New Zealand Law Society - Courts roundup 7 September - 13 September 2023

Courts roundup 7 September - 13 September 2023

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

Auckland High Court 2

New Zealand Supreme Court

Trial counsel responsibilities

R v Mohamed [2023] NZSC 117 (4 September 2023)

Unsuccessful leave application – M applied for leave to appeal from CA dismissing appeal against conviction for wounding with intent to cause grievous bodily harm –

SC not satisfied proposed appeal raised questions of general or public importance about trial counsel responsibilities CA accepted fundamental decisions in play – Having considered facts, did not accept events gave rise to miscarriage of justice –

Nor did SC consider anything M raised gave rise to appearance of miscarriage of justice – Arguments M would have SC consider would reprise CA consideration – No apparent error in CA assessment against background of Crown case – Trial Judge gave clear directions to jury on approach it should take to two items of evidence said to be inadmissible – Application declined.

Immigration, liability for deportation, discharge without conviction

Truong v R [2023] NZSC 119 (4 September 2023)

Unsuccessful leave application – T Vietnamese national with permanent residence status in New Zealand – Had two New Zealand-born children who were New Zealand citizens – Along with her husband pleaded guilty to cultivating cannabis and theft of electricity – Sentenced to five months’ community detention, eight months’ supervision and ordered to pay reparations for electricity –

Just over three years later T received letter from Immigration New Zealand – Letter said due to offending, she was liable to deportation under s 161(1)(b) of Immigration Act 2009 and might receive formal deportation liability notice (DLN) –

On receiving letter T brought conviction and sentence appeal to CA over three years out of time – Crown did not oppose application or admission of affidavits in support of appeal setting out relevant background –

T sought discharge without conviction under s 106 Sentencing Act 2002 – Only issue on appeal was whether T’s exposure to possibility of deportation (a risk not appreciated at time of her guilty plea) might have rendered consequences of conviction out of all proportion to gravity of offence in terms of s 107 Sentencing Act –

CA said risk T might be deported not consequence out of all proportion to gravity of offending – Came to this primarily because Immigration Act had procedures for considering circumstances of potential deportee both prior to issue of DLN and after notice given –

SC said while CA might have taken different view on different facts, here rejected evidence from immigration lawyer, suggesting T would invariably be served with DLN and any appeal would be highly likely to fail – Was factual assessment –

No issue of principle arose here and no risk of miscarriage of justice – Application declined.

Sexual offending, advancing full defence, miscarriage of justice

H (SC 54/2023) v R [2023] NZSC 120 (8 September 2023)

Unsuccessful leave application – H convicted, following jury trial in District Court, of sexual offending against daughter when she was between six and nine years old – Sentenced to 10 years four months’ imprisonment – CA dismissed conviction appeal – Sought leave to bring second appeal on single ground – Neatly described as: what should happen when trial counsel does not fully advance defence in front of jury that had been agreed upon prior to trial?

SC said whether counsel decision at trial significant one could not meaningfully be defined in advance and without proper factual context – Further ultimate test whether had been miscarriage of justice – Here, counsel made split-second tactical decision based on assessment of implications for defence of directly challenging complainant’s credibility – SC not satisfied that in factual context here, even assuming trial counsel’s tactical decision was error, that decision gave rise to any plausible risk of miscarriage – Application declined.

New Zealand Court of Appeal

Sentencing discounts, children

Sweeney v R [2023] NZCA 417

Successful appeal against sentence of 2 years 2 months imprisonment – Assault with intent to injure; Assault with a weapon – Manslaughter acquittal – Charges arose from brawl at a petrol station – S’s partner died in a car accident in 2019, and his infant son was also injured – S assumed full-time responsibility for his son (now aged 4 years), and daughter (now aged 6 years) – Whether there should have been a discount for the interests of S’s two young children, and their effect on his rehabilitative prospects – Section 8(h), s8(i) Sentencing Act 2002, and Philip v R relevant – HELD: It was an error not to give a discount of around 10 percent in relation to S’s children – Discount of 3 months appropriate – Interests of the children did not tip the balance far enough to make home detention the least restrictive sentence appropriate in the circumstances of this serious violent offending – Appeal allowed – Sentence of 1 year 11 months imprisonment substituted.

Sentencing, three strikes, co-offender

Gemmell v R [2023] NZCA 420

Successful appeal against sentence of 4 years 2 months imprisonment – Aggravated robbery; Kidnapping – Both charges second strike offences and non-parole order made – G’s co-offender (T) was the lead offender, and was not sentenced until after the repeal of the three strikes legislation – T accordingly eligible for parole despite also being a second strike offender – Whether sentence manifestly excessive – Noted eligibility for parole not necessarily equivalent to a lesser sentence, but opportunity for parole a material factor in sentencing and one that was removed only in the most serious cases – Section 9 New Zealand Bill of Rights Act 1990 considered – HELD: For T to have the opportunity for parole when G did not was disproportionately severe in its effect on G – Sentence imposed on G was manifestly unjust and the application of the three strikes regime disproportionately severe – Appeal allowed – Sentence of 3 years 5 months imprisonment substituted – Order G serve his sentence without parole set aside.

Covid-19, unvaccinated jurors and witnesses

Wallace v R [2023] NZCA 422

Unsuccessful appeal against convictions – Sexual violation; Kidnapping; Male assaults female – Jury trial with majority verdict – Appeal highlighted the challenges the coronavirus pandemic posed for the courts, and particularly for jury trials – Whether Judge was able, on health and safety grounds, to require a crucial unvaccinated witness to wear a mask, and prevent a qualified but unvaccinated member of a jury panel from serving on a jury – Effect of any error on the fairness of the trial and on the validity of the jury’s verdicts – Canadian case R v MacKinnon considered – Uncertainty in NZ as to the existence of a power to exclude unvaccinated jurors – HELD: Even if wearing a mask did make an assessment of the complainant’s demeanour more difficult for the jury, would have had no meaningful impact on W’s fair trial rights – Difference of opinion about the cogency of the “unvaccinated juror” ground of appeal – Not possible to conclude that the absence of the juror from the panel made any difference at the trial or to the verdicts, or that the jury that was selected was not impartial – Even assuming illegality in preventing jury panellist from being part of the jury, the trial was not a nullity and the verdicts were not abortive – Appeal dismissed.

Costs, multiple causes of action, various success

Gorringe v Pointon [2023] NZCA 426

Appellants unsuccessfully challenged the testamentary capacity of JG, alleged undue influence by JP concerning JG’s wills, and asserted a breach of fiduciary obligations by JG’s executors – Appellants then successfully appealed undue influence cause of action and both the relevant wills were declared invalid – At issue was appropriate costs – Principles in Paterson (dec’d), Re consistently applied in probate matters – Public Trust v Dollimore distinguished – HELD: Justification for appellants’ criticisms of some features of respondents’ conduct in the proceeding, but not as significant a factor with reference to the consideration of increased costs as the failure to accept appellants’ second settlement offer – 50 percent uplift warranted in respect of subsequent steps – To the extent appellants considered the costs rendered to the estate by executors were excessive, avenue for redress was via procedure in the Lawyers and Conveyancers Act 2006 – Costs followed the event and JP could not have recourse to the estate for reimbursement of costs she was required to pay – JP to pay appellants costs in the HC of $73,094, and costs in the CA of $16,730.

Breach of contract, implied term

Delamere v Liu [2023] NZCA 427

Unsuccessful appeal against judgment finding D liable to L for breach of contract – Judgment entered for $459,210 reflecting sum L paid to invest in a company associated with D (incorporating damages, interest, and costs) – Nature and effect of the contractual arrangements between the parties – Whether Judge right to find liability on the basis of an implied term – Whether L entitled to relief in circumstances where he was himself allegedly in breach of contract – HELD: relevant three agreements were part of an overall arrangement, but were not interdependent (could be implemented by the separate performance of each agreement) – Arrangements did not constitute a joint venture – Obligations assumed were contractual in nature and no room for any suggestion that they had a fiduciary nature – Use of any part of $350,000 deposit without L’s consent was a breach of term deposit agreement – Judge correct to find relevant implied term and damages appropriately assessed – Appeal dismissed.

Conviction appeal, discharge without conviction

Tumahai v R [2023] NZCA 431

Successful appeal against conviction – Supplying methamphetamine (Class A drug) (2.75gm); Offering to supply methamphetamine (1gm) – Very small quantities involved – T convicted and sentenced to 15 months intensive supervision – Appeal on basis that given the unusual circumstances of T’s case, she ought to have been discharged without conviction – T’s affidavit adduced as fresh evidence – T in abusive relationship when introduced to drugs, her two children were removed, and her partner sentenced to 6.5 years imprisonment – T was a prosecution witness in a murder trial following drug deal that went wrong – Charges inherently serious, and discharges without convictions for dealings on controlled drugs rare – HELD: Miscarriage of justice established given T wanted to apply for a discharge without conviction, and through no fault of her own, that application was never advanced – No evidence was placed before the DC to support such an application – Given evidence now available, real possibility the outcome might have been different had the process not miscarried – Appeal allowed and convictions set aside – Case remitted to DC for redetermination.

New Zealand High Court

Sentencing, manslaughter

R v Ross [2023] NZHC 2477 (5 September 2023) Eaton J

Sentencing – R pleaded guilty to manslaughter (dangerous driving) following sentence indication – Several factors aggravated offending including high alcohol, high speed, and aggressive driving – Starting point 78 months' imprisonment – Discounts applied for youth, mental health, and guilty plea – Remorse and rehabilitation discount in light of commendable rehabilitation efforts and full accountability taken for offending – End sentence 27 months' imprisonment – Disqualification from driving and reparation ordered.

Cryptocurrency, liquidation funding

Ruscoe and anor v Houchens and ors [2023] NZHC 2490 (6 September 2023) Palmer J

Successful application by Cryptopia Ltd liquidators to realise $5 million of cryptocurrency to fund company’s ongoing liquidation.

Sentencing, kidnapping, grievous bodily harm

R v Hambly [2023] NZHC 2506 (7 September 2023) Downs J

Sentencing – H sentenced to six years six months' imprisonment for causing grievous bodily harm; kidnapping; injuring with intent; and threatening grievous bodily harm – Serious violence with sadistic element, mature first offender.

Interim injunction, continuing, bank power of terminating contract

The Christian Church Community Trust and ors v Bank of New Zealand [2023] NZHC 2523 (8 September 2023) Cull J

Successful application to continue interim injunction granted, preventing BNZ from terminating bank accounts of entities of Christian Church Community Trust, known as Gloriavale, pending final determination at substantive hearing –

Serious question to be tried on first cause of action claiming BNZ acted in breach of its contract with applicant, when it sought to unilaterally terminate contract on reasonable notice – Seriously arguable BNZ did not have express unilateral termination power and either default rule (or Braganza extension) applied requiring BNZ not to exercise its contractual discretion in way that was arbitrary, capricious, or unreasonable having regard to contract provisions, or was implied term in contract to act reasonably – If BNZ is required to act reasonably, serious issue on whether BNZ's termination decision reasonable, procedurally and/or substantively, and whether there public obligation on BNZ as essential service provider to provide minimum banking services to customers without alternative banking options –

Balance of convenience and overall justice clearly favoured applicants – Application granted.