New Zealand Law Society - Courts roundup 5 October - 11 October 2023

Courts roundup 5 October - 11 October 2023

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

Supreme Court

New Zealand Supreme Court

Self-represented applicant, third leave application

Anderson v NZI International Acceptances Ltd and ors [2023] NZSC 130 (2 October 2023)

Unsuccessful leave application – Third application – All three essentially concerned 1988 lenders’ mortgagee sale of A’s farm following A’s default under loan instruments – A subsequently adjudicated bankrupt and respondents were restructured and liquidated –

SC said not necessary in interests of justice to hear and determine proposed appeal – No matter of general or public importance and no likelihood that substantial miscarriage of justice would arise if proposed appeal not heard – Application dismissed.

New Zealand Court of Appeal

Severance, joinder, propensity evidence - Login required 

P v R [2023] NZCA 477 

Name suppression, murder - Login required 

T v R [2023] NZCA 478 

Historic sexual offending, verdicts unfair, sentence excessive

Milne v R [2023] NZCA 483

Partially successful appeal against conviction and sentence for historic sexual offending against a boy under 16 years – Sentenced to 2 years 4 months' and 1 year 6 months' imprisonment concurrently – Whether verdicts were against weight of evidence, summing up unfair, sentence manifestly excessive – Error in Judge’s direction did not affect fairness of trial – Directions in summing up appropriate and sufficient – Directions on memory unhelpful – Starting point of 2 years 6 months was excessive – Changes to legislation since 2005 had impacted maximum penalties – Discounts insufficient – HELD: appropriate starting point was 2 years' imprisonment – Discounts of 15 percent for good character and 10 percent for age and health applied – Appeal against conviction dismissed – Sentences of 1 year 8 months' and 1 year 1 month imprisonment (concurrent) substituted.


Lewis v Hamilton Cosmopolitan Club Inc [2023] NZCA 484

Unsuccessful application for leave to appeal against HC quashing of damages award of $10,000 for nuisance – Access to property rented by L was via Club carpark – Rental property had previously been owned by the Club, before being subdivided and sold to a third party – Vehicular access to the property only possible via the carpark – Relationship deteriorated and trespass notice issued – Property access prevented – HC quashed DC award of damages – Equitable easement now being raised – HELD: Court unable to consider a new issue on second appeal when issue at heart of extant HC proceeding – Not in interests of justice for second appeal to be used as opportunity to revive argument deliberately abandoned at lower court – Application declined.

Historic sexual offending, preventive detention

Brown v R [2023] NZCA 487

Successful appeal against sentence of preventive detention with a 5-year minimum period of imprisonment (MPI) for sexual connection with a young person (x4) – B had 13 previous convictions for sexual offending, primarily against children and young people, dating between 1995 and 2006 – Index offending occurred in 2018 while B was subject to an extended supervision order (ESO) – Whether sentence manifestly excessive – HELD: leave to appeal out of time granted given sentence of preventive detention – Pattern of serious offending and serious harm caused – Expert evidence indicating a tendency for B to commit serious offences in the future – B had made some efforts to address offending – Preventive detention disproportionate to offending – Finite sentence, together with ESO, would adequately protect the community – Appeal allowed – Sentence of 4 years’ imprisonment substituted and ESO to be reactivated on release from prison.

Manslaughter, identification, participation, causation

Sheed v R [2023] NZCA 488

Unsuccessful appeals against conviction and sentence for manslaughter – S charged with murder but found guilty of manslaughter – Sentence imposed 5 years 6 months' imprisonment – Conviction appeal raised issues of identification, participation and causation in a group assault at gang premises – Objection to witness and evidence – HELD: identification warning was required and orthodox warning given – No risk of miscarriage of justice arising from Crown’s use of photomontage, and misidentification of RS – Not necessary to exclude positional asphyxia as a contributing cause of death – Starting point of 5 years 8 months' imprisonment within range – No discount warranted for personal mitigating factors – Sentence not manifestly excessive – Appeals dismissed.

Wounding with intent, grievous bodily harm, evidence

Milne v R [2023] NZCA 491

Successful appeal against sentence of 4 years 1 month imprisonment for wounding with intent to cause grievous bodily harm (GBH) – Application to adduce further evidence granted in part – Whether sentence manifestly excessive – Further evidence was certificates attesting to M’s participation in rehabilitation programmes since he was sentenced, and a s27 Sentencing Act 2002 report – M sentenced 2 months before SC decision in Philip v R – HELD: s27 report not fresh, but admitted as per Berkland v R – Other evidence excluded – Further discount applied – Nothing in the s27 report supported a separate discount in addition to the discount of over 25 percent made by the Sentencing Judge – Strongly in the interests of M’s young children that they should be able to have their father present in their lives as soon as possible, and further discount of 4 months (6 percent) appropriate – Sentence of 3 years 9 months' imprisonment substituted.

New Zealand High Court

Sentencing, murder

R v Vaitohi and anor [2023] NZHC 2761 (3 October 2023) Fitzgerald J

Sentencing – Murder of fellow gang member – Victim shot at three times, one hitting him in front torso (the fatal shot) and one in back (from close range) – No dispute life imprisonment only available sentence – Section 104 Sentencing Act 2002 not engaged – Minimum period of imprisonment (MPI) for V 13 years seven months, taking into account prior relevant offending and background factors (tempered by seriousness of offending) – MPI 13 years six months for T no uplift for prior convictions or discount for background factors – Contempt finding also made for V for refusing to answer questions while giving evidence at trial on basis of gang code – No separate sentence.

Judicial review, political party amended list

New Zealand Loyal v Electoral Commission and anor [2023] NZHC 2827 (9 October 2023) Isac J

Unsuccessful judicial review application – Registered political party applied for review of Electoral Commission decision relating to changes to party list after statutory deadline in s 127(3)(a) Electoral Act 1993 –

HC said mandatory order party sought requiring Commission to accept and publish amended party list would amount to suspension or modification of Act of Parliament and could not be granted – Second and third review grounds, based on ss 146H and 128C Electoral Act and s 12(b) Bill of Rights Act 1990, also untenable – Applications dismissed.

United Kingdom Supreme Court

Consumer credit, commission payment, claims timing

Smith v Royal Bank of Scotland plc [2023] UKSC 34 (4 October 2023)

Successful appeals from CA – Question on appeals whether claims seeking orders under Consumer Credit Act 1974 to remedy unfairness in credit relationship brought in time –

S and B each had credit card issued by Royal Bank of Scotland plc (RBS) and were sold Payment Protection Insurance (PPI) by RBS – Insurance covered credit card repayments in event of death, accident, sickness or involuntary unemployment –

RBS did not disclose to S and B that most money they paid for PPI did not go to insurer but was retained by RBS as commission – To this day, RBS had not revealed exact size of its commission but now known commission well over 50% of payments made –

RBS only informed S and B it had received commission when offering them redress (in 2018 and 2017, respectively) under scheme for PPI mis-selling established by Financial Conduct Authority – Redress payments said to represent commission RBS received by in excess of 50% of amounts paid for PPI – By that time S had already ended PPI agreement (in 2006) and credit card agreement with RBS (in 2015) – B also ended PPI agreement (in 2008), but credit agreement continued (until terminated in 2019) –

In August 2019, S and B brought claims to county court, seeking orders under s 140B Consumer Credit Act 1974 that RBS repay all money they paid for PPI (less redress already paid), plus interest –

S’s claim succeeded before district judge and in B’s case district judge ruled claim been brought in time – County Court Judge upheld both decisions on appeal – On second appeals CA ruled for RBS, saying in each case relevant time limit for bringing claim had expired before claim was brought – S and B appealed to SC.

SC unanimously allowed appeals, saying both brought before relevant time limit expired – Among other things, said in each case right to claim remedy depended on whether relationship unfair to claimant at time when relationship ended – Therefore, cause of action did not accrue and six year period for bringing claim did not commence until credit relationship ended (in 2015 and 2019, respectively) – Hence both claims brought in time – Appeals allowed.

Supreme Court of Canada

Publication bans, criminal cases

La Presse Inc v Quebec [2023] SCC 22 (6 October 2023)

Unsuccessful direct appeals from Quebec and British Columbia – S and C charged with several criminal offences in unrelated cases – In both cases, numerous matters dealt with before jury empanelment, including application for stay of proceedings for abuse of process and constitutional challenge – Several media outlets applied for orders or declarations allowing publication of information from hearings on those matters – Application judges in both cases dismissed media applications, saying automatic publication ban found in s 648(1) Criminal Code that prohibited publication of information about portions of criminal trial where jury not present applied not only after but also before jury empanelment –

Media outlets then asked to appeal directly to SC relying on case where SC said third party, like media outlets, could appeal publication ban in criminal proceeding directly under s 40 Supreme Court Act –

SC unanimously dismissed appeals – Said automatic publication ban in s 648(1) applied not only after jury empanelled, but also with respect to matters judges had power to deal with before jury empanelled –

SC said open court principle and trial fairness served to instil public confidence in justice system – Media played crucial role in making this possible – However, protection of fair trial interests, such as right to independent, impartial and representative jury, also essential to public confidence in administration of justice – Publication bans like that imposed by s 648(1) limitations on court openness that protected accused right to, and society’s interest in, fair trial – Appeals dismissed.

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