New Zealand Law Society - Courts roundup 3 November - 9 November 2022

Courts roundup 3 November - 9 November 2022

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

Auckland High Court 2

New Zealand Supreme Court

Anti-Money Laundering and Countering Financing of Terrorism

Jiaxin Finance Ltd (In Liquidation) and ors v R [2022] NZSC 127 (4 November 2022)

Unsuccessful leave application – J and two individuals convicted in HC of offences under Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (Act) – CA dismissed appeal against conviction and application to adduce further evidence – Individuals sought leave to appeal to SC –

SC said proposed appeal would largely reprise issues raised in CA – No appearance of miscarriage of justice – Application dismissed.

Distributing objectionable publication, mosque attacker manifesto

George v R [2022] NZSC 128 (7 November 2022)

Unsuccessful leave application – G shared link with other people to T’s manifesto – T undertook terrorist attack on two Christchurch mosques on 15 March 2019 – When clicked on, link took recipients to full copy of manifesto – G charged with seven charges of distributing objectionable publication under Films, Videos, and Publications Classification Act 1993 (Classification Act) –

G sought to have objectionable publication charges dismissed under s 147 Criminal Procedure Act 2011 – DC dismissed s 147 application – Following sentence indication, G pleaded guilty to, relevantly, one representative charge of distributing objectionable publication – After sentencing, he unsuccessfully challenged conviction in CA – Applied for leave to appeal to SC –

SC said proposed appeal had insufficient prospects of success to justify leave grant – No appearance of miscarriage of justice – Application dismissed.

New Zealand Court of Appeal

Relationship property, extension of time to appeal

W v W [2022] NZCA 512

Ms W appealed against High Court decision refusing application for special leave granting extension of time to appeal Family Court (FC) decision – 2015 FC decision set aside relationship property agreements entered into in 2006 and 2011 – Ms W’s ultimate goal to impugn the FC decision in respect of both the substantive outcome, and also serious adverse credibility findings made against her – Ultimate question what the interests of justice required – Ms W’s perjury conviction set aside on appeal in 2020 – Procedure in Almond v Read (SC) – HELD: Judge erred in consideration of Ms W’s application – Delay was a moderate one, adequately explained by traumatic effect of substantive FC judgment on Ms W – Conduct of the parties was neutral – No discernible prejudice from delay – Resumption of litigation told against allowing appeal – Natural justice issues given strong adverse credibility findings – Appeal allowed and extension of time granted.

Employment Court, jurisdiction

Maheta v Skybus NZ Ltd (formerly Airbus Express Ltd) [2022] NZCA 516

Successful appeal from Employment Court (EC) determination that it had no jurisdiction to entertain M’s stay application where M had not challenged the Employment Relations Authority costs determination – Leave to appeal granted on questions of law as to jurisdiction, and awarding security of costs to respondent on basis M was not in receipt of legal aid – HELD: as with an appeal, a party challenging a substantive determination did not need to separately challenge an associated costs judgment if the only basis for the challenge was that the substantive determination which underpinned it was incorrect – Different position if a party wished to challenge the costs judgment on the basis it was incorrect irrespective of the correctness of the underlying substantive determination – M being in the process of engaging a replacement lawyer did not alter the fact he was in receipt of a grant of legal aid – Appeal allowed – EC had jurisdiction to order a stay and erred in awarding security for costs as M was in receipt of legal aid.

Construction contracts, civil procedure

SRG Global Remediation Services (NZ) Ltd v Body Corporate 197281 [2022] NZCA 518

Partially successful appeal from High Court decision entering summary judgment for SRG, but staying enforcement pending outcome of Body Corporate (BC) counterclaim, and declining to stay BC counterclaim proceedings and refer them to arbitration – SRG was contractor under construction contract, and BC was principal – 99-unit apartment complex suffered from water damage – SRG contracted to carry out the remediation work – BC justification for not paying amount claimed was that certain areas of the remediation work had not been completed, and some of the work that had been done was defective – Whether grounds of appeal made out – HELD: Judge did not err in entering summary judgment, but decision to grant a stay on the basis of the BC’s inability to pursue its counterclaim was arrived at as the result of a number of errors and was wrong – Per the contract, dispute resolution process ceased to be operational one month after issuance of final payment schedule – Outside time frame for arbitration – Appeal against stay decision succeeded – Appeal against decision declining stay of counterclaim dismissed.

Criminal procedure, expert evidence, evidence admissibility, cross-examination - Login Required

H (CA 354-2022) v R [2022] NZCA 515 

Partially successful appeal from decision declining application to rule Dr B’s report admissible at trial – Unsuccessful appeal from decision declining permission to ask questions of C – H faced retrial on two representative charges of sexual violation against his two stepdaughters (including C, aged between 4 and 6 years at the time) – Dr B had particular expertise in children’s memory development – Dr B engaged by defence to provide expert opinion relating to evidential interviews with C – HELD: Jury likely to be substantially helped by Dr B’s expert opinion on the interviewing techniques used in C’s interview, as described in sections 5 and 7 of her report, in evaluating C’s reliability and credibility – on a standalone basis remainder of report inadmissible, but would be for trial Judge whether was likely to be substantially helpful – Proposed questions for cross-examination fell short of the “substantially helpful” threshold in s37 Evidence Act 2006 - Sections 5 and 7 of Dr B’s report ruled admissible (appeal allowed in part)  – Appeal from decision declining permission to ask questions of C dismissed.

New Zealand High Court

Sentencing, vehicular manslaughter

R v Spier [2022] NZHC 2850 (2 November 2022) Gault J

Sentencing – Jury convicted S of vehicular manslaughter – Drove vehicle at speed into stationary line of vehicles at intersection, killing driver of front car –  Drove after knowingly consumed methamphetamine, amphetamine and cannabis – Barely slept night before – Sensed evil or malevolent energy – While driving, experienced psychotic methamphetamine-caused episode – Heard voices telling him if he killed himself everyone would be saved and he would be saviour –

Starting point 6 years' imprisonment – 5 per cent (approximately 3 ½ months) uplift for previous convictions – 2.5 per cent (approximately 2 months) for committing offence while subject to sentence of supervision – Reduction 20 per cent for personal mitigating factors (upbringing, addiction, mental health and rehabilitative prospects) – Sentence 5 years' 3 months' imprisonment – Further 9 month reduction for time spent on EM bail – End sentence 4 years 6 months' imprisonment – Disqualified from driving for two years following release from prison.

Supreme Court of Canada

Sex offenders’ register, constitutionality, Canadian Charter

R v Ndhlovu [2022] SCC 38 (28 October 2022)

Successful appeal from Alberta CA – Sex Offender Information Registration Act (SOIRA) came into force in 2004 – Created national sex offender registry – To place offender on registry, Crown prosecutor had to apply for “SOIRA order” – Judge would then decide to grant order or exclude offender from registry – Judges had discretion to determine if effect of order on offender’s privacy or liberty would exceed public interest in protecting society –

In 2011, Parliament changed law – Removed Crown and Judge discretion to exclude offender from registry – Section 490.012 Criminal Code required mandatory registration of anyone found guilty of sexual offence – Meant personal information of every sex offender had to be added to Canada’s national registry – Section 490.013(2.1) also imposed mandatory registration for life, for those who committed more than one such offence –

In 2015, N pleaded guilty to two counts of sexual assault against two people at party four years earlier when he was 19-years-old – Trial judge sentenced him to six months jail, followed by three years’ probation – After reviewing N’s history and evidence, judge said he was unlikely to re-offend –  However, due to legislative changes in 2011, N automatically subject to lifetime registration on national sex offender registry –

N challenged constitutionality of sections 490.012 and 490.013(2.1) – Judge said provisions violated section 7 Canadian Charter of Rights and Freedoms (Charter), which guaranteed everyone right to life, liberty and security of person –

Crown then asked court to decide if provisions acceptable under section 1 Charter – Section permitted courts to find otherwise unconstitutional laws justifiable in free and democratic society – Judge said section 1 could not save sections 490.012 and 490.013(2.1) – Declared provisions without force or effect and did not order N to register himself – Crown appealed to Alberta CA – CA said provisions constitutional – N appealed to SC –

SC majority allowed appeal – Said provisions violated section 7 Charter in way not justified in free and democratic society – Infringed on right to liberty protected under section 7 of Charter “because registration has a serious impact on the freedom of movement and of fundamental choices of people who are not at an increased risk of re‑offending” – Registering offenders not at risk of committing future sex offence disconnected from registration purpose, to capture information about offenders to help police prevent and investigate sex offences – N did not have to register – Appeal allowed.

Drug offences, first nation member report, sentence constitutionality, proportionality

R v Sharma [2022] SCC 39 (4 November 2022)

Successful appeal from Ontario CA – In 2015, S arrived in Toronto on international flight with almost two kilograms of cocaine in her suitcase – 20-year-old woman with no criminal record confessed to RCMP partner promised her $20,000 to bring suitcase to Canada – Pleaded guilty to importing cocaine. Since S of Ojibwa ancestry and member of Saugeen First Nation, court requested pre-sentencing report for Indigenous offenders – Report said S’s grandmother residential school survivor and mother had spent time in foster care – Also said S sexually assaulted and dropped out of school –

Conditional sentencing introduced in 1996 – Allowed offenders to serve sentences under strict surveillance in their communities, rather than in jail –

S sought conditional sentence – Not eligible because she pleaded guilty to offence under section 742.1(c) Criminal Code which carried maximum prison sentence of 14 years or life – S challenged section’s constitutionality, along with section 742.1(e)(ii), which said conditional sentences not available for any offence with maximum prison sentence of 10 years and involving drugs –

Sentencing confirmed S not eligible for conditional sentence – Also dismissed challenges under sections 7 and 15 of Canadian Charter of Rights and Freedoms – Section 7 guaranteed everyone right to life, liberty and security of person, while section 15 guaranteed everyone right to equal treatment before law – Imposed 18-month prison sentence –

S appealed sentence and Charter challenge dismissal to Ontario CA – CA allowed appeal – Ruled sections 742.1(c) and 742.1(e)(ii) violated section 7 being too broad, and violated section 15 because discriminated against Indigenous offenders like S – CA sentenced S to time already served in jail – Crown appealed to SC –

SC majority allowed appeal – Said although crisis of Indigenous incarceration undeniable, S did not demonstrate challenged provisions created or contributed to disproportionate impact on Indigenous offenders, compared to non‑Indigenous offenders – S required to show disproportionate effect as first step in section 15 analysis, which she did not – No section 7 Charter violation because provisions achieve their intended purpose, “to enhance consistency in the conditional sentencing regime by making imprisonment typical punishment for certain serious offences and categories of offences” – Appeal allowed.

United Kingdom Supreme Court

Choice of law rules, contribution

Soldiers, Sailors, Airmen and Families Association – Forces Help and anor v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29 (2 November 2022)

Successful appeal from CA – On 14 June 2000 claimant R born at hospital in Viersen, North-Rhine Westphalia, Germany, operated by AKV – R alleged that during birth suffered acute hypoxic brain injury from midwife negligence – SSAFA employed midwife – R said SSAFA and/or second defendant, Ministry of Defence (which agreed to indemnify SSAFA) liable for midwife acts or omissions – Defendants in turn brought claim for contribution against third party AKV because under Civil Liability (Contribution) Act 1978 (1978 Act), AKV liable in respect of same damage as them –

Parties agreed German law governed R’s claim against defendants – German law also governed third-party liability to R – Applying domestic choice of law rules, German law would apply to contribution claim unless 1978 Act had overriding effect – If German law governed contribution claim it was time barred – However, defendants said 1978 Act had overriding effect meaning England and Wales governed limitation and contribution claim not time barred –

At first instance, said 1978 Act had overriding effect and applied irrespective of domestic choice of law rules – CA agreed, dismissing AKV’s appeal – AKV appealed to SC –

SC unanimously allowed appeal – Said 1978 Act did not provide expressly that it had overriding effect – Did not provide that 1978 Act applied irrespective of foreign law otherwise applicable to contribution claim – Question whether intention implied from statute provisions –

Concluding 1978 Act not intended to have overriding effect, SC said two factors particularly influential –  First, many situations where law of England and Wales will govern contribution claim notwithstanding that foreign law governed underlying liabilities – Secondly, difficult to see why Parliament should have intended to confer statutory right of contribution whenever party from whom contribution is sought can be brought before court in this jurisdiction, regardless of law with which contribution claim has its closest connection – Foreign law failure to provide for contribution claims not defect requiring remedy by legislation in this jurisdiction – Moreover, it seemed contrary to principle for law of England and Wales to be applied if contribution claim most closely connected to foreign legal system – Appeal allowed.

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