New Zealand Law Society - Courts roundup 13 February - 19 February 2025
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Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Re Coulsen [2025] NZSC 1 12 February 2025)
Successful leave application – Self-represented C, on 29 November 2024, applied for leave to appeal – SC Judge said application not accepted for filing on grounds DC decision appealed from not clearly identified – Also, application did not comply procedurally with Supreme Court Rules 2004 requirements –
C applied for review of decision not to accept application for filing – In application for review, C identified decision he sought leave to appeal – As C had identified decision, practical course for application to be accepted for filing and referred to panel – Application allowed.
V v R [2025] NZCA 6
Commonwealth of Australia v BW [2025] NZCA 8
Thompson v R [2025] NZCA 9
Unsuccessful appeal by T against conviction – T found guilty of possession of offensive weapon (hammer), assault with a weapon (car), being a member of a riot – Riot on Parliament grounds March 2022 – T appealed on grounds that the trial Judge erred in his directions to the jury - Trial Judge failed to direct jury to consider issue of self-defence - Misdirected jury on elements of riot charge – Failed to properly direct on prejudice arising from contextual evidence -
Based on evidence (including video evidence) no credible or plausible narrative of self-defence available to T – No misdirection to jury on charge of being a member of a riot – Charge of being a member of a riot does not require proof that T personally carried out actual violence – Definition of riot no longer includes a requirement that the group have a common purpose of using violence – It was sufficient for prosecution to prove that the group had used violence while acting together and T was a member of that group – Trial Judge’s directions on prejudicial contextual evidence were consistent and appropriate.
Karmarkar v Kajol Enterprises Limited [2025] NZCA 10
Unsuccessful application by K for special leave to appeal – K’s proceedings in the District Court were struck out – K’s appeal to the High Court was unsuccessful – K sought special leave to bring a second appeal against the District Court’s decision -
K’s application for special leave did not address criteria governing grant of special leave – Court unable to ascertain or address position on them – Any misunderstanding in the Courts below as to the nature of K’s claims only serves to demonstrate why District Court struck them out – Courts cannot be expected to address pleadings that are inchoate or unintelligible – Appeal did not raise question of law or fact capable of bonafide and serious argument – Case did not involve some interest, public or private, of sufficient weight to outweigh the cost and delay of a further appeal.
Halse v Employment Court of New Zealand [2025] NZCA 11
H sought judicial review of four Employment Court decisions – Third respondent, the Turuki Health Care Chartiable Trust (Turuki), sought interlocutory applications striking out the judicial review application and restraining H from commencing any proceedings in any senior court, other court or tribunal under s166 Senior Courts Act 2016 (s166 orders) and that Court of Appeal should constitute themselves as the High Court to make the order it seeks -
Section 213 Employment Relations Act 2000 (ERA) provides Court of Appeal with jurisdiction to determine an application for judicial review of the Employment Court – Scope of review is narrowly confined in s193 ERA – H had no reasonably arguable cause of action – s166 orders are made in the High Court - Unusual for Judges of Court of Appeal to reconstitute as the High Court – This is reserved for cases involving unique jurisdictional difficulties or that are otherwise exceptional – Strike out application granted – s166 order declined.
Cooney v Police [2025] NZHC 160 (13 February 2025) Peters J
Successful appeal from DC – G (also known as Cooney) following Judge-alone trial guilty of common assault under s9 Summary Offences Act 1981 – G subsequently applied for discharge without conviction – Judge declined application not being satisfied consequences of conviction out of all proportion to gravity of offending – Judge convicted and discharged G – Subsequently dismissed G’s costs application under s5 Costs in Criminal Cases Act 1967 –
G appealed against conviction to HC – HC Judge said had to allow appeal if satisfied Judge erred in evidence assessment to such extent miscarriage of justice occurred – Alternatively, G appealed against Judge’s refusal to discharge without conviction –
Incident involved G “touching” C – HC said touch fleeting and to gain C’s attention – Said G used no greater degree of physical contact or force than reasonably necessary for that purpose – Said what occurred here within bounds of what considered acceptable, i.e. not unlawful – If wrong on ruling, would have allowed G’s appeal against discharge without conviction – Appeal allowed.
R v W [2025] NZHC 176 (14 February 2025) Lang J
Sentencing – Jury found W found guilty of manslaughter following being charged with murder – Incident after W used knife to fend off victim’s attack – Victim receiving fatal stab wound to neck – Starting point seven years' imprisonment reduced to six years to reflect victim’s provocative conduct – 20 per cent discount reflecting offer to plead guilty to manslaughter – Global 30 per cent discount to reflect other mitigating factors including youth (offender 16 at time of offending), remorse, rehabilitative prospects and factors identified in reports produced at sentencing – End sentence three years' imprisonment.
Queensland v Stradford (A Pseudonym) [2025] HCA 3 (12 February 2025)
Successful appeals from Federal Court of Australia – Appeals concerned three issues: (1) whether effect of s17 Federal Circuit Court of Australia Act 1999 (Cth) was Federal Circuit Court judge’s order imprisoning someone for contempt was valid unless and until set aside, even though affected by jurisdictional error; (2) scope of immunity from or defence to civil suit for Federal Circuit Court judges; and (3) whether people with legal duty to enforce or execute orders or warrants made or issued in judicial proceedings, acting under defective court order or warrant were protected from liability for their actions –
In 2018, Federal Circuit Court Judge V convicted S of contempt of court and sentenced S to term of imprisonment – After sentence, guards employed by MSS Security Pty Ltd (MSS Guards), contractor for Commonwealth of Australia, escorted S to holding cell – Around thirty minutes later, Queensland Police Service officers (Queensland police officers) collected S from court complex and transported S to watchhouse – Four days later, S transferred to Brisbane Correctional Centre where Queensland Corrective Services officers (Queensland correctional officers) detained him until release –
In 2019, Family Court of Australia Full Court upheld S's appeal against Judge V's decision and set aside declaration S in contempt of court and imprisonment order – Primary judge upheld S’s claim for false imprisonment against each of Judge V, Commonwealth, being vicariously liable for MSS Guards’ conduct, and State of Queensland, being vicariously liable for Queensland police officers and Queensland correctional officers conduct – Primary Judge said order for S's imprisonment and warrant of commitment Judge V signed affected by jurisdictional error – Order, warrant invalid and of no legal effect and no lawful justification for S's imprisonment – Primary judge said Judge V's actions not protected by judicial immunity from civil suit – Primary Judge also rejected Commonwealth's and Queensland's contention that, notwithstanding imprisonment order and warrant invalid, Commonwealth and Queensland not liable to S because MSS Guards, Queensland police officers and Queensland correctional officers acted under, or in accordance with, warrant which appeared regular on its face –
HC allowed appeals from Commonwealth, Queensland and Judge V on first issue – HC majority ruled s17 Federal Circuit Court of Australia Act did not confer jurisdiction on Federal Circuit Court, but merely expanded its powers to punish for contempt when exercising any jurisdiction otherwise conferred on Court – Accordingly, s17 did not provide Judge V, Commonwealth, or Queensland defence to S's false imprisonment claim – Regarding second issue, HC said under Australian common law, all judges of courts referred to in s71 Constitution including any court of Territory and any "court of a State" as referred to in s77(iii) Constitution either immune from or had defence to civil suit arising out of acts done in exercise, or purported exercise, of judicial function or capacity – As Judge V purported to perform such function in convicting and sentencing S, not liable to S for false imprisonment – Regarding third issue, since Queensland police officers and Queensland correctional officers had legal duty to enforce or execute orders or warrants made or issued by Federal Circuit Court, and MSS Guards obliged to take S into custody – Because nothing apparent on face of orders Judge V made and warrant issued which suggested beyond power, Commonwealth and Queensland also not liable to S – Appeals allowed.
Royal Bank of Canada v Commissioners for His Majesty’s Revenue and Customs [2025] UKSC 2 (12 February 2025)
Unsuccessful Commissioners’ appeal from CA – Issue in appeal circumstances income earned from sale of oil found in UK Continental Shelf could be taxed in United Kingdom – Article 6 double taxation treaty entered into by Canada and UK in September 1978 (UK/Canada Convention) said income from immovable property might be taxed in Contracting State in which property situated – Article 6(2) provided expanded definition of what counted as “immovable property” for this purpose – Included rights to variable payments “as consideration for the working of, or the right to work, … natural resources” – Right to tax conferred by UK/Canada Convention took precedence over any other allocation of taxing rights between Contracting States –
Regarding natural resources, special rules applied for profits relating to exploration or exploitation activities or rights – Section 279 Corporation Tax Act 2010 treated profits as part of separate (ring fenced) trade carried on through permanent establishment in UK – Section 1313 Corporation Tax Act 2009 prevented profits from being reduced by, for example, losses from other activities company carried on –
In early 1980s UK Government granted Sulpetro (UK), UK subsidiary of Canadian tax-resident company Sulpetro Limited (Sulpetro), licence to explore particular section of North Sea Continental Shelf known as Buchan Field – In 1986, BP Petroleum Development Ltd (BP) acquired from Sulpetro both share capital in Sulpetro (UK) and rights Sulpetro had under agreement with Sulpetro (UK) to any oil acquired from Buchan Field – In return, BP promised to make payments to Sulpetro calculated by reference to volume of oil BP acquired once price at which BP could sell oil rose above certain level (Payments) –
Royal Bank of Canada (RBC) subsequently took over from Sulpetro rights to receive Payments in 1987 – In 2014, Commissioners for His Majesty’s Revenue and Customs (HMRC) sent notices of assessment to RBC for accounting periods ending 31 October 2008, 2009 and 2010, alleging Payments subject to UK corporation tax as profits of “ring-fenced” oil trade regime under Part 8 Corporation Tax Act 2010 –
Question at heart of appeal what “the working of, or the right to work” Buchan Field meant and whether encompassed rights BP paid for for when making Payments to RBC – If such rights acquired, were Payments to be regarded “as consideration for” right to work Buchan Field within meaning of Article 6(2) – Finally, if Payments covered by Article 6(2) so UK/Canada Convention conferred taxing rights on UK in respect of Payments, had UK, in fact, exercised those rights and imposed charge to tax, in domestic legislation, under proper interpretation of s 1313 Corporation Tax Act 2009 -
Both First-tier, Upper Tribunals ruled Payments within Article 6 and caught by s1313 – Ruled therefore, RBC had to pay tax on Payments to HMRC – CA allowed RBC’s appeal and ruled rights BP acquired and for which was paying RBC did not amount to “right to work” Buchan Field – Also said not made “as consideration for” any right to work – Although CA did not have to consider whether UK had exercised rights and imposed charge to tax in domestic legislation, it nevertheless cast doubt on Tribunals’ reasoning regarding interpretation of domestic provision –HMRC appealed to SC –
SC majority dismissed appeal – Reasons for Judgment first, on whether rights BP paid for fell under meaning of “right to work” under Article 6(2) – CA correct to say that they did not – Sulpetro (UK) held licence to work Buchan Field not Sulpetro and had all rights and responsibilities arising under licence – Was legal difference between someone having right to work natural resources and someone having right to require another person to work those natural resources – Sulpetro had latter but not former – Nor could Sulpetro (UK) separate legal personality from Sulpetro be ignored –
SC said important UK/Canada Convention did not determine whether particular revenue stream should be taxed or tax free – Instead, identified where boundary lay between, on one hand, Canada’s power to tax profits attributable to Canadian business of Canadian resident company and, on other hand, HMRC’s power to tax profits deriving from exploiting UK’s natural resources – Nothing within UK/Canada Convention indicating one must identify right to work and attribute right to entity which invests its funds and sells oil, even if that was not entity Government licensed –
Second, as rights BP paid for did not amount to “right to work”, strictly no need to consider whether RBC’s right to Payments amounted to right to “consideration for” that right to work – Nevertheless, application of Article 6(2) fact specific – Not appropriate to attempt to identify precise boundary between those arrangements which would in future be treated as falling within Article 6(2) and those which would not, though important to interpret UK/Canada Convention in way which provides coherent and clear structure for allocating taxing –
Third, although not directly necessary to decide whether income, if it fell within Article 6(2), would be taxable under s1313 Corporation Tax Act 2009, SC would hold income did fall within s1313 – Payments gave rise to profits arising to non-UK resident company (Sulpetro) from rights to benefit of assets (oil) produced by activity carried on in connection with exploitation of natural resources in UK sector of continental shelf – Because Payments such profits, s1313(2) treated for corporation tax purposes as profits of trade by Sulpetro in UK through permanent establishment in UK – Many contracts under which payment calculated by tracking price of particular commodity, such as oil, would not fall within s1313(2) – However, Payments here much more closely related to extraction of oil than simply tracking its price – Appeal dismissed.
El-Khouri v Government of the United States of America [2025] UKSC 3 (12 February 2025)
Successful appeal from CA – Arose from United States of America request to extradite K dual UK / Lebanese national living in UK – In essence accused K of insider dealing – Alleged to have made substantial payments to middleman to obtain confidential inside information about prospective mergers and acquisitions of companies listed on US stock exchanges then used information to trade securities for profit – Middleman, also based outside US, alleged to have obtained information from two analysts, each working in investment bank London office – K allegedly paid middleman in cash and benefits, including payment for yacht in Greece, chalet in France and on two occasions hotel room in New York –
K alleged to have entered into contracts for difference with UK broker – Although contract value tied to movements in US company share prices, contracts did not involve owning underlying shares and not traded in US – Accepted that if conduct alleged against K proved in UK trial, could amount to insider dealing contrary to Criminal Justice Act 1993 (CJA 1993) – At extradition hearing, however, K said alleged conduct did not constitute offence for which he could be extradited because failed to satisfy double criminality requirement in s137 Extradition Act 2003 (2003 Act) – Broadly, double criminality rule required conduct alleged in extradition request to constitute crime under law of both requesting and requested state –
District Judge rejected K’s argument, finding double criminality test in s137(3)(b) satisfied – HC dismissed K’s appeal – Nonetheless certified following point of law of general public importance: “Was the High Court’s approach to whether the Appellant’s alleged conduct constituted an ‘extradition offence’ correct, having regard to the requirements of section 137(3)(b) of the Extradition Act 2003?” – K appealed to SC –
SC unanimously allowed appeal, ordered K’s discharge and quashed extradition order – Said correct double criminality test to apply to conduct alleged in US extradition request s137(4)(b) not s137(3)(b), because all relevant conduct occurred outside US – Applying test, in corresponding circumstances K’s conduct would fall outside territorial scope of insider dealing under CJA 1993 (and any other relevant domestic law offence) –
Said s 137 determined whether person’s conduct constituted extradition offence – Gave effect to double criminality rule through separate tests depending on whether conduct occurs in requesting state’s territory (s137(3)) or outside requesting state’s territory (s137(4)) – Given this binary distinction, ss137(3) and 137(4) clearly intended to be mutually exclusive categories – Necessary to allocate each case to one or other –
US said here, as effects of K’s actions likely to have been felt on US markets, alleged conduct occurred “in” US, and therefore came within s137(3) – Lower courts accepted premise and found double criminality test s137(3)(b) satisfied – Test asked whether conduct specified in extradition request would constitute offence under UK law if occurred in UK – Required transposing all acts done in requesting state’s territory to UK and considering whether, in that situation, there would be offence under domestic law –
Here relying on s137(3) flawed from outset – Interpreting s137(3)(a) as extending to conduct occurring outside requesting state’s territory so long as its intended effects felt within territory mistaken – Did not accord with statutory language; rendered unworkable distinction between mutually exclusive categories in ss137(3) and 137(4); and based on unjustified assumption extradition scheme be construed in context of common law rules governing territorial jurisdiction in criminal cases – Appeal allowed.