New Zealand Law Society - Courts roundup 19 October - 25 October 2023
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Smith v R [2023] NZSC 134 (17 October 2023)
Unsuccessful leave application – Application from S’s deportation following escape from custody in New Zealand while on short-term release – Deportation from 3rd Federal Criminal Court in Rio de Janeiro, Brazil –
SC said proposed appeal raised no question of general or public importance – Deportation under order, validity of which not challenged before Brazilian courts so no error or misconduct established – Factor distinguished case from others where disguised extradition claim successful – Application declined.
Paul v Attorney-General [2023] NZSC 135 (19 October 2023)
Unsuccessful leave application – Late P long-standing New Zealand Māori Council member and former Mataatua District Māori Council Chair, applied to HC under s 98 Marine and Coastal Area (Takutai Moana) Act 2011 for orders recognising customary marine title over all New Zealand’s marine and coastal area, “on behalf of all Māori” – Application purpose said to be protective: to enable Māori groups who had not yet applied to do so after six-year statutory deadline prescribed in s 100 –
Subsequently amended application to be for eight named applicants for some 75 percent of marine and coastal area –
SC said while arguments advanced of general importance, not necessary in interests of justice to hear and determine appeal – Application dismissed.
Exley v NZME Publishing Ltd [2023] NZSC 136 (19 October 2023)
Successful leave application – Approved question whether CA correct to quash HC takedown order – Application granted.
Mohammed v R [2023] NZSC 137 (20 October 2023)
Unsuccessful leave application – M convicted of three charges of indecent assault after DC jury trial – Application for discharge without conviction refused – Sentenced to seven months’ home detention and required to pay $7,000 emotional harm reparation to complainant –
Unsuccessfully appealed to CA against conviction – CA rejected submission Crown used lies in M’s statement to bolster victim’s credibility or relied on M’s lies as evidence of guilt – SC said M’s submissions supporting leave application largely repeated those in CA – Not in interests of justice to grant leave – Application dismissed.
Coleman v Commissioner of Inland Revenue [2023] NZCA 494
Successful application for an extension of time – Unsuccessful application for leave to bring second appeals against conviction and sentence on 42 charges of tax fraud – Sentenced to 4 years 9 months’ imprisonment – On first appeal conviction in respect of charges 2 to 34 allowed and retrial ordered on those charges – Charges subsequently withdrawn by IRD as not in the public interest – Applicant appealed for a second time – Court has a discretion to extend time for filing an application for leave to appeal in appropriate cases – Evidence reviewed and absence of opposition noted – Whether conviction involved a matter of general or public importance, or a miscarriage of justice occurred – Appeal against sentence not progressed, but neither was it formally abandoned at first appeal – Respondent’s position was that there was simply no jurisdiction for a second appeal because there has been no determination of a first appeal – HELD: extension of time to file appeal granted – Trial counsel’s conduct fell below the standard expected of a trial lawyer, but no miscarriage of justice occurred – No jurisdiction for second appeal against sentence – Leave to appeal declined.
[B] v R [2023] NZCA 500
[FI] v R [2023] NZCA 505
Reihana v Foran [2023] NZCA 506
Unsuccessful application for extension of time – Applicant filed proceedings against Air New Zealand and its Chief Executive Officer in relation to the airline’s Covid-19 vaccination policy – Proceedings struck out in HC – Appeal treated as having been abandoned – Application for extension of time to apply for allocation of a hearing date and to file case on appeal – HELD: delay significant on part of applicant – No good reason advanced for not complying with obligations – Application declined.
Sharma v Foster-Bohm [2023] NZCA 509
Unsuccessful application for leave to appeal – Respondents were employees of INC New Zealand Inc (IHC) and had their employment terminated as part of a restructuring – Applicant was engaged to represent them making a claim for unjustifiable dismissal – Claim was raised outside of statutory timeframe and failed – Respondents brought claim against applicant alleging negligence, breach of contract and breach of fiduciary duty – Respondents were successful in DC – Applicant's subsequent appeals were unsuccessful – Applicant sought leave to bring second appeal, but sought to raise the same arguments that were raised and rejected in the HC – HELD: leave should not be granted – Application declined.
Pfisterer v Claims Resolution Service Ltd [2023] NZCA 511
Unsuccessful appeal against HC decision – Appellant reached an impasse with her insurer after the Canterbury earthquakes of 2010-2011 – First respondent was engaged to help reach a resolution – Attempts at resolution failed - Second respondent was engaged but the relationship between them and the appellant broke down – First respondent issued proceedings against appellant seeking to recover approximately $100,000 – Appellant raised a variety of defences including allegations of misleading and deceptive conduct, unconscionable bargain, breach of contract by first respondent, and breach of fiduciary duty by both first and second respondents – HC found in favour of first and second respondents – Whether Judge erred in findings in relation to first and second respondents - HELD: Judge did not err in findings – Appeal dismissed.
R v Nagel [2023] NZHC 2908 (17 October 2023) Dunningham J
Sentencing – N pleaded guilty to manslaughter – Sentenced to two years' imprisonment – Leave granted to apply for home detention.
R v Champion [2023] NZHC 2949 (20 October 2023) Dunningham J
Sentencing – C pleaded guilty to manslaughter – Sentenced to two years' imprisonment with special condition imposed on release as per pre-sentence report.
R v Johnson [2023] SCC 24 (13 October 2023)
Unsuccessful appeal from Ontario CA – Related to jury instructions on J’s trial and conviction in shooting deaths of two brothers, aged 18 and 22 – No eyewitnesses to murders, no security cameras in stairwell where shootings occurred – However, surveillance footage captured J, brothers, and fourth man heading towards stairwell just prior to shooting – Video also showed J and fourth man running away from stairwell short while later – Absence of footage from within stairwell meant impossible to know who, between J and fourth man, killed brothers –
J only one charged – At trial, Crown theory was J murdered first brother as revenge for implicating him in previous crime, and killed second brother to prevent him from avenging first brother’s death – Before jury started deliberations, however, trial judge instructed it on two possible ways could find J guilty under s 21 Criminal Code: either as “principal” who shot deceased, or as party who “aided” fourth person in committing crimes, concept known as “party liability” – No difference between being aider or principal to offence, as all equally culpable – Jury subsequently convicted J of two counts of first-degree murder –
J appealed conviction to Ontario CA – CA majority dismissed appeal – Appealed to SC –
SC unanimously dismissed appeal – Said CA majority correct to conclude trial judge properly left party liability to jury – Evidence on record provided party liability with air of reality – Appeal dismissed.