Court of Appeal Judgments of Public Interest

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Case name
Case number
[2022] NZCA 552
Date of Judgment
17 November 2022
CRIMINAL LAW - Conviction

On 1 July 2021, following a trial before Wylie J and a jury, Mrs Li was convicted of manslaughter by failing to provide her husband, Mr 'Epenisa with the necessaries of life, thereby causing his death. Mrs Li was sentenced to five years and seven months' imprisonment.

In September 2014, Mr 'Epenisa suffered a stroke and was admitted to hospital. He was discharged in late 2014. Shortly after his discharge, he suffered a second stroke and was readmitted to hospital. He was discharged for a second time in February 2015. In addition to his strokes, Mr 'Epenisa had other comorbidities. He suffered from serious diabetes, high blood pressure and kidney failure. His condition deteriorated markedly after his second stroke. He had to be assisted to get from the bedroom to the lounge; he had to be fed; he had to be toileted and cleaned; and he needed help to take his medications. Mr 'Epenisa was highly vulnerable. Mrs Li was Mr 'Epenisa's primary caregiver throughout.

On 2 October 2016, Mrs Li called 111 and reported that Mr 'Epenisa had passed away. A pathologist, Dr Glengarry, visited the scene shortly afterwards. She observed that Mr 'Epenisa was in poor physical condition with relative emaciation. His back, arms, legs and the side of his torso had multiple deep and extensive pressure ulcers. Large wounds were found on his buttocks. The pathologist concluded that Mr 'Epenisa had died from sepsis, due to the infected pressure wounds on his sacrum and buttocks. Mr Peat, a plastic and reconstructive surgeon, was called as a defence witness at the trial. Mr Peat's evidence was that the pressure sores around Mr 'Epenisa's buttock area became overwhelmingly infected in a short timeframe and rapidly caused his death. In the circumstances, the defence submitted, there was nothing Mrs Li could do. Mrs Li appeals against her conviction on the ground that the jury's verdict was not reasonable in light of Mr Peat's evidence.

Was the jury's verdict unreasonable?

Held: No. Firstly, it was open to the jury to reach a guilty verdict, even if they accepted the evidence of Mr Peat that in this case the pressure sores could have appeared and caused

Mr 'Epenisa's death within a period as short as 10 hours. The Crown's case was that Mrs Li failed to provide Mr 'Epenisa with necessaries and/or to take reasonable steps to protect him from injury over a period of some months, and that it was the failures over this longer timeframe that caused his death. Secondly, it was well open to the jury not to accept that the pressure sores had developed in as little as 10 hours in this case, having regard to all the evidence.

These reasons, taken individually and together, confirm that the jury's verdict was not unreasonable.
Case name
Case number
[2022] NZCA 508
Date of Judgment
26 October 2022
Appeal against sentence dismissed. 

Criminal Law. Murder. Sentence - minimum period of imprisonment. 

The appellant, Eli Epiha, attempted to flee from police while having illegal firearms in his car. He crashed into a parked car and injured the owner, Mr Sattar. He then took a semi-automatic rifle from his car and fired 14 shots at two police officers, killing Constable Hunt and injuring Constable Goldfinch. Mr Epiha pleaded guilty to murdering Constable Hunt. The guilty plea was given on the basis of reckless murder, but the High Court was satisfied that Mr Epiha had intended to murder Constable Hunt. Mr Epiha also pleaded guilty to dangerous driving causing injury to Mr Sattar, and he was found guilty after a jury trial of attempting to murder Constable Goldfinch. Mr Epiha was sentenced to life imprisonment. When setting the minimum period of imprisonment (MPI), the High Court adopted a starting point of 24 years for the murder of Constable Hunt, then uplifted the starting point to 29 years to take into account the attempted murder and dangerous driving convictions and the totality of the offending. The High Court gave a further uplift of six months because Mr Epiha was on parole at the time of the offending. The High Court then gave discounts of six months for Mr Epiha's guilty plea and two years for his background, giving an end sentence of life imprisonment with an MPI of 27 years. Mr Epiha appealed against his sentence on the grounds that it was manifestly excessive. 

Whether the sentence was manifestly excessive?
Held: No. The starting point of 29 years was appropriate. Mr Epiha used a high-powered weapon and fired a large number of bullets, the shooting endangered nearby members of the public, Mr Epiha was given a chance to leave by the police but chose not to, and the victims were police officers performing their duty. No issue was taken with the uplift of six months for Mr Epiha offending while on parole. The discount of six months for Mr Epiha's guilty plea was appropriate. The guilty plea was late, did not shorten the length of the trial, and was given on the basis of reckless murder when Mr Epiha had intended to murder Constable Hunt. The discount of two years for Mr Epiha's personal background was appropriate. The factors in his background that contributed to the offending had to be balanced against the extreme violence, his failure to take full responsibility, the risk he poses to the community, and the need to denounce his conduct and deter others.  Even when considering Mr Epiha's young age (24 years old at the time of the offending) and the fact that he will be 52 years old before he can be assessed for parole, the MPI of 27 years was proportionate to the offending.
Case number
[2022] NZCA 470
Date of Judgment
04 October 2022
Epidemic Preparedness Act 2006 – COVID-19 – Immediate Modification Orders 

In March 2020, the Prime Minister issued in response to COVID-19 an epidemic notice under the Epidemic Preparedness Act 2006 (the EPA) which has been renewed every three months since.  Section 15 of the EPA provides that whilst an epidemic notice is in force, the Governor-General may by Order in Council, made on the recommendation of a relevant Minister, modify “any requirement or restriction” imposed by an enactment.  Before a modification can be made, the Minister must be satisfied that the requirement or restriction must be impossible or impracticable to comply with because of the effects of the epidemic.   

In April 2020, an IMO modifying aspects of the collective bargaining provisions of the Employment Relations Act 2000 (the ERA) came into force and continued in force until May 2022.  Section 53(3) of the ERA provides that a collective agreement that would otherwise expire continues in force for 12 months, provided that collective bargaining to replace that agreement has been initiated before it has expired.  Clause 8 of the IMO modified s 53(3) by providing that the 12-month extension period did not start to run while the epidemic notice was in force.   

This appeal concerns the lawfulness of that IMO.  The appellant, Idea Services Ltd, unsuccessfully sought in the High Court declarations as to the IMO’s invalidity.  It had argued that the 12‑month extension period was not a statutory “requirement or restriction” for the purposes of s 15 of the EPA.  Idea Services Ltd now appeals the High Court decision.   

Held: Appeal allowed.  A declaration is made that cl 8 of the IMO was invalid because it modified a statutory provision that did not fall within the scope of s 15 of the EPA. 
 (1)  The Court acknowledged two important points of context for this appeal. The first was the nature of the power in s 15 of the EPA which, given its constitutional concerns, is to be narrowly and strictly construed.  The second was the uncertainty created by COVID-19.
(2)  However, s 53(3), properly construed, was not a “requirement or restriction”. Section 53(3) extends the life of an existing agreement by up to 12 months in the circumstances noted, but it does not require the parties to conclude an agreement.  There are consequences if the bargain is not concluded within the 12-month extension in that the current agreement will then expire, but there is no statutory requirement to avoid that.  Even if s 56(3) could be termed a “restriction”, it is not one with which compliance is required.  It followed that the IMO which modified s 56(3) was beyond the powers granted by s 15 of the EPA.
(3)  In considering whether to grant relief, the Court noted the purported but invalid amendment of legislation engaged fundamental constitutional issues.  Where there is a purported exercise that goes beyond the power’s scope, the court’s role is to declare that to be so.  Whilst there will be impacts on some cases where the existing agreement remains in force  only because of the purported extension, it will not impact the terms and conditions of the individual worker and the duty to negotiate in good faith continues regardless of the status of the previous agreement. It was therefore appropriate to make the declaration. 

(4)  The Court otherwise dismissed the appellant’s arguments that the IMO was only intended to last for the three-month period of the initial epidemic notice, and that it was not open to the Minister to be satisfied compliance was impossible/impracticable.
Case number
[2022] NZCA 430
Date of Judgment
14 September 2022
Appeal allowed. 
Fiduciary relationship. Trusts.
Family and Domestic Relationships. Parent and child. Family protection proceedings. 

The respondents brought a claim against the trustees of a trust that their deceased father settled. The father repeatedly raped the first respondent and physically abused the second and third respondents while they were children. After the respondents left home, they had no contact with their father until he died. The father did not leave the respondents anything in his will, and he gifted most of his assets to a trust to prevent the respondents from making a claim against those assets. The respondents claimed that their father's actions were a breach of fiduciary duty. The High Court held that (1) the relationship between parents and young children is inherently fiduciary, (2) the fiduciary relationship between the father and the respondents continued into the respondents' adulthood because his abuse left them vulnerable, (3) the father's fiduciary duties included providing for the respondents, (4) the father breached his fiduciary duties when he gifted his assets to the trust, (5) the trustees were liable for knowing receipt of the assets, and (6) the trustees held the assets on constructive trust for the father's estate, thereby exposing the assets to a claim under the Family Protection Act 1955. The trustees appealed against the finding of a fiduciary relationship and the imposition of a constructive trust. 

Whether there was a fiduciary relationship between the father and the respondents? 
Held: No.  Kós P agrees that the relationship between a parent and young child is inherently fiduciary. However,  Kós P finds that the fiduciary relationship between the father and the respondents did not continue into adulthood because there was no longer any relationship of trust. Gilbert J makes no comment on whether the relationship between a parent and young child is inherently fiduciary. Gilbert J finds that, if there was a fiduciary relationship between the father and the respondents, it did not continue into adulthood because the father held no power for the respondents' benefit and there was no duty of undivided loyalty. Collins J (dissenting) says that the fiduciary relationship between a parent and child can continue into adulthood in certain cases, such as when a parent undertakes to care for a disabled adult child. Collins J would have found that the fiduciary relationship between the father and the first respondent continued into adulthood because the father's abuse left her unable to live a normal and independent life. The father's fiduciary duty would have involved providing economic security to the first respondent, and this would have been breached when he gifted his assets to the trust. 

Whether a constructive trust should be imposed in favour of the father's estate? 
Held: No.  Kós P and Gilbert J found there was no breach of fiduciary duty when the father gifted his assets to the trust. They therefore held the respondents could have no proprietary claim to the assets. Collins J (dissenting) proceeded to consider the appropriate remedy if there had been a breach of fiduciary duty. Collins J says that knowing receipt is inappropriate because it is a personal claim and does not give rise to a constructive trust. However, the father's gift could be rescinded. This would allow the assets to be held on constructive trust for the father's estate where they could be contested in Family Protection Act proceedings.