New Zealand Law Society - Courts roundup 2 November - 8 November 2023

Courts roundup 2 November - 8 November 2023

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

Supreme Court roof

New Zealand Supreme Court

Intoxication direction, right to silence

Singh v R [2023] NZSC 141 (27 October 2023)

Unsuccessful leave application – Following jury trial, S found guilty of wounding with intent to cause grievous bodily harm – Appealed against conviction to CA, saying trial Judge gave jury incomplete intoxication direction and prosecution breached s 32 Evidence Act 2006, dealing with right to silence – CA dismissed appeal – S sought leave to appeal to SC saying CA erred in approach to these two issues –

SC said nothing raised gave rise to question of general or public importance or appearance of miscarriage of justice – Application dismissed.

Nuisance, “measured” duty, obligations under

Young v Attorney-General [2023] NZSC 142 (30 October 2023)

Unsuccessful appeal – Concerned extent to which landowner liable for private nuisance for naturally occurring hazard arising on owner’s land harming or posing risks to neighbour’s property –

Y owned land beneath cliffs damaged by Canterbury earthquakes – Cliffs sat across boundaries between Y’s land and clifftop properties above – Earthquakes damaged cliffs leading to rockfall on Y’s land – After earthquakes, cliffs remained unstable and at risk of further collapse onto Y’s property – Neighbouring clifftop properties treated as within red zone – Crown acquired properties between 2012 and 2015 – Ongoing cliff instability meant Y’s land unsafe – Property also red zoned and Crown made series of red zone offers to buy property – Offers rejected and Y instead brought proceedings against Crown in nuisance –

HC dismissed Y’s claim – Said rockfall risk actionable nuisance – Crown had “measured” duty to do what was reasonable to prevent or minimise risk – Said Crown’s red zone offer meant Crown did all needed to meet duty – Consequently, no obligation to compensate Y fully for loss – Y unsuccessfully appealed to CA – CA agreed with HC red zone offer met measured duty –

SC unanimously dismissed Y’s appeal – When relevant matters considered, Court saw case as one where nothing further required of Crown than to warn Y about risks and assist with access to property – Crown did both – Met measured duty – No Crown obligation to compensate Y in manner sought –

Context underlay SC view red zone offer not related to measured duty – Making offer not required of private landowner – Nevertheless, Court said red zone offer remained open for Y to accept – Appeal dismissed.

Suppression order

F (SC 90/2023) v R [2023] NZSC 143 (30 October 2023)

Partly successful leave application – Approved question whether CA erred in declining suppression order sought under s 205(2)(c) Criminal Procedure Act 2011 – Leave application otherwise dismissed – Order prohibiting publication of F’s name, address, occupation and identifying particulars and information to which s 205(2)(c) application related until final resolution of SC appeal – Application partly successful.

Corrections, Bill of Rights

A (SC 72/2023) v Attorney-General [2023] NZSC 144 (1 November 2023)

Unsuccessful leave application – A applied for leave to appeal against CA judgment dismissing appeal from HC judgment against A-G claim –

A was a serving prisoner when another prisoner assaulted him – Assault lasted for up to five minutes before Corrections staff intervened –

In HC A claimed exemplary damages for negligence and compensation for breaches of rights under ss 9 and/or 23(5) New Zealand Bill of Rights Act 1990 (Bill of Rights) – Only claim under s 23(5) relevant to SC application – Section 23(5) provided for person deprived of liberty right to be treated with humanity and respect for inherent dignity – A claimed Corrections’ failure to keep him safe from C breached s 23(5) –

SC accepted scope of s 23(5) matter of public importance – Said already addressed in prison context in previous case – No reason to revisit here – Reasonably clear on facts incident happened because Corrections officer made honest, non-systemic mistake incapable of offending against s 23(5) – Insufficient prospects of success to justify leave grant – Application dismissed.

Self-represented litigants, fee waiver

Re de Meyer [2023] NZSC 145 (1 November 2023)

Unsuccessful application to review Registrar decision – Self-represented De M and S sought leave to review Registrar’s decision not to waive filing fee – SC Judge said applicants’ issues entirely fact specific – No broader implications beyond parties themselves and did not raise any novel legal principles – Application declined.

Further evidence, application to adduce further evidence

Cridge v Studorp Ltd [2023] NZSC 147 (2 November 2023)

Successful leave application – C and U appealed CA ruling on adducing further evidence – Any application to be filed on or before 20 working days after CA judgment on substantive appeal – Application allowed.

Evidence, admissibility

L (SC 80/2023) v R [2023] NZSC 146 (3 November 2023)

Successful leave application – Leave granted in general terms, but argument should focus on applicability of s 16(2)(b) Evidence Act 2006 – Application allowed.

Victims’ compensation, limitation

Van Silfhout v Pathirannehelage [2023] NZSC 148 (6 November 2023)

Successful appeal from CA – P victim of VS’s offending in 2010 – In January 2020 Department of Corrections agreed to pay VS $12,000 compensation for alleged privacy breach – Prisoners’ and Victims’ Claims Act 2005 (PVCA) enabled victims to make claims against compensation awarded to offenders – Relying PVCA, on 2 April 2020 P lodged claim with Victims’ Special Claims Tribunal for $10,000 compensation for emotional harm arising from offending –

Because claim some years after offending, necessary to consider whether claim time-barred – Required assessing meaning of s 64(1) PVCA said relevant limitation period, which set six-year deadline for bringing claim, “cease[s] to run while the offender is serving a sentence of imprisonment in a penal institution, prison, or service prison” – As VS had spent time remanded in custody before sentencing, issue whether pre-sentence detention period counted as “serving a sentence of imprisonment” –

VS appealed against Tribunal decision, first to HC then CA, for broadly similar reasons – Both concluded time spent in pre-sentence detention counted so limitation period suspended – Meant P’s claim not time-barred and could proceed –

SC unanimously allowed VS’s appeal, saying P’s claim time-barred – Tribunal award of $5,000 set aside – SC departed from CA approach which treated Parole Act 2002 regime, particularly s 90, as part and parcel of relevant PVCA provisions – Said several reasons why wrong to have treated Parole Act regime as applicable – SC said would be awkward consequences under either interpretation – However, most to draw from anomalies was they served only to highlight tensions apparent in legislation scheme – Appeal allowed.

New Zealand Court of Appeal

Sexual offending, admissibility, propensity evidence - Login Required

E (CA 325-2023) v R [2023] NZCA 530 

Breach of contract, negligence

Kerry Logistics (Oceania) Ltd v Vienna Group Ltd (in liq) [2023] NZCA 536 

Successful appeal against HC dismissal of applications for summary judgment or, alternatively, an order striking out on claim of damages for breach of contract and negligence – Issue of the application of the limitation period applying to the claim – Issue of the interpretation of contractual exclusion clauses both generally and in relation to the provisions of the parties’ contract – HELD: Appeal allowed – Claim was filed outside the limitation period – Exclusion provisions of contract excluded appellant’s liability for the damages claimed – Summary judgment for the appellant.

Habeas corpus, three applications, legality of detention - Login Required

[C] v Chief Executive of the Department of Corrections [2023] NZCA 538

Unauthorised electrical work

Johnston v Electrical Workers Registration Board [2023] NZCA 541

Unsuccessful application for leave to bring second appeal against sentence and order of reparation – Appellant pled guilty to charge of doing unauthorised electrical work – Sentenced to fine of $1000 and $5,719 in reparation – Appellant seeking to appeal portion of reparation ordered for rental accommodation under both limbs of s253(3) Criminal Procedure Act 2011 – HELD: Proposed appeal did not raise any issue of general or public importance and there did not appear to have been a miscarriage of justice – Appeal declined.

Aggravated robbery, identification, verdict unreasonable

Fusitua v R [2023] NZCA 544

Successful appeal against conviction for aggravated robbery – Appellant appealed conviction on the grounds the verdict was unreasonable because it was irreconcilable with the not guilty verdict of his alleged co-offender – To a reasonably significant extent, the cases of the appellant and co-accused did stand and fall together – Difficulties with identification evidence related to appellant – HELD: Misgivings about the safety of the conviction and hence the risk of a miscarriage of justice – Appeal allowed – Conviction quashed – No retrial ordered.

Sexual offending, admissibility of statements - Login Required

[L-R] v R [2023] NZCA 545 

Admissibility of evidence

Watson v R [2023] NZCA 552

Unsuccessful challenge by the Crown of the admissibility of reports from two forensic scientists filed in support of the appellant’s appeal – Challenge based upon Crown’s concern that the reports were not relevant, fresh, or cogent and that the interests of justice did not require the Court to consider the reports – Threshold for admissibility of evidence – Admissibility of expert opinion evidence – Whether the overall interests of justice trumped issues of freshness – Difficult to assess cogency of evidence – HELD: Application to exclude evidence declined – Appellant to file and serve an affidavit that complied with R12B Court of Appeal (Criminal) Rules 2001.

New Zealand High Court

Judicial review, exclusion from Royal Commission

Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd v Royal Commission of Inquiry Into Historical Abuse in State Care and In the Care of Faith-based Institutions [2023] NZHC 3031 (31 October 2023) Ellis J

Unsuccessful judicial review application – Application to exclude Jehovah's Witnesses (JW) from Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions (Commission) –

HC said, among other things, would rarely be appropriate for Court to limit Commission’s work before release of any report (or draft report) – Few decided cases about scope, rather than exercise, of Commission powers – Few “scope” cases that did exist not concerned with “nice interpretive issues”, but rather with issues of principle – Prospect of “judicialising” Commissions’ work risked conflating inquisitorial process with an adversarial one – Both latitude and restraint required – Application dismissed.

Judicial review, wage subsidy fraud

The Gama Foundation v Chief Executive Ministry of Social Development [2023] NZHC 3098 (3 November 2023) McQueen J

Unsuccessful judicial review application – GF alleged MSD unlawfully managed certain aspects of wage subsidy scheme – Sought to establish MSD's approach to prosecuting wage subsidy fraud unlawful – Attorney-General appeared in opposition –

HC said MSD did not have unwritten practice not to prosecute certain classes of wage subsidy recipients – Said MSD not operating under error of law regarding interpreting relevant Crimes Act 1961 provisions, nor was Court satisfied MSD had unlawfully fettered discretion – Application dismissed.

High Court of Australia

Residential tenancy, no back door, compensation

Young v Chief Executive Officer (Housing) [2023] HCA 31 (1 November 2023)

Successful appeal from Northern Territory CA – Appeal concerned whether Northern Territory Civil and Administrative Tribunal (Tribunal) under s 122(1) Residential Tenancies Act 1999 (NT) (Act) could order landlord compensate tenant for distress or disappointment suffered through landlord's failure, breaching tenancy agreement, to take reasonable steps to provide and maintain security devices necessary to ensure premises reasonably secure –

Y tenant of residential premises some 85 kilometres from Alice Springs – Corporation sole established under Housing Act 1982 (NT), (Corporation) landlord – Operative tenancy agreement standard form agreement Act prescribed – As s 49(1) prescribed, agreement provided that "[t]he landlord will take reasonable steps to provide and maintain the locks and other security devices that are necessary to ensure the premises and ancillary property are reasonably secure" –

For 68 months, premises had no back door – Y applied to Tribunal for order under s 122(1) that Corporation compensate her for loss or damage claimed suffered because of Corporation non-compliance with tenancy agreement – Application included claim to be compensated for loss or damage for distress and disappointment due to insecurity felt because of Corporation’s failure to provide back door –

Tribunal said door not "a security device" within s 49(1) – Dismissed compensation application – On appeal on question of law, Northern Territory SC set aside compensation decision and substituted order Corporation pay Y $10,200 compensation – On further appeal, CA set aside lower court order – Said s 122(1) imported remoteness principles limiting damages for breach of contract at common law – Said principles excluded compensation for distress or disappointment for breach of tenancy agreement term other than in consequence of physical inconvenience –

HC majority said CA erred regarding importing common law principles – Statutory compensation under s 122 rather alternative, and likely more accessible, remedy to common law damages for tenancy agreement breach – Connection between landlord's breach and distress and disappointment Y suffered readily satisfied causal connection required by term "because" in s 122(1) – Unnecessary to consider whether Y’s distress and disappointment would have been compensable in action for damages at common law – Appeal allowed.

Permanent stay decision, review standard, limitation, child abuse

GLJ v Trustees of The Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (1 November 2023)

Successful appeal from New South Wales CA – Concerned two issues: (1) appropriate standard for appellate review of court order permanently staying proceedings; and (2) whether circumstances here so exceptional so as to justify permanent stay –

In January 2020 GLJ commenced proceedings in New South Wales SC against trustees for damages for personal injury resulting from child sexual abuse alleged to have been perpetrated against her in 1968 when 14 years old – Alleged perpetrator priest incardinated in Lismore Diocese – Trustees were trustees of body corporate responsible for Diocese, which GLJ said breached duty and vicariously liable for priest’s alleged abuse – Although proceedings commenced 52 years after alleged child sexual abuse, sub-ss 6A(1) and (2) Limitation Act 1969 (NSW) said claims of this nature might be brought at any time and not subject to any limitation period –

Before primary judge, trustees sought orders that proceedings be permanently stayed on grounds: Diocese did not receive complaint regarding GLC’s allegations until 2019 and virtually all senior people who could have provided instructions or given evidence had died, including priest – Said could not be fair trial –

Primary judge refused to stay proceedings as: (1) fair trial need not be perfect trial; (2) child sexual abuse, of its nature, occurred in private and eyewitness evidence rarely available; (3) trustee’ submissions indicated Diocese could contradict GLJ’s claims with documentary evidence; and, (4) amending Limitation Act to include s 6A, Parliament determined that such claims should be permitted to proceed despite effluxion of time and impoverishment of evidence, provided fair trial could be had –

CA proceeded on basis that primary judge's decision not to stay proceedings discretionary and, identifying error in judge’s reasoning, re-exercised power to permanently stay proceedings and granted stay –

HC majority said decision to grant permanent stay involved questions whether trial would be necessarily unfair or so unfairly and unjustifiably oppressive to constitute abuse of process – Each question admitting one right answer – Accordingly, decision not discretionary and applicable review standard "correctness standard" – HC majority said alleged abuse of process must be evaluated in legal context inserting s 6A created – Jurisdiction to grant permanent stay measure of last resort – Granting permanent stay to prevent abuse of process involved decision that permitting matter going to trial and rendering verdict would be irreconcilable with administration of justice through adversarial system – Appeal allowed.

Constitutional law, Minister’s exclusive judicial function of punishing criminal guilt

Benbrika v Minister for Home Affairs [2023] HCA 33 (1 November 2023)

Question for Full Court, HC: Whether s 36D Australian Citizenship Act 2007 (Cth) invalid because reposed in Minister for Home Affairs exclusively judicial function of punishing criminal guilt – HC said invalid as contrary to Ch III Constitution –

B Algerian citizen – Arrived in Australia in 1989 and became Australian citizen in 1998 – In 2008, convicted and sentenced to term of imprisonment exceeding 3 years for offences under Pt 5.3 of Criminal Code (terrorism) – Following sentence expiry in November 2020, Minister determined in writing under s 36D(1) that B ceased to be Australian citizen – Through s 35(3) Migration Act 1958 (Cth) B granted ex-citizen visa on purported cessation of Australian citizenship –

Minister and Commonwealth accepted s 36D properly characterised as punitive in accordance with previous case where s 36B ruled invalid as purporting to give Minister exclusively judicial function of adjudging and punishing criminal guilt, contrary to Ch III of Constitution and other legal principle – Section 36B purported to authorise Minister to determine in writing that person ceased to be Australian citizen if Minister satisfied person engaged in specified conduct –

Here HC said power s 36D purportedly conferred on Minister indistinguishable from and had same purpose as s 36B purportedly conferred on Minister – Section 36D invalid because purported to repose in Minister exclusively judicial function of punishing criminal guilt, contrary to Ch III Constitution – HC said, contrary to Minister’s argument, Ch III made punishing criminal conduct exclusively judicial even if punishment separated from adjudication of that criminal guilt – HC issued declaration s 3D invalid and ruled B Australian citizen.

Supreme Court of Canada 

Mandatory minimum sentence, Canadian Charter

R v Bertrand Marchand [2023] SCC 26 (3 November 2023)

Partly successful appeal from Quebec CA – Section 172.1(1) Criminal Code set out offence of child luring – Offence committed when adult used telecommunication to target child, or person believed to be child, for purposes of committing another offence against that child, such as sexual exploitation, sexual assault, incest and child pornography – Hybrid offence, meaning Crown prosecutor could choose to proceed by indictment or summary conviction – Mandatory minimum sentence for child luring one year’s imprisonment if offender guilty on indictment and six months’ imprisonment if offender guilty on summary conviction –

In first case, BM pleaded guilty to one count of sexual interference and one count of child luring – Met victim in person in 2013 when he was 22 and she was 13 – For following two years, in contact on social media, met in person and had illegal sexual intercourse four separate times – At sentencing stage BM challenged one-year mandatory minimum period of incarceration for persons found guilty of indictable offence of child luring, claiming it was inconsistent with s 12 Canadian Charter of Rights and Freedoms, which protected against cruel and unusual punishment – Judge agreed saying one-year mandatory minimum sentence grossly disproportionate to five months’ incarceration she imposed for luring to be served at same time as sentence for sexual interference – CA majority upheld both sentence and conclusion mandatory minimum sentence unconstitutional – On appeal to SC, Crown asked SC to substitute BM’s five-month sentence with 12 months’ imprisonment – Also asked Court to find one-year mandatory minimum constitutional –

In unrelated case, HV with name under publication ban protecting victim, pleaded guilty to one count of child luring after sending sexual text messages to victim over period of 10 days in 2017 – Challenged six-month mandatory minimum incarceration sentence for child luring punishable on summary conviction, saying violated s 12 Charter – Judge agreed and instead imposed sentence of two years’ probation and 150 hours of community service – On appeal, Superior Court varied sentence to four months’ imprisonment and agreed that while mandatory minimum sentence not grossly disproportionate to HV’s sentence, it would be when applied to other reasonably foreseeable scenarios – CA upheld decision – On appeal to SC Crown did not challenge HV’s sentence, but asked SC to find six-month mandatory minimum constitutional –

SC majority partly allowed Crown’s appeal in BM’s case and dismissed its appeal in HV’s case – Agreed with courts below in both cases mandatory minimum sentences inconsistent with s 12 Charter – Invalidating mandatory minimums did not mean child luring less serious offence – In some cases, appropriate penalty would be imprisonment for period equal to or longer than in unconstitutional mandatory minimum sentences – That said, mandatory periods of incarceration applied to such exceptionally wide scope of conduct that result grossly disproportionate punishments in reasonably foreseeable scenarios – Both appeals dismissed on this issue – 

SC allowed Crown’s appeal on length of BM’s sentence – Said first judge minimised harm caused to victim by failing to recognise grooming that occurred and underestimated BM’s actions, resulting in minimising wrongfulness and distinct harms of luring offence – Sentence increased from five months to one year’s imprisonment to be served after rather than at same time as sentence for sexual interference – Appeal partly allowed.