New Zealand Law Society - Courts roundup 18 January - 24 January 2024

Courts roundup 18 January - 24 January 2024

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

Auckland High Court

New Zealand Court of Appeal

Compulsory care order, Validity, Intellectual disability, Violence - Login Required

[J] v Attorney-General [2023] NZCA 660  

Sexual offences, Aggravating features

Kay v R [2024] NZCA 1

Unsuccessful appeal against sentence of 6 years imprisonment for sexual offences against 2 minors – Appellant claimed conviction on 3 of the charges was unreasonable due to inconsistencies and improbability of evidence and physical difficulty involved in committing the offending – Appellant claimed several errors were made in assessing the aggravating features of the offending, which led to starting points that were too high and an end sentence that was manifestly excessive - Verdicts on appealed charges cannot be said to be so unreasonable that no jury, properly instructed, could have been satisfied of the appellant’s guilt beyond reasonable doubt – Sentence not manifestly excessive – No doubling counting – No error in identification of aggravating factors – HELD: Appeals against conviction and sentence dismissed.

High Court of Australia

Evidence, multiple accused, jury direction

Huxley v R [2023] HCA 40 (6 December 2023)

Unsuccessful appeal from Queensland CA on error of law – Alleged error arose from trial judge direction that jury could only act on certain witness’s evidence if satisfied beyond reasonable doubt that witness's evidence truthful, reliable and accurate –

H charged with McC’s murder of  – Charged with two co-accused, including R, charged with assault occasioning McC’s bodily harm – Crown case R assaulted McC – Witness G gave evidence about assault central to Crown case – Crown alleged McC taken from home unit – H later murdered him at another place –

Summing-up to jury, trial judge referred to G’s evidence and directed them "[i]n particular, consistent with the directions I will give you in relation to the case against Mr Rewha, as a matter of law, you should only act upon her evidence if you are satisfied beyond reasonable doubt that her evidence is truthful, reliable and accurate. If you are not satisfied beyond reasonable doubt that the evidence of Ms Greer is truthful, reliable and accurate, then you should disregard it."

In CA and HC, H said direction, while correct regarding case against R, limited using G’s evidence in his defence, specifically his argument McC could have died from assault in unit – Said to be satisfied of his innocence, jury only had to be convinced that theory reasonable possibility – Consequently, direction contrary to law –

HC majority said jury would have understood direction to apply to H’s defence – Said no wrong decision and no miscarriage of justice – Said summing up entirety showed impugned direction related only to using evidence in Crown case against R – Appeal dismissed.

Evidence, psychiatric developments since trial

Bromley v R [2023] HCA 42 (13 December 2023)

Unsuccessful leave application – On 16 September 2022, HC referred issue to enlarged HC bench on limited special leave questions of whether fresh psychiatric and psychological evidence "compelling" within s 353A(1) Criminal Law Consolidation Act 1935 (SA) (CLCA) and whether in interests of justice that evidence be considered on appeal – Section 353A(1) provided "Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal" –

On 14 March 1985, B and co-accused K, convicted of D’s murder and each sentenced to life imprisonment – CA dismissed both appeals against conviction – One ground of B’s appeal that verdict against him unsafe because conviction depended considerably upon C’s evidence – C had schizophrenia or schizoaffective disorder and was acutely unwell on time of murder – B’s application for special leave to appeal decision to HC also dismissed in 1986 –

In 2016, B applied to CA for permission to appeal conviction second time, this time under s 353A of CLCA – Application basis fresh psychiatric and psychological evidence concerning reliability of C’s evidence – Comprised expert evidence from psychiatrists and psychologists who had considered some, but not all, evidence in trial in context of developments since 1985 in field of cognitive and memory deficits in people with schizophrenia or schizoaffective disorder – CA said fresh evidence reliable and substantial, but not highly probative in context of issues in dispute at trial, as s 353A(1)  required – Evidence therefore not "compelling" and permission to appeal refused –

HC departed from usual practice of providing only concise summary for refusing special leave – Majority said evidence not compelling as not highly probative in context of relevant issue in dispute at trial – Application dismissed.

Vehicle sale, consumer law

Mitsubishi Motors Australia Ltd v Begovic [2023] HCA 43 (13 December 2023)

Successful appeal from Victoria CA – case arose from B’s purchasing Mitsubishi car – Vehicle had applied to its windscreen fuel consumption label complying with provisions of Motor Vehicle Standards Act 1989 (Cth) (MVS Act) and Vehicle Standard (Australian Design Rule 81/02 – Fuel Consumption Labelling for Light Vehicles) 2008 (Cth) (ADR 81/02) – B dissatisfied with vehicle's fuel consumption exceeding values on label and filed claim in Victorian Civil and Administrative Tribunal (VCAT) alleging M contravened s 18 Australian Consumer Law (ACL) as fuel consumption label misleading and deceptive –

B succeeded before VCAT – M appealed to Victoria SC on questions of law, including whether manufacturer required by law to apply label to vehicle, "the form and content of which are prescribed by law", could be found to have contravened s 18 ACL ("mandatory conduct ground") – Primary judge dismissed appeal on mandatory conduct ground – CA dismissed appeal from primary judge's decision saying MVS Act and ADR 81/02 did not require M to "offer such a vehicle for sale in the first place", still less "require that a vehicle be offered for sale in circumstances where the representation in the label is misleading or deceptive" – M appealed to HC on two grounds, including mandatory conduct ground –

HC unanimously ruled for M on mandatory conduct ground – Said in circumstances where M and suppliers bound to apply and to maintain fuel consumption label on B’s vehicle, label, form and content of dictated by ADR 81/02 –  did not, by that conduct, breach s 18 ACL – Unnecessary for Court to consider second ground of appeal – Appeal allowed.

Supreme Court of Canada

Evidence, personal anecdote in closing argument

R v BEM [203] SCC 32 (8 December 2023)

Unsuccessful appeal from Alberta CA – BEM convicted by jury of historical sexual assault and sexual interference offences against his stepdaughter between 1995 and 1997 when she was between 13 and 15 years old –

Only two witnesses at trial complainant and BEM, who denied offences – Complainant credibility key issue during trial – Prosecutor said despite some vagueness in memory, evidence fundamentally believable – In closing arguments, he offered personal anecdote about memory he had of sustaining head injuries after slipping in shower on camping trip when he was in grade two or three – Explained how experience could help demonstrate complainant’s evidence reliable: “My memory has been sort of shifted but fundamentally the truth of the experience – the core of the experience is persistent. Remains the same throughout. And I think that’s what’s happening here” – Trial judge did not address whether improper for Crown to provide personal experience about how memory worked –

BEM appealed conviction to Alberta CA – Majority dismissed appeal – Considered four factors to determine whether Crown’s comments rendered trial unfair: seriousness of improper comments; context in which they were made; whether defence counsel objected to them (they did not); and any remedial steps trial judge took after address or in instructions to jury – Said Crown’s anecdote in closing arguments improper – However, concluded there was no risk that resulted in trial unfairness – Anecdote “folksy” rather than disrespectful, exaggerated or inflammatory Judges said arguments on workings of human memory entirely appropriate and topic on which jury expected to apply its life experience –

BEM appealed to SC – SC said personal anecdotes had no place in closing arguments – Here CA correct that did not render trial unfair – Appeal dismissed.

Canadian Charter, substantive rights, proportionality

Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment) [2023] SCC 31 (8 December 2023)

Successful appeal from Northwest Territories CA – Case concerned whether refusal to admit children of non‑rights holder parents to French‑language schools in Northwest Territories gave due consideration to protections conferred by s 23 Canadian Charter of Rights and Freedoms –

Section 23 guaranteed certain categories of Canadian citizens right to instruction in minority official language – Provision purpose to prevent erosion of official language communities and to redress past injustices and promote development of these communities – “Rights holders” had constitutional right through their mother tongue or education – Canadian citizens of whom any child has received or is receiving primary or secondary school instruction in minority official language had right to have all their children receive instruction in that language – In 2016, Northwest Territories adopted ministerial directive on enrolment in French first language education programs that created categories of eligible non‑rights holder parents including “non‑citizen francophone” and “new immigrant” –

In Northwest Territories, two public schools offered French first language education programs – In 2018 and 2019, five non‑rights holder parents applied to Minister of Education, Culture and Employment for their children’s admission to French first language education program – In each case, Commission scolaire francophone des Territoires du Nord‑Ouest recommended admission because it would promote development of Francophone community of Northwest Territories – In spite of those recommendations, Minister denied each application – In her opinion, parents did not meet directive conditions – Also refused to exercise residual discretion to admit children –

Parents and Commission turned to Northwest Territories SC – Judge set aside Minister’s decisions and referred applications for admission back to her for reconsideration, chiefly because decisions did not reflect proportionate balancing of s 23 Charter protections – Minister appealed SC judgment to Northwest Territories CA – CA majority restored decisions – Said Minister not required to consider s 23 when exercising her discretion because parents not rights holders under provision – Parents and Commission appealed to SC –

SC allowed appeal – Said Minister’s decisions had significant impact on values enshrined in s 23 Charter, particularly preservation and development of minority language communities – Followed these values had always to be taken into account, even when there no direct infringement guaranteed by s 23 right –

Said Minister had not proportionately balanced these values with government’s interests – In exercising her discretion, Minister had attached too much importance to duty to make consistent decisions and to cost of contemplated services – Given remedial nature of s 23, pedagogical requirements had to have more weight – Minister’s decisions therefore unreasonable – CA orders set aside – Appeal allowed.

Police use of force, assault

R v Lindsay [2023] SCC 33 (14 December 2023)

Unsuccessful appeal from Alberta CA – Case about whether constable who used force during altercation with person under arrest could rely on defence under Criminal Code 1985 –

L constable with Calgary Police Service – In May 2015, arrested H for theft – Together with another constable, handcuffed and transported H to Calgary Court Services building in police vehicle for processing and appearance before JP –

Upon arrival, L removed H from vehicle – Briefly interacted, then became physical – Video surveillance showed L punching H in face and head three times, throwing him to pavement, then both constables holding H on ground – H suffered skull fracture and brain injury from head striking pavement – Died few months later from unrelated drug overdose –

L charged with aggravated assault – At trial, relied on s 25 Criminal Code in his defence – Section 25 protected officers from liability related to lawful use of force – Said force to try to control H – Said terrified H would spit blood or saliva toward him or other constable and either or both officers could contract serious infectious disease – Regarding putting H on ground, L said, by mistake, grabbed hoodie hood instead of collar – Slack between hood and collar prevented him from controlling descent, with H contacting pavement harder than intended –

Trial judge said L’s use of force excessive – Consequently s 25 did not protect him from criminal liability – Regarding actual offence, judge did not specifically address whether Crown had proven constable’s aggravated assault beyond reasonable doubt because, in his view, defence had conceded earlier in trial that offence elements present – 

CA majority agreed with trial judge – L appealed to SC – SC dismissed appeal.

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