Court of Appeal Judgments of Public Interest

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Case name
Case number
[2021] NZCA 172
Date of Judgment
10 May 2021
Application for leave to appeal against conviction declined. 

Criminal Law. Murder. Severance. Summing up. Leave to Appeal. Evidence. Admissibility.

In 1988, two men robbed a motel, and one shot the owner. Mr Waa and Mr Cullen were charged with the owner's murder. Mr Cullen confessed to robbing the motel with Mr Waa, and he claimed Mr Waa shot the owner. Mr Waa was also seen with Mr Cullen on the day, his footprint was found in the motel, and a prison informant Witness A claimed that Mr Waa confessed to the murder and said it was to find krugerands. During the trial, Mr Waa's counsel also asked Witness A if Mr Waa had confessed to another murder at the Red Fox Tavern, and Witness A said he did. Mr Waa was convicted. Mr Waa then filed an appeal/application for leave to appeal against his conviction, which was declined under an "ex parte procedure". In 2002, the Privy Council held that the "ex parte procedure" was unlawful, and in 2003, this Court held that it had inherent jurisdiction to rehear appeals/applications for leave to appeal that were declined under the "ex parte procedure". In 2018, Mr Waa filed another appeal/application for leave to appeal against conviction. Mr Waa argued the judge erred on severance, Witness A's evidence and the Red Fox Tavern murder reference. 

Whether leave to appeal was required?
Held: Yes. Under s 383 of the Crimes Act, leave was not required for appeals on questions of law. Whether the judge misdirected himself on the legal test or misdirected the jury were questions of law. However, Mr Waa was asking the Court to use its inherent jurisdiction, which should only be used if it could lead to a different outcome. Leave should be required and should only be granted if the appeal was reasonably arguable. 

Whether it was reasonably arguable the judge erred on severance?
Held: No. At the time, defendants would be tried together if there was evidence of a common enterprise. An exception was if there was evidence against one defendant that was inadmissible against the other defendant, and the inadmissible evidence against that other defendant was out of proportion to the admissible evidence against them. This was a case where two men robbed a motel, and Mr Waa being with Mr Cullen on the day and his footprint at the motel justified trying them together. Mr Cullen's confessions were inadmissible against Mr Waa, but they were not out of proportion to the admissible evidence against Mr Waa, and the judge adequately directed the jury to not consider Mr Cullen's confessions against Mr Waa. 

Whether it was reasonably arguable the judge erred on Witness A's evidence?
Held: No. Prison informant evidence was admissible where the probative value outweighed the unfair prejudice. Witness A may have been incentivised to give evidence because he was hoping to get a sentence reduction, but this was obvious at trial. Witness A's claim that the robbery was to find krugerands lacked corroboration, but this was also pointed out at trial. Witness A had given evidence in the trial of David Tamihere that later turned out to be false, but David Tamihere fed false stories to prison informants, and Witness A was only passing on what he was told rather than claiming it was true. Witness A made a false allegation in prison and used a false passport, but this did not seriously undermine his credibility in Mr Waa's trial. The judge adequately directed the jury on Witness A's evidence. 

Whether it was reasonably arguable the judge erred on the Red Fox Tavern murder reference?
Held: No. Mr Waa was not suspected of the Red Fox Tavern murder. Mr Waa's counsel referred to the Red Fox Tavern murder sarcastically to portray Witness A as willing to accuse Mr Waa of crimes he was not suspected of. The judge did not need to give a jury direction on the Red Fox Tavern murder reference.
Case number
[2021] NZCA 170
Date of Judgment
06 May 2021
Appeal against convictions allowed.  Convictions quashed.  No order for a new trial. 
In 1988 the appellant was convicted of kidnapping four children and doing an indecent act, after a jury trial.  In 2008 the jury foreman, Juror A, contacted the appellant’s counsel to say he had received information during the appellant’s trial that linked the appellant to another crime, the murder of 6-year-old Teresa Cormack in 1987, and that he had passed this information on to other jurors before their deliberations.
In 2018 the Governor-General referred the appellant’s convictions to the Court of Appeal under s 406(1)(a) of the Crimes Act 1961 on the basis that this new evidence could suggest that a miscarriage of justice had occurred.  A subsequent inquiry was conducted under s 335 of the Criminal Procedure Act 2011 to contact the other jurors to ask them if they received any information from Juror A that was not in evidence at trial, and if so what that information was.  Six jurors responded to the inquiry and Juror A was summonsed to give evidence on the reference.Criminal law — unsafe verdict.  Criminal practice and procedure — juror misconduct.  Practice and procedure — bias.  Whether the information linking the appellant to another crime being before the jury meant his verdicts were unsafe such that a miscarriage of justice occurred. Held:  Yes.  Juror A was an honest and reliable witness.  His evidence was that he received the information, which was highly prejudicial, and transmitted it to other jurors before the verdicts were reached.  A fair-minded lay observer acquainted with the factual background would likely conclude a realistic possibility that such a jury was no longer independent and impartial.  The jury’s receipt of the extraneous evidence gave rise to apparent bias.  Accordingly, the appellant’s verdicts were unsafe and must be set aside.

Criminal practice and procedure — Judicial directions.
Held:  The practice adopted in other jurisdictions for Judges to direct jurors to disclose any receipt of extraneous information should now be adopted in New Zealand.
Case number
[2021] NZCA 156
Date of Judgment
04 May 2021
Appeal dismissed.  Appellant to pay respondent costs for standard appeal on band A basis with usual disbursements. 

Mr Craig’s relationship with his previous press secretary Ms MacGregor was previously the subject of defamation proceedings in Craig v Slater.  In an appeal in that proceeding this Court upheld Toogood J’s finding that Mr Craig had engaged in moderately serious sexual harassment of Ms MacGregor.  In a subsequent defamation proceeding against Ms MacGregor, Hinton J held Mr Craig and Ms MacGregor defamed each other to a limited extant.  Hinton J relevantly held that Mr Craig sexually harassed Ms MacGregor and that Mr Craig’s statements were not protected by the qualified privilege applying to replies to attacks.  Mr Craig appeals against both findings. 

Defamation – Defences.  Whether the Judge erred in finding Mr Craig sexually harassed Ms MacGregor (meaning his defence of truth should succeed).
Held:  No.  The essential findings in the judgment under appeal and Toogood J’s judgment upheld by this Court are essentially identical.  The documentary evidence in both proceedings was very similar.  So too was the oral evidence.  The circumstances do not give rise to an issue estoppel.  Ms MacGregor was not a party to the Slater proceeding and though giving evidence for Mr Slater, did not share such a community or mutuality of interest that with him that she can be regarded as his privy.  But this Court follows its own decisions save in certain exceptional circumstances, none of which are made out here.  This Court’s decision in Craig v Slater cannot be distinguished on the basis of different facts.  It is unnecessary to consider whether pursuit of this appeal is itself an abuse of process. 

Defamation – Privilege.  Whether the Judge erred in finding Mr Craig lost the qualified privilege he would otherwise have had.
Held:  No.  The Judge erred in finding the defence of reply to attack privilege was unavailable where the attack was true.  The relevant enquiry as to the truth of the attack is whether the defendant knew the attack was true when publishing his or her reply.  The Judge did not err in saying Mr Craig did not refer to Ms MacGregor only to the extent reasonably necessary to respond to attack.  Reasonableness is not an element of privilege for reply to attack.  Relevance remains a prerequisite, though the defendant is given some leeway.  But absence of fair relevance of the reply to the attack may be evidence of a predominant motivation of ill will, or of a taking of improper advantage.
Less leeway should be afforded where the reply defames a non-attacker, as here.  It must genuinely be necessary to bring in the third party’s name in explanation.  Where a defendant goes further than necessary in counter-attacking a non-attacker, that suggests an improper purpose inconsistent with an occasion of privilege.  A defendant should not be entitled to skirt the more demanding thresholds for truth and honest opinion defences by slipping instead through the back door of privilege, simply because they were the subject of attack by another person altogether.The Judge was correct to find Mr Craig went too far.  Ms MacGregor was the ultimate source of the allegations but was not the attacker and there is no suggestion she acted in concert with Mr Craig’s attackers.  Mr Craig was capable of replying to the attacks by Messrs Williams, Slater and Stringer without also defaming Ms MacGregor as the Judge outlined.  Mr Craig deliberately targeted Ms MacGregor in his replies as a (later disclosed) email to his lawyer shows.  He treated her as a member of the attacking group and set about attempting to harm her reputation in a misguided attempt to restore his own.  Mr Craig therefore took improper advantage of the occasion of privilege.
Case number
[2021] NZCA 142
Date of Judgment
30 April 2021
The appeal against the High Court’s substantive decision is dismissed.  The appeal against the High Court’s costs decision is allowed.  Costs and disbursements payable in the High Court are reduced by 70 per cent.  Counsel may file memoranda as to costs on the appeal within 10 working days from the date of this decision.   

Administrative Law – Judicial review.
Constitutional Law – New Zealand Bill of Rights Act 1990. 
Human Rights – Freedom of expression. 
Judicial Review – Appeals – Bodies amenable to review – Unreasonableness.
Practice and Procedure – Costs – Standing.   

Regional Facilities Auckland Ltd (RFAL) is a council-controlled organisation (CCO) that owns and administers various regional facilities in Tāmaki Makaurau, including the Bruce Mason Centre.  The appellants, Mr Moncrief-Spittle and Dr Cumin, applied for judicial review of RFAL’s decision to cancel a venue hire agreement for a controversial speaking event that was to be held at the Centre.  They argued that RFAL was under public law obligations to facilitate the right to freedom of expression and, in breach of those obligations, had cancelled the event without being satisfied that there were sufficient public safety grounds for doing so.   

The High Court held that the decision was not reviewable because RFAL was not exercising a public power.  As a result, nor did the High Court accept that RFAL’s decision was made in the performance of any public function or power for the purposes of s 3(b) of the New Zealand Bill of Rights Act 1990 (BORA) and, therefore, the BORA-protected right to freedom of expression was not engaged.  The High Court also held that neither Mr Moncrief‑Spittle nor Dr Cumin had standing to bring the proceedings. 

The appellants challenged each of these findings.  They also appealed against the High Court’s costs decision in which the appellants were ordered to pay costs on the basis that the proceedings did not concern matters of public interest.   

Is the decision to cancel reviewable?
Held:  Yes.  The High Court’s focus on the wording of RFAL’s constituent documents obscured an important aspect.  The overall statutory scheme in which RFAL operates shows that it is properly viewed as the Council’s agent in relation to the assets it holds.  Although the immediate context of the cancellation was commercial, the wider context is not comparable to the cases in which the very narrow approach to the availability of judicial review has been taken.  RFAL is not required to administer its assets on a competitive commercial basis.  The hiring out of venues is not collateral to RFAL’s core statutory function of managing the assets vested in it, but part of that core statutory function.  The effect of cancellation was not limited to those directly interested in the venue hire agreement.  Finally, RFAL’s statutory function of providing venues for live performances engages the right to freedom of expression.  Society places a high value on freedom of expression and RFAL has the power to control public assets that are used for many forms of expression.  The decision to cancel would directly affect the BORA rights of members of the public who wished to attend the event.  The decision was therefore, in substance, public.  It is reviewable both on the usual public law principles and subject to s 3(b) of BORA.   

Was the decision to cancel unlawful by reason of it being irrational or perverse?
Held:  No.  The decision was not made prematurely or without adequate information.  RFAL’s failure to wait for input from the police does not undermine the basis for the decision.  The concern was over the practicalities, including cost, of protecting the venue and these were not necessarily matters on which police input would have assisted.  Nor did RFAL fail properly to engage with the promoter’s ability to manage the event.  RFAL was entitled to make its own assessment of the risk and of the practical steps that would be required to manage that risk based on the knowledge and resources then available to it.  RFAL was also entitled to make its own assessment as to what was required in terms of its obligations under the relevant health and safety policies and legislation.   

While the decision engages the concept of the “heckler’s veto”, the decision was not unreasonable on this basis.  The phrase “heckler’s veto” may be used in New Zealand to describe an outcome where protest or the threat of protest has led to the curtailment of the exercise of the freedom of expression.  However, it would be unprincipled to treat such an outcome as necessarily perverse.  That must depend on whether the limitation was reasonable for the purposes of s 5 of BORA.   

Was the cancellation an unjustifiable limit on the BORA rights engaged?
Held:  No.  The rights to freedom of expression and peaceful assembly were engaged by the decision to cancel the event.  However, the countervailing considerations are the enforceable contractual arrangements on which RFAL operates, the fact that the promoter gave no indication that security was likely to be an issue when it made the booking, the fact that the RFAL personnel involved were experienced in the management of venues and had an internal security adviser and the fact that the level of protest escalated significantly during the first week of ticket sales.  While the decision to cancel was not inevitable and another decision maker in like circumstances may have made a different decision, it cannot be said that cancellation was not a rational and reasonable response.  The decision to cancel the event was therefore a justified limit on the appellants’ BORA-affirmed rights.   

Did the appellants have standing to bring the proceedings?
Held:  Yes.  Mr Moncrief-Spittle’s standing ought to have been recognised.  His position in the proceeding went beyond the mere contractual interest of having purchased a ticket to the event.  He had a genuine concern about the effect of the decision on free speech rights in New Zealand and the claim was not frivolous, vexatious or untenable.  Dr Cumin also has standing.  He is an Auckland ratepayer and has, by membership of a particular community, a genuine interest in the way the Council and CCOs manage public assets.   

Did the High Court err in making the costs order against the appellants?
Held:  Yes.  The issues raised in this case were novel and important, particularly the availability of judicial review in respect of contractual decisions by CCOs.  Given the extensive reach of such organisations in local government, this was an issue that warranted careful consideration.  The proceeding was not untenable and, apart from one cause of action that could have been abandoned earlier, there is no basis for criticism of the appellants’ conduct.  In these circumstances, the High Court ought to have reduced the costs that would otherwise have been payable.
Case number
[2021] NZCA 144
Date of Judgment
29 April 2021
Case name
Case number
[2021] NZCA 133
Date of Judgment
27 April 2021
Case number
[2021] NZCA 126
Date of Judgment
20 April 2021
Case number
[2021] NZCA 117
Date of Judgment
14 April 2021
Appeal against conviction dismissed. 

Criminal law – Appeal against conviction
Evidence – Propensity
Criminal law – Summing up 

The appellant was found guilty of one charge of murder of Amber-Rose Rush and four charges of threatening to kill.  He appealed against his conviction. 

Whether the omission of an accomplice warning about W (a major prosecution witness who the defence claimed was the real murderer) led to a miscarriage of justice?  Held:  No.  A Judge may elect not to give an accomplice warning where the need for caution is so obvious that a warning cannot be said to provide the jury with material assistance.  In such a case, providing a warning can tip the scales artificially by conveying the impression that the judge thinks the witness is lying.  In this case, it could not have been more obvious to the jury that W may have had a reason to lie to protect himself.  The defence questioned him extensively about his involvement with the murder and suggested he was the real murderer.  In such a case, a warning was not required and may have conveyed the impression the Judge doubted W’s truthfulness. 

Whether the admission and treatment of propensity evidence led to a miscarriage of justice?  Held:  No.  The admission of new propensity evidence from P was credible and probative of a pattern of inappropriate conduct towards young women and the addition of her evidence would not overwhelm the trial.  The Judge was not required to reconsider the admissibility of propensity evidence at trial:  the evidence at trial was if anything stronger than when this Court ruled it admissible in a pre-trial decision since much of the evidence was not seriously challenged.  The Judge properly directed the jury that the propensity evidence was only relevant to motive.  The jury were not required to find that the propensity evidence was proved beyond reasonable doubt before relying on it.  The main issue was not whether the claims of the propensity witnesses were true, but whether their claims might provide the appellant with a motive for murder.  The Judge gave the propensity evidence appropriate weight in his summing-up and gave a clear caution against undue prejudice. 

Did the refusal to admit hearsay evidence of Ms Rush complaints to two friends about W amount to a miscarriage of justice?  Held:  No.  The hearsay evidence ought to have been admitted.  Ms Rush made two separate statements about her concern over W’s conduct which provided sufficient assurance as to its reliability.  However, there was no possibility that the absence of the hearsay evidence affected the result.  There was other cogent evidence of similar same substance (that W was obsessed with Ms Rush and entered her house uninvited at night).  The defence was able to question W about the incidents that concerned Ms Rush.  The overall evidence against the appellant was overwhelming. 

Was the summing-up unbalanced and unfair?  Held:  No.  The Judge clearly summarised the defence case that Ms Rush had not been indecently assaulted by the appellant.  The Judge’s summary of the propensity evidence was accurate, properly cautioned the jury against unfair prejudice and reminded them of the purpose of propensity evidence.  He properly directed the jury as to inferences and did not err by referring to the appellant as “Dr Skantha” while using the full names of W and Ms Rush.  Nor did the Judge take on the role of the prosecutor when summarising the respective cases. 

Did the Judge err in the lies direction given in relation to the appellant and W?  Held:  No.  The lies direction in relation to Mr Skantha was orthodox.  A warning about lies should not normally be made for a Crown witness.  In the case of W, the purpose of the lies direction was to point out the extent of W’s lie and remind the jury that it was not evidence W killed Ms Rush.  The direction could not have affected the result because W admitted to being an unreliable witness and there was ample evidence of that. 

Did the Judge err by warning the jury not to attach weight to demeanour?  Held:  No.  The key question is whether there is a real risk that witness demeanour will feature illegitimately in the jury’s assessment of witness veracity or unreliability.  It was not unreasonable to think the jury might attach too much weight to W’s demeanour and the Judge did not tell the jury to completely disregard demeanour. 

Did the Judge err by not directing the jury to consider whether Mr Pelvin, an expert witness, was in fact an expert on whose opinion they might rely?  Held:  No.  The admissibility of Mr Pelvin’s evidence was not contested at trial.  The jury were told the weight to be given to his evidence was a matter for them and the Judge reminded them of the defence criticisms of that evidence.
Case number
[2021] NZCA 99
Date of Judgment
31 March 2021
Appeals allowed.  Cross-appeals allowed.  High Court orders set aside.  Appellants to pay compensation to the first respondent under s 301 of the Companies Act 1993.  Proceedings remitted back to the High Court for determination of quantum of compensation. 

Company Law — Directors’ duties — Reckless trading — Incurring of obligations — Quantum of compensation. 

Mainzeal Property and Construction Ltd (Mainzeal) was a significant construction company that was placed into liquidation on 28 February 2013.  The secured creditor, Bank of New Zealand, and preferential creditors were paid in full, but only approximately $8 million was left to meet outstanding claims by unsecured creditors in excess of $110 million and liquidation expenses.  The liquidators brought claims against the directors alleging (among other things) that they had breached ss 135 and 136 of the Companies Act 1993 (the Act).  In the High Court Cooke J found that the directors had breached s 135 claim and ordered that the directors pay a total of $36 million compensation to Mainzeal.  He did not find any breach of s 136.  The directors appeal the s 135 breach finding.  The liquidators cross-appeal seeking an increased compensation award for breach of s 135, and a finding that s 136 was breached and compensation for that breach. 

Did the directors breach s 135?
Held: Yes — the directors breached s 135 by no later than 31 January 2011 as they exposed Mainzeal’s creditors to a substantial risk of serious loss by trading on in a “business as usual” mode while balance sheet insolvent and using the creditors’ funds as working capital.  By January 2011 at the latest, Mainzeal was in a very vulnerable state — it was seriously balance sheet insolvent if the related company debts owing to Mainzeal were not recoverable.  The related companies that owed the debts did not have the means to meet their obligations.  Mainzeal and the debtor companies were dependent on the willingness and ability of other companies in the wider group to provide support, in the absence of any legally binding obligation to do so.  It was not reasonable for the directors to proceed on the basis of oral assurances of financial support from related companies which had no legally binding obligation to provide that support, and which faced regulatory barriers to providing such support under Chinese law.  A number of courses of action were open to the directors, including pressing for repayment of the debts owed to Mainzeal by related parties; obtaining written assurances of support in a legally binding form from entities with the means to provide that support; conducting a review of the appropriateness of continuing to trade; conveying the seriousness of their concerns to the controllers of the Chinese entities; indicating that if none of the various options were feasible they would proceed to wind down the business; and indicating that if no satisfactory change occurred the directors could and would resign.  The directors did the one thing that was not reasonably open to them: to simply keep trading while failing to engage in any meaningful way with the company’s financial position and the risks that created for current and future creditors.   

What compensation should be awarded against the directors under s 301 in relation to the s 135 breach?
Held: The relevant approach to assessing compensation under s 135 in the circumstances of this case is the net deterioration approach.  There was no net deterioration in Mainzeal’s position between 31 January 2011 and the date of liquidation in early 2013, so no compensation for breach of s 135 is recoverable from the directors.  The entire deficiency approach is not relevant on the facts as the directors’ breaches did not cause the company to become insolvent: the liquidators did not establish on the balance of probabilities that liquidation would have been avoided if the directors had not breached their s 135 duties.  Nor was this approach pleaded by the liquidators in the High Court.  It was not the subject of relevant fact and expert evidence.  It would not be fair to impose liability on this basis, in those circumstances.  The liquidators’ preferred approach, the new debt approach, also is not available in the context of the breach of s 135 in this case.  No compensation is recoverable from the directors for their breach of s 135 as on the only relevant measure in this case, the net deterioration approach, their breach did not cause loss to the company. 

Did the directors breach s 136?
Held: Yes.  The directors breached s 136 in respect of: obligations to principals and bond providers under four substantial construction contracts entered into after 31 January 2011; obligations to subcontractors under those contracts in relation to retentions; and all obligations incurred on or after 5 July 2012.  The directors did not have reasonable grounds to think Mainzeal would be able to perform the longer-term obligations assumed as a result of entry into the four substantial contracts. Where significant obligations with a longer time horizon were undertaken, there was a high risk that those obligations would not be performed as the ability to do so depended on the company receiving shareholder support as and when financial difficulties arose: the directors’ belief that shareholder support would be forthcoming was not based on reasonable grounds.  It was not open to the directors to enter into those contracts without having put in place arrangements that provided a reasonable basis for believing Mainzeal would be able to perform its obligations under those contracts through to completion.  By 5 July 2012, the directors did not have reasonable grounds for believing that the company would be able to meet new short-term (unsecured) obligations when they fell due.  Section 136 is not only concerned with entry into one or more specific obligations.  It was sufficient for the liquidators to plead a global claim that the directors should not have agreed to Mainzeal entering into new obligations from 31 January 2011 onwards; the liquidators did not need to plead specific obligations entry into which constituted a breach of s 136. 

What compensation should be awarded against the directors under s 301 in relation to the s 136 breach?
Held: It follows from the Supreme Court’s decision in Madsen-Ries v Cooper [2020] NZSC 100, (2020) 29 NZTC 24-088 (Debut Homes) that the new debt approach is available in relation to a claim for breach of s 136.  As the Supreme Court said, in order to make s 136 work in practice, the new debts incurred in breach of that provision must be treated as a form of harm to the company.  Offsetting benefits to the company from the relevant transactions must be disregarded.  This approach is not without difficulties, but it is preferable to adopting an approach that renders s 136 a dead letter in cases where its policy rationale is squarely engaged.  A compensation award on the new debt approach fairly reflects the harm done to new creditors, who would not have been exposed to the company if the directors had not breached s 136.  That harm is treated as harm to the company for the purposes of s 136 and for the purpose of assessing compensation for breach of s 136.   

What should the quantum of compensation be for the directors’ breaches of s 136?Held: Only the net deficit to relevant creditors, after making an allowance for all payments received by them before liquidation or during the liquidation (other than as a result of these proceedings), can be recovered for breach of s 136.  The amount of new debt claimed by the liquidators is approximately $63.551 million.  A substantial proportion of this figure appears to be represented by obligations in respect of which we have found the directors to be liable under s 136, but we do not have sufficient information to determine that issue.  The figures provided by the liquidators do not make any allowance for payments to relevant creditors during the liquidation.  Those figures also do not make allowance for interest on creditors’ claims.  We are not in the position to determine the figure potentially recoverable for breach of s 136.  We remit this proceeding to the High Court to determine that figure.  The High Court will also need to consider whether the amount that is prima facie recoverable for breach of s 136 should be reduced in the exercise of the s 301 discretion.
Case number
[2021] NZCA 91
Date of Judgment
25 March 2021
Application to adduce fresh evidence declined.  Appeal against conviction dismissed.  
Police found the appellant smelling strongly of alcohol and asleep behind the wheel of his van, which was parked across both kerb and carriageway on broken yellow lines with its engine running. Police removed the key from the ignition and required the appellant to undergo a breath test.  After returning a positive result, police conducted an evidential breath test (EBT). The EBT showed the appellant had a breath alcohol level of almost four times the legal limit.
The appellant was subsequently convicted of driving with excess breath alcohol.  He appeals against conviction and the District Court’s refusal to grant a discharge without conviction. Leave was given on the basis that this Court’s forthcoming decision in Re Solicitor-General’s Reference (No 1 of 2020) may affect the appellant’s case. The appellant argues the wording in Block J of the procedure sheet used by police to warn him was non-compliant with ss 77(3) and (3A) of the Land Transport Act 1998 such that the EBT result should not have been admissible at trial, and that this Court’s decision in Re Solicitor-General’s Reference (No 1 of 2020) is per incuriam.  The appellant also seeks to adduce fresh evidence.

Criminal practice and procedure — Police acts or omissions.  Whether the Block J wording used by police failed to comply with ss 77(3) and (3A) of the Land Transport Act 1998 such that the appellant’s EBT result should not have been admissible at trial. 
Held:  No.  This Court in Re Solicitor-General’s Reference (No 1 of 2020) decided the Block J wording conveyed the sense and effect of the warning required by s 77(3A)(a) of the Land Transport Act. The appellant’s argument misconstrued that decision, which did not preclude an argument that the motorist did not in fact understand his rights. None of the 12 reasons submitted demonstrated the Court had made a fundamental omission in its previous decision such as to satisfy the per incuriam threshold for reversal.   

Criminal Law — Fresh evidence. Whether leave should be granted to admit fresh evidence.
Held:  No. The evidence of previous versions of the Block J wording is not relevant to whether the words used comply with ss 77(3) and (3A) of the Land Transport Act.
Case number
[2021] NZCA 86
Date of Judgment
24 March 2021
Appeal dismissed. 

Criminal Practice and Procedure – Name Suppression. 

The second respondent, L, faced a charge of manslaughter relating to the death of his daughter as well as family violence charges.  L pleaded guilty to the charges, was convicted and sentenced, and was granted permanent name suppression.  Stuff appeals against the granting of permanent name suppression on the grounds that the Judge failed to provide reasons, the s 200(2) threshold requirements were not met, and the Judge erred in exercising his discretion in granting name suppression. 

Whether the Judge erred in failing to give reasons for making the permanent name suppression order.
Held:  The Judge gave reasons orally which were later confirmed in writing in a minute after the present appeal was filed.  Therefore the Judge did give reasons, though best practice would have been for the Judge’s oral reasons to be transcribed and provided to the parties. 

Whether the Judge erred in finding the threshold s 200(2) were met.
Held:  The connection between L and the victims as immediate family members is very close.  The child victims’ surnames include L’s surname.  There is a high likelihood the victims would be identified in their community.  Publication would also cause undue hardship to the victims.  L’s former partner has suffered abuse which will likely escalate if she is identified by a wider circle of people.  L’s surviving child would likely be identified when she starts school which would be a very significant burden to bear. 

Whether the Judge erred in exercising his discretion to grant permanent name suppression.
Held:  The case is distinguishable from R v Liddell [1995] 1 NZLR 538 (CA) where no immediate family members were direct victims of the offending.  Moreover, here it is not merely family members suppression but L’s victims, which is relevant per s 200(6) of the CPA.  The interests of open justice were sufficiently promoted by the widespread publication of the facts of the offending and the fact that L admitted to killing his child.
Case number
[2021] NZCA 78
Date of Judgment
19 March 2021
Appeal allowed in relation to Tessa, Sam and Ana.  Appeal dismissed in relation to Wendy.  Parties directed to prepare and seal final adoption orders under the Adoption Act 1955 in respect of Tessa, Sam and Ana.  Leave reserved to apply to the Court for approval of the orders for sealing. 

Family and Domestic Relationships — Intercountry Adoption. 

Ms Norman is a New Zealand citizen.  She is the aunt of four young people who live in Ethiopia: Wendy (aged 20), Tessa (aged 19), Sam (aged 17) and Ana (aged 15) (the children).  The children’s parents have not been heard from since 2013: it is likely they are no longer alive.  The children are being cared for by another aunt, Ms May, who is Ms Norman’s sister.  The children, Ms May and Ms May’s 10 year-year-old daughter all live together in one bedroom in a house owned by an extended family member.  They live in financial and material poverty and are supported by funds sent from Ms Norman in New Zealand.  Although the children are being looked after by Ms May, she is not their legal guardian, which poses difficulties relating to accessing education and healthcare, and they do not have proper identity documents.  None of the children has had any formal education.  The children’s situation has become worse in the last year due to civil unrest in Ethiopia and COVID-19. 

In 2017, Ms Norman applied to the Family Court to adopt the children under the Adoption Act 1955 (the Act).  The Family Court declined the application as the Judge was not satisfied the claimed family relationship between the children and Ms Norman had been established.  Before the High Court, DNA evidence confirmed Ms Norman is the aunt of the children.  But the application was declined as the Judge was not satisfied that adoption was in the children’s best interests.  Ms Norman sought leave from the High Court to appeal that decision to this Court, which was granted. 

Can the Court make an adoption order in respect of Wendy?Held: No.  An adoption order can only be made in respect of a “child”.  That term is defined in the Act as a person under the age of 20, with an express extension to include a person in respect of whom an interim order is in force despite that person turning 20.  No adoption order may be made in respect of a person above the age of 20, unless an interim order is in force in respect of that person.  No interim order was made in this case.  Nor can an adoption order be backdated: s 14 of the Act expressly provides that an order is effective on the date it is made.  This interpretation of the Act is consistent with the purpose of the Act, which is to ensure that children under 20 are able to receive parental care from adoptive parents.  Although the effects of adoption last beyond the age of 20, the focus of the Act is on ensuring appropriate parental care for persons under 20.  That purpose is no longer served in respect of a person who has turned 20.  Rule 48(4) of the Court of Appeal (Civil) Rules 2005, which permits this Court to make any order that should have been made in the court below, does not confer on this court a power to make orders that are not consistent with the scheme of the relevant legislation.   

When should an adoption order be made under the Act?Held: The High Court Judge erred in approaching the case on the basis that the “first and critical question is whether the children can be cared for in a suitable manner in Ethiopia”.  We consider that the first question should be whether the child in respect of whom an order is sought is a child who cannot, or will not, be cared for by his or her own parents?  If so, the next question is whether the proposed adoption is capable of providing the child with a permanent family life.  If so, then the purpose of the Act is engaged and the court can, and should, apply the specific criteria in the Act, in particular, whether the proposed adoption order would serve the best interests and welfare of the child.   

Held: Both New Zealand and Ethiopia are signatories to the UNCRC, which provides an important backdrop to the interpretation and application of the Act. Article 21(b) expressly recognises that intercountry adoption may be an appropriate means of providing care for a child.  It is necessary to focus on the child’s best interests in each case, rather than adopting a bright‑line rule that relegates intercountry adoption to a last resort.  Intrafamily adoption addresses many of the concerns that attach to intercountry adoption more generally.  In particular, it maintains family and wider cultural connections and lessens many of the risks that are present in the intercountry adoption context. 

Held:  If the above questions are answered in the affirmative, it necessarily follows that the adoption is not a device that is being abused to circumvent the Immigration Act 2009.  Our approach also ensures that adoption is not misused in a manner that prejudices the relationship between children and parents who are caring for those children despite financial and material poverty.   

Held: The inquiry into the welfare and best interests of the child required by the Act and the UNCRC is comprehensive, and intensely fact-specific.  The socioeconomic advantages of the adoption may be taken into account as relevant benefits.  The benefits of becoming a New Zealand citizen, and associated rights and protections, may also be relevant advantages. 

Should an adoption order be made in this case in respect of Tessa, Sam and Ana?Held: Yes.  The first criterion is met: the children are not being cared for by their own parents.  Although the children are receiving day-to-day care from Ms May and financial support from Ms Norman, there is no-one exercising legal guardianship in respect of the children, which has contributed to difficulties in terms of educational opportunities and healthcare.  The second criterion is also met: adoption by Ms Norman would provide the children with a permanent family life.  Ms Norman intends the children to live with her as part of her family.  She is their aunt, has been in regular contact with the children, has been supporting them for many years, and intends to continue to support them regardless of the outcome of the application.   

Held: We consider it is in the best interests of the children to be adopted by Ms Norman.  Although the children have a close and loving relationship with Ms May and their extended family in Ethiopia, Ms Norman is hardly a stranger to the children.  Ms Norman has met them in person on a number of occasions when visiting Ethiopia.  Ms Norman is in regular contact with them through WhatsApp, supports them materially and contributes to their emotional support.  We share the concern of the courts below about the emotional impact on the children of separation from Ms May, who has cared for them since they were born.  But they will be living with another family member to whom they are also attached.  The children are not young: they are capable of taking steps to maintain a long-distance relationship with Ms May and other family members in Ethiopia and may well travel to visit their family there in the future. 

Held: The approach adopted in the Courts below may have led to insufficient weight being given to the stark difference in living conditions and opportunities for the future for the children if they are adopted by Ms Norman.  The children currently live in very crowded conditions, have a limited and inadequate diet, have no money for other necessities such as clothing, live with a real and continuing threat to their security, and are deprived of education and healthcare.  If the children are adopted by Ms Norman, they will have a loving and supportive home with her and her husband here in New Zealand, they will be clothed and cared for, they will become New Zealand citizens meaning they will obtain formal identity documents, be able to travel, have a right of abode in New Zealand, and have access to all the social, educational, healthcare and welfare opportunities New Zealand citizens enjoy.  The children are able to maintain their family links and cultural identity through Ms Norman and her family, and through the wider Ethiopian community in New Zealand.  We agree that transition to life in New Zealand will undoubtedly be difficult, but Ms Norman is well placed to assist the children. 

Held: The Act requires us to take the children’s views into account, consistent with art 12 of the UNCRC.  The Courts below were right to observe that the information the children have about life in New Zealand is limited, and they are unlikely to fully appreciate the scale of the challenges they will face in adapting to live in New Zealand.  But the children have a good understanding of the conditions in which they currently live.  We consider that significant weight needs to be given to their views that, despite the risks and uncertainties involved, they would be better off to live with their aunt, Ms Norman, in New Zealand. Held: The factor that weighs most heavily against making an adoption order in relation to the three younger children is that it seems likely to result in their separation from their sister, Wendy.  The siblings are close-knit and provide each other’s primary support.  It will be emotionally challenging for the three younger children to be separated from their eldest sister.  However, all the children, including Wendy, and Ms May, expressed the view that it would be in the three younger children’s best interests to be adopted by Ms Norman and go to New Zealand, even if Wendy could not go.  We conclude it would be in the three younger children’s best interests for the adoption order to be made.
Case number
[2021] NZCA 60
Date of Judgment
11 March 2021
Application for leave to appeal dismissed. Applicant to pay respondent costs on standard application with usual disbursements.

The respondent, Fire and Emergency New Zealand, is undergoing a restructure. The applicant, the New Zealand Professional Firefighters Union, sought declarations in the Employment Court as to the relationship between its collective agreement with FENZ and s 30 of the Fire and Emergency New Zealand Act 2017, obliging FENZ to offer any suitable vacant positions to employees whose existing position is being made redundant. The Judge held s 30 overrode provisions to the contrary in the collective agreement. The union seeks leave to appeal under s 214 of the Employment Relations Act 2000 on the following question of law: whether s 30 properly interpreted operates to defeat the employment agreement entitlements.

Employment Law – Leave to appeal. Whether proposed question of law is one that by reason of its general or public importance or for any other reason ought to be submitted for determination.

Held: No. The proposed question of law concerns the interpretation of a statutory provision and is of general importance relating as it does to a significant number of people and the function of an important public organisation. But the proposed question of law is not seriously arguable. The union’s interpretation would render s 30 pointless. Section 30 is a protective provision that clearly applies to all redundancies. The provision was part of reforms to reorganise fire services meaning restructuring and protection for re-deployment was necessary. The Supplementary Order Paper notes s 30 was inserted for the benefit of any FENZ employee who may be affected by redundancy and who may be given preference over others for appointment to any other relevant position in FENZ. There was no provision for s 30 being subject to employment agreements and s 30 reflects developments in the common law regarding obligations on redundancy.
Case name
Case number
[2021] NZCA 56
Date of Judgment
10 March 2021
Appeal dismissed.
Criminal law: Parties to offences, murder, evidence, miscarriage of justice, hearsay, jury directions on intent and composite question trail.

The appellants were both patched members of the Tribesmen gang.  A High Court jury found them guilty of the murder of a 24-year-old gang prospect.  Both appealed their conviction.  Mr Solomon appealed primarily on the basis that new evidence by a Ms Henare had come to light suggesting another person was the true assailant.  This new evidence resulted in an application for leave to adduce fresh evidence.  Mr Solomon also argued that a statement made by him to police was inadmissible.  Mr George’s appeal challenged the admissibility of a hearsay statement by a gang member Mr Putt (deceased by the time of the trial) and the admissibility of propensity evidence by a Mr Kamoto.  The admissibility of both items of evidence had been the subject of pre-trial rulings by Downs J.  Among other grounds, both appellants also challenged the trial judge’s directions on intent and the question trail provided to the jury.

Should leave to adduce fresh evidence be granted? Held: no.  Despite Ms Henare’s evidence being fresh in the sense that trial counsel had no way of knowing about statements she made after the trial to police, the evidence if true would have been known to both appellants and able to be put to witnesses at trial.  In the absence of any waiver of solicitor-client privilege the Court cannot speculate that trial counsel may not have followed instructions.  In addition to this, the evidence was in any event not credible or cogent.

Was Mr Putt’s hearsay statement inadmissible? Held: no. It satisfied the pre-requisites for admission. It was a formal signed statement made to police in the knowledge that it would be used in legal proceedings and without any operative inducement.  It was made at a time very shortly after the events in issue. The prejudice arising from being unable to cross-examine Mr Putt was not significant given that matters such as his criminal record for dishonesty and the fact he was seeking bail at the time he made his statement could all be put before the jury through other witnesses.

Was Mr Kamoto’s propensity evidence about gang violence properly admitted?  Held.  On the basis of the brief of evidence (which told of the deceased being targeted by Mr George), Downs J was correct to allow the pre-trial application.  However, the evidence Mr Kamoto gave at trial was of general gang violence and was of very low probative value in relation to the key issue at trial, namely the identity of the gang members who had attacked the deceased.  However, although the trial judge did not tell the jury to ignore the evidence or explain its limitations, the limitations of the evidence were self-evident.  Further, the trial judge did give the jury a general warning about not allowing any prejudices they might have about gangs to influence them.  The evidence would not have made any difference to the outcome.

Was Mr Solomon’s police statement inadmissible because he was not cautioned before making it? Held: no.  The evidence at the voir dire established that at the time he made the statement Mr Solomon was being questioned as a potential witness, not a suspect.  He was not compelled to go to the police station and nor was he pressured to make the statement in question which accorded with other statements he had already made to another officer a few days before.

Was the trial Judge’s direction on intent inadequate and the question trail defective? Held:  no. The defence theory for both appellants was very much focused on the identity of the true perpetrators and for obvious reasons questions of intent and recklessness were only briefly mentioned.  The Crown was never required to prove motive to want to kill and there would have been little value in the trial Judge defining recklessness by some other words than those contained in the question trail. The words the Judge used clearly conveyed the concept. While other judges might have adopted separate question trails for each defendant, the Judge’s use of a composite question trial was not an error.  The question trail was clear and would not have led the jury down illegitimate pathways of reasoning.  The Judge went to some pains to emphasise the need to consider the evidence and the case against each defendant separately.
Case number
[2021] NZCA 44
Date of Judgment
05 March 2021
Public works — compulsory acquisition of land The respondents owned land over which Total Energy Ltd (TEL) sought to acquire easements to enable construction of an electricity line.  The easements could not be required by negotiation and TEL applied to the Minister for Land Information under s 186 of the Resource Management Act 1991 (RMA) for the easements to be acquired or taken.  The Minister granted the applications.  The respondents objected, and the matter was heard by the Environment Court under s 24 of the Public Works Act 1981 (PWA).  The Environment Court upheld the Minister’s decision.  The High Court allowed the objectors’ appeal, holding that under s 24(7)(b) there had been inadequate consideration of alternatives by the Minister, and that the “Minister alone” was required to consider alternatives.  Consideration of alternatives by TEL would not suffice. 

The Minister appealed, on the basis that the Minister’s role under s 186 of the RMA was “supervisory” in nature, and the Minster simply carried out a check on the consideration of alternatives by the requiring authority.  It was then the role of the Environment Court to determine whether a proposal should be accepted under s 24(7) of the PWA.  The objectors sought to uphold the High Court judgment on various other grounds. 

Held — appeal allowed.  When making a decision under s 186(1) of the RMA the Minister must be satisfied that the proposed taking is capable of meeting the test for the Environment Court in s 24(7) of the PWA.  The Minister need not be satisfied the proposal will definitely meet the requirements of s 24(7).  It is not the Minister’s role to decide which of a number of alternatives should be pursued.    However, the Minister might validly decline to grant an application under s 186(1) of the RMA if, for example, there had been insufficient consideration of alternatives by the requiring authority, or the proposal had implications for land of significance to Māori or ran contrary to relevant government policies regarding climate change or the environment.  Accordingly, the “supervisory” label was not appropriate. 

The arguments raised to support the High Court decision on other grounds could not succeed.  There was no basis on which to conclude that an unfair process had given rise to a material impact on the Minister’s decision, and the High Court was correct to find that alleged omissions in TEL’s applications were not relevant to the Environment Court’s decision. 

It was wrong to suggest the Crown should have granted easements over land belonging to the Office of Treaty Settlements (the OTS land), and land-banked for the purpose of claims under the Treaty of Waitangi, to avoid the compulsory acquisition of private land.  Given relevant provisions in the RMA, the fact land had significance for Māori was relevant to the statutory scheme.  Further, the Treaty was a relevant consideration in the Environment Court’s inquiry under s 24(7) of the RMA where the acquisition of such land was at issue. 

Nor could the notice of intention to acquire land under s 23 of the PWA be impugned in the circumstances.  There was no error of law in the Environment Court’s treatment of this issue.
Case name
Case number
[2021] NZCA 22
Date of Judgment
22 February 2021
Application to adduce fresh evidence declined.  Appeal against conviction dismissed.  Appeal against sentence allowed. 

Criminal Law.  Verdict unreasonable. Sentence — starting point — mitigation.  

In 2019 Mr Kreegher was convicted of kidnapping, aggravated robbery, wounding with intent to cause grievous bodily harm and arson.  He was sentenced to eight and a half years’ imprisonment.  He appeals his conviction and sentence.  He also seeks to adduce fresh evidence.   

Should the evidence be adduced? Held: no.  The evidence is affidavits suggesting someone else was in possession of the car used in the offending.  This evidence is neither fresh nor sufficiently credible.  The Court is generally not sympathetic to appellants who merely seek a second opportunity to mount a more effective defence.  

Was the verdict unreasonable? Held: no.  Although the prosecutor’s closing was unclear, the trial judge’s directions adequately reminded the jury that it is the Crown’s burden to prove guilt beyond a reasonable doubt, and not the appellant’s burden to prove innocence.  There was also sufficient evidence upon which a jury could have reasonably convicted Mr Kreegher.    

Was the sentence manifestly excessive? Held: yes.  While the starting point was appropriate, Mr Kreegher was entitled to a higher discount for his personal circumstances and the three years he spent on bail without breach.