New Zealand Law Society - Courts roundup 6 April - 12 April 2023
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
R v Ahlawat [2023] NZSC 28 (5 April 2023)
Unsuccessful leave application – Ah incited E to set fire to residential flat from which her mother had been evicted – E intellectually impaired – Plan miscarried and E’s clothing caught fire – Died at scene – Ah convicted of manslaughter and arson causing danger to life – Sentenced to eight years three months’ imprisonment –
At trial, Ah’s name had been suppressed for fair trial reasons because she was still to be tried on unrelated charge of attempting to pervert course of justice – Arose from her complaint against A –
A charged with indecent assault – Charge later dismissed – Perversion charge against Ah withdrawn after sentenced on manslaughter and arson charges – Once perversion charge withdrawn question arose whether name suppression should continue – HC declined but interim name suppression while appealed to CA – CA granted interim suppression while SC leave application heard –
SC said while scope and operation of courts’ discretion under s 203(3)(b) Criminal Procedure Act 2011 might involve elements of public importance not appropriate to grant leave here – Issues arose in extraordinary and highly unusual set of circumstances – Any decision would reflect particularities rather than canvass broader implications of wider public importance – Application dismissed.
Dunstan v Gibbs [2023] NZSC 29 (5 April 2023)
Unsuccessful leave application – Self-represented D filed notice of application for leave to appeal from CA judgment dismissing application for review – Application related to Deputy Registrar’s declining to accept notice of appeal for filing – Notice of appeal challenged HC decision of 27 May 2014 ordering that G be admitted as barrister and solicitor –
SC said application did not meet leave criteria – Application dismissed.
Solicitor-General’s Reference (No 1 2023) [2023] NZSC 30 (6 April 2023)
Successful reference from CA – Leave granted to Solicitor-General to refer following question of law (arising from Darling v R [2022] NZCA 504) to SC under s 317 Criminal Procedure Act 2011: On the facts as set out in the Court of Appeal decision and the relevant documents on which guilty pleas were entered, did A’s acquittal mean D could not, in law, have been convicted of the offence with which he was charged, despite his guilty plea?
Nepe (aka Williams) v R [2023] NZCA 90
Successful appeal against ruling evidence of N’s previous conviction for aggravated robbery admissible – N alleged to be member of a youth gang responsible for a spate of ram-raid and smash and grab type burglaries that took place in the Waikato region in 2021 – Six charges included burglary, car conversion (x3), aggravated robbery (x2) – Evidence of a previous conviction for aggravated robbery to be adduced as propensity evidence in relation to aggravated robbery of Liquorland charge – At issue was probative value – HELD: well established a single incident was capable of being admissible propensity evidence – Issue at trial was identification and the probative force of the proposed evidence had to be assessed in relation to that – Given the similarities relied on by the Crown were common features of aggravated robberies of liquor stores by young men, CA not persuaded the evidence logically bore with any significant force on the question of whether N was one of the five robbing a liquor store in a different region year later – Appeal allowed and conviction evidence inadmissible.
R v Nooroa [2023] NZCA 96
Successful appeal against pretrial ruling declining to admit evidence of a recording made of N – Alleged N indecently assaulted the complainant, L – L told his boss (AT), who then texted his wife (TP) about what happened – TP was a relative of N, and confronted N about the allegation – AT secretly recorded what was then said – Admissibility of recording – Section 28(1)(a) Evidence Act 2006 set a low threshold for an inquiry as to admissibility of admissions – Lyttle v R, and R v Wichman relevant – HELD: initial exchanges highly emotionally charged, but would not have affected N enough to undermine the reliability of subsequent statements by N – Several key statements against interest occurred before, and independently of, anything said that might amount to a threat – N offered additional details in the exchanges about the alleged offending without any prompting suggesting both lucidity of thinking at the time and a willingness to cooperate – No evidence N made any statements because of a power imbalance of fear of actual harm – References to harm were entirely hypothetical in nature and did not lead to any materially more significant admission – No evidence on cultural dimension – Admissions not obtained unfairly – Appeal allowed and order excluding recordings quashed.
Truong v R [2023] NZCA 97
Unsuccessful appeal against convictions and sentence – T pleaded guilty to charges of cultivating cannabis, and theft of electricity – Sentence imposed 5 months community detention, 8 months supervision, and $2,532 reparation – T had permanent residence visa status in New Zealand (NZ) and became liable to deportation on conviction but Immigration NZ (INZ) did not take action until 2022, given T's engagement with mental health services – T’s two young children were NZ citizens – Z (CA 447-2012) v R four-step process considering discharge without conviction under s106 Sentencing Act 2002 – HELD: T’s offending was moderately serious – Process by which T would have an opportunity to make submissions regarding whether her deportation should proceed was significant – T’s convictions did not inevitably result in her being deported – Direct and indirect consequences of conviction not out of all proportion to the gravity of the offence - Discharge without conviction not appropriate – Appeal dismissed.
N (CA 615-2022) v Police [2023] NZCA 103
Unsuccessful application for leave to bring second appeal against conviction and sentence – Breach of protection order – Ordered to pay $150 fine and court costs – N previously married to complainant – Exception to standard no-contact condition of protection order that N able to communicate with complainant by text message regarding the care of their children or about contact – Text message asking about divorce resulted in conviction – High test for granting leave for second appeal (McAllister v R) – HELD: although the relevant text message was clearly a follow-up to a text message sent the previous day, the message asking about a divorce did not concern the care of the children or contact arrangements and was therefore not within the scope of the exception in the parenting order – No matter of general or public importance, nor risk of miscarriage of justice – Application declined.
Tauranga City Council v Fraser [2023] NZHC 723 (4 April 2023) Brewer J
Successful council appeal dismissal of charge laid under s 58 Dog Control Act 1996 – HC said DC Judge erred in appreciating complete absence of fault defence – Blamed victim instead of focusing on whether dog owner could have taken steps to avoid attack – Appeal allowed – Dismissal of charge quashed – Conviction entered – Remitted to DC for sentencing.
Auckland Pride and ors v Minister of Immigration and anor [2023] NZHC 758 (5 April 2023) Gendall J
Reasons judgment following without notice application for interim orders and relief (served on pickwick basis but only on Crown) to require Minister of Immigration and Immigration New Zealand to prohibit K-M from entering New Zealand to speak at Auckland and Wellington "pro-women/anti-transgender rights" events –
HC said (a) by small margin applicants had position to regarding alleged illegality of Minister's decision not to intervene in officials’ decision that K-M did not satisfy s 16 Immigration Act 2009 requirements; (b) Applicants went some way to suggesting possible case existed, despite significant threshold that applied to unreasonableness allegations; (c) Effect of orders on K-M would be significant and she had not had opportunity to be advised , served, or heard; (d) Making of orders sought would require Minister to take positive action, and would involve in reality Court stepping into Minister’s shoes, or directing Minister to reconsider with only one option available to him; and (e) Some sense in which granting orders sought would have amounted to final relief –
Application declined and dismissed – Order under s 5(2) of Senior Courts (Access to Court Documents) Rules 2017 that court file and all material contained therein not to be accessed nor searched without written permission of High Court Judge.
R (on the application of Pearce and another) v Parole Board of England and Wales [2023] UKSC 13 (5 April 2023)
Successful appeal from CA – Parole Board for England and Wales (Board) responsible for deciding whether to direct early release of prisoners – When deciding, Board had to be satisfied no longer necessary for protection of public that prisoner should remain in custody – One example of test in s 28(6)(b) Crime (Sentences) Act 1997 (Statutory Question) –
In March 2019, Board issued “Guidance’ on correct approach to take, when answering Statutory Question, with respect to allegations made about prisoner beyond offences of which convicted – Sometimes such allegations not proved or disproved on balance of probabilities but, if true, could affect Board risk analysis – Guidance directed Board to "make an assessment of the allegation to decide whether and how to take it into account" – Guidance further provided "in cases where there is a mere allegation without any factual basis… or the allegation is not relevant to the question of risk… [it] should be disregarded” –
In 2010, P sentenced to imprisonment for public protection with minimum term three and a half years (less time spent on remand) following conviction for sexual assaults – On most recent review Board refused to direct P’s release (Decision) – Following Guidance, when addressing Statutory Question Board took into account for allegations of other sexual assaults and P’s views –
P challenged Decision and Guidance by judicial review, arguing that, in absence of fact findings, allegation simply "non-fact" – Board not permitted to pay any attention to non-fact at all – HC dismissed P’s claim – On appeal, CA said parts of Guidance which countenanced carrying out of risk assessment using unproved allegations unlawful – However, decision itself proper and justified on facts –
Board appealed to SC, saying CA wrong to hold parts of Guidance unlawful – SC unanimously allowed appeal but invited Board to review Guidelines – Said central question whether anything in legal context of Board's role which limited it to only taking into account proven facts of past behaviour, while excluding possibility that any unproven allegations made against prisoner might be true – Said no limitation – SC rejected suggestion that law knew only binary approach of fact or non-fact – As general rule in civil proceedings, only "facts in issue" (those facts necessary to prove to establish claim or defence) had to be established on balance of probabilities – Not every fact were facts in issue – Facts being part of material from which fact in issue could be inferred did not need to be proved individually – Evidence which not sufficient to establish fact on balance of probabilities could still be relevant when judicial body assessed weight of other evidence in deciding whether fact in issue established – Appeal allowed.