New Zealand Law Society - Courts roundup 27 July - 2 August 2023

Courts roundup 27 July - 2 August 2023

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

Supreme Court NZLS 2013 06 10 3

New Zealand Supreme Court

Self-represented litigant, strikeout banking relationship

Dunstan v Bank of New Zealand and anor [2023] NZSC 89 (26 July 2023)

Unsuccessful leave application – Self-represented D sought leave to appeal against HC decision striking out her claim against bank – Sent document said to be promissory note to bank, in which promised to pay bank amount owing on home loan by certain customers – Customers not parties to proceedings – D not loan guarantor – Was, as associate judge said, “stranger to the debtor/creditor relationship” between bank and customers –

D claimed promissory note effective to meet customers’ indebtedness to Bank – Sought summary judgment in HC – Bank applied for strike-out or summary judgment – Associate Judge struck proceedings out and in separate judgment awarded $25,632.75 costs and disbursements of $970.89 – Included 50 per cent uplift on 2B costs –

SC said per s 74 of Senior Courts Act 2016 SC must not give leave unless satisfied in interests of justice to hear and determine appeal – Here also, proposed appeal direct appeal from HC meaning s 75 also applied – Meant “interests of justice” test to be met and must be “exceptional circumstances that justify taking the proposed appeal directly to [SC]” –

SC said HC applied orthodox strikeout principles – Neither s 74 nor s 75 criteria met – Application dismissed.

Fee waiver

Nottingham and anor v Attorney-General [2023] NZSC 90 (27 July 2023)

Successful fee waiver application – Self-represented N and D applied for leave to appeal from CA to SC – Also applied for fee waiver which deputy registrar refused – SC Judge reviewed information provided regarding income – Concluded sufficient basis to grant both fee waiver under reg 5(3)(b)(iii) Supreme Court (Fees) Regulations – Applications allowed.

Fee waiver

Re Dai [2023] NZSC 91 (27 July 2023)

Unsuccessful fee waiver application – Self-represented D applied for leave to appeal from CA to SC – Also applied for fee waiver which deputy registrar refused – SC Judge also refused – Filed new application claiming circumstances changed and she wanted to apply again – Deputy registrar declined to consider new application –

D sought review of ruling on new application, contending application contained additional public interest grounds – SC Judge said questionable whether any right of review existed – But not necessary to decide whether did, because clearly beyond argument that deputy registrar correct – No change of circumstances – Rather, D re-arguing point already rejected – Application dismissed.

Time extension, self-represented litigant

Dunstan v Attorney-General [2023] NZSC 92

Unsuccessful time extension application – Self-represented D applied to directly appeal HC decision striking out proceedings she brought against Ministry of Social Development Benefits Review Committee – Time extension also required approval –

SC said HC decision based on particular case circumstances – No question of general or public importance – No appearance of miscarriage of justice – Applications dismissed.

Photographic evidence, admissibility

Tamiefuna v R [2023] NZSC 93 (28 July 2023)

Successful leave application – Approved question whether CA correct to dismiss appeal – SC expected appeal would focus on two questions: (a) whether CA correct to rule photographic evidence improperly obtained s 30 of Evidence Act purposes; and (b) whether CA correct to admit evidence under s 30 – Application allowed.

Sealed judgments, “erroneous” decisions

D (SC 53/2023) v N (SC 53/2023) and ors [2023] NZSC 94 (28 July 2023)

Unsuccessful leave application – Self-represented D applied to challenge CA decision relating to sealed judgments and aspects of underlying judgments – Proposed appeal would cover range of matters said to have resulted in erroneous decisions and, on D’s case, raising questions of general and public importance – SC said leave criteria not met – Issues related to particular case circumstances – To extent D wanted to challenge previous judgment SC had already declined leave – Application dismissed.

New Zealand Court of Appeal

Sentence – Violent Offending - Culpability

R v Taia [2023] NZCA 330

Unsuccessful appeal by Taia against a sentence of 5 years imprisonment for charges of injuring with intent to injure,  robbery,  threatening to kill, assault with intent to rob, and two charges of kidnapping – A starting point of 6 years was adopted – The aggravating features were identified as: the use of a substantial amount of actual and threatened violence, the use of weapons, and the significant amount of harm inflicted on the victim  - Discounts were given for factors canvassed in a s27 cultural report relating to Taia’s personal background and remorse – A 6 month adjustment was applied for totality – Whether the sentence was manifestly excessive – HELD: The Judge’s assessment of Taia’s involvement was reasonably available to him and supported by the evidence - The starting point adopted by the Judge was within range - The Judge had not erred in viewing Taia’s offending as being at a different level to that of his co-offenders and no parity concerns arose - The Judge was entitled to conclude that Taia’s offending was uninfluenced by any methamphetamine dependence, and to the extent that Taia’s reliance on methamphetamine was a relevant consideration, it was reflected in the discount he was afforded for personal mitigating factors – The discounts given were appropriate – The appeal was dismissed.

Sentence – Aggravated Robbery – Ranges

Te Ao v R [2023] NZCA 327

Unsuccessful appeals by Te Ao and Parata against their respective sentences of 2 years and 4 months imprisonment and 2 years and 2 months imprisonment for aggravated robbery (x2) - Te Ao submitted his sentence was manifestly excessive because the month reduction for the time spent on bail was insufficient to compensate for the restrictions he was under - Parata submitted his sentence was manifestly excessive because the 4 months reduction for time he spent on electronically monitored (EM) bail was insufficient to compensate him for the restrictions he was under – The guideline judgment R v Mako  [2000] 2 NZLR 170 was applied – The starting point for both offenders was 4 years and 6 months imprisonment – Both  received discounts for youth, personal factors, guilty plea, time on bail – Te Ao received an uplift as the offending occurred when he was on bail – Parata received an uplift for previous convictions – HELD: Both appeals missed the point of an appeal against sentence – It was the end sentence which must be shown to be manifestly excessive -  The end sentence was the Court’s focus - Where one component of a sentence was criticised, the Court’s inquiry, if the criticism was found justified, would be whether the end sentence was nevertheless within the range available to the sentencing Judge - Determining a sentence was not a mathematical exercise, it was a judicial evaluation - Different judges could quite properly weigh factors relevant to a sentence differently – A sentence might lie in a range from lenient to stern and be unimpeachable – For a sentence to be manifestly excessive it must be beyond the upper end of the range available to the sentencing Judge – The starting point was within range – The  discounts given were appropriate, even if slightly higher discounts were warranted for some factors, it would not make the end sentences manifestly excessive – The appeals were dismissed.  

Sentence – Strangulation - Cultural Factors

Hopa v R [2023] NZCA 320

Unsuccessful appeal by Hopa against his sentence of 2 years and 4 months imprisonment for strangulation, breach of a protection order and male assaults female – The victim was his former partner – During an altercation Hopa pushed the complainant into a bedroom and assaulted her, punching her in the face and head multiple times - At some point during the assault she was strangled – The Judge adopted a starting point of 2 years and 6 months imprisonment for the strangulation charge - He uplifted that by 8 months for the charges of male assaults female and breach of the protection order - There was a further uplift of 4 months because Hopa was on bail at the time - Discounts were given for cultural deprivation, efforts at rehabilitation and time spent on electronically monitored bail – HELD: The end sentence was not manifestly excessive - The starting point adopted was available - The offending was serious, the complainant sustained significant injuries - It was open to the Judge to find that the strangulation lasted for some time and that the harm caused to the complainant was enduring - The uplift for breach of a protection order and male assaults female was available – The appeal was dismissed.

Sentence – Sexual Offending – Children – Login Required

Faletau v R [2023] NZCA 331

Sentence – Methamphetamine - Cultural Factors – Login Required

Zagros v R [2023] NZCA 334 

Sentence – Methamphetamine – Role - Forfeiture

Duthie v R [2023] NZCA 312

Successful appeal by Duthie against his  sentence of 4 years and 9 months imprisonment for manufacturing methamphetamine, possession of methamphetamine for the purpose of supply and possession of equipment capable of being used in the manufacture of methamphetamine - Guilty plea entered - Duthie had been subject to an earlier forfeiture order in which he was required to forfeit half of his equity in his property (valued at $325,000) – The Judge adopted a combined starting point of 10 years imprisonment - Discounts were given for guilty pleas, cultural factors and  to reflect an instrument forfeiture order - HELD: The starting point of 10 years imprisonment was not outside the range available to the Judge, although it was on the upper end - Nor was there an error in uplifting the 9 year starting point by 1 year to reflect the other charges the 20 percent discount for Duthie’s guilty pleas was appropriate, and arguably generous. As he had pleaded guilty at a very late point in circumstances where the evidence on the lead offending was strong - There was a causal connection between Duthie’s background and his offending - His addiction to controlled drugs helped explain him being drawn into a commercial drug dealing environment - However, having regard to comparable authorities, and the fact that  Duthie was a recidivist drug offender, the 15 percent discount for his  background and addiction was considered appropriate - The discount of 25 percent provided for the forfeiture was too low, a 35 percent discount was appropriate - The property was Duthie’s only major asset, had been legitimately purchased, was primarily used as his residence and there was nothing to suggest that it had been used for offending repeatedly or over time - There was no evidence Duthie had used any financial gain from his offending to acquire additional equity in the property - The value of the property was many times greater than the value he was shown to have obtained from the offending – It would be difficult for Duthie to re-establish himself upon release from prison given his age and that fact the property was his only asset -  the forfeiture order was acting as a real penalty and went some way to meeting the sentencing principles of personal and general deterrence - The original sentence was quashed and substituted with a sentence of 3 years and 9  months imprisonment.

Sentence – Methamphetamine – Role - Parity

Kim v R [2023] NZCA 332

Unsuccessful appeal by Kim against a sentence of 10 years and 10 months imprisonment with a minimum period imprisonment (MPI) of 4 years and 4 months imposed for charges of possessing methamphetamine and MDMA for sale and  possession of cocaine – Sophisticated and highly commercialised large-scale drug syndicate – Kims’s role was categorised as “towards the lower end of the significant category”, the intermediate category falling between the “lesser” and “leading” roles for commercial methamphetamine - By reference to the guideline judgment of Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648, the sentencing of  Kim’s co-offenders,  and other sentencing decisions, the Judge took a starting point of 14 years imprisonment for the methamphetamine offending – An uplift of 18 months imprisonment was applied for the MDMA charge and possession of cocaine – Discounts were given for guilty pleas, remorse, prior good character and matters relating to his rehabilitation – Because of the need for additional denouncement and to deter others who may engage in similar offending, Kim was ordered to serve at least 40 percent of his sentence – HELD: The amount of methamphetamine placed him well within Band 5 of the offending described in Zhang – Kim’s role, when assessed in accordance with the further analysis undertaken in Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509, the final placement of Kim at the lower end of the significant category, rather than as an offender carrying out a lesser role could not be faulted – He had operational responsibilities, despite not exercising managerial functions - The starting point adopted for the methamphetamine offending was not excessive - There was not a necessary link between his cocaine addiction and hardships with the role he  played - There was no disparity with his co-offenders given the respective circumstances of their offending the MPI was available in the circumstances – The appeal was dismissed.

New Zealand High Court

Sentencing, manslaughter

R v Chen [2023] NZHC 1947 (25 July 2023) Venning J

Sentencing – Jury found C guilty of manslaughter – Limited degree of provocation – 5 years imprisonment.

Commercial property sale, purchase price balance, Fair Trading Act, breach of warranties, mitigation

Premier Property Developments Ltd v OHL Ltd [2023] NZHC 1962 (27 July 2023) Jagose J

Successful claim for balance of property price – Premier Property Developments Limited (Premier) sought to recover $692,000 balance of $3.500 million purchase price withheld by OHL Limited (OHL) on its October 2018 acquisition of Premier’s property at 1/2 Kitchener Street in Auckland’s central business district – OHL counterclaimed for damages under Fair Trading Act 1986 and for breach of warranties in respect of Premier’s representations as to property’s tenancies and plant – Premier said any loss OHL suffered resulted from contributory negligence and failure to mitigate –

Sale completed on standard form REINZ/ADLS Agreement for Sale and Purchase of Real Estate (9th ed (7), 2012) – OHL said Premier engaged in misleading and deceptive conduct in representations of property's description as fully tenanted and about annual rent return, given one tenant subject to rent reduction, had paid only one-third of rent due and eventually altogether stopped payment before sale –

HC agreed representations misleading and deceptive but purchaser not in fact misled or deceived and purchaser could not prove they were effective cause of any loss or damage –

Purchaser further argued breach of contractual warranties alleging: misdescription of property under cl 6.4, failure to disclose notice by tenant of leaking air-conditioner under cl 7.1(1), breaching cl 7.2(1) for warranting air-conditioning and ventilation plant was in reasonable working order, and breaching cl 7.1(2) for failing to disclose consent to tenant's reduced rent or rent waiver – HC found only breach of cl 7.1(2)'s guarantee, and likely cl 6.4 collaterally, although purchaser could not recover as had unreasonably failed to mitigate its loss by refusing vendor's offer to underwrite tenant's rent – Vendor entitled to recover balance and interest.

Supreme Court of Canada

Amicus curiae in criminal cases

R v Khasai [2023] SCC 20 (28 July 2023)

Unsuccessful appeal from Alberta CA – Proper role of amicus curiae in criminal cases – Two amici appointed at different times in K’s trial – Jury convicted K of murdering two women in Calgary in 2015 – K did not hire lawyer to represent him at trial – Insisted on representing himself for entire proceedings – First amicus appointed before trial to help K with jury selection – At trial, K repeatedly disruptive – Did not question witnesses or present defence – Partway through trial, judge decided to name second amicus to cross-examine Crown witnesses and ensure proceedings fair and appropriate – Judge clear that amicus would not act as K’s defence lawyer, to respect K’s right to represent himself – Despite lawyer’s limited mandate, K resisted appointment and mostly refused to cooperate with lawyer throughout proceedings –

At trial end, judge cut K’s closing argument short because K not saying anything relevant to his defence – Judge did not ask amicus to make closing arguments for K – Amicus did not ask permission to do because thought role scope prevented him from arguing for defence –

K appealed convictions to Alberta CA – Said trial judge’s failure to appoint amicus earlier in trial and with more adversarial role created appearance of unfairness, which justified new trial – Two of three judges dismissed appeal – Said appointing amicus with adversarial functions would have violated K’s right to represent himself – Third judge disagreed saying imposing lawyer on K when case complex and accused incompetent to self-represent did not infringe right to control their own defence – Rather, preserved right to fair trial – K appealed to SC –

SC unanimously dismissed appeal – Said trial appeared fair to reasonable observer, such that new trial not necessary – Said while amicus could never fully assume role of accused’s lawyer, could take on “defence-like functions” when adversarial perspective necessary to ensure trial fairness – Appeal dismissed.