Court of Appeal Judgments of Public Interest

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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.
Case number
[2021] NZCA 1
Date of Judgment
18 January 2021
Appeal allowed. Tourism Holdings Ltd operates a coach touring company under the brand name "Kiwi Experience". Its drivers are paid a daily rate while on tour and, at the conclusion of each tour, commission on the sale of additional excursions. The Labour Inspector and Tourism Holdings disagreed as to whether commission payments were "a regular part of the employee's pay" for the purposes of s 8(1)(c)(i) of the Holidays Act 2003 and therefore relevant to the calculation of holiday pay under that section. The Employment Court accepted Tourism Holdings' submission that payments were "a regular part of the employee's pay" only if they were received in an ordinary working week. This definition excluded Tourism Holdings' commission payments, which were paid at intervals depending on the duration of tours and other factors. The Labour Inspector appealed to this Court with leave. 

What is the meaning of "not a regular part of the employee's pay" in s 8(1)(c)(i) of the Holidays Act for the purpose of calculating ordinary weekly pay under s 8(2)? Answer: Payments are "a regular part of the employee's pay" if they are made (i) substantively regularly, being made systematically and according to rules; or (ii) temporally regula rly, being made uniformly in time and manner. It is not necessary that payments also be a regular part of the employee's pay for an ordinary working week, as had been accepted by the Employment Court, as that would conflict with the premise of that section that a calculation based on the concept of an ordinary working week was not possible. 

If productivity or incentive-based payments are a regular part of the employee's pay, do those payments have to be "pay the employee receives under his or her employment agreement for an ordinary working week" for the purpose of calculating ordinary weekly pay under s 8(2) of the Holidays Act? Answer: No, for the reason given above.
Case number
[2020] NZCA 690
Date of Judgment
21 December 2020
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.
Case number
[2020] NZCA 656
Date of Judgment
18 December 2020
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.
Media Release
Media Release (PDF, 162 KB)
Case number
[2020] NZCA 671
Date of Judgment
17 December 2020
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.