New Zealand Law Society - Courts roundup 22 June - 28 June 2023

Courts roundup 22 June - 28 June 2023

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

Coat of arms

New Zealand Supreme Court

Discharge without conviction, gravity of offence

Bolea v R [2023] NZSC 72 (22 June 2023)

Successful leave application – Approved question is whether CA correct to dismiss appeal – CA had upheld HC decision, among other things, to not grant s 106 Sentencing Act 2002 discharge without conviction where gravity of offence outweighed immigration consequences.

Costs following counsel submissions 

Ryan v Health and Disability Commissioner [2023] NZSC 73 (26 June 2023)

Costs – Appeal judgment reserved costs and asked for submissions from counsel – SC accepted case finely balanced and decision would be of considerable interest to health profession – But appeals to SC Court usually of wider public and general importance and often complex and finely balanced – No reason to treat this appeal differently from most other appeals that come before this Court – R ordered to pay costs of $25,000 plus usual disbursements.

Self-represented litigant, time extension

Belsey v R [2023] NZSC 75 (26 June 2023)

Unsuccessful time extension, leave application – B applied for leave to appeal against CA dismissing appeal conviction for sexual violation by unlawful sexual connection – Convicted after DC jury trial and sentenced to three years four months imprisonment – Application four months out of time –

SC said nothing in material provided raised any matter of public importance – No risk of miscarriage of justice – Leave criteria not met – No point in granting time extension – Application dismissed.

New Zealand Court of Appeal

Sentence appeal

Wright v R [2023] NZCA 249

Unsuccessful appeal against sentence of 13 years imprisonment – Supplying methamphetamine (Class A drug) (x3 representative), possession of methamphetamine for supply, offering to supply methamphetamine – Judge concluded W had supplied a total of 2.4kg of methamphetamine over an 8.5 month period – Whether sentence manifestly excessive – Berkland v R distinguished – HELD: review of evidence supported quantity of methamphetamine supplied being 2.4kg (band 5 of Zhang v R) – Noteworthy that W was not beholden to anyone – W being “principal operator” consistent with the intercepted communications – 15 year starting point within range – Disputed facts hearing “doomed to failure” and no error in only 10 percent discount for guilty plea – Correlation between W losing his employment, his decision to sell methamphetamine, and his increased consumption of the drug, but correlation did not establish causation – No error in declining to give discount for addiction – Appeal dismissed.

Conviction appeal, visual identification evidence, separate charges - Login Required

[X] v R [2023] NZCA 254

Propensity evidence, historic sexual offending

W (CA 121-2023) v R [2023] NZCA 256

Unsuccessful appeal from ruling propensity evidence of W’s previous convictions admissible – W faced charges of historical sexual offending against his adoptive nephew between 1975 and 1979 when W aged between 17 and 21 years and victim aged between 7 and 11 years – W convicted in 2005, 2010, and 2022 for sexual offending against three young children between 2004 and 2014 – In the interests of justice to grant an extension of time to appeal and leave to appeal, given appeal related to admissibility of evidence significant to both parties and was at least arguable – Section 43 Evidence Act 2006 applied – Stark v R distinguished – HELD: despite some factual differences, there was a very substantial degree of similarity between the propensity evidence and the alleged offending – Propensity clearly relevant to likely key issue in dispute (whether the offending occurred) – Significant time gap and difference in W’s age diminished the probative value, but the evidence overall nonetheless had a high probative value and outweighed risk the evidence would have an unfairly prejudicial effect – Appeal dismissed.

Judicial Committee of the Privy Council

English common law and statute law, importing of

Hilaire v Chastanet [2023] UKPC 22 (13 June 2023)

Unsuccessful appeal from Eastern Caribbean CA (St Lucia) – H claim against C for defamation in Saint Lucia HC in March 2017 –

C filed defence in May 2017 – Substantially relied on UK Defamation Act 2013 (Act) which C said imported into Saint Lucia law under Article 917A Civil Code Cap 4:01 Revised Laws of Saint Lucia (Civil Code) –

C applied to strike out H’s claim saying disclosed no reasonable ground for bringing claim – H applied to strike out C’s defence saying disclosed no reasonable defence as defence predicated on Act which did not apply to Saint Lucia – Basis for objection Article 917A only imported English common law not English statute law –

Agreed Act importation should be heard as preliminary issue as would determine viability of each party’s pleadings –

Saint Lucia HC said Article 917A Civil Code did not import Act into Saint Lucian law – C appealed –

CA said Article 917A Civil Code allowed for importing both common law and statute law relating to contracts, quasi contracts and torts – Thus, Act was imported into Saint Lucian law –

J appealed to PC – PC said, among other things, words “the law of England” in natural meaning sufficiently wide to include both common law and Acts of Parliament in force in England – No sound reason why words should be given limited interpretation – Wider reading, which would include English statute law, supported by judicial authority and by academic writing – Appeal dismissed.

United Kingdom Supreme Court 

European Convention on Human Rights, right to life

R (on application of Maguire) v His Majesty’s Senior Coroner for Blackpool & Fylde and anor [2023] UKSC 20 (21 June 2023)

Unsuccessful appeal from CA – Concerned conduct of inquest into J’s death and impact of Article 2 European Convention on Human Rights (Convention), concerning right to life –

J had Down's Syndrome – Lived in care home for adults requiring round-the-clock supervision – To ensure could be kept at home under proper supervision, subject to standard authorisation for deprivation of liberty under Mental Capacity Act 2005 – In weeks before death, J suffered symptoms including stomach pains and collapsing – On 21 February 2017, suffered fits and care home staff called ambulance – When ambulance arrived J refused to go to hospital – Ambulance paramedics assessed her condition – Obtained advice from out-of-hours GP who advised that, while desirable J should attend hospital, condition not so serious should override wishes and force J to go –

Next morning, J’s condition worsened and collapsed again – Another ambulance called and admitted to hospital – Shortly after admission suffered fatal cardiac arrest – Post-mortem recorded death cause as pneumonia and perforated gastric ulcer leading to peritonitis –

Coroner opened inquest into J's death on 3 August 2017 – Specific question in Court proceedings whether, in circumstances surrounding J's death, Article 2 Convention meant Coroner required to direct inquest jury to return "expanded verdict" under s 5(2) Coroners and Justice Act 2009 – Expanded verdict would go beyond standard inquest verdict – Coroner directed jury to give standard verdict – J's mother sought judicial review challenging Coroner's determination – HC dismissed claim – CA dismissed appeal – She appealed to SC –

SC unanimously dismissed appeal – SC set out obligations Article 2 imposed – Apart from prohibiting certain conduct, Article 2 imposed positive obligation on contracting states to take "appropriate steps to safeguard the lives of those within their jurisdiction" – SC said two types of substantive positive obligations: obligation to have appropriate legal regimes and administrative systems in place to provide general protection for lives of citizens and persons in its territory (systems duty) and obligation to take operational steps to protect specific person or persons when on notice they were subject to risk to life of particularly clear and pressing kind (operational duty) –

Said Article 2 also imposed certain procedural positive obligations regarding investigation of and calling state authorities to account for potential breaches of substantive positive obligations – Precise content of those obligations varied according to context – Applying principles here, SC said no Article 2 breaches – Appeal dismissed.