Court of Appeal Judgments of Public Interest

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Case number
[2021] NZCA 252
Date of Judgment
18 June 2021
Summary
Application to adduce fresh evidence on appeal granted.  Appeal against conviction and sentence dismissed.
Criminal law – Discharge without conviction
Criminal practice and procedure – Conviction appeal – Sentence appeal
Immigration – Deportation liability

Mr Sok pleaded guilty to one charge of injuring a baby with reckless disregard for the baby’s safety.  He was denied a discharge without conviction.  He appeals against that decision, principally because he will likely face deportation to his native Cambodia.  Mr Sok initially entered New Zealand on a visitor’s visa and applied for another visa on a partnership basis.  His visitor visa expired on 1 December 2020.  On 12 March 2021, his application for a partnership visa was declined on the basis that his offending prevented him from meeting the good character requirement.
Was the District Court wrong to characterise the offending as serious?  Held:  No.  The evidence suggested Mr Sok had shaken the baby.  The most lenient view is that he suffered a momentary loss of control when dealing with an unsettled baby and responding by shaking him.  The baby’s injuries were severe and he requires intensive ongoing rehabilitation.  Mr Sok remained reluctant to accept responsibility.  Against that, the incident was driven by stress and was a one-off occurrence.  The appellant pleaded guilty and engaged in restorative justice.  He could point to otherwise good character.  The District Court was plainly right to characterise the offending as serious.  Several aggravating factors in s 9A of the Sentencing Act 2002 were present (defencelessness, harm and breach of trust).
Would Mr Sok’s deportation be a consequence of his conviction?  Held:  No.  The Sentencing Act allows the Court to consider the “direct and indirect” consequences of conviction.  The language of indirect causation signifies that the jurisdiction to discharge extends to cases where the happening of a given consequence may require some intervening event or action, such as the decision of a third party in which the conviction is relevant.  However, but-for causation is not necessarily sufficient.  Courts have often accepted that where the immigration process allows the offender to be heard on mitigating and personal circumstances, deportation would be the outcome of the offending, not the conviction.
In Mr Sok’s case, the fact he was declined a character waiver was a consequence of his offending, not conviction.  The immigration officer did not base their decision on the maximum sentence associated with the offence and the District Court decision was not treated as conclusive evidence of bad character.  The officer examined the merits, traversing the circumstances of the offence in detail and discussing the mitigating circumstances.  Nor would a discharge assist Mr Sok in obtaining an offshore visa;  he would still have to pass the character test and INZ may consider conduct that resulted in a discharge.  A discharge would not assist him in obtaining a visa from the Minister under s 61.
Are the consequences of the offending out of all proportion to the gravity of the offence?  Held:  No.  The offending was serious, involving grave and potentially lifelong harm to a vulnerable victim, although there are mitigating factors.  This is not a case where liability to deportation would be a wholly disproportionate consequence of conviction.  Mr Sok’s risk of deportation is not a consequence of the conviction, but of his offending.  A discharge would not materially reduce the risk of deportation.  Nor could Mr Sok point to any appreciable risk to his employment or travel prospects.
Case number
[2021] NZCA 237
Date of Judgment
08 June 2021
Summary
Appeal against Beddoe orders allowed in part.

Bill Snr, the appellant's father, settled the WF McCallum Trust (the Old Trust) in 1986.  Its trustees were Bill Snr and his brother, Robert.  In 2016, Bill Snr settled the McCallum FAmily Trust (the New Trust).  Its trustees were Bill Snr, his nephew, Callum, and Robert.  The appellant is a beneficiary of both Trusts.

From 2016, a series of transactions occurred involving both Trusts and Bill Snr's separate property.  Assets were exchanged between Bill Snr and the Old Trust, transferred from Bill Snr to Robert and to Callum's family trust, and transferred from Bill Snr to the New Trust.  Bill Snr died in January 2017.  In November 2017, the remaining assets of the Old Trust were resettled on to the New Trust.

The appellant disputed the propriety of these transactions and brought proceedings against Robert and Callum in their capacities as trustees of both Trusts, as executors of Bill Snr's estate, and personally.

In March 2019, Robert and Callum applied to the High Court for Beddoe orders, seeking the Court's directions to defend the proceedings and indemnification for their costs from the funds of the New Trust.  The High Court granted a Beddoe order for Robert and Callum to defend the second cause of action pleaded, and partial Beddoe orders on the third, fourth, seventh and eight causes of action.  The appellant appealed.

Equity — Trusts.  Practice and procedure — Costs.  Whether the appeal against the making of Beddoe orders ought to be allowed.
Held: Yes.  Beddoe orders may be sought to confirm pre-emptively the propriety of trustees bringing or defending proceedings, and to confirm the trustees' entitlement to indemnity for costs to be paid out of the trust's funds.  Whether a Beddoe application is granted must be assessed against what is in the trust's best interests.  Beddoe applications will seldom be granted where litigation is "hostile", that is, when it alleges wrongdoing by the trustees, but the overriding consideration is the best interests of the trust.

The Beddoe order justification has a long and secure lineage and should be retained in New Zealand.  The Beddoe orders made here did not breach natural justice; the procedure followed was one which all counsel had acceded in advance.

Here it was in the best interests of the beneficiaries of the New Trust that the second cause of action be defended, because the effect of the claim, if successful, would be to diminish the assets of the Trust.  The indemnity can only extend to reasonable and proper costs attributable to the Trust's defence.  The same reasons applied in respect of the third and eighth causes of action.

However, Beddoe orders should not have been granted on the fourth cause of action, which is brought against the respondents in their personal capacities.  Beddoe orders should also not have been granted on the seventh cause of action, which seeks the removal of the respondents as executors of Bill Snr's estate, and trustees of both Trusts.  A trustee challenged on this basis cannot expect a pre-emptive costs indemnity via a Beddoe order.
Case name
Case number
[2021] NZCA 234
Date of Judgment
04 June 2021
Summary
Mr Webby appeals his sentence of life imprisonment with a minimum non-parole period (MPI) of 17 years and nine months for a charge of murder, arson, attempting to pervert the course of justice and two charges of aggravated robbery.  He says the Judge erred in failing to apply the three-step approach identified in R v Williams when determining his MPI, with the result that his sentence is manifestly unjust.   

Held: Appeal dismissed.  This Court has previously acknowledged that it is unobjectionable in some circumstances for a Judge to sentence for murder without expressly adopting the R v Williams three-step approach, provided the sentence is consistent with sentencing purposes and principles and comparator cases.  The Court was satisfied that was the case with the MPI imposed by the Judge in this instance.
Case number
[2021] NZCA 227
Date of Judgment
03 June 2021
Summary
Tort - nuisance, Rylands v Fletcher
The appellants (collectively "Nottingham Forest") owned and operated a forest containing some 30,000 trees. The respondent (Unison) owned power lines that ran through and predated the forest. The trees grew to a height greater than their distance from the lines. In December 2010 and July 2011, trees fell on the 33kV line (the line), and in April 2012 and January and November 2014, trees fell on another line. Unison filed proceedings in relation to three "strikes", involving trees falling on and causing damage to the line in September 2015, July 2016 and August 2016. A fourth strike causing damage and power outages while repairs were carried out occurred in September 2018, after proceedings were filed. The trees fell as a result of "root plate failure" and were otherwise healthy. Individual tree falls could not be predicted. 

The High Court found Nottingham Forest liable under Rylands v Fletcher, as the individual tree falls were characterised as "one-off'' escapes of dangerous things from land. Nottingham Forest was also held liable in nuisance, as the physical damage caused by the falling trees constituted an ongoing, substantial and unreasonable interference with Unison's interest in the lines.  It was also arguable that a well-founded fear of falling trees itself constituted a nuisance. However, the Judge declined to order an injunction requiring the trees in question to be cut down. She did not consider it necessary to consider negligence, which had also been advanced. 

Nottingham Forest appealed the Judge's finding of liability in Rylands v Fletcher and nuisance. Unison cross-appealed the Judge's refusal to grant an injunction and also argued that Nottingham Forest was liable in negligence. As the trees had been cut down by the time the appeal was heard, the part of the cross-appeal seeking injunctive relief was not pursued. 

Held  appeal and cross-appeal dismissed.   An actionable nuisance was established. The recurring tree falls caused ongoing and substantial physical damage to Unison's property. That of itself was sufficient to establish that the ongoing inference was "unreasonable".  Given the inevitability of tree falls following bad weather conditions it was unreasonable for Nottingham Forest to grow the trees to a height at which they would cause physical damage to Unison's line if they fell.  Nottingham Forest was liable to pay damages in nuisance, as the type of harm that was caused by the tree falls was undoubtedly reasonably foreseeable. 

Rylands v Fletcher was not established. The planting and growing of trees could not be seen as anything other than an ordinary use of rural land. It was not a special use bringing increased danger to others. Further, trees when planted are not dangerous. It was only when the trees grew above a certain height that they posed a danger because of their proximity to the line. Whether an activity is an "ordinary" use of the land cannot depend on such fine distinctions. 

Given those findings it was not necessary to address negligence.
Case name
Case number
[2021] NZCA 214
Date of Judgment
28 May 2021
Summary
Application for leave to appeal a question of law is granted.
The answer to the two questions of law set out at [6] is yes.
The Court declines to order a re-sentencing of the respondent. 

Criminal Law: Sentence — minimum period of imprisonment, three strikes regime.
Practice and Procedure — Appeal on a question of law, Solicitor-General reference. 

In the High Court, the Judge held both an oral warning and a formal written notice were required before a warning was operative under ss 86B to 86D of the Sentencing Act 2002 — colloquially known as the “three strikes regime”.  The Judge further held there was insufficient evidence of both of these requirements having been satisfied in this case and therefore the Judge did not have jurisdiction to sentence the respondent on the basis that he was subject to previous warnings.   

The Crown sought leave to appeal on a question of law under s 296(3)(a) of the Criminal Procedure Act 2011 (CPA) which was granted.  Pursuant to s 299 of the CPA the Court rephrased the questions of law as follows: 
Does the giving of a warning under s 86B or s 86C of the Sentencing Act 2002 require only an oral warning which is then duly recorded? Held: yes.  The scheme of the provision is that the giving of the warning and the recording of that warning must happen at the same time.  Subsection 3 of both provisions makes clear that it is at that point that the offender has a record of first or final warning as the case may be.  Such warning is effected by the Judge recording on the charging document that the warning has been given.  A permanent record of this is created when this information is entered into the Ministry’s Case Management System (CMS) system which can then be generated in an offender’s criminal and traffic history.  This CMS record will generally be sufficient evidence that the oral warning was given as CMS is designed to reflect the permanent court record and has been developed with business rules to ensure accuracy and compliance with legislation. 

The written notice of consequences as provided for by s 86B(4) and s 86C(7) is mandatory but failure to comply with these subsections does not in itself invalidate the warning or make the warning incomplete.  Despite important reasons for requiring a notice of consequences, if Parliament intended failure to provide the written notice of consequences to invalidate the warning, they would have used clearer words to link the notice to the record of warning.  The two are deliberately separated and distinct. 

It is acknowledged that during the passage of the legislation in the House, Parliamentarians explained that offenders would be warned both verbally and in writing.  However, any significance that might be attached to those statements is far outweighed by the text and other aspects of legislative history.  When the Bill was first introduced to the House no written notice provision existed.  The requirement for a written notice was included following a Departmental Report provided by the New Zealand Police.  The Report explained that when the court makes an order relating to an offender, it is usual practice to provide an offender with something in writing outlining what had just happened.  The supplementary order paper that followed made clear that such inclusion of a written notice was not to be described as a “notice of warning” but a “notice of written consequences of first warning”.  Importantly, that indicates it is a notice dealing with something that has already been effected or completed. 

If so was the Judge’s decision to treat Mr Muraahi as a stage-1 offender s 86B of the Sentencing Act made in error? Held: yes.  The Judge was not correct to hold that both an oral warning and the written notice of consequences are components of the warning under the three strikes regime.  As such Mr Muraahi should have been sentenced as a stage-3 offender under the Act.  However, the Court declines to use its discretion under s 180 of the CPA to correct the erroneous sentence.  Mr Muraahi’s sentence was only one year less than the maximum sentence available for aggravated robbery as it was.  The Crown did not strongly advocate for a re‑sentencing.   

NB Additional documentation obtained for the purposes of the appeal hearing establishes that even if Peters J’s approach had been correct in law, there was on the facts of this case sufficient evidence.
Case number
[2021] NZCA 211
Date of Judgment
27 May 2021
Summary
Appeal dismissed. Accident Compensation — personal injury — mesothelioma. 

Ms Trevarthen developed mesothelioma from contact as a young girl with her father whose work likely involved high exposure to asbestos.  ACC, a reviewer and the District Court determined she did not have cover under the Accident Compensation Act 2001.  This was overturned on appeal to the High Court, where Mallon J held that Ms Trevarthen was entitled to cover under the 2001 Act because her mesothelioma was a personal injury caused by an accident to her (the inhalation of asbestos).  She found that Ms Trevarthen was not barred by s 26(2) which excludes from cover a personal injury caused wholly or substantially by a disease unless it is of the kind described in s 20(2)(e) to (h).  ACC has appealed that decision on a question of law. 

Does mesothelioma, not caused by a work-related exposure to asbestos, amount to a “personal injury” under s 26 of the Act?  Held:  Yes. ACC submitted that the parameters for cover of non work-related disease have changed over time, and there is no longer a simple distinction between idiopathic disease and disease with an external cause.  Now, the only cover available is under s 20(2)(g) for disease caused by a personal injury for which the person has cover.  This narrowing was said to have originated in the 1992 Act.  However, under that Act cover remained available for a personal injury which was caused by an accident and not caused wholly or substantially by a disease. Section 20(2)(g) does not have the effect of excluding cover otherwise available under s 20(2)(a) for personal injury caused by accident.  There is nothing in the drafting history showing that the specific instances in s 20(2)(e) to (h) should be used to read down other instances of personal injury within s 20(2).  The various routes to cover should be viewed as expansive, not reductive.  

ACC also makes the argument that personal injury is tangible harm caused to the body.  The accidental inhalation of asbestos caused the disease (mesothelioma).  But ACC argued that it was the disease, not the accident, that caused the personal injury (the physical manifestations such as pleural effusion, tumours and death).  Mallon J was correct to reject this reasoning.  It is artificial to draw a distinction between being inflicted with a disease and experiencing the physical manifestations of the disease.  Such an approach does not mean all diseases have cover. And it is consistent with the statutory scheme.
Media Release
Media Release (PDF, 133 KB)
Case number
[2021] NZCA 177
Date of Judgment
13 May 2021
Case name
Case number
[2021] NZCA 172
Date of Judgment
10 May 2021
Summary
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
Summary
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
Summary
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
Summary
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
Summary
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
Summary
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
Summary
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
Summary
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.