New Zealand Supreme Court

Name, identifying particulars suppression

The Pathway Trust v NZME Publishing Ltd Stuff Ltd [2024] NZSC 60 (20 May 2024)

Unsuccessful leave application – TPT sought leave to appeal CA judgment quashing HC order suppressing name and identifying particulars of TPT and associated entities –

TPT registered charity providing reintegration services to prisoners and parolees, including in collaboration with Department of Corrections – Through role, TPT became connected to second respondent, B – Near end of sentence for sexual violence offences, B paroled from prison to TPT owned flat – TPT worked with B for some five months before release through Navigate Initiative – On 22 January 2021, B broke into flat next door and murdered B-H who was not aware of B’s background or prior offending –

NZME and S media organisations seeking to publish TPT’s name in connection to B’s offending – Crown, also opposed suppression – TPT sought name suppression under s 202(1)(c) Criminal Procedure Act 2011 as entity connected with B, arguing that it would suffer undue hardship if named in connection to murder – Said negative publicity would cause reputational damage and reduce its capacity to perform its purposes, based on receiving donations –

HC made suppression order, accepting undue hardship would result from publication – CA quashed order on appeal –

TPT sought leave to appeal to SC – First, said CA erred to consider public interest at threshold stage under s 202(2) – Secondly, said Court fundamentally misunderstood functions and role in connection to B, leading to erroneous finding TPT connected to B’s offending – Thirdly, said Court incorrectly concluded TPT’s potential hardship not disproportionate to interests supporting publication, by conflating public interest in B’s offending with public interest in TPT’s involvement –

SC said proposed appeal raised no matter of general or public importance – Previously had been some disagreement regarding s 202 threshold stage – SC had dealt with this in recent case – Nor was evident risk of substantial miscarriage of justice – Application dismissed.

New Zealand Court of Appeal

Criminal procedure, evidence

Watson v R [2024] NZCA 170

Appellant was convicted in 1999 of the murders of Olivia Hope and Ben Smart - His convictions have been referred by the Governor-General under the Royal prerogative of mercy – The appellant has applied for orders requiring the production of a report obtained by the Crown from an expert, Dr Kovera, on the psychological research on eyewitness memory, and requiring her to attend the hearing - The Crown had previously decided not to file any evidence from Dr Kovera but disclosed the report to Mr Watson – Whether this Court should make an order for the production of Dr Kovera’s report – HELD: Application declined -  The report is connected with the proceedings, however the s389 Crimes Act 1961 power is not to be exercised lightly, and the Court is not satisfied that an order is “necessary or expedient” in the interests of justice or “necessary” for the determination of the appeal - If the appellant wishes the report to be adduced in evidence then it is for him to call Dr Kovera following the usual procedure for fresh evidence on appeal.

Sexual violation, assault, starting point, mitigating circumstances

Churcher v R [2024] NZCA 174

Unsuccessful appeal against conviction on various charges of sexual violation by rape (representative), assault with intent to injure (x3), and assault with a weapon – Appellant was also acquitted on several other charges of alleged sexual and violence offending against his former partner – Sentenced to 7 years 10 months imprisonment – Appeals convictions on grounds relating to conduct of the trial and reasonableness of the verdicts – Appeals sentence on the basis that the starting point for the rape charge was too high and insufficient credit was given for personal mitigating circumstances – Application to adduce further evidence - Neither individually or in combination were there errors or irregularities that created a real risk the outcome of the trial was affected or resulted in an unfair trial - The jury’s verdicts were not unreasonable – Further evidence lacks the necessary cogency to potentially bear on the safety of that conviction – Starting point for rape offending (8 years) appropriate given breach of trust and sufficiently aggravated offending - Not satisfied the appellant's past experiences warranted any greater discount in respect of the sexual offending – HELD: Appeals dismissed – Application declined.

Unequal division of relationship property, marriage of short duration, family trust - Login required

[Z] v [L] [2024] NZCA 177

Assault, pre-trial ruling, visual identification evidence - Login required

[N] v R [2024] NZCA 180

New Zealand High Court

Sentencing, manslaughter, accessories, grievous bodily harm

R v Singh [2024] NZHC 1253 (20 May 2024) Downs J

Sentencing – S sentenced for S’s manslaughter – Three others for being accessory after fact to intentional or deliberate infliction of grievous bodily harm upon S – All followed jury trial guilty verdict –

S five years' imprisonment for manslaughter (starting point six and half years) – Victim's conduct affected starting point and sentence – Accessories given prison and home detention.

Sentencing, impeding breathing, murder, other charges

R v Smith [2024] NZHC 1289 (22 May 2024) Eaton J

Sentencing – S pleaded guilty to charges of impeding breathing, aggravated robbery, robbery, two charges of unlawfully taking motor vehicle, providing false details to police and murdering H following trial –

 S unlawfully entered H's apartment with intention of stealing vehicle; H stranger to S – S began altercation with H – While H unconscious, S inflicted stab wound and deep cut on H’s neck – Left H fatally wounded but alive – Court received psychological reports and s 27 cultural report – Reports identified potential causative factors including cultural deprivation, economic deprivation, normalisation of violence and alcohol use, normalisation of gang activity, familial dysfunction, absence of adult supervision and early use of drugs and alcohol, childhood sexual abuse, mental health issues and alcohol and methamphetamine addictions –

Section 104(1)(c) and (g) Sentencing Act 2002 engaged as S unlawfully entered H's dwelling place and H particularly vulnerable being much older and smaller than S and unconscious when stabbed – 17-year MPI manifestly unjust due to personal background and mental health – 15 per cent deduction for these factors; life imprisonment with 14 years six months MPI – Two years nine months for impeding breathing – Three years two months for aggravated burglary – Two years and four months for robbery – 12 months for unlawfully taking motor vehicles and convicted and discharged on charge of providing false details to police – All sentences to be served concurrently.

Judicial review, fluoridating water, NZBORA

Fluoride Action Network (NZ) Inc v Hastings District Council [2024] NZHC 1313 (16 May 2024) La Hood J

Unsuccessful judicial review application – FAN and NZDSOS applied for directions/orders that reintroducing fluoride into Hastings District Council (HDC) urban water supply in April 2024 was unlawful, unreasonable and contravened right to refuse medical treatment –

HC said case not about fluoridating water in Aotearoa New Zealand, or whether fluoridation justified limit on right to refuse medical treatment – Said complying with direction ruled valid but being reconsidered due to error of law, could not be presumptively unlawful –

HC said interpretation FAN contended (to read in discretion to mandatory statutory compliance language) could not be sustained – Neither s 6 New Zealand Bill of Rights Act 1990 as SC applied it, nor legality principle allowed for this interpretation –

Rational and reasonable for HDC to not seek extension to compliance period and for Director-General of Health to not offer such extensions unilaterally – Application dismissed.

Supreme Court of Canada

Evidence, admissibility, prior sexual conduct, confidentiality

R v T W W [2024] SCC 19 (24 May 2024)

Unsuccessful appeal from British Columbia CA – TWW convicted of sexual assault on 2 April 2018 – Complainant spouse, who testified that marriage to him had completely broken down in February 2018 – However, in earlier statement to police, complainant also stated that she and accused engaged in consensual sexual activity on evening of 1 April, night before sexual assault –

Before trial, TWW asked court to allow evidence that he and complainant engaged in consensual sexual activity in evening of 1 April and morning of 2 April – Said admitting evidence would serve to challenge complainant’s credibility, specifically regarding claim marriage had completely broken down at time of alleged assault, to provide context and to support defence complainant consented to sexual activity, as it was all part of one interaction –

Under s 276(1) Criminal Code, evidence of complainant’s sexual activity with accused or with any other person not admissible to support inference complainant is either (a) more likely to have consented to sexual activity at centre of charge; or (b) is less worthy of belief – Called “twin-myth reasoning” and relying on such inferences not allowed –

Trial judge dismissed application to admit evidence – Said no inconsistency between complainant’s statement to police and her testimony – Said evidence TWW wanted to submit irrelevant to credibility – Would only serve to support one of two inferences prohibited under s 276(1) – As required under s 278.95 Criminal Code, content of accused’s application, hearing held to decide issue and trial judge’s decision subject to publication ban – Case went to trial and TWW ultimately convicted –

TWW’s appeal proceeded in camera and appeal record sealed (not made public) CA majority dismissed appeal – Agreed with trial judge TWW had not identified legitimate use of proposed evidence –

TWW then appealed decision to SC – Crown relied on s 278.95 to ask Court for in camera hearing, for filed materials to be sealed and for any other order necessary to protect information and evidence related to application to admit evidence on prior sexual activity – Court heard oral arguments on motion before continuing with hearing on appeal –

SC majority dismissed appeal and allowed Crown application in part – Said TWW failed to sufficiently identify specific use for prior sexual activity evidence that did not invoke twin-myth reasoning and that was essential to ability to make full answer and defence – Trial judge did not make mistake in denying application – TWW’s conviction upheld –

Regarding Crown application, SC said mandatory publication ban under s 278.95 did not extend to appellate proceedings – Rather, SC power to order limiting court openness in instant case derived from implied jurisdiction of courts to control their own processes and records – Court’s discretion should be exercised in way that maintains court openness as far as practicable while protecting complainant’s personal dignity and privacy and accused’s fair trial rights – Circumstances here did not justify complete ban – Appeal dismissed, application partly allowed.