The Registry is currently closed as we process annual renewals and will be available again soon.
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Anderson v NZI International Acceptances Ltd and ors [2023] NZSC 130 (2 October 2023)
Unsuccessful leave application – Third application – All three essentially concerned 1988 lenders’ mortgagee sale of A’s farm following A’s default under loan instruments – A subsequently adjudicated bankrupt and respondents were restructured and liquidated –
SC said not necessary in interests of justice to hear and determine proposed appeal – No matter of general or public importance and no likelihood that substantial miscarriage of justice would arise if proposed appeal not heard – Application dismissed.
P v R [2023] NZCA 477
T v R [2023] NZCA 478
Milne v R [2023] NZCA 483
Partially successful appeal against conviction and sentence for historic sexual offending against a boy under 16 years – Sentenced to 2 years 4 months' and 1 year 6 months' imprisonment concurrently – Whether verdicts were against weight of evidence, summing up unfair, sentence manifestly excessive – Error in Judge’s direction did not affect fairness of trial – Directions in summing up appropriate and sufficient – Directions on memory unhelpful – Starting point of 2 years 6 months was excessive – Changes to legislation since 2005 had impacted maximum penalties – Discounts insufficient – HELD: appropriate starting point was 2 years' imprisonment – Discounts of 15 percent for good character and 10 percent for age and health applied – Appeal against conviction dismissed – Sentences of 1 year 8 months' and 1 year 1 month imprisonment (concurrent) substituted.
Lewis v Hamilton Cosmopolitan Club Inc [2023] NZCA 484
Unsuccessful application for leave to appeal against HC quashing of damages award of $10,000 for nuisance – Access to property rented by L was via Club carpark – Rental property had previously been owned by the Club, before being subdivided and sold to a third party – Vehicular access to the property only possible via the carpark – Relationship deteriorated and trespass notice issued – Property access prevented – HC quashed DC award of damages – Equitable easement now being raised – HELD: Court unable to consider a new issue on second appeal when issue at heart of extant HC proceeding – Not in interests of justice for second appeal to be used as opportunity to revive argument deliberately abandoned at lower court – Application declined.
Brown v R [2023] NZCA 487
Successful appeal against sentence of preventive detention with a 5-year minimum period of imprisonment (MPI) for sexual connection with a young person (x4) – B had 13 previous convictions for sexual offending, primarily against children and young people, dating between 1995 and 2006 – Index offending occurred in 2018 while B was subject to an extended supervision order (ESO) – Whether sentence manifestly excessive – HELD: leave to appeal out of time granted given sentence of preventive detention – Pattern of serious offending and serious harm caused – Expert evidence indicating a tendency for B to commit serious offences in the future – B had made some efforts to address offending – Preventive detention disproportionate to offending – Finite sentence, together with ESO, would adequately protect the community – Appeal allowed – Sentence of 4 years’ imprisonment substituted and ESO to be reactivated on release from prison.
Sheed v R [2023] NZCA 488
Unsuccessful appeals against conviction and sentence for manslaughter – S charged with murder but found guilty of manslaughter – Sentence imposed 5 years 6 months' imprisonment – Conviction appeal raised issues of identification, participation and causation in a group assault at gang premises – Objection to witness and evidence – HELD: identification warning was required and orthodox warning given – No risk of miscarriage of justice arising from Crown’s use of photomontage, and misidentification of RS – Not necessary to exclude positional asphyxia as a contributing cause of death – Starting point of 5 years 8 months' imprisonment within range – No discount warranted for personal mitigating factors – Sentence not manifestly excessive – Appeals dismissed.
Milne v R [2023] NZCA 491
Successful appeal against sentence of 4 years 1 month imprisonment for wounding with intent to cause grievous bodily harm (GBH) – Application to adduce further evidence granted in part – Whether sentence manifestly excessive – Further evidence was certificates attesting to M’s participation in rehabilitation programmes since he was sentenced, and a s27 Sentencing Act 2002 report – M sentenced 2 months before SC decision in Philip v R – HELD: s27 report not fresh, but admitted as per Berkland v R – Other evidence excluded – Further discount applied – Nothing in the s27 report supported a separate discount in addition to the discount of over 25 percent made by the Sentencing Judge – Strongly in the interests of M’s young children that they should be able to have their father present in their lives as soon as possible, and further discount of 4 months (6 percent) appropriate – Sentence of 3 years 9 months' imprisonment substituted.
R v Vaitohi and anor [2023] NZHC 2761 (3 October 2023) Fitzgerald J
Sentencing – Murder of fellow gang member – Victim shot at three times, one hitting him in front torso (the fatal shot) and one in back (from close range) – No dispute life imprisonment only available sentence – Section 104 Sentencing Act 2002 not engaged – Minimum period of imprisonment (MPI) for V 13 years seven months, taking into account prior relevant offending and background factors (tempered by seriousness of offending) – MPI 13 years six months for T no uplift for prior convictions or discount for background factors – Contempt finding also made for V for refusing to answer questions while giving evidence at trial on basis of gang code – No separate sentence.
New Zealand Loyal v Electoral Commission and anor [2023] NZHC 2827 (9 October 2023) Isac J
Unsuccessful judicial review application – Registered political party applied for review of Electoral Commission decision relating to changes to party list after statutory deadline in s 127(3)(a) Electoral Act 1993 –
HC said mandatory order party sought requiring Commission to accept and publish amended party list would amount to suspension or modification of Act of Parliament and could not be granted – Second and third review grounds, based on ss 146H and 128C Electoral Act and s 12(b) Bill of Rights Act 1990, also untenable – Applications dismissed.
Smith v Royal Bank of Scotland plc [2023] UKSC 34 (4 October 2023)
Successful appeals from CA – Question on appeals whether claims seeking orders under Consumer Credit Act 1974 to remedy unfairness in credit relationship brought in time –
S and B each had credit card issued by Royal Bank of Scotland plc (RBS) and were sold Payment Protection Insurance (PPI) by RBS – Insurance covered credit card repayments in event of death, accident, sickness or involuntary unemployment –
RBS did not disclose to S and B that most money they paid for PPI did not go to insurer but was retained by RBS as commission – To this day, RBS had not revealed exact size of its commission but now known commission well over 50% of payments made –
RBS only informed S and B it had received commission when offering them redress (in 2018 and 2017, respectively) under scheme for PPI mis-selling established by Financial Conduct Authority – Redress payments said to represent commission RBS received by in excess of 50% of amounts paid for PPI – By that time S had already ended PPI agreement (in 2006) and credit card agreement with RBS (in 2015) – B also ended PPI agreement (in 2008), but credit agreement continued (until terminated in 2019) –
In August 2019, S and B brought claims to county court, seeking orders under s 140B Consumer Credit Act 1974 that RBS repay all money they paid for PPI (less redress already paid), plus interest –
S’s claim succeeded before district judge and in B’s case district judge ruled claim been brought in time – County Court Judge upheld both decisions on appeal – On second appeals CA ruled for RBS, saying in each case relevant time limit for bringing claim had expired before claim was brought – S and B appealed to SC.
SC unanimously allowed appeals, saying both brought before relevant time limit expired – Among other things, said in each case right to claim remedy depended on whether relationship unfair to claimant at time when relationship ended – Therefore, cause of action did not accrue and six year period for bringing claim did not commence until credit relationship ended (in 2015 and 2019, respectively) – Hence both claims brought in time – Appeals allowed.
La Presse Inc v Quebec [2023] SCC 22 (6 October 2023)
Unsuccessful direct appeals from Quebec and British Columbia – S and C charged with several criminal offences in unrelated cases – In both cases, numerous matters dealt with before jury empanelment, including application for stay of proceedings for abuse of process and constitutional challenge – Several media outlets applied for orders or declarations allowing publication of information from hearings on those matters – Application judges in both cases dismissed media applications, saying automatic publication ban found in s 648(1) Criminal Code that prohibited publication of information about portions of criminal trial where jury not present applied not only after but also before jury empanelment –
Media outlets then asked to appeal directly to SC relying on case where SC said third party, like media outlets, could appeal publication ban in criminal proceeding directly under s 40 Supreme Court Act –
SC unanimously dismissed appeals – Said automatic publication ban in s 648(1) applied not only after jury empanelled, but also with respect to matters judges had power to deal with before jury empanelled –
SC said open court principle and trial fairness served to instil public confidence in justice system – Media played crucial role in making this possible – However, protection of fair trial interests, such as right to independent, impartial and representative jury, also essential to public confidence in administration of justice – Publication bans like that imposed by s 648(1) limitations on court openness that protected accused right to, and society’s interest in, fair trial – Appeals dismissed.