State immunity. Jurisdiction. Forum conveniens.

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

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

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

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

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

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

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

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

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

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

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

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

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

 HELD: APPEAL AGAINST CONVICTION AND SENTENCE DISMISSED.

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

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

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

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

Unsuccessful appeal by Mr Swain against conviction and sentence for murder of Whetu Hansen.  No miscarriage of justice occurred at trial.  Sentence of life imprisonment with a minimum period of imprisonment of 14 years upheld.

Appeal dismissed.  Applications for leave to appeal on questions of law refused.  Judicial review appeal dismissed.  Costs reserved.

Criminal practice and procedure — extradition

The appellants are charged in the United States with criminal copyright infringement arising from their involvement in the alleged “Mega conspiracy”.  The United States sought their extradition to face charges in that country.  The District Court confirmed their eligibility for extradition, finding that the United States could rely on all of the extradition pathways it had pleaded and that it had adduced sufficient evidence to make out a prima facie case of the conduct alleged.  The High Court dismissed an appeal on questions of law and a judicial review, though it held that the United States could not rely on pathways to the extent they involved s 131 of the Copyright Act 1994. 

The High Court Judge granted leave to appeal on two questions of law: first, whether he was correct in his findings on the extradition pathways available to the United States; and secondly, whether he was correct to find that proof of the copyright status of the works the appellants allegedly infringed was not required.  The appellants sought leave to appeal on additional questions of law, and appealed the dismissal of their judicial review.

Issue: is double criminality required in extradition between New Zealand and the United States?
Held: yes.  Legislative history, English and Canadian authority and principles of extradition law all suggest that the conduct with which a person is charged must be criminal under both United States and New Zealand law before they can be extradited.   Cullinane v United States of America [2003] 2 NZLR 1 (CA) is overruled.

Issue: was the High Court Judge correct in his findings on the extradition pathways available to the United States?
Held: yes, though for somewhat different reasons.  Section 131 of the Copyright Act 1994 could be relied on by the United States and did criminalise copyright infringement.  Accordingly, all of the pathways relied on by the United States were open.

Issue: was there sufficient evidence to make out a prima facie case of the conduct alleged against the appellants?
Held: yes.  The evidence clearly establishes a prima facie case.  The record of case relied on by the United States is admissible and sufficient; an extradition hearing is not a trial on the merits.

Issue: should leave be granted on the additional questions of law?
Held: no.  The misconduct the appellants allege against the United States, rejected by the High Court, does not warrant a further appeal.  The evidence the appellants sought to call, that the United States allegedly prevented, is an issue for trial.

Issue: was judicial review correctly refused by the High Court?
Held: yes.  The judicial review almost entirely overlapped with the appeal, and arguably judicial review should not have been available to the appellants.  In any event it was correctly refused.

Appeal against discovery order in High Court.  Appeal to proceed to second stage of appeal where issues of relevance and matters of State will be considered.  Costs reserved.

Discovery, Evidence, Issue Estoppel

Mr Dotcom initially commenced proceedings against the GCSB seeking Baigent damages for unlawful surveillance.  On appeal, this Court held that Mr Dotcom was not entitled to discovery of the raw intercept material that the GCSB had obtained by unlawful surveillance.  Mr Dotcom subsequently commenced fresh proceedings against the GCSB seeking not only Baigent damages, but also common law damages for negligence and breach of privacy.  He made a fresh application for discovery of the raw intercept material.  The High Court declined this application, finding that Mr Dotcom was estopped from raising the issue by virtue of this Court’s earlier decision.  

Whether: Mr Dotcom was estopped from raising the issue of discovery?  Held: no.  This Court’s earlier decision was limited to a discovery application made for the purposes of pursuing a claim for Baigent damages.  Taunoa v Attorney-General makes it clear that the principles that determine the availability and quantum of Baigent damages are different from those that apply to common law damages, even where the claims for both arise out of the same set of facts and circumstances.  Mr Dotcom was therefore entitled to have the question of discovery addressed afresh.

Appeal allowed. Sentence reduced to four years and nine months imprisonment. Indication that MPI of two thirds of sentence would have been appropriate but for three-strikes regime.

Criminal practice and procedure - trial counsel error
Criminal law- sentence- prior convictions
Criminal law- sentence- three-strikes regime

The appellant was convicted of the aggravated robbery of an Auckland dairy. On appeal against sentence, he contended that his trial counsel misstated the prospects of the defence and that he would have pled guilty had he been adequately advised. He also contended that the sentencing judge double counted his previous convictions when he uplifted the sentence to account for them, as he was already ineligible for parole due to being on his second strike.

Held: trial counsel did not err, and the sentence could not be reduced on that basis. However, as the Court has previously noted, the three-strikes regime risks being over and under inclusive, and if imposed without consideration of the particular circumstances of the offender or the offence can lead to clear injustice. Sentencing judges may reduce or refuse to uplift a sentence for prior convictions where an offender is subject to the second-strike regime and has lost their eligibility for parole, but may only do so for good reason. Such cases need not be rare. In this case, a small uplift was justified to reflect the fact that the appellant was subject to release conditions when he committed the aggravated robbery, but no uplift for prior convictions was otherwise justified.

Appeal against sentence allowed
Criminal — Sentence — Whether sentence of six years and nine months manifestly inadequate.
Held: yes.  The starting point reached by the judge of 10 years’ imprisonment was inadequate.  The offending involved a frenzied attack on an already vulnerable partner, the infliction of serious and lasting injuries, and the use of an improvised weapon.  Family home a place where occupant is entitled to feel, and be safe.  Violence inflicted in that context almost inevitably an aggravating consideration.  On a proper assessment of the offending a starting point of 11 years and 6 months (which includes a 2 and a half year uplift for two other offences).  Additionally, a full 25 per cent discount for guilty plea was not justified: the plea was made near the trial date.  Only a 15 per cent reduction should be made.  An end sentence of nine years and six months on the lead charge is appropriate.