Case Summaries 2012

Mohammad Hamidzadeh v The Queen

Criminal Appeal – Appeal against sentence – Sentencing Act 2002, ss 102 and 104 – Whether Court of Appeal erred in its approach to sentence – Whether imposition of life sentence was manifestly unjust – Whether imposition of minimum period of imprisonment of 15 years six months was manifestly unjust – Whether Court of Appeal correctly assessed the role of provocation in sentencing for murder convictions given abolition of partial defence of provocation.  

[2012] NZCA 550  CA 627/2011

Credit Suisse Private Equity Inc and another v Eric Meserve Houghton  and others

Civil Appeal – Limitation periods – Whether the Court of Appeal erred in finding that representees’ individual claims had been brought when the first respondent filed his claim on a representative basis – Whether the Court of Appeal erred in finding that representees did not have to opt in to the proceedings before limitation periods expired in order to bring timely individual claims

[2012] NZCA 545  CA204/2011

Leave to appeal is granted on the following ground:

Are the claims of some or all of the shareholders represented by the First Respondent (Mr Houghton) time-barred by virtue of limitation provisions in the Limitation Act 1950 or the Fair Trading Act 1986?

8 April 2013.

Sst V The New Zealand Police

Criminal Appeal – Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38 – whether the Court of Appeal erred in finding that the applicant was in custody at the time that the s 38 reports were ordered – whether the Court of Appeal erred in finding that the Judge sufficiently examined the evidence in determining that the applicant was fit to plead.  [2012] NZCA 544   CA394/2012

The New Zealand Mäori Council and Waikato Rivers and Dams Claims Trust v Her Majesty’s Attorney-General, The Minister of Finance and The Minister of State Owned Enterprises

Civil Appeal – Application for direct appeal – Whether the High Court was right to dismiss the New Zealand Mäori Council’s application for review.

[2012] NZHC 3338 Civ 2012 485 2187

Leave to appeal, and to appeal direct to this Court, is granted.

The approved ground of appeal is whether the High Court was right to dismiss the application for review

Elias CJ, McGrath, William Young, Chambers, Glazebrook JJ.

Greenpeace of New Zealand Incorporated

Civil Appeal – Whether the Court of Appeal erred in holding that a contentious or political purpose could not be a charitable purpose – Whether the Court of Appeal erred in holding that purposes or activities carried on by the charity or its representatives or agents that are illegal or unlawful preclude charitable status even if only minor or ancillary.

[2012] NZCA 533     CA 333/2011

Jamie Ahsin v The Queen

Criminal appeal – Appeal against conviction – Crimes Act 1961, s 66(1) – Party to murder –Providing assistance to principal offender – Concept of withdrawal – Whether Court of Appeal was correct that appellant’s actions could not amount to a withdrawal of assistance

[2011] NZCA 75     CA 133/2010

The application for leave to appeal is granted.

The approved question is whether the trial judge should have directed the jury as to withdrawal in relation to s 66(1)(b) of the Crimes Act 1961.

11 March 2013

Kovinantie Vahafolua Fukofuka v The Queen

Criminal Appeal – Evidence Act 2006, s 126(2)(a) – Judicial warnings about identification evidence – Whether the Court of Appeal erred in holding that no substantial miscarriage of justice occurred through the trial Judge’s failure to sum up in terms of s 126(2)(a). 

[2012] NZCA 510     CA 216/2012

A The application for leave to appeal is granted. 
B The approved ground is: was the Court of Appeal correct to find no substantial miscarriage of justice occurred despite the error in the Judge’s direction under s 126 of the Evidence Act 2006? 

18 April 2013

Ian Campbell Macpherson v The Queen

Criminal Appeal – Crimes Act 1961, s 340(3)  – Misuse of Drugs Act 1975, s 6(1)(b)  – Sentencing Act 2002, s 142N – whether the Court of Appeal erred in finding that the Court’s refusal to sever the applicant’s trial from that of his co-accused did not lead to a miscarriage of justice – whether the Court of Appeal erred in finding that the applicant’s conduct (of rubbing his hands together after handling dried cannabis plant thus collecting cannabis resin) changed the cannabis plant that he had harvested into another controlled substance, thus falling within the meaning of  “to produce” under s 6(1)(b) of the Misuse of Drugs Act – whether the Court of Appeal erred in upholding, in part, an order for forfeiture of a portion of the applicant’s property under s 142N of the Sentencing Act.

[2012] NZCA 522     CA 643/2011

Te Rangikaiwhiria Kemara v The Queen

Criminal Appeal – Crimes Act 1961, s 66(2) – Parties to offences – Arms Act 1983, s 45 – Whether the Court of Appeal erred in rejecting the appellants’ submission that the reverse onus in s 45(2) of the Arms Act did not apply to a party to an offence – Whether Police illegality in gathering evidence admitted at the trial should have been taken into account as a mitigating factor in sentencing.   

[2012] NZCA 492    CA 363/2012

Kevin Tito v Aroha Tito and John Andrew

Civil Appeal – Trusts – Whether there was a breach of the Trust Order in relation to the election of trustees – Whether the Court of Appeal erred in accepting this breach of the Trust Order – Whether the Court of Appeal should have considered further the issue relating to a respondent’s receipt of trust monies – Whether the Court of Appeal erred in concluding that the applicant was seeking the removal of the respondents as trustees – Whether the Trust has failed to act in the interests of the owners.   

[2012] NZCA 493    CA 856/2011

New Zealand Post Limited v Postal Workers Union of Aotearoa Incorporated  and Linda Street

Employment – Holidays Act 2003, s 9(1)(b)(ii) and (3) – Whether Court of Appeal erred in its interpretation of “relevant daily pay” – Whether unrostered overtime for postal delivery workers is to be included in the calculation of relevant daily pay as payments that “would have otherwise been received” – In which circumstances is the application of the “averaging formula” triggered.  

[2012] NZCA 481   CA 327/2011

Tama Wairere Iti v The Queen

Criminal Appeal – Evidence – Whether the jury should have been directed that evidence admissible under the co-conspirator’s rule was not available for consideration by the jury in relation to the Arms Act 1983 charges – Whether the statutory presumption of criminal liability under the Arms Act extended to a party under s 66 of the Crimes Act 1961 – Whether the Court of Appeal erred in its assessment of unlawful purpose under the Arms Act – Whether the jury’s inability to agree on the charge brought under s 98A of the Crimes Act 1961 retrospectively affected the analysis which led to certain evidence being admitted – Whether the Court of Appeal was entitled to have regard to aspirational or general discussions of inchoate thoughts forming part of a discharged count.

[2012] NZCA 492    CA 306/2012

M v Minister of Immigration

Civil Appeal – Immigration – Bill of Rights Act 1990 ss 9, 19 – whether the Court of Appeal erred in striking out the applicant’s case for being out of time – whether the Court of Appeal erred in finding that there was no stand alone right to family life entitling the applicant, as a person currently applying for refugee status or for recognition as a protected person under the immigration Act 2009 but not holding permanent residence, to visits from his family – whether the Court of Appeal erred in finding that the Immigration Service’s refusal to allow the applicant’s wife and child (residing in Australia) to visit him in New Zealand was not cruel, degrading or disproportionately severe treatment under s 9 of the Bill of Rights – whether the Court of Appeal erred in finding that the Immigration Service’s decision not to extend its family reunification policy to family members of asylum seekers wanting entry into New Zealand was not in breach of the prohibition of discrimination on the grounds of “ethnic or national origins” under s 19 of the Bill of Rights. 

[2012] NZCA 489    CA 587/2011

Daniel Brian Thomas Barrie v The Queen

Criminal Appeal – New Zealand Bill of Rights Act 1990, s 23(1)(b) – Right to consult and instruct a lawyer without delay and to be informed of that right – Whether the Court of Appeal erred in excluding foreign lawyers from those who may be consulted by a detainee under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 in the drink/drive context – Whether the Court of Appeal erred in finding that a failure by Police to explain that there is no right to consult a foreign lawyer will not constitute a failure to facilitate the right to counsel provided the opportunity to consult and instruct a New Zealand lawyer had been afforded.

[2012] NZCA 485    CA 849/2011

P v Bridgecorp Limited (in receivership and in liquidation)

Civil Appeal – evidence – contractual capacity – abuse of process – jurisdiction – discovery – conflict of interest – Whether the Court of Appeal erred by failing to give adequate weight to the full or overall tenor of medical evidence, the context of the report writers’ briefs and the reasons for adducing these reports – Whether the Court of Appeal failed to determine the level of the applicant’s mental illness and its impact on the applicant’s contractual capacity – Whether the Court of Appeal erred in determining that the application was an abuse of process – Whether the Court of Appeal erred in dismissing the application for particular discovery – Whether the Court of Appeal erred in declining leave to withdraw the admission of claim under r 15.16 of the High Court  Rules – Whether the Court of Appeal applied insufficient weight to evidence of email correspondence as indicating that the applicant was self-represented – Whether the Court of Appeal applied insufficient weight to the existence of a conflict of interest on the part of Mr Cunningham – Whether the Court of Appeal erred by focusing on economic pressure and on a test of illegitimacy in relation to any threat for unreasonable pressure.

[2012] NZCA 530    CA 756/2011

Leave to appeal is granted on the following ground:

Was r 15.16 of the High Court Rules correctly applied?

15 March 2013.

MW V The Family Court and MVH

Civil appeal – Children, Young Persons and their Families Act 1989, ss 67, 68, 87, 88 – whether High Court erroneously upheld Family Court’s refusal to issue interim restraining order.   

Civ 2012 404 5261

The application for leave to appeal is dismissed.

The applicant is to pay costs of $2,500 to the second respondent, plus all reasonable disbursements, to be fixed if necessary by the Registrar. 
18 December 2012

Malcom Rabson v Andrew Croad and Christine Margaret Dunphy

Civil Appeal – Jurisdiction – Whether the Supreme Court has jurisdiction to hear an appeal against a Court of Appeal decision to dismiss recusal applications after the substantive proceedings have been determined. 

CA 289/2011

Application for leave to appeal dismissed.
Costs to respondent $1,500 plus reasonable disbursements.

19 February 2013.

Steven John Baird  v The Queen

Criminal Appeal – Crimes Act 1961, s 61(1) and (2) and the proviso to s 385(1) – whether the Court of Appeal erred in finding that, despite a failure on the part of the trial Judge to adequately direct the jury regarding the different position of the applicant from his co-accused, the applicant’s convictions were inevitable and that no substantial miscarriage of justice had therefore occurred.

[2012] NZCA 430   CA 722/2011

Application for leave to appeal dismissed,

5 February 2013.

Emily Felicity Bailey  v The Queen

Criminal Appeal – Evidence – Fair trial – Whether the Court of Appeal erred in its approach to the charge of “participating in a criminal group” – Whether the Crown misstated its case in relation to the admissibility of evidence – Whether the Court of Appeal erred in its assessment of the complaint relating to prejudicial pre-trial media coverage undermining the ability of the accused to obtain a fair trial.

[2012] NZCA 492   CA 415/2012

Urs Signer v The Queen

Criminal Appeal – Evidence – Fair trial – Whether the Court of Appeal erred in its approach to the charge of “participating in a criminal group” – Whether the Crown misstated its case in relation to the admissibility of evidence – Whether the Court of Appeal erred in its assessment of the complaint relating to prejudicial pre-trial media coverage undermining the ability of the accused to obtain a fair trial.

[2012] NZCA 492   CA 416/2012

Cameron John Leef v The Queen

Criminal appeal – Appeal against conviction – Crimes Act 1961, s 134(1) – Having sexual connection with a young person – Evidence Act 2006, s 44 – Whether Court of Appeal was correct to conclude that evidence of complainant’s prior sexual experience was inadmissible – Whether Court of Appeal erred that there was no miscarriage of justice as a result of the admission of inadmissible evidence.

[2012] NZCA 567   CA 248/2011

Kyung Yup Kim v The Prison Manager, Mt Eden Corrections Facility

Civil Appeal – Habeas corpus – Applicant remanded in custody until his eligibility for surrender under s 24 of the Extradition Act 1999 has been determined – Whether the Court of Appeal erred by failing to take into consideration the right to life and the right not to be subjected to torture under ss 8 and 9 of the New Zealand Bill of Rights Act 1990 – Whether the Court of Appeal erred by failing to give authorities from New Zealand and the United Nations Human Rights Committee the intensive scrutiny they warranted – Whether the lawfulness of the application to extradite the applicant is a matter capable of summary determination in a habeas corpus application – Whether challenges to the applicant’s status as an “extraditable person” are a matter capable of summary determination in a habeas corpus application.   

[2012] NZCA 471  CA 637/2012

Leave to appeal is granted.
The approved ground is whether the Courts below were correct to dismiss the proceeding because the alleged deficiencies in the request to surrender and the application for a provisional warrant were not suitable for determination on a habeas corpus application.
16 November 2012.

Y v The Queen

Criminal – indecent act with a child and young person – Crimes Act 1961 ss 132(3); 134(3); and s 2(1B) – whether the Court of Appeal erred in finding that a person who watches and encourages another person to perform an indecent act performs that indecent act “with” that other person for the purposes of s 2(1B) – whether the Court of Appeal erred in failing to consider the discretionary nature of its power to order a new trial – whether the Court of Appeal erred in not exercising its discretion not to order a new trial in light of the delay, the distress and the relatively low gravity of the offending. 

[2012] NZCA 458  CA 321/2012

The application for leave is dismissed.

Costs of $2,500 plus reasonable disbursements as fixed by the Registrar are awarded to the respondent.

19 December 2012.

Albert Wayne Hunter v The Queen

Criminal Appeal – Appeal against conviction and sentence – Whether the trial judge erred in not making an inquiry of two jurors whom the applicant said he knew and who may have been prejudicial – Whether the applicant was inadequately represented by counsel – Whether the applicant was unfairly painted as the prime instigator in sentencing – Whether the applicant’s health issues were appropriately brought to the attention of the Court.  

[2012] NZCA 147  CA 584/2011

A The application for leave to adduce fresh evidence is dismissed.

B The application for leave to appeal against conviction is dismissed.

C The application to appeal directly to this Court against his sentence is dismissed.

26  February 2013.

Benjamin Izaak Stanley v The Queen

Criminal Appeal – jury trials – jury directions – whether trial judges should give a “demeanour direction” in a case where there is a risk that the jury might place weight on the demeanour of a witness as a factor relevant to determining the credibility and reliability of that witness – whether the Court of Appeal erred in determining that, despite the Crown prosecutor’s comments in closing and the trial Judge’s summing up, a demeanour direction was not required – whether a miscarriage of justice occurred at the appellant’s trial.

[2012] NZCA 462   CA 672/2011

Graeme Andrew Waswo v The Queen

Criminal appeal – Appeal against Conviction – Indecent assault – Sexual violation – Arson – Whether Court of Appeal was incorrect to dismiss appeal – Severance of charges – Inadequate representation by trial counsel – Whether a direction about propensity evidence was required.  

[2012] NZCA 461  CA 845/2011

Notice of abandonment being lodged, the application for leave to appeal is deemed to be dismissed.

4 April 2013.

West Coast Ent Incorporated v Buller Coal Limited, Soli Energy New Zealand Limited, Royal Forest and Bird Protection Society of New Zealand Incorporated.

Civil Appeal – Supreme Court Act 2003, s 14 – Declarations sought in the Environment Court as to whether the effect of the combustion of coal, extracted from particular mining proposals, on climate change is a relevant consideration under s 104(1)(a) of the Resource Management Act 1991 – Matter heard by Environment Court and High Court – All parties agree to an appeal straight to the Supreme Court – Whether there are exceptional circumstances justifying leave to appeal directly to the Supreme Court from the High Court.

[2012] NZHC  2156   CIV 2012 409 972

Leave to appeal direct to this Court, against the High Court’s judgment, is granted. 

The approved ground of appeal is whether, under s 104(1)(a) of the Resource Management Act 1991, the decision-makers in the consent proceedings were required or able to have regard to the effects on climate change of discharge of greenhouse gases arising from end use of coal that will be extracted if consent is upheld.

28 November 2012.

Mars New Zealand Limited v Roby Trustees Limited

Civil – Intellectual Property– Trademarks – Trade Marks Act 2002, s 17(1)(a) and s 25(1)(b) and (c) – whether the Court of Appeal failed adequately to consider the ambit of the reputation in Mars’ “OPTIMUM” brand in determining whether registration of Roby Trustees’ “Optimise Pro” brand would be likely to cause confusion for the purposes of s 17(1)(a) – whether the Court of Appeal erred by equating its test under s 17(1)(a) with those under s 25(1)(b) and (c) – whether the Court of Appeal incorrectly determined the principles applicable to fair and notional use and imperfect recollection in comparing the two trademarks under s 25(1)(b) – whether the Court of Appeal erred in its analysis of the likelihood of prejudice to Mars’ interests under s 25(1)(c).

[2012] NZCA 450  CA 30/2012

The application for leave is dismissed.

Costs of $2,500 plus reasonable disbursements as fixed by the Registrar are awarded to the respondent.

19 December 2012. 

Barry Raymond Whitelaw v The Queen

Criminal appeal – Appeal against sentence – Whether the appellant’s sentence of two years, five months’ imprisonment was excessive – Whether the uplift of nine months applied to the appellant’s sentence to take account of his previous offending was in breach of the prohibition against double jeopardy contained in s 26 of the New Zealand Bill of Rights Act 1990. 

[2012] NZCA 438  CA 359/2012

Grant Stanley Nicholls v Airways Corporation of New Zealand Limited

[2012] NZCA 444  CA 566/2011

The application for leave to appeal is dismissed.
The applicant must pay to the respondent costs of $2,500, together with reasonable disbursements, to be fixed, if necessary, by the Registrar.

14 December 2012

Sonja Marie Lawson v The Queen

Criminal appeal – Appeal against conviction – Crimes Act 1961, s 228(b) – Using a document with intent to obtain a pecuniary advantage, dishonestly and without claim of right – Whether Court of Appeal was correct to dismiss appeal against conviction ¬– Trial counsel errors – Prosecution Misconduct – Failure to consider appellant’s brief – Unfair hearing – Errors of law.

[2012] NZCA 426  CA 593/2001

Roger Lindsay Blick v The Queen

Criminal Appeal – Application for recall – Whether the Supreme Court has jurisdiction to hear and determine an appeal against a decision of the Court of Appeal declining to recall a judgment allegedly obtained by fraud – Whether the proposed appeal can be distinguished from de Mey v R [2005] NZSC 7.  

[2012] NZCA 373  CA 26/2001

Rajendra Prasad v Indiana Publications (NZ) Limited and others

Civil appeal – Copyright Act 1994 – District Court Act 1947 - whether the Court of Appeal erred in determining the ownership of the copyright in dispute – whether the Court of Appeal erred in determining the correct court processes to be followed in relation to an order for costs and insolvency proceedings. 

[2012]NZHC  2582  CIV 2012 404 4172

The Proprietors of Wakatu Incorporated and others v The Attorney-General

Civil Appeal – Maori land – Whether, in the circumstances in which Maori land was acquired for the New Zealand Company’s Nelson settlement, the Crown was in breach of legally enforceable obligations owed to the owners from whom title was acquired – Whether the High Court erred in holding that no trust existed – Whether the High Court erred in finding that the Crown did not owe a fiduciary duty – Whether, if such obligations were owed, those owners have lost their right to enforce such obligations by reason of defences available to the Crown through lapse of time – Whether the High Court erred in finding that the appellants did not have standing to bring the proceeding.

[2012]NZHC 1461  Civ 2010 442 181

Ashley Dwayne Guy v The Queen

Criminal Appeal – evidence – Evidence Act 2006 – whether the transcript of an interview of the complainant (“the complainant transcript”) was inadmissible as potentially prejudicial material – whether the complainant transcript was inadmissible as a prior inconsistent statement – whether the transcript of an interview with the accused (“the accused interview transcript”) was inadmissible – whether the trial Judge’s direction to the jury on evidence relating to the complainant was appropriate – whether the Court of Appeal erred in admitting the complainant and accused interview transcripts given the fact neither counsel nor the trial Judge had had the opportunity to address the jury on these materials.

[2012]NZCA 416  CA  69/2012

Application for leave to appeal granted.
The approved ground of appeal is whether the Court of Appeal was correct in holding no substantial miscarriage of justice had occurred, notwithstanding the error in the jury being given and reading the two interview transcripts which had not been put into evidence.

20 December 2012.

10 April 2013
Elias CJ, McGrath, William Young, Chambers, Glazebrook JJ.

Decision reserved.

Godfrey Waterhouse and Robert John Waterhouse v Contractors Bonding Limited

Civil appeal – Litigation funding agreement – Law of Maintenance and Champerty ¬– Extent of Court oversight over litigation involving such agreements –Whether Court of Appeal was correct to order disclosure to the defendant of particular details of the plaintiff’s agreement to prevent potential abuse of process ¬– Whether degree of disclosure was appropriate.  

[2012]NZCA 399  CA  200/2011

Leave to appeal is granted.

The approved questions are:

(i) whether the appellants should be ordered to disclose the litigation agreement to the respondent; and

(ii) if so, on what terms.

14 November 2012

Aeneas Davidson v The Queen

Criminal – Appeal against conviction – Whether trial counsel’s conduct of the defence was deficient so as to render the applicant’s trial unfair – Evidence – Whether, in pursuing the defence, trial counsel elicited inadmissible recent complaint evidence that was prejudicial to the applicant making the verdicts unsafe.   

[2012]NZCA 391  CA  174/2011

Philip Dean Taueki v The Queen

Criminal – s 56 of the Crimes Act 1961 – whether the Court of Appeal erred in rejecting the applicant’s defence of peaceable possession – whether the Court of Appeal erred in finding that the applicant did not have possession of the land acquiesced by all other persons – whether the Crown’s guarantee under the Treaty of Waitangi guarantee of “full, exclusive and undisturbed possession” of all land collectively owned is relevant to whether the applicant did have peaceable possession.   

[2012]NZCA 428  CA  383/2011

Leave to appeal is granted with regard to the first charge of
assault.

The approved ground is whether Mr Taueki had a defence
under s 56 of the Crimes Act 1961 to that first charge.

14 November 2012.

Visy Board Pty Limited v Commerce Commission

Civil Appeal – Competition Law – Commerce Act 1986, s 4 – Application of the Commerce Act 1986 to conduct outside New Zealand – Whether the Court of Appeal erred in finding that the phrase “to the extent that such conduct affects a market in New Zealand” in s 4(1) of the Act encompasses conduct that merely “relates to” a market in New Zealand – Whether the Court of Appeal erred in finding that whether or not a person is “carrying on business in New Zealand” is a question of fact involving a wide variety of factors, not one of which is essential for marking a positive finding – Whether the Court of Appeal failed to interpret properly r 6.29 of the High Court Rules.

 [2012]NZCA 383   CA  312/2011

Alyxe John Wood-Luxford v Mark John Wood

Civil Appeal – Family Protection Act, ss 2(1) and 3 – Definition of “stepchild” – Whether the Court of Appeal erred in finding that the applicant was not eligible to bring a claim under the Act – Whether word “living”, as used in the Act, can include a child in utero at the date of the qualifying event.

[2012]NZCA 377  CA  739/2011

Leave to appeal is granted.

The question to be addressed on the appeal is whether the applicant is a person entitled to claim under the Family Protection Act 1955 against the estate of John Luxford, either as a child of the deceased or a step-child of the deceased within the meaning of the Family Protection Act 1955.

5 December 2012.

7 March 2013
Elias CJ, McGrath, William Young, Chambers, Glazebrook JJ.

Decision reserved.

Neil Stuart Johnston v Christopher Frederick Schurr and Deam & Shearer

Civil Appeal – Protection of Personal and Property Rights Act 1988 – Whether a manager appointed under the Act can be liable in damages for acting without reasonable care – Whether the incapacity of a client brings the retainer of a solicitor to an end, even if the solicitor continues to act in relation to the client’s affairs – Whether the Court of Appeal erred in its approach to findings of fact made by the trial Judge. 

[2012]NZCA 363  CA  616/2010

The application for leave to appeal is granted in relation to both respondents.

The approved ground is whether the claims against the first and second respondents were properly dismissed.

27 November 2012.

Vincent Ross Siemer v Judicial Conduct Commissioner and others

Civil Appeal – Security for Costs – Whether Court of Appeal was correct to uphold decision of Acting-Registrar to decline application to dispense with security for costs.

CA  422/2012

Application for leave to appeal dismissed.  Costs $2,500 to the respondent.

1 November  2012.

Francisc Catalin Deliu v The New Zealand Law Society

Civil Appeal – Evidence – Costs – Whether the Court of Appeal erred in allowing a factual determination to be made without any admissible evidential foundation – Whether the Court of Appeal erred in determining serious appellate litigation on the basis of hypothetical, conjectural or speculative actions to override the usual presumption of one trial – Whether the Court of Appeal erred in ordering costs against the appellant without an application. 

[2012]NZCA 359  CA  796/2011

Application for leave to appeal dismissed. 
Costs $2,500 to the respondent.

30 October 2012.

Tiroa E and Te Hapa B Trusts v Chief Executive of Land Information and others.

Civil Appeal – Overseas Investment Act 2005 – Whether the Court of Appeal erred in finding that the first, second and third respondents had applied the correct test under s 16(1)(a) of the Act – Whether the Court of Appeal erred in finding that the first, second and third respondents had not taken into account irrelevant considerations – Whether the Court of Appeal erred in finding that the first, second and third respondents had obtained reasonably adequate information to reach decision that s 16(1)(a) of the Act had been satisfied.  

[2012]NZCA 355  CA  88/2012, CA 284/2012

T v The Queen

Criminal Appeal – Sentencing – Whether the Court of Appeal erred in not adjusting the earlier indicated sentence of the accused. 

[2012]NZCA 362  CA  249/2012

Vincent Ross Siemer v Michael Heron and others

Civil Appeal – Security for Costs – Whether Court of Appeal was correct to uphold decision of Acting-Registrar to decline application to dispense with security for costs.

CA  103/2012

Application for leave to appeal dismissed.
Costs $2,500 to the respondent.

30 October 2012.

New Zealand Dairy Processing Limited v Schenker (NZ) Limited

Civil – Statutory demand – Companies Act 1993, s 290(4)(b) – Whether the Court of Appeal erred in finding that management services were provided under a logistics and warehouse agreement – Whether the Court of Appeal erred in implicitly holding that further terms could be imposed in relation to the provision of services by virtue of statements made in invoices issued after the terms on which the provision of services had been agreed – Whether the Court of Appeal set the evidential threshold for counterclaim too high. 

[2012]NZCA 343  CA  859/2011

The application for leave to appeal is dismissed. 

The applicant is to pay costs of $5,000 to the respondent, plus all reasonable disbursements, to be fixed if necessary by the Registrar.

25 October 2012.

H v The Queen

Criminal Law – Appeal Against Conviction – Further Evidence – Whether the Supreme Court should admit further evidence, including evidence from a witness called at trial and evidence from a police interview

[2012]NZCA 339  CA  615/2011

A The application for leave to appeal is granted.

B The approved ground is whether the Court of Appeal’s treatment of the affidavit(s) of H’s son, M, was correct.

28 February 2013

Arthur William Taylor v The Queen

Criminal Law – Appeal against Conviction and Sentence – Whether the Court of Appeal was in error in holding that there was a sufficient factual foundation for the charge to go to the jury – Whether the sentence was manifestly excessive (due to disproportionate uplift for previous offending or failure to take into account undue delay) – Whether the Court of Appeal erred in allowing interception evidence to be admitted – Whether the Applicant’s right of appeal was deprived (through failure to present to the Applicant a pre-trial ruling on admissibility and/or failure to offer an opportunity for the Applicant to make submissions after the hearing) – Whether the Court of Appeal erred in concluding that there had been no breach of the Applicant’s right to trial without undue delay

[2012]NZCA 332  CA  371/2011

Patricia Pickering  v The Queen

Criminal Appeal – evidence – jury directions – what duty does the Crown Solicitor have to inform the defence in a timely manner when the Crown proposes resiling from an earlier agreement not to offer propensity evidence – is it fair that defence consent to vital propensity evidence can be implied when the evidence and propensity issues were not raised by the Crown with either the defence or with the trial Judge – was the trial Judge’s direction to the jury in respect of inferences/circumstantial evidence adequate – whether there was a miscarriage of justice arising from the Crown Solicitor’s use of emotive and inappropriate language in his closing address – whether the High Court should have permitted the “Lammie” evidence to be received as fresh evidence.

[2012]NZCA 311  CA   546/2010

Christopher Edward Huggins v The Queen

Criminal – Appeal against conviction – Crimes Act 1961, s 132(3) – Doing an indecent act on a child under 12 years – Unreasonable verdict – Insufficient evidence to convict – Court of Appeal erred in holding that lies told by the accused contributed to cogent circumstantial evidence of guilt.  

[2012]NZCA 261  CA   768/2011

Application for leave to appeal dismissed.

25 September 2012.

Gerald Thondhlana v The Queen

Criminal Appeal – Counsel error – Appeal against conviction of assault with intent to injure – Whether counsel failed to call relevant medical evidence – Whether counsel adequately argued self-defence – Whether Crown witnesses were cross-examined on inconsistent statements – Whether a miscarriage of justice occurred

[2012]NZCA 233  CA   536/2011

L  v  R

Criminal – Surveillance - Bill of Rights Act 1990, s 21 – Evidence Act 2996, s 30 - Whether the Court of Appeal erred in finding that video surveillance of the entrance to the applicant’s driveway did not constitute an unlawful search - Whether the Court erred in admitting the evidence under s 30 Evidence Act 2006.

[2012]NZCA 264  CA   143/2012

Benjamin Morland Easton v Governor-General

Civil Appeal – Waiver of fees – Whether the Court of Appeal was correct to uphold the decision of the Deputy Registrar to decline to waive fees because the appellant’s case was hopeless on the merits. 

[2012]NZCA 192   CA   163/2012

Dorchester Finance Limited v Deloitte & Perpetual Trust Limited

Civil Appeal – Contract Law –Whether the Court of Appeal erred in concluding that the “Limit on Action” clause at issue in this case did not have the effect of extinguishing the underlying debt to which it applies – Whether the Court of Appeal erred in failing to apply the fundamental principles of the law of contract – Whether the Court of Appeal erred in concluding that a limit on action clause did not have substantive effect – Whether the Court of Appeal erred in its construction of the subject limit on action clause.

[2012]NZCA 226  CA  57/2011

The application for leave to appeal is dismissed. 
The applicant is to pay costs of $5,000 to each respondent, plus all reasonable disbursements, to be fixed if necessary by the Registrar. 

11 September 2012.

Vector Limited v Commerce Commission

[2012]NZCA 220  CA   702/2011

Leave to appeal is granted.

The approved grounds are whether under the Commerce Act 1986 the s 54K(3) power:

(i) is able to be exercised in the manner provided for in s 53P(3)(b) in the absence of a published input methodology (or methodologies) specific to starting price adjustment under s 53P(3)(b); and, if so:

(ii) permits change only to the extent necessitated by the newly published input methodology relied on by the Commission.

14 August 2012

9 and 10 October 2012.
McGrath, William Young, Glazebrook, Blanchard, Anderson JJ.

The appeal is dismissed.
The appellant is to pay the respondent costs of $40,000 together with disbursements to be fixed, if necessary, by the Registrar. 

15 November 2012.

Wayne Goodwin Janse v The Queen

Criminal Appeal – Appeal against conviction and sentence on one count of injuring with intent to injury and another of male assaults female – Whether verdict can be supported on the evidence – Whether particular evidence should have been presented to the jury at an earlier stage of the trial – Whether institutional gender bias surrounding domestic violence caused a miscarriage of justice.   

[2012]NZCA 214  CA   526/2011

Ann Mary Seaton v Minister for Land Information

Civil – s 23 Public Works Act 1981– compulsory acquisition – whether s 23 empowers the Minister to acquire land indirectly required for a Government work – whether the Minister’s intention to transfer the easement interests to Transpower and Orion following acquisition meant that he had not acted for a proper purpose as required by s 23.

[2012]NZCA 234  CA   360/2011

The application for leave to appeal is granted.

The approved ground is whether the Court of Appeal was correct in its interpretation and application of the relevant provisions of the Public Works Act 1981 in the circumstances of this case?

25 July 2012.

13 November 2012.
Elias CJ, McGrath, William Young, Chambers, Glazebrook JJ.

Decision reserved.

A The appeal is allowed.

B The judgment of the Court of Appeal is set aside.

C The orders made in the High Court are restored.

D The respondent is to pay the appellant, with respect to costs in this Court, the sum of $25,000 together with disbursements to be fixed, if necessary, by the Registrar.

E If the parties cannot agree on costs in the Court of Appeal, the Court of Appeal must fix them.

29 April 2013.

A  v The Queen

Criminal Appeal – Sentencing – Sentencing Act 2002, s 106 – Conspiracy to commit incest – Whether the consequences of a conviction are out of all proportion to the gravity of the offending. 

[2012]NZCA 328  CA   747/2010

TK v The Queen

Criminal Appeal – Evidence Act 2006 – Whether the Court of Appeal erred in finding that the hearsay statements of a 3-year old child were reliable and admissible – Whether the Court of Appeal erred in holding that the child was “available as a witness” under the Evidence Act – Whether there would be prejudice arising out of not being able to cross-examine the child – Whether expert evidence on the accuracy of children’s memory should be admitted.

2012]NZCA 167  CA 94/2012

RAS  v The Queen

Criminal Appeal – Prostitution Reform Act 2003, s 22(1) – Whether Court of Appeal erred in interpreting s 22(1) as a strict liability offence – Whether Court of Appeal correctly held that search warrants were properly obtained under s 198 of the Summary Proceedings Act 1957 rather than s 30 of the Prostitution Reform Act – Whether Court of Appeal’s interpretation of the jurisdictional scope of s 198 of the Summary Proceedings Act was correct.

[2012]NZCA 189   CA 761/2011

K A  v The Queen

Criminal Appeal – Joinder – Crimes Act 1961, s 345D – The applicant was convicted on a charge of sexual violation – His brother was a co-accused at the same trial in relation to discrete offending – Whether the Court of Appeal erred in fact and law in finding that the trial Judge’s powers under s 345D were validly invoked and exercised. 

[2012]NZCA 183  CA 274/2011

Vincent Ross Siemer v Michael Richard Heron and others

Civil Appeal – Procedure – Security for costs – Whether the High Court erred in ordering that the applicant, an undischarged bankrupt, pay security for costs. 

CIV 2010 404 6880  17 March 2011

The application for leave to appeal is refused.

The applicant is to pay the First and Second Respondents costs of $2500.00.

18 July 2012.

KDM v The Queen

Criminal Appeal – Admissibility of evidence – Whether the Court of Appeal erred in holding that while the search of the property should have been brought to the attention of the issuing officer, the failure to do so was not material – Whether the Court of Appeal erred in determining that it would be inappropriate for the Court to make a finding of bad faith or deliberate omission in the absence of such a finding made by the District Court Judge – Whether the Court of Appeal erred in determining that the evidence was admissible.

CA  709/2011  [2012] NZCA120

Vincent Ross Siemer v The Solicitor-General

CA  417/2011  [2012] NZCA139

Leave to appeal is granted. 
The approved ground is whether New Zealand courts have inherent power or jurisdiction to suppress judgments in criminal cases. 

19 July 2012.

15 November 2012.
 Elias CJ, McGrath, William Young, Chambers  Glazebrook JJ

Decision reserved.

Manukau Golf Club Incorporated v Shoye Venture Limited

CA  747/2011  [2012] NZCA154

Leave to appeal is granted.

The approved questions are whether the Court of Appeal was wrong:

(i) to make no order for costs in respect of the appeal; and
(ii) to give no reasons.

19 July 2012.

The appeal is allowed. 
The respondent must pay to the appellant, with respect to costs in the Court of Appeal, costs of $12,220, plus disbursements of $5,051.73. 
By agreement, no order as to costs in this Court. 

4 December 2012.

Jay Maui Wallace  v The Queen

Criminal law – Jurisdiction – Whether the courts of New Zealand have jurisdiction to try the applicant. 

CA  417/2011  [2012] NZCA139

CAW v The Queen

Criminal Appeal – Admissibility of evidence – Whether the Court of Appeal erred in holding that while the search of the property should have been brought to the attention of the issuing officer, the failure to do so was not material – Whether the Court of Appeal erred in determining that it would be inappropriate for the Court to make a finding of bad faith or deliberate omission in the absence of such a finding made by the District Court Judge – Whether the Court of Appeal erred in determining that the evidence was admissible.

CA  710/2011  [2012] NZCA120

John George Russell v Commissioner of Inland  Revenue

Civil Appeal – Tax avoidance – Whether the applicant received a fair and impartial hearing – Whether the Court of Appeal was correct in its analysis of the evidence – Whether the Court of Appeal erred in finding that the overall arrangement established and operated by the applicant had the purpose or effect of tax avoidance – Whether the Court of Appeal erred in finding that the applicant was a person affected by the arrangement and that he obtained a tax advantage – Whether the Court of Appeal was correct to find that the assessment made by the Commissioner would not be void even if it included income deemed by virtue of s 99(4) of the Income Tax Act 1976 to be the income of someone else.

CA  654/2010  [2012] NZCA128

Loktronic Industries Limited v Stephen John Diver and others

Civil Appeal – Tort – Evidence – Whether the Court of Appeal erred in its statement of the test for the element of knowledge in the tort of inducing breach of contract – Whether the Court of Appeal erred in overturning findings of fact that were open to the trial judge and not plainly wrong – Whether the Court of Appeal imposed a more onerous duty on the appellant in its cross-examination of its witnesses at trial than is consistent with s 92(1) of the Evidence Act 2006. CA  258/2011  [2012] NZCA131

The application for leave to appeal is dismissed with costs of $1,000 payable to each set of respondents making submissions.

24 July 2012.

Reginald Robert Long v ANZ National Bank Limited

Civil Appeal – Appeal against summary judgment – Property Law Act 2007, s 176(1) – Whether Court of Appeal erred in its conclusion that mortgagee complied with duty to use reasonable care to obtain the best price reasonably obtainable – Whether Court of Appeal was correct that Respondent provided sufficient evidence to prove that there was no arguable defence against summary judgment. CA  708/2011  [2012] NZCA132

The application for leave to appeal is dismissed.

Costs are reserved, with the respondent to submit a memorandum within seven days as to the costs sought and the applicant to reply within a further seven days.
4 July 2012.

Richard Grant Simpson & Timothy Wilson Downes as receivers of Capital + Merchant Investments Limited (In Receivership) v Commissioner of Inland Revenue

CA 361/2011  [2012] NZCA 126

We grant leave to appeal.

The approved question is:

Were the applicants required to pay the GST on the sales to the Commissioner of Inland Revenue?

25 July 2012

Jason Lloyd Jones v The Queen

Criminal – Sentencing – Rape – Whether the Court of Appeal erred in raising the applicant’s sentence from 9.5 years to 13 years – Whether the Court of Appeal erred in concluding that a finding of ‘significant premeditation’ in sexual offending was not restricted to the existence of a fixed intention to have non-consensual-sex prior to the offending, and that an offence would be ‘significantly’ premeditated where there was an intent to have sexual connection with the victims regardless of whether consent was forthcoming – Whether the Court of Appeal erred in holding that the victim’s consent to sexual activity with the applicant’s co-offender prior to the rape was not relevant to sentencing – Whether the Court of Appeal erred in finding that the lower Court’s 6 month reduction for ‘previous good conduct, family circumstances and the shame experienced’ was inappropriate in light of his past offending and repeated denial of the rape. CA 376/2011  [2012] NZCA 27

Robert Erwood v Janet Maxted and others

Procedure – High Court Rules – Inherent Jurisdiction – Whether Court of Appeal erred in upholding the Associate Judge’s finding that the High Court at Nelson was, in the circumstances, the most convenient Court to deal with the issues raised in the bankruptcy notice – Whether a litigation guardian should have been appointed to assist the applicant – Bankruptcy – Whether a bankruptcy notice should have been issued against a person known to be solvent.

CA 567/2007  [2012] NZCA 110

The application for leave to appeal is dismissed.
The applicant is to pay costs of $5,000 to the respondents, plus all reasonable disbursements, to be fixed if necessary by the Registrar. 

3 October 2012.

CF v The Queen

Criminal Appeal – Evidence and Procedure – Admissibility of evidence – Whether the Court of Appeal erred in its interpretation of the verb “to obtain” in the context of s 30(5) of the Evidence Act 2006 – Whether the Court erred in its decision not to exclude the statements made by the appellants on the ground of unfairness.

CA 372/2011  [2012] NZCA 114

YS v The Queen

Criminal Appeal – Evidence and Procedure – Admissibility of evidence – Whether the Court of Appeal erred in its interpretation of the verb “to obtain” in the context of s 30(5) of the Evidence Act 2006 – Whether the Court erred in its decision not to exclude the statements made by the appellants on the ground of unfairness.

CA 373/2011  [2012] NZCA 114

SM v ASB Bank Limited

Civil Appeal – Relationship Property Law – Whether a notice of claim under s 42 of the Property (Relationships) Act 1976 should have been removed in the circumstances of the case where it is alleged that the Respondent was aware of the Applicant’s extant claims to property – Whether a third party purchaser can exercise a mortgagee’s power to possess property occupied under s 27 of the Property (Relationships) Act 1976. CA 6902011  [2012] NZCA 103

Gareth John Needham v The Queen

Criminal Appeal – Evidence – Expert evidence – Whether the Court of Appeal erred in failing to hold that the trial Judge should have ordered severance of count one into two alternative counts – Whether there was a breach of s 92 of the Evidence Act 2006 as trial counsel did not cross-examine four Crown witnesses on an issue of veracity – Whether the Court of Appeal erred in fact and law in relation to an issue that a Crown witness was allegedly improperly asked in evidence-in-chief – Whether evidence should have been led as to the lack of previous convictions of the appellant – Whether the Court of Appeal should have determined the admissibility of fresh good character evidence – Whether the Court of Appeal erred in holding that the fresh evidence of an astronomer would not have been substantially helpful – Whether the Court of Appeal erred in holding that the fresh evidence of a consultant forensic pathologist would not have been substantially helpful.

CA 443/2011  [2012] NZCA 95

Pawel Marian Misiuk v New Zealand Parole Board, Department of Corrections, New Zealand Immigration.

Criminal law – Parole – Parole Act 2002, ss 21(1) and 28(5) -  Habeas corpus - Whether the Parole Board’s exercise of its extraordinary powers under s 28(5)  to amend the applicant’s release date was in breach of section 22 of the Bill of Rights 1990 prohibiting arbitrary detention – Whether not permitting the applicant to be heard or represented at certain Parole Board sittings was in breach of s 27(1) of the Bill of Rights 1990 - Whether the chairman of the Parole Board failed to comply with the procedures set out in the Parole Act 2002 and Criminal Justice Act 1985 – Whether the Parole Board failed to comply with its own policy regarding disclosure – Whether the Parole Board’s decision was based on erroneous and irrelevant information and falsified High Court records – whether the Parole Board acted outside of its jurisdiction and abused its power.

CA164/2012  [2012] NZCA 116

WDB v The Queen

Criminal Appeal – Pre-trial application – Evidence Act 2006, s 43 – Admissibility of propensity evidence – Whether Court of Appeal erred in dismissing appeal against admission of propensity evidence at trial – Probative value of propensity evidence in identifying the offender –– Incident of alleged offending and propensity incident allegedly different in nature – Whether Court of Appeal was correct to regard that the inevitable identification of the applicant in respect of all charges once the applicant’s identification on one charge is established is not unfairly prejudicial.

CA 696/2011    [2012] NZCA106

Michael Peter Stiassny, Grant Robert Graham, Forestry Corporation of New Zealand Limited (in receivership), Citic New Zealand Limited (in receivership), CNI Forest Nominees Limited and Bank of New Zealand v Commissioner of Inland Revenue

Civil Appeal – Goods and services tax – Restitution – Recovery of a GST payment paid by the first appellants to the respondent in the mistaken belief that they were personally liable for the debt – Whether secured creditors own the proceedings of sale of assets that are subject to registered fixed charges at the time of sale, if they are sold for less than the secured debts to which the charges relate – Whether the first appellants were entitled to apply the proceeds of sale of the Central North Island Forestry Partnership (CNIFP) assets to the payment of GST amount, in priority to the claims of the secured creditors – Whether the GST payment was “debtor-initiated” in terms of s 95 of the Personal Property Securities Act 1999 (PPSA) – Whether s 95 of the PPSA barred the recovery of the GST payment if it was made under a mistake – Whether the second and third appellants have a cause of action in restitution for the recovery of their mistaken payment – Whether the first appellants have a cause of action in restitution for the recovery of their mistaken payment – Whether the security trustees have a cause of action in restitution for the recovery of the mistaken payment made by the first appellants to the Commissioner of Inland Revenue –  Whether “good faith” is a pre-requisite for a defence of the provision of good consideration to the payer to a claim for the recovery of a payment made under a mistake – Whether the first appellants are entitled to recover GST payment pursuant to their tax challenge cause of action pursuant to the Tax Administration Act 1994.

SC 775/2010   [2012] NZCA 93

A  Leave to appeal is granted.

B  The approved grounds are:

(i)  whether the GST payment was a “debtor-initiated payment” in terms of s 95 of the Personal Property Securities Act 1999 so as to confer priority to the Commissioner over any claim to those moneys by any respondent;

(ii)  whether any of the appellants can recover the amount of GST so paid from the Commissioner on the basis that it was paid by the receivers under a mistaken belief that they were personally liable to pay it or on any other basis.

8 May 2012

The appeal is dismissed.

The appellants are to pay the respondent’s costs in this Court in the sum of $40,000 together with reasonable disbursements as fixed by the Registrar.

28 November 2012.

Shane Daniel Hannigan  v The Queen

Criminal Appeal – Evidence – Evidence Act 2006, ss 43 and 94 – Appeal against conviction for arson – Propensity evidence – Whether propensity evidence admitted without regard to the balancing exercise required by s 43 to determine whether the probative value of the evidence is outweighed the risk that it would be unfairly prejudicial – Whether evidence related to the specific issue in dispute – Whether any direction to the jury as to how to use the evidence should have been given – Whether evidence amounted to separate criminal allegations that should have been brought as separate charges – Cross-examination – Whether Crown breached s 94 by cross-examining its own witness – Whether Court of Appeal should have applied Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23.
CA 639/2011  [2012] NZCA 133

A Leave to appeal is granted. 
B The approved ground is whether the way in which Kirsty Hannigan was re-examined led to a substantial miscarriage of justice. 
30 May 2012.

Appeal dismissed.

26 April 2013.

Michael Santo Colosimo v The Queen

Criminal Appeal – Evidence and Procedure – Disclosure of documents at trial or before trial – Whether the trial Judge and Court of Appeal erred in their approach to alleged prejudice caused by prosecution use of a document not disclosed before trial – Whether the trial Judge should have ordered an adjournment or made other appropriate orders once the document in question was disclosed.

SC 687/2011  [2012] NZCA 60

Tyson Bennett v The Queen

Criminal Appeal – Sentencing – Sentencing Act 2002 – Whether the Court of Appeal erred in prioritising punishment over rehabilitation – Whether the Court of Appeal placed disproportionate weight on one of the purposes of sentencing in the Sentencing Act 2002

SC 682/2011  [2012] NZCA 44

Shannon Richard Andrews v The Queen

Criminal Appeal – Sentencing – whether the Court of Appeal erred in failing to take the personal circumstances of the Applicant into consideration – whether the Court of Appeal erred in upholding a greater sentence to the Applicant than to his co-conspirator – whether the Court of Appeal erred in not questioning how the estimation as to the stolen goods was reached – whether the Court of Appeal was influenced inappropriately by allegedly bias comments made by the sentencing judge.

CA 455/2011  [2012]  NZCA 61

Ronald van Wakeren v Chief Executive of the Department of Corrections

Administrative law – Habeas Corpus – Habeas Corpus Act 2001, s 16 (1A) – Whether Court of Appeal erred in failing to grant writ of Habeas Corpus – Improper composition of bench – Error in Warrant for Imprisonment – Breach of natural justice.

CA 66/2012  [2012]  NZCA 22

Vincent Ross Siemer v The Chief Justice and The Attorney-General

Civil Appeal – Security for costs – Court of Appeal Rules (Civil) 2005, r 35 – Appeal against Court of Appeal decision to decline review of Acting Registrar’s decisions as to security for costs – Whether rule 35 violates the rule of law as it is neither fixed nor predictable – Whether Court of Appeal judgment amounts to an unlawful restriction to court access by imposing a financial barrier to court access and without providing an analysis of the merits of the appeal – Whether Court of Appeal judgment amounts to unlawful governmental protection by preventing appeal challenge to a Crown Judge’s decision to strike out a statutory claim against a Crown officer – Whether rule 35 as currently applied is inconsistent with s 27 of the New Zealand Bill of Rights Act 1990 and art 14 of the International Covenant on Civil and Political Rights. 

CA 558/2011  [2012]  NZCA68

Vincent Ross Siemer v Solicitor-General

Civil Appeal – Security for costs – Court of Appeal Rules (Civil) 2005, r 35 – Appeal against Court of Appeal decision to decline review of Acting Registrar’s decisions as to security for costs – Whether rule 35 violates the rule of law as it is neither fixed nor predictable – Whether Court of Appeal judgment amounts to an unlawful restriction to court access by imposing a financial barrier to court access and without providing an analysis of the merits of the appeal – Whether Court of Appeal judgment amounts to unlawful governmental protection by preventing appeal challenge to a Crown Judge’s decision to strike out a statutory claim against a Crown officer – Whether rule 35 as currently applied is inconsistent with s 27 of the New Zealand Bill of Rights Act 1990 and art 14 of the International Covenant on Civil and Political Rights. 

CA 545/2011  [2012]  NZCA 68

Mark Joseph Benjamin  v The Queen

Criminal Procedure – A number of errors alleged relating to process and matters of fact and law in Court of Appeal decision – Whether by allocating a one day hearing the Court of Appeal breached principles of procedural fairness and natural justice resulting in counsel for the applicant having an inadequate opportunity to present the applicant’s case – Whether the Court of Appeal erred in its conclusions as to the reliability of the computer system and by refusing to admit new evidence relating to the computer records – Whether the Court of Appeal erred in its consideration of the audit report – Whether the Court of Appeal erred in finding that the outcome of the trial was not affected by the decision of the applicant’s counsel not to brief and lead Mr Lowe’s evidence – Whether the Court of Appeal ought to have considered the unlikelihood of Mr Spence junior having acted as an “instrument” of the applicant – Whether the Court of Appeal erred in its treatment of evidence as to whether there was an oral agreement to increase the applicant’s salary – Whether the Court of Appeal erred in holding that certain findings regarding count 5 were open to the trial judge – Whether trial counsel misconducted the trial by failing to put the appellant’s case to opposing witnesses as required by s 92 of the Evidence Act 2006.

CA 897/2010  [2012]  NZCA 9

Glen Dallas Goldberg  v The Queen

CA 825/2011  [2011]  NZCA 656

Notice of abandonment being filed, the application for leave to appeal is deemed to be dismissed.

4 April 2012.

Ivan Sydney Oliver Hawkins  v The Queen

Criminal Procedure – Bail Act 2000, ss14, 70 – whether the Court of Appeal erred in finding that granting bail pending appeal to the Applicant, so as to allow him to contact witnesses, was not in the interests of justice.

CA 825/2011  [2011]  NZCA 656

Allan John Todd v The Queen

Criminal Appeal – Conviction and sentence – Threatening to kill and sexual violation - Whether Court of Appeal correct to dismiss appeal against conviction and sentence – Fair Trial – Police misconduct pre-trial – Right to Counsel – Counsel misconduct at trial – Fresh evidence.

CA 265/2004

Raghu Aryasomayajula v The Queen

Criminal Appeal – Appeal against conviction – Crimes Act 1961 – Whether the Court of Appeal erred in law – Whether there was a miscarriage of justice – Whether there was insufficient evidence to convict.

[2011] NZCA  633  CA 105/2011

Commissioner of Inland Revenue v Redcliffe Forestry Venture Limited and others

Civil Appeal – Jurisdiction – High Court Rules, r 5.49 – The respondents sought to set aside a High Court judgment, holding that a forestry investment structure was created for the dominant purpose of tax avoidance and that was upheld by the Court of Appeal and the Supreme Court, on the basis that the Commissioner presented a false case to the Court by failing to disclose that another provision of the Income Tax Act 1994 was applicable – This was raised on appeal before the Supreme Court which refused to hear the argument – Whether the High Court has jurisdiction to hear and determine this proceeding – In the alternative, whether the proceeding should be struck out as an abuse of process.

[2011] NZCA  638  CA 152/2010, CA 204/2010

The application for leave to appeal is granted.

The approved questions are:

(i) whether the Commissioner’s challenge to the claim was appropriately brought under r 5.49; and
(ii) whether the judgment of the High Court should in any event have been upheld.
29 February 2012

19 June 2012.
Elias CJ, Tipping, McGrath, William Young, Gault JJ.

Decision reserved.

Rita Wilson v David Murray Blanchett and Grant Edward Burns

Civil Appeal – Company Law – Companies Act 1993 – Whether the Court of Appeal was correct to conclude that there was no arguable defence to the Respondents’ application for summary judgment – Whether certain payments transferred to the Applicant were made with valuable consideration per s 298(2) of the Companies Act 1993

[2011] NZCA  647  CA 521/2010.

The application for leave to appeal is dismissed with costs of $2,500 to the respondents.

24 February 2012.

B v The Queen

Criminal Appeal – Evidence – Evidence Act 2006, s 25 – Admissibility of expert opinion evidence – Appeal against the decision of the Court of Appeal, which held that the trial Judge’s refusal to allow the defence to call an expert did not cause a miscarriage of justice – Whether the Court of Appeal erred in concluding that the applicant was not prejudiced by this refusal

[2011] NZCA 654  CA 196/2010

Malcolm Edward Rabson v Linda Gallagher and others.

Civil Appeal – division of property - Property (Relationship) Act 1976 – whether the Court of Appeal erred in failing to take into account relevant considerations regarding separate property owned by the applicant – whether the Court of Appeal erred in making factual findings – whether the Court of Appeal failed to apply basic legal principles – whether the Court of Appeal took into account irrelevant considerations in relation to the Family Trust– whether the Court of Appeal erred in treating the Applicant as having the same legal personality as the Third Respondent – whether the Court of Appeal erred in failing to afford separate legal representation to a minor.

[2011] NZCA  669  CA 507/2010, CA 726/2010

LLT  v The Queen

Pretrial ruling – change of venue.

[2011] NZCA  617  CA 694/2011

Joseph Quintin Donnelly  v The Queen

Criminal Appeal – Admission of new evidence – Appeal against a decision of the Court of Appeal which declined leave to adduce new evidence relating to DNA testing – Whether the Court of Appeal erred in concluding that the DNA evidence was neither fresh nor cogent

[2011] NZCA  660  CA 644/2010

Application for leave to appeal dismissed.

29 March 2012.

Paul Desmond Currie v The Queen

Criminal Appeal – Miscarriage of justice – Crimes Act 1961, s 385(1)(c) – The Applicant was convicted of one charge of blackmail pursuant to s 237(1)(b) of the Crimes Act 1961 – The Applicant asserts that the document this conviction was based on was a forgery and that a witness committed perjury – Whether the Court of Appeal erred in dismissing his appeal against conviction.    

[2011] NZCA  624   CA 690/2010

Jay Maui Wallace v Chief Executive of Department of Corrections

Habeus Corpus – Whether Appellant is subject to the laws of New Zealand – Whether Appellant is being arbitrarily detained because of alleged procedural failings pertaining to hearings in the High Court and Court of Appeal.

[2011] NZCA  678  CA 783/2011