adapted for use as firearm –
During roadside stop, police found handgun fanny pack belonging to D – Handgun sent to Centre of Forensic Sciences, but for reasons not explained, police did not send magazine or ammunition – D charged with various firearm offences –
At trial, expert said handgun could not be fired easily without magazine – Trial judge ruled handgun not firearm because making useable, according to expert, required special expertise, considerable time, and parts not readily available to D – Consequently, trial judge acquitted D of firearm offences –
Crown appealed acquittals to Ontario CA – Central issue whether trial judge correct to conclude handgun not firearm as defined in s 2 Code –
CA unanimously allowed appeal and set aside acquittals – Trial judge made several errors in deciding Crown failed to prove handgun was firearm – Trial judge did not consider magazine in handgun when police found it, expert said handgun could be used if magazine inserted – Trial judge also failed to consider D’s statement to police had fired handgun at gun range – Failure to consider all evidence relating to ultimate issue of guilt or innocence error of law justifying setting aside acquittals on firearm offences – CA entered convictions on two counts (careless storage of firearm and possession of firearm with altered serial number) and ordered new trial on other counts –
D appealed to SC – SC dismissed appeal – CA order convicting D on some counts and ordering new trial on others confirmed – Appeal dismissed.
R v Kwon [2025] SCC 11 (27 March 2025)
Successful appeal from Saskatchewan CA – Bar owner K drove one of his clients, complainant, home after bar closed – Complainant consumed alcohol during evening – On way home K and complainant had unprotected sexual intercourse – At trial, K said believed complainant consented – Complainant said had minimal recollection of drive – Trial judge inferred from evidence complainant lacked capacity to consent to sexual activity because incapacitated by alcohol – Did not find K to be credible witness – K convicted of sexual assault – K appealed conviction to CA –
CA unanimously agreed trial judge erred in assessing K’s evidence and erred in relying on myths and stereotypes about human behaviour in sexual encounters in her reasons – However, CA divided on issue of remedy – Evidence of complainant’s capacity to consent circumstantial – Test was, citing previous SC case: “where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence” –
Majority concluded trial judge did not apply relevant principles here – Circumstantial evidence permitted at least one other reasonable possibility inconsistent with guilt – Therefore, no legally admissible evidence at trial that would permit properly instructed trier of fact to convict K – CA allowed appeal and entered acquittal –
Dissenting judge concluded reasonably instructed trier of fact could have found K guilty based on same evidence – Would have set conviction aside and ordered new trial –
SC majority allowed appeal – Set aside conviction and ordered new trial – Appeal allowed.
R v Layden [2025] UKSC 12 (2 April 2025)
Successful appeal from CA – Under s 7(1) Criminal Appeal Act 1968 (1968 Act), where CA allowed appeal against conviction, CA may order defendant be retried if appears to Court “that the interests of justice so require” – Section 8 1968 Act set out supplementary provisions for retrials including that defendant be tried on fresh indictment and arraignment not take place after end of two months from date of order for retrial without CA’s leave –
In this case, retrial took place without L being arraigned within two months of order for retrial or at all – No application to CA under s 8 by either prosecution or defence – L successfully appealed against conviction on grounds that Crown Court had no jurisdiction to try him –
Issue on prosecution appeal to SC whether failing to comply with procedural requirements in section 8(1) 1968 Act deprived Crown Court of jurisdiction to re-try defendant notwithstanding CA order under section 7(1) –
SC unanimously allowed prosecution appeal and overruled CA decision in another case – Said legislative history showed general power to order retrial born out of concern that otherwise “the process of the criminal law itself is brought into disrepute when an apparently guilty man has to be freed on a technicality” – This was mischief addressed by extending court’s power in s 7 1968 Act – Appeal allowed.
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