New Zealand Law Society - Courts roundup 1 December - 7 December 2022

Courts roundup 1 December - 7 December 2022

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

Coat of arms

New Zealand Supreme Court

Self-represented litigant, driving while disqualified, wilful damage

Terry v Police [2022] NZSC 137 (30 November 2022)

Unsuccessful leave application – T convicted in DC of two charges of driving while disqualified and one charge of wilful damage by using a rock to damage police car – HC dismissed appeal against conviction and sentence - Sought leave to appeal against CA judgment dismissing his application to bring second appeal –

SC said had no jurisdiction – In any event, would not meet leave criteria – Application dismissed.

Freedom of speech, NZBORA

Moncrief-Spittle and anor v Regional Facilities Auckland Ltd and anor [2022] NZSC 138 (5 December 2022)

Unsuccessful appeal from CA - In June 2018, Australian promoter hired venue from Regional Facilities Auckland Ltd (RFAL) for two speakers, Stefan Molyneux and Lauren Southern, “alt-right” commentators - Details about event, including venue publicised - For similar events involving these two speakers in Australia, venue details not publicised until day before event for security reasons –

RFAL received complaints about event and became aware of planned protests and blockades -Because of concerns about health and safety risks, RFAL cancelled venue hire contract –

M-S and C sought judicial review on two grounds - First ground RFAL acted irrationally, perversely and arbitrarily - Secondly, RFAL failed to act consistently with rights guaranteed under New Zealand Bill of Rights Act 1990 (NZBORA), including s 14 right to freedom of expression –

HC dismissed application – Said RFAL’s decision to cancel contract not amenable to judicial review and NZBORA did not apply - CA said decision amenable to judicial review and NZBORA applied - Appeal dismissed - Cancellation decision reasonable both in administrative law and NZBORA terms –

SC unanimously dismissed appeal – Regarding NZBORA claim, said RFAL came within s 3(b) NZBORA - Among other matters, RFAL effectively stood in Auckland Council’s shoes, providing service  intended for community social well-being so there was governmental aspect to function - As NZBORA applied, RFAL obliged to protect rights in it - Particularly relevant s 14 right to freedom of expression, including freedom to receive information – Said RFAL could only lawfully cancel contract if Court satisfied cancellation reasonable limit on freedom of expression in terms of s 5 NZBORA - Extent of reasonable limits legal question –

SC agreed with CA - Cancellation reasonable given health and safety issues –

SC said RFAL’s decision to cancel amenable to judicial review as had necessary substantial public interest component identified in earlier cases – SC agreed with M-S and C that RFAL required to give freedom of expression heavy weighting and limits on ability to restrict freedom of expression to manage third party disruptive activities - SC accepted process RFAL followed not ideal, but did not lead to unreasonable result - Moreover, evidence RFAL considered freedom of expression – Appeal dismissed.

New Zealand Court of Appeal

Sentence appeal - drug dealing - gang involvement - relevance of roles

Glassie v R [2022] NZCA 556

Successful appeals by Glassie and Duff against their sentences of 7 years and 15 years imprisonment imposed for their roles in a substantial drug dealing operation - President and Vice President of the Central Chapter of the Rebels Outlaw Motorcycle Gang – Large scale commercial dealing – HELD: Starting points were appropriate - Role mattered a great deal – It  may sometimes result in a starting point matching or exceeding that of subordinates who physically handled substantially larger quantities of methamphetamine – Duff was entitled to a greater allowance for his demonstrated rehabilitative efforts and potential - Rehabilitative efforts and potential may justify significant discounts – He was also entitled to a discount of 40 percent for restrictive bail terms – Duff’s  sentence was quashed and substituted with a sentence of 14 years, 2 months imprisonment - Glassie’s  sentence was quashed and substituted with a sentence of 6 years, 2 months imprisonment.

Equity - undue influence in a sale agreement – father and son – separate legal advice

Hingston v Hingston [2022] NZCA 568

Successful appeal by David Hingston against decision which held transactions concerning the sale and occupation of his father Keith’s house, and the transfer of his assets to David’s  trust was a result of David ’s undue influence – HELD: The house was sold to David’s Trust at an undervalue, however, that reflected the distressed state of the market at the time, the saving of sales costs,  Keith’s determination to remain in the house and the fact Keith needed to obtain cash in order to satisfy his obligations to his ex-wife – It was also significant that Keith’s legal adviser was aware that the sale was at an undervalue but had not appeared to take any issue with that - There was no suggestion Keith was not fully competent at the time the transaction was concluded - There was evidence Keith Had  understood the consequences of the transaction and exercised his independent will to press ahead anyway – The appeal was allowed.

Sentence appeal – manslaughter – provocation – personal factors

Hohua v R [2022] NZCA 550

Successful appeal by Hohua against his sentence of 6 years 3 months imprisonment with a minimum period of imprisonment (MPI) of 3 years imposed for manslaughter - The victim died of a single stab wound inflicted during an altercation at the end of an evening of drinking – Hohua suffered from post-traumatic stress disorder resulting from childhood physical and sexual abuse – HELD: Offending fell within the middle of Band 2 of Taueki - While the conduct of the victim is a matter that may be taken into account, an allowance would give rise to a modest discount on the starting point – The 6 month deduction for provocation was appropriate – The consequences of Hohua’s PTSD was that his need to ensure his personal safety was seriously threatened by the victim’s refusal to leave and his aggressive goading – A discount of 25 percent would have been appropriate - The appeal against sentence was allowed – A sentence of 5 years 3 months imprisonment was substituted.

Sentence appeal - carrying on a business fraudulently - forged document

Huirua v R [2022] NZCA 537

Unsuccessful appeal by Huirua against a sentence of 2 years and 11 months imprisonment imposed for charges of using a forged document (x6) and carrying on a business fraudulently - Huirua was the  director of  a company heading the iwi’s investment arm which invested funds received from a Treaty of Waitangi settlement – Set-up 2 companies with similar names to legislative investment funds to mislead iwi members – Over $2 million lost – If Huirua had  conducted his investment activities properly and in a transparent way, the loss trajectory might have been identified earlier - While there may have been authority to make direct investments, that had not authorised setting up and operating deliberately deceptive companies - The discounts given for the mitigating factors were appropriate - the appeal was dismissed. 

New Zealand High Court

Discharge application, obtaining by deception, political party donations

R v Zhang and ors [2022] NZHC 3168 (30 November 2022) Gault J

Application for discharge and sentencing -  Followed guilty verdicts in Judge-alone trial – Zhang, one charge of obtaining by deception regarding political donation to National Party in June 2018 - Colin Zheng, two charges of obtaining by deception regarding political donations to National Party in June 2017 and June 2018 - Joe Zheng, one charge of obtaining by deception regarding political donation to National Party in June 2018 and one charge of providing false or misleading information to the SFO.

Zhang sought discharge without conviction – HC said: (1) Offending moderate in seriousness; (2) Insufficient evidence regarding impacts on Zhang's standing in community and ability to travel to United States - Consequence of conviction rather than offending; impact on standing also ordinary consequence; and (3) consequences not out of all proportion to offending - application declined -

Zhang: starting point - 15 months' imprisonment; no aggravating personal factors warranting uplift; 25 percent discount for personal mitigating factors; end sentence 4 months' community detention (daily curfew from 10:00 pm to 6:00 am) and 200 hours' community work -

Colin Zheng: starting point- 21 months' imprisonment; no aggravating personal factors warranting uplift; 20 percent discount for personal mitigating factors; end sentence 5 months' community detention (daily curfew from 10:00 pm to 6:00 am) and 250 hours community work -

Joe Zheng: starting point - 12 months' imprisonment (8 months' for obtaining by deception offending and 4 months for misleading SFO); no aggravating personal factors warranting uplift; 15 percent discount for personal mitigating factors; end sentence - 2 months' community detention (daily curfew from 10:00 pm to 6:00 am) and 100 hours community work for obtaining by deception, and 1 month's community detention (daily curfew from 10:00 pm to 6:00 am) and 50 hours community work for providing misleading information to SFO - to be served cumulatively.

Self-represented litigant, judicial review

Valent v Department of Corrections [2022] NZHC 3194 (1 December 2022) Duffy J

Unsuccessful judicial review application – Self-represented V, remand prisoner, questioned Department of Corrections haircutting facilities in Prisoners of Extreme Risk Unit –

Application dismissed - Although haircutting engaged rights under international law, New Zealand Bill of Rights Act 1990, Corrections Act 2004, Corrections Regulations 2005, Department offered V bespoke solution – Also, no evidence that facilities provided would undermine V’s dignity – Hair "proper care" to be interpreted objectively, not on applicant’s subjective views (although cultural and religious factors relevant) – Application dismissed.

Self-represented litigant, public law damages

Taylor and Attorney-General [2022] NZHC  3170 (5 December 2022) Isac J

Partly successful public law damages application - Well-known prisoner rights advocate, T, brought proceedings against Department of Corrections alleging wide-ranging mistreatment between June 2011 and March 2018 while he was a prisoner at Auckland and Waikeria prisons - T sought public law damages totalling $1.45 million –

T succeeded in some of his claims – However, success very limited – HC also said critical aspects of T’s case exaggerated or simply untrue – Declarations regarding several breaches of NZ Bill of Rights Act 1990 - $18,000 damages – Application partly allowed.

Human Rights Act, declaration of inconsistency

Hoban v Attorney-General [2022] NZHC 3235 (December 2022) Cooke J, Keefe, Ashworth

Unsuccessful appeal from Human Rights Review Tribunal (Tribunal) - H homosexual man – Concerned newspaper published report of sermon church pastor delivered words in the nature of "hate speech" directed towards homosexuals - Applied to Tribunal for declaration that s 61 Human Rights Act 1993, which prohibited hate speech on race ground, inconsistent with s 19 New Zealand Bill of Rights Act 1990 (NZBORA)  for failing to cover hate speech based on sexual orientation - Tribunal agreed s 61 discriminatory but said fell within s 19(2) and also demonstrably justifiable limit under s 5 NZBORA  - Application dismissed. 

On appeal HC agreed with Tribunal that s 61 had apparent discriminatory effect - Disagreed regarding s 61 being protected measure – However, HC upheld Tribunal finding limit demonstrably justified – Said s 61 enacted as targeted measure to give effect to New Zealand's international obligations regarding racial discrimination - Justified to introduce targeted measures to address particular aspects of discrimination without those measures themselves being discriminatory - Appeal dismissed.

Supreme Court of Canada

Family law, intercountry custody issues, jurisdiction

F v N [2022] SCC 51 (2 December 2022)

Unsuccessful appeal from Ontario CA – Two children resident in Ontario - Parents married in 2012 in Pakistan then moved to Dubai, United Arab Emirates (UAE) where father worked - Both Pakistani citizens but mother also Canadian citizen - Daughter born in 2016 and son in 2019 - Mother always primary caregiver and residency in Dubai depended on father - In June 2020, mother travelled to Ontario with children to visit her family - Father agreed to trip but remained in Dubai - A few weeks later, mother told father she would not be returning to Dubai with children –

Father began legal proceedings in Ontario for children to return to Dubai - Invoked Ontario’s Children’s Law Reform Act (CLRA), which could apply in cases of international child abduction - Mother said she would not return to Dubai - Asked Ontario court to decide  children’s custody rather than UAE court –

Mother claimed children would suffer serious harm if they returned to Dubai and staying with her in Ontario in their best interests - Before hearing, father offered to settle dispute - Promised to ensure mother’s independent residency status in Dubai by buying property in her name - Also agreed to allow children to reside there primarily with her –

Under CLRA, Ontario courts typically did not exercise jurisdiction on custody issues when children wrongfully taken from home in another country and ended up in province - However, exceptional circumstances when Ontario court could act - Under s 23 CLRA court could act when children physically present in Ontario and court convinced would suffer serious harm if removed –

Ontario court declined jurisdiction - Judge not convinced children would suffer serious harm if returned to Dubai – Said mother wrongfully kept children in Ontario and they should be returned to UAE with or without her - Gave parties opportunity to make further submissions on whether to include father’s settlement proposal in judge’s order - Mother made no submissions on this and settlement offer not included - Mother unsuccessfully appealed order to Ontario CA - She then appealed to SC -

SC majority dismissed appeal – Said general rule in Canadian family law was best interests of children measured from children’s perspective and are paramount consideration for all decisions concerning them - While separating young children from their primary caregiver could certainly cause them psychological harm, would not always rise to level of “serious harm” required under CLRA - Said trial judge made no reviewable error in deciding that level not met - UAE court should resolve children’s custody -

While majority found no reason to interfere with trial judge’s assessment, said father should be bound by initial settlement offer if mother decided to return to Dubai -

Here legal question focused only on jurisdiction - Case not “comprehensive comparison of the child’s life in the two jurisdictions”, nor a “broad-based best interests test” as conducted on merits of custody application – Appeal dismissed.

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