Court of Appeal Judgments of Public Interest

This page provides access to judgments of the Court of Appeal in the last 90 days deemed to be of particular public interest.

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Case name
Case number
[2019] NZCA 619
Date of Judgment
05 December 2019

Application granted. The application is determined as a full court of the High Court.
Ms Milner was convicted on one charge of murder and one charge of attempted murder in respect of her husband, Philip Nisbet. She now applies for release of bodily samples held by ESR for further scientific testing to support a proposed application to the Governor-General for exercise of the Royal prerogative of mercy.
Criminal practice and procedure - Jurisdiction. Who (if anyone) has jurisdiction to make the orders for further testing?
Held: The Coroners Act 2006 does not provide a power for the Coroner to release the samples. Statutory authority to permit testing of evidential material retained under s 48 of the Coroners Act is found in s 324 of the Criminal Procedure Act 2011, being "other things connected with the trial of any person". The High Court has ultimate authority in respect of the samples in this case, as they were never transferred to the Court of Appeal during the course of the appeal. The Court may make an order for their release pursuant to r 1.5(2) of the Criminal Procedure Rules 2011.
Criminal  practice and procedure - Scientific testing. What orders should be made?
Held: The Court will sit as a full court of the High Court in order to determine the application. The application is not wholly speculative or unsupported by cogent expert opinion, and is therefore granted. The precise terms are to be determined following submission of a consent memorandum by the parties.

Case number
[2019] NZCA 592
Date of Judgment
28 November 2019
Application for leave granted. Appeal dismissed.
Criminal law - sentence - aggravating factors.
Constitutional law - New Zealand Bill of Rights Act 1990 - freedom of expression.

Mr Arps was convicted of two charges of supplying or distributing an objectionable publication under the Films, Videos, and Publications Classifications Act 1993. He sent the video footage of the Christchurch mosque shootings to 30 associates and separately to another person to have it modified to include "crosshairs" and a "kill-count" . Following a sentence indication and guilty plea, he was sentenced in the District Court to 21 months' imprisonment.  He appealed this sentence to the High Court, where Dunningham J dismissed the appeal. He sought leave from this Court to bring a second appeal against his sentence.

Issue: Did the Courts below err in applying s 9(1)(h) of the Sentencing Act 2002 as an aggravating factor in Mr Arps' sentence?
Held: No. Mr Arps' statements about the offending demonstrate profound hostility towards Muslim people. His previous conviction for offensive behaviour also demonstrated this deep-seated hostility.

Issue: Did the Courts below err by not taking s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA) into account?
Held: No. The right to freedom of expression is wide-ranging and expansive. Mr Arps' opinions may be condemned by society at large, but still engage s 14 of NZBORA. Section 9(1)(h) of the Sentencing Act limits this right as it imposes a punitive consequence for the expression of opinions that are hostile to groups in society. However, this is a justified limit on the right. Legislating against hate crimes is a very important objective and giving effect to this through a specific aggravating factor in sentencing is rationally connected to this objective. It is a minimal impairment on the right as it is one of many factors in the sentencing exercise and is overall a proportionate response.

Issue: Should Mr Arps' sentence of imprisonment be replaced with a lesser period of imprisonment or a sentence of home detention?
Held: No. The starting point of two and a half years' imprisonment set by the District Court Judge was appropriate in light of the seriousness of the offending. The reasons for not commuting the sentence of imprisonment to one of home detention was correct in reference to the principles and purposes of sentencing.