Court of Appeal Judgments of Public Interest
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In March 2020, the Prime Minister issued in response to COVID-19 an epidemic notice under the Epidemic Preparedness Act 2006 (the EPA) which has been renewed every three months since. Section 15 of the EPA provides that whilst an epidemic notice is in force, the Governor-General may by Order in Council, made on the recommendation of a relevant Minister, modify “any requirement or restriction” imposed by an enactment. Before a modification can be made, the Minister must be satisfied that the requirement or restriction must be impossible or impracticable to comply with because of the effects of the epidemic.
In April 2020, an IMO modifying aspects of the collective bargaining provisions of the Employment Relations Act 2000 (the ERA) came into force and continued in force until May 2022. Section 53(3) of the ERA provides that a collective agreement that would otherwise expire continues in force for 12 months, provided that collective bargaining to replace that agreement has been initiated before it has expired. Clause 8 of the IMO modified s 53(3) by providing that the 12-month extension period did not start to run while the epidemic notice was in force.
This appeal concerns the lawfulness of that IMO. The appellant, Idea Services Ltd, unsuccessfully sought in the High Court declarations as to the IMO’s invalidity. It had argued that the 12‑month extension period was not a statutory “requirement or restriction” for the purposes of s 15 of the EPA. Idea Services Ltd now appeals the High Court decision.
Held: Appeal allowed. A declaration is made that cl 8 of the IMO was invalid because it modified a statutory provision that did not fall within the scope of s 15 of the EPA.
(1) The Court acknowledged two important points of context for this appeal. The first was the nature of the power in s 15 of the EPA which, given its constitutional concerns, is to be narrowly and strictly construed. The second was the uncertainty created by COVID-19.
(2) However, s 53(3), properly construed, was not a “requirement or restriction”. Section 53(3) extends the life of an existing agreement by up to 12 months in the circumstances noted, but it does not require the parties to conclude an agreement. There are consequences if the bargain is not concluded within the 12-month extension in that the current agreement will then expire, but there is no statutory requirement to avoid that. Even if s 56(3) could be termed a “restriction”, it is not one with which compliance is required. It followed that the IMO which modified s 56(3) was beyond the powers granted by s 15 of the EPA.
(3) In considering whether to grant relief, the Court noted the purported but invalid amendment of legislation engaged fundamental constitutional issues. Where there is a purported exercise that goes beyond the power’s scope, the court’s role is to declare that to be so. Whilst there will be impacts on some cases where the existing agreement remains in force only because of the purported extension, it will not impact the terms and conditions of the individual worker and the duty to negotiate in good faith continues regardless of the status of the previous agreement. It was therefore appropriate to make the declaration.
(4) The Court otherwise dismissed the appellant’s arguments that the IMO was only intended to last for the three-month period of the initial epidemic notice, and that it was not open to the Minister to be satisfied compliance was impossible/impracticable.
Fiduciary relationship. Trusts.
Family and Domestic Relationships. Parent and child. Family protection proceedings.
The respondents brought a claim against the trustees of a trust that their deceased father settled. The father repeatedly raped the first respondent and physically abused the second and third respondents while they were children. After the respondents left home, they had no contact with their father until he died. The father did not leave the respondents anything in his will, and he gifted most of his assets to a trust to prevent the respondents from making a claim against those assets. The respondents claimed that their father's actions were a breach of fiduciary duty. The High Court held that (1) the relationship between parents and young children is inherently fiduciary, (2) the fiduciary relationship between the father and the respondents continued into the respondents' adulthood because his abuse left them vulnerable, (3) the father's fiduciary duties included providing for the respondents, (4) the father breached his fiduciary duties when he gifted his assets to the trust, (5) the trustees were liable for knowing receipt of the assets, and (6) the trustees held the assets on constructive trust for the father's estate, thereby exposing the assets to a claim under the Family Protection Act 1955. The trustees appealed against the finding of a fiduciary relationship and the imposition of a constructive trust.
Whether there was a fiduciary relationship between the father and the respondents?
Held: No. Kós P agrees that the relationship between a parent and young child is inherently fiduciary. However, Kós P finds that the fiduciary relationship between the father and the respondents did not continue into adulthood because there was no longer any relationship of trust. Gilbert J makes no comment on whether the relationship between a parent and young child is inherently fiduciary. Gilbert J finds that, if there was a fiduciary relationship between the father and the respondents, it did not continue into adulthood because the father held no power for the respondents' benefit and there was no duty of undivided loyalty. Collins J (dissenting) says that the fiduciary relationship between a parent and child can continue into adulthood in certain cases, such as when a parent undertakes to care for a disabled adult child. Collins J would have found that the fiduciary relationship between the father and the first respondent continued into adulthood because the father's abuse left her unable to live a normal and independent life. The father's fiduciary duty would have involved providing economic security to the first respondent, and this would have been breached when he gifted his assets to the trust.
Whether a constructive trust should be imposed in favour of the father's estate?
Held: No. Kós P and Gilbert J found there was no breach of fiduciary duty when the father gifted his assets to the trust. They therefore held the respondents could have no proprietary claim to the assets. Collins J (dissenting) proceeded to consider the appropriate remedy if there had been a breach of fiduciary duty. Collins J says that knowing receipt is inappropriate because it is a personal claim and does not give rise to a constructive trust. However, the father's gift could be rescinded. This would allow the assets to be held on constructive trust for the father's estate where they could be contested in Family Protection Act proceedings.
The appellant owns land beneath cliffs that were compromised by the 2010/11 Canterbury earthquakes. Rocks and other debris fell from the cliffs across the appellant’s property. Around 72% of the total debris came from cliffs within the appellant’s land. The remaining 28% came from the neighbours’ clifftop properties above it. The rockfall rendered the appellant’s land inaccessible from the street front. The land has no present value.
The appellant’s land and neighbouring properties were red zoned under the Canterbury Earthquake Recovery Act 2011. The Crown acquired the neighbouring properties between 2012 and 2015. In 2015, the Crown offered to buy the appellant’s land. The appellant rejected that offer.
In 2014/15, the Christchurch City Council notified a new District Plan. The Plan relevantly introduced new management areas, in which the appellant’s land was located. The management areas prohibited, or categorised as non-complying activities, development activities such as hazard-removal works. Expert evidence was given at trial that a private plan change would be required to enable the appellant to carry out certain development and remedial activities on the land.
In 2017 the Crown remade its offer to buy the appellant’s land, which he rejected. The appellant then brought proceedings against the Crown in trespass and nuisance. He claimed the Crown was obliged to remove the rockfall caused by the earthquakes and remediate the risk of further rockfall and/or cliff collapse so he may return to the land. Alternatively, the appellant sought damages reflecting the value of the property he lost. The High Court rejected that claim and, in a separate judgment, awarded costs to the Crown.
The appellant now appeals against the decision and applies for leave to amend his notice of appeal out of time to appeal the costs judgment.
Practice and procedure — amendment to notice of appeal. Should the application for leave to amend the notice of appeal be granted?
Held: Yes. In substance this is an application for an extension of time to appeal the costs judgment. There is no prejudice to the Crown.
Tort law — nuisance — measured duty of care. Should the appeal be allowed?
Held: No. The Crown’s duty to abate the continuing nuisance caused by the neighbouring properties began when it acquired them. At this point, the Crown became subject to a measured duty of care. But by this time the major damage to the appellant’s land had been done by the earthquakes, which the Crown was not liable for. Its acquisition of the neighbouring properties between 2012 and 2015 could not render it retrospectively liable for the initial nuisance caused by them. The Crown acquired the properties in effect as a rescuer, to enable the owners to retrieve some value from their land and move on with their lives. The competing resource demands acting on a public authority which takes over a continuing nuisance is a relevant consideration in assessing the extent of the measured duty. Here, the Crown met its duty to abate the continuing nuisance through the offer it made to the appellant in 2015, which was renewed in 2017. Before the Crown acquired the neighbouring properties, the appellant could have made a claim against the then-owners for the 28% of the total debris that came from their land. Any assessment of the neighbours’ liability would require analysis of factors such as actual or constructive knowledge of the hazard, and the practicability of preventing or minimising the foreseeable damage. However, the valuation evidence focused on value, not loss or causation. It did not make it possible to apportion loss.
Practice and procedure — costs. Should the appeal against the costs judgment be allowed?
Held: No. The Crown’s offer in 2015, which was renewed in 2017, discharged its measured duty to abate. The appellant tried to gain a better result by rejecting it and commencing litigation, but has not succeeded. The Judge did not err in concluding that costs must be met by him.
Constitutional law — New Zealand Bill of Rights Act 1990 — right to life
On 30 April 2000, Steven Wallace was shot and killed by armed police officers after behaving violently in Waitara. The Crown decided not to prosecute Constable Abbott, the police officer who shot Mr Wallace, on the basis he acted in self-defence. Mr Wallace’s parents contested that decision. They obtained consent of the High Court to lay an indictment charging him with murder, of which the Constable was acquitted. Subsequent investigations by a Coroner and the Independent Police Complaints Authority (IPCA) identified deficiencies in police handling of the incident that ended in Mr Wallace’s death, but they took it as settled that Constable Abbott acted in self-defence. Mrs Wallace then brought proceedings in the High Court contending that the respondents had breached Mr Wallace’s right to life under s 8 of the New Zealand Bill of Rights Act 1990. She contended the right was breached because the Constable did not act in self-defence and the police did not conduct the operation that ended in Mr Wallace’s death in accordance with their own procedures and good practice. She also claimed that s 8 includes the right to an effective investigation after a breach which had also been breached. The Judge further accepted a claim, advanced for the first time at trial, that the Solicitor General had failed to give reasons for declining to assume conduct of the private prosecution. Ellis J made declarations but declined compensation. Mrs Wallace appeals. The Attorney General cross appeals.
Does s 8 extend to indirect actions of State actors, including the planning and control of police operations? Held: Yes. Both New Zealand and European law recognise that the right to life can be engaged by indirect actions of the State. This approach does not broaden s 8 beyond its intended scope; on its face, s 8 extends to any loss of life for which the State may be held accountable and not limited to the actions of State actors who actually administer lethal force. That does not open the door to claims of systemic fault because courts must find a causal connection between the acts of State actors and a death and must all ow for reasonable mistakes or errors of judgement. Any failure that is found must have been egregious and substantial if it is to sound in liability under s 8.
Can the State’s obligation to investigate potentially unlawful deaths be enforced under s 8?
Held: Yes. The Attorney General did not contest that the State must conduct an investigation that complies with New Zealand’s obligations under the International Covenant of Civil and Political Rights (an ICCPR compliant investigation) when life has been lost at the hands of a State actor. The obligation arises as a necessary incident of art 6; it is necessary to give effect to the right to life. The question is whether it must be read into s 8 in circumstances where New Zealand law already provides for investigations. It is not possible t o conclude that existing law would provide for an adequate investigation for all unlawful deaths for which the State may be held accountable.
Whether any death has been effectively investigated is a mixed question of law and of law and fact to be answered in context and the possibility that an investigation will fall short of and the possibility that an investigation will fall short of the ICCPR standard cannot be excluded. If it does, the obligation may go unmet unless an If it does, the obligation may go unmet unless an affected person is able to bring proceedings. Judicial review may not be any not be an adequate response.
Did the investigations in this case satisfy the State’s obligation to conduct an investigation?
Held: Yes. The Judge was right to hold the police investigation was not ICCPR compliant because it was not sufficiently independent; it was not until the third day of investigations that an independent officer assumed control of the investigation and the investigation conveyed aspects of partiality by investigating Mr Wallace’s behaviour. The private prosecution did constitute an ICCPR compliant investigation; although the State did not initiate the prosecution, the proceeding rested almost entirely on infrastructure provided by the State, there was no evidence that witnesses were not called due to the family’s financial circumstances an d there is no evidence of tactical error on behalf of the prosecutor. The Coroner’s inquest and IPCA inquiry also were adequate investigations.
Was the use of lethal force justified?
Held: Yes. The Judge was not obliged to make contested findings of fact, such as that Constable Abbott was never acting in self-defence. He was not tasked with that allegation in the criminal trial and not called before Ellis J. Nor were relevant eyewitnesses called. Section 92 of the Evidence Act 2006 requires a party to cross examine a witness on significant matters to ensure fairness to the witness, parties and accuracy in fact finding. But much of the contested evidence was not before the Court in this case and it is not possible for the Court to make re liable findings as to who may be mistaken on various matters. The Judge was therefore correct to find she could not make findings on certain matters. The Judge took the same approach to the allegation the Constable was not acting in self-defence at all. The Court agreed with the Judge’s conclusion that there was sufficient evidence to find the Constable believed his life was in jeopardy and that he had no option but to shoot. Pepper spray and batons were not appropriate alternatives to a firearm. The direct evidence con firmed that
Constable Abbott did not think Mr Wallace had been incapacitated by the first two shots and so it was not unreasonable to fire four times.
Did the planning and control of the operation contravene s 8?
Held: No. The Judge was correct to dis miss the submission t hat the decision to uplift firearms was wrong. Mr Wallace
was in a violent destructive rage when the decision was made to uplift firearms and it was reasonable in the circumstances. It was immaterial that a superior officer di d not give formal prior authorisation because the situation was urgent and she knew of and was comfortable with the decision. Nor was the Judge wrong to dismiss an argument that the police should have
adopted a cordon and contain strategy given the absence of immediate backup, Mr Wallace’s mobility and the risk to the officers and the public. There was no time to wait for reinforcements. A failure to render first aid when safe to do so might breach s 8, but nothing could have been done to save Mr Wallace ’s life and any o mission to offer comfort was not substantial or egregious.
Was there a failure to give reasons for refusing to take over the private prosecution?
Held: No. The argument that the Solicitor General ought to have provided reasons for refusing to assume control of the private prosecution was not pleaded. Had it been pleaded, the Attorney General likely would have adduced evidence to explain the processes followed and the decision. It could be inferred that the Solicitor General believed a prosecution would fail to exclude self-defence. Since the pleading was not properly before the High Court, it was not open to the Judge to find
that a duty to give reasons had not been met.
Should the appellant be denied a remedy due to delay in bringing the proceeding? Held: No,
referring to P F Sugrue Ltd v Attorney General  1 NZLR 207 ( Had the Court found that Mrs Wallace’s case succeeded, it would not have denied relief on the basis of delay. Delay may justify a court in ref using a remedy but in this case, it was reasonable to await the official investigations and the Attorney General does not point to prejudice from the passage of time.
In September 2015 the appellant, Soft Technology JR Ltd (Soft Tech), signed an agency agreement with Jones Lang Lasalle Ltd (JLL). The agreement gave JLL authority to seek out leasing opportunities for property owned by Soft Tech. JLL did not sign the agreement until late December 2015. Despite this, a signed copy of the agreement was never provided to Soft Tech.
JLL worked together with another agency to market Soft Tech’s property to Auckland Tourism, Events and Economic Development Ltd (ATEED), which was looking to attract international film production projects to Auckland. On 15 December 2015, Soft Tech entered into a short-term lease with Manu One Ltd, a subsidiary of Warner Brothers. JLL invoiced Soft Tech for its commission on this lease, which Soft Tech duly paid.
Discussions about future use of the property took place between Soft Tech and ATEED directly in March 2016. In November they entered into a memorandum of understanding reflecting Soft Tech’s preparedness to commit capital to build additional film facilities and ATEED’s preparedness to lease the property to enable sequential use of the property for film production projects. Soft Tech and ATEED thereafter entered into two leases in February 2017 (the first ATEED lease) and May 2018 (the second ATEED lease).
JLL became aware of these subsequent leases. In April 2017 it claimed commission from Soft Tech in respect of the first ATEED lease. When Soft Tech refused, JLL commenced proceedings in the High Court claiming commissions in respect of both leases.
In three different judgments, the High Court found that: JLL was entitled to commissions in respect of both ATEED leases; JLL’s commissions could include amounts calculated on turnover rents; and JLL was entitled to interest from the dates of demand for payment, and indemnity costs.
Soft Tech appeals against all three High Court judgments.
Real estate agents — agency agreements — commission. Should the appeals be allowed?
Held: Yes. JLL was not entitled to commission in respect of the first and second ATEED leases unless the agency agreement it entered into with Soft Tech complied with the requirements of s 126 of the Real Estate Agents Act 2008. Section 126 relevantly required JLL to have provided Soft Tech with a copy of the agency agreement signed by JLL within 48 hours of Soft Tech signing it, before performing the work for which JLL would eventually claim a commission.
The plain meaning of s 126, the purpose of the Real Estate Agents Act (to protect the interests of consumers of real estate services), the surrounding context and relevant secondary legislation all support this interpretation. Given the agency agreement was not signed by JLL until late December 2015, and a copy of it was never provided to Soft Tech, JLL was not entitled to commissions for the agency work it undertook in respect of the first and second ATEED leases.
Alternatively, the omission by JLL to provide a copy of the agreement to Soft Tech could not be considered to be inadvertent, such that the omission could be saved by s 126(2) and (3) of the Real Estate Agents Act. “Inadvertence” in the context of s 126 is limited to a minor administrative slip or unforeseen disruption caused by third parties or sources. It does not capture the situation on appeal, in which there were reasonable opportunities for JLL to sign the agreement at the same meeting in which it was signed by Soft Tech, or in the period after JLL became aware the agreement had never been signed by it or provided to Soft Tech. Instead, the signed copy of the agreement was only provided to Soft Tech during discovery in the High Court proceedings.
Aotearoa Water Action Inc (AWA) challenges the granting of certain resource consents by the Canterbury Regional Council (the Council) to Rapaki Natural Resources Ltd (Rapaki) and Cloud Ocean Water Ltd (Cloud Ocean). Rapaki and Cloud Ocean had been transferred consents that were historically granted to take and use water for the purposes of a freezing works and a wool scour, respectively. They seek to take water in reliance on the rights previously granted, not for the purposes of the freezing works and wool scour, but for the purposes of bottling the water and selling it. In allowing this to proceed via a non-notified process, the Council granted consent applications made by Rapaki and Cloud Ocean to change the use to which the water could be put, in reliance on the existing rights to take the water that had been transferred. The High Court held that the Council had acted lawfully in granting the consents and doing so on a non-notified basis. AWA now appeals.
Resource management -resource consent -consents to use water -regional plan. Should the appeal be allowed?
Held: Yes. While, bottling water constitutes a "use" under s 14(2) of the Resource Management Act 1991 (RMA) -which follows from a plain reading of that section together with the definition of "water" in s 2 -whether the Council was able to grant separate consents for the use of water relying on existing consents to take water granted for different uses in this case depended on the terms of the regional plan.
Here, the relevant regional plan treated take and use together for the purposes of regulating groundwater consents. The various relevant conditions and considerations contemplated that take and use would be considered as one activity, otherwise some would be rendered irrelevant or inapplicable. It was open for the drafters to clarify that separate consents were possible for taking and using, but the plan consistently treated the two together. By contrast, other rules in the plan use the expression "taking or use" and there was no reason to regard that difference as unintentional.
There was nothing in ss 14 or 30 of the RMA to prevent a regional council from exercising control by treating taking and use as matters which are linked for the purposes of its regional plan.
The Council was not entitled to proceed on the basis that because there was no rule specifically governing a stand-alone use of water, the application was covered by a "catch-all" rule in the plan as a discretionary activity. As the plan consistently treated take and use together, neither element could be separated out so as to circumvent a plain reading resulting from the drafting pattern.
Consequently, the Council did not have the ability to grant resource consents limited to the use of the water for bottling purposes separately to consents to take the water to be used for that purpose. The impugned consents and those granted in reliance on them were therefore unlawful.
Criminal Law — mitigation, starting point.
This case involves the first successful “stealthing” prosecution in New Zealand. Stealthing describes the deliberate act of removing a condom during sex where the consent to sex by one partner is conditional on the other wearing a condom throughout. The District Court Judge considered that the appellant’s offending fell within band one of the tariff sentencing case of R v AM and adopted a starting point of six years and six months’ imprisonment. The Judge arrived at an end sentence of three years and nine months’ imprisonment after applying some 42.5 per cent of discounts to recognise time spent on EM bail, previous good character, disproportionate effect of imprisonment on foreign nationals and other personal circumstances.
The appellant had engaged the services of the complainant, a sex worker. The appellant did not want to wear a condom but was explicitly told on numerous occasions that it was a condition of any sexual activity that he was to wear a condom throughout. The pair initially engaged in consensual sexual intercourse with the use of a condom. After a period, the appellant requested a second bout of intercourse in the “doggy style” position — which put the complainant on alert that he might intend to remove the condom. However as the complainant was able to see him in a mirror she thought this would be fine. The appellant did remove the condom and the complainant immediately remonstrated with him again telling him he must wear a condom. Protected consensual sex resumed but after a short while the appellant again removed the condom, and before the complainant could take evasive action, the appellant restrained her hips and ejaculated inside her. The complainant threw a cushion at the appellant and immediately went to her manager’s office and the police were called.
The appellant appeals his sentence contending the Judge adopted a starting point that was too high and that the Judge gave an insufficient discount for personal circumstances.
Was the starting point too high? Held: no. The case of Crump v R, which the appellant relies on, is not analogous. Crump was a case of withdrawn consent, here, there was never any consent to the particular act which constituted rape — the victim only ever consented to protected sex. The appellant’s act of taking the condom off, not once, but twice, and continuing sexual intercourse to the point of ejaculation was a deliberate, even cynical, breach of the parties’ understanding of the basis on which consent was given. The offending in this case is also appropriately within band one of R v AM given there was a degree of premeditation and the mental harm to the complainant. There is no requirement that the risks associated with unprotected sex must eventuate before it can be treated as an aggravating factor.
Did the Judge give an insufficient discount for personal mitigating circumstances? Held: no. The appellant’s argument that there is a nexus between his offending and his societal (and sexual) isolation and cultural attitudes is without merit. The appellant could have satisfied his sexual desires with a consenting sexual partner and his dislocation from his wife and his attitudes do not mitigate his culpability for raping someone in pursuit of sexual gratification. In any event, the appellant received inarguably generous discounts totalling 35 per cent for previous good character, the disproportionate effect of imprisonment on a foreign national and his remaining personal circumstances.
The appellant, Mr Doyle, joined the New Zealand Defence Force when he was 17 years old and has served in the army for some seven years with the rank of private. Towards the end of that period, he discovered that his long-term partner was having an affair with his commanding officer. To cope with the distress, Mr Doyle started drinking heavily and using MDMA. He also began dealing MDMA to friends to fund his habit, including to members of the armed forces. Following a search of his home, police located quantities of the drug, electronic scales and around $2000 in cash. He pleaded guilty to one charge of possession of MDMA for supply and applied for a discharge without conviction. The application for discharge was refused and he was later sentenced to five months’ community detention and nine months’ supervision.
If a person pleads guilty to an offence, the court may, instead of imposing a sentence, direct that the offender be discharged. The court must not do so unless the consequences of a conviction would be out of all proportion to the gravity of the offence. Mr Doyle, therefore, appeals the refusal to discharge him, contending the Judge overstated the gravity of his offending and understated the consequences a conviction would have on his employment prospects. The consequences of a conviction, he says, are out of all proportion to the gravity of his offending.
Did the Judge overstate the gravity of Mr Doyle’s offending? Held: no. There was a degree of commerciality to Mr Doyle’s offending which involved a Class B drug. While it is impossible not to feel some sympathy for Mr Doyle given his personal circumstances, he is not the first person to use drugs to escape emotional issues. The additional step into dealing in quantities and manner as he did, means the nexus between his emotional trauma and his drug abuse is more remote. The Court accepts there were other relevant mitigating personal circumstances such as Mr Doyle’s previous good character, commendable service and relative youth — but given the commercial nature of the drug dealing, the Judge was correct to classify the gravity of his offending as moderate.
Did the Judge understate the consequences a conviction would have on his employment prospects? Held: no. Mr Doyle argues that his life’s goal was to serve in the armed forces and the conviction resulted in him being discharged with no transferrable skills. It became apparent on appeal, that Mr Doyle’s discharge was not a result of the conviction but rather, as a result of the offending which underlies it. His discharge from the armed forces was final and will not be reversed even if he was discharged without conviction. The focus then, has to be on the consequences of conviction on Mr Doyle’s civilian employment prospects. Mr Doyle has found meaningful civilian work and has transferrable skills which will assist him in maintaining employment. Any remaining consequences are those which naturally flow from convictions of this nature.
Are the consequences of a conviction out of all proportion to the gravity of Mr Doyle’s offending? Held: no. The indicia of commerciality, particularly the quantity of MDMA, and the finality of Mr Doyle’s discharge from the armed forces operate against a discharge without conviction. He has reasonable employment prospects as evidenced by his current employment. It follows the consequences of a conviction are not out of all proportion to the gravity of his offending.
Evidence — identification evidence
Criminal practice and procedure — lies direction, unreliability warning
Sentence — manifestly excessive
The appellant, Mr Pink, was found guilty by jury of one count of wounding with intent to cause grievous bodily harm. He was sentenced to seven years and four months’ imprisonment. Mr Pink appeals both against his conviction and sentence.
Mr Pink has been the President of the Tribal Huks gang for twenty years, he has a very high profile in his local community and has attracted national publicity for his “sandwiches in schools” programme. The victim was a patched member of the gang who was attacked by a group of men which included Mr Pink, the jury accepting the Crown’s evidence that Mr Pink used the blunt end of a splitter axe to attack the victim’s legs in what was described by Crown as a “de-patching”.
On appeal, Mr Pink says there were material inadequacies in the Judge’s identification evidence direction under s 126 of the Evidence Act 2006 (the Act) and his treatment of the identification evidence generally. Mr Pink also argues the Judge’s failure to give a specific lies direction under s 124 of the Act resulted in a miscarriage. To support its allegations, the Crown called three civilian witnesses who said they knew Mr Pink and saw him at the scene. Two of them, a mother and her adult daughter, said they saw him swinging an axe and bringing it down using the blunt end on a man lying on the ground. The victim did not give evidence.
Was an identification warning required? Held: yes. The type of identification evidence given by the mother and daughter is known as “recognition evidence”. They identified Mr Pink because they already knew him. Recognition evidence usually requires an identification warning the same as in a situation where the witness and the defendant they identify are strangers. There was an added complication in this case however because Mr Pink admitted being present at the scene of the attack and so there to be seen. What he denied was any personal wrongdoing. Where a defendant admits being present, the evidence of people who say they saw him there has sometimes been called “observation evidence”. There is an apparent conflict in the caselaw whether observation evidence requires a s 126 warning. However, it can be safely concluded that there is no bright line distinction between visual identification evidence in the strict sense and observation evidence. That is to say, it is wrong to suggest that an identification warning is only required when the defendant denies being at the scene. A warning may still be required where the defendant admits being present and it is a live issue as to whether he or someone else present was the perpetrator.
Mr Pink testified that although he was there and at one point briefly held the axe it was for the
purposes of taking it off someone else to prevent further injury to the victim. He suggested in evidence that the two witnesses may easily have misinterpreted his actions with the axe. On that basis, the only alleged mistake made by the witnesses was not as to his identity but as to his actions with the axe. If matters rested there, then there would have been a strong argument saying no identification warning was required. However, there was also the possibility advanced implicitly by defence counsel in cross-examination and in closing that the two witnesses may have come onto the scene before Mr Pink confiscated the axe and seen someone else using it — therefore the possibility of a mistaken identification was in issue and an identification warning was required.
Did the identification warning that was given comply with s 126 of the Evidence Act? Held: yes. Section 126 stipulates that the warning need not be in any particular words. The Judge’s omission of the phrase “serious miscarriage of justice” did not mean the Judge failed to comply with s 126(2)(a). If one examines the words used, what was conveyed was that the jury needed to exercise special care when relying on identification evidence, that mistakes can be made with identification and that mistakes have in fact led to wrongful convictions. The direction, in substance, also complied with the other requirements in s 126 — the jury was sufficiently alerted that even if the mother and daughter were convincing, there was still the possibility of mistake, and that there was also a possibility that both of them were mistaken.
Another criticism raised, was that the Judge did not himself identify the strengths and weaknesses of the identification evidence but simply summarised the competing submissions from defence and Crown. The Supreme Court however held in Fukofuka that such an approach would suffice if done succinctly and in an orderly way which was the case here. A specific criticism that the Judge over-emphasised the daughter’s evidence is also misplaced. Any problems with her testimony and her prior statement and the fact she did not want to give evidence were plain for the jury to see for themselves — any direction against speculating about the reason for her reluctance would not have served a useful propose. It would be wrong to exclude her evidence due to her conduct in the witness box.
Did the Judge err by failing to give a lies direction? Held: no. Crown adduced two out of court statements made by Mr Pink to police, there were inconsistencies between those statements as well as between those statements and the evidence he gave in court. The prosecutor suggested that Mr Pink had lied and was offering ludicrous explanations for the inconsistencies. Despite the fact that evidence was offered suggesting Mr Pink had lied, s 124 of the Act makes clear there is no requirement to give a lies direction unless the Judge is of the opinion that the jury may place undue weight on the evidence of a lie or if the defendant requests such a direction. Mr Pink’s trial counsel did not request a lies direction and in the circumstances it is reasonable to assume this was a tactical decision designed to avoid highlighting the statements. Further although the Crown would have been entitled to rely on alleged lies told out of Court as probative of guilt, it chose not to and instead told the jury that if they did not accept Mr Pink’s statements, they should ignore them completely and focus instead on the other evidence called by the Crown. In all those circumstances, the Judge was not required to give a lies direction and had he done so it may well have been counterproductive for the defence.
Was the sentence manifestly excessive? Held: no. Even allowing for the potential for double counting between some of the aggravating features, the Court is not persuaded the Judge erred in placing the offending at the lower end of band three of Taueki. The description of a band three serious concerted street attack is a better fit for this case than the description of a band two concerted street attack — as, contrary to Mr Pink’s submissions — this was not a single blow with a weapon but one of repeated blows with undoubtedly very serious injuries resulting.
While some judges may not have imposed a six-month uplift for 25 violence-related prior convictions, the Court is not persuaded it was an error warranting appellate intervention.