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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.

More information about finding court judgments is available on the judgments section of this website.

It is the responsibility of users of the information contained in these decisions to ensure compliance with conditions or other legal obligations governing access, release, storage and re-publication. See also the guide on statutory provisions that prohibit publication of certain information in certain circumstances. If in doubt you should consult the court that issued the decision(s).  Judicial Decisions are presented in PDF format to preserve the integrity of the documents.

CaseSummary
Milner v R
05 December 2019
[2019] NZCA 619

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.

Arps v New Zealand Police
28 November 2019
[2019] NZCA 592

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.

Frucor Beverages Ltd v Blumberg
11 November 2019
[2019] NZCA 547

Appeal dismissed. Costs order.

Insurance - liability of insurer. Damages - mitigation of loss.

Mr Blumberg's vehicle was damaged in a collision with a car driven by an employee of Frucor Beverages Ltd (Frucor). Frucor's employee was at fault. While Mr Blumberg's vehicle was being repaired, he used a replacement car provided by Right2Drive (R2D). In terms of its hire agreement, R2D pursued the at-fault driver's insurer for its hire charges. If it could not recover the charges from the at-fault driver's insurer, R2D's policy was to waive its charges, and not to pursue Mr Blumberg  for the hire charges. The insurer  refused  to pay  and R2D, exercising its rights under the hire agreement, commenced a proceeding in the name of Mr Blumberg against Frucor (in effect, against Frucor's insurer).

The other two respondents' circumstances were substantially similar  to  Mr  Blumberg's. These cases arise as insurers are resisting R2D's entry into the New Zealand market by refusing to pay its invoices for hire charges. The respondents were successful in the High Court.

Issue: In respect of the hire charges for the R2D replacement car, had Mr Blumberg  incurred  a compensatable loss or expense recoverable by him from Frucor?
Held: Yes. In terms of the hire agreement, Mr Blumberg was liable to pay any hire charges advised to him by R2D which it had not recovered from Frucor. The fact that R2D had a policy of not seeking to recover those charges from Mr Blumberg did not affect that legal liability. Nor did the fact that R2D could not have enforced Mr Blumberg's liability against him until it had taken certain steps.

Issue: Was R2D's hire agreement unenforceable, in that it assigned a bare cause of action and was champertous?
Held: No. Mr Blumberg's authority to R2D to act as his "agent, representative and attorney" to recover the hire charges did not transfer the right to recover. Even if it did, R2D unarguably had a genuine commercial interest in Mr Blumberg recovering the hire charges from Frucor. There could be nothing objectionable in R2D taking an assignment of the cause of action, if that is what it did. English authority takes the view that a hire agreement comparable to R2D's is not champertous.

Issue: Was it reasonable for Mr Blumberg to take the R2D option rather than one of the other available options? Were R2D's hire charges reasonable?
Held: Yes. R2D was recommended by the repairer that Frucor's insurance company had approved. Further, having placed Mr Blumberg in the position of needing to obtain a replacement vehicle while his own was repaired, Frucor cannot criticise him for not taking other options that may have been less burdensome to it. When compared to other rates available in the market, R2D's hire charges were reasonable in the circumstances.

Issue: Did R2D's charges include the cost of additional services which were not properly allowed by the Judge to Mr Blumberg as mitigation expenses?
Held: No. The evidence  in  the  High  Court  was that  R2D's  hire  charges  were  based  on the market, and did not include allowance for the additional benefits it provided. The additional delivery/collection fee R2D charged was reasonable.

Issue: Was the repairer's carelessness in not ordering replacement parts in a timely way an intervening cause  disentitling Mr Blumberg from   recovering  R2D's   hire   charges   for the resulting extended repair period of some 12 days?
Held: No. There was no evidence that the repairer was at fault for the delay. Frucor's negligence placed Mr Blumberg in the position of needing to have his vehicle repaired.

Issue: Did the Judge err in allowing Mr Blumberg interest on the judgment sum?
Held: No. In terms of the hire agreement Mr Blumberg was liable to pay interest on the outstanding amount of the invoice after the 90-day credit period passed. If interest is not awarded on the hire charges, Vero will have a windfall (the free use of the amount for the interim three years or so) and there will be hardship to R2D. Effectively, Frucor, the wrongdoer here, will be permitted to take advantage of its own default in not paying the invoice for the hire charges. The rule that a party cannot take advantage of its own wrong is fundamental.

Attorney-General v The Trustees of the Motiti Rohe Moana Trust & Ors
04 November 2019
[2019] NZCA 532

We answer the questions of law in [81] of the judgment.

Practice and Procedure – Resource Management Act 1991 – Fisheries Act 1996
Statutes – Interpretation
Local Government – Regional Councils – Power
Practice and Procedure – Declarations

In 2014 the Bay of Plenty Regional Council (the Council) proposed a Regional Coastal Environment Plan (the Plan). The area subject to the Plan included the immediate surroundings to Motiti island. The Motiti Rohe Moana Trust (the Trust) opposed the proposed plan and eventually appealed to the Environment Court, and separately sought declarations to the effect that the Council could restrict fishing techniques to preserve the Motiti coastal marine area.

The Resource Management Act 1991 (RMA) assigns to regional councils, in conjunction with the Minister of Conservation, a number of functions to do with the coastal marine area. Councils exercise control through regional plans that incorporate objectives and policies promulgated in a coastal policy statement issued by the Minister. Under s 30(1)(d) the functions of regional councils and the Minister in the coastal marine area include control of (i) land and associated natural and physical resources, (ii) the occupation of space in and extraction of natural materials from the coastal marine area, and (vii) activities in relation to the surface of water. However, there is an express limit to the power conferred. It yields in some circumstances to fisheries legislation. A regional council and the Minister of Conservation “must not perform” the three s 30(1)(d) functions listed “to control the taking, allocation or enhancement of fisheries resources for the purpose of managing fishing or fisheries resources controlled under the Fisheries Act 1996” under s 30(2) of the RMA.

The Council has now agreed to protect indigenous biodiversity in three areas of outstanding natural character in the Motiti coastal marine area, a function provided for in s 30(1)(ga) of the RMA, by way of restricting fishing. The question is whether it has the jurisdiction to do so.

Leave was given by the Court of Appeal to answer four questions of law.

Question One: Does s 30(2) of the RMA only prevent a regional council from controlling activity in the coastal marine area if the purpose of those controls is either to manage the utilisation of fisheries resources or to maintain the sustainability of the aquatic environment as a fishing resource?

The effect of s 30(2) is that a regional council may control fisheries resources in the exercise of its s 30 functions including the listed s 30(1)(d) functions provided it does not do so to manage those resources for Fisheries Act purposes.

Question Two: Can a regional council exercise all of its functions under the RMA concerning the protection of Māori values and interests in the coastal marine area provided that they are not inconsistent with the special provision made for Māori interests under the Fisheries Act?

The control of fisheries under the Fisheries Act extends to provision for taiapure-local and customary fishing, and a regional council may be required to bear that in mind when determining in a particular setting whether s 30(2) precludes the exercise of its functions under subs 30(1)(d)(i), (ii) or (viii). It is otherwise not necessary or appropriate to answer the question in this case.

Question Three: To what extent, if any, does s 30(2) of the RMA prevent a regional council from performing its function to maintain indigenous biodiversity under s 30(1)(ga)? In answering this question, is it correct to say that it is only appropriate for a regional council to exercise this function if it is strictly necessary to achieve that purpose?

The RMA does not specify that the function of maintaining indigenous biodiversity in s 30(1)(ga) is subject to s 30(2). It is not the case that a regional council may exercise this function only when strictly necessary when dealing with fisheries resources controlled under the Fisheries Act. But any controls imposed under subs 30(1)(d)(i), (ii) or (vii) are subject to s 30(2). Section 30(1)(ga) policies can be subject to s 30(2) where specified s 30(1)(d) functions are also invoked.

Question Four: Did the High Court err by setting aside the declaration made by the Environment Court and should it have made a different declaration?

No. Whata J was correct for the reasons he gave. The questions of law have been separated from their factual setting and are expressed in a very general way. It would be difficult to craft declarations that encapsulate the reasons we have given.

Orchard v R
04 November 2019
[2019] NZCA 529

Applications to adduce fresh evidence declined. Appeal allowed.

The appellant was convicted on one count of wounding with intent to cause grievous bodily harm, one count of breaching a protection order, two counts of assault and one count of driving dangerously. Downs J sentenced Mr Orchard to six years and nine months' imprisonment on these charges. Mr Orchard appeals against sentence only.

Criminal law - Sentencing - starting point. Whether the Judge erred in adopting a starting point for the lead GBH offence that was too high.

Held: yes. Applying Zhang v R [2019] NZCA 507, having regard to the offending as a whole and the importance of not imposing guideline judgments in a mechanistic way, rather than searching for aggravating features and thereby boosting band standing in terms of R v Taueki [2005] 3 NZLR 372 (CA), the better approach is to look at the specific examples given in Taueki for band one and band two domestic violence offending, and to ask to which the new offending is more proximate. Here the offending was more proximate to the example given in Taueki for band one than the example given for band two offending. Although involving more than one aggravating feature, it was not premeditated and it did not cause serious and lasting injury. It lay on the borderline of bands one and two, warranting a starting point of six years and six months' imprisonment.

Criminal law - Sentencing - uplifts. Whether the Judge erred in giving uplifts for the protection order breach and prior offending that were too high.

Held: yes. The discrete six month uplift for the breach of protection order was wrong in principle, it being based on the same actus reus as the index GBH offence. The six month uplift for Mr Orchard's previous breach of order exceeded the prior sentence, the appropriate uplifts being no more than two months' imprisonment.

Criminal law - Sentencing - mitigation. Whether the Judge erred in giving a discount for the appellant's mental health issues that was too low.

Held: yes. A discount of 20, rather than 15, per cent properly reflects the causative effect of Mr Orchard's mental health disability on the offending perpetrated by him.