Case Summaries 2012

Jay Maui Wallace  v The Queen

CA  417/2011  [2012] NZCA139

CAW v The Queen

CA  710/2011  [2012] NZCA120

John George Russell v Commissioner of Inland  Revenue

Civil Appeal – Tax avoidance – Whether the applicant received a fair and impartial hearing – Whether the Court of Appeal was correct in its analysis of the evidence – Whether the Court of Appeal erred in finding that the overall arrangement established and operated by the applicant had the purpose or effect of tax avoidance – Whether the Court of Appeal erred in finding that the applicant was a person affected by the arrangement and that he obtained a tax advantage – Whether the Court of Appeal was correct to find that the assessment made by the Commissioner would not be void even if it included income deemed by virtue of s 99(4) of the Income Tax Act 1976 to be the income of someone else.

CA  654/2010  [2012] NZCA128

Loktronic Industries Limited v Stephen John Diver and others

CA  258/2011  [2012] NZCA131

Reginald Robert Long v ANZ National Bank Limited

CA  708/2011  [2012] NZCA132

Richard Grant Simpson & Timothy Wilson Downes as receivers of Capital + Merchant Investments Limited (In Receivership) v Commissioner of Inland Revenue

CA 361/2011  [2012] NZCA 126

Jason Lloyd Jones v The Queen

CA 376/2011  [2012] NZCA 27

Robert Erwood v Janet Maxted and others

Procedure – High Court Rules – Inherent Jurisdiction – Whether Court of Appeal erred in upholding the Associate Judge’s finding that the High Court at Nelson was, in the circumstances, the most convenient Court to deal with the issues raised in the bankruptcy notice – Whether a litigation guardian should have been appointed to assist the applicant – Bankruptcy – Whether a bankruptcy notice should have been issued against a person known to be solvent.

CA 567/2007  [2012] NZCA 110

CF v The Queen

Criminal Appeal – Evidence and Procedure – Admissibility of evidence – Whether the Court of Appeal erred in its interpretation of the verb “to obtain” in the context of s 30(5) of the Evidence Act 2006 – Whether the Court erred in its decision not to exclude the statements made by the appellants on the ground of unfairness.

CA 372/2011  [2012] NZCA 114

YS v The Queen

Criminal Appeal – Evidence and Procedure – Admissibility of evidence – Whether the Court of Appeal erred in its interpretation of the verb “to obtain” in the context of s 30(5) of the Evidence Act 2006 – Whether the Court erred in its decision not to exclude the statements made by the appellants on the ground of unfairness.

CA 373/2011  [2012] NZCA 114

SM v ASB Bank Limitred

CA 6902011  [2012] NZCA 103

Gareth John Needham v The Queen

Criminal Appeal – Evidence – Expert evidence – Whether the Court of Appeal erred in failing to hold that the trial Judge should have ordered severance of count one into two alternative counts – Whether there was a breach of s 92 of the Evidence Act 2006 as trial counsel did not cross-examine four Crown witnesses on an issue of veracity – Whether the Court of Appeal erred in fact and law in relation to an issue that a Crown witness was allegedly improperly asked in evidence-in-chief – Whether evidence should have been led as to the lack of previous convictions of the appellant – Whether the Court of Appeal should have determined the admissibility of fresh good character evidence – Whether the Court of Appeal erred in holding that the fresh evidence of an astronomer would not have been substantially helpful – Whether the Court of Appeal erred in holding that the fresh evidence of a consultant forensic pathologist would not have been substantially helpful.

CA 443/2011  [2012] NZCA 95

Pawel Marian Misiuk v New Zealand Parole Board, Department of Corrections, New Zealand Immigration.

Criminal law – Parole – Parole Act 2002, ss 21(1) and 28(5) -  Habeas corpus - Whether the Parole Board’s exercise of its extraordinary powers under s 28(5)  to amend the applicant’s release date was in breach of section 22 of the Bill of Rights 1990 prohibiting arbitrary detention – Whether not permitting the applicant to be heard or represented at certain Parole Board sittings was in breach of s 27(1) of the Bill of Rights 1990 - Whether the chairman of the Parole Board failed to comply with the procedures set out in the Parole Act 2002 and Criminal Justice Act 1985 – Whether the Parole Board failed to comply with its own policy regarding disclosure – Whether the Parole Board’s decision was based on erroneous and irrelevant information and falsified High Court records – whether the Parole Board acted outside of its jurisdiction and abused its power.

CA164/2012  [2012] NZCA 116

WDB v The Queen

Criminal Appeal – Pre-trial application – Evidence Act 2006, s 43 – Admissibility of propensity evidence – Whether Court of Appeal erred in dismissing appeal against admission of propensity evidence at trial – Probative value of propensity evidence in identifying the offender –– Incident of alleged offending and propensity incident allegedly different in nature – Whether Court of Appeal was correct to regard that the inevitable identification of the applicant in respect of all charges once the applicant’s identification on one charge is established is not unfairly prejudicial.

CA 696/2011    [2012] NZCA106

Michael Peter Stiassny, Grant Robert Graham, Forestry Corporation of New Zealand Limited (in receivership), Citic New Zealand Limited (in receivership), CNI Forest Nominees Limited and Bank of New Zealand.

Civil Appeal – Goods and services tax – Restitution – Recovery of a GST payment paid by the first appellants to the respondent in the mistaken belief that they were personally liable for the debt – Whether secured creditors own the proceedings of sale of assets that are subject to registered fixed charges at the time of sale, if they are sold for less than the secured debts to which the charges relate – Whether the first appellants were entitled to apply the proceeds of sale of the Central North Island Forestry Partnership (CNIFP) assets to the payment of GST amount, in priority to the claims of the secured creditors – Whether the GST payment was “debtor-initiated” in terms of s 95 of the Personal Property Securities Act 1999 (PPSA) – Whether s 95 of the PPSA barred the recovery of the GST payment if it was made under a mistake – Whether the second and third appellants have a cause of action in restitution for the recovery of their mistaken payment – Whether the first appellants have a cause of action in restitution for the recovery of their mistaken payment – Whether the security trustees have a cause of action in restitution for the recovery of the mistaken payment made by the first appellants to the Commissioner of Inland Revenue –  Whether “good faith” is a pre-requisite for a defence of the provision of good consideration to the payer to a claim for the recovery of a payment made under a mistake – Whether the first appellants are entitled to recover GST payment pursuant to their tax challenge cause of action pursuant to the Tax Administration Act 1994.

SC 775/2010   [2012] NZCA 93

A  Leave to appeal is granted.

B  The approved grounds are:

(i)  whether the GST payment was a “debtor-initiated payment” in terms of s 95 of the Personal Property Securities Act 1999 so as to confer priority to the Commissioner over any claim to those moneys by any respondent;

(ii)  whether any of the appellants can recover the amount of GST so paid from the Commissioner on the basis that it was paid by the receivers under a mistaken belief that they were personally liable to pay it or on any other basis.

8 May 2012

Shane Daniel Hannigan  v The Queen

Criminal Appeal – Evidence – Evidence Act 2006, ss 43 and 94 – Appeal against conviction for arson – Propensity evidence – Whether propensity evidence admitted without regard to the balancing exercise required by s 43 to determine whether the probative value of the evidence is outweighed the risk that it would be unfairly prejudicial – Whether evidence related to the specific issue in dispute – Whether any direction to the jury as to how to use the evidence should have been given – Whether evidence amounted to separate criminal allegations that should have been brought as separate charges – Cross-examination – Whether Crown breached s 94 by cross-examining its own witness – Whether Court of Appeal should have applied Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23.
CA 639/2011  [2012] NZCA 133

Michael Santo Colosimo v The Queen

Criminal Appeal – Evidence and Procedure – Disclosure of documents at trial or before trial – Whether the trial Judge and Court of Appeal erred in their approach to alleged prejudice caused by prosecution use of a document not disclosed before trial – Whether the trial Judge should have ordered an adjournment or made other appropriate orders once the document in question was disclosed.

SC 687/2011  [2012] NZCA 60

Tyson Bennett v The Queen

SC 682/2011  [2012] NZCA 44

Shannon Richard Andrews v The Queen

Criminal Appeal – Sentencing – whether the Court of Appeal erred in failing to take the personal circumstances of the Applicant into consideration – whether the Court of Appeal erred in upholding a greater sentence to the Applicant than to his co-conspirator – whether the Court of Appeal erred in not questioning how the estimation as to the stolen goods was reached – whether the Court of Appeal was influenced inappropriately by allegedly bias comments made by the sentencing judge.

CA 455/2011  [2012]  NZCA 61

Ronald van Wakeren v Chief Executive of the Department of Corrections

Administrative law – Habeas Corpus – Habeas Corpus Act 2001, s 16 (1A) – Whether Court of Appeal erred in failing to grant writ of Habeas Corpus – Improper composition of bench – Error in Warrant for Imprisonment – Breach of natural justice.

CA 66/2012  [2012]  NZCA 22

Vincent Ross Siemer v The Chief Justice and The Attorney-General

CA 558/2011  [2012]  NZCA68

Vincent Ross Siemer v Solicitor-General

CA 545/2011  [2012]  NZCA 68

Mark Joseph Benjamin  v The Queen

Criminal Procedure – A number of errors alleged relating to process and matters of fact and law in Court of Appeal decision – Whether by allocating a one day hearing the Court of Appeal breached principles of procedural fairness and natural justice resulting in counsel for the applicant having an inadequate opportunity to present the applicant’s case – Whether the Court of Appeal erred in its conclusions as to the reliability of the computer system and by refusing to admit new evidence relating to the computer records – Whether the Court of Appeal erred in its consideration of the audit report – Whether the Court of Appeal erred in finding that the outcome of the trial was not affected by the decision of the applicant’s counsel not to brief and lead Mr Lowe’s evidence – Whether the Court of Appeal ought to have considered the unlikelihood of Mr Spence junior having acted as an “instrument” of the applicant – Whether the Court of Appeal erred in its treatment of evidence as to whether there was an oral agreement to increase the applicant’s salary – Whether the Court of Appeal erred in holding that certain findings regarding count 5 were open to the trial judge – Whether trial counsel misconducted the trial by failing to put the appellant’s case to opposing witnesses as required by s 92 of the Evidence Act 2006.

CA 897/2010  [2012]  NZCA 9

Glen Dallas Goldberg  v The Queen

CA 825/2011  [2011]  NZCA 656

Notice of abandonment being filed, the application for leave to appeal is deemed to be dismissed.

4 April 2012.

Ivan Sydney Oliver Hawkins  v The Queen

Criminal Procedure – Bail Act 2000, ss14, 70 – whether the Court of Appeal erred in finding that granting bail pending appeal to the Applicant, so as to allow him to contact witnesses, was not in the interests of justice.

CA 825/2011  [2011]  NZCA 656

Allan John Todd v The Queen

Criminal Appeal – Conviction and sentence – Threatening to kill and sexual violation - Whether Court of Appeal correct to dismiss appeal against conviction and sentence – Fair Trial – Police misconduct pre-trial – Right to Counsel – Counsel misconduct at trial – Fresh evidence.

CA 265/2004

Raghu Aryasomayajula v The Queen

Criminal Appeal – Appeal against conviction – Crimes Act 1961 – Whether the Court of Appeal erred in law – Whether there was a miscarriage of justice – Whether there was insufficient evidence to convict.

[2011] NZCA  633  CA 105/2011

Commissioner of Inland Revenue v Redcliffe Forestry Venture Limited and others

Civil Appeal – Jurisdiction – High Court Rules, r 5.49 – The respondents sought to set aside a High Court judgment, holding that a forestry investment structure was created for the dominant purpose of tax avoidance and that was upheld by the Court of Appeal and the Supreme Court, on the basis that the Commissioner presented a false case to the Court by failing to disclose that another provision of the Income Tax Act 1994 was applicable – This was raised on appeal before the Supreme Court which refused to hear the argument – Whether the High Court has jurisdiction to hear and determine this proceeding – In the alternative, whether the proceeding should be struck out as an abuse of process.

[2011] NZCA  638  CA 152/2010, CA 204/2010

The application for leave to appeal is granted.

The approved questions are:

(i) whether the Commissioner’s challenge to the claim was appropriately brought under r 5.49; and
(ii) whether the judgment of the High Court should in any event have been upheld.
29 February 2012

Rita Wilson v David Murray Blanchett and Grant Edward Burns

Civil Appeal – Company Law – Companies Act 1993 – Whether the Court of Appeal was correct to conclude that there was no arguable defence to the Respondents’ application for summary judgment – Whether certain payments transferred to the Applicant were made with valuable consideration per s 298(2) of the Companies Act 1993

[2011] NZCA  647  CA 521/2010.

B v The Queen

Criminal Appeal – Evidence – Evidence Act 2006, s 25 – Admissibility of expert opinion evidence – Appeal against the decision of the Court of Appeal, which held that the trial Judge’s refusal to allow the defence to call an expert did not cause a miscarriage of justice – Whether the Court of Appeal erred in concluding that the applicant was not prejudiced by this refusal

[2011] NZCA 654  CA 196/2010

Malcolm Edward Rabson v Linda Gallagher and others.

Civil Appeal – division of property - Property (Relationship) Act 1976 – whether the Court of Appeal erred in failing to take into account relevant considerations regarding separate property owned by the applicant – whether the Court of Appeal erred in making factual findings – whether the Court of Appeal failed to apply basic legal principles – whether the Court of Appeal took into account irrelevant considerations in relation to the Family Trust– whether the Court of Appeal erred in treating the Applicant as having the same legal personality as the Third Respondent – whether the Court of Appeal erred in failing to afford separate legal representation to a minor.

[2011] NZCA  669  CA 507/2010, CA 726/2010

LLT  v The Queen

Pretrial ruling – change of venue.

[2011] NZCA  617  CA 694/2011

Joseph Quintin Donnelly  v The Queen

Criminal Appeal – Admission of new evidence – Appeal against a decision of the Court of Appeal which declined leave to adduce new evidence relating to DNA testing – Whether the Court of Appeal erred in concluding that the DNA evidence was neither fresh nor cogent

[2011] NZCA  660  CA 644/2010

Application for leave to appeal dismissed.

29 March 2012.

Paul Desmond Currie v The Queen

Criminal Appeal – Miscarriage of justice – Crimes Act 1961, s 385(1)(c) – The Applicant was convicted of one charge of blackmail pursuant to s 237(1)(b) of the Crimes Act 1961 – The Applicant asserts that the document this conviction was based on was a forgery and that a witness committed perjury – Whether the Court of Appeal erred in dismissing his appeal against conviction.    

[2011] NZCA  624   CA 690/2010

Jay Maui Wallace v Chief Executive of Department of Corrections

Habeus Corpus – Whether Appellant is subject to the laws of New Zealand – Whether Appellant is being arbitrarily detained because of alleged procedural failings pertaining to hearings in the High Court and Court of Appeal.

[2011] NZCA  678  CA 783/2011