New Zealand Law Society - Courts roundup 4 April - 10 April 2024

Courts roundup 4 April - 10 April 2024

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

Porirua District Court panorama

New Zealand Court of Appeal

Methamphetamine, Burglary, Unlawful search, Improperly obtained evidence - Login Required

[S] v R [2024] NZCA 75

Complaint, Lawyers’ behaviour, Judicial Review, Investigation process

Hardie v New Zealand Law Society [2024] NZCA 90

Successful appeal against decisions of New Zealand Law Society National Standards Committee No 2 in relation to an anonymous complaint – On 27 November 2019 the appellants, who are practising lawyers, exchanged communications in the course of organising a cricket game through their professional email accounts which they intended to be personal - On 6 December 2019 the first respondent received an anonymous complaint about the appellants’ emails - The first respondent referred the complaint to the second respondent which resolved to commence an “own motion” investigation - In July 2020 the second respondent resolved to take no further action on the matter under s138(2) Lawyers and Conveyancers Act 2006 - Its written notice of decision (the Notice of Decision), which was confidential, was not notified to the appellants until 29 June 2021 - Appellants sought judicial review of various actions of the first and second respondents at several stages of the investigation process, including the refusal to publish the Notice of Decision - On 22 August 2022 their claim was dismissed in a judgment, publication of which was prohibited - The appellants now appeal - HELD: Appeal allowed - Declaration made that the National Standards Committee No 2 erred in failing to give the appellants an opportunity to be heard in respect of its adverse comments in the Notice of Decision - Declaration made that the National Standards Committee No 2 erred in failing to give the appellants an opportunity to be heard concerning publication of the Notice of Decision - Decision not to publish the Notice of Decision set aside - Notice of Decision is not confidential - Order prohibiting publication of the High Court judgment and any part of those proceedings set aside.

Standards Committee decision

High Court decision - This judgment is no longer subject to the non-publication orders at paragraph [135], with reference to paragraph [86] of the Court of Appeal judgment.

Aggravated robbery, Murder, Pretrial, Propensity evidence - Login Required

[F] v R [2024] NZCA 94

Appeal against conviction, Evidence, Reliability warning

Brown v R [2024] NZCA 95

Unsuccessful appeal against conviction for murder - Appellant had known Ms T for some years - In 2021, after she had separated from her then fiancé who was also the father of her 26-month-old daughter (A), Mr Brown began to spend more time with Ms T, occasionally staying nights at her address - On 29 October 2021 appellant tested positive for COVID-19, requiring him to isolate with Ms T and A - On 31 October 2021 A was badly injured and died in hospital on 1 November 2021 - Ms T pleaded guilty to manslaughter by failing to provide the necessities of life – Appellant was convicted of murder, with the Judge inferring that while Ms T called a COVID-19 public health service, the appellant assaulted A by striking her or striking her head against hard surfaces in A’s bedroom – Appellant appeals on the ground that s122 Evidence Act 2006 was engaged, and as a result the Judge should have given a reliability warning - As there was a risk that Ms T would be charged with murder instead of manslaughter, Ms T had a motive to give false evidence and she was therefore an unreliable witness - There was a miscarriage of justice as a result - The respondent submits that a reliability warning was not required, and that it is difficult to see what a reliability warning concerning the possibility of Ms T being prosecuted for murder if she admitted to killing A would have achieved – Whether an appeal against conviction be allowed – HELD: Crown only relied on parts of Ms T’s evidence that were verified by independent evidence - Judge had dealt with concepts of credibility and reliability in a general sense in summing up and referred to the Crown not relying on Ms T being a truthful witness - No miscarriage of justice arose from the Judge not giving a reliability warning – Appeal dismissed.

Supreme Court of Canada

Constitutional law, First Nation rights, Canadian Charter

Dickson v Vuntut Gwitchin First Nation [2024] SCC 10 (28 March 2024)

Unsuccessful appeal from Yukon CA – Dealt with whether Canadian Charter of Rights and Freedoms (Charter) applied to election rule enacted by self-governing First Nation in Yukon – Also addressed whether rule unjustifiably infringed member’s right to equality under s 15 Charter – To answer second question, SC needed to determine whether upholding individual’s equality right “abrogated” or “derogated from” protected Aboriginal, treaty or other right or freedom belonging to Aboriginal peoples of Canada, as stated under s 25 Charter – 
Vuntut Gwitchin First Nation (VGFN) self-governing Indigenous community in Yukon – Seat of government based in Old Crow, village located about 800 kilometres north of Whitehorse in traditional territory of Vuntut Gwitchin and constituting VGFN’s main community in its settlement land – VGFN had own Constitution, as well as electoral rules and standards – One rule required elected Chief and Councillors reside on First Nation settlement land, or relocate there within 14 days of their election –
D VGFN member and Canadian citizen – Lived in Whitehorse and constrained for personal reasons to stay there – Wanted to stand for election as VGFN Councillor – Said residency requirement discriminated against her as non-resident of settlement land – Challenged residency requirement in Yukon SC saying violated her right to equality guaranteed under s 15(1) Charter –
In response, VGFN relied on s 32(1) Charter, which identified certain entities bound by it, including federal and provincial legislatures and governments, as well as entities controlled by government or that performed governmental functions – As self-governing Indigenous community, VGFN said did not fit definition and scope of “government” under s 32(1) and therefore not bound by Charter – Consequently, residency requirement fell outside Charter application –
Alternatively, VGFN said if Charter bound it, residency requirement did not violate D’s right to equality and even if it did, s 25 Charter protected requirement – According to VGFN, residency requirement protected collective minority rights relating to its traditional Indigenous modes of government and leadership – Consequently, D’s individual Charter right could not defeat requirement –
Yukon SC said Charter applied to VGFN, but if residency requirement infringed D’s equality right, still protected by s 25 – D’s challenge rejected – Yukon CA agreed – D appealed to SC regarding constitutional validity of residency requirement – VGFN cross-appealed on application of Charter – 
SC majority dismissed D’s appeal and VGFN’s cross-appeal – Said Charter applied to VGFN, principally because was government by nature under s 32(1) – However, residency requirement exercise of “other” right or freedom that pertained to Aboriginal peoples of Canada under s 25 – Appeal, cross-appeal dismissed.

Judicial Committee of Privy Council 

Tort, detinue, remedies

Caribbean Welding Supplies Ltd v Attorney General of Trinidad and Tobago [2024] UKPC 7 (28 March 2024)

Mainly successful appeal from Trinidad and Tobago CA – Issues – Did CA err to uphold trial judge's decision CWS not entitled to damages for loss of use of its excavator in addition to general and aggravated damages? (Issue 1) – Did CA err to invoke s 39 Supreme Court of Judicature Act Chap 4:01 ordering CWS to return excavator to Attorney-General (A-G) (Issue 2) – Did CA err to order CWS to pay A-G’s appeal costs as appeal was on limited loss of use issue only, whereas costs ordered in HC on value of entire claim (which was not appealed)? (Issue 3) –

CWS engaged in business of renting heavy equipment, including excavators – On 19 October 2015, CWS entered agreement for sale of excavator to E for TT$1,328,302 – E directed excavator delivered to particular site – On 21 October 2015, police entered site and seized excavator –

CWS brought proceedings against A-G in HC saying at time of seizure CWS using excavator in work which it was lawfully contracted to perform – After A-G filed defence, CWS successfully applied to have defence struck out – Judgment entered for CWS – CWS had excavator returned to it following judgment –

On damages, judge ordered A-G pay CWS: (i) TT$1,328,320 (and interest) as special damages for detinue of excavator; (ii) TT$150,000 (and interest) as aggravated damages; and (iii) CWS's prescribed costs based on claim value being TT$1,328,320 – Judge said CWS not entitled to recover damages for loss of use for period excavator detained – Based on factual finding said CWS entered into agreement to sell excavator before it was seized and, but for detinue excavator, would have been sold – Judge said "no evidence before the court to suggest that the sale of the excavator was anything else but a done deal" – Making award for loss of use, therefore, "would not amount to a compensatory award of damages but would cause the claimant to benefit from a windfall which he would not have received had the vehicle not been seized and detained by police." –

CWS appealed judge's finding that CWS not entitled to damages for loss of use of excavator – CA said judge correct to rule CWS not entitled to damages for loss of use – Decision reasonably open to her based on evidence – However, CA also said CWS could not recover both value of chattel and possession of it, since that would be contrary to established remedies for cause of action of detinue and would result in double recovery – Judge erred in law granting declaration CWS entitled both to possession of excavator and value of excavator as special damages –

CA dismissed appeal and affirmed judge's order regarding damages – However, relying on s 39 Supreme Court of Judicature Act Chapter 4:01, CA also set aside judge's declaration CWS entitled to possession of excavator and ordered CWS to deliver excavator to A-G and ordered CWS to pay A-G’s costs, to be determined at two thirds of costs assessed in court below –

CWS appealed to PC – PC allowed CWS’s appeal against CA order it return excavator to State and sets aside that part of CA order – PC referred to statement in Halsbury’s Laws of England, 3rd ed, Vol 38 (1962) at para 1317 that: “Damages are also awarded in detinue in respect of the detention of the goods, whether or not they are returned;” PC said As HC did not make order declaring CWS entitled to possession of excavator or order for A-G to deliver up excavator to CWS, set aside those parts of CA order which purported to set aside HC orders – Dismissed CWS’s appeal regarding costs quantification at two thirds HC costs – Appeal mainly allowed.

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