New Zealand Law Society - Courts roundup 31 August - 6 September 2023

Courts roundup 31 August - 6 September 2023

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

court of appeal

New Zealand Supreme Court

Murder, life imprisonment presumption, majority decision

Van Hemert v R [2023] NZSC 116

H pleaded guilty to the murder of T – At issue was whether H’s psychotic state at the time of killing T meant sentence of life imprisonment would be manifestly unjust – HC initially held it would be manifestly unjust to impose a life sentence – CA set that conclusion aside, and H was re-sentenced in to life imprisonment – Correct application of s102 Sentencing Act 2002 – HELD: (Majority, Williams J dissenting) manifest injustice for s102 was to be found from an overall weighting of offending and offender circumstances, rather than investing either element with the power to veto the other – Possible one element might dominate the analysis in favour of dispensation under s102 – Misconstruction of s102 led the CA into error in treating the circumstances of the offence as determinative – H was mentally ill when he murdered T, was prone to relapse, remained unremorseful, lacked social support and self-insight – In these circumstances imposition of life imprisonment not manifestly unjust and CA did not misapply s102 – Appeal against sentence allowed – MPI of 11.5 years imprisonment quashed and MPI of 10 years substituted.

Hearsay evidence, pre-trial ruling - Login Required

[K] v R [2023] NZSC 118

New Zealand Court of Appeal

Civil procedure, appeals

Hoeberechts v Commissioner of Inland Revenue (CIR) [2023] NZCA 403

Unsuccessful application for leave to appeal – 2017, ACC made a lump sum payment to H pursuant to an order of the DC – CIR treated the payment as having been received entirely in the tax year ending 31 Mar 2018 and liable to be taxed accordingly – Taxation Review Authority dismissed H’s challenge that the payment related to a 3 year period so should be treated as accruing over that period – HC declined application for special leave to appeal on the ground the proposed appeal was clearly hopeless (the extension decision) and application for leave to appeal extension unsuccessful (the leave decision) – Correct jurisdictional pathway – s56 Senior Courts Act 2016 considered – Simes v Tennant relevant – HELD: H had a right of appeal against the extension decision and did not need to seek leave from the CA to bring her appeal – H would need to file an interlocutory application for an extension of time under R29A Court of Appeal (Civil) Rules 2005 – Ultimate question would be what the interests of justice required in the particular circumstances – Application for leave to appeal leave decision misconceived and declined.

Public protection order process

Pori v Chief Executive of the Department of Corrections [2023] NZCA 407

Unsuccessful appeal from a public protection order (PPO) – P (aged in his early 60s) was convicted of a number of criminal offences in the Cook Islands (including rape, and assault on a child during a sexually motivated break-in) – Following sexual offending in NZ, successive extended supervision orders (ESOs) imposed on P’s completion of 5 years imprisonment – Interim detention order (IDO) imposed – Concerns raised about P’s mental health and intellectual ability – Judge concluded there was no obvious benefit to P being considered for an order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 – HELD: Process followed in this case demonstrated that provision by the Chief Executive to the Court of an appropriate explanation for the decision to proceed with the PPO application constituted both an appropriate safeguard for and a legitimate precursor to progressing with a PPO application – Court’s decision to make a PPO was not susceptible to challenge on the ground there was a failure by the Court to be satisfied that its s12(2) Public Safety (Public Protection Orders) Act 2014 direction had been appropriately acted upon – Appeal dismissed.

Sale of business, term loan agreement

ENA Holdings Ltd v Admiralty Lodge Motel (2016) Ltd [2023] NZCA 409

Successful appeal against summary judgment in the sum of $488,129 in favour of ALM – Sale by ALM of management and letting rights in relation to an accommodation complex – EHL purchased the business in Mar 2020 for the sum of $950,000 – ALM agreed to advance EHL $475,000 to enable it to complete the purchase and entered into a term loan agreement under which S and C guaranteed EHL’s obligation to repay the loan – Summary judgment entered after EHL defaulted – HELD: Sufficient connection between representations as to the future profitability of the business and the likely reason for the subsequent reduction in value of the business to conclude that J’s representations had arguably contributed to the appellants sustaining loss – Quantum of any loss would need to be established at trial – Appeal allowed – Summary judgment set aside.

Companies Act breaches

Kumar v Smartpay Ltd [2023] NZCA 410

Unsuccessful appeal from judgment K liable to pay $850,427 to the liquidators of OCL – Loss claimed by SPL, a creditor of OCL, arising from what the HC found were K’s breaches of s131, s135, and s136 Companies Act 1993, when he was a director of OCL – Whether breaches established, and quantum of SPL’s losses – Conclusions in Yan v Mainzeal Property and Construction Ltd (in liq) and UK case BTI 2014 LLC v Sequana SA coexisted to create a sliding scale of consideration that had to be given to the interests of creditors, starting with “significant regard” once s135 triggered, and moving towards paramountcy as the company moved closer to insolvent liquidation – HELD: K misunderstood the issue of causation – Section 131 clearly breached (K failed to consider the interests of OCL, OCL was insolvent or near insolvent from the time it commenced trading, and breaches of fiduciary duty) – K breached s135 (criteria in Mainzeal applied), and s136 – Evidence demonstrated $850,427 was actual loss suffered and appropriate measure of compensation – Appeal dismissed.

Appointment of expert panel member, suspended lawyer

Panel Convener v Ngāti Paoa Trust Board [2023] NZCA 412

Successful appeal from HC decision issuing declaration that Convener’s decision not to appoint G was unlawful – Respondent Board nominated G as a member of an expert panel to decide fast-track applications for resource consent – Panel convener was responsible for appointing panel members – The Convener declined to appoint G, essentially on character grounds as G serving a 3 year suspension from practice as a lawyer, having been found guilty of professional misconduct – HC held that G’s suspension from legal practice was an irrelevant consideration which should not have been taken into account – HELD: panel members able to be removed for “just cause”, which included but was not limited to misconduct – Not accepted grounds for removal were limited to conduct which happened while the person held the office – Convener entitled to consider G’s past misconduct when deciding whether to appoint him, and entitled to reject G’s nomination on the ground that the appointment of a lawyer who was still serving a suspension for professional misconduct might shake public confidence in any expert consenting panel to which they were appointed and in the processes for appointing panel members – Appeal allowed.

Leave application, immigration

CO (Philippines) v Immigration and Protection Tribunal [2023] NZCA 416

Unsuccessful application for leave to file judicial review proceedings challenging a decision of the Immigration and Protection Tribunal – CO was a citizen of the Philippines, and had been living in NZ since Dec 2007 – Deportation liability notice issued in 2011 – Three applications for refugee and protected person status declined – Whether the Tribunal erred in failing to take into account “country information” which identified a relevant risk of persecution – HELD: not seriously arguable that the absence of a specific reference to a newspaper article in the Tribunal decision amounted to a reviewable error – Tribunal entitled to consider the earlier rulings it had made – None of the issues raised by CO were of general and public importance – Even if alleged errors made out, they were specific to CO – Issues raised would be more suitably addressed by way of appeal than in judicial review proceedings – Application declined.

New Zealand High Court

Lawyers, tikanga, restoration to roll

Reid v New Zealand Law Society [2023] NZHC 2370

Unsuccessful appeal by Reid against a decision declining her application to be restored to the roll of barristers and solicitors – Reid was a former criminal barrister who was struck off the roll in 2015 following conviction for having delivered contraband to a prisoner in contravention of the Corrections Act 2004 – HELD: The essential test for restoration was whether the applicant demonstrates that they were a fit and proper person to practise as a barrister or as a solicitor or as both – That was a forward-looking exercise and reflected the values of redemption and forgiveness – When considering past convictions, the Court must  determine whether the offending remained relevant – The Lawyers and Conveyancers Disciplinary Tribunal  had appropriately incorporated tikanga principles into its assessment – The Tribunal noted that, as a consequence of her actions, clients and counsel are now generally separated by physical barriers in the prison environment and that lawyers are delayed in entering prisons because of search requirements introduced in response to her offending -  Reid's conviction was for serious offending which affected the standing of the legal profession and constituted an abuse of professional privilege – However, 10 years since her offending,  Reid continued to demonstrate a serious lack of insight into her wrongdoing – Reid had attempted to downplay her misconduct, exhibited a preoccupation with self-interest, largely limited her expressions of regret to the damage she caused herself, and failed to show genuine remorse for those impacted both directly and indirectly by her offending – For these reasons, the Court could not be satisfied that the conviction no longer remained relevant to Reid's present-day character – The appeal was dismissed.

Wills, review, incorrect application filed

Estate of Maybee [2023] NZHC 2134

Unsuccessful application for review of  a decision of the Registrar not to grant her application for an order that letters of administration with will annexed in respect of the estate of the deceased be granted to her – The  deceased died in September 2022 – In  May 2023, the applicant filed an application for an order that letters of administration with will annexed of the estate of the deceased be granted to the applicant, pursuant to s5 and s6 Administration Act 1969 and r27.25 High Court Rules 2016 – The application was declined on the basis the documents filed were inconsistent -  The applicant had filed an application for letters of administration with will annexed but the document filed for sealing was for letters of administration - The application was being made by one of the surviving executors and therefore the application should have been for grant of probate - The will was stapled to the affidavit -  The applicant would need to file an affidavit of plight to explain this and to confirm there were no other testamentary documents attached to the will when it was found – HELD: The Court had discretion under s6 to grant letters of administration with will annexed to those entitled to the “intestate” portion of an estate on a partial intestacy - The Court had the power under r27.25 to grant letters of administration with the will annexed to the person entitled to them according to r27.26 - The failure of the gifting of the residual estate to the Trust was not a circumstance that fell within and triggered r27.25 - Where there was a valid last will, application must still be made for probate even if the provisions had failed – The failure of the gifting  meant there was a partial intestacy – The application was for review of the Registrar’s decision declining to grant letters of administration with will annexed - Section 6(2) was engaged – The Curt declined to exercise discretion under that section – The application was dismissed.

Murder, defence of insanity, test

R v Leati’oo [2023] NZHC 2142

Reasons for finding under s20(2)(c) Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) that  Leati’oo was insane within the meaning of s23 Crimes Act 1961 at the time he caused his mother’s death – Leati’oo stabbed the deceased, (his mother) multiple times with a knife causing her death – He had suffered from mental health issues from at least 2009, which had  become more serious in more recent times – The first had contact with mental health services was in 2009 when he reported hearing voices – No treatment resulted from that engagement – In 2015, he was charged with assaulting a family member – He reported doing so because he believed she had poisoned his food - An assessment by a forensic psychiatrist in relation to that event concluded that there was no evidence of a major mental illness at that time – Leati’oo’s belief of being poisoned was a recurrent theme in his various presentations to mental health services over the following years – In 2020 he was formally diagnosed with schizophrenia, complicated by substance abuse – Clinical psychiatrists viewed that at the time he killed his mother, he suffered from a disease of the mind for the purposes of s23, being psychosis caused by schizophrenia – He was a regular and heavy user of cannabis – HELD: Taking into account the expert advice to the Court, and also evidence of Leati’oo’s mental health both before and after the time when he killed his mother, he was suffering from a disease of the mind at the time, namely schizophrenia –  That formal diagnosis had been made some time earlier and it was  clear from the materials that he was continuing to suffer the symptoms of that disease at the time when he stabbed his mother – the Court was also satisfied on the basis of the expert evidence that when he stabbed his mother, he understood the nature and quality of his actions, namely that he was killing a person who he did not believe was his mother and it was more likely than not that he had not known that the act in question, namely stabbing his mother, was morally wrong, having regard to the commonly accepted standards of right and wrong – The only reasonable outcome was a finding that the act was proven but Leati’oo was not criminally responsible on the basis of insanity.

Sentence, murder, MPI

R v Rameka [2023] NZHC 2420

Sentencing for multiple defendants for murder and kidnapping of one victim and charges of kidnapping and wounding with intent to cause grievous bodily harm in separate incidents involving two victims – Rite was sentenced for the murder only – The offending related to contaminated methamphetamine – The only possible sentence on the charge of murder was  life imprisonment – The Court of Appeal in Frost v R [2023] NZCA 294   had recently affirmed a streamlined sentencing process for s104 Sentencing Act 2002 (imposition of minimum period of imprisonment of 17 years or more murders so long as there are sufficient comparator cases – HELD: s104(1)(e) Sentencing Act 2002 applied – The murder was committed in the course of other serious offending, namely  kidnapping – The murder was particularly brutal and callous – It involved calculated or lengthy planning – However, s104 was not engaged here because the murderous intent was formed during the course of the fatal beating – Rameka, Payne and Grey were treated the same for the murder sentencing, kidnapping was treated as an aggravating factor of the murder – All had challenging backgrounds detailed in the s27 cultural reports – Rameka played the dominant role in the kidnapping – However, the law of parties did not mean that draw fine distinctions between their  roles should be defined – An MPI of 17 years appropriate for Rameka, Payne and Grey – Rameka’s MPI was uplifted by 18 months to 18 years and 6 months – For Payne and Grey, by 1 year to 18 years – Rite was a party with no physical involvement in the murder and no other offending – He received an MPI of 11 years – Life imprisonment sentences for all defendants.

Sentence, drugs, large-scale commercial

R v Luna [2023] NZHC 2188

Sentence for Luna to charges relating to the importation, possession and supply of Class A, methamphetamine, lysergide (LSA) and cocaine and Class B controlled drugs, MDMA (ecstasy) and ephedrine – Guilty plea entered – Very large and sophisticated drug importation and distribution syndicate that became the subject of a wide-ranging police investigation – The organisation was well organised, with members allocated roles such as “storemen” who stockpiled and repackaged bulk drugs and “runners”, who delivered drugs and obtained payment from customers – The leader of the syndicate was based overseas but exercised tight control over the syndicate’s operations in New Zealand – He had been sentenced to life imprisonment for his role in its operation – He acted as a receiver or “catcher” of imported drugs – He agreed to receive drug consignments sent from overseas to his home – He was paid in cash – Luna's role in the syndicate never progressed beyond being a runner, but his activities led to him having contact regularly with the most senior members of the syndicate – HELD: Luna had an important function within the syndicate – He took physical possession of drugs and cash and delivered them to customers or others within the syndicate – He would also receive drugs on behalf of the syndicate and collect and deliver large sums of cash to individuals or to the money remittance business as instructed – He was aware of the nature and scale of the syndicate’s operations – A starting point of 13 years and 6 months imprisonment was adopted to reflect the offending involving methamphetamine – The sentence was uplifted by 3 years to reflect the other offending – Luna had no previous convictions so there was no uplift for personal aggravating factors – There was nothing in the cultural report that could realistically link to the causes of the present offending – Discount of 20 months (10 percent) to reflect previous good character and difficulties he faced suffered since arriving in New Zealand from Argentina as a child – Discount of 20 months (10 percent) for rehabilitative prospects and remorse – Discount of 3 months for 24 hour curfew – Discount of 3 years (18 percent) for guilty plea – The end sentence was 9 years and 11 months imprisonment.