Court of Appeal Judgments of Public Interest
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Case name
Case number
[2020] NZCA 690
Date of Judgment
21 December 2020
Summary
Application for leave to admit new evidence granted. Conviction appeal dismissed. Sentence appeal dismissed.
Criminal practice and procedure – Conviction appeal – Sentence appeal
Criminal law – Fitness to stand trial
Criminal law – Defence – Insanity
Criminal law – Fair trial – Representation – Exclusion from proceeding
Sentencing – Mitigation – Minimum period of Imprisonment
Mr Tully was found guilty of the murders of Ms Noble and Ms Cleveland, and the attempted murder of Ms Adams. He was also found guilty on two counts of unlawful possession of a firearm but acquitted on charges of attempting to murder Ms Curtis and of laying a trap for his pursuers as he fled the scene. He was sentenced to life imprisonment with a minimum period of imprisonment of 27 years.
Mr Tully appealed his convictions and sentence. He maintained that he was not mentally fit to stand trial, and that he had an available defence of insanity which the trial judge, Mander J, refused to leave to the jury. He also argued that he was denied his right to counsel and his trial was unfair, partly because he was absent for most of it after being removed for disrupting proceedings. As to sentence, Mr Tully submitted that his delusional disorder warranted an allowance and the minimum period of imprisonment was manifestly excessive.
Was Mr Tully fit to stand trial?
Held: Yes. The law regarding fitness to stand trial was restated by this Court in Nonu v R [2017] NZCA 170. The Judge correctly held that formal diagnosis was secondary to the question whether Mr Tully’s personality traits were sufficiently severe to prevent him from communicating and instructing counsel, and so amounting to mental impairment. At trial, the expert evidence fell short of establishing mental impairment. Two experts were of the opinion that Mr Tully was able to participate in his trial. He could absorb information and consider advice, weigh it up and make rational decisions. Both experts found him a difficult personality, but able to engage with counsel. The trial Judge’s own observations bore that out.
The evidence of two new experts on appeal indicates Mr Tully suffers from a delusional disorder relating to beliefs about his skin and has some criteria for narcissistic personality disorder; but we are not persuaded they impaired Mr Tully sufficiently to require that he was unfit to stand trial by reason of mental impairment. First, the argument Mr Tully lacked decisional competence confronts the difficulty that he embraced an insanity defence. Second, none of the experts found Mr Tully unfit to stand trial. Third, there is much evidence on the trial record that Mr Tully was able to engage in the trial process and could make rational decisions about his defence. Fourth, there is a good deal of evidence that Mr Tully feigned symptoms to establish insanity or impairment, or to delay or disrupt the trial, or to otherwise get his way. Finally, the argument that Mr Tully’s conduct before and at trial evidenced unfitness rests on the implicit premise that such behaviour was not in his own interests. However, the question is not whether Mr Tully’s decisions were in his best interests but whether he had the rational capacity to make them.
Was a defence of insanity available and should it have gone to the jury?
Held: No. A verdict of not guilty by reason of insanity is available in law where, at the time of the relevant act, the defendant laboured under a disease of the mind to such an extent so that he or she did not understand the nature and quality of the act or know that it was morally wrong, having regard to commonly accepted standards of right and wrong. Mr Tully invoked both limbs of s 23(2) but emphasised subs (a), insane automatism.
Mr Tully was anxious to advance insanity, but he did not seek to adduce expert evidence that he suffered from a disease of the mind that deprived him of moral understanding or knowledge. The reason why he did not adduce expert evidence, it may safely be inferred, is that the report of the expert which was commissioned by defence counsel did not support such a diagnosis and neither did the reports and evidence of two other experts. The Judge was correct to find that insanity was not available on the evidence as it stood when he made his ruling. The new expert evidence on appeal did not assist Mr Tully further.
We are also not persuaded that the Judge was wrong to rule, before the defence case opened, that he would not leave insanity (or automatism) to the jury. We are satisfied that his ruling did not compromise Mr Tully’s fundamental right to choose to give evidence in his own defence, or his fair trial right. The ruling was consistent with the expert evidence he had heard before trial. The Judge added that the narrative facts simply did not permit an insanity or automatism defence, but while that must have informed his view that the defence evidence would not assist Mr Tully he did not rest his decision on that point.
Was Mr Tully denied his right to counsel at trial?
Held: No. Mr Tully dismissed seven sets of counsel at trial. Evidence from amicus at trial invited the inference that disruption was Mr Tully’s strategy. It is not in dispute that s 30(2) of the Sentencing Act 2002 was satisfied. Mr Tully was told repeatedly from an early stage of his right to counsel and to legal aid. He was given repeated opportunities to exercise that right. The Judge found that he was trying to sabotage his trial and by his conduct had forfeited his right to appear by counsel. We agree that he must be deemed to have waived his right to appear by counsel. It was a decision that he was competent to make, and he cannot now complain about it. There was no breach of his fair trial right in the circumstances.
Did Mr Tully’s exclusion from the courtroom make his trial unfair?
Held: No. Under the Criminal Procedure Act 2011 a defendant has the right to be present in court during any hearing in relation to the charge against them (s 117) and they must be present at any hearing for which they have been remanded to appear (s 118). But the right to appear is qualified; it does not apply where the defendant so interrupts the hearing as to make it impracticable to continue in their presence. It cannot be doubted that, as the Judge found, Mr Tully so disrupted his trial as to make it impossible to continue in his presence. That was his objective, and he succeeded. It follows that s 118(2)(b) authorised the Judge to continue in his absence. Mr Tully was given every opportunity to return to the courtroom if he would allow the trial to continue. He was not in the courtroom, but he did not cease to be a participant. He continued to engage with the Court and counsel as he saw fit.
We are satisfied that Mr Tully’s absence nevertheless did not cause his trial to be unfair. Mr Tully had ample opportunity to cooperate and to appear by counsel. He chose to disrupt proceedings in the knowledge that the trial would continue. There was no defence for which his evidence was critical. And Mr Tully eventually returned to the courtroom and, with the assistance of amicus, made an informed decision not to give evidence. Amicus advanced a defence case as successfully as could be expected and without contradicting the case Mr Tully wished to advance.
Did the Judge err in the sentence imposed?
Held: No. The appellate question was whether the minimum period of 27 years imprisonment was manifestly excessive. The Court was divided on the answer.In the view of the majority (Venning and Katz JJ) the organised and calculated manner of the killings and the attempted murder of the third victim confirm Mr Tully’s culpability and more than offsets the fact that they were not committed in the course of another crime. Mr Tully’s planning also extended to avoiding detection. For these reasons the majority agree that Mander
J’s starting point of 27 years was correct.
Miller J concurs in the reasoning of the majority but would adopt a 25-year starting point by reference to other cases. In Bell v R CA80/03, 7 August 2003, for example, the murders were committed in the course of a crime and to avoid detection, and the killings were especially brutal. A 30-year minimum period was imposed on appeal. In Howse v R [2003] 3 NZLR 767, the murders were highly callous and they were evidently committed because the victims had complained of sexual offending by the defendant. The minimum period was reduced to 25 years on appeal.
We agree with the sentencing Judge that there is an imperative need for community protection. Mr Tully’s sense of entitlement is likely to bring him into conflict with others and he is capable of being very dangerous. Because these characteristics are primarily the product of a personality disorder, there is no reason for optimism about rehabilitation. Mr Tully’s intractable sense of grievance, which is evident in his every dealing with the Court, may well preclude treatment. We agree with the Judge that Mr Tully does not experience remorse. The only possible mitigating factor is his mental health. But we are not prepared to accept that Mr Tully’s mental conditions mitigate his culpability. On the contrary, they contribute to the long-term nature of the risk that he presents to others. And while we recognise that his delusional skin disorder causes him distress, we do not accept that imprisonment will make it significantly harder to bear.
Criminal practice and procedure – Conviction appeal – Sentence appeal
Criminal law – Fitness to stand trial
Criminal law – Defence – Insanity
Criminal law – Fair trial – Representation – Exclusion from proceeding
Sentencing – Mitigation – Minimum period of Imprisonment
Mr Tully was found guilty of the murders of Ms Noble and Ms Cleveland, and the attempted murder of Ms Adams. He was also found guilty on two counts of unlawful possession of a firearm but acquitted on charges of attempting to murder Ms Curtis and of laying a trap for his pursuers as he fled the scene. He was sentenced to life imprisonment with a minimum period of imprisonment of 27 years.
Mr Tully appealed his convictions and sentence. He maintained that he was not mentally fit to stand trial, and that he had an available defence of insanity which the trial judge, Mander J, refused to leave to the jury. He also argued that he was denied his right to counsel and his trial was unfair, partly because he was absent for most of it after being removed for disrupting proceedings. As to sentence, Mr Tully submitted that his delusional disorder warranted an allowance and the minimum period of imprisonment was manifestly excessive.
Was Mr Tully fit to stand trial?
Held: Yes. The law regarding fitness to stand trial was restated by this Court in Nonu v R [2017] NZCA 170. The Judge correctly held that formal diagnosis was secondary to the question whether Mr Tully’s personality traits were sufficiently severe to prevent him from communicating and instructing counsel, and so amounting to mental impairment. At trial, the expert evidence fell short of establishing mental impairment. Two experts were of the opinion that Mr Tully was able to participate in his trial. He could absorb information and consider advice, weigh it up and make rational decisions. Both experts found him a difficult personality, but able to engage with counsel. The trial Judge’s own observations bore that out.
The evidence of two new experts on appeal indicates Mr Tully suffers from a delusional disorder relating to beliefs about his skin and has some criteria for narcissistic personality disorder; but we are not persuaded they impaired Mr Tully sufficiently to require that he was unfit to stand trial by reason of mental impairment. First, the argument Mr Tully lacked decisional competence confronts the difficulty that he embraced an insanity defence. Second, none of the experts found Mr Tully unfit to stand trial. Third, there is much evidence on the trial record that Mr Tully was able to engage in the trial process and could make rational decisions about his defence. Fourth, there is a good deal of evidence that Mr Tully feigned symptoms to establish insanity or impairment, or to delay or disrupt the trial, or to otherwise get his way. Finally, the argument that Mr Tully’s conduct before and at trial evidenced unfitness rests on the implicit premise that such behaviour was not in his own interests. However, the question is not whether Mr Tully’s decisions were in his best interests but whether he had the rational capacity to make them.
Was a defence of insanity available and should it have gone to the jury?
Held: No. A verdict of not guilty by reason of insanity is available in law where, at the time of the relevant act, the defendant laboured under a disease of the mind to such an extent so that he or she did not understand the nature and quality of the act or know that it was morally wrong, having regard to commonly accepted standards of right and wrong. Mr Tully invoked both limbs of s 23(2) but emphasised subs (a), insane automatism.
Mr Tully was anxious to advance insanity, but he did not seek to adduce expert evidence that he suffered from a disease of the mind that deprived him of moral understanding or knowledge. The reason why he did not adduce expert evidence, it may safely be inferred, is that the report of the expert which was commissioned by defence counsel did not support such a diagnosis and neither did the reports and evidence of two other experts. The Judge was correct to find that insanity was not available on the evidence as it stood when he made his ruling. The new expert evidence on appeal did not assist Mr Tully further.
We are also not persuaded that the Judge was wrong to rule, before the defence case opened, that he would not leave insanity (or automatism) to the jury. We are satisfied that his ruling did not compromise Mr Tully’s fundamental right to choose to give evidence in his own defence, or his fair trial right. The ruling was consistent with the expert evidence he had heard before trial. The Judge added that the narrative facts simply did not permit an insanity or automatism defence, but while that must have informed his view that the defence evidence would not assist Mr Tully he did not rest his decision on that point.
Was Mr Tully denied his right to counsel at trial?
Held: No. Mr Tully dismissed seven sets of counsel at trial. Evidence from amicus at trial invited the inference that disruption was Mr Tully’s strategy. It is not in dispute that s 30(2) of the Sentencing Act 2002 was satisfied. Mr Tully was told repeatedly from an early stage of his right to counsel and to legal aid. He was given repeated opportunities to exercise that right. The Judge found that he was trying to sabotage his trial and by his conduct had forfeited his right to appear by counsel. We agree that he must be deemed to have waived his right to appear by counsel. It was a decision that he was competent to make, and he cannot now complain about it. There was no breach of his fair trial right in the circumstances.
Did Mr Tully’s exclusion from the courtroom make his trial unfair?
Held: No. Under the Criminal Procedure Act 2011 a defendant has the right to be present in court during any hearing in relation to the charge against them (s 117) and they must be present at any hearing for which they have been remanded to appear (s 118). But the right to appear is qualified; it does not apply where the defendant so interrupts the hearing as to make it impracticable to continue in their presence. It cannot be doubted that, as the Judge found, Mr Tully so disrupted his trial as to make it impossible to continue in his presence. That was his objective, and he succeeded. It follows that s 118(2)(b) authorised the Judge to continue in his absence. Mr Tully was given every opportunity to return to the courtroom if he would allow the trial to continue. He was not in the courtroom, but he did not cease to be a participant. He continued to engage with the Court and counsel as he saw fit.
We are satisfied that Mr Tully’s absence nevertheless did not cause his trial to be unfair. Mr Tully had ample opportunity to cooperate and to appear by counsel. He chose to disrupt proceedings in the knowledge that the trial would continue. There was no defence for which his evidence was critical. And Mr Tully eventually returned to the courtroom and, with the assistance of amicus, made an informed decision not to give evidence. Amicus advanced a defence case as successfully as could be expected and without contradicting the case Mr Tully wished to advance.
Did the Judge err in the sentence imposed?
Held: No. The appellate question was whether the minimum period of 27 years imprisonment was manifestly excessive. The Court was divided on the answer.In the view of the majority (Venning and Katz JJ) the organised and calculated manner of the killings and the attempted murder of the third victim confirm Mr Tully’s culpability and more than offsets the fact that they were not committed in the course of another crime. Mr Tully’s planning also extended to avoiding detection. For these reasons the majority agree that Mander
J’s starting point of 27 years was correct.
Miller J concurs in the reasoning of the majority but would adopt a 25-year starting point by reference to other cases. In Bell v R CA80/03, 7 August 2003, for example, the murders were committed in the course of a crime and to avoid detection, and the killings were especially brutal. A 30-year minimum period was imposed on appeal. In Howse v R [2003] 3 NZLR 767, the murders were highly callous and they were evidently committed because the victims had complained of sexual offending by the defendant. The minimum period was reduced to 25 years on appeal.
We agree with the sentencing Judge that there is an imperative need for community protection. Mr Tully’s sense of entitlement is likely to bring him into conflict with others and he is capable of being very dangerous. Because these characteristics are primarily the product of a personality disorder, there is no reason for optimism about rehabilitation. Mr Tully’s intractable sense of grievance, which is evident in his every dealing with the Court, may well preclude treatment. We agree with the Judge that Mr Tully does not experience remorse. The only possible mitigating factor is his mental health. But we are not prepared to accept that Mr Tully’s mental conditions mitigate his culpability. On the contrary, they contribute to the long-term nature of the risk that he presents to others. And while we recognise that his delusional skin disorder causes him distress, we do not accept that imprisonment will make it significantly harder to bear.
Case name
Case number
[2020] NZCA 656
Date of Judgment
18 December 2020
Summary
Appeal against conviction dismissed. Appeal against sentence dismissed. The appellant was convicted following trial by jury in the High Court at Auckland of the murder of Grace Millane. Moore J sentenced the appellant to life imprisonment with a 17 year minimum period of imprisonment on this charge. The appellant now appeals both conviction and sentence.
Criminal law - Defences. Whether the Judge erred by failing to require the jury to consider consent in relation to the charge of murder under s 167(b) of the Crimes Act 1961.
Held: no. The Crown was not required to disprove consent (or an honest belief in it) as part of the s 167(b) (reckless murder) charge. Consent is unavailable as a matter of law (by operation of s 63 of the Crimes Act) to such a charge and the question trail posed by the Judge to the jury was therefore entirely correct.
Criminal law - Summing-up. Whether the Judge erred by failing to direct the jury adequately on propensity evidence.
Held: no. The Judge was not required to give a negative propensity direction in respect of Ms M's evidence. The jury would have had no difficulty weighing that evidence and each party gained support from it: the Crown, in that the appellant was an experienced practitioner of erotic asphyxiation; the defence, that he behaved entirely appropriately with Ms M.
Criminal law- Summing-up. Whether the Judge erred by failing to direct the jury adequately on the pathology evidence. Held: no. The Judge's summing-up provided a clear summary of the competing expert opinions on the pathology evidence relating to cause and timing of death without offering detailed evaluation, analysis or endorsement given no issue of admissibility of the competing views had arisen.
Criminal law - Evidence. Whether inadmissible probability evidence was before the jury, giving rise to a miscarriage of justice.
Held: no. The evidence was neither reliable nor relevant to a fact in issue and therefore should not have been put before the jury. Although no objection was taken to its use, it would have been preferable if a clear direction was given that it could not be used to deduce guilt on the basis of probabilistic reasoning. However, the admission of this evidence and failure to give such a direction did not give rise to a material risk of a miscarriage of justice as the proposition that death resulting from erotic asphyxiation is very rare was an accepted fact, the jury was not invited to use statistical probability reasoning to reach a finding of guilt, and it was extremely unlikely in context that they would have done so.
Criminal law - Sentence. Whether the Judge ended by finding that s 104(1) of the Sentencing Act 2002 was engaged, warranting a 17-year minimum period of imprisonment.
Held: no. Section 104(1) of the Sentencing Act was engaged in two respects. First, Ms Millane was particularly vulnerable, being
intoxicated, in a strange apartment, naked, in the arms of a comparative stranger with whom she thought she could trust, and with his hands around her throat. Secondly, the murder was committed with a high degree of callousness, having regard to the appellant's attitude to the likely struggles of Ms Millane and certain lapsing unconsciousness, failure to call for assistance, searching on the internet for methods of body disposal, looking at pornography online, taking intimate photographic images of Ms Millane's naked body, looking again at pornography online, taking steps preparatory to disposing of the body and going on another date while Ms Millane's body remained in his room. Nor, in these circumstances, was the minimum term of 17 years manifestly unjust.
Criminal law - Defences. Whether the Judge erred by failing to require the jury to consider consent in relation to the charge of murder under s 167(b) of the Crimes Act 1961.
Held: no. The Crown was not required to disprove consent (or an honest belief in it) as part of the s 167(b) (reckless murder) charge. Consent is unavailable as a matter of law (by operation of s 63 of the Crimes Act) to such a charge and the question trail posed by the Judge to the jury was therefore entirely correct.
Criminal law - Summing-up. Whether the Judge erred by failing to direct the jury adequately on propensity evidence.
Held: no. The Judge was not required to give a negative propensity direction in respect of Ms M's evidence. The jury would have had no difficulty weighing that evidence and each party gained support from it: the Crown, in that the appellant was an experienced practitioner of erotic asphyxiation; the defence, that he behaved entirely appropriately with Ms M.
Criminal law- Summing-up. Whether the Judge erred by failing to direct the jury adequately on the pathology evidence. Held: no. The Judge's summing-up provided a clear summary of the competing expert opinions on the pathology evidence relating to cause and timing of death without offering detailed evaluation, analysis or endorsement given no issue of admissibility of the competing views had arisen.
Criminal law - Evidence. Whether inadmissible probability evidence was before the jury, giving rise to a miscarriage of justice.
Held: no. The evidence was neither reliable nor relevant to a fact in issue and therefore should not have been put before the jury. Although no objection was taken to its use, it would have been preferable if a clear direction was given that it could not be used to deduce guilt on the basis of probabilistic reasoning. However, the admission of this evidence and failure to give such a direction did not give rise to a material risk of a miscarriage of justice as the proposition that death resulting from erotic asphyxiation is very rare was an accepted fact, the jury was not invited to use statistical probability reasoning to reach a finding of guilt, and it was extremely unlikely in context that they would have done so.
Criminal law - Sentence. Whether the Judge ended by finding that s 104(1) of the Sentencing Act 2002 was engaged, warranting a 17-year minimum period of imprisonment.
Held: no. Section 104(1) of the Sentencing Act was engaged in two respects. First, Ms Millane was particularly vulnerable, being
intoxicated, in a strange apartment, naked, in the arms of a comparative stranger with whom she thought she could trust, and with his hands around her throat. Secondly, the murder was committed with a high degree of callousness, having regard to the appellant's attitude to the likely struggles of Ms Millane and certain lapsing unconsciousness, failure to call for assistance, searching on the internet for methods of body disposal, looking at pornography online, taking intimate photographic images of Ms Millane's naked body, looking again at pornography online, taking steps preparatory to disposing of the body and going on another date while Ms Millane's body remained in his room. Nor, in these circumstances, was the minimum term of 17 years manifestly unjust.
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Case name
Case number
[2020] NZCA 671
Date of Judgment
17 December 2020
Summary
Application for continuation of suppression orders declined.
The appellant was convicted following trial by jury in the High Court at Auckland of the murder of Grace Millane. Moore J sentenced the appellant to life imprisonment with a 17 year minimum period of imprisonment on this charge. His appeal against both conviction and sentence was heard on 6 August. The appellant’s name has been suppressed pending delivery of this Court’s judgment. Judgment is due to be delivered on 18 December. On 15 December the appellant seeks to continue the suppression orders.
Criminal practice and procedure — Name suppression. Whether the application for continued suppression of the appellant’s name should be granted.
Held: no. The application for further suppression lacks merit. Further suppression is not justifiable on the basis of the risk of prejudice to the appellant’s right to a fair trial, such that the Court’s discretion to continue the orders should be exercised. The present proceeding is unaffected. In relation to the appellant’s convictions following Judge-alone trial in respect of two other matters, the possibility of his fair trial rights (in the case of a retrial being ordered on appeal) being affected by the lapsing of suppression may be mitigated by judicial direction, would depend on his being granted leave to change his election, is affected by the fact of publication in overseas jurisdictions and is ultimately outweighed by the need for open justice. Nor did the Court accept a belated attempt to invoke s 286, holding that inapplicable where the primary suppression orders had not been appealed.
The appellant was convicted following trial by jury in the High Court at Auckland of the murder of Grace Millane. Moore J sentenced the appellant to life imprisonment with a 17 year minimum period of imprisonment on this charge. His appeal against both conviction and sentence was heard on 6 August. The appellant’s name has been suppressed pending delivery of this Court’s judgment. Judgment is due to be delivered on 18 December. On 15 December the appellant seeks to continue the suppression orders.
Criminal practice and procedure — Name suppression. Whether the application for continued suppression of the appellant’s name should be granted.
Held: no. The application for further suppression lacks merit. Further suppression is not justifiable on the basis of the risk of prejudice to the appellant’s right to a fair trial, such that the Court’s discretion to continue the orders should be exercised. The present proceeding is unaffected. In relation to the appellant’s convictions following Judge-alone trial in respect of two other matters, the possibility of his fair trial rights (in the case of a retrial being ordered on appeal) being affected by the lapsing of suppression may be mitigated by judicial direction, would depend on his being granted leave to change his election, is affected by the fact of publication in overseas jurisdictions and is ultimately outweighed by the need for open justice. Nor did the Court accept a belated attempt to invoke s 286, holding that inapplicable where the primary suppression orders had not been appealed.
Case name
Case number
[2020] NZCA 563
Date of Judgment
12 November 2020
Summary
Application to adduce affidavit evidence declined. Questions referred answered as follows:
* Question 1: Was the Judge in each case correct to find there had been non-compliance with ss 77(3)(a) and (3A) of the Land Transport Act 1998, by reason of the wording of Block Jon the Police Procedure Sheet POL515 09/19? Answer: No.
*Question 2: If the answer to Question 1 is yes, was the Judge in each case correct to find as a result there had not been reasonable compliance with ss 77(3)(a) and (3A), in terms of s 64(2) of the Act, such that evidence of the Evidential Breath Test (EBT) result was inadmissible? Answer: Not answered.
* Question 3: Was the Judge correct to find that the evidential blood sample obtained following the procedure in Police Procedure Sheet POL515 09/19 was inadmissible by reason only of the wording of Block J? Answer: No, by reason of the answer given to Question 1.
The Solicitor-General was granted leave to refer three questions of law to this Court pursuant to s 313 of the Criminal Procedure Act 2011, arising out of five District Court decisions which ove1turned convictions for excess breath or blood alcohol because the standard wording used by police to advise drivers of their right to elect a blood alcohol test did not comply with ss 77(3) and 77(3A) of the Land Transport Act.
Criminal practice and procedure - Solicitor-General's reference.
Question I: Was the Judgein each case correct to find there had been non-compliance with ss 77(3)(a) and (3A) of the Land Transport Act 1998, by reason of the wording of Block J on the Police Procedure Sheet POLS15 09/19?
Held: no. The absence of the word "conviction" makes no potential difference to the decision-making process ahead because it is implicit in the wording used (in particular, "prosecution"), and therefore the sense and effect of the warning required to be given is conveyed where the motorist is liable to be convicted of an offence (as in all the referred cases). However, where motorists are liable for an infringement offence, the sense and effect of the warning is not conveyed because it does not make clear that the result gives rise only to this less serious offence.
Criminal practice and procedure - Solicitor-General's reference.
Question 2: If the answer to Question l is yes, was the Judge in each case correct to find as a result there had not been reasonable compliance with ss 77(3)(a) and (3A), in terms of s 64(2) of the Act, such that evidence of the Evidential Breath Test (EBT) result was inadmissible?
Held: not answered. This question falls away by reason of the answer to Question 1. It remains relevant in relation to offending giving rise to an infringement offence, but this is reserved for another occasion where the issue arises directly.
Criminal practice and procedure - Solicitor-General 's reference.
Question 3: Was the Judge c01Tect to find that the evidential blood sample obtained following the procedure in Police Procedure Sheet POLS15 09/19 was inadmissible by reason only of the wording of Block J?
Held: no, by reason of the answer given to Question 1. Again, in the case of infringement offending, the answer would tum on Question 2 and cannot be answered in the abstract.
* Question 1: Was the Judge in each case correct to find there had been non-compliance with ss 77(3)(a) and (3A) of the Land Transport Act 1998, by reason of the wording of Block Jon the Police Procedure Sheet POL515 09/19? Answer: No.
*Question 2: If the answer to Question 1 is yes, was the Judge in each case correct to find as a result there had not been reasonable compliance with ss 77(3)(a) and (3A), in terms of s 64(2) of the Act, such that evidence of the Evidential Breath Test (EBT) result was inadmissible? Answer: Not answered.
* Question 3: Was the Judge correct to find that the evidential blood sample obtained following the procedure in Police Procedure Sheet POL515 09/19 was inadmissible by reason only of the wording of Block J? Answer: No, by reason of the answer given to Question 1.
The Solicitor-General was granted leave to refer three questions of law to this Court pursuant to s 313 of the Criminal Procedure Act 2011, arising out of five District Court decisions which ove1turned convictions for excess breath or blood alcohol because the standard wording used by police to advise drivers of their right to elect a blood alcohol test did not comply with ss 77(3) and 77(3A) of the Land Transport Act.
Criminal practice and procedure - Solicitor-General's reference.
Question I: Was the Judgein each case correct to find there had been non-compliance with ss 77(3)(a) and (3A) of the Land Transport Act 1998, by reason of the wording of Block J on the Police Procedure Sheet POLS15 09/19?
Held: no. The absence of the word "conviction" makes no potential difference to the decision-making process ahead because it is implicit in the wording used (in particular, "prosecution"), and therefore the sense and effect of the warning required to be given is conveyed where the motorist is liable to be convicted of an offence (as in all the referred cases). However, where motorists are liable for an infringement offence, the sense and effect of the warning is not conveyed because it does not make clear that the result gives rise only to this less serious offence.
Criminal practice and procedure - Solicitor-General's reference.
Question 2: If the answer to Question l is yes, was the Judge in each case correct to find as a result there had not been reasonable compliance with ss 77(3)(a) and (3A), in terms of s 64(2) of the Act, such that evidence of the Evidential Breath Test (EBT) result was inadmissible?
Held: not answered. This question falls away by reason of the answer to Question 1. It remains relevant in relation to offending giving rise to an infringement offence, but this is reserved for another occasion where the issue arises directly.
Criminal practice and procedure - Solicitor-General 's reference.
Question 3: Was the Judge c01Tect to find that the evidential blood sample obtained following the procedure in Police Procedure Sheet POLS15 09/19 was inadmissible by reason only of the wording of Block J?
Held: no, by reason of the answer given to Question 1. Again, in the case of infringement offending, the answer would tum on Question 2 and cannot be answered in the abstract.
Case name
Case number
[2020] NZCA 551
Date of Judgment
10 November 2020
Summary
The appeal is allowed to the extent reflected in the answers to the two approved questions. The proceeding is remitted to the Human Rights Review Tribunal. The respondent must pay the appellant costs.
Privacy Act 1993 -Information privacy request - inter-agency transfer - vexatiousness - urgency.
Mr Dotcom's extradition eligibility hearing was due to commence in the District Court on 21 September 2015. In July that year Mr Dotcom sent information privacy requests under the Privacy Act to all Ministers of the Crown and most government departments and agencies asking for all personal information held by them. Per section 37 of the Act, he requested that these be dealt with urgently. The majority of the requests were transferred to the Attorney-General. They were then rejected on the basis they were vexatious on account of their all being required urgently. Mr Dotcom brought proceedings in the Human Rights Review Tribunal alleging an interference with his privacy. The Tribunal ruled that the Act does not permit a transfer for the purpose of obtaining legal advice and an urgency request was not a proper basis for declining the information request itself. The finding of an interference with Mr Dotcom 's privacy was overturned on appeal; the High Court viewing the urgency element as part of the information privacy request itself. Mr Dotcom was granted leave to appeal on two questions of law.
The proper interpretation of the Act
The Attorney-General submitted the Act is open-textured and therefore not intended to create rigid rules or constraints for decision-makers. In the main the privacy principles in the Act do not create enforceable legal rights. However, s 11 says the entitlement to make principle 6 information privacy requests to public sector agencies is an enforceable legal right. This right is not susceptible to a more liberal interpretative treatment. Hence the refusal provisions in pt 4 and the procedural provisions in pt 5 should be construed in accordance with orthodox statutory interpretation. While s 11 only extends to public sector agencies, there is no reason why this interpretation would not extend to such requests to all agencies.
Question 1: Can a request for personal information under the Act be transferred to another agency where the request seeks urgency and the basis for the urgency request is not a matter that the recipient is able to sensibly asses but the agency to which the request is transferred is the only agency able to properly evaluate? Held: no.
The High Court reasoned that the only component of the information request that justified the transfer to the Attorney-General was the request for urgency, and that there was nothing in the Act that would preclude a transfer to properly evaluate the aspect of urgency. However, the transfer provision cited, s 39(b)(ii), provides for a transfer in specific terms. The information sought must be more closely connected with the functions or activities of the transferee. This is a prerequisite to a transfer. The fact that urgency is requested does not comprise a part of the information the subject of the information privacy request.
Question 2: Is a request for urgency under s 37 of the Act a relevant factor for an agency in determining whether to refuse a request for personal information under s 29(1)(j) of the Act? Held: yes, it may be a relevant factor.
A requestor seeking urgency under the Act must give reasons. These reasons could inform the decision-maker on the issue of whether the information privacy request is vexatious, meaning urgency could be a relevant factor. However, the mere fact of a request for urgency would not alone be a proper basis for a refusal on the vexatious ground, although it is not possible to say that it could never be a relevant factor.
Privacy Act 1993 -Information privacy request - inter-agency transfer - vexatiousness - urgency.
Mr Dotcom's extradition eligibility hearing was due to commence in the District Court on 21 September 2015. In July that year Mr Dotcom sent information privacy requests under the Privacy Act to all Ministers of the Crown and most government departments and agencies asking for all personal information held by them. Per section 37 of the Act, he requested that these be dealt with urgently. The majority of the requests were transferred to the Attorney-General. They were then rejected on the basis they were vexatious on account of their all being required urgently. Mr Dotcom brought proceedings in the Human Rights Review Tribunal alleging an interference with his privacy. The Tribunal ruled that the Act does not permit a transfer for the purpose of obtaining legal advice and an urgency request was not a proper basis for declining the information request itself. The finding of an interference with Mr Dotcom 's privacy was overturned on appeal; the High Court viewing the urgency element as part of the information privacy request itself. Mr Dotcom was granted leave to appeal on two questions of law.
The proper interpretation of the Act
The Attorney-General submitted the Act is open-textured and therefore not intended to create rigid rules or constraints for decision-makers. In the main the privacy principles in the Act do not create enforceable legal rights. However, s 11 says the entitlement to make principle 6 information privacy requests to public sector agencies is an enforceable legal right. This right is not susceptible to a more liberal interpretative treatment. Hence the refusal provisions in pt 4 and the procedural provisions in pt 5 should be construed in accordance with orthodox statutory interpretation. While s 11 only extends to public sector agencies, there is no reason why this interpretation would not extend to such requests to all agencies.
Question 1: Can a request for personal information under the Act be transferred to another agency where the request seeks urgency and the basis for the urgency request is not a matter that the recipient is able to sensibly asses but the agency to which the request is transferred is the only agency able to properly evaluate? Held: no.
The High Court reasoned that the only component of the information request that justified the transfer to the Attorney-General was the request for urgency, and that there was nothing in the Act that would preclude a transfer to properly evaluate the aspect of urgency. However, the transfer provision cited, s 39(b)(ii), provides for a transfer in specific terms. The information sought must be more closely connected with the functions or activities of the transferee. This is a prerequisite to a transfer. The fact that urgency is requested does not comprise a part of the information the subject of the information privacy request.
Question 2: Is a request for urgency under s 37 of the Act a relevant factor for an agency in determining whether to refuse a request for personal information under s 29(1)(j) of the Act? Held: yes, it may be a relevant factor.
A requestor seeking urgency under the Act must give reasons. These reasons could inform the decision-maker on the issue of whether the information privacy request is vexatious, meaning urgency could be a relevant factor. However, the mere fact of a request for urgency would not alone be a proper basis for a refusal on the vexatious ground, although it is not possible to say that it could never be a relevant factor.
Case number
[2020] NZCA 549
Date of Judgment
09 November 2020
Summary
Steel & Tube’s appeal allowed. Commerce Commission’s appeal dismissed. High Court fines set aside. Fines imposed totalling $1,560,000.
Criminal practice and procedure – Sentence appeal – Penalty Commercial law – Fair Trading Act 1986 – Misleading conduct – False representations
Steel & Tube Holdings Ltd pleaded guilty to 24 representative charges of misleading conduct and false representations in connection with its “seismic grade” steel mesh, known as SE62 mesh. It represented that the mesh, which is used to reinforce concrete structures, was 500E grade, meaning that it had been tested and complied with the relevant building standard, AS/NZS 4671:2001 (“the Standard”), and further that it had been tested independently. In the District Court the company pleaded guilty and was fined a total of $1,885,000. Both parties appealed to the High Court, where the fines were increased to a total of $2,009,280.
Both parties were given leave to bring second appeals to this Court. Steel & Tube maintains that the starting point of around $3.8 million set in the High Court was without precedent or statutory support, and was adopted without hearing argument, and that the resulting sentence, far exceeding any previously imposed on a single entity under the Fair Trading Act 1986, was manifestly excessive. The Commerce Commission argues that the decisions below were affected by error. In particular, the High Court Judge wrongly held that the state of mind of the employee responsible for flawed testing processes could not be attributed to the company for sentencing purposes, wrongly allowed too great a discount for totality, and failed to take into account Steel & Tube’s size, resources and financial gain: all of this meaning that the sentence was manifestly inadequate.
Should the state of mind of an employee be attributed to their company at sentencing? Held: Yes.
The Fair Trading Act is a consumer protection statute which regulates conduct in trade. It is common ground that both offences of contravening ss 10 and 13(e) of the Act are strict liability offences. The Act creates special rules of attribution. Attribution of a state of mind is addressed in s 45(1), which provides that where, in proceedings under Part 5 (which includes the offence provision, s 40) in respect of any conduct engaged in by a body corporate, “it is necessary to establish” the state of mind of the body corporate, it is sufficient to show that a director, servant or agent, acting within the scope of that person’s actual or apparent authority, had that state of mind.
We are satisfied that it is necessary to establish the company’s state of mind for sentencing purposes. Section 45(1) does not limit attribution to proof of liability. The state of mind of the defendant is an orthodox consideration for strict liability offences. State of mind may inform the court’s assessment of the gravity and culpability of the offending. If state of mind materially affects sentence, then it is a matter of necessity that the court should establish it. Necessity is also a question of fact in the particular proceeding; here the company’s state of mind is a matter of real significance and controversy. Even if s 45 had not covered the field, we would hold that the employee’s state of mind should be attributed to the company on ordinary common law rules of attribution.
How far is attribution to extend for sentencing purposes?
Held: Where the culpability of an employee and senior management differ, the answer lies in s 45(1), which provides that it is “sufficient” to show a relevant director, employee or agent had a given state of mind. The state of mind of an agent whose misleading conduct is the subject of the charge suffices for sentencing purposes, but that person need not be the only agent whose conduct and state of mind may influence sentencing. The court may inquire further. State of mind may matter at two points in time; when the offence was committed and at sentencing. So far as the offence date is concerned, senior management’s complicity in, or ignorance of, an employee’s actions may aggravate or mitigate culpability, depending on the circumstances. At sentencing, where senior management invariably speaks for a corporate defendant, the court is interested in co-operation with the authorities, assumption of responsibility, and commitment to future compliance.
What are the relevant sentencing considerations when imposing a penalty for Fair Trading Act offending?
Held: We do not establish sentencing bands and those proposed by Duffy J in the High Court should not be used.
The cases recognise that sentencing should begin with the objects of the Fair Trading Act, which pursues a trading environment in which consumer interests are protected, businesses compete effectively, and consumers and businesses participate confidently. To those ends it promotes fair conduct in trade and the safety of goods and services and prohibits certain unfair conduct and practices.
Factors affecting seriousness and culpability of the offending may include: the nature of the good or service and the use to which it is put; the importance, falsity and dissemination of the untrue statement; the extent and duration of any trading relying on it; whether the offending was isolated or systematic; the state of mind of any servants or agents whose conduct is attributed to the defendant; the seniority of those people; any compliance systems and culture and the reasons why they failed; any harm done to consumers and other traders; and any commercial gain or benefit to the defendant.
Factors affecting the circumstances of the offender include: any past history of infringement; guilty pleas; co-operation with the authorities; any compensation or reparation paid; commitment to future compliance and any steps taken to ensure it. The court may also make some allowance for other tangible consequences of the offending that the defendant may face. By tangible we mean to exclude public opprobrium that is an ordinary consequence of conviction. The defendant’s financial resources may justify reducing or increasing the fine. Any other sentencing considerations applicable, such as totality and the treatment of like offenders, will also be taken into account.
What sentence would this Court impose on Steel & Tube Holdings Ltd?
Held: We would adopt a global starting point of $1.5 million for the compliance representations. Steel & Tube’s offending was serious insofar as the product it sold was put to an important use, compliance with the Standard was vital, Steel & Tube lacked an adequate excuse, and the offending was large scale and of a long duration. Against that, the representations were not intended to mislead or deceive. Steel & Tube believed the mesh did comply and that its testing processes were equivalent or superior to those of the Standard. The company did not mislead for gain, and we are not able to estimate what gain it actually made. The company responded by withdrawing the mesh from the market as soon as it was put on notice that its testing processes did not comply.
We would adopt a global starting point of $900,000 for the independent testing representations.
These representations are somewhat less significant than the compliance representations, but they were clearly made and widely disseminated. The offending was deliberate albeit not as culpable as some comparable cases.
In the District Court Judge Cathcart accepted that Steel & Tube took significant remedial steps to ensure future compliance. It engaged independent laboratories to conduct testing; invested in new software to record, store and produce test certificates and monitor long-term quality data; provided additional training for staff; and hired an additional quality manager. Steel & Tube cooperated with the Commission and entered early guilty pleas. The allowance of 35 per cent made by Judge Cathcart is not disputed.
We would impose an overall fine of $1,560,000.
Did the High Court err in the sentence imposed?
Held: Yes. The sentence was manifestly excessive. It should be reduced to $1,560,000.
Criminal practice and procedure – Sentence appeal – Penalty Commercial law – Fair Trading Act 1986 – Misleading conduct – False representations
Steel & Tube Holdings Ltd pleaded guilty to 24 representative charges of misleading conduct and false representations in connection with its “seismic grade” steel mesh, known as SE62 mesh. It represented that the mesh, which is used to reinforce concrete structures, was 500E grade, meaning that it had been tested and complied with the relevant building standard, AS/NZS 4671:2001 (“the Standard”), and further that it had been tested independently. In the District Court the company pleaded guilty and was fined a total of $1,885,000. Both parties appealed to the High Court, where the fines were increased to a total of $2,009,280.
Both parties were given leave to bring second appeals to this Court. Steel & Tube maintains that the starting point of around $3.8 million set in the High Court was without precedent or statutory support, and was adopted without hearing argument, and that the resulting sentence, far exceeding any previously imposed on a single entity under the Fair Trading Act 1986, was manifestly excessive. The Commerce Commission argues that the decisions below were affected by error. In particular, the High Court Judge wrongly held that the state of mind of the employee responsible for flawed testing processes could not be attributed to the company for sentencing purposes, wrongly allowed too great a discount for totality, and failed to take into account Steel & Tube’s size, resources and financial gain: all of this meaning that the sentence was manifestly inadequate.
Should the state of mind of an employee be attributed to their company at sentencing? Held: Yes.
The Fair Trading Act is a consumer protection statute which regulates conduct in trade. It is common ground that both offences of contravening ss 10 and 13(e) of the Act are strict liability offences. The Act creates special rules of attribution. Attribution of a state of mind is addressed in s 45(1), which provides that where, in proceedings under Part 5 (which includes the offence provision, s 40) in respect of any conduct engaged in by a body corporate, “it is necessary to establish” the state of mind of the body corporate, it is sufficient to show that a director, servant or agent, acting within the scope of that person’s actual or apparent authority, had that state of mind.
We are satisfied that it is necessary to establish the company’s state of mind for sentencing purposes. Section 45(1) does not limit attribution to proof of liability. The state of mind of the defendant is an orthodox consideration for strict liability offences. State of mind may inform the court’s assessment of the gravity and culpability of the offending. If state of mind materially affects sentence, then it is a matter of necessity that the court should establish it. Necessity is also a question of fact in the particular proceeding; here the company’s state of mind is a matter of real significance and controversy. Even if s 45 had not covered the field, we would hold that the employee’s state of mind should be attributed to the company on ordinary common law rules of attribution.
How far is attribution to extend for sentencing purposes?
Held: Where the culpability of an employee and senior management differ, the answer lies in s 45(1), which provides that it is “sufficient” to show a relevant director, employee or agent had a given state of mind. The state of mind of an agent whose misleading conduct is the subject of the charge suffices for sentencing purposes, but that person need not be the only agent whose conduct and state of mind may influence sentencing. The court may inquire further. State of mind may matter at two points in time; when the offence was committed and at sentencing. So far as the offence date is concerned, senior management’s complicity in, or ignorance of, an employee’s actions may aggravate or mitigate culpability, depending on the circumstances. At sentencing, where senior management invariably speaks for a corporate defendant, the court is interested in co-operation with the authorities, assumption of responsibility, and commitment to future compliance.
What are the relevant sentencing considerations when imposing a penalty for Fair Trading Act offending?
Held: We do not establish sentencing bands and those proposed by Duffy J in the High Court should not be used.
The cases recognise that sentencing should begin with the objects of the Fair Trading Act, which pursues a trading environment in which consumer interests are protected, businesses compete effectively, and consumers and businesses participate confidently. To those ends it promotes fair conduct in trade and the safety of goods and services and prohibits certain unfair conduct and practices.
Factors affecting seriousness and culpability of the offending may include: the nature of the good or service and the use to which it is put; the importance, falsity and dissemination of the untrue statement; the extent and duration of any trading relying on it; whether the offending was isolated or systematic; the state of mind of any servants or agents whose conduct is attributed to the defendant; the seniority of those people; any compliance systems and culture and the reasons why they failed; any harm done to consumers and other traders; and any commercial gain or benefit to the defendant.
Factors affecting the circumstances of the offender include: any past history of infringement; guilty pleas; co-operation with the authorities; any compensation or reparation paid; commitment to future compliance and any steps taken to ensure it. The court may also make some allowance for other tangible consequences of the offending that the defendant may face. By tangible we mean to exclude public opprobrium that is an ordinary consequence of conviction. The defendant’s financial resources may justify reducing or increasing the fine. Any other sentencing considerations applicable, such as totality and the treatment of like offenders, will also be taken into account.
What sentence would this Court impose on Steel & Tube Holdings Ltd?
Held: We would adopt a global starting point of $1.5 million for the compliance representations. Steel & Tube’s offending was serious insofar as the product it sold was put to an important use, compliance with the Standard was vital, Steel & Tube lacked an adequate excuse, and the offending was large scale and of a long duration. Against that, the representations were not intended to mislead or deceive. Steel & Tube believed the mesh did comply and that its testing processes were equivalent or superior to those of the Standard. The company did not mislead for gain, and we are not able to estimate what gain it actually made. The company responded by withdrawing the mesh from the market as soon as it was put on notice that its testing processes did not comply.
We would adopt a global starting point of $900,000 for the independent testing representations.
These representations are somewhat less significant than the compliance representations, but they were clearly made and widely disseminated. The offending was deliberate albeit not as culpable as some comparable cases.
In the District Court Judge Cathcart accepted that Steel & Tube took significant remedial steps to ensure future compliance. It engaged independent laboratories to conduct testing; invested in new software to record, store and produce test certificates and monitor long-term quality data; provided additional training for staff; and hired an additional quality manager. Steel & Tube cooperated with the Commission and entered early guilty pleas. The allowance of 35 per cent made by Judge Cathcart is not disputed.
We would impose an overall fine of $1,560,000.
Did the High Court err in the sentence imposed?
Held: Yes. The sentence was manifestly excessive. It should be reduced to $1,560,000.