Appeal dismissed.

Criminal Law – murder.  Evidence – admissibility, expert evidence.  Criminal Practice and Procedure – lies direction, demeanour direction.

Mr Lundy was convicted of the murders of his wife Christine and daughter Amber following a retrial in 2015.  He appealed his conviction on several grounds.  First, the retrial should have been stayed because changes made to the Crown’s case amounted to an abuse of process.  Second, immunohistochemistry (IHC) evidence establishing the presence of central nervous system tissue (CNS tissue) on two stains on Mr Lundy’s shirt was inadmissible because of concerns relating to its reliability in the context of a criminal trial.  Third, messenger RNA (mRNA) evidence was inadmissible, which was relied on by the Crown to establish that the tissue on Mr Lundy’s shirt was human CNS tissue.  Fourth, in reliance on evidence relating to fuel consumption obtained after the retrial, Mr Lundy could not have committed the murders as there was insufficient petrol for him to have made the journey from Petone to Palmerston North and back.  Finally, there should have been demeanour and lies directions from the trial Judge. 

Whether the retrial should have been stayed as an abuse of process?  Held: no — the authorities relied on by the appellant do not apply once a retrial has been ordered; the essential elements of the Crown case remained the same; the seriousness of the crimes alleged militates against a claim of abuse of process and there was a very strong public interest in the retrial proceeding.

Whether the IHC evidence was admissible?  Held: the IHC evidence was admissible; all of the experts called at the retrial agreed that the IHC methodology and results showed that the tissue was CNS tissue.

Whether the mRNA evidence was admissible?  Held: the mRNA evidence should not have been admitted at the trial.  The evidence could not have been substantially helpful to the jury; the Crown was not able to point to widespread acceptance of the methodology; the evidence could not cross the reliability threshold in the absence of peer review, known or potential rate of error, standards, and general acceptance in the scientific community.

Whether the jury could conclude that that Mr Lundy was able to travel from Petone to Palmerston North to commit the murders?  Held: yes — the evidence in relation to fuel consumption that Mr Lundy relies on is not cogent.

Whether the Judge erred in failing to give a demeanour direction?  Held: the Judge did not err, as Mr Lundy’s conduct at the funeral of his wife and daughter and the jury’s request for a replay of his police interview did not give rise to the need for a demeanour direction.

Whether the Judge erred in not giving a lies direction?  Held: the Judge did not err; and Mr Lundy’s counsel had said to the Judge that a direction was not sought.

Whether the appeal should be dismissed because no substantial miscarriage of justice has actually occurred? Held: the proviso to s 385 of the Crimes Act 1961 should be applied; a guilty verdict was inevitable had the trial proceeded without the mRNA evidence because of the Crown’s IHC evidence and evidence of Christine’s DNA on Mr Lundy’s shirt; and the admission of the mRNA evidence did not have the effect of making the trial unfair.

Appeal dismissed. Costs order.  Confidentiality restrictions.

Commercial law - Commerce Act 1986 Competition law - authorisation

The appellants are both major media providers in New Zealand, and sought clearance and authorisation for them to merge. The Commerce Commission declined clearance and authorisation, finding that there would be a substantial lessening of competition (SLC) in several relevant markets. Though it found substantial efficiencies would be generated by the transaction, these were reduced by the prospect of a paywall being introduced after the transaction, and outweighed by substantial losses of quality and plurality in media markets.

The High Court disagreed that there would be an SLC in one relevant market, and disagreed that a paywall was likely post-transaction. It otherwise agreed with the Commission, declining clearance and an authorisation. It mentioned that it was concerned by the remote but serious possibility that a foreign owner would take over the merged entity post-transaction and use it for political influence. On appeal to this Court the appellants only sought an authorisation; the Commission appealed the High Court’s findings on the paywall issue.

Held: appeal dismissed; costs order.

Does the Commerce Commission have jurisdiction to take into account non-economic detriments, such as plurality detriments? Yes.

The Commerce Act 1986 (the Act) deliberately permits authorisation for mergers on widely- defined public benefit grounds. The Act requires consideration of economic efficiencies arising from the merger, but other considerations may be relevant and even determinative. This conclusion is supported by the legislative history and case law.

Did the High Court err in its approach to assessing whether benefits or detriments were “likely”? The High Court erred by taking into account the remote risk that a foreign owner would exploit the merged entity for political purposes.  It did not otherwise err.

The Act requires that benefits and detriments be “likely”. This does not mean that they be more likely than not to occur, but simply that there is a real and substantial chance that they would occur post-merger. This is not a practical filter; it is a legal requirement. The High Court erred; the risk of a foreign owner exploiting the merged entity for political purposes was serious, but not likely, so it should not have entered the balancing exercise.

Should the High Court have granted authorisation?  No.

The High Court erred on the paywall issue. Competitive pressure between the appellants is the major reason for the lack of a paywall in the status quo, and the High Court erred in finding a paywall was otherwise unlikely. Further,  as  the  Commission  and  High  Court  found, New Zealand media markets are highly concentrated by international standards. The appellants are each other’s greatest competitors. The competitive tension between them incentivises more quality reporting; the transaction would lead to significant cuts in journalism and editorial resources. The transaction would also significantly reduce plurality in the media marketplace, providing for a diversity of voices and helping stop one voice from gaining too much influence over the political agenda

Application for extension of time granted. Appeal allowed. Conviction quashed. Judgment of acquittal to be entered.

Criminal Law – acquittal, defences, practice and procedure, sentence. Criminal Practice and Procedure – miscarriage of justice, plea.

Ms Gleason-Beard appeals her conviction of injuring with reckless disregard on the basis that comments made by the trial Judge in chambers improperly influenced her decision to plead guilty and the sentence indication which followed was unnecessarily rushed and unfair.

Did the Judge’s intervention constitute exceptional circumstances? Held; yes. The Judge gave a sentence indication that was not requested, the Judge indicated an incorrect starting point and the interference effectively undermined defence counsel’s position. Ms Gleason-Beard’s guilty plea was a result of the Judge’s intervention which was capable of constituting exceptional circumstances which could result in a miscarriage of justice.

Did Ms Gleason-Beard have a defence of sufficient substance? Held; yes. On the charge of wounding with intent to injure, Ms Gleason-Beard’s defence was that she did not intend to be violent. On the charge of injuring with reckless disregard, Ms Gleason-Beard had a sufficiently substantial defence that she did not appreciate the risk of causing an injury and decide to take it anyway. On the assault charge, the complainant made no reference to the alleged acts.

Application for extension of time to appeal granted. Appeal allowed. Conviction quashed. No order for a retrial.
Criminal law. Conviction appeal. Fresh evidence.

The appellant was convicted of the manslaughter of her infant child Chantelle in 1989, who died as a result of an assault. The appellant was sentenced to six months' supervision. Subsequently Chantelle's father claimed responsibility for her death and was sentenced on the basis that he was the principal offender, for whom the appellant had 'taken the fall' .

The Crown accepted the appellant's conviction for manslaughter should be quashed, and did not seek a retrial given the passage of time and the fact the appellant had already served the sentence imposed in 1990.

Held: application for extension oftime granted; appellant's conviction for manslaughter
quashed; no order for a retrial.Application for extension of time to appeal granted. Appeal allowed. Conviction quashed. No order for a retrial.
Criminal law. Conviction appeal. Fresh evidence.

The appellant was convicted of the manslaughter of her infant child Chantelle in 1989, who died as a result of an assault. The appellant was sentenced to six months' supervision. Subsequently Chantelle's father claimed responsibility for her death and was sentenced on the basis that he was the principal offender, for whom the appellant had 'taken the fall' .

The Crown accepted the appellant's conviction for manslaughter should be quashed, and did not seek a retrial given the passage of time and the fact the appellant had already served the sentence imposed in 1990.

Held: application for extension oftime granted; appellant's conviction for manslaughter
quashed; no order for a retrial.

Criminal Law.  Sentence.  Minimum period of imprisonment.
Appeal against sentence dismissed.

Mr Carroll was found guilty of murder and sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.  Mr Carroll appeals, saying s 104(1)(e) of the Sentencing Act 2002 does not apply.  That section provides a presumption of a 17 year MPI for murders committed with a high level of brutality, cruelty, depravity or callousness.  Mr Carroll says the Judge erred in finding the provision was engaged, saying there was no intention to kill.

Held: the provision was engaged.  Mr Carroll’s conduct was callous before, during, and after the killing.  There was premeditation, a vigilante dimension, and brutality.  Further, Mr Carroll visited indignities on the victim’s body after the killing including setting it on fire.  

Appeal dismissed. Leave granted for parties to file further submissions on costs.

Resource Management – application for resource consent.

The appellant applied to the respondent for resource consent to establish and operate a mussel farm adjacent to and surrounding a promontory in Pelorus Sounds. The respondent declined the application. The appellant appealed to the Environment Court, which decided that the proposal did not avoid or mitigate the environmental effects it would impose. The appellant appealed to the High Court in raising the question of whether the Environment Court erred in failing to apply pt 2 of the Resource Management Act 1991 in considering the application for resource consent under s 104. The High Court Judge held that the reasoning of the Supreme Court decision in King Salmon applies to s 104 considerations, as the relevant planning documents had already given substance to the principles in pt 2.

Whether the High Court erred in holding that the Environment Court was not able or required to consider pt 2 directly and was bound by its expression in the relevant planning documents? Held: yes, but because there were no reasons in this case to depart from pt 2’s expression in the relevant planning documents, the error was of no consequence.

Whether the High Court should have remitted the case back to the Environment Court for reconsideration? Held: no.

State immunity. Jurisdiction. Forum conveniens.

The appellant was a member of the Royal New Zealand Navy. While posted to the United Kingdom Royal Navy for further training she allegedly experienced a culture of sexual harassment and was indecently assaulted and raped by Royal Navy personnel. She sought to bring proceedings against the Ministry of Defence of the United Kingdom (MOD(UK)) for a breach of a duty of care to take all reasonable steps to ensure her safety and for vicarious liability (jointly with the Attorney-General of New Zealand (AGNZ)) for battery. The High Court upheld the MOD(UK) 's protest to jurisdiction on the ground of state immunity, and would have concluded the courts of England and Wales were the appropriate forum for the claims against the MOD(UK).

Held: the High Court Judge was correct to find that the doctrine of state immunity applied, meaning the appellant could not bring the above proceedings against the MOD(UK) in the New Zealand Courts. The Judge was also correct to conclude that the courts of England and Wales were the more appropriate forum for the claims against MOD(UK). The Court dismissed the following arguments:

a) New Zealand owed the appellant an obligation to provide her with an effective remedy in the New Zealand courts for the wrongdoing she suffered as a matter of domestic law under the New Zealand Bill of Rights Act 1990;

b) New Zealand owed the appellant an obligation to provide her with an effective remedy in the New Zealand courts under international law because her fundamental rights were arguably violated, with the ensuing obligation arising under either customary international law or by virtue of various treaties;

c) The MOD(UK)'s protest to jurisdiction should be dismissed on the grounds of an "inequity exception" to the state immunity doctrine discussed in Controller and Auditor-General v Davison [1996] 2 NZLR 278 (CA); and

d) The High Court of New Zealand is the appropriate forum for the appellant's proceedings against the MOD(UK).

Successful appeal by Opua Coastal Preservation Inc against a decision declining to quash a decision of the Minister consenting to the grant of easements over public reserve land.  The challenged easements permitted the operation of a boatyard to extend onto land vested in the local Council for the purposes of an esplanade reserve.  The Court found the challenged easements could not be consented to under the Act because they did not fit the common law definition of an easement.  The decision acknowledged that some of the easements at issue could be redrawn more narrowly so as to meet the definition.   The Court rejected the appellant’s argument that s48(1)(f) of the Reserves Act 1977 should be interpreted narrowly to empower only the grant of easements for a public purpose. 

In relation to the role of the Minister, the Court disagreed with the trial Judge that the Minister’s role was limited to a review of the processes followed by the Council when granting the easements.  The Act requires the Minister to exercise their own independent judgment as to whether to grant the easements.  It was therefore possible to take a different view from that of the Council.  However, the Court declined to address this ground further as it did not have the sufficient argument and evidence. 

The law recognises and imposes different rights and obligations under leases, licences and easements.  In the case of reserves, the Reserves Act regulates the right to confer leases, licences and easements quite differently.  The Court discussed the importance of therefore maintaining clarity as to the distinction between these different legal concepts of lease, licence and easement.

Judgment recognising the existence of a new public interest defence to defamation claims arising from mass publications. The elements of the new defence are the subject matter of the publication must be a matter of public importance and the communication must be responsible. In recognising the new defence, the Court held the form of qualified privilege recognised in Lange v Atkinson [1998] 3 NZLR 424 (CA) and [2000] 3 NZLR 385 (CA) has been replaced. The new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern. In this appeal against a decision declining to strike out the defence pleaded by Maori TV and one of its reporters, the Court held the public interest defence was untenable in relation to the website publication for the period of time before a response was published. It also held reliance on reportage - mass publication of an allegation without verification of its content is protected where the public interest lies in the fact of the allegation having been made, rather than the truth of the allegation - was unavailable as one of the most prominent assertions was portrayed as fact rather than an allegation. Other challenges to the responsibility of communication were held to be properly left for trial.

Mr Winders was found guilty of murder by a jury in the High Court at Rotorua.  He appeals his conviction and his sentence.

The conviction appeal alleges that a miscarriage of justice occurred on three separate grounds.  First, propensity evidence was wrongly admitted.  Secondly, the evidence Mr Winders gave in a police interview was improperly obtained in breach of the New Zealand Bill of Rights Act 1990.  Thirdly, an issue relating to the jury should have been brought to the attention of counsel so they could make submissions on how it should be dealt with.

The sentence appeal raised two grounds.  First, that s 104(1)(b) of the Sentencing Act 2002 did not apply and secondly, there should have been a discount in the sentence to take account of the breaches of Mr Winders’ rights under the New Zealand Bill of Rights Act.

 HELD: APPEAL AGAINST CONVICTION AND SENTENCE DISMISSED.

The admissibility of the propensity evidence was confirmed by this Court on appeal pre-trial.  There was no challenge to the correctness of that ruling.  There was no change to the propensity evidence given at trial from that anticipated at the time of the pre-trial ruling and there was no other basis to revisit that ruling.

The admissibility of the police interview had also been confirmed by this Court in the pre-trial appeal.  No relevant change in circumstances (evidence or law) has occurred since that determination.  In these circumstances, it is an abuse of process to seek to challenge the Court’s earlier decision on the same issue.  The appropriate course is to seek leave to appeal to the Supreme Court if the correctness of this Court’s earlier decision is to be challenged. 

There was no risk of a miscarriage occurring from the way the trial judge dealt with the jury issue.  This was a minor issue of jury dynamics.  It was within the discretion of the judge to resolve the issue as he did.

Section 104(1)(b) was engaged because the murder involved calculated planning.  A breach of the New Zealand Bill of Rights Act by the police could justify sentence discounts in appropriate cases.  However, such discounts must be in accordance with the Sentencing Act.  The “manifestly unjust” threshold required to depart from the 17-year mpi in s 104 was not reached here.