New Zealand Law Society - Courts roundup 9 April - 15 April 2026
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
McNally v R [2026] NZCA 106
Successful appeal by M against sentence of three years 11 months' imprisonment imposed for 63 charges – S pleaded guilty to all charges including fraud (x42) – 36 month starting point adopted for fraud charges (lead offence), starting point underpinned by assumption M and co-offender equally culpable – Uplifts of 12 months' imprisonment for driving offending and 15 months' imprisonment for all other charges - Co-offender sentenced to home detention - Fraud offending related to Small Business Cashflow (Loan) Scheme (SBSC) and Wage Subsidy Scheme - Fraud co-offender sentenced to six weeks' home detention - Other uplifts for previous offending - Discounts for guilty plea, remorse and s27 Sentencing Act 2002 cultural report matters (alcohol and drug report, psychological report, willingness to engage in rehabilitation and effects of incarceration on his young child) -
Co-offender principal offender and beneficiary of fraud offending - However, M received a starting point of 36 months' imprisonment, whereas co-offender had starting point of 24 months' imprisonment - Disparity was significant and an adjustment needed to be made to M’s sentence to recognise that - M resentenced on basis starting point for fraud offending should have been 24 months' imprisonment - All other increases and deductions adopted – M’s end sentence two years 11 months' imprisonment – Appeal allowed.
Pham v R [2026] NZCA 109
Unsuccessful appeal by P against conviction for importation of methamphetamine – S detained by Customs with methamphetamine – P drove to hotel - Crown said that was to collect methamphetamine and pay S, and that must have been agreed prior to the importation, thus making him a party to the importation - P argued his only involvement was responding to request to go to hotel after importation was complete and was insufficient evidence to prove he had a role in facilitating importation at earlier stage - Search warrant executed at P’s address seized phones and cash - Analysis of phones recovered limited content due to encrypted applications - Images of white crystals and powder and S’s Arizona identification card located – Whether rational basis for jury to have rejected P’s defence inference he agreed to go and assist S only after importation completed -
Whether rational basis for excluding the defence inference P only participated following completion of importation and was unaware of reason for presence at hotel until after importation concluded - P, when interviewed by a Customs officer, explicitly rejected proposition he had visited hotel to give S money to book a room – P offered alternative, and implausible, explanations for his attempts to try and enter hotel over an approximately 20-minute period - P’s rejection of that proposition meant proper basis on which the jury could reject the defence inference - Judge’s use of the word “involvement” in summing up not in error - Judge was specific, making it clear P’s actions must have contributed to the importation and that those actions must have occurred before importation was completed – Appeal dismissed.
CCDM Holdings, LLC v Republic of India [2026] HCA 9 (8 April 2026)
Unsuccessful appeal from Full Court FCA – CCDM and others assignees of, and had been substituted as parties for, Mauritian investors who obtained arbitral award in Netherlands against Republic of India, (India) – Sought to have award recognised and enforced in Australia under Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention) –
Appeal focused on whether India's act of ratification of New York Convention amounted to waiver of foreign State immunity from jurisdiction for recognition and enforcement of foreign arbitral award to which India party – India raised numerous other issues including reservation to New York Convention that would apply Convention only to differences arising out of legal relationships considered as commercial under Indian law –
Primary judge in FCA concluded by act of ratification of New York Convention India waived foreign State immunity within ss 10(1) and 10(2) Foreign States Immunities Act 1985 (Cth), and submitted to jurisdiction of courts of any State party to New York Convention in proceedings for recognition and enforcement of foreign arbitral award to which India party –
Full Court said even on assumption India waived foreign State immunity, effect of India's reservation to New York Convention was content of obligations of other State parties, including those of Australia, correspondingly reduced so any waiver of foreign State immunity by India would extend only to differences arising out of legal relationships considered commercial under Indian law, and arbitral award did not fall within commercial category –
HC unanimously ruled New York Convention displayed neither clear nor unequivocal intention entry into Convention involved waiver of India's foreign State immunity – Rather, indications from text and context of New York Convention suggested State ratification not intended to constitute, in and of itself, waiver of foreign State immunity – Accordingly, India could not be said to have waived foreign State immunity simply by ratifying New York Convention – Appeal dismissed.
R v AR [2026] HCA 10 (8 April 2026)
Successful appeal from New South Wales CA – AR tried in New South Wales DC for committing seven sexual offences against complainant, GC – Charges arose from three separate occasions in 2020 when AR allegedly committed sexual offences against GC – At trial, Crown contended evidence supporting charges established tendency on AR’s part to have a sexual interest in GC and act on sexual interest by committing particular sexual act against her when she had fallen asleep beside AR while watching movie –
Trial judge directed jury in terms told jury that, if established, tendency could be used to consider whether more likely AR committed acts (tendency direction) – Tendency direction also invited jury, in determining whether Crown established tendency, to make findings regarding charged acts to lesser standard than criminal standard –
On appeal, CA ruled miscarriage of justice established because tendency direction likely to have "deflected [the jury's attention] from applying required standard of proof in respect of the offences charged” – Said formulating tendency in a manner that "replicated the detail of how the offences were allegedly committed" was "inconsistent with the nature of tendency evidence" and tendency direction "encourage[d], if not require[d], the jury to engage in ... impermissible circular reasoning" –
HC majority said formulation of alleged tendency and Crown's reliance on evidence of charged acts to establish alleged tendency not inconsistent with nature of tendency evidence – Said neither alleged tendency nor tendency direction encouraged or required jury to engage in impermissible circular reasoning and, in context of trial judge's summing up, no real risk jury's understanding of need for charges to be proved beyond reasonable doubt undermined – Appeal allowed.
Riddle v Ivari [2026] SCC 9 (10 April 2026)
Unsuccessful appeal from Quebec CA – In Quebec civil law, when person disappeared and not heard from again for seven years or more, court could declare person dead – Called declaratory judgment of death – Made possible to settle disappearance consequences, for example by opening person’s succession or ending marriage –
Judgment based on presumption person dead – Could be annulled if shown person still alive – Civil Code of Quebec set out rules applying where person declared dead reappeared – Referred to as “return” of person – Case here about what meant by return and evidence needed to establish return –
I originally from Iran – While residing in Quebec with spouse, R, purchased life insurance policy from Ivari – One morning, I told R had to go to Toronto for work – Left home but never came back – Police investigation revealed I had not gone to Toronto – Disappeared and not heard from again –
Eight years after I disappeared, R asked court to declare him dead – Ivari opposed, saying circumstances surrounding I’s disappearance indicated rather I had fled - Despite Ivari’s opposition, court issued declaratory judgment of death – CA paused case ruling no longer necessary to decide appeal from declaratory judgment of death – Ivari presented new evidence indicating I in Iran and still living there – Applied for annulment of declaratory judgment of death – Court allowed application, ruling I’s return established – CA upheld decision – R appealed to SC –
SC unanimously dismissed appeal – Said Civil Code contained no special rule concerning level of proof required to establish person’s return – In Quebec civil law, general rule proof on a balance of probabilities –
SC said not necessary to prove with certainty person alive – Enough if clear and convincing evidence supporting conclusion more probable than not person alive – Person’s physical presence best proof but not mandatory – Court could rely on other evidence, for example where circumstances indicated person disappeared voluntarily and continued to live elsewhere – In I’s case, several pieces of evidence indicated still alive and residing in Iran – Appeal dismissed.