New Zealand Law Society - Courts roundup 30 November - 6 December 2023

Courts roundup 30 November - 6 December 2023

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

High Court Judges Bench

New Zealand Supreme Court

Self-represented litigant, security for costs

Armitage v Stylo Medical Services Ltd [2023] NZSC 155 (30 November 2023)

Unsuccessful leave application – Self-represented A sought leave to appeal Associate Judge decision not to strike out or stay liquidation proceedings against H, which she controlled, to CA – Sought waiver of $7,060 security for costs – Deputy Registrar and Judge declined waiver application – A applied for leave to appeal to SC –

SC said proposed appeal on security issue entirely fact-based – No issue of general or public importance or matter of commercial significance – Protracted litigation history meant orthodox for respondent to have some protection through security – Application declined.

Jurisdiction, Judgment recall

Rae v Commissioner of Police [2023] NZSC 156 (30 November 2023)

Unsuccessful leave application – Judgment concerned how SC should deal with appeals arising from CA factual errors – Also addressed SC jurisdiction to hear appeals against CA decision declining to recall substantive judgment in civil proceeding –

R applied to SC for leave to appeal against CA decision declining to recall earlier substantive judgment where it dismissed R’s appeal against HC judgment –

SC had oral hearing to consider: (1) whether SC had jurisdiction to hear such appeal; (2) if it did not have jurisdiction, whether SC could treat R’s application as an application for leave to appeal (out of time) from CA substantive judgment; (3) if time extension granted, whether leave criteria met; and (4) if leave granted, whether appeal should be allowed –

SC unanimously dismissed application – On (1) said had jurisdiction – However, Senior Courts Act 2016 leave criteria meant unlikely Court would grant leave to appeal against CA judgment dealing with interlocutory civil proceeding recall application – Proper course for applicant to apply to SC for leave to appeal against substantive judgment – Regarding (2) Court treated R’s application as application for leave to appeal out of time against CA substantive judgment – (3) Material errors in CA judgment best dealt with substantively – In interests of justice to grant leave – (4) While factual errors in CA judgment material, outcome CA reached correct – Application declined.

New Zealand Court of Appeal

Murder, Gang violence, Manifestly inadequate sentence

R v Ormsby-Turner [2023] NZCA 601

Successful appeal against sentence to 12 months home detention – Respondent pleaded guilty to charge of wounding with intent to cause grievous bodily harm and charge of being an accessory after the fact to murder – Whether the starting point of 7 years 6 months imprisonment adequately reflects the seriousness of the offending and respondent’s culpability - Whether the discounts applied for guilty pleas, time spent on electronically monitored bail, youth, prospects of rehabilitation, remorse and cultural factors were excessive or wrong in principle - Whether the end sentence adequately reflects the seriousness of the offending – Appellant sought leave to adduce further evidence – Starting point should have been higher – Discount for personal mitigating factors should have been lower - HELD: Application for leave to adduce further evidence on appeal granted – Appeal allowed – Home detention sentence set aside – Sentence of 2 years 10 months imprisonment substituted – Respondent to surrender himself as directed.

Rape, Kidnapping, Evidence, Insufficient time to prepare

A (CA 421-2022) v R [2023] NZCA 602

Unsuccessful appeal against convictions for rape (x2) and kidnapping – At trial appellant pleaded guilty to a representative charge of sexual conduct with the complainant, and was acquitted of performing an indecent act (x3) and sexual violation by unlawful sexual connection (x2) – Sentenced to 7 years 6 months imprisonment in respect of the four charges for which he was convicted – Appeals conviction on grounds that propensity evidence was improperly admitted, Judge declined to give the jury a direction under s122 Evidence Act 2006, appellant had insufficient time to prepare for the trial, and no medical evidence was adduced which could have helped the appellant’s case – Propensity evidence properly admitted – Section 122 warning not mandatory and the way the Judge dealt with it caused no miscarriage of justice – No merit to claim of lack of preparation time – No indication of medical evidence that appeal claims could have been called - HELD: Application to adjourn the appeal declined - Appeal against conviction dismissed.

Sexual abuse, Physical abuse, Marriage

F (CA 539-2022) v R [2023] NZCA 604

Unsuccessful appeal against conviction on two charges out of 22 – Appellant sentenced to 16 years 5 months imprisonment on charges of sexual and physical abuse of his wife over their 14 year marriage – Appellant argues representative charges of non-consensual anal sex and rape should have been divided into separate charges reflecting the two different locations at which the complainant said the offending occurred – Appellant argues that because the representative charges were not divided into separate charges as they should have been, it was incumbent on the Judge to give a unanimity direction to the jury but he did not do so – HELD: whilst representative charges could have been divided into separate charges, court was not persuaded that they should have been – Appeal dismissed.

Recall of judgment, Failure to address aspect of appeal 

Banks v Farmer [2023] NZCA 607

Unsuccessful application for recall of judgment dismissing appeal – Appellant’s claims failed in the HC and on appeal in CA – Appellant contended that CA failed to address all 24 grounds of his appeal – Whether recall be granted - HELD: Not one of the rare cases where recall can be justified - Identified grounds of appeal were all dealt with - Any error in the judgment can only be corrected on appeal.  

Unpaid PAYE, Excessive sentence, Transparency, Good faith

Gower v R [2023] NZCA 609

Successful appeal against sentence – Appellant was convicted and sentenced to 2 years 3 months imprisonment on one representative charge of aiding and abetting offending under s143A(1)(d) Tax Administration Act 1994 – Company in financial difficulties – Unpaid PAYE – Starting point excessive – Absence of any attempts at subterfuge or deception – HELD: Appeal allowed - Sentence of 2 years 3 months imprisonment set aside - Sentence of 4 months community detention substituted.

Forfeiture, Methamphetamine

Slessor v Commissioner of Police [2023] NZCA 612

Unsuccessful appeal and application to adduce further evidence – HC made a $84,000 profit forfeiture order against appellant for unlawful benefits from the manufacture and supply of methamphetamine - $28,778 seized in 2007 could be used to partially satisfy order – Appellant appeals forfeiture – Appellant argues that police unlawfully retained the cash, and the illegality principle was engaged - Whether the High Court was correct to order forfeiture of the cash - HELD: Forfeiture not contrary to the public interest - No bad faith on the part of police - Cash unquestionably derived from or in connection with drug dealing - Commissioner’s claim to forfeiture of the cash not reliant on the impropriety - No material linkage between the impropriety and forfeiture - Illegality principle is not engaged – Appeal dismissed.

Murder, Miscarriage of justice

Gibson-Park v R [2023] NZCA 615

Unsuccessful appeal against conviction for murder and arson – Appellant sentenced to life imprisonment with a minimum non-parole period of 17 years – Appellant alleged errors by counsel; undue prejudice being caused by witness’s statements to police that illegitimately inculpated the appellant and could not be cured by judicial direction; trial judge errors; and trial counsel error with regard to the evidence charge – HELD: No risk of miscarriage of justice – Appeal dismissed.

New Zealand High Court

Sentencing, manslaughter, reckless driving

R v Te Pou [2023] NZHC 3483 (1 December 2023) Palmer J

Sentencing – TP pleaded guilty to manslaughter, seven charges of reckless driving causing injury and failing to stop for flashing red and blue lights – Offences punishable by up to life imprisonment, up to 5 years imprisonment and fine of up to $10,000, respectively – Sentenced to 5 years and 8 months imprisonment for manslaughter and reckless driving that resulted in one death and injuries to seven others in central Napier in October 2022.

High Court of Australia

Migration detention, constitutional law

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (28 November 2023)

Partly successful special case regarding whether ss 189(1) and 196(1) Migration Act 1958 (Cth) (Act) proper construction authorised YQ’s detention as of 30 May 2023 and 8 November 2023, but whether sections beyond Commonwealth legislative power as they applied to YQ at those dates –

Section 189(1) imposed duty on "officer" (as Act defined) to detain person who officer "knows or reasonably suspects ... is an unlawful non-citizen" – Detention duration under s 189(1) is governed by s 196(1), which said the unlawful non-citizen "must be kept in immigration detention until" occurrence of one of several specified events, grant of visa or removal from Australia under s 198 –

YQ Rohingya Muslim born in Myanmar – In 2012, arrived in Australia by boat and taken into immigration detention under s 189 – In 2014, granted bridging visa and released from immigration detention – In 2016, pleaded guilty to sexual offence against child and sentenced to 5 years imprisonment with non-parole period 3 years and 4 months – On release from criminal custody on parole in 2018, taken again into immigration detention under s 189(1) – In 2020, Minister’s delegate said YQ refugee in respect of whom Australia had protection obligations, but refused application for protection visa – Officers then obliged under s 198 to remove YQ from Australia as soon as reasonably practicable – YQ also requested to be removed to another country – At 30 May 2023, no real prospect of his removal from Australia in reasonably foreseeable future –

YQ commenced proceedings in HC original jurisdiction claiming continuing detention not authorised by ss 189(1) and 196(1) – Said this resulted from their proper construction (statutory construction issue) – Alternatively said provisions contravened Ch III Constitution, which vested courts with exclusively judicial function of adjudging and punishing criminal guilt (constitutional issue) – Sought leave to reopen previous HC decision –

HC unanimously said YQ failed on statutory construction issue but succeeded on constitutional issue – Court declined to reopen statutory construction holding in previous case – Reopened and overruled constitutional holding – Said ss 189(1) and 196(1), as applied to YQ contravened Ch III Constitution because detention not reasonably capable of being seen as necessary for legitimate and non-punitive purpose in circumstances where there was no real prospect of his removal from Australia becoming practicable in reasonably foreseeable future – Application partly allowed.

Supreme Court of Canada

Evidence, search and seizure, police conduct, Canadian Charter

R v Zacharias [2023] SCC 30 (1 December 2023)

Unsuccessful appeal from Alberta CA – Concerned whether police conduct after initial traffic stop breached accused’s rights under Canadian Charter of Rights and Freedoms (Charter) and if so, whether evidence collected resulting from police conduct should be excluded from trial –

In 2017, Z pulled over for traffic stop on highway near Banff – Driving truck with burnt-out light and illegally tinted windows – Police officer became suspicious Z transporting drugs – Officer detained Z to ask more questions – Known as “investigative detention” – Officer also called for sniffer dog and placed Z in police car until dog arrived – Dog signalled drugs present – Officer concluded had reasonable and probable grounds to arrest Z for possession of controlled substance – First of three arrests –

Police then searched Z’s truck and discovered large quantity of cannabis and cash – Z re-arrested for possession for purpose of trafficking, handcuffed and driven to police station – Searched and arrested third time for possession of proceeds of crime over $5,000 –

At trial, Z alleged police had breached his Charter rights during investigation, namely right under s 8 to not be subjected to unreasonable search or seizure and right under s 9 to not be arbitrarily detained – Said drug evidence police seized should be excluded from trial under s 24(2) Charter – Section said evidence obtained in way that breached accused’s rights may be excluded from trial if admitting it would bring administration of justice into disrepute – To determine whether evidence should be excluded, court to look at three indicators: (1) seriousness of state conduct breaching Charter; (2) impact of breach on accused; and (3) society’s interest in adjudicating matter on merits –

Trial Judge said police breached Z’s rights under ss 8 and 9, but evidence should not be excluded under s 24(2) – Ultimately convicted of possession of 101.5 pounds of marijuana for purpose of trafficking – On appeal  Alberta CA  said trial judge failed to consider whether police’s conduct after initial violations also breached Charter – Majority dismissed appeal – One judge disagreed and would have excluded evidence –

SC majority dismissed appeal – Said additional consequential breaches did not raise seriousness of state conduct at issue (first indicator of s 24(2) analysis) – On balance, evidence should not be excluded from trial under s 24(2) – Conviction upheld – Appeal dismissed. 

United Kingdom Supreme Court

“Newcomer” injunctions, court jurisdiction, broader equitable jurisdiction

Wolverhampton City Council and ors v London Gypsies and Travellers and ors [2023] UKSC 47 (29 November 2023)

Unsuccessful appeal from CA – Appeal concerned injunctions local authorities obtained to prevent unauthorised Gypsy and Traveller encampments – SC asked to decide whether court has power to grant injunctions against persons who are unknown and unidentified at date injunction granted and who have not yet performed, or even threatened to perform, acts injunction prohibited – People known as “newcomers” and injunctions made against them as “newcomer injunctions” –

Between 2015 and 2020, 38 different local authorities, or groups of local authorities, obtained injunctions designed to prevent Gypsies and Travellers from camping on local authority land without permission – Local authorities relied on range of statutory provisions, including s 187B Town and Country Planning Act 1990 which enabled court to grant injunction to restrain actual or anticipated breach of planning control – Some local authorities also relied on common law causes of action, such as trespass –

Injunctions addressed to “persons unknown” because Gypsies and Travellers who might wish to camp on particular site could not generally be identified in advance – At time injunctions granted, unknown persons, or newcomers, had not yet committed or threatened to commit any breach of planning control, trespass or other relevant unlawful activity – Local authorities obtained injunctions without notifying any other party, at hearings where Gypsies and Travellers interests not represented – Once obtained, copies of injunctions displayed in prominent locations at relevant sites –

From around mid-2020, local authorities applied to extend or vary injunctions which were coming to end – After hearing in one of these cases, HC judge decided there was need to review all newcomer injunctions affecting Gypsies and Travellers – Gave (i) London Gypsies and Travellers, (ii) Friends, Families and Travellers and (iii) Derbyshire Gypsy Liaison Group permission to intervene so their interests could be represented – Following review hearing, judge concluded court did not have power to grant newcomer injunctions, except on short-term, interim basis – Made series of orders discharging newcomer injunctions – CA said court had power to grant newcomer injunctions and allowed local authorities’ appeal – Gypsies and Travellers appealed to SC –

SC unanimously dismissed appeal – Said court had power to grant newcomer injunctions – However, should only exercise power where compelling need to protect civil rights or to enforce public law not adequately met by any other available remedies – Also, newcomer injunctions should only be made subject to procedural safeguards designed to protect newcomers’ rights –

Among other things, SC said court had jurisdiction or power to grant newcomer injunctions because power to grant injunctions unlimited, subject to any relevant statutory restrictions – Power equitable in origin, confirmed and restated by Parliament in s 37(1) Senior Courts Act 1981 – Power not limited to pre-existing, established categories – Injunctions could be granted in new circumstances and when required by principles of justice and equity which underpinned them – Demonstrated by courts’ development of several new kinds of injunction over last 50 years, including freezing injunctions, search orders, third party disclosure orders, internet blocking orders and anti-suit injunctions –

SC said question was whether court should, as matter of principle and practice, grant newcomer injunctions and, if so, on what basis and subject to what safeguards – SC answered question by reference to equitable principles, which derived from important role of equity in putting right defects or inadequacies in common law – First, where there was right, should be remedy to fit that right – Secondly, equity looked to substance rather than form – Thirdly, equity operated flexibly and responded to changes in circumstances over time – Fourthly, subject to requirements of justice and convenience, equity not constrained by any limiting rule in fashioning remedy to suit new circumstances – Appeal dismissed.

Evidence, expert testimony

TUI UK Ltd v Griffiths [2023] UKSC 48 (29 November 2023)

Successful appeal from CA – Concerned question of when trial judge entitled to decide claimant had not proved case where claimant’s expert witness’s evidence on central issue not challenged by defendant on cross-examination –

Mr and Mrs G and their youngest son went on all-inclusive package holiday to hotel resort in Turkey – While staying at hotel, Mr G suffered serious stomach upset which left him with long term problems –

G sued travel company, TUI Ltd, from whom had purchased holiday – At trial, Mr and Mrs G gave uncontested evidence regarding underlying facts – G also presented evidence from expert witness who concluded that likely cause of G’s stomach upset food and drink served at hotel –

TUI did not cross-examine expert, nor did it present any expert witness evidence on central question of causation – Instead, in closing submissions said deficiencies in expert’s report, such as incomplete explanations and failure expressly to discount other possible causes, meant G failed to prove case –

Trial judge agreed with TUI – Criticised expert’s report, saying did not likely show hotel food and drink caused G’ stomach upset – Concluded G had not proved his case and dismissed claim –

G appealed to HC which decided for him – TUI appealed to CA which decided for it – G appealed to SC –

SC unanimously allowed G’s appeal – Said trial judge wrong to allow TUI to make detailed criticisms of Professor Pennington’s report and to accept those submissions – In doing so, denied G fair trial – Said, looking at evidence G presented at trial, including expert’s evidence, showed more likely than not that hotel food and drink caused stomach upset –

Said general rule in civil cases that party challenged by cross-examination evidence of opposing party’s witness on material point which he or she claimed trial judge should not accept – Included both witnesses of fact and expert witnesses – Appeal allowed.