Court of Appeal Judgments of Public Interest

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Case name
Case number
[2022] NZCA 112
Date of Judgment
06 April 2022
Application for leave to appeal declined.
The applicant was convicted of his third strike offence in December 2021.  The Three Strikes Legislation Repeal Bill 2021 is currently before Parliament.  It proposes to repeal the three-strikes sentencing regime.  The Bill currently has no retrospective effect.  If enacted, it would likely come into force on 1 July 2022. 
The applicant applied to adjourn his sentencing so he would not have to be sentenced under the three-strikes regime.  The High Court declined his application.  The applicant seeks leave to appeal that decision.
Criminal practice and procedure — sentencing — adjournment — three-strikes regime.  Should the application for leave to appeal be granted?
Held:  No.  The Judge was right to refuse adjournment.  First, the more tolerant sentencing regime upon which the applicant relies is neither enacted nor in force.  Courts should not act in anticipation of legislation as yet unpassed.  Nor should they pre-empt Parliament’s decision by shunting sentencings into a sort of siding to relieve some defendants (but not others) from non-retrospectivity, if ultimately that is Parliament’s will.  Parliament must make the decision whether to repeal the current sentencing framework and, if so, whether to do so retrospectively. Secondly, the adjournment power under s 167 of the Criminal Procedure Act 2011 is discretionary and may only be exercised for good reason and in the interests of justice.  Postponement to a potentially more tolerant sentencing regime is not a good reason.  No error in the High Court’s exercise of discretion justifying appellate intervention has been demonstrated.  Finally, the sole reason for adjournment is to take advantage of a future potential law change.  There is no other, legitimate basis for adjournment of sentencing.  To do so would be unprincipled.  Absent any other legitimate reason for delay, sentencing must proceed on the basis of the law as it now stands, albeit the three-strikes regime may end in three months’ time.  The consequence, for the applicant and for others, is for Parliament to weigh.
Case number
[2022] NZCA 38
Date of Judgment
04 March 2022
Leave granted to Attorney-General and Zhan Urlich to adduce further evidence.  Appeal dismissed.  No order as to costs.

Simon and Richard Urlich gifted land in Northland to the Crown for use as a Māori school in 1953.  The school closed in 2016 giving rise to the Crown obligation to offer the land back to former owners or successors under the Public Works Act 1981 (PWA).  Simon and Richard having died, the Crown offered the land to Zhan, Richard’s grandson, alone in February 2019 as Zhan was the residual beneficiary under Richard’s will.  The appellant Robert, Simon’s son, was not offered the land as he was not the residuary beneficiary under Simon’s will (rather, his mother was, and she too had died).  Robert lodged a caveat over the land in July 2019.  He sought an application that the caveat not lapse on the basis he is beneficially entitled to the land as a successor to one of the original owners under s 40(2) of the PWA.  In the High Court, the Associate Judge held it was not reasonably arguable Robert was a successor within the meaning of s 40(5).  Robert appeals on the basis the prevailing interpretation of “successor” as set out in Williams v Auckland Council [2015] NZCA 479 is too narrow.  

Leave was previously granted for Robert to adduce further evidence on appeal, including evidence that the offer-back only to Zhan contravened the tuku whenua tikanga of Te Whānau Moana and Ngāti Kahu.  This Court subsequently ordered Zhan be served with these proceedings.  Zhan adduced evidence that he intended to pass half of the land to Simon’s descendants.  The Attorney-General adduced evidence describing the background to these proceedings.
Public Works Act — Offer-back to successor.  Is Robert his father’s successor under s 40 of the PWA?

Held:  No.  The purpose of s 40 is to revert land back to the previous or equivalent private ownership when it is no longer being used for a public work.  The wording of s 40(5) clearly limits “successor” to the person immediately entitled under the will or intestacy of the former owner and not the will or intestacy of another person.  This interpretation is also supported by the provision’s legislative history.  The 1894 formulation had contemplated a broad group of potential successors that was not limited to immediate successors.  That formulation was not however continued in the 1981 Act.  This change can be assumed to have been deliberate, and would exclude second-line successors (residuaries of the former owner’s residuary) such as Robert.    
Moreover, the  duty of active protection of rangatiratanga over whenua Māori must be borne in mind in the interpretation of “successor”.  Specific provision is made for whenua Māori in s 41 of the PWA, which does not apply in this case.  However, the Court’s conclusion below on the application of s 134 of the Te Ture Whenua Māori Act (TTWMA) suggests a more flexible approach is open to the Crown that has the potential to effect a broader offer-back, consistent with tuku whenua.  It also suggests s 40(5) may bear its ordinary meaning without offending either the general purpose of s 40 or Treaty duties.

Te Ture Whenua Māori Act — Interrelationship between s 134 and ss 40–41 of the PWA.  Should the Crown have considered s 134 of the TTWMA before electing to proceed with the offer-back to Zhan?

Held:  Yes.  Section 134 is applicable and should have been considered by the Crown as an available option.  Section 134 enables the Māori Land Court to make vesting orders over land as an alternative pathway to the PWA.  The alternative jurisdiction is longstanding, existing under s 7 of the Native Purposes Act 1943 and s 436 of the Māori Affairs Act 1953.  Section 134 should not be read down to exclude its application in cases beyond s 41 of the PWA unless it is plain Parliament intended that consequence, which in our view it did not. 
As s 134 is applicable, Robert has a legitimate expectation that the Crown reassess its position, which it has undertaken to do.  However, this does not create a legal or equitable interest in the land that supports a caveat.  The appeal must be dismissed.
Case number
[2022] NZCA 30
Date of Judgment
03 March 2022
The Court of Appeal has allowed an appeal against decisions of the Tūpuna Maunga Authority, which administers Ōwairaka/Mt Albert under the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014, and the Auckland Council. The decisions relate to the Authority’s proposal to make significant changes to the vegetation on Ōwairaka, including by removing exotic trees and planting indigenous trees and plants on the maunga. The appellants sought judicial review of the Authority’s decision to remove the trees, and of the Council’s decision that the relevant resource consent applications could be determined without being publicly notified or subject to limited notification under the Resource Management Act 1991. The application for judicial review was rejected by the High Court. On appeal to this Court, the appellants argued that: the Authority’s decision to remove the trees breached the Reserves Act 1977; the Authority had not carried out the consultation required by statute; and the application should have been publicly notified under the Resource Management Act. The appellants succeeded on their second and third grounds of appeal. The Court found that the required consultation was not carried out, and the application should have been publicly notified under s 95A of the Resource Management Act. Accordingly, the Court set aside the Authority’s decision to fell and remove the exotic trees on Ōwairaka and the Council’s decision to grant resource consent for the felling and removal of the exotic trees.
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