New Zealand Law Society - Courts roundup 27 October - 2 November 2022

Courts roundup 27 October - 2 November 2022

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

Coat of arms

New Zealand Supreme Court

Time extension, leapfrog appeal

Kotze v New Zealand Police [2022] NZSC 126 (31 October 2022)

Unsuccessful time extension application – K convicted after Judge-alone trial of assault with intent to injure and strangulation - HC appeal against conviction unsuccessful – CA declined leave for second appeal - As no jurisdiction to appeal to SC against CA decision declining leave, K sought time extension to apply for leave to appeal directly to SC from HC decision –

SC said leave application did not meet Senior Courts Act 2016 criteria - No utility in granting time extension for leave application – Time extension application dismissed. 

Name suppression

Boag v R and ors [2022] NZSC 125 (26 October 2022)

Unsuccessful leave application – B applied for leave to appeal against CA decision that upheld HC decision revoking order for suppression of her name – DC initially made order – No opposition from Crown and neither of news agencies who were respondents to appeal were involved –

CA said DC suppression orders “permanent” for s 208 Criminal Procedure Act 2011 purposes, because did not have expressed end date - Court listed eight reasons why order revocation justified –

B applied for leave to appeal to SC – It said leave criteria not met – Application dismissed.

New Zealand Court of Appeal

Criminal procedure, appeal against sentence, murder, minimum period of imprisonment

Epiha v R [2022] NZCA 508

Unsuccessful appeal against sentence – E (aged 24 years) sentenced to life imprisonment for murder with a minimum period of imprisonment (MPI) of 27 years – Concurrent sentences of 12 years imprisonment imposed for attempted murder and 1 year imprisonment for dangerous driving causing injury – E was being pursued by marked police patrol car (with lights and sirens) when crashed into S’s car, injuring S – E exited vehicle with a semi-automatic rifle and fired 14 shots at two police officers, killing Constable H, and injury Constable G – Late guilty plea to murder charge – Whether sentence was manifestly excessive – HELD: R v Luff distinguished as E’s offending was more serious, Luff was sentenced just after the Sentencing Act 2002 came into force, and risk of harm to the community caused by those using high powered military-style weapons justified the courts imposing longer MPIs than occurred when Luff was sentenced – Appreciated E would be aged 52 years before he could be assessed for parole, but that was a proportionate response in the circumstances, and given ongoing reluctance by E to take full responsibility for his actions – Appeal dismissed.

Parole, extended supervision order (ESO), Bill of Rights

Mosen v Chief Executive of the Department of Corrections [2022] NZCA 507

Successful appeal against extended supervision order (ESO) – District Court imposed ESO on M for a period of 5 years, being satisfied M had a pervasive pattern of serious violent offending and a very high risk of committing a further relevant violent offence – At issue was whether Judge interpreted the statutory criteria for an ESO consistently with the New Zealand Bill of Rights Act 1990 (NZBORA) – Interpretation of the statutory regime in light of Chisnall v Attorney-General (CA) – HELD: “very high risk” criterion related not to the imminence of the risk, but its likelihood – High bar criterion set reflected public safety justification – Criterion of “persistent harbouring of vengeful intentions” not met – Accepted there was a very high risk of M offending again, but less clear that this offending would be of a relevant violent offence – Statutory criteria not met – Appeal allowed – ESO cancelled.

Criminal procedure, appeal against conviction, trial counsel competence

M (CA 138-2020) v R [2022] NZCA 506

Unsuccessful appeal against conviction – M found guilty of sexual and violent offending against five young family members, and sentenced to 17 years imprisonment with a minimum period of imprisonment (MPI) of 8 years 6 months – Appeal on ground that trial counsel (NT) failed to follow M’s instructions, or alternatively, failed to represent him competently – Whether miscarriage of justice established – Legal principles in counsel competence appeals (Sungsuwan v R, Scurrah v R, and Hall v R) – HELD: M left it up to NT “to decide on tactical issues at trial such as the line of cross-examination to be pursued and the evidence to be called” – Evidence fell short of establishing M instructed NT to advance any form of a conspiracy defence at trial – No real risk of a miscarriage of justice arose from NT's decision not to advance it – None of the matters identified with cross-examination, failure to prepare a brief of evidence, and NT’s closing address, gave rise to a real risk of a miscarriage of justice – Appeal dismissed.

New Zealand High Court

COVID-19 Recovery (Fast-Track Consenting) Act 2020

Te Korowai O Ngāruahine Trust v Hiringa Energy and anor [2022] NZHC 2810 (31 October 2022) Grice J

Unsuccessful appeal against final decision of Expert Consenting Panel under COVID-19 Recovery (Fast-Track Consenting) Act 2020 (FCTA) – Panel approved resource consents under FTCA to construct four large wind turbines for Kapuni Green Hydrogen Project –

Section 6 FTCA required people performing functions and powers under FTCA to act in manner “consistent with” Treaty principles and Treaty settlements -

HC said Panel acted in manner "consistent with" principles in all respects: identified and engaged concerns of Te Korowai and mana whenua hapū, satisfied conditions adequately mitigated concerns, no procedural errors -
Regarding environmental issues, no error: Panel considered environmental effects and entitled to rely on, assess and weigh evidence before it as it did – Appeal dismissed.

Judicial review, trespass notice, Bill of Rights

Peters v Speaker of The House of Representatives [2022] NZHC 2718 (19 October 2022) Gwyn J

Agreed settlement of P’s Judicial review application against former Speaker of House of Representatives, under Judicial Review Procedure Act 2016 and New Zealand Bill of Rights Act 1990 - P visited Parliament grounds on 22 February 2022, during course of Parliament grounds occupation - Speaker exercised his power under s 26(2) Parliamentary Service Act 2000 to issue P warning under s 4 Trespass Act 1980 - Warning withdrawn on 4 May 2022 -

Parties agreed to settle claim and Court made orders by consent, in form of declarations:
(1) Speaker’s exercising power under s 26(2) Parliamentary Service Act 2000 to issue P warning was unreasonable and irrational; and
(2) Warning from Speaker to P unjustified limitation on P’s right to freedom of movement under s 18 New Zealand Bill of Rights Act.

Protective costs order

Gordon and anor v Attorney-General and anor [2022] NZHC 2801 (27 October 2022) Palmer J

Successful application for protective costs order – HC makes first-ever protective costs order, that plaintiffs do not have to pay costs for proceedings brought in public interest, about serious human rights issues, with competent counsel, for no personal benefit – Order granted.

High Court of Australia

Trusts, resulting trust, wife purchasing property

Bosanac v Commission of Taxation and Anor [2022] HCA 34 (12 October 2022)

Successful appeal from Full Court FCA - Concerned whether Ms B held half her interest in residential property (Property) on trust for her husband where Ms and Mr B jointly paid purchase money –

Ms B purchased Property with loans held and taken out jointly with Mr B, secured against properties they each separately owned - Property registered in Ms B's name alone and used as Bs’ matrimonial home - Mr B never claimed interest in Property - Ms and Mr B had history of holding their substantial real and other properties in their own names and using them as security for joint loans –

Mr B’s creditor (Commissioner), relying on presumption of resulting trust, sought declaration Ms B held half her interest in Property on trust for Mr B - Commissioner said presumption of advancement of wife by her husband, which operated to preclude resulting trust from arising, no longer part of Australian law regarding matrimonial home - Primary judge dismissed Commissioner's application - Said presumption of advancement arose in Ms B's favour, and evidence did not support inference that Mr B intended to have interest in Property - Full Court allowed appeal, saying evidence rebutted presumption here –

HC unanimously allowed Ms B’s appeal – Said presumption of resulting trust did not arise where parties' objective intention inconsistent with person providing purchase money obtaining interest in property - "Presumption" of advancement allowed inference to be drawn from fact of certain relationships, such as husband and wife, that presumption of resulting trust did not arise - When evidence of way spouses dealt with their property given, contrary inferences  might be drawn -  

Question of intention regarding whether trust arose entirely one of fact, and facts here did not raise intention - Proper inference from objective facts was parties objectively intended Ms B to be Property’s sole beneficial owner, and Mr B merely facilitated Ms B's acquisition - Commissioner invited Court to abolish presumption of advancement as having no acceptable rationale and being anomalous, anachronistic, and discriminatory - HC refused, saying "presumption" of advancement entrenched "land-mark" Australian law – Appeal allowed.

Evidence, tendency

TL v R [2022] HCA 35 (19 October 2020)

Unsuccessful appeal from New South Wales CA – TL convicted in SC of murder of his two-and-a-half year old stepdaughter - Victim died from blunt force trauma to abdomen - No dispute that only three people had opportunity to inflict fatal injuries - To support its case that TL was perpetrator, prosecution adduced two categories of tendency evidence to prove TL had tendency to "deliberately inflict physical harm on the child" - First concerned burns victim sustained 10 days prior to fatal injuries while in bath in TL’s care - Second comprised three pieces of hearsay evidence of statements victim made to relatives that TL had hurt her neck, caused bruising on her arm, and punched - Trial judge admitted both categories – TL said tendency evidence wrongly admitted - Not sufficiently similar to charged conduct –

HC unanimously said ruling in previous case did not establish general rule requiring close similarity between conduct evidencing tendency and offence in every case where offender identity in issue – Probative value assessment required considering two interrelated but separate matters: extent to which evidence supported asserted tendency, and extent to which tendency more likely based on evidence - Here, evidence supported existence of asserted tendency - Strong evidence which went to identity, only two other possible perpetrators, tendency sufficiently striking that existence capable of being important to conclusion TL perpetrator - Evidence had significant probative value – Appeal dismissed.

Supreme Court of Canada

Sexual offences, family member, indigenous offender

R v Nahanee [2022] SCC 37 (17 October 2022)

Unsuccessful appeal from British Columbia CA - In 2019, N pleaded guilty to two counts of sexual assault against his nieces - N admitted to sexually assaulting one niece once and sexually assaulting other niece many times – At sentencing hearing, Crown asked for between four to six years prison – N’s lawyer sought three to three-and-a-half years –

Judge sentenced N to five years for assaults on first niece and three years for assault on second niece, combined total eight years prison - Judge considered various aggravating and mitigating factors in calculating N’s sentence –

Said aggravating factors included: abuse of family member; abuse of person under age of 18; abuse of trust; and offences significantly impacted two victims - Re mitigating factors, N pleaded guilty,  relatively young, and had no criminal record -

Judge also considered N’s Indigenous background during sentencing - Section 718.2(e) Criminal Code directed courts to pay special attention to Indigenous offender circumstances -

N appealed sentence to British Columbia CA – Said “public interest test” SC established in 2016 ruling should apply to his case - Test guided judges when Crown and defence agreed to specific sentence in exchange for guilty plea – CA dismissed appeal – N appealed to SC –

SC majority dismissed appeal – Public interest test did not apply – Appeal dismissed.

United Kingdom Supreme Court

Proprietary estoppel, remedies

Guest and anor v Guest [2022] UKSC 27 (19 October 2022)

Partly successful appeal from CA - Arose from dispute between members of farming family over family farm future of - Claimant (A) eldest child of farm owners (parents) – parents had another son R, also farmer, and daughter (J) who was not - A lived and worked on farm with parents for some 32 years after leaving school in 1982, with increasing responsibilities - Paid for work but at relatively low rates –

Parents promised A he would inherit substantial but unspecified share of farm, sufficient to enable him to continue viable farming business after father’s death - Parents made wills in 1981 providing for him and R to inherit farm in equal shares subject to financial provision of 20 per cent of estate for J –

From around 2008, relations between A and parents began to deteriorate - In May 2014 parents made new wills removing A’s inheritance - In April 2015 dissolved farming partnership with A and gave him notice to quit property on farm where he and his family lived –

A issued proceedings alleging he was entitled to share in farm or  monetary equivalent on proprietary estoppel grounds - Trial judge said A continued to work on farm for little financial reward because he reasonably relied, to his detriment, on various parental assurances regarding future farm inheritance - Satisfied conditions for estoppel arose -

Judge ordered parents to immediately pay £1.3 million (subject to certain adjustments) to A to satisfy inheritance expectation - Calculated as 50 per cent dairy farming business value plus 40 per cent freehold land and farm building value -

In CA parents said trial judge wrong to fashion remedy based on A’s expected inheritance – Said award should instead have been calculated by reference to A’s contribution to farm value or loss of opportunity to work elsewhere - Also said remedy wrongly accelerated A’s expectation, as he had not expected to receive interest in farm until parents’ death – CA dismissed appeal saying appropriate to order remedy based on A’s expectation and judge could make order he did - Parents appealed to SC –

Three SC Judges allowed appeal in part and substituted alternate remedies of either putting farm into trust in favour of children or paying compensation to A now but with reduction properly to reflect earlier-than-anticipated receipt - Parents could choose between options – Two other Judges would also have allowed appeal but on substantially different grounds and would have substituted different remedy – Appeal partly allowed.

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