Court of Appeal Judgments of Public Interest

IMMIGRATION LAW – JUDICIAL REVIEW – RIGHTS OF APPPEAL – IMMIGRATION ACT 2009 – JURISDICTIONAL PATHWAY – PROCEDURE 

Mr Sroubek is a Czech national who was granted a visitor’s visa, and subsequently a resident’s visa, using a false name.  The deception was discovered, and he was found guilty at trial of possessing a false passport and giving false information but discharged without conviction.  Mr Sroubek was later convicted of importing Class B drugs (MDMA) and imprisoned for a term of five years and nine months.  

While Mr Sroubek was in prison, Immigration New Zealand initiated an inquiry into his possible deportation. The then Minister of Immigration cancelled the liability for deportation and granted Mr Sroubek a resident visa under his true identity on the condition he provide a valid Czech passport in his real name.  The decision was controversial and attracted significant publicity.  The Minister changed his mind, and made Mr Sroubek liable for deportation on a different ground under the Immigration Act 2009. 

Mr Sroubek then lodged appeals against the Minister’s decision in the Immigration and Protection Tribunal on 18 December 2018.  Under the Act, there are two types of appeal available in respect of deportation liability, being an appeal on the facts and an appeal on humanitarian grounds.   

The Tribunal dismissed the facts appeal and upheld Mr Sroubek’s liability for deportation, finding his visa was granted as the result of an administrative error and thus his liability for deportation was able to be determined. In the humanitarian appeal, the Tribunal found by a “narrow margin” that there were exceptional humanitarian circumstances given that Mr Sroubek had spent most of his adult life in New Zealand, but it would not be unjust for him to be deported in the circumstances. 

Mr Sroubek filed two applications in the High Court: (1) leave to appeal both Tribunal decisions, and (2) an application for judicial review concerning the Minister’s deportation decision.  After the proceedings were filed, two preliminary issues regarding jurisdiction and time limitation arose.  The High Court determined both issues in favour of the Minister of Immigration.  It held Mr Sroubek’s application for leave to appeal the facts decision was out of time and that he had brought his application for judicial review under the wrong section.  Mr Sroubek now appeals. 

For the purpose of the time limits imposed by s 245(2) of the Immigration Act 2009, are facts appeals and humanitarian appeals in the Immigration and Protection Tribunal two separate appeals or one appeal? 
Held:  upholding the High Court’s interpretation of s 245, the text and purpose of the section support the view that facts appeals and humanitarian appeals are two separate appeals.  The High Court was therefore correct to find the application for leave to appeal the facts decision was out of time. 

Throughout the Act, various sections indicate facts appeals and humanitarian appeals are to be treated as distinct proceedings by use of the term “appeals” (plural).  The two types of appeal also raise different issues:  facts appeals are about the factual basis for liability for deportation whereas humanitarian appeals are about whether the effects of deportation will create humanitarian circumstances of an exceptional nature.  

There are benefits in having each separate proceeding continue moving through the system promptly and concerns to the contrary were overstated.  The High Court’s interpretation is also consistent with the Tribunal’s practices.   

Was the correct statutory pathway governing Mr Sroubek’s judicial review proceeding s 247 or s 249 of the Immigration Act 2009? Held:  
The correct pathway was s 247.  Mr Sroubek had filed his application under s 249 in what the Court found was a mistaken belief that s 249(1) precluded him from bringing judicial review proceedings under s 247.  However correctly understood, s 249(1) only applies to grounds of judicial review that are within the Tribunal’s jurisdiction. Mr Sroubek’s grounds of review were outside the Tribunal’s jurisdiction.  

Prior to the decision of the Supreme Court in H v H (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 the approach taken by the Minister to ss 247 and 249 was the same as the one adopted by Mr Sroubek.  Under the Minister’s previous approach, s 247 was in effect only available to those with no right of appeal to the Tribunal because s 249(1) prevented applicants from bringing judicial review proceedings while an appeal process was still ongoing. The Minister’s interpretation however changed due to the Supreme Court decision which held on the facts before it that s 249(1) was not a barrier to H commencing judicial review immediately under s 247, that is to say without having to wait for the completion of the appeal process. 

The scope of the H decision was critical to Mr Sroubek’s appeal.  Mr Sroubek argued that H was distinguishable, whereas the Minister argued and the Court ultimately accepted, the reasoning in the H decision was equally applicable to this case.  

Section 249 must be given a construction that both recognises Parliament’s intention to prevent duplicative proceedings, but which also preserves the Court’s ability to supervise the exercise of public power and prevent injustice occurring when a statutory process fails.  In circumstances where the Tribunal has no jurisdiction to entertain arguments which could however be a ground of judicial review, a judicial review proceeding is more properly viewed as a parallel proceeding, not a duplicative one.  The ability of the Court to supervise the exercise of public power is impeded if a person adversely affected by deficiencies in the exercise of public power is prevented from going to the courts to have those deficiencies ventilated and considered without lengthy delay. 

Section 249 will only operate to restrict the filing of judicial review proceedings in so far as they relate to matters which are both within the Tribunal’s jurisdiction as well as being amenable to judicial review.  That is to say, s 249 is only triggered where there is an overlap.  Whenever the ground of review is not something within the Tribunal’s jurisdiction, then the affected person can file a proceeding in relation to that ground under s 247.  The Court rejected the argument that this would leave s 249 with no work to do.  Overlaps are a realistic possibility.   

In summary, correctly interpreted, s 249(1) did not prevent Mr Sroubek from bringing judicial review proceedings under s 247 when his grounds of judicial review were outside the Tribunal’s jurisdiction.  His correct course of action was therefore now to seek an extension of time under s 247. 

Result:  The appeal is dismissed.  There is no award of costs given the public interest in resolving significant uncertainty about the interpretation and application of the relevant statutory provisions. 

Criminal law - Conviction appeal - Sentence appeal - Murder  

Following a jury trial, Sean Hayde was found guilty of murdering Wiremu Arapo-Ngapaku, attempting to pervert the course of justice, male assaults female and threatening to kill. His co-offender was found guilty of manslaughter. He was sentenced to life imprisonment with a minimum term of imprisonment of 17 years. He appeals his conviction and sentence.  

Should the appeal against conviction be granted? Held: No.  
There was no prosecutorial misconduct in the way the Crown argued its case as the evidence it relied on provided a sound evidential foundation for its contention that Mr Hayde was the primary offender. As for speculative inferences in the Crown case, the Crown did no more than invite the jury to draw inferences from established facts. The Crown was entitled to rely on propensity evidence from his former partner. The trial Judge provided appropriate directions on all relevant issues. The cumulative effect of these alleged errors does not give rise to an unfair trial.  

Should the appeal against sentence be granted? Held: No.  
The High Court was correct to conclude that s 104(1A)(c) of the Sentencing Act 2002 in relation to home invasion applied; it is unrealistic to say Mr Arapo-Ngapaku had granted Mr Hayde a licence to enter his dwelling in the circumstances. As for discounts, what matters on appeal is not the methodology but whether the end sentence is manifestly excessive. The minimum period of imprisonment was not manifestly excessive given the circumstances of the case and Mr Hayde's personal circumstances, in particular premeditation, the fact there were two assailants and setting fire to the body in an attempt to avoid detection. 

Judicial review - Mistake of fact - New Zealand Bill of Rights Act 1990 

In response to COVID-19, a number of orders were made imposing face covering (masking) requirements. The appellant brought judicial review proceedings challenging two of those orders: the COVID-19 Public Health Response (Protection Framework) Order 2021 made on 30 November 2021 (the 2021 Order) and the COVID-19 Public Health Response (Masks) Order 2022 made on 12 September 2022 (the 2022 Order) (together, the Orders). The Orders were made under the COVID-19 Public Health Response Act 2020 (the Act). The appellant's challenge was dismissed in the High Court and the appellant was ordered to pay costs of $117,889.50 to the respondents. 

The substantive appeal, concerning the lawfulness of the face covering requirements imposed by the Orders, is dismissed. The appeal against the High Court costs decision is allowed. The costs order is set aside and replaced with an order that the appellants pay the respondents $29,472.38 in costs. There is no order in this Court as to costs. 

Is the appeal moot? Held: Yes. 
The appeal is moot given the 2021 Order and the 2022 Order have been revoked and the primary legislation under which the Orders were made has been repealed. However, the Crown did not seek to rely on mootness and the issues raised by the appeal are of sufficient legal and public importance for the matter to be heard and determined by the Court, despite the appeal being moot. 

Were the Orders made in reliance on a material mistake of fact? Held: No. 
The Court discussed the law on mistake of fact as a judicial review ground, concluding that in New Zealand there are two categories that fall under the heading of mistake that are an available ground of judicial review: a material mistake as to an established fact and mistake arising as a result of a flawed factual evaluation. The appeal raised only the first category of mistake. The Court also discussed the relevance of evidence post-dating the Orders, concluding that expert evidence impeaching or justifying the decision to make the Orders with the benefit of hindsight was irrelevant. 

Having regard to the respondents' evidence, the appellant failed to demonstrate that face coverings were not an effective measure to contribute to preventing or limiting the risk of the outbreak or spread of COVID-19, as a matter of established fact. That was the appellant's pleaded mistake of fact. Essentially, the appellant erroneously attempted to elevate the Cochrane reviews (which concerned randomised controlled trials conducted to evaluate the effectiveness of face coverings) into the definitive work on whether or not face coverings are effective. 

The appellant attempted to reformulate their argument, contending that the Ministers making the Orders were instead labouring under a mistake of fact because they did not appreciate there was uncertainty as to the effectiveness of face coverings. However, the Court was not satisfied that certainty as to the effectiveness of face coverings was a material factor in the Ministers' decisions to make the Orders. The evidence of the Ministers confirmed that they were aware the effectiveness of face coverings depended on a number of factors and ultimately face covering requirements were merely one part of a suite of measures. 

Did the Orders both engage and unjustifiably limit the right to refuse to undergo medical treatment? Held: No. After noting the parties' competing submissions on the point, the Court decided it was unnecessary in the context of a moot appeal, and without greater argument and analysis about international jurisprudence on the topic, to seek to determine the scope of the words "medical treatment" in s 11 of NZBORA. That was because the Court was well satisfied that, if the face covering requirements did limit the right in s 11, that limitation was demonstrably justified. In addition, the Court considered the Ministers were satisfied that the Orders "[did] not limit or [were] a justified limit on the rights and freedoms in [NZBORA]", as required by s 9(1)(ba) of the Act. 

Was the Orders' limitation on freedom of expression unjustified? Held: No. 
The Orders' limitation on freedom of expression was demonstrably justified because there was a substantial body of expert opinion that face coverings were effective in restricting the spread of COVID-19. The restriction on the right of expression was to a limited extent - it did not prevent expression, applied only to certain environments, and only for certain periods of time. It was also proportionate to the need for which it was imposed. 

Was the costs award against the appellant too high? Held: Yes. 
The Court considered there was significantly more public interest in the proceedings than the Judge in the High Court suggested. Acknowledging the recent decision in Chief of Defence Force v Four Members of the Armed Forces, where the Supreme Court did not see reason to depart from the ordinary rule that the successful party should be awarded costs, the Court viewed the present case as quite different given the much wider group of people affected by the face covering requirements. The Court also noted the measure of success the appellant had in the High Court in respect of the right to freedom of expression being engaged, along with the level of disbursements incurred by the respondents. As against that, the Court had regard to the Judge's concerns with the way the appellant conducted its case in the High Court. 

The Court considered the appropriate result was to order the appellant to pay 25 per cent of the respondents' total costs and disbursements in the High Court. That reflects the high public interest in a challenge to the face covering requirements, tempered with the deficiencies in how the challenge was conducted. 

MĀORI LAND LAW – ACQUISITION OF ANCESTRAL LAND – ALIENATION – DURESS – UNDUE INFLUENCE – UNCONSCIONABLE BARGAIN – FIDUCIARY DUTY – PUBLIC WORKS ACT 1928 – IRON AND STEEL INDUSTRY ACT 1959 – TREATY OF WAITANGI NEGOTIATIONS – LEGITIMATE EXPECTATION

RESULT:  The application for leave to file an amended notice of appeal is granted.  The appeal is dismissed.  There is no order as to costs.

BACKGROUND

Ngāti Te Ata’s ancestral land relevant to the appeal lies on the Āwhitu Peninsula at Te‑Pūaha‑o‑Waikato, the mouth of the Waikato River.  Maioro lies at the southern end of the Āwhitu Peninsula and on the northern bank of the mouth of the Waikato River. 

This proceeding concerns long-standing grievances of Ngāti Te Ata against the Crown, arising from the acquisition and confiscation of land in the shadow of the Waikato War that broke out in July 1863, the Crown’s subsequent exercise of powers over that land and the ongoing ironsand mining.  There is a particular concern relating to four blocks of land known as Te Papawhero, Te Kuo, Waiaraponia and Tangitanginga (the four wāhi tapu areas) located within Maioro.

In November 1864, the Crown purchased the North and South Blocks of the Āwhitu Peninsula, including Maioro, from Ngāti Te Ata.  The transaction was documented in a deed which we call the Waiuku Deed, executed on 2 November 1864.  The Waiuku Deed excluded a number of wāhi tapu, including the four which are in issue in these proceedings, and also provided that various lands (the habitation reserves) would be granted back to members of Ngāti Te Ata by way of Crown grants.  One month after the execution of the Waiuku Deed, and against the backdrop of the Waikato War, the Crown confiscated land in a purported exercise of the powers granted under the New Zealand Settlements Act.

Confiscation meant Ngāti Te Ata’s title was extinguished.  Crown grants for the habitation reserves were later issued to named members of Ngāti Te Ata who were considered “loyal”, as appears to have been contemplated by the Waiuku Deed itself.  Notably, the wāhi tapu were excluded from the Waiuku Deed, but among the lands confiscated under the New Zealand Settlements Act.  Crown grants were ultimately made in respect of the wāhi tapu, initially in October 1865, but subsequently those grants were cancelled, and new grants were issued on 18 February 1878.  The new grants were made to named members of Ngāti Te Ata subject to restrictions on alienation.  These restrictions were “from sale and mortgage, and from lease without the consent of the Governor”.

In the early to mid-20th century, the Crown began work on the Waikato North Head Sand Dune Project, which involved stabilising encroaching sand dunes and reforestation.  In 1939, Te Papawhero was taken under the Public Works Act 1928 and compensation was subsequently paid.  In 1957, Te Papawhero was declared to be Crown land subject to the Land Act 1948.  It was later set apart for state forest purposes.  Planting also commenced on the other three wāhi tapu in the 1940s, but without their acquisition.  This error was discovered, and in 1959 the three wāhi tapu were taken under the Public Works Act for state forest purposes.  After inquires from Dame Ngāneko Minhinnick in 1971, compensation was paid in 1972.

In 1966, all four wāhi tapu were set aside for ironsands mining purposes under the Iron and Steel Industry Act 1959.  A heads of agreement was signed between the Crown and New Zealand Steel (NZ Steel), under which the Crown granted NZ Steel a licence with an 100‑year term, permitting it to mine land including the four wāhi tapu.  The mining rights granted under the licence have since been exercised as the foundation of the ongoing steel manufacturing activities of NZ Steel at Glenbrook.

In 1983, Dame Ngāneko lodged a claim on behalf of the Huakina Development Trust with the Waitangi Tribunal concerning issues relating to the Manukau Harbour, but also taking issue with an earlier decision to grant water rights to NZ Steel in respect of the proposed Glenbrook extension.  In its report on the Manukau claim (Wai 8) issued in July 1985, the Waitangi Tribunal recommended that negotiations for a settlement of the claims in respect of the compulsory acquisition of the land be continued.  There was also a recommendation that mining operations be “renewed and renegotiated” to protect Māori land and sacred sites.  The Cabinet resolved to support these recommendations.

Following the enactment of the State-Owned Enterprises Act 1986, Dame Ngāneko lodged a claim (Wai 31) in the Waitangi Tribunal claiming the iwi would be prejudicially affected if the wāhi tapu areas were transferred to a state‑owned enterprise (subsequently amended to include the entire Waiuku State Forest).  In 1988, the claim was amended to cover the entire Waiuku State Forest.  This claim remains unresolved in the Waitangi Tribunal.  From then, negotiations and discussions took place between the Crown and representatives of Ngāti Te Ata down to June 1990.  On 24 September 1990, the Crown entered into a memorandum of understanding (MOU) with Ngāti Te Ata to the effect that the Crown would remove the four wāhi tapu areas from the ironsands mining licence, and that Ngāti Te Ata would propose conditions under which mining could proceed on the balance of the Maioro land.

On 17 October 1990, NZ Steel commenced an application for judicial review in the High Court against the Minister of Energy.  Interim relief was sought:  the Crown offered an undertaking that the Minister and the Government would not remove the four wāhi tapu areas from the Iron and Steel Industry Act and NZ Steel undertook not to mine within the wāhi tapu areas.  On 12 December 1990, Ngāti Te Ata filed a counterclaim seeking relief against the Minister of Energy and the Attorney‑General for the takings.  A further claim pleaded sought to enforce the MOU.  On 14 December 1990, Ngāti Te Ata counterclaimed against NZ Steel. 

The proceedings were adjourned on the basis of the undertakings exchanged by the parties, and there were various inconclusive settlement discussions in subsequent years, including discussions with a view to settlement of Ngāti Te Ata’s historical te Tiriti o Waitangi | the Treaty of Waitangi claims.  This lengthy process came to an end when, in April 2013, Ngāti Te Ata negotiators rejected a settlement offer made by the Minister for Treaty of Waitangi Negotiations and indicated an intention to commence proceedings against the Crown in the High Court. 

On 19 December 2013, Te Ara Rangatū o te Iwi o Ngāti Te Ata Waiohua Inc and Mr Minhinnick commenced the proceeding which is one of those giving rise to the present appeal.  The High Court trial eventually proceeded on 4 June 2019 and occupying four weeks.  This was over five years after the commencement of the 2013 proceeding and almost 30 years after the 1990 litigation was commenced.  The High Court rejected the various claims advanced on behalf of Ngāti Te Ata by Richard Minhinnick, who now appeals. 

PROCEDURAL ISSUES

Issue one:  Was the Judge correct to not admit the briefs of evidence provided by Dr O’Malley and Professor Boast?

Held:  Yes.  At trial, the plaintiffs did not call Dr O’Malley or Professor Boast, but instead suggested their briefs could be taken as read.  Fitzgerald J held that would have been inappropriate, given they were not available for cross-examination.  As a result, she did not read or take into account their evidence.  The Judge did not err in reaching this conclusion.  Their briefs of evidence had no evidential status.  Evidence in civil proceedings cannot be given in written briefs which are not then read or adopted in the courtroom.  It would also not generally be possible to identify and rely on uncontested parts of the briefs, although the exception to this is the portions of Professor Boast’s evidence cited by the Crown historian, Mr Parker.

Issue two:  What is the status of the 2014 proceedings?

Held:   Trial counsel for the appellant accepted that the live proceeding was the statement of claim in the 2013 proceeding.  This is dispositive of any complaint that the 2014 proceedings were not given adequate consideration. 

Issue three: What is the effect of the Crown’s statement of defence to Ngāti Te Ata’s 1990 claim?

Held:  The appellant cannot rely on the Crown’s claimed admission in respect of the present claim.

AFFIRMATIVE DEFENCES

In relation to the issue of standing, absent some process in which the Court could be satisfied that relief sought would be in accordance with the wishes of everyone potentially affected, it would be wrong in principle for this Court to determine standing when the High Court did not do so. 

In relation to the affirmative defences, the approach taken on appeal is to consider the substantive claims first, before considering the affirmative defences to the extent it is necessary to do so.  As the appeal is dismissed, it is not necessary for this Court to consider these issues. 

SUBSTANTIVE ISSUES – THE WAIUKU DEED AND CONFISCATION

Issue one:  Was the sale under the Waiuku Deed voidable as an unconscionable bargain, or for duress or undue influence?

Is the Waiuku Deed voidable as an unconscionable bargain?

Held:  No.  The assessment of whether the Waiuku Deed was an unconscionable bargain turns on whether Ngāti Te Ata was at a serious disadvantage, such that the bargain was unconscionable.  The evidence available is not consistent with the idea that Ngāti Te Ata were pressured by the context of negotiations and the threat of possible confiscation, nor is there direct evidence establishing the application of illegitimate pressure.  Additionally, no submission was advanced that the Government acquired the land at below a proper value.  There is also nothing on the face of the terms of the Waiuku Deed to suggest it was not freely entered into.  There is no evidence showing that Ngāti Te Ata was in a position of special disadvantage, nor is there evidence that the Crown took advantage of Ngāti Te Ata.  The vendors signed the Waiuku Did because they saw an advantage for themselves and their iwi, they were familiar with the process of selling land, and they bargained over the price. 

Is the Waiuku Deed voidable for undue influence and duress?

Held:  No.  For the reasons already discussed in respect of the claim of unconscionable bargain, there was no actual undue influence in this case.  There is no direct evidence that Ngāti Te Ata were coerced into the transaction as a result of the “troubled times” in which the Waiuku Deed was executed.  The same can be said about the claim based on duress.  This Court is not in a position to say the Judge erred in finding there was no illegitimate pressure in this case, as it is likely that the members of Ngāti Te Ata who signed the Waiuku Deed did so voluntarily.

Issue two:  Was the confiscation of Ngāti Te Ata’s land under the New Zealand Settlements Act 1863 lawful?

Held:  Yes.  

What is the correct interpretation of the word “rebellion” under the Act?

The text of the New Zealand Settlements Act shows that the group of people barred from compensation under the Act was broadly cast.  No distinction is made between offensive and defensive acts, and the Act was directed at the resistance to Crown authority.  The purpose of the Act supports a wide definition of “rebellion”.  The context of the Act included the Suppression of Rebellion Act 1863.  The conception of rebellion in that Act was the same as in the New Zealand Settlements Act, focussing on the subversion of Crown authority.  Overall, the statutory scheme makes it clear that any engagement in the Waikato War by Māori against the Crown was intended by Parliament to constitute “rebellion”.  The Waikato Raupatu Claims Settlement Act 1995 does not assist in the determination of whether there was a rebellion at the time the New Zealand Settlements Act was enacted.  The lawfulness of what occurred in reliance on the New Zealand Settlements Act and Suppression of Rebellion Act must be determined on the basis of what those Acts said at the time.

Was Ngāti Te Ata, or a “[s]ection” or it, or any “considerable number thereof,”, in rebellion?

It appears in May 1865 the numbers of Ngāti Te Ata were about 140 (including children) and that around 30 to 40 members of Ngāti Te Ata had been engaged in conflict with the Crown since 15 August 1863.  A “considerable number thereof” refers to a considerable number of the relevant social group, whether that be an iwi or hapū.  “A considerable number” must be interpreted as a significant proportion of the members of the relevant iwi or hapū.  The evidence about the numbers of of Ngāti Te Ata who joined the rebellion was such as could reasonably justify a conclusion by the Governor in Council that a considerable number of the iwi had done so.

Is the Crown entitled to justify confiscation on the basis that a “considerable number” of Ngāti Te Ata were in rebellion when the Confiscation wrongly stated that Ngāti Te Ata was an iwi in rebellion?

The evidence shows that Governor Grey was aware of the rigor he was expected to bring to his task under the New Zealand Settlements Act, and demonstrated he would not sign proposed Orders in Council under the Act unless he was satisfied the requirements under s 2 of the New Zealand Settlements Act were met.  The argument thus turns on a drafting omission in the terms of the Order in Council.  It is not appropriate to infer that Governor Grey proceeded on the basis that Ngāti Te Ata as a whole were in rebellion.  To the extent that the omission to refer to “a considerable number thereof” is of any moment, such an omission would have been validated by s 6 of the New Zealand Settlements Acts Amendment Act 1866. 

Even if there was jurisdiction under the New Zealand Settlements Act, did the Governor exceed his statutory power by declaring all the land in the district confiscated?

This question would necessarily be a factual inquiry, and this Court is not in a position to embark on such an inquiry obscured by the passage of time and in the absence of any relevant witnesses.  It is therefore not possible to advance this issue on appeal. 

Issue three: Did the New Zealand Settlements Acts Amendment Act 1866 validate any illegality in the confiscation?

Held:  Yes. 

To the extent necessary, s 6 of the New Zealand Settlement Acts Amendment Act would validate the Order in Council and save it from any consequences of the omission of a reference to “a considerable number thereof”.

Issue four: Did either or both the Waiuku Deed and Confiscation breach a fiduciary duty to consider and protect the interests of Ngāti Te Ata, or any other equitable duty?

Held:  No. 

The evidence does not establish that the terms of the Waiuku Deed were unfair, nor that the Ngāti Te Ata vendors who signed it did so other than voluntarily and as authoritative representatives of the iwi.  The case lacks any of the elements that contributed to the findings of the existence of fiduciary duties in Proprietors of Wakatū v Attorney-General [2017] NZDC 17, [2017] 1 NZLR 423 or Guerin v R [1984] 2 SCR 335.  The Crown never assumed a responsibility towards the vendors, nor was the Crown under any obligation to protect their interests in a way not satisfied by the provision of fair value for the land.  The transaction represented by the Waiuku Deed cannot be characterised as the extinguishment of Māori property rights by less than fair conduct or on less than fair terms.  Therefore, this is also not a case of the kind contemplated by Elias CJ in Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67 where there could be a presumption of undue influence.  The Waiuku Deed was thus not procured by the Crown in breach of a fiduciary or other equitable duty owed to Ngāti Te Ata. 

Considering the Waiuku Deed and confiscation together, it is not possible to characterise the Crown’s actions taken for the perceived benefit of the public generally and the majority of Ngati Te Ata as a breach of fiduciary duty on the basis of the relevant authorities which are discussed in the judgment.  The appropriate forum for advancing grievances about the events of the 19th century is the Waitangi Tribunal, which has specific jurisdiction to inquire into claims that Māori have been prejudicially affected by Acts of Parliament passed, orders and proclamations made and policies adopted by the Crown at any time after 6 February 1840.

SUBSTANTIVE ISSUES – THE 1939 AND 1959 TAKINGS AND ISSUE OF THE LICENCE

Issue one:  Were the takings of the wāhi tapu under the Public Works Act 1928 and the inclusion of the wāhi tapu in the mining licence issued under the Iron and Steel Industry Act 1959 unlawful on the basis that the Crown failed to consider the special status of the land?

Held:  No.  The taking of the land was authorised by s 11 of the Public Works Act as land required for a public work (sand dune reclamation and state forest purposes, respectively).  There were procedural requirements set out in s 22 of the Public Works Act, but it is clear from the statutory regime that there was no duty or requirement on the Minister to consult or negotiate with affected landowners in advance of the taking, only a requirement to seek “well-grounded objections” and pay compensation.  These aspects of the statutory scheme tell against Ngāti Te Ata’s claimed mandatory consideration. 

An obligation to consider the special status of the wāhi tapu cannot be read into the Public Works Act in circumstances where the proposed acquisition and works were (as is conceded) for purposes authorised by the statute, the expediency test was able to be satisfied, and no objections were lodged, whether in 1939 in relation to Te Papawhero or in 1959 in relation to the other three wāhi tapu.  While the Minister could have considered such things, the Minister was not obliged to do so.  Likewise, there is no way to read into the Iron and Steel Industry Act a mandatory obligation to take into account the special status of the land.

Issue two:  Were the takings of the wāhi tapu under the Public Works Act 1928 and the inclusion of the wāhi tapu in the mining licence issued under the Iron and Steel Industry Act 1959 a breach of a fiduciary duty owed by the Crown to Ngāti Te Ata to consider and protect their interests in the special circumstances prevailing?

Held:  No.  The principal difficulty with the claim of breach of fiduciary duty is that it seeks to challenge the exercise of statutory powers which it is now conceded were exercised for purposes contemplated by both the Public Works Act and the Iron and Steel Industry Act.  So too, clearly, was the grant of the Licence to mine ironsands within an ironsands area that had been specifically identified for the purpose in the Iron and Steel Industry Act.  Unless it can be said that the statutory powers were subject to a gloss that they would not be exercised in respect of land of special significance to Māori, we can see no basis for the claimed fiduciary duty.

The concept of a fiduciary duty whether of a kind recognised in equity or as a sui generis obligation owed by the Crown to indigenous people as a colonising power, must be based on an assumption of responsibility to act or refrain from acting in a way that reflects the duty.  There was nothing here equivalent to the assumption of responsibility by the Crown which characterised the facts of Proprietors of Wakatū.  The relevant powers under both statutes were to be exercised as government obligations owed to all, the idea that the exercise of such powers could be in breach of a fiduciary duty owed to a small section of the public is problematic.  It does seem extraordinary that the wāhi tapu were included in the Licence, given the history.  Further, successive governments apparently recognised that the wāhi tapu should not have been included in the Licence.  However, the fact that the wāhi tapu were included in the Licence does not mean that there was conduct amounting to an actionable breach of fiduciary duty.

SUBSTANTIVE ISSUES – 1990 COMMITMENTS AND TREATY OF WAITANGI NEGOTIATIONS

Issue one:  Did the Crown’s agreement under the 1990 commitments to return the wāhi tapu to Ngāti Te Ata and remove them from the Licence give rise to binding and enforceable obligations on the Crown?

Held:  No.  The MOU entered into in 1990 did not bind the Crown to return the wāhi tapu to Ngāti Te Ata and remove them from the mining licence.  We see the MOU as representing a summary of the position that had been reached in discussions between Ngāti Te Ata and the Crown at the time it was signed, and their intent as to how issues should be progressed should agreement be reached with all parties (including NZ Steel) on the outstanding matters.  The Crown began to proceed in accordance with the MOU, but that led within a short space of time to the commencement of NZ Steel’s application for review.  The fact that Ngāti Te Ata agreed to the adjournment of NZ Steel’s proceeding, and the fact it took no action to advance its own claim, is inconsistent with any suggestion Ngāti Te Ata thought it had a binding agreement with the Crown. 

Furthermore, that important matters (such as the terms on which mining could proceed outside the wāhi tapu areas) remained unresolved militates against the idea that a binding agreement had been reached.  So also does the fact that when signed by a representative of Ngāti Te Ata, the agreement was returned to the Crown with a letter stating that it had been signed on the understanding that “negotiations continue as soon as possible” and negotiations indeed continued, resulting in a settlement proposal that was different from the terms in the MOU.  There was a sufficient agreement in terms of the exchanges of correspondence in 1991 to show that the parties had moved on from the arrangements set out in the MOU.

Issue two:  Did the Crown breach a legitimate expectation of Ngāti Te Ata that its claims of breach of the Crown’s Treaty of Waitangi obligations would have been fairly addressed by now and not rendered nugatory by Crown action or omission?

Held:  No.  We see no reason in principle why a legitimate expectation could not be established in the context of Treaty of Waitangi settlement negotiations, given a clear promise by the Crown to act in a certain way which has been relied on by the claimant and when there is no good reason for the Crown not to proceed in accordance with its promise.  For the reasons already addressed, we do not think the MOU amounted to such a clear commitment.

The second basis for legitimate expectation rests on the discussions and negotiations that had taken place in the period from 1990 until the Crown withdrew from the negotiations in response to the commencement of this litigation.  We think it is clear that Ngāti Te Ata could properly have a legitimate expectation that it would receive redress for its historical Treaty grievances and that part of the settlement would involve the return of the wāhi tapu to Ngāti Te Ata.  However, we do not think the temporal element (the expectation that the claims would have been “fairly redressed by now”) has been met, given the Crown has been responding to litigation commenced against it and the fact the delays that have occurred in the settlement process are not properly attributable to the actions of the Crown alone. 

COSTS

The respondents do not seek costs and there is no order accordingly.

Motor manslaughter - Appeal against sentence 

The appeal is dismissed. 

The appellant participated in an illegal "boy racer" event. He hit a young woman who was pregnant and who was a spectator at the event. She was injured and her baby died shortly after the event following an emergency caesarean section. The appellant pleaded guilty and was convicted of manslaughter, dangerous driving causing injury and driving while disqualified. He was sentenced to two years and four months' imprisonment. 

He appeals his sentence on the basis that the starting point of four years and three months' imprisonment was too high, a 25 per cent reduction to his sentence should have been allowed for his guilty plea (rather than the 20 per cent given), and a further 25 to 30 per cent reduction should have been made for his youth, background and intellectual deficiencies (rather than the 15 per cent given). 

Was the starting point too high? No.
A starting point of four years' imprisonment was available to the Judge before consideration of the fact that the appellant was a disqualified driver in a vehicle that was not roadworthy and had previous driving offences. The Judge's addition of three months for those matters tempered the uplift she would have otherwise given for personal aggravating factors to avoid double counting. 

Should a greater allowance have been made for the appellant's guilty plea? No.
There were unusual circumstances that properly explained the delay in entering a guilty plea to the manslaughter charge as the Judge accepted. The Judge did not allow the maximum 25 per cent reduction available for a guilty plea because the appellant did not accept responsibility for the charge of dangerous driving causing injury to N at an early time. That charge was reasonably straightforward, did not require expert evidence and was brought six months before the manslaughter charge. While some Judges might have allowed the full 25 per cent reduction to take into account the appellant's communication difficulties (and counsel's concern not to obtain instructions until a communication assistant was appointed), it was open to the Judge to allow a 20 per cent reduction evaluating all the circumstances of the plea, and doing so did not lead to an end sentence that was manifestly excessive. 

Should a greater allowance have been made for youth, background and intellectual deficiencies? No.
The Judge was correct to consider these factors together. There was also a degree of overlap between these factors and the 10 per cent reduction to the sentence allowed for the appellant's rehabilitative efforts, which was arguably generous. 

Criminal Law – Murder – Minimum period of imprisonment 

After harassing and threatening his 21-year-old victim over a period of around two years, Kanwarpal Singh, armed with a large knife, waited for her as she returned home from work.  She alighted from her bus and started to walk along an alleyway when Mr Singh accosted her and commenced a frenzied attack, stabbing her some 12 times.  She died at the scene. 

Mr Singh was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years in accordance with the presumption created by s 104(1) of the Sentencing Act 2002.   He appealed that sentence on the grounds the MPI was manifestly excessive. 

The application for an extension of time is granted.  The application to adduce further evidence is granted. The appeal against sentence is dismissed. 


Was the Judge correct to find that any of the circumstances in s 104 applied?  Held: Yes. 

The murder involved calculated or lengthy planning (s 104(1)(b)).  Even the further evidence filed for the purposes of supporting Mr Singh’s appeal confirmed the lengthy period over which Mr Singh had been ruminating over the victim, threatening her both directly and by way of the comments he made to others. 
The murder was committed with a high level of brutality and callousness (s 104(1)(e)).  Mr Singh committed a brazen and frenzied attack in public which involved a high level of violence.  Mr Singh’s actions leading up to the day and on the day was evidence of a hardened state of mind and level of callousness. 

The victim was particularly vulnerable given Mr Singh’s previous threats and physical tracking of her movements, together with her location in an alleyway where those who heard her screams were unable to reach her in time to stop the attack (s 104(1)(g)). 

Further, while taken individually Mr Singh’s offending could be seen to be at the lower end of each of the three factors, the Court considered that the particular circumstances of this case constitute exceptional circumstances for the purpose of s 104(1)(i).  It is the stalking behaviour and Mr Singh’s attitude towards the victim which makes this offending particularly chilling and which, in our view, means that the purpose behind the MPI of 17 years is engaged.  The legislative policy is to ensure a 17-year MPI for the most serious murder cases.


Was the notional period of imprisonment of 17 and a half years excessive?  Held: No. 

When the purposes and principles of sentencing are considered, the most relevant being accountability and denunciation as identified by the Judge, the notional minimum period of 17 and a half years (before the one-year guilty plea reduction) was within range. 

Were Mr Singh’s personal circumstances appropriately recognised?  Held:  Yes. 

The Court rejected the submission that Mr Singh’s exposure to violence in the home within a conservative culture predisposed him to react as he did.  Further, the principles of deterrence, denunciation and community protection will usually be more powerfully engaged where the offending is particularly serious.  In the context of murder cases, the need to give effect to the legislative policy of the Sentencing Act further constrains the courts’ ability to give discounts for background factors. 

The further evidence placed before the Court did not identify any contributory mental health factors which could be considered to diminish Mr Singh’s moral culpability.  Indeed, that evidence identified factors emphasising the need for accountability and denunciation. 


Was the imposition of the 17-year MPI manifestly unjust?  Held:  No. 

The Judge was correct in his view that the minimum 17-year term was not manifestly unjust.  The s 104 qualifying factors are of significance, Mr Singh’s culpability sits well within the range of cases caught by s 104 and his personal mitigating circumstances are weak. 

Conviction and sentence appeal - evidence - dismissal of charges - unreasonable verdicts - judicial directions - manifestly excessive 

Application to adduce further evidence declined. Appeal against conviction dismissed. Appeal against sentence dismissed. 

Mr Jago was found guilty of historical sexual offending against two complainants. He appeals his conviction and sentence. 

Issue one: should the further evidence be admitted? 
Held: no. It is not fresh or cogent. 

Issue two: should the March 1995 charges have been dismissed/are there unreasonable verdicts? 
Held: no. The deficiencies in the criticised evidence were clearly before the jury, accompanied by comprehensive judicial directions, and it was open to them to conclude they were outweighed by other evidence. The relevant ages and date range of the charges were similarly made clear. 

Issue three: were the Judge's directions on delay adequate? 
Held: yes. The judge summed up comprehensively; covered reliability issues; was entitled to give ss 122 and 127 warnings; was not required to use the words "real care"; and reminded the jury of the "golden opportunity" point after calling them back. 

Issue four: were the Judge's directions on propensity adequate? 
Held: yes. They were comprehensive, tailored to the evidence and the case, and met the requirements of Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145. 

Issue five: was the sentence manifestly excessive? 
Held: no. While stern, the starting point was open to the Judge in the circumstances and accords with case law. The previous good character discount was generous, and it was open for the Judge to consider imprisonment was the least restrictive sentence appropriate. 

Appeal — local government — contract — interpretation — implied terms

Appeal dismissed.

The New Zealand Retail Property Group (NZRPG) worked with Waitakere City Council (and later Auckland Council and Auckland Transport, to develop a new Westgate Town Centre (the Town Centre), to be located across what would be Fred Taylor Drive from the original Westgate Shopping Centre (Original Westgate). Numerous contracts and other documents were concluded or otherwise shared between the parties involved. NZRPG considered that Auckland Council and Auckland Transport took a different approach in the development to the original vision. They sued Auckland Council and Auckland Transport for breach of contract on several grounds. The High Court held that none of the contractual breaches alleged were made out. NZRPG appeals.

Issue 1: was Fred Taylor Drive required to be widened to integrate Original Westgate with the Town Centre?
Held: no. The parties agreed from the outset their shared vision did not create binding contractual obligations, absent more specific agreements.   Neither the Infrastructure Funding Agreement {IFA) or Cost Sharing Agreement 1 (CSA 1) imposed an obligation to consult with NZRPG over the design and construction of the widening of Fred Taylor Drive. The quality standards in the Demarcation Schedule to CSA 1 did not create contractual obligations: respectively, they comprised a standard that was not objectively identifiable or specific so as to be relied on; a general set of guidelines; and a statement of general vision. A reasonable person having all the background knowledge reasonably available to the parties in the situation they were in at the time of the contract would not have considered there was a contractually binding specification of quality standards; and would have expected such standards to be explicitly specified.

Issue 2: was there an implied term to construct Northside Drive East?
Held: no. Because the contractual obligation regarding Fred Taylor Drive has been rejected, the related argument regarding Northside Drive East also fails. The IFA was clear there was no such agreement, consistent with CSA 1 and the Demarcation Schedule. The cases NZRPG rely on can be distinguished.

Issue 3: was Maki Street South required to be upgraded with Maki Street North or within a reasonable time?
Held: no. There was no agreement about what the upgrade of Maki Street South would involve in CSA 1. Works Development Agreement 3 (WDA 3) was explicit about that and there being no agreement as to timing. Without a contractual obligation specifying the work to be done, no time obligation can be implied. The case law about implying a term to act within a reasonable time is not activated because the nature and extent of the upgrade had to be agreed first. If some timing requirement could be implied before May 2017, it was not breached given the timeline of designs and the associated costings.

Issue 4: did the bus interchange have to be constructed in Zone 2?
Held: no. The text of WDA 3 indicates there were areas of agreement and non-agreement. There was no contractual obligation about the bus interchange's location: Auckland Transport was not a party to WDA 3; the more natural reading of the relevant clause is that agreement on location (and grant of the easement) were "subject to final agreement"; WDA 3 as a whole, and its context, suggest the location was not being contractually committed to; and none of the parties could implement the understanding of the location without further agreements with Auckland Transport. Even if there were some contractual obligation, NZRPG has not demonstrated the Judge was wrong that there was no breach of contract.

Name suppression - appeal 

Appeal dismissed. 

Mr R appeals a decision of the High Court declining his application to suppress his name and that of his mother, Ms T. Mr R has a long history of mental illness. Mr R had previously killed an individual closely connected to him while dependent on mental health services, and was found not guilty by reason of insanity. Mr R has since killed Ms T, his mother, and was again found not guilty by reason of insanity. 

It is accepted that the whānau of Mr R and Ms T, as victims of the offending, would suffer undue hardship if their names were published in connection to the killing of Ms T under s 200(2)(c) of the Criminal Procedure Act 2011. The focus of the appeal is therefore on whether the undue hardship suffered by the whānau outweighs the public interest in open justice, with a particular focus on the relevance that tikanga has to that inquiry. It was submitted on behalf of Mr R that allowing publication would afflict further muru to the whānau and add to the whakamā they have already endured. This would be an unreasonable punishment, particularly as it would be imposed by the court (an unrelated third party). with the consequence of the court exacting a new level of utu. 

Issue: Does the undue hardship suffered by whānau outweigh the public interest in open justice? Held: No.

Tikanga may assist courts in determining whether or not an applicant has demonstrated they will suffer extreme hardship, or whether a victim has established they will suffer undue hardship, and in assessing the extent of that hardship. However, even when the hardship suffered by Mr R's whānau is assessed through a tikanga lens, it does not outweigh the strong public interest in open justice in this case. There is an overwhelming interest in the principles of open justice in this case. Ms T's death was discussed openly at her tangihanga, and expert evidence did not suggest that any tikanga principles were inconsistent with the principle of open justice. Additional inquiries and the inquest into Ms T's death will be hampered if authorities cannot openly identify Mr R as the individual who killed two persons closely connected to him whilst dependent on mental health services. The public also has a right to know about Mr R's history of violence, and in particular, the family of Mr R's first victim have an interest in knowing and freely discussing that Mr R has killed another person closely connected to him. 

Criminal law -    Governor-General's reference -      DNA evidence -            Visual identification evidence

On 31 December 1997, Olivia Hope, aged 17, and Ben Smart, aged 21, attended a New Year's Eve celebration at Fumeaux Lodge, Endeavour Inlet, Marlborough Sounds.  In the early hours of 1 January 1998, a water taxi driver, Guy Wallace, took Olivia's sister, Amelia, and her friend, Rick Goddard, to Tamarack in a water taxi referred to as the Naiad. With them was a lone man and a young couple, Sarah Dyer and Hayden Morresey. Mr Wallace dropped Amelia and Rick at Tamarack and Ben and Olivia, who were aboard Tamarack, took their place in the Naiad. They said there was no room for them to sleep on Tamarack and were looking for somewhere to spend the night. The lone man offered his boat. That offer was accepted and Mr Wallace drove to a boat that was moored with other vessels, where Ben, Olivia and the lone man alighted. Olivia and Ben have not been seen, dead or alive, since.

Following a three-month trial in 1999, a jury found Scott Watson guilty of the murders of Olivia and Ben. Some 26 years later, Mr Watson remains in prison. He maintains his innocence.

The key issue at trial was whether Mr Watson was the lone man with whom Olivia and Ben boarded a boat the last time they were seen. It is now accepted that both Olivia and Ben died at the hands of the lone man in circumstances which amounted to murder.

The Court of Appeal dismissed Mr Watson's first appeal against conviction in May 2000. His application to the Privy Council for special leave to appeal was declined in November 2003. However, in 2020, the Governor-General referred the question of Mr Watson's convictions to the Court of Appeal to decide whether a miscarriage of justice may have occurred.

The focus of the hearing following the Governor-General's reference was the evidence suggesting two long blonde hairs (Hairs 12 and 13) belonging to Olivia were located on Mr Watson's boat Blade (the Hair evidence) and the evidence that barman and water taxi driver, Guy Wallace, identified Mr Watson as the man with whom Olivia and Ben were last seen (Mr Wallace's identification). The Court considered new evidence concerning the strength of the link between the Hairs and Olivia, the possibility the Hairs were transferred onto Blade other than through Olivia being aboard Blade, and the possibility the Hairs were actually hairs taken from Olivia's home that were mixed up with the hairs recovered from Blade in the ESR lab. The Court was also presented with fresh evidence concerning the reliability of Mr Wallace's identification.

The Court has found there was no miscarriage of justice. The Court therefore declined to quash Mr Watson's convictions for the murders of Olivia Hope and Ben Smart.
 

Did a miscarriage of justice arise in respect of the Hair evidence? Held: No

In addition to the evidence at trial, the Court of Appeal considered evidence relating to the Hairs from numerous expert witnesses (five called by Mr Watson and five called by the Crown).

Having analysed that expert evidence in depth, the Court concluded:

·       The concerns raised with ESR's quality management system do not raise any real issue with the reliability of the Hair evidence.

·       The nuclear DNA testing results in respect of Hair 13 (which provided "very strong support" for the proposition Hair 13 belonged to Olivia), were appropriately presented at trial. The mitochondrial DNA testing results in respect of Hair 12 (which provided "strong support" for the proposition Hair 12 belonged  to Olivia or a maternal relative) were appropriately presented at trial and, given the expanded mitochondrial DNA databases now available, now provide even stronger support for a link between Hair 12 and Olivia.

·       The possibility that the Hairs were transferred to Mr Watson (directly or indirectly) during the events at Furneaux Lodge (rather than because Olivia was herself on Blade) was raised before the jury at Mr Watson's trial. Whether that possibility was a reasonable explanation for the presence of Olivia's hairs on Blade was a matter for the jury to determine, having regard to all the evidence.

·       In the circumstances, the possibility that the Hairs were transferred from the Hope family home to a police officer, then to a different police officer, then to Blade and the tiger blanket, was speculation. Nevertheless, the steps taken to avoid any cross-contamination were explained to the jury and it was for the jury to assess whether such transference was a reasonable possibility, having regard to all the evidence.

·       7 March 1998 was the only occasion when it was possible for any hairs recovered from the tiger blanket to have been mixed with hairs from Olivia's home at the ESR lab (such that Hairs 12 and 13 were actually hairs taken from Olivia's home, not hairs located on Blade). The possibility of such contamination was extremely unlikely, given the method used to extract hairs from the original bag of hairs from Olivia's home (ST05). In addition, the decontamination measures taken by Ms Vintiner complied with the applicable guidelines at the time.

·       When an additional cut in ST05 was discovered during Mr Watson's trial, Ms Vintiner was taken by surprise, but it has since been clarified that the cut likely occurred much later than 7 March 1998 when Ms Vintiner was preparing the samples for use by the defence. Viewed today, it is less likely than it was at trial that the cut in the bag had been made on 7 March and therefore less likely that any hairs from Olivia's home escaped from ST05 and became combined with the hairs recovered from the tiger blanket.

·       Hairs 12 and 13 were not selected when the hairs recovered from the tiger blanket were examined on 22 January 1998. This was not surprising given the very short time spent looking at the exhibit, that it was difficult to see blonde hairs when they were in a group of 400 brown hairs, but most importantly, the purpose of the examination on 22 January 1998 was to detect the presence of hairs with intact roots worthy of attempting nuclear DNA testing.

·       The Crown prosecutor's closing submissions and the trial Judge's directions on the Hair evidence were appropriate. The Hair evidence was tested by Mr Watson's senior counsel, who was advised by experts. It was properly before the jury as one of many strands of evidence supporting the inference that Mr Watson is guilty.

This was not one of those rare cases where the Crown had to prove a strand of circumstantial evidence (the provenance of the two hairs) beyond reasonable doubt.

This is not a case where the scientific evidence used at trial has since been undermined and revealed to be unreliable. Indeed, the evidence given at trial has been confirmed as reliable by the experts who gave evidence at the appeal hearing.

The Court answered the questions contained in the Governor-General's reference as follows:

(a)            having considered evidence:

(i)            we have concluded ESR generally adhered to relevant quality standards relating to the collection, handling and forensic examination of the Hairs and are satisfied there is no material issue;

(2)           we have found the results obtained from the DNA testing of the Hairs conducted in New Zealand, Australia and the United Kingdom reliable; and

(3)           we are satisfied as to the fairness and accuracy of the evidence given at trial about the DNA testing and the results obtained from it.

(b)           we conclude that none of the evidence given at Mr Watson's trial should be reconsidered in light of the evidence we have considered; and

(c)            we have determined, in light of our consideration, that a miscarriage of justice did not occur in respect of the Hair evidence.

Did a miscarriage of justice arise in respect of Mr Wallace's identification? Held: No

The key issue was whether Mr Wallace's identification, which was made in April 1998 when Mr Wallace picked out Mr Watson from photograph montage showing head and shoulders photographs of Mr Watson and seven other males (Montage B), was properly admitted at Mr Watson's trial.

At trial, the defence relied on a photograph of Mr Watson taken on New Year's Eve when aboard Mina Cornelia before going ashore. The defence claimed that Mr Watson's appearance was different from the appearance of the lone man encountered by Mr Wallace. This image, along with several others (for example, compusketches, photograph montages and an image showing the boats at Furneaux Lodge on the evening of New Year's Eve) is reproduced in the Court's judgment.

Givens 5(3) of the Evidence Act 2006, issues of admissibility must be determined under the law of evidence that applied at the time of Mr Watson's trial. Admissibility or otherwise of identifications turned on the discretion to exclude admissible and relevant evidence on the ground that its prejudicial effect was out of proportion to its true evidential value, or on general grounds of "unfairness".

In accordance with the law at the time, the strength of the other evidence supporting the identification is relevant to the admissibility of challenged identification evidence.

Drs Gary Wells and Adele Quigley-McBride gave expert evidence on behalf of Mr Watson. The Court considered the first part of their Report was admissible expert evidence, providing a fresh, reliable and cogent discussion of the considerable limitations associated with eyewitness identification evidence and the ramifications of steps taken in obtaining that evidence. However, the Court found the second part of the Report, was not substantially helpful. The Court's concerns fell into five categories: reliance on incomplete material; misrepresenting the evidence; ignoring other relevant evidence; drawing conclusions which were inappropriate for them to draw; and giving evidence which was inconsistent with their position in other forums or papers. The second part of the Report, and the related evidence given by Drs Wells and Quigley-McBride, was therefore inadmissible. Nevertheless, given the way the identification ground was argued before the Court, the Court addressed the comments made by the experts in the course of its own analysis. 

In determining the admissibility of Mr Wallace's identification, the Court considered a number of topics, concluding:

·       Montage B did not predispose witnesses to pick out Mr Watson. Though the photograph of Mr Watson used in Montage B has been criticised because of how it shows Mr Watson's eyes, other photographs on the police file show Mr Watson's eyes with the same appearance. The photographs of some of the other men in Montage B could also be said to show a person with hooded eyes. Looking at Montage B overall, the photographs were sufficiently similar that there was no material risk of Montage B predisposing witnesses to identify Mr Watson's photograph rather than one of the other photographs.

·       The displacement effect arising from Mr Wallace being shown a single black and white photograph of Mr Watson in January 1998, which was taken eight years earlier and showed Mr Watson with a fuller face and closely cropped hair, did not require Mr Wallace's identification to be excluded. The evidence does not suggest Mr Wallace's exposure to the single photograph was anything other than fleeting. Even if evidence of the single photograph being shown to Mr Watson had been before the jury, it was unlikely to have had a material impact over and above the other material before the jury in any event. That material included the fact that, on an earlier date, Mr Wallace had been shown a video of Mr Watson by the media.

·       This was not a case of a fleeting glance by Mr Wallace. Rather, Mr Wallace observed the male at the Lodge for some time throughout the evening, both in the Main Bar and the Garden Bar. He then recognised that male at the jetty before he took him on the Naiad to Tamarack and then to his boat. It was also the defence case that it was the same man.

·       The two experts raised a number of issues which they suggested meant various witnesses were not talking about Mr Watson. However, the Court discounted those matters for the following reasons:

o   The evidence demonstrated that Mr Watson could not be excluded from being the man a witness was describing simply because the witness described the man as having facial hair. While the Mina Cornelia photograph suggested Mr Watson was at least close to clean shaven early in the evening, many witnesses  who there is no doubt were talking about Mr Watson - noted Mr Watson having facial hair on New Year's Eve.

o   Similarly, Mr Watson could not be excluded as the lone man based on how the lone man's hair was described by Mr Morresey or by Mr Wallace in his later statements and at trial. Witnesses describing a person we know was Mr Watson gave varied accounts of his hair length, ranging from "short" to "medium length" to "shortish" hair that was "longish at the back".

o   The compusketches must be put in context by considering the totality of the relevant witnesses' evidence. In any event, it appears that the opinion of those with expertise in identification evidence is that composites are unreliable.

o   Amelia Hope's description of the lone man was important and could not, as the experts suggest, be put to one side. Her reference to the lone man having a receding hairline was consistent with evidence of those we know were referring to Mr Watson.

·       The Court considered in some detail the evidence of earlier incidents at Furneaux Lodge in order to analyse whether they involved the same man. The purpose was to ascertain the likelihood that there was another lone man at Furneaux Lodge that night who could have been the lone man on the Naiad. The Court detailed the links which tied the various witnesses' descriptions together and to Mr Watson. This included the consistency of the witnesses' descriptions of the man's clothing and behaviour, in particular his topics of conversation, as well as general consistency in description of skin tone, the presence of tattoos, rolling his own cigarettes and the type of liquor he was consuming. The evidence supported a conclusion that the witnesses were discussing their interactions with the same man, Mr Watson. To that extent, even when the identifications of Mr Watson from Montages A and B were set to one side, the evidence against him was not materially weakened.

·       It was important to consider what the witnesses did not see - the ketch described by Mr Wallace in the location where the lone man, Ben and Olivia alighted the Naiad. Mr Wallace's evidence about the drop-off location was corroborated by the evidence of Mr Morresey and Ms Dyer as to the direction the Naiad travelled when it left Tamarack. When the issue of whether Mr Wallace dropped Mr Watson at a ketch or a sloop is considered alongside all the other evidence, and in particular the evidence as to the drop-off location, the issue falls away in importance. It was simply another example of the vagaries of memory and perception. Based on the Court's review of the evidence, nobody other than Mr Wallace and Mr Morresey said they saw a ketch in the area where Ben, Olivia and the lone man were dropped off, whereas that was the area where Blade was located.

·       In respect of Mr Wallace and Mr Morresey's evidence that the lone man's boat was a ketch:

o   Mr Wallace's first sketch for the police on 3 January included a question mark after "ketch".

o   Mr Morresey's early statements did not suggest that the boat he was describing had two masts. Mr Morresey's first mention of a ketch came immediately after his involvement with the media and exposure to the account being given by Guy Wallace, who was at that time defending his claim it was a two-masted vessel.

o   At trial, extensive evidence was led as to the boats that were at Furneaux Lodge on New Year's Eve 1997, following a police investigation which ultimately identified 176 boats as being in the vicinity and 105 in the immediate vicinity of Furneaux Lodge.

o   A person who we know was Mr Watson, because he accepted his involvement in an incident the witnesses themselves were involved in or witnessed, told a number of those witnesses at Furneaux Lodge that he had a ketch.

·       Mr Watson had returned to Blade on a water taxi driven by Donald Anderson. The Crown case was that he later went back to Furneaux Lodge by means unknown. The evidence of Mr Watson attempting to rouse those aboard Mina Cornelia and Bianco established that Mr Watson wanted to continue partying after Mr Anderson took him to Blade, providing an obvious reason for Mr Watson to return to shore. There is nothing in the timing evidence to discount the Crown's two-trip theory as a reasonable possibility.

·       The Court did not consider exclusion of Mr Wallace's identification was required on unreliability grounds bearing in mind the significant body of evidence supporting the correctness of Mr Wallace's identification. In the Court's view, the cumulative effect of that evidence strongly supported the admissibility of Mr Wallace's identification of Mr Watson from Montage B. Further, the respective Crown and defence closing addresses brought into sharp relief the need for the jury to critically consider, in light of all the evidence presented, which aspects of Mr Wallace's evidence were correct and which were not. Either Mr Wallace was right that the man in photograph number 3 of Montage B was the lone man or he was right about the lone man's boat being a ketch. This is not a case where misplaced reliance on an overconfident eye witness appeared to be the fulcrum on which the jury's verdict turned.

Ultimately, the Court considered the evidential value of Mr Wallace's identification outweighed any unfairness associated with its admission. It was properly admitted at Mr Watson's trial. Its admission did not give rise to a miscarriage of justice.