THE
CAPITAL
A "JUST" CRIMINAL
JUSTICE SYSTEM?
- 4 February 2020
Editor: Penny Pepperell
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ISSN 0110-5655
LETTER
A weekly review of administration, legislation & law
Today, we have much more information about the causes of offending but,
despite much hand-wringing, remain unwilling to allow our politicians to
commit the sort of resources necessary to make a difference. We cling to
the ideal of personal peace and affluence despite it becoming more
elusive for most. Another discussion paper in a series looking at why
New Zealand has a high incarceration rate has been released by the
Office of the Prime Minister's Chief Science Advisor (www.pmcsa.ac.nz).
The report, What were they thinking? A discussion paper on brain and
behaviour in relation to the justice system in New Zealand (29/1/2020,
73 pp) is authored by Dr Ian Lambie, Chief Science Advisor to the
Justice Sector and Professor in Clinical Psychology at the University of
Auckland.
The paper presents the case that those suffering brain injuries are
over-represented in the criminal justice system as both victims and
perpetrators. As the Prime Minister's Chief Science Advisor Professor
Juliet Gerrard says in her foreword, the title to the paper "captures
the enormous challenge faced by those in the criminal justice system in
deciphering the difference between those who won't cooperate, and those
who simply can't." Dr Lambie emphasises at the outset that "brain and
behaviour" issues are those resulting from brain injuries or brain
differences, and are sometimes called "neurological" rather than
"psychological". They are not mental illnesses like depression or
anxiety. It is noted however, that nearly all (91%) people in prison in
NZ have a lifetime diagnosable mental illness or substance-use disorder,
which can co-occur with brain and behaviour issues.
The paper discusses in detail brain and behaviour issues that may be
from birth, like fetal alcohol spectrum disorder (FASD), or from
incidents that happen at any age, like traumatic brain injury (TBI) (4
times higher in justice-involved men with more than one-third having
multiple severe TBIs, and almost all women in a NZ prison study had
multiple TBIs, at least one-quarter from parent or partner assaults),
attention-deficit/hyperactivity disorder (ADHD), communication
difficulties (we have a justice system designed for those with good
verbal communication skills that the majority of offenders lack),
learning differences (dyslexia) and autism spectrum disorder (ASD). It
emphasises that having one (or more) of these conditions does not mean
justice involvement is inevitable but it "does help change the
discussion about how much an offender's behaviour is because they are
'bad' and just need more 'punishment to learn from.'" Brain and
behaviour issues, it continues, need evidence-based solutions, not
political ones. At present resources "are overwhelmingly directed to
prisons, rather than to cost-effective health, education and family
support that would prevent people ending up there. Early diagnosis and
intervention is essential but can also be affected by social
disadvantage and inequity such as lack of access to early childhood and
health services and lack of stable schooling among other things. This is
compounded by the way society disables people by inadequately taking
account of their culture and identity.
The paper asks "[H]ow 'just' is our justice system if you have any sort
of brain and behaviour issue? Is the justice system designed to work for
those who end up having to use it, or for those who design it (which may
also mean to suit the politics and ideologies of the day)?"
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THE COURTS LETTER

CONTRACT In CREATIVE DEVELOPMENT SOLUTIONS LTD v CHORUS NEW ZEALAND LTD [2019]
- NON-DISCLOSURE NZHC 2959 per Dobson J (13/11/2019) the HC, in a liability only
AGREEMENT judgment, rejected a claim by Creative (provider of telecommunications
- BREACH services to Marlborough District Council (MDC), including proposals for
- USE OF CONFIDENTIAL UFB in remote parts of the region - its "Smart Services Initiative"
INFORMATION IN (SSI) initiative) that Chorus has made use of the confidential
BIDDING PROCESS information in a non-disclosure agreement (NDA) between the parties when
- FIDUCIARY DUTY competing in a bidding process for funding. The HC rejected Creative's
- CLAIMS REJECTED claim of breach of fiduciary duty. None of the relevant indicia of the
assumption of fiduciary duty obligations (Chirnside v Fay [2006] NZSC
68) arose in the dealings between the parties. Creative, for itself, and
MDC, approached Chorus as a potential supplier of infrastructure assets
to enable an expanded UFB service in the region. Throughout exchanges
Creative deliberately kept Chorus at arm's length and the relationship
was quite different from one where the parties depended and trusted the
other, as would develop in a joint venture or in certain forms of
partnership. The terms of the NDA included a relationship disclaimer
that negated the implied existence of any form of partnership or joint
venture. On the second cause of action alleging breach of the NDA, the
HC accepted evidence for Chorus that the so-called innovative
technologies that Creative perceived its confidential information to
reflect, were not news to Chorus and much of the information fell
outside the definition of confidential information in the NDA. On the
real issue of material use of confidential information, the HC noted
that it would be sufficient if it found that Chorus took material
advantage from exposure to the confidential information and used it as a
springboard to advance its work in a way it could not have done at the
time, without undertaking further work of its own (Aquaculture Corp v NZ
Green Mussel Co (1985) 5 IPR 353 (HC)). On its assessment of the
evidence, the HC found no breach made out. "In a minor incremental way,
Chorus used work it undertook in dealing with Creative as an influence
on the evolution of its own thinking and its mode of dealing with CIP"
(Crown Infrastructure Partners). But "the inarguably dominant influences
on that evolution in thinking were independent of any use of Creative's
confidential information." On the third cause, the HC held that the
existence of, and reliance on the NDA, excluded any cause of action
based on equitable duty of confidentiality. On the claim in estoppel,
the HC found there was a representation that Chorus would not compete
with Creative in terms sufficiently clear to found an estoppel and
arising in circumstances where it was reasonable for Creative to rely on
it but Creative was unable to point to any material detriment from
reliance on the representation. In concluding that each party should
bear its own costs, the HC held that the "misleadingly flattering tone
of approval of Creative's intellectual property throughout a period when
Chorus's genuine view was negative and dismissive [was] a most unusual
dynamic" that it treated as dominating the competing positions on costs,
given the outcome. (243 paras)

CRIMES In MEHROK v R [2019] NZCA 663 per Courtney, Duffy and Woolford JJ
- MURDER OF INFANT (19/12/2019) M appealed successfully from conviction for the murder of a
- MURDEROUS INTENT 14 week old baby, where the central issue at trial was murderous intent,
- NO DIRECTION ON KEY on the ground a miscarriage of justice resulted from a lack of direction
EVIDENCE FROM 5 in respect of the reliability of the key witness (T, a 5 year old) whose
YEAR OLD evidence was regarded as key to the defence as it suggested the skull
fracture resulted from a single impact rather than multiple impacts that
would suggest murderous intent. The CA held that the significance of the
lack of direction became more apparent in light of the way the Judge
directed on inference and expert evidence. An appropriate direction
would have involved explaining that a child is equally capable of
reliable recall as an adult, however the accuracy of statements given by
very young children can be influenced by the way they are questioned and
for that reason the law allows the judge to give the jury specific
assistance in relation to the evidence of children under six; specific
directions given in accordance with the Evidence Regulations 2007, s 49
in relation to T's evidential video interviews made when he was 5;
43 TCL 3 2
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an explanation of the presence and purpose of a communications

assistant; and T's evidence should have been summarised and its
significance to the defence case explained. A retrial was ordered.
(85 paras) NB: Publication restrictions

CRIMES In KUMAR v R [2019] NZCA 669 per Courtney, Brewer and Gendall JJ
- RAPE (19/12/2019) K's conviction for rape (acquitted on three other sexual
- COUNSEL FAILURE TO offending charges relating to the same complainant) was quashed. Here,
CROSS-EXAMINE where trial counsel failed to cross-examine the complainant (who
COMPLAINANT ON "WAS suffered from schizophrenia and had not been taking her medication)
IT A DREAM"? about her comment that she "was not sure it was a dream that she was
COMMENT raped", the CA was satisfied there was a real risk the trial outcome was
affected (the case substantially turning on the complainant's
reliability). (49 paras) NB: Publication restrictions

CRIMINAL PROCEDURE In R v T [2019] NZHC 3027 per Gwyn J (20/11/2019) dismissal of a charge
- DISMISSAL OF CHARGE of manslaughter (assault of deceased causing death) sought under the
PRIOR TO VERDICT Criminal Procedure Act 11, s 147 at the end of the Crown case was
REFUSED refused. The HC held that the mechanisms of assault that might have
- MANSLAUGHTER caused the primary injury posited by a Crown expert witness had not been
excluded in evidence and to the extent the Crown evidence is
inconsistent, that is a jury matter. (24 paras)
NB: Publication restrictions

CRIMINAL PROCEDURE In STANDFAST v R [2019] NZCA 666 per Courtney, Brewer and Gendall JJ
- NAME SUPPRESSION (19/12/2019) S, a member of the Gloriavale Christian Community who
REFUSAL pleaded guilty to one charge of sexual conduct with a child under 12
- UNFAIR PREJUDICE years, appealed unsuccessfully from refusal of continuing name
AGAINST ANOTHER suppression following disposition of sexual charges against another
GLORIVALE MEMBER member of Gloriavale (AB, whose trial was aborted), arguing that
FACING RETRIAL ON continued publication of his name and connection to Gloriavale would
SIMILAR SEXUAL prejudice AB's fair retrial rights. The CA held that although the Judge
CHARGES made errors in her assessment of whether the Criminal Procedure Act
2011, s 200(2)(d) threshold had been met (consideration directed towards
the effect of the existing adverse publicity about Gloriavale rather
than the effect publication of new information about S might have in
reinforcing the prejudicial effect of existing coverage), the outcome
was correct. The addition of S's offending to information already
available is unlikely to cause unfair prejudice to AB that could not be
adequately addressed by tailored directions from the trial judge.
(40 paras)

CRIMINAL PROCEDURE In B v R [2019] NZCA 673 per Cooper, Lang and Mander JJ (19/12/2019)
- SEVERANCE REFUSAL three appellants, charged with sexual offending against two complainants
- THREE ACCUSED OF arising from two separate incidents, unsuccessfully appealed a pre-trial
SEXUAL OFFENDING judgment refusing severance into two separate trials, Criminal Procedure
AGAINST TWO Act 2011, s 138(1). The CA was satisfied the evidence of the two
COMPLAINANTS complainants is cross-admissible against B (charged with offending
- EVIDENCE against both complainants) as propensity evidence, Evidence Act 2006, s
- PROPENSITY 40 (substantial degree of similarity). To the extent the evidence
- CROSS-ADMISSIBILITY relating to the alleged spiking of one complainant's drink involves
- NAME SUPPRESSION speculation and/or hearsay it should not be put to the jury but this
REFUSAL OVERTURNED does not detract from the properly admissible evidence and tailored
- SUDANESE-ISLAMIC directions would ensure no unfairness. The CA overturned name
CULTURAL CONCEPTS suppression refusal for B pending determination of the charges. There
was evidence of a real risk of irreversible damage to B's family's
reputation even if B is found not guilty (s 200(2)(a)), given the
context of Sudanese-Islamic cultural concepts. (66 paras)
NB: Publication restrictions

DEFAMATION In SLATER v BLOMFIELD [2019] NZCA 664 per French, Miller and Stevens JJ
- COSTS FOLLOWING (19/12/2019) B was unsuccessful in his application for indemnity costs
ABANDONMENT OF following abandonment by S and his company (in liq) of their appeal from
DEFENDANTS' APPEAL defamation findings against them. The CA held that indemnity costs were
- INDEMNITY REFUSED not justified. It was difficult to assess how great an impact a stroke
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- SLATER V BLOMFIELD suffered by S would have had on delays and findings of vexatious conduct
were not justified. Increased costs were justified and an overall award
of $10,000 costs made. (27 paras)

DEFAMATION In CATO v MANAIA MEDIA LIMITED [2019] NZCA 661 per Wild, Whata and Katz
- DEFAMATORY MEANING JJ (18/12/2019) C appealed successfully from the HC decision, [2019]
- STRUCK OUT NZHC 440, 42 TCL 14/4, that two of the pleaded defamatory meanings (in
IMPUTATIONS an article in Horse & Pony magazine investigating complaints to
REINSTATED Equestrian Sports NZ (ESNZ)), in the statement of claim were not
available. C, a barrister acting for complainants before the ESNZ,
claimed the article was capable of bearing the pleaded "conflict of
interest" defamatory meanings (that C did not release the ESNZ endorsed
settlement statement to Horse & Pony but rather to other publications,
including one controlled by C's mother). The CA held that the judge
erred in attributing to ordinary reasonable readers knowledge that the
participants in the mediation knew of available equestrian publications
and knew which ones would most effectively distribute the statement they
had agreed to make; and that lawyers are bound to act on a client's
instructions. The HC also did not adequately factor in the tone of the
article as a whole (putting smoke in the air, suggesting there is also a
fire). The pleadings were reinstated. (43 paras)

EVIDENCE In LYNN v R [2019] NZCA 656 per Kos P, Duffy and Woolford JJ
- ADMISSIBILITY (18/12/2019) L (diagnosed with ADHD and bipolar disorder) was partly
- POLICE DVD successful in challenging a pre-trial ruling admitting L's DVD interview
INTERVIEW in his forthcoming trial for arson, burglary and other offending. The CA
- PRACTICE NOTE found breach of the Chief Justice's Practice Note on Police Questioning
BREACH in a portion of the lengthy interview that amounted to
- CROSS-EXAMINATION "cross-examination" in terms of r 3. The interviewer used the words
"explain that" 19 times and "can you explain that" 4 times in those 16
pages (but did not use those words again in the remaining 116 pages of
transcript). The persistent use of the words suggested there was some
sort of onus on L to give an explanation, which is inconsistent with his
right to silence. The officer also referred to hearsay statements,
accused L of lying, and knew of L's mental health issues. The offending
portion of the interview was ruled inadmissible and not saved by the
Evidence Act 2006, s 30(2), because although there was nothing to
suggest the impropriety was deliberate or intentional, a serious right
had been breached, "albeit by a modest intrusion", that warranted
exclusion. (55 paras) NB: Publication restrictions

EVIDENCE In FRASER v R [2019] NZCA 662 per Wild, Whata and Katz JJ (18/12/2019)
- ADMISSIBLE the CA refused F's appeal from a pre-trial ruling allowing the Crown's
- ADMISSIONS TO application to admit at F's trial for rape of two women, evidence of F's
ANOTHER SEXUAL conversations and text messages containing some admissions to another
COMPLAINANT complainant (HE) whose trial was severed from the others and where F was
(ACQUITTAL AT subsequently acquitted (Evidence Act 2006, s 27, defendant's statements
SEVERED TRIAL) offered by prosecution), and propensity evidence (ss 40 and 43) from HE
- PROPENSITY of his choking her during sexual intercourse. The significant probative
value of the evidence outweighed any unfair prejudicial effect.
(38 paras) NB: Publication restrictions

EVIDENCE In R v LE BRETON [2019] NZHC 3016 per Dunningham J (19/11/2019) the

- ADMISSIBLE Crown appealed successfully from the DC decision to exclude evidence of
- ORIGINAL LOST DUE L's fingerprint on a demand note (L charged with aggravated robbery of a
TO ADMINISTRATIVE bank) in circumstances where the original demand note had been lost due
ERROR to an administrative error and was unavailable for examination by
defence. The HC held that the appeal fell to be determined under the
Criminal Procedure Act 2011, s 215(2)(a) (right of appeal against
certain pre-trial evidential decisions in Judge-alone case - refusing to
make an order under s 79 as to the admissibility of evidence), rather
than s 296 (no jurisdiction). The HC held that the loss of the original
demand note does not compromise L's right to offer an effective defence
and thus his fair trial rights. The availability of the original could
not explain L's fingerprint on the bank counter; the suggestion others
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may have touched the note can still be made; and there is no basis
for suggesting the original is required to undertake a handwriting
analysis that would assist the defence. (47 paras)

EVIDENCE In HAUNUI v R [2019] NZCA 679, 19/12/2019, Clifford, Ellis and Peters JJ
- HEARSAY (19/12/2019) the CA dismissed H's appeal against conviction for
- TEXTS possession of methamphetamine for supply, holding that although the HC
- INADMISSIBILITY finding that texts from H's then partner E, were hearsay statements
RULING IN ERROR BUT (Evidence Act, s 4) and inadmissible as E was not to be called as a
TRIAL OUTCOME NOT witness, was in error, there was no real risk the outcome of the trial
AFFECTED was affected (joint possession was a realistic possibility even though E
had not been charged and the texts would not have exculpated H). 54
paras)

FAIR TRADING In COMMERCE COMMISSION v HOME DIRECT LIMITED [2019] NZHC 2943 per Muir J
- STANDARD FORM 12/11/2019) the Commission was granted a declaration that the terms in
CONSUMER CONTRACT Home Direct (NZ's largest mobile goods trader)'s standard form consumer
- UNFAIR CONTRACT contract were unfair, Fair Trading Act 1986, s 461 (the first case to be
TERMS determined under this new section). HDL sells goods on credit by way of
- UNFAIRNESS TEST, a credit facility "Lifestyle Account" that provides for regular weekly
- DECLARATION or fortnightly debits from a consumer's bank account, charging interest
- MOBILE GOOD TRADER (currently 25.5%) and monthly account management fees. During the
relevant period HDL had a "Voucher Entitlement Scheme under which, when
a customer repaid what was owing, HDL continued to debit regular amounts
that were converted into a separate "voucher entitlement". This could
only be used for HDL purchases, could not be refunded and expired after
12 months. The combined effect of the terms was that in total $544,000
was forfeited over several years of the Scheme's operation. HDL accepted
that in combination the terms were unfair in terms of s 46L(1) and
consent to the declarations sought, but in terms of s 46I a declaration
can only be made if the HC itself is satisfied in respect of the
statutory criteria in s 46I(2). The HC discussed the "broadly analogous"
Australian case of Chrisco Hampers [2015] FCA 1204, and other Australian
cases providing guidance on application of the unfairness test. It set
out the emerging principles. The HC was satisfied that the No Refunds
and 12-month Expiry Terms operating together amounted to unfair contract
terms causing a imbalance in the parties' rights and obligations, s
46L(1)(a), and providing no corresponding benefit to customers. The
terms were not reasonably necessary to protect HDL's legitimate
interests, s 46L(3); would cause detriment if applied, enforced or
relied on; were not transparent; and unfair taking into account
the contract as a whole. (63 paras)

NZ BILL OF RIGHTS In CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS v CHISNALL [2019] NZHC

- DECLARATION OF 3126 per Whata J (28/11/2019) the HC refused to make declarations of
INCONSISTENCY inconsistency except on one part of one of six declarations sought
- PAROLE, PUBLIC relating to the public protection and extended supervision regimes
SAFETY (PUBLIC established under (respectively) the Public Safety (Public Protection
PROTECTION) Orders) Act 2014, s 13, and the Parole Act 2002, s 107I. The HC held
- PUBLIC PROTECTION, that an extended supervision order was a penalty, so that every
EXTENDED retrospective application of the Parole Act 2002, s 107I(2) was
SUPERVISION ORDERS inconsistent with the NZ Bill of Rights Act 1990, s 26(2). The HC
- RETROSPECTIVE dismissed the argument for C that the bar to retrospective penalties
APPLICATION affirmed by ss 25(g) and 26(2) was impregnable and unable to be
- JUDICIAL REVIEW derogated from (such a position was irreconcilable with the plain
meaning and effect of NZBORA s 5; approach to interpretation of NZBORA
in Hansen [2007] NZSC 7, 30 TCL 6/1 & 7/6 set out; the ESO regime
was punitive and intentionally retrospective - Belcher [2007] 1 NZLR 507
(CA), 29 TCL 36/5, and Belcher (No 2) [2007] NZCA 174, 30 TCL 17/4, set
out and applied save as to lack of jurisdiction to make a declaration of
inconsistency), Ilseher v Germany [2018] ECHR 991 and R v KRJ [2016] 1
SCR 906, discussed. The CA set out and applied seven factors bearing on
whether a measure was a penalty: relationship to conviction, sentencing
and degree of limitation of subject's freedom, purpose of regime,
application of criminal procedure, potentiality of resulting in
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imprisonment or taking place in a prison or equivalent, non-therapeutic

character, severity of conditions of measure. A declaration of
inconsistency as to the retrospective effect of the ESO regime should be
made. So far as prospective ESOs were concerned, whether any order was a
justified restriction of NZBORA rights required case-by-case
determination. Applying the same approach as was taken to ESOs, the HC
concluded that a public protection order was not, as such, a penalty,
but some elements did "appear to be punitive" (prospect of imprisonment
at any time without further offending held to be disproportionate). If,
contrary to that determination, a PPO was punitive, then it would not be
a reasonably justifiable restriction on NZBORA rights. Whether any other
application of either of the regimes would be inconsistent with NZBORA
would depend on the circumstances of the individual case. (163 paras)

NZ BILL OF RIGHTS In NGĀTI MUTUNGA O WHAREKAURI ASSET HOLDING CO LTD v ATTORNEY-GENERAL

- SEIZURE OF PROPERTY [2020] NZCA 2 per Brown, Gilbert and Williams JJ (29/1/2020) the CA
- FREEDOM OF MOVEMENT dismissed NM's appeal (and struck out the claim before the HC) from the
- CULTURE HC decision Te Ohu Kai Moana [2016] NZHC 1798, [2016] NZAR 1169, 39 TCL
- NATURAL JUSTICE 34/4. That judgment had held that (1) the claim that the Kermadec Ocean
- PARLIAMENTARY Sanctuary Bill would, if enacted, be inconsistent with the Maori
PRIVILEGE Fisheries Settlement Act 1992 and confiscate iwi rights to quota in the
- SCOPE area of the sanctuary, was a challenge to the legality of the
- TREATY OF WAITANGI prospective Act and was impermissible, but (2) this did not prevent the
- PRINCIPLES HC considering related issues, however (3) as there was no application
- BREACH to sever impermissible from permissible issues the entire proceeding
- MAORI FISHERIES should be stayed. NM submitted before the CA that the Bill, if enacted,
SETTLEMENT would be an unreasonable seizure of their property (NZBORA, s 21),
- INCONSISTENCY breach their rights to freedom of movement (NZBORA, s 18), culture
- INDIGENOUS RIGHTS (NZBORA, s 20), and natural justice (NZBORA s 27(1)), breach the
- FIDUCIARY DUTY principles of the Treaty of Waitangi, the Crown's fiduciary duty to
- GOOD FAITH Maori and duty to act in good faith, and the Māori Fisheries Settlement
- INTERNATIONAL LAW Act, undermine the quota management system, and would be inconsistent
- CONSISTENCY with the UN Declaration of the Rights of Indigenous Peoples, and the UN
Convention on the Law of the Sea. The CA held that "on any reading" of
the Parliamentary Privilege Act 2014 the courts did not have
jurisdiction to make declarations of inconsistency between NZBORA or any
other rights and Bills before the House of Representatives. The effect
of s 11 of the 2014 Act was that "no court may receive evidence,
statements, submissions, or comments concerning proceedings in
Parliament for the purpose of engaging with the truth, motive,
intention, or good faith of any aspect of those proceedings; or with the
credibility, motive, intention or good faith of any person connected
with them; or to draw any conclusions from them; or to prove or
disprove any fact in order to establish liability; or to support or
resist any judgment or relief." The preparation of and introduction into
the House of a Bill was a "proceeding in Parliament" (s 10). "[N]o court
may receive evidence or hear submissions about a bill intended to (a)
question the intention of a Bill or any person associated with it;
or (b) invite the drawing of any inference about the meaning or effect
of such Bill; or (c) seek some form of relief in respect of the
Bill." The proceeding as drafted breached all three heads in the
preceding sentence (Ngāti Whātua Ōrākei [2018] NZSC 84, [2019] 1 NZLR
116, 41 TCL 11/4, Thompson [2005] 2 NZLR 9 (CA), 27 TCL 23/1 & 5, and
Boscawen [2009] NZCA 12, [2009] 2 NZLR 229, 32 YCL 6/8, discussed and
interpreted). Courts "may declare rights, and these may relate to the
rights-consistency of government action, or even proposed government
action. But they may not relate to the rights-consistency of proposed
legislation." Comity between Parliament and Courts (2014 Act, s 4(1)(b))
requires a court to determine the rights of litigants even though a Bill
before Parliament may, if enacted in current form, alter those rights
(Willow Wren Canal [1956] 1 WLR 213 (Ch), Fitzgerald v Muldoon
(interlocutory judgment) SC Wellington A118/76, 19/5/1976, adopted).
NM's proposed amended statement of claim moving from the KOS Bill to
prior ministerial action did not cure the defects in the original
statement of claim and introduced a new defect (the PM did not purport
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to ban commercial fishing in the Kermadec area but foreshadowed the

introduction of legislation to do so: Fitzgerald [1976] 2 NZLR 615
distinguished, Te Runanga O Wharekauri Rēkohu [1993] 2 NZLR 301 (CA), 15
TCL 43/1, adopted). (48 paras)

PROCEDURE HYNDMAN v WALKER [2019] NZHC 3021 per Thomas J (20/11/2019) is the costs
- COSTS decision following an unsuccessful claim by H (associate of David
- BREACH OF Henderson - see below) against liquidator W for misuse of private
CONFIDENCE CLAIMS information obtained from a laptop, [2019] NZHC 2188. The HC awarded W
AGAINST LIQUIDATOR costs on a 2B basis and increased, but less than sought due to the merit
UNSUCCESSFUL of submissions on both sides. H had refused a reasonable settlement
offer pre-trial but W's failure to admit responsibility for distribution
of private information contributed to trial length. H was ordered to pay
W increased costs of $38,264 and disbursements of $2,007. (18 paras)

PROCEDURE HENDERSON v WALKER [2019] NZHC 3020 per Thomas J (20/11/2019) is the
- COSTS costs decision following H's successful claim against liquidator W for
- LIQUIDATOR'S BREACH breach of confidence and invasion of privacy, [2019] NZHC 2184, 42 TCL
OF CONFIDENCE AND 34/1. The HC noted that Calderbank offers exceeded the amount obtained
INVASION OF PRIVACY by H ($5,000) but H did not act unreasonably in refusing the offers
- HENDERSON where he sought a declaration and W was only prepared to offer an
acknowledgement of a minor aspect of breach of privacy and subject to a
confidentiality provision. It also noted that privacy is still a new
tort in NZ and "it would be unfortunate if development of the law in
this area were hindered by punitive costs awards against claimants". The
HC held no entitlement to increased costs due to the Calderbank offers
and reduced costs to reflect H's failures on alternative causes, with
further reductions for H's self-representation at times and
non-compliance with timetabling orders. W was ordered to pay $31,987
costs and disbursements of $15,431. (30 paras)

PROCEDURE YINGLING v GIFFORD (COSTS) [2019] NZHC 3111 per Churchman J

- COSTS (27/11/2019), a judgment on wasted costs where indemnity costs plus a
- WASTED COSTS 50% uplift had been claimed, may be noted for rejection of G's rationale
that, because leave had been granted to amend the statement of claim,
G's entire (and completed) preparation for trial on the then existing
statement of claim was wasted: "The award of costs [after a fixture is
vacated] are usually related to the component of costs that ... will
have to be incurred all over again in ... preparation for the new
fixture." $2,000 was awarded not the $17,925 plus uplift claimed.
(18 paras)

PROCEDURE In RUOCCO v RUOCCO [2019] NZHC 2758 per Johnston AJ (29/10/2019), an

- DEBARRING COUNSEL intra-family dispute concerning administration of a family trust, the HC
- EVIDENTIAL has determined four interlocutory applications. The application to debar
INCONSISTENCY lawyer (C) from appearing for plaintiff/applicant (LR) may be noted for
- WITNESS LIKELY BE two points. First, is the submission for the trustees that C had advised
"UNCOMFORTABLE" LR at an early stage of the current proceeding, despite C's assurance to
the HC that he had not, based on LR's affidavit that LR had told his
father that he had consulted C. The HC accepted C's assurance (LR's
evidence was not a direct contradiction of C's assurance; speculation
why LR would have told his father that he had consulted C, when he had
not, "would be unhelpful"). The second was dismissal of the trustees'
submission that C should be debarred because, during a meeting between
C, (now) trustee LR, and a fisheries prosecutor concerning the family
fishing company, LR had become agitated and C calmed him down (that LR
thought he would be uncomfortable being cross-examined by C because C
could draw on that event (a single incident of the sort described was
unlikely to be of any assistance in respect of a quite distinct dispute
many years later). The other three applications are not noteworthy.
(92 paras)

PROCEDURE In WRIGHT v THE ATTORNEY-GENERAL [2019] NZHC 3046 per Gault J

- SECURITY FOR COSTS (21/11/2019) the HC refused an application by the A-G and Auckland DHB
- REFUSED for judicial review of an AJ's refusal to grant the A-G security for
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ATTORNEY-GENERAL costs in respect of W's civil proceedings claiming unlawful arrests and
- NZ BILL OF RIGHTS detention and breach of NZ Bill of Rights Act 1990, [2019] NZHC 59, 42
LITIGANT TCL 11/6. The HC noted that it was common ground that W will be unable
to pay any costs ordered and an order would prevent the claim
proceeding. The issue was whether ordering security was just in all the
circumstances. The HC agreed with the AJ that, while the Crown and
government agencies are entitled to apply for costs in the same way as
other litigants, there is a different approach to costs in cases under
the NZBORA. It did not characterise W's arguable claims as having little
chance of success, unmeritorious or unjustified, and was conscious of
the NZBORA context. Access to the courts of a genuine plaintiff is not
lightly to be denied and the way here was not to prevent the claim
through an order for security but active management towards resolution
or hearing. (59 paras)

PROCEDURE In TAYLOR v ASTERON LIFE LTD [2019] NZCA 683 per Kōs P, Cooper and
- STAY OF EXECUTION Collins JJ (20/12/2019) the CA refused stay of execution of the HC
REFUSED judgment, [2019] NZHC 978, 42 TCL 20/2, and subsequent costs judgment,
- FAILED INCOME [2019] NZHC 1489, dismissing T's claims for a declaration of entitlement
PROTECTION to continuing benefits under an income protection insurance policy and
INSURANCE CLAIM for arrears, and allowing the insurer's counterclaim that T had breached
his obligation of good faith (working while receiving payments). T is
currently attempting to stave off bankruptcy proceedings against him by
Asteron. The CA was satisfied that in the absence of security the
overall balance of convenience favours refusal of the application.
(34 paras)

PROPERTY LAW In BARRY PARK INVESTMENTS LTD v JOHNSON [2019] NZCA 686 per Gilbert,
- ENCROACHMENT Dobson and Whata JJ (23/12/2019) the CA upheld the HC finding, [2019]
- 1880S BOUNDARY WALL NZHC 596, 42 TCL 15/9, that an encroaching boundary wall built in the
- APPEAL PARTLY 1880s, is a wrongly placed structure, Property Law Act 2007, s 321(a),
ALLOWED IN RESPECT and to the extent of its encroachment into J's access way (preventing
OF RELIEF them obtaining consent for a planned property development), amounted to
an actionable trespass at common law. The CA agreed with the HC that the
most likely intention of those constructing the wall was to provide a
level building platform for the house on the appellant (B's) property,
not a boundary wall, and the definition in s 321(a) applied. The CA
partly allowed B's appeal in respect of relief. The CA noted that the
scope of the remedies available under the Act are extensive (ss 324 and
325) and considered that given the remedial purposes of these
provisions, the legislature intended there to be a relatively low
threshold for consideration of relief once the existence of a wrongly
placed structure was established. The constraint in s 325 is that such
relief must be just and equitable. Here, the effect of the HC orders
would be to require B to bear all of the substantial costs of removing
the encroachment, except part of the costs incurred in removing the
natural outcrops of basalt that occurred along that line, plus an
allowance for betterment. It listed the following considerations
influencing what is just and equitable terms for removal of the
encroachment: the encroachment has existed for 130 years; no predecessor
in title to the Js property has ever taken issue with the
encroachment; the predecessor should have been put on notice as to
the encroachment when the survey for the subdivision was undertaken in
1957 when the encroachment could have been mitigated for a modest
cost; the opportunity arose before B purchased his property and
neither of the current owners can be attributed with responsibility for
the encroachment; and on the present state of affairs, the Js will
be substantially advantaged by removal of the encroachment, but the
remedial work will be disruptive for B and will not enhance the present
value of his property. In light of these factors, the CA found the HC's
formula did not achieve a just and equitable outcome. The appeal was
allowed to the extent of altering the financial responsibility for the
works that will be needed. The Js are to be liable for the cost of
removal of parts of the encroachment that were naturally occuring prior
to construction of the wall and to contribute to the overall costs to
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the extent they achieve betterment in the improved nature of the

accessway, with remaining costs to be divided equally between the
parties. (98 paras)

RESERVES In KAMO v MINISTER OF CONSERVATION [2020] NZCA 1 per Gilbert, Williams

- LAND VESTING and Courtney JJ (29/1/2020) the CA dismissed the appeal by K and others
- NZ BILL OF RIGHTS (who were the trustees of the Ngāti Mutunga O Wharekauri Iwi Trust) from
- CULTURE the HC decision [2019] NZHC 1983, [2019] NZAR 1334, which had refused to
- PROPERTY grant declarations to the effect that the MoC should have vested (under
- FREE MOVEMENT Reserves Act 1977, s 26) certain land on Wharekauri/Rēkohu (the Māori
- TREATY OF WAITANGI and Moriori names respectively for the Chatham Islands) in NMT, not
- INTER-IWI DISPUTE Horotehi Moriori Trust: NMT had not established that they not HMT had
- MANA WHENUA mana whenua of the land in question. The judgment started with a summary
- CROWN INTERVENTION of the history since the 1830s of Wharekauri/Rēkohu and a description of
the land in question, its significance to Moriori and its occupation
over the years. The CA found NMT's argument (new in the CA) on
Treaty/NZBORA rights difficult to follow but deduced that it was that
NM's mana whenua and Treaty rights were property protected by the NZ
Bill of Rights Act 1990, s 21. So understood, the CA held, agreeing with
the HC, that this was not a case in which declarations should be made.
The foundation of NM's case (its mana whenua) was in dispute and, while
declarations can be made where facts are disputed (Woolf, "The
Declaratory Judgment" (4th ed) at [3-38], Ambrose [2012] NZAR 23 (HC),
34 TCL 48/4) this was inappropriate where (1) the factual dispute went
to the heart of NM's case and (2) the tikanga and law could not be
determined without first determining the factual issues (Ambrose,
Pouwhare 32 TL 28/2, R v Sloan [1990] 1 NZLR 747 (HC); it was "not
necessarily inherent" in vesting the reserve that NM's mana whenua -
assuming that it had mana whenua - would be defeated). The proceeding
was therefore premature. The judgment should be noted for the discussion
of mana whenua (the reasons were written by Williams J) including the
propositions that mana whenua "is not frozen in time. It is a living
principle of tikanga. [In Wharekauri/Rēkohu it] might come to be shared,
or it might merge in the name of a new shared ancestor." Such questions
could not be determined on the basis of untested affidavit evidence on
an application for a declaration. On the NZBORA s 21 argument, the CA
held that neither mana whenua nor Treaty rights were "property" [scil,
in terms of s 21]. Mana whenua is "a phrase used to convey the idea of
traditional authority over land and its associated resources", which was
not property in the classical western sense of "something possessed in
its entirety, expended, alienated, or rights in it subdivided."
Customary title primarily depended on descent from the ancestor with the
best right (take tipuna), in tikanga Māori a hapū can have mana whenua
in respect of resources that 'belong' to others" (example given). "This
is possible because mana whenua is the right to speak for the land. It
is not title and it is not a property right, although, to be fair, the
two are often co-located in a single kin group. Second, NM's Treaty
relationship with the Crown is just that: a relationship. It is not
property, even if at times it can become transactional." The points made
about mana whenua and NZBORA, s 21, apply equally to NM's argument about
breach of its NZBORA, s 20, right to culture. Since NM's access to the
relevant land is secured by the land's status as a reserve, though the
exact terms are not yet known as the land has not been vested under the
Reserves Act yet and no management plan has been prepared and approved,
it would be "pre-emptive" to conclude that NM's freedom of movement in
respect of the land has been lost. The same applied to NM's argument
that any proposed vesting breached NM's Treaty rights. (40 paras)

SENTENCING In L (CA719/2017) v R [2019] NZCA 675 per Cooper, Winkelmann and

- ILL-TREATMENT OF Williams JJ (19/12/2019) the CA reduced a sentence imposed on L for the
YOUNG CHILDREN ill-treatment of her two young children by giving false details of their
- FACTITIOUS DISORDER health status to doctors and administering drugs prescribed for
(FDIA) contrived illnesses (L suffering from factitious disorder imposed upon
- 50% DISCOUNT TO another (FDIA)) from seven years one month imprisonment to 4 years
RECOGNISE DISORDER imprisonment. The sentencer had reduced the starting point of 10 years 3
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LI 2020/1 The INFECTIOUS AND NOTIFIABLE DISEASES ORDER 2020 amends the Health Act
1956 by adding the novel coronavirus to the list of infectious diseases
notifiable to a medical officer of health in Section B of Part 1 of
Schedule 1 of that Act. The novel coronavirus is an infectious agent
causing flu-like symptoms that first came to official notice in Wuhan,
China in December 2019. Commenced on 30/1/2020.

COURTS (CONTINUED)
months by 30% to account for the FDIA and further evidence was allowed
on appeal relating to the little support for L in prison, serious
assaults on her, and L's responsiveness to clinical support when
available. The CA held that a full 50% discount was justified to
recognise FDIA as structurally responsible for the offending, and a
further 20% for L's difficulties in prison and responsiveness to
treatment. (75 paras) NB: Publication restrictions

SENTENCING In O'CARROLL v R [2019] NZCA 657 per Courtney, Duffy and Wylie JJ
- OFFENDING IN THE (17/12/2019) C, a New Zealander who committed a sexual offence while in
COOK ISLANDS the Cook Islands and was charged in NZ under Cook Islands law, sought to
- TRIED IN NZ appeal a sentence of 22 months imprisonment imposed by the HC of NZ
- NO JURISDICTION TO under Cook Islands law. After an extensive discussion, the CA held that
HEAR APPEAL it did not have jurisdiction to hear such an appeal under Cook Islands
Act 1915, s 155(1), that deals with the HC's jurisdiction over persons
who could have been tried in the Cook Islands but instead are being
tried in NZ. The CA commented that now that the Cook Islands have become
self-governing, s 155 is in respects an anachronism but it remains in
place. This is an unsatisfactory situation for C who has no right of
appeal and urgent legislative amendment was suggested. The CA also noted
that there is no sentence of home detention (as sought by O) in the Cook
Islands Appeal. (45 paras)

SUMMARY OFFENCES In MATCHES v NZ POLICE [2019] NZHC 3029 per Gordon J (20/11/2019) M was
- STOPPING A PERSON unsuccessful in appealing his conviction for stopping another person (a
(A DCJ) IN A PUBLIC DCJ) in a public place (near the Auckland DC and FC building) with
PLACE WITH INTENT intent to frighten him, Summary Offences Act 1981, s 21(1)(e) (found not
TO FRIGHTEN guilty on another charge of assaulting a different DCJ on another date
- BIAS OF PRESIDING in the same place). The HC rejected the appeal ground alleging bias of
JUDGE REJECTED the presiding DCJ. The Judge clearly disclosed his relationship to the
informant judges, he had no close personal relationship with them, and a
fair minded and fully informed observer would not consider he had
brought an impartial mind because his wife was formerly a FCJ and is now
an acting FCJ. No apparent or actual bias was shown nor error in the
DCJ's assessment of the evidence. (59 paras)

WILLS In STEWART v TIMMS [2019] NZHC 2952 per Simon France J (12/11/2019) the
- VALID HC declared valid under the Wills Act 2007, s 14, a draft unsigned will
- PREPARED ON prepared on lawyer's instructions but remaining unsigned for 19 months
LAWYER'S despite several reminders. It found that the delay in signing did not
INSTRUCTIONS indicate any changed testamentary intentions by time of death, noting
- UNSIGNED FOR 19 that the deceased was struggling with who to appoint as executor and
MONTHS that he was a procrastinator and a man who worked long hours. The
- TESTAMENTARY respondent sisters had been made beneficiaries in an earlier 2006 will
INTENTIONS only if his then partner predeceased him (as she did) and this was again
the case when the deceased provided for a new partner in the 2017 draft
will. (43 paras)

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DISTRICT COURT The following have been appointed District Court Judges (bringing to 19
- JUDGE APPOINTMENTS the number of appointments announced since 21/1/2020): Keryn Broughton,
barrister of New Plymouth, to be based in Palmerston North; Dominic
Dravitzki, barrister and solicitor of Christchurch, to be based in
Timaru; Kevin Muir, barrister of Auckland, to be based in
Auckland; Denise Wallwork, barrister of Auckland, to be based on the
North Shore; and Peter Winter, barrister of Auckland, to be based in
Auckland. (Attorney-General David Parker, media release, 3/2/2020.)

ELECTORAL The 2020 General Election will be held on Saturday 19 September. The
- ELECTION DATE Government's intention is that the House will rise on Thursday, 6 August
2020 and Parliament will be dissolved on Wednesday, 12 August 2020. Writ
day will follow on Sunday, 16 August 2020, and nominations will close at
noon on Friday, 21 August 2020. Advance voting will start on Monday 7
September 2020. Subject to the passage of the Electoral Amendment Bill
currently before the House, the last day for the return of the writ will
be Thursday, 15 October 2020.(Prime Minister Jacinda Ardern, media
release, 28/1/2020.)

INFRASTRUCTURE The Government has announced a $12 billion New Zealand Upgrade Programme
- NEW PACKAGE to build and upgrade roads, rail, schools and hospitals. "The past
decade has seen significant underinvestment in crucial national
infrastructure. This has been a handbrake on our economy and society,
has led to lower productivity, aging and neglected schools and
hospitals, and caused congestion in our towns and cities." (Finance
Minister Grant Robertson, media statement, 29/1/2020.)

KAINGA-ORA HOMES AND The following have been appointed to the Kāinga-Ora Homes and
COMMUNITIES BOARD Communities Board from 1/1/2020: Vui Mark James Gosche of Auckland, as
- APPOINTMENTS Chairperson, to 30/9/2021; and the following as members until
31/12/2022; Dr Nicola Crauford of Wellington; Penelope Hulse of
Auckland; Victoria Kingi of Tauranga; Ngarimu Alan Huiroa Blair
of Auckland; and Robin Michael Hapi CNZM of Foxton. (NZ Gazette,
24/1/2020.)

MAORI DEVELOPMENT A new website, Tupu.nz, to empower whānau to achieve their aspirations
- NEW WEBSITE for Māori land has been launched. The "website was developed with Māori
- ASSISTING to help landowners navigate the complicated journey of whenua Māori
LANDOWNERS TO ownership." Tupu.nz is one part of the Government's Whenua Māori
NAVIGATE WHENUA Programme, jointly led by Te Puni Kōkiri and the Ministry of Justice to
MAORI OWNERSHIP help landowners build value and wellbeing for whānau through their
whenua. The website brings together comprehensive information on the 1.4
million hectares of freehold Māori land blocks, providing land profiles,
resources, case studies and on-line tools to support landowners with
their plans for their whenua. In a corresponding initiative, Te Puni
Kōkiri is investing in a new approach to providing on-the-ground support
in Te Tai Tokerau, Waiariki and Te Tairāwhiti to help whānau and trusts
access specialised services and build management and land use
capability. (Māori Development Minister Hon Nanaia Mahuta, media
release, 2/2/2020.)

MAORI DEVELOPMENT Proposed changes to the Local Government (Rating) Act 2002 will reduce
- RATING rating barriers for owners of Māori land who want to use and develop
- BARRIERS FOR MAORI their whenua. There is around 1.4 million hectares of Māori freehold
LAND OWNERS land and much of it is unused or under developed. Under the proposal,
- WRITING OFF ARREARS local authority Chief Executives will have the power to write off rates
arrears on all land (including general land) if they consider the rates
are unrecoverable, including rates arrears inherited from deceased
owners of Māori land. Most of the rates arrears on Māori freehold land
are on unused land and the majority of this is from non-payment of
penalties rather than the original rates bills. Most unused Māori land
will be made non-rateable, including Ngā Whenua Rāhui kawenata which is
Māori land that has been set aside for conservation purposes. This will
mean any rates arrears on unused or Ngā Whenua Rāhui kawenata will be
removed. "The changes will also put owners of homes on Māori land on the
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The House resumes on 11/2/2020.

SELECT COMMITTEES As at 3/2/2020, there remained time for submissions to be made on the
- BILL SUBMISSION following bills before select committees: International Crimes and
DATES International Criminal Court Amendment, Land Transport (Rail)
Legislation, Land Transport (NZTA) Legislation Amendment, 7/2/2020,
Racing Industry, 11/2/2020, Asia Pacific Economic Co-operation (APEC
2021), Protection for First Responders and Prison Officers, 12/2/2020,
Education and Training, Holidays (Bereavement Leave for Miscarriage)
Amendment (No 2), Urban Development, 14/2/2020, Secondary Legislation,
Taumata Arowai - the Water Services Regulator, 4/3/2020, and
Infrastructure Funding Financing, 5/3/2020.

GENERAL REVIEW (CONTINUED)

same footing as other home owners and retirement village residents when
it comes to accessing the rates rebate scheme." A bill to amend the
Local Government (Rating) Act 2002 is expected to be introduced in the
first half of 2020.(Local Government and Māori Development Minister
Nanaia Mahuta, media release, 2/2/2020.)

PRIVACY COMMISSIONER Privacy Commissioner John Edwards is seeking public input on allowing
- ACCESS TO LOCATION emergency services to access location information. The Commissioner is
INFORMATION BY proposing to extend the Emergency Caller Location Information service,
EMERGENCY SERVICES implemented in 2017, to enable emergency services to more quickly locate
- PUBLIC INPUT SOUGHT people at risk of harm but who have not made a call to 111. "I am
satisfied that these changes will help our emergency services and search
and rescue teams get to people more quickly, save more lives and reduce
cost to the taxpayer. However, unregulated, the proposed changes could
enable the locating of almost any individual in the country at any time.
While this is neither our intention, nor the intention of the agencies
permitted to use the system, the technology required to deliver the
extended system could be intrusive if misused. For this reason, I want
to be quite clear about my expectations in respect of the extensions."
The extensions, sought by emergency services, will allow the active
collection and sharing of the location of any device believed to be in
the possession of a person at risk (for example, lost in a national
park, kidnapped, or having indicated an intention to harm themselves or
others). The current system is passive, relying on a 111 call, and so
does not assist emergency services to actively search for a person who
is at risk but has not made an emergency call. "We have proposed a set
of new limitations and obligations, which build on the boundaries
already in place, designed to protect against scope creep and ensure
some accountability for the way the new system is used. I will review
the system from time to time to ensure it is not being misused."
Submissions should be made to privacy.code@privacy.org.nz by 28/2/2020.
(Privacy Commissioner, media statement, 29/1/2020.)

SPORT AND RECREATION Beatrice Faumuinā of Auckland has been appointed to the Sport NZ Board
BOARD as a member from 17/12/2019 to 30/11/2022. (NZ Gazette, 29/1/2020.)
- APPOINTMENT

43 TCL 3 12