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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Wheeler v R  NZSC 129 (10 November 2022)
Unsuccessful time extension application – W pleaded guilty to murder following sentencing indication – Sentenced to life imprisonment with 10 years MPI – Sentencing Judge rejected argument that life imprisonment would be manifestly unjust – Court did not accept submission that 10 year MPI would be longer than necessary because W’s personal mitigating circumstances (including drug abuse and mental health issues) would usually result in various discounts and, as 10 year MPI would be unjust, life sentence could not be just – W applied for leave to appeal directly to SC from HC decision –
SC said W proposed to reprise HC argument – Not shown exceptional circumstances to warrant direct appeal – Given conclusion application did not meet leave criteria, no utility granting time extension – Application dismissed.
Memelink v Collins & May Law  NZSC 130 (10 November 2022)
Unsuccessful time extension application – SC did not accept that delay bringing application adequately explained – Even if it were, did not see any proper basis on which leave to appeal could be granted, applying criteria in s 74 Senior Courts Act 2016 – Application declined.
Johnson v The King  NZCA 531
Successful appeal against conviction for sexual offending - Crown conceded that trial counsel’s closing address to the jury was so deficient that it deprived Johnson of his right to fairly present his defence - Johnson was found guilty of historical sexual offending against two young complainants - He was aged 74 and in poor health – Significant delay in filing appeal - Johnson’s trial counsel commenced his address by stating he would be brief in putting the defence case, implying there was little that could be said in Johnson’s defence - Counsel then reinforced issues of sympathy and prejudice in a manner that would not have assisted Johnson - A miscarriage of justice includes any error, irregularity, or occurrence in the trial that had resulted in an unfair trial - Wholly deficient closing address to the jury by defence counsel would qualify as such an error – HELD - The deficiencies in trial counsel’s closing address went well beyond matters of style within the prerogative of counsel - The errors and omissions were fundamental and gross – The closing address was so deficient that it undermined Johnson’s right to have his defence properly and fairly put before the jury – That resulted in an unfair trial and a miscarriage of justice – The appeal was allowed – A retrial was ordered.
Energy Beverages LLC v Frucor Suntory New Zealand Limited  NZCA 536
Unsuccessful appeal by Energy Beverages against a decision declining its application to have a trade mark removed by the Assistant Commissioner of Trade Marks - Frucor was the owner of a registered trade mark for the colour green (Pantone 376C), it was applied as the “predominant colour” on the packaging or labels for its V energy drinks - However, the shade of green reproduced on the register by IPONZ was not Pantone 376C - Energy Beverages manufactured a rival energy drink, “Mother”, and sought removal of Frucor’s trade mark from the register of trade marks - its applications for a declaration that the registration was invalid and revocation of the registration on the ground of non-use were declined by the Assistant Commissioner of Trade Marks. EBL’s appeal in the High Court was dismissed – HELD: The time bar in s75 Trade Marks Act 2002 did not prevent an invalidity challenge on the ground that Frucor’s registration comprised a sign which was not a “trade mark pursuant to s18(1)(a) – As s18 was not expressly included in the list of exceptions to the application of s75, the passage of over seven years since the deemed date of registration meant that the registration of Frucor’s trade mark was deemed valid – However, if the challenge under s18(1)(a) had not been time-barred the Court would have been prepared to hear argument on the invalidity issue - The use of the phrase “predominant colour” in the written description of Frucor’s trade mark meant that what was registered lacked the clarity and precision required to be capable of being represented graphically, and therefore was not a “trade mark” as defined in s5(1) – However, the difference between the shade of green reproduced on the register and the written description referring to Pantone 376C did not mean the registration was ambiguous and too imprecise.
Chapman v The King  NZCA 548
Unsuccessful application by Chapman for leave to appeal a decision permitting the Crown to lead his 2009 conviction for wounding with intent to injure as propensity evidence at his forthcoming trial on similar charges – HELD: A single incident can be admissible propensity evidence if it is distinctive enough - The 2009 offending was sufficiently distinctive, or unusual, that it tended to show Chapman’s propensity to conceal a knife on his person and, in the event of a dispute, to use it to stab his antagonist quickly and without provocation or warning – That was not a common propensity – There were similarities between the 2009 offending and the current allegations - The differences were not material - When considering the probative value of propensity evidence to the issues in a current case, it was the similarities which were in focus, not the differences - The probative value of evidence of a propensity arising from a single incident can be attenuated by the passage of time – However, Chapman was in prison for much of the 12 year gap so his opportunities to display his propensity were constrained – The appeal was dismissed.
Del Corro v The King  NZCA 546
Successful appeal by Del Corro against a District Court ruling admitting as evidence his evidential video interview (EVI) – The principal ground of appeal was that although the District Court correctly identified impropriety in the way in which the EVI had been obtained, it incorrectly assessed the level thereof and so erred in its conclusion that exclusion of the evidence would not be a proportionate response – Del Corro faced one charge of consensual sexual connection with a young person under 16 years – Del Corro made certain admissions in the EVI - The interview lasted for approximately 90 minutes - At its commencement he was told that he had been detained in relation to a complaint but he was not told the nature of the charge which he potentially faced - Approximately 70 minutes into the interview, the detective informed Del Corro that the complainant was 14 – Del Corro then admitted he had not taken active steps to ascertain the complainant’s age – The District Court held there was a breach, at least in spirit, of cl 4 Chief Justice’s Practice Note but concluded that exclusion of the EVI would be disproportionate to the police impropriety – HELD: At the point of interview, the suspect should be told in straightforward terms the real substance of the allegations against them – Del Corro had not, at the point the interview commenced, understand that he faced an allegation of underage sex – There was a clear breach of the Practice Note – The fact that Del Corro thought he faced a more serious allegation did not substantially mitigate the seriousness of the breaches of s23 New Zealand Bill of Rights Act 1990 and cl 4 of the Practice Note - The conduct was causative of the breach - Mischaracterisation of the evidence added a further layer of unfairness to the interview - The alleged offending was serious - Exclusion of the evidence need not be fatal, at least on an amended charge of attempted sexual connection – Exclusion of the evidence was proportionate to the impropriety – The appeal was allowed – The Crown may not adduce the statement.
Tuna v Te Uruwera Trust Board and ors  NZHC 2924 (8 November 2022) Woolford J
Successful application for interim orders – Without notice application pending on-notice application for interim order – T sought to prevent Board from burning huts in Te Urewera – Alleged respondents did not follow Te Urewera Act 2014, particularly by not preparing annual operational plan, and did not consult with hapu or wider public – HC said on interim basis, claim appeared not to lack merit – Interim order necessary to preserve T’s position, and would not cause great inconvenience to respondents – Application granted.
Moana’s Mother v Smith and ors  NZHC 2934 (9 November 2022) Cull J
Unsuccessful appeal against Family Court decision about placing Māori child, M, with non-Māori couple, S – M’s mother asked her child be placed with Māori family, T – Appeal raised issues about how tikanga Māori and Treaty principles incorporated into Oranga Tamariki Act 1989 (Act) through 2019 amendments – Also challenged characterisation of psychological evidence, rejection of social worker evidence and issues relating to bias and recusal –
Appeal dismissed on all grounds – Overarching and paramount consideration under Act was well-being and best interests of child – Sections 5 and 13 principles then guide holistic assessment, which Judge undertook – HC said each case to be determined on its facts – Appeal dismissed.
Awad v R; Tambakakis v R  HCA 36 (9 November 2022)
Successful appeal from Victoria CA – Following joint trial, A and T convicted of attempting to possess commercial quantity of cocaine – A did not give evidence, instead relying significantly on T’s evidence that A did not get in van used to move consignment – Core of T’s evidence that he thought consignment contained steroid tablets – Sole issue in dispute at trial reduced to whether A and T believed consignment contained border-controlled drug, received, had physical possession of, or had control or joint control of consignment – Consequently, T’s credibility at heart of both A and T’s trials –
Trial judge directed jury: "there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis’ evidence. Firstly, in a criminal trial, there is nothing more [that] an innocent [person] can do than give evidence in his own defence and subject himself to cross-examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis' evidence" – Section 44J of Jury Directions Act 2015 (Vic) prohibited this direction –
CA unanimously rejected submission that contravening s 44J such fundamental error that, without more, would always result in substantial miscarriage of justice – Majority said no substantial miscarriage of justice here because charge to jury as a whole meant prohibited direction would not have distracted jury –
HC majority said substantial miscarriage of justice and ordered new trial for both A and T – Said while not every s 44J breach would result in substantial miscarriage of justice, here direction left jury with choice to approach T’s evidence assuming he was guilty, circumstances where credibility central to both his and A’s defence – Appeal allowed.
Peace River Hydro Partners v Petro West Corp  SCC 41 (10 November 2022)
Unsuccessful appeal from British Columbia CA – PRH partnership of several businesses formed to build hydroelectric dam in British Columbia – In 2015 subcontracted some work to Alberta-based Petrowest – Contracts contained agreements two parties would settle any disputes through arbitration – Not long after, Petrowest found itself in financial difficulty – Alberta court appointed Ernst & Young Petrowest receiver –
Receiver sued PRH in British Columbia, seeking to collect on money it said was owed to Petrowest – PRH said dispute should be settled by arbitration, as outlined in contract with Petrowest – Section 15(1) British Columbia Arbitration Act said if one party to arbitration agreement begins legal action, other party can ask court to stop lawsuit – Section 15(2) said court had to stop legal proceedings unless arbitration agreement void, inoperative or incapable of being performed – Appeal dismissed.