New Zealand Law Society - Courts roundup 29 February - 6 March 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
T (SC 93/2023) v R [2024] NZSC 19 (27 February 2024)
Unsuccessful leave application – T tried and found guilty on one charge of doing indecent act on young relative (N) and one of breaching protection order by doing that act – Also pleaded guilty to three charges of breaching protection order relating to child’s mother – Sentenced to concurrent sentences of eight months’ home detention –
T appealed against convictions relating to N saying fresh evidence tending to show he suffered from sexsomnia and so had viable defence of sane or insane automatism – CA dismissed conviction appeal – CA said evidence fresh but not cogent because not probative of sexsomnia as explanation for index charge – T applied for leave to appeal to SC –
SC said proposed appeal did not raise any question of general or public importance but rather would challenge CA factual assessment – Nothing T raised gave rise to appearance of miscarriage of justice – Application declined.
HWD NZ Investment Co Ltd v Body Corporate 392418 [2024] NZCA 33
Unsuccessful appeal against HC decisions declining to set aside a statutory demand related to non-payment of building repair levies under an ordered scheme of arrangement and a second statutory demand for building repair levies – Unsuccessful application to adduce further evidence - Scheme under which the relevant levies were issued relates to a unit title development which had weathertightness and fire issues – Negligence proceedings – Settlement - Whether the Associate Judge erred in finding that cl22 of the scheme justified exercising the discretion under s290(4) Companies Act 1993 to not set aside the statutory demand – Appeal is against exercise of discretion - Leave to adduce further evidence pertaining to the apportionment and distribution of settlement funds by the Body Corporate – Further evidence does not meet threshold in relation to the issue on appeal – Associate Judge correct in using his discretion to not set aside statutory demands - HELD: Leave to adduce further evidence declined – Appeal dismissed.
Malkhasian v NZ Brick Distributors Ltd Partnership [2024] NZCA 36
Successful appeal - A non-party is entitled to its actual, reasonable costs incurred in complying with a non-party discovery order unless there exists good reason for it not to be awarded those costs - Appeal addresses the principles to be applied where a non-party has acted so as to significantly increase the costs of the discovery process – Respondent was responsible for the way costs escalated after the order for discovery was made and it was reasonable for the appellants to reject respondents escalating claims for costs while it adopted an unreasonable stance in respect of the scope of the order for discovery - Respondents entitlement to costs is only to its reasonable costs – HELD: Appeal allowed – HC judgment set aside – Respondent to pay costs in the sum of $7,500 to the appellants in respect of their costs for the order for non-party discovery in the DC - Respondent must pay the appellants costs in CA calculated for a standard appeal on a band A basis, together with usual disbursements - Respondent must pay the appellants costs in the HC calculated on a 2B basis, together with usual disbursements.
Chen v Huang [2024] NZCA 38
Partially successful appeal - Primary issue on appeal is whether a joint venture agreement (the JV agreement) dated 19 April 2012 between the first appellant and the first and second respondents remains in force, or whether it was replaced by a subsequent partnership agreement, based on an “Integration Scheme”, in or about May/June 2013 – HC found that the Integration Scheme was never agreed between the parties and that there was no partnership based on it or otherwise - In the alternative, the Judge held that if a partnership agreement had been reached, it was vitiated ab initio by various misrepresentations made by the first appellant - Appellants submit that the Judge’s findings were incorrect - That the overwhelming weight of the evidence was to the effect that first appellant and first and second respondents did enter into a partnership and that they abandoned the JV agreement - Appellants deny that either first or second respondents were misled or deceived - Seek a declaration that there was a partnership, together with an accounting to determine the respective entitlements of the parties in the partnership assets - HELD: Leave granted to respondents permitting them to adduce part of affidavit as further evidence - Leave declined to the respondents to adduce in evidence the remainder of the affidavit - First appellant granted leave to amend prayer for relief - Respondents granted leave to amend their prayer for relief - Award of equitable damages made in respect of the first, second and third causes of action is set aside - Principal sum awarded in respect of the fourth cause of action reduced from $2,376,261, to $1.2 million - Principal sum awarded in respect of the fifth cause of action reduced from $2,376,261, to $1,176,271 - Orders made in respect of the seventh cause of action are set aside - Orders made in respect of the eighth cause of action are amended - In all other respects, the relief granted in respect of the eighth cause of action is upheld - Orders for the payment of interest in respect of first appellants third counterclaim and in respect of the respondents' fourth, fifth, sixth and eighth causes of action are set aside - Interest on each relevant cause of action/counterclaim is awarded pursuant to s24(2)(b) Interest on Money Claims Act 2016, from the date of each advance to the date of judgment at the rate of 5 percent per annum and from the date of judgment to the date of payment pursuant to s10 and s12 of that Act - In all other respects the appeal is dismissed.
[P] v R [2024] NZCA 41
R v Te Kotia [2024] NZHC 332 (27 February 2024) Johnstone J
Sentencing – TK pleaded guilty to manslaughter of her young daughter – Starting point four years' imprisonment adopted to recognise distinctive circumstances moderating TK’s culpability as well as serious consequences of her actions –
Personal mitigating features: 10 percent for youth as TK 21 years old; 5 percent for guilty plea few days prior to trial (but not more due to unsuccessful application to vacate guilty plea); 10 percent for undergoing examination as Crown witness at trial of ex-partner; and 25 percent for causative factors from family, cultural background, personal history (including lack of prior convictions and state of mental health), distinctive impact of imprisonment on mental health and relationship with 14-month old child and capacity for rehabilitation and considerable steps taken towards rehabilitation – Sentence: 12 months' home detention.
R v Hayde [2024] NZHC 374 (29 February 2024) Venning J
Sentencing – Murder and associated charge of attempting to pervert course of justice by setting fire to victim’s home – Representative charges of assaulting and threatening to kill former partner – HC said s 104(1 )(c) Sentencing Act 2002 engaged as H went to victim's property with intent to assault victim – Under s 103 murder alone MPI 13½ years required – Four years uplift in MPI for attempting to pervert course of justice appropriate – Further uplifts totalling six months for separate offending against former partner and murder occurring while on bail – MPI 17 years or more not manifestly unjust – Reduction in 18 years MPI to 17 years taking account of personal factors.
R v Franklin [2024] NZHC 376 (29 February 2024) Brewer J
Sentencing – DC jury found F guilty of indecent assault on young person and sexual violation by unlawful sexual connection – Victim 13-year-old boy – Sentenced in HC because Crown said F should be sentenced to preventive detention – Previously sentenced to preventive detention in 2018 but overturned on appeal – Again sentenced to preventive detention.
R v Bykovets [2024] SCC 6 (1 March 2024)
Successful appeal from Alberta CA – Issue whether internet protocol (IP) address attracted reasonable expectation of privacy, whether Police request to obtain IP constitutes unreasonable search under s 8 Canadian Charter of Rights and Freedoms –
In 2017, Calgary Police began investigation into fraudulent online purchases from liquor store – Learned Moneris, third-party payment processing company, managed store’s online sales – Police contacted Moneris to obtain IP addresses used for transactions and Moneris identified two – Police then obtained court order compelling addresses’ Internet service provider to disclose customer’s name and residential address for each IP address – One registered to B, other to his father – Police used information to obtain and execute search warrants at their residences – B arrested and charged with offences relating to, among others, possession and use of third parties’ credit cards and personal identification documents –
Before trial B challenged police’s request to obtain IP addresses from Moneris, alleging violated right against unreasonable search and seizure under s 8 Canadian Charter of Rights and Freedoms – Section 8 object to protect privacy, including informational privacy – To establish violation of s 8 right, B first needed to show there had been “search” – Search occurred where state invaded reasonable expectation of privacy – B said had expectation with respect to IP address –
Trial judge said police request to Moneris did not amount to search because no reasonable expectation of privacy in Internet user’s IP address – Said on their own, IP addresses did not provide link to, or any other information about Internet user – Meant B did not have reasonable expectation of privacy in IP address and no violation of s 8 right – B ultimately convicted of 14 offences –
Alberta CA majority agreed with trial judge and dismissed B’s appeal – B appealed to SC –
SC majority allowed appeal – Said if s 8 to meaningfully protect online privacy of Canadians in today’s overwhelmingly digital world, must protect IP addresses – Said IP address crucial link between Internet user and their online activity – Appeal allowed, convictions set aside, new trial ordered.
Trump v Anderson 23-179 (4 March 2024)
Successful appeal from Colorado SC – Group of Colorado voters contended that s 3 Fourteenth Amendment to US Constitution prohibited former President Donald J. Trump, seeking Republican Party Presidential nomination in this year’s election from becoming President again – Colorado SC agreed – Ordered Colorado secretary of state to exclude former President from Republican primary ballot in State and to disregard any write-in votes Colorado voters might cast for him – Former President Trump challenged decision on several grounds – SC said, among other things, because Constitution made Congress, rather than States, responsible for enforcing s 3 against federal officeholders and candidates – Reversed ruling.