New Zealand Law Society - Courts roundup 5 December - 11 December 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Craig v New Zealand Police [2024] NZSC 165 (5 December 2024)
Unsuccessful leave application – Self-represented C sought leave to appeal direct from HC judgment dismissing his appeal against conviction and sentence – Serving 16-months imprisonment DC imposed on 19 January 2024 on three charges related to breaching protection order and two charges related to cannabis possession and refusal to give particulars to enable unlocking of his mobile phone – Pleaded guilty to latter charges –
SC said no exceptional circumstances warranting second appeal from HC to this Court – Appeal raised no questions of general or public importance – Nothing to suggest HC wrong – Application dismissed.
Arena Alceon NZ Credit Partners, LLC v Grant [2024] NZSC 166 (5 December 2024)
Unsuccessful leave application – G and B (liquidators) of two New Zealand property development companies, (together, Ormiston) – AA and Q companies incorporated in United States of America – AA is shareholder in Ormiston company and it financed purchase and development of property at Flat Bush, Auckland – Q security trustee for A, holding general security agreement and mortgage –
Liquidators sought information from A and Q – Issued notices under ss 239AG and 261 Companies Act 1993 (Act) and, with HC leave, served those notices in USA – A and Q entered protests to jurisdiction saying liquidators’ statutory powers did not have extraterritorial effect and A and Q had not submitted to jurisdiction – HC dismissed liquidators’ application to set aside protest to jurisdiction – CA allowed liquidators’ appeal – A and Q applied for leave to appeal to SC –
SC said s 261 applies to directors, shareholders and other persons having company records or information about its activities – Settled law that s 261 had extraterritorial effect for directors or former directors, in part because they voluntarily assumed duties under Act – Question whether s 261 also had extraterritorial effect for shareholders, creditors and any other persons –
Said CA recognised principle that statutes had extraterritorial effect only if provided expressly or by necessary implication – CA said extraterritorial effect necessary for s 261 to be effective – If it were otherwise, director, shareholder or other person could evade s 261 obligations simply by leaving jurisdiction – CA said unlikely s 261 would have extraterritorial effect for directors but not other persons –
SC said extraterritorial application of liquidators’ powers under Act might be matter of general or public importance – However, proposed appeal had insufficient prospects of success to justify leave given applicants’ close connection to Ormiston's New Zealand activities – Application dismissed.
Nottingham v Currie [2024] NZSC 167 (5 December 2024)
Unsuccessful leave application – Self-represented N applied for leave to appeal CA decision refusing time extension to file case on appeal – Extension related to N’s appeal of HC judgment –
SC said proposed appeal directed to application of settled criteria to specific facts of this case – No question of general or public importance arose – Application dismissed.
Yad-Elohim v R [2024] NZSC 168 (6 December 2024)
Unsuccessful leave application without prejudice to Y’s right to seek leave to appeal after CA considered any recall application – Y sought leave to appeal conviction for murdering M on 26 September 2017 – Defence was insanity – On 1 May 2023 CA dismissed conviction appeal – On 4 June 2024 declined to extend time for appealing sentence: life imprisonment with 13 years MPI – Y no longer pursued application for leave to appeal sentence –
Proposed appeal based on ground that substantial miscarriage of justice might have occurred because defence had insufficient time to prepare in face of new information about Y’s Korean origins and delusion was Japanese anime character –
SC said but for new evidence, no justification for granting leave – Evidence significant and appeared credible, but on leave application difficult for SC to gauge its impact on other expert evidence led at trial and on appeal and implications for verdict – SC also had no information about why video not produced in CA – Should be assessed in CA in first instance – Y ought to seek recall of CA decision – Application for leave to appeal to SC dismissed, without prejudice to right to seek leave to appeal after CA considered any recall application.
Nicolson v Lowther [2024] NZSC 169 (6 December 2024)
Unsuccessful recall application – Self-represented N sought recall of SC judgment declining leave to appeal, saying costs award of $2,500 in favour of respondents should be quashed –
SC said no basis for recall – Application dismissed.
Memelink v Body Corporate 68792 [2024] NZSC 170 (6 December 2024)
Unsuccessful leave application – Self-represented M applied for leave to appeal CA dismissing application for review of Deputy Registrar declining M’s application to dispense with security for costs – Security question arose in context of M’ s appeal to CA from HC granting extended order restraining M from commencing or continuing civil proceedings relating to BC – Order under s 166 Senior Courts Act 2016 and applied for three years from judgment date –
SC said M’s underlying complaint HC restraining order fraudulently obtained – Proposed appeal would turn on applying settled principles to specific facts – No question of general or public importance or of commercial significance arose – No appearance of miscarriage of justice – Application dismissed.
[M] v R [2024] NZCA 641
Miriau v R [2024] NZCA 630
Unsuccessful application by M for leave to bring a second appeal - M pleaded guilty to importing methamphetamine – DC applied Zhang v R - quantity of methamphetamine imported placed the offending in band five and assessed M’s role as falling between “lesser” and “significant” – DC adopted starting point of 11 years imprisonment reduced by 55 per cent for mitigating factors, yielding an end sentence of four years 11 months imprisonment – HC upheld starting point as M’s role did not fall within the lower end of "lesser" -
Sufficient appellate guidance concerning application of the Zhang guidelines/bands - M’s role could not justify departure – M continued offending after learning he was participating in the importation of illegal drugs - No extenuating circumstances - M also given generous reductions for mitigating factors – Appeal dismissed.
Griffin v R [2024] NZCA 632
Unsuccessful application by G for recall of decision imposing sentence of 10 years nine months imprisonment for manslaughter and aggravated robbery - Because it was a stage 2 offence, the sentence was to be served without parole – G argued non-parole order imposed on the second strike should be quashed because it constituted a breach of s9 New Zealand Bill of Rights Act 1990 (right not to be subjected to torture or cruel treatment) -
Sentence and non-parole period were not so grossly disproportionate as to breach s9 - Stage 1 and 2 offending were serious, violent and involved firearms, with a victim permanently injured in the stage 1 offending and killed in the stage 2 offending – G had not suffered from a mental impairment - Restrictions on access to certain reintegration programmes because of his ineligibility for parole did not render sentence grossly disproportionate and other reintegration support was available – Appeal dismissed.
Ferguson v R [2024] NZCA 636
Unsuccessful appeal by F against conviction of injuring with intent to injure following DC jury trial - Common ground on appeal F’s trial counsel erred during her cross-examination of the complainant by mistakenly putting a proposition to him that he had previously tried to hit F with his car – Exchange occurred after complainant introduced fresh allegation against F during his evidence in chief that F had on an earlier occasion tried to hit the complainant with his car -
No real risk that an unsafe verdict resulted from the admitted error made by trial counsel - Mistake minor and involved peripheral matter that wasn’t mentioned again - Answers given by complainant had not suggested anything other than trial counsel had made an error, rather than in any way impugning the credibility of F - Claim of self-defence inherently implausible – No miscarriage of justice – Appeal dismissed.
De Souza v R [2024] NZCA 637
Unsuccessful appeal by S against a sentence of 10 months home detention – S was a Brazilian national under a permanent resident visa - Pleaded guilty to representative charge of aiding and abetting breaches of visa conditions under Immigration Act 2009 – S and her former husband procured 15 women from Brazil to come to New Zealand on temporary entry class visas - After they had arrived, S and her former husband acted as their booking agents for the provision of commercial sex services - Income was significant and shared on a 50/50 basis with the sex workers - Duration of offending was two years and nine months - Application for discharge without conviction declined -
Expert evidence showed deportation was a possibility but not inevitable - Possibility of deportation in proportion to the gravity of offending which was premeditated sustained - No expert evidence to support S’ submission that if she was deported her current partner would not be able to move to Brazil with her and that, as a result, either S or her partner would be separated from their child – Any concerns around deportation related to the social and economic circumstances of Brazil which did not elevate the consequences of a conviction to being out of all proportion to the gravity of the offending – Appeal dismissed.
R v Reddington [2024] NZHC 3689 (5 December 2024) McHerron J
Sentencing – Jury found R guilty of murdering G – HC said s 104(1 )(e) and (g) Sentencing Act 2002 engaged – Murder committed with high level of brutality and callousness with victim particularly vulnerable – Manifestly unjust to sentence R to 17 years’ MPI on account of traumatic upbringing and contributing mental state – 14 years’ MPI appropriately addressed murder sentencing principles (s 103(2)) – Comparable with other sentences and properly reflected offence and offender.
R v Burgess [2024] NZHC 3691 (5 December 2024) Venning J
Sentencing – B pleaded guilty to manslaughter – Was to be sentenced based on summary of facts pleaded guilty to – However, in reports prepared for sentencing purposes, said victim O attempted to rape him and acting in self-defence when slashed O’s arm and stabbed him – Disputed fact hearing held – Following hearing Judge satisfied beyond reasonable doubt O did not rape or attempt to rape B –
HC said circumstances of offending supported six-year starting point – Taking into account personal circumstances, timing of guilty plea end sentence three years three months imprisonment.
BiIF23 by his Litigation Guardian the Public Advocate v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44 (4 December 2024)
Successful appeal from full Court FCA – Principal issue whether Minister could validly give notice to person of decision to cancel visa and invite that person to make representations about decision under s 501CA(3) Migration Act 1958 (Cth) (Act) when person lacks legal capacity to do so –
B Cambodian citizen – Visa mandatorily cancelled in 2021 under s 501(3A) Act – On 1 December 2021, B given notice of visa cancellation and invited to make representations about revocation decision (notification) – Notification said representations to be made within 28 days after day notification was given to him –
B acknowledged receiving notification on same day – At time B receiving psychiatric care at prison where B serving sentence – Neither Minister nor Department aware of this – On 23 December 2021, urgent application for guardianship order made to Victorian Civil and Administrative Tribunal (VCAT) on B's behalf – On 11 January 2022, VCAT appointed Public Advocate as B’s guardian under s 30 Guardianship and Administration Act 2019 (Vic) – By that time, 28-day period had expired –
Guardian had, amongst other things, power to start and defend legal proceedings on B’s behalf regarding visa cancellation – On 18 July 2022, B’s legal representatives requested Department re-notify visa cancellation decision – Department refused, saying 1 December 2021 notification validly made under s 501CA(3) –
Primary judge dismissed judicial review application for B in Federal Circuit and Family Court of Australia (Division 2) – Judge did not accept B's contentions that: it was not "practicable" within s 501CA(3) to deliver notification to B given his lack of legal capacity, or purported delivery of notification constituted denial of procedural fairness – On appeal, Full Court FCA did not accept that it was not "practicable" within s 501CA(3) to deliver notification on 1 December 2021 –
HC said on 1 December 2021, B lacked legal capacity to make representations sought and lacked ability to empower person to make decisions on his behalf such as by granting enduring power of attorney, or applying for guardian to be appointed, to make representations of his behalf – Consequently, at that date, Minister had duty in s 501CA(3) but B’s legal incapacity meant Minister could not discharge duty until B obtained capacity or until guardian appointed for B to make representations – Appeal allowed.
Fuller v Lawrence [2024] HCA 45 (4 December 2024)
Unsuccessful appeal from Queensland CA – Concerned whether direction from corrective services officer to prisoner under Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) subject to judicial review under Judicial Review Act 1991 (Qld) (Review Act), so prisoner entitled to receive statement of reasons for direction – Issue turned on meaning of decision of administrative character "made ... under an enactment" for s 4(a) Review Act purposes –
L subject to supervision SC Judge order under DPSO Act (Supervision Order) – Clause 6 Supervision Order required L to obey any reasonable direction from corrective services officer, including about whom he may have contact with – Corrective services officer ordered L could not have in-person contact with named person (Direction Decision) – L sought statement of reasons for decision under s 32 Review Act – Officer refused to provide reasons – SC judge said Direction Decision "made ... under an enactment" within meaning of s 4(a) Review Act and prisoner entitled to receive statement of reasons – CA dismissed corrective services officer and Chief Executive of Queensland Corrective Services appeal – Both appealed to HC –
HC said they accepted that DPSO Act authorised Direction Decision – Regarding second criterion ("the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment"), HC rejected argument Direction Decision did not itself affect L’s legal obligations because obligation to comply sourced in judicial order – HC said source of L’s obligation to comply with Direction Decision in DPSO Act, specifically, s 16(1)(db), from which Direction Decision capacity to affect L's legal obligations derived – Consequently, while Direction Decision partly depended on SC making Supervision Order, did not detract from conclusion Direction Decision "made under" DPSO Act – Appeal dismissed.
Pearson v Commonwealth of Australia [2024] HCA [2024] HCA 46
Unsuccessful referral and appeals from Full Court FCA – P commenced proceeding in HCA original and others in two appeals from FC decisions, convicted of multiple offences – Each received aggregate sentence of 12 months or more – Visas purportedly subject to mandatory cancellation under s 501(3A) Migration Act 1958 (Cth) (Migration Act) because of aggregate sentences – Minister’s delegate decided not to revoke decisions – Administrative Appeals Tribunal (AAT) affirmed decisions –
On 22 December 2022 FC ruled visa cancellations invalid, as were decisions refusing to revoke cancellations and affirming refusals – On 17 February 2023, Migration Amendment (Aggregate Sentences) Act 2023 (Cth) came into force – Items 4(3), 4(4) and 4(5)(b)(i) of Sch 1 to Amendment purported to retrospectively validate decisions to cancel visas and decisions not to revoke cancellations –
HC said previous case on issue wrongly decided, meaning no decisions impugned because aggregate sentences taken into account when making decisions – Thus, items 4(3), 4(4) and 4(5)(b)(i) were not, and did not need to be, engaged – Appeals dismissed.
R v Stevenson [2024] SCC 41 (5 December 2024)
Unsuccessful appeal from Saskatchewan CA – S convicted at trial of robbing Regina restaurant and having his face masked with intent to commit offence – Robbery recorded on security camera video and revealed two participants, both of whom had faces fully masked – Crown’s case hinged on recognition evidence of witness with criminal record arrested for unrelated crime in 2019 – After his arrest offered information about criminal activity in exchange for entry into witness protection program – Identified S as participant in robbery –
When Crown relied on evidence from witness with characteristics such as criminal history bringing credibility into serious question, court had to approach evidence with particular care and caution – Here trial judge recognised dangers, said witness’s evidence credible and reliable and found S guilty – CA majority dismissed S’s appeal –
SC majority dismissed S’s appeal – Said no basis to interfere with convictions – Trial judge recognized dangers of witness’s evidence and applied requisite scrutiny – Appeal dismissed.
R v Campbell [2024] SCC 42 (6 December 2024)
Unsuccessful appeal from Ontario CA – Police lawfully seized cell phone when arresting known drug dealer – After arrest, four text messages lit up phone screen, appearing to offer to sell drugs to drug dealer – Without warrant, police replied, impersonating drug dealer and encouraged sender to come to drug dealer’s residence to deliver drugs – When C came to residence, was arrested and found in possession of heroin laced with fentanyl – C claimed did not send texts and someone else gave him phone to arrange drug delivery – However, C said sent and received later texts about drug delivery –
C charged with drug trafficking and possession – Applied to exclude text messages from evidence saying obtained in way that breached rights under s 8 Canadian Charter of Rights and Freedoms – Section 8 protected people against unjustified intrusions on privacy –
Trial judge said C did not have reasonable expectation of privacy in texts – Could not argue s 8 Charter rights infringed – Added that even if C could have made argument, police’s phone use justified under Controlled Drugs and Substances Act (CDSA) because without immediate action transaction at risk and likelihood transaction involved fentanyl made this public safety matter – CDSA allowed police to conduct certain searches without warrant if “exigent” (urgent) circumstances made “impracticable” to obtain one –
C convicted and appealed convictions – CA accepted C had reasonable expectation of privacy in his text message conversation and thus could argue police violated his s 8 rights – However, said search justified by exigent circumstances under CDSA – Dismissed appeal – C appealed to SC –
SC majority dismissed appeal – Said C had reasonable expectation of privacy in text message conversation with phone user and could challenge search under s 8 – However, warrantless search of C’s text message conversation justified by “exigent circumstances” making it “impracticable” to obtain warrant under CDSA – Police needed to act immediately to intercept drugs sale to prevent them from being trafficked imminently in community – Although police had grounds to obtain warrant, impracticable to obtain one as only telewarrant available and likely arrive too late – Search reasonable, justified by law and did not breach s 8 – Appeal dismissed.
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