New Zealand Law Society - Courts roundup 9 March - 15 March 2023
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Taia v Auckland Standards Committee 5 an anor [2023] NZSC 16
Unsuccessful leave application – T, solicitor, guilty of six charges of misconduct, two of unsatisfactory conduct, by New Zealand Lawyers and Conveyancers Disciplinary Tribunal in 2017, 2020 and 2022 respectively – Penalties imposed included supervision, censure, suspension, fines and, finally, order that he be struck off –
In July 2022 appeal notice filed in HC against all three decisions – On 23 August 2022 HC declined adjournment application and directed filing of applications to appeal 2017 and 2020 decisions out of time and any application for waiver of security for costs by 20 September 2022 – Directions not complied with – Various interlocutories ensued leading to appeal being dismissed –
T sought to appeal directly to SC against unless order dismissing appeal and decision declining costs – Alleged various procedural deficiencies, said HC process unjust and inconsistent with tikanga, including T’s hauora and role of hui with whānau –
SC said application raised potential issues jurisdiction in light of s 254(4) Lawyers and Conveyancers Act 2006, which said CA decision on appeal from HC final – Even if was jurisdiction for SC to consider leapfrog appeal, here leave could not be granted unless proposed appeals satisfied leave criteria in s 74 Senior Courts Act 2016 met exceptional circumstances test set out in s 75(1) – Neither proposed capable of meeting s 75 requirement – Application dismissed.
D (SC 115/2022) v JDN [2023] NZSC 17 (10 March 2023)
Unsuccessful recall application – Self-represented D applied to recall SC leave decision – Leave application refused as points she wished to raise were entirely factual and no matter of general or public importance arose – Nor did anything raised by Ms D indicate there was any risk of miscarriage of justice –
SC said general rule that judgment, once delivered, stood for better or worse, subject to appeal – Decision to recall judgment only made in exceptional circumstances – Application declined.
D (SC 5/2023) v N [2023] NZSC 18 (10 March 2023)
Unsuccessful leave application – Self-represented D sought leave to appeal directly from HC to SC – SC said proposed appeal did not meet “exceptional circumstances” threshold necessary to justify appeal directly from HC – In any event, s 74 Senior Courts Act 2016 leave criteria not met – Application declined.
Gorringe v Pointon [2023] NZCA 42
Successful appeal from decision finding undue influence not exercised over J in relation to two Wills – J had two children, PE and JU – Appellants were PE’s two children – PE died unexpectedly on 10 Nov 2015 – 19 Nov 2015 J executed the 2015 Will – 2016 Will executed four months later – J died Oct 2019 aged 101 years – Undue influence approach in Carey v Norton followed – Provision of independent advice one of many factors that might be taken into account in determining whether undue influence proved – HELD: where’s J’s statements were volunteered, they could not be dismissed as “off-hand” – Probable inference that J’s account was truthful – Particular evidence adduced sustained the allegation that the 2015 Will was the result of undue influence by JU – Course of making the 2016 Will was unsatisfactory in almost every respect – Cumulatively, the evidence satisfied that the circumstances raised an inference in favour of allegation of undue influence – Appeal allowed – 2015 and 2016 Wills invalid on the ground that procured by undue influence.
Tu v R [2023] NZCA 53
Unsuccessful appeal against sentence of life imprisonment with minimum period of imprisonment (MPI) of 12 years – Murder – Appeal on the ground that T’s mental disorders, including his autism spectrum disorder (ASD), made the presumption of life imprisonment manifestly unjust – HELD: High Court squarely and carefully addressed whether life imprisonment would be manifestly unjust because of T’s mental health disorders – Clinical consensus that T was affected by his mental health disorders at the time of offending fairly considered – T knew what he was doing was wrong and still chose to kill, so his mental health did not absolve him of culpability – Risk to others relevant to sentencing – T’s mental health, including his ASD, insufficient to displace presumption of life imprisonment – MPI consistent with relevant case law and appropriate – Appeal dismissed.
Te Whānau a Kai Trust v Gisborne District Council [2023] NZCA 55
Unsuccessful application for leave to appeal on a question of law under the Resource Management Act 1991 (RMA) – Decision by Council to adopt the Gisborne Regional Freshwater Plan – Applicant Trust seeking to obtain formal recognition of the iwi’s claim to a tikanga-based proprietary right in freshwater in the Tairāwhiti (Gisborne) region – HELD: focus of the RMA was on the management of natural and physical resources, not the underlying ownership of such resources – Nothing directly supporting submission that Environment Court had jurisdiction to determine and/or recognise the underlying ownership of natural and physical resources – Noted findings only in relation to the Environment Court’s jurisdiction under the RMA, and not the underlying merits of the claim to proprietary rights in freshwater resources – No arguable error of law of general or public importance – Application for leave to appeal declined.
Cooper v Pinney [2023] NZCA 62
Unsuccessful appeals from a Family Court decision ascertaining relationship and separate property of the parties’ relationship – Trust established during the relationship to hold assets distributed to M by the trustees of his parents’ trust – Judge’s decision to classify M’s powers as relationship property brought into account the farm on which the parties lived and worked throughout their relationship – Beneficial “ownership” of “property” under the Property (Relationships) Act 1976 (PRA) – Illusory trusts and general powers of appointment – HELD: the Trust was a valid Trust – None of the dispositive powers conferred under the Trust deed were held by M alone (requirement there must be at least two trustees at all times acting unanimously) – Not accepted that M held a general power of appointment constituting a “right or interest” and therefore property for the purposes of the PRA (majority decision) – Appeals dismissed.
R v Gear [2023] NZHC 432 (8 March 2023) Palmer J
Sentencing – G pleaded guilty to (a) possession of methamphetamine for supply (b) conspiracy to manufacture methamphetamine and (c) unlawful possession of firearm – Sentenced to home detention, rather than imprisonment, because of impressive efforts at rehabilitation from 25-year drug addiction – Efforts could continue in home detention but prison counterproductive for them.
R v G [2023] NZHC 434 (8 March 2023) Edwards J
Sentencing – G pleaded guilty to one charge of threaten to kill, two charges of distributing objectionable publications, and six charges of possessing objectionable publications – G became radicalised towards extreme ISIS views – Stored 600 videos and documents on computer, 360 related to ISIS – Included extremely violent videos and instructions on how to make explosives – Exchanged messages with undercover police officer, believing officer ISIS sympathiser – Sent article to officer which included step by-step guide to creating explosive device and said Muslims justified in killing non-believers – Also sent violent video – G told officer wanted to commit terrorist attack – Took steps towards carrying out attack, including preparing attack kit, scouting out possible locations – Also created videos in which swore allegiance to ISIS and prepared to commit terror attack in New Zealand –
HC said high volume of violent material in G’s possession and connection to terrorist organisation increased seriousness of offending – Starting point four and a half years' imprisonment – One-year uplift for threatens to kill – Total starting point five and a half years' imprisonment – 35 per cent discount for personal circumstances, including hardship and vulnerability – G engaged with programmes in prison – Positive future goals – 10 per cent discount for rehabilitation and reintegration prospects – Additional 10 per cent for guilty plea – Total discounts 55 per cent – End sentence two years, five months' imprisonment.
R v J [2023] NZHC 458 (9 March 2023) Palmer J
Sentencing – HC satisfied J committed acts that were offence elements – Labouring under mental disease as to render incapable of understanding nature and quality of acts or knowing morally wrong – Not criminally responsible because of insanity (s 23 Crimes Act 1961) – Detained in hospital as special patient under s 24(2).
R v Downes [2023] SCC 6 (10 March 2023)
Successful appeal from British Columbia CA – D found guilty in 2019 of voyeurism – Secretly took 38 photos of two boys aged between 12 and 14 in their underwear in hockey dressing rooms – D boys’ hockey coach – Also ran sports photography business from his home – On his return from trip to USA, Canada Border Services Agency searched D’s electronic devices and found thousands of photos of children engaged in sporting activities, some in locker rooms – Although none of the photos involved nudity or child pornography, CBSA alerted RCMP because of concern that D might have child pornography on his home computer – While searching D’s home and devices, RCMP found photos of the two boys taken on D’s iPhone without their knowledge – D charged with two counts of voyeurism –
Under s 162(1)(a) Criminal Code, person guilty of voyeurism when they secretly observe or visually record person in circumstances in which person could reasonably expect privacy – Might arise in place where it could reasonably be expected that people might be nude –
Trial judge ruled D secretly took boys’ photos and convicted him of voyeurism – CA majority allowed D’s appeal, set aside convictions, and ordered new trial – Majority said trial judge should have considered whether nudity was reasonably expected “at the time” D took photos – In their view, offence of voyeurism applied to perpetrators who expected to observe or record nudity or sexual activity –
SC unanimously allowed Crown appeal and restored D’s convictions – Said s 162(1)(a) had no implicit temporal component – Crown did not have to prove person could reasonably be expected to be nude in dressing rooms at specific time when photos were taken – Sufficed if person in place where might “reasonably be expected to be in such a state [of undress], such as a changing room, toilet, shower stall, or bedroom” – Trial judge rightly convicted – Appeal allowed.
R (on Application of Day) v Shropshire Council [2023] UKSC 8 (1 March 2023)
Successful appeal from CA – D challenged Shropshire Council (Council) grant of planning permission to CSE Development (Shropshire) Limited (CSE) – For many years Town Council (Shrewsbury TC) owned relevant land – In October 2017, Shrewsbury TC sold land which was subject to statutory trust in favour of public to CSE – At time Shrewsbury TC did not realise land subject to statutory trust and so did not comply with necessary consultation procedure under s 123(2A) of Local Government Act 1972 (LGA 1972) – CSE then applied for planning permission to build houses on land and Council, relevant planning authority, granted permission –
Local resident opposed development – Brought judicial review proceedings challenging planning permission grant – Said Shrewsbury TC did not comply with statutory requirements – Meant public trust continued to bind land CSE owned –
HC dismissed D's application – Said even if public's rights under statutory trust had survived sale, those rights unenforceable against CSE – CA dismissed D's appeal for different reasons – Said statutory trust extinguished on land sale – D appealed to SC –
SC unanimously allowed appeal – Considered provision history and said s 128(2) did not extinguish public rights – Rights only extinguished if local authority complied with bespoke consultation requirements set out in s 123 – If Council correct that as soon as land came into private ownership, trust extinguished, would be easy to get around restrictions and conditions attached to sale of statutory trust land – Appeal allowed.