In 2022, Damin Cook was convicted of two sexual offences and sentenced to eight years imprisonment. In the trial, Cook admitted that the acts occurred, but he claimed that he was experiencing sexsomnia. Sexomnia is a type of parasomnia or movement disorder occurring during sleep. Mr Cook said it meant he had acted without conscious volition. 
 
In the District Court, the defence asked the  Judge to rule that his defence was sane automatism. But Judge Garland decided it was insane automatism, applying the Court of Appeal’s 2021 decision of Cameron v R, wherein sexsomnia was classified as a form of insane automatism on the evidence in that case. Because of this, Mr Cook had the burden of showing that he suffered from a disease of the mind to the extent that he did not understand the nature and quality of his act. 
 
The Court of Appeal said that Mr Cook was sentenced  “on the basis that the jury had rejected Mr Cook’s defence that he was asleep and unconscious at the time of the offending”. At the first appeal, Counsel for Cook submitted that Cameron was wrongly decided and the Judge should not follow it. Nevertheless, the Judge followed Cameron and sentenced Cook to eight years in prison. 
 
The key issue the Supreme Court will analyse is the difference between the defences of sane automatism and insane automatism.  Both defences deny criminal responsibility on the basis the defendant lacked control during the offending. The difference between them is that where the lack of control is caused by a “disease of the mind” the defence is insane automatism. If caused by something else, the defence is sane automatism. 
 
For sane automatism, the defendant only needs to provide an evidential foundation that the defence applies. The Crown must exclude the reasonable possibility the defendant acted without conscious volition.  However, for insane automatism, the defendant must prove all the elements of the defence based on the balance of probabilities. Nevertheless, the Court of Appeal reduced Cook’s sentence from eight years to seven by adopting a concurrent approach to sentencing. 

Chief Justice Helen Winkelmann and Justices Susan Glazebrook, Joe Williams, Mark O’Regan and Stephen Kós will hear the case on 23 and 24 July 2024. 

R v R [2023] NZSC 132

 
Last year, in 2023, our Supreme Court in R v R gave a strong message to trial Judges when they found that justice had miscarried in a sexual offending trial. 


 
Under section 112 of the Evidence Act 2006, when a Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding— whether to accept the evidence and the weight to be given to the evidence. This case concerned evidence described under s 112(2)(2) - evidence about the defendant's conduct, alleged to have occurred more than ten years previously. 


 
Back in July 2017, a defendant was found guilty of 18 sexual offending charges against a young female complaint. However, the complainant reported her allegations in two trances — 14 years apart. The latter allegations were a lot more serious. The trial Judge was aware of s 122 warnings and the problems associated with a complainant's delayed disclosure. However, she decided not to warn the jury. After the jury retired for deliberation, defence counsel submitted a request for a reliability direction to be given on the basis that the long delay between disclosures could have affected the complainant's recall. The Judge declined this request. The defendant was found guilty after evidence was presented to the 12 jurors with no warning. 
On the first appeal, the Court of Appeal was satisfied that there was 'good reason' not to comply with the request, namely that the trial judge was of the opinion that a direction would "serve to focus unduly on the evidence and confuse the jury".


 
This decision was reevaluated for a second time in April of 2023, where the appellant argued the Judge was bound by the principles their own court established in the 2014 case of CT v R. In CT, 'reliability' of evidence related to the effect of delay on memory and the forensic disadvantage following a delayed complaint. 

Outcome 
In this case, the most significant indicator of potential confabulation was substantial differences between the 2001 and 2015 statements. As for forensic disadvantage, the majority found that the defendant's son was unable to provide what could have been useful assistance to the defence's case. On cross-examination, the son could not remember the exact living arrangements or whether he had discussed his fathers behaviour with the complainant at the relevant time. These two factors, combined with the lengthy 16-year delay between the alleged events and trial - surpassing the already high 10-year threshold- led the majority to find that a warning should have been given on request. There must be a 'good reason' to decline a reliability warning under s 122(3), and there wasn't one. 


 
Key takeaways

1. The Supreme Court certainly nudges judges not to whittle down potentially unreliable evidence presented to juries and to use warnings in such cases to prevent further miscarriages. The risk categories pay attention to potential complainant memory loss or distortion whilst acknowledging the risk of compromising the defendant’s ability to test or meet the prosecution’s case.
2. Judges must be prepared to engage with trial fairness difficulties associated with delayed complaints and take responsibility for assisting juries with them. 
3. Whilst s 122(4) affirms it is not necessary for a Judge to use a particular form of words when giving the warning, directions must be framed appropriately and tailored to the case at hand. 


Supreme Court in R v Burke comes to a unanimous decision that the trial Judge wrongly defined what “common purpose” parties to a homicide must have foreseen.
 
The Supreme Court’s decision in Burke was released on April 26 2024. The decision concerns section 66(2) of the Crimes Act, which is about party liability in the context of culpable homicide (manslaughter). The issue was what exactly a secondary party to manslaughter must foresee as a probable consequence in prosecuting the common unlawful purpose formed with the principal offender.
 
This case involved Mr Burke and Mr Webber, both associated with the Nomads gang. They were tasked with punishing the victim – Mr Heappey, who had been disrespectful to the president of the gang. Initially, this punishment was meant to consist of a quote, “mean hiding”, but Mr Webber repeatedly stabbed Mr Heappey at least 14 times, and he died as a result. Although Mr Webber admitted to carrying out the stabbing and was sentenced to a minimum term of 15 years imprisonment, Burke was found guilty of his role in the homicide and sentenced to five years and two months imprisonment.
 
The directions given by the trial Judge meant that a conviction under s 66(2) was possible if Mr Burke did not know that Mr Webber had a knife and if all Mr Burke foresaw was an assault that was likely to cause non-trivial harm. Accordingly, Mr Burke was sentenced on the basis that he has been found guilty as a s 66(2) party and that he did not know Mr Webber had a knife. Mr Burke initially took his case to the Court of Appeal, but they dismissed his appeal.
 
Mr Burke then turned to the Supreme Court and advanced his appeal against his conviction.  The Supreme Court was unanimous that the appeal should be allowed but for different reasons. The majority found that the jury needed to be directed that in order to find Burke guilty, they had to be satisfied that Burke foresaw that a stabbing would occur. To do that, they must be satisfied that Burke knew that Webber had the knife. The minority agreed that Burke would have foreseen that an unlawful killing would occur.
 
In Burkes’s police statement, he said, “I thought what was going to happen was a mean hiding”. Ultimately, the jury was not properly directed to the requisite threshold of knowledge that Burke needed to possess to determine him guilty as a party in the manslaughter.
 
The Supreme Court has set aside his conviction and is awaiting submissions on whether it should be substituted for another conviction of injuring with intent to injure.

​In their most recent report – the third review of the Evidence Act 2006, the Law Commission strongly recommended that highly controversial ‘evidence’ from ‘jailhouse snitches’ should be inadmissible. The Commission said that unless numerous factors can convince a judge the confession is reliable, these confessions should not be used due to their notorious unreliability.  
 
The Law Commission is responsible for reviewing the suitability of our current laws and making recommendations to the Government to improve them. On 23 February 2024, the Commission completed its third review of the Evidence Act 2006, which was submitted to the Minister of Justice, and this report was presented to Parliament on 22 March 2024. Only three of the submitters were not in support of any of the options for change it proposed. Many academics and lawyers agree that this is an area of evidence law where greater caution must be taken.
 
Prison informants or ‘jailhouse snitches’ refer to prisoners who come forward claiming that a fellow inmate confided or confessed details or doings of a crime. In compensation for offering their evidence, jailhouse snitches are often bribed with the promise of better prison conditions, reduced sentences for their convictions, and even the possibility of financial rewards. The committee described this as an unwritten and unregulated system in which prisoners know they will be rewarded if they come forward with a claim that another individual confessed. Obviously, this raises concerns about the credibility and reliability of such evidence.
 
Previously, when the problematic nature of these witnesses was raised, the Crown argued that it was for the jurors to ascertain whether the prisoner was telling the truth about their fellow inmate. However, as part of the Law Commission's review of the Evidence Act, the recommendation is to normally exclude such evidence unless it is proven, on the balance of probabilities, to a judge that what they are claiming they heard or were told is reliable.
 
New Zealand courts are not unfamiliar with such instances. Many of our high-profile cases feature a ‘jailhouse snitch’, including David Tamihere, Scott Watson, Mark Lundy, and Stephan Hudson, including the infamous wrongful convictions of Teina Pora and Arthur Allan Thomas. Back in 2017, notorious jailhouse snitch Roberto Harris was convicted of eight counts of perjury for the false evidence he gave against David Tamihere at his murder trial.
 
Prosecutors frequently use these confessions in high-profile cases and often can persuade a jury. However, research has shown that the use of such evidence is one of the leading causes of wrongful convictions worldwide. Wellington Barrister Christopher Stevenson says this has been an urgent issue since 1980 and has contributed to many terrible miscarriages of justice. He predicts that if the Evidence Act were amended to make it almost impossible for snitches to give their claims in court, their willing offers to provide evidence would cease as there would be few incentives for them to come forward. Our previous justice minister, Andrew Little, described prison informants as “abject liars”. Further, he said it was “embarrassing to the reputation of our justice system that we’re one of the few countries in the world that still regularly rely on this evidence.”.
 
The Auckland District Law Society’s Criminal Law Committee says that the fact that a ‘snitch’ appears in almost every high-profile case in this country cannot be seen as a coincidence, and it is a “national disgrace”. Police have been known to trawl through prisons, seeking out this category of evidence so they can close their case. Anna High, from the University of Otago, said there could be other wrongful convictions in New Zealand that relied on false jailhouse snitch evidence. She urges the Government to listen to the view of the Law Commission, which is “based on research, on a comprehensive analysis of the issue, and intensive consultation.”
 
ADLS CLC believes that implementing such presumption regarding prison informant evidence being inadmissible is the only realistic safeguard to prevent further miscarriages of justice. A statutory presumption that excludes prison informant evidence would be the safest path forward except in exceptional circumstances where the prosecution could prove beyond a reasonable doubt that the evidence is truthful—for example, the discovery of a body. To determine reliability, the Commission recommends that a judge considers if their claims led to the discovery of other evidence, whether the informant could have learnt of the evidence elsewhere, whether any incentives have been offered or received for the evidence, or whether the person giving the evidence has a history of lying or offered ‘snitch’ evidence previously.
 
Ultimately, the Law Commission can only make recommendations about the suitability of the laws, and it is up to the Government to decide if they agree and want to amend the Evidence Act to restrict this type of highly problematic evidence.

Corrections staff have recently come under fire for their faculty's poor conditions and culture. Corrections has responded that whilst the department is “not out of the woods”, it maintains that change is happening despite the appalling four reports about nine prisons the Ombudsman presented.
 
Chief Ombudsman Peter Boshier appeared before members of Parliament at a select committee on 11 April 2024, presenting four reports about nine prisons. He said there was an unacceptable culture of containment in many. In front of the Justice Committee, Boshier said he would “leave the job disappointed” if he “hasn’t made any impact on the Department of Corrections that he could be proud of”. Considering that many of these concerns had been raised before in the previous Ombudsmen reports, this was incredibly disappointing as agencies tend to implement such changes due to those reports, but this is not the case with Corrections. 
 
Even though it has been almost three years since the last COVID-19 lockdowns, today's conditions closely resemble the situations of no visits, meaningful human contact, or rehabilitation continuing since the pandemic response. Boshier describes the Corrections approach as “glacial” and says that for too long, the department has blamed staff shortages when, in fact, there is now a culture embedded – “that a lot of things will be done in minimal fashion”. He suggests that whilst Corrections claims these practices are a product of poor staffing, he thinks these modes of operation suit the staff and adhere to this dismissive culture. Whilst the precarious lockdown period may have justified such restrictions for a shorter period, there is no reason for this restrictive regime of lock-ups and non-visits to continue into 2024. Across the country, the report found that proper visitation rights of friends or family have not been re-introduced.
 
As part of his reports, he found that some prisoners were being held in segregation for over a year and were isolated from others for 23 or 24 hours a day. He further explains that this type of separation, in which you do not talk to anyone, takes an extremely harmful toll on one’s mental health. The newly built maximum security Auckland Prison is highlighted as being particularly problematic. Boshier explains that daily practices between inmates have become a lot more transactional. For example, prisoners no longer have much opportunity to interact with each other as they move between areas, and their meals are simply handed over to them without the opportunity for conversation. It is described as a way of managing and containing prisoners, like a “people storage unit”. Without meaningful human contact and rehabilitation programmes, the justice system is not living up to the reasonable standards of care for prisons and pushing the boundaries of breaching international expectations and prisoners’ rights.
 
Boshier says that the way to change an organisation is through good and concentrated leadership. People involved in Corrections need to want to achieve change within the institution. It was not all bad news, however. One of the Ombudsman reports focused on Tongariro Prison, a minimum-security prison that Boshier said was operating well and should serve as an example for other prisons. “It’s doing the things you’d want it to do”, Boshier describes – it has a high Māori inmate population, and they are doing good things with iwi and good stuff with culture. The leadership at Corrections could do much more to promote this culture, which is needed to achieve a positive change, Boshier says.
 
Deputy Commissioner of Prisons Neil Beales responded, saying he “respectfully disagrees” with Boshier’s comments.

The Gangs Legislation Amendment Bill is intended to be reported to the House by the 8th of July this year. As part of the new coalition Government's '100 day plan' to '"distrupt and crack down on gang crime", the new 38-clause bill was introduced. It was read for the first time, and referred to Parliament's Justice Committee under urgency on the 7th of March. The legislation will go through the normal public consultation process and expected to be passed into law by the end of the year. With its introduction brings about four key changes to be aware of - 

1. Gang insignia in public places will be prohibited. 
The display of gang insignia will now be considered a criminal offence.  Now, ALL public places including schools, hospitals, bars, sports events, and venues will be subject to this ban. Some venues have displayed signage to inform patrons of this new policy. This blanket prohibition includes gang patches, and extends to any items of clothing or even vehicles that display gang symbolism or signage. Police Commissioner commented that the ban on gang-patches would apply to funerals/ tangi. Any person in public found with gang insignia is liable for up to six months imprisonment or a fine not exceeding $5000. At this stage, 'gang insignia' does not seem to be inclusive of tattoos. 


2. A new dispersal power will be in place.
Police constables will now have the power to issue dispersal notices to persons if they have 'reasonable grounds' to suspect an individual is one of three or more gang members who are gathering in a public place. A dispersal notice may be issued at any point during a suspected gathering, or after it has ended.  Once issued, the group will be required to leave an area and not reconvene or associate in public for seven days. 

3. Non-consorting orders will be issued. 
Non-consorting orders will prevent specified gang members from associating or communicating with other particular members in any way for three years. Breaching an order can make someone liable upon conviction to a term of imprisonment not exceeding five years or a fine not exceeding $15,000. 
At the first reading, it was acknowledged the need for exemption to this in some circumstances such as instances involving immediate family members or in circumstances such as where people need to associate for a lawful purpose such as work, education, or healthcare. People issues with dispersal notices should apply to the Commissioner of Police for exemptions involving any other purpose


4. Gang membership will be considered an aggravating factor at sentencing. 
This change amends s 9 of the Sentencing Act 2002 to the 'Sentencing Amendment Bill', removing the requirement for the Court to establish the nature and extent of any connection between the defendants and the defendants participation in an 'organised criminal group'. We can expect this will lead to tougher sentences for gang members, even if their gang association is not linked to the offending for which they are convicted for. 

Legal alcohol limits for driving in NZ

The legal alcohol limits for the purpose of drink driving offences are contained within the Land Transport Act 1998. The alcohol limit that applies to each person depends on their age. The penalties that are incurred by exceeding these limits while driving depend on how far the person is over their limit. For example, whether they are within a range just over the limit or whether they are far in excess of it.  

A person under the age of 20 has a zero alcohol limit. That means that a person under the age of 20 cannot drive with any alcohol in their system.

A person over the age of 20 must not drive with a breath alcohol level more than 250 micrograms per litre of breath or with a blood alcohol level more than 50 milligrams per 100 millilitres of blood.

What does this mean practically? As each person’s tolerance level and the rate at which they process alcohol varies due to a number of factors, there is no magic number of standard drinks each person can have before they reach their limit.

What happens if I exceed my limit?

If a person exceeds the alcohol limit while driving, but to a relatively low level, this is an infringement offence and they can be given a notice for a $200 fine and 50 demerit points. Infringements do not require a person to go through a court process and they do not result in a criminal record.

Infringements can be given to those under the age of 20 if they drive with a breath alcohol level under 150 micrograms or a blood alcohol level under 30 milligrams. If a person is over the age of 20, they can receive an infringement if they drive with a breath alcohol level between 250 and 400 micrograms or a blood alcohol level between 50 and 80 milligrams.

If it is your first drink driving offence.

If it's your first DUI and if it's a minor infraction, then we can apply for a Diversion or a Discharge without Conviction, depending on the circumstances. You will most likely be required to take remedial action as part of this process. 

Diversion and Discharge without Conviction are two different opportunities to avoid a criminal conviction. The first is a scheme run by the police while the other is in the hands of the courts. If the police declines your diversion, you may still apply for a discharge without conviction. Talk to us at the earliest for the best outcome.

What if my breath alcohol reading was really high?

If a person drives while significantly exceeding the alcohol limit, they can be prosecuted. If convicted, someone under the age of 20 that drove with a breath alcohol level between 150 and 400 micrograms or a blood alcohol level between 30 and 80 milligrams, could receive up to three months imprisonment or a fine of up to $2250. They must also be disqualified from driving for a minimum of three months and receive 50 demerit points. If a person, regardless of their age, is convicted of driving with a breath alcohol level over 400 micrograms or a blood alcohol level over 80 milligrams, they can be imprisoned for up to three months or be fined up to $4500. This also results in automatic disqualification from driving for at least six months. In these situations, Police also have the power to seize and impound vehicles for up to 28 days.

What if this is not my first drink driving offence?

Heavier penalties can apply to people with a history of drink driving. For example, if someone is on their third or higher offence for driving with a breath alcohol level over 400 micrograms or a blood alcohol level over 80 milligrams, the maximum period of imprisonment is increased to two years and the fine can be up to $6000. The judge must also order disqualification from driving for a minimum period of one year.

Some repeat offenders can also be ordered to attend alcohol assessment centres and be disqualified from driving indefinitely. A judge can also impose an alcohol interlock sentence against them. This involves four weeks disqualification from driving (on top of any other disqualification that applies), followed by 12 months on an alcohol interlock license. An alcohol interlock license requires a breathalyser device to be attached to the person’s car to prevent driving if there is alcohol in their breath. Following this, the person is required to be on a zero alcohol license, meaning they cannot drive with any alcohol in their system, for three years.  

What if I have an existing criminal conviction?

You may still apply for a discharge without conviction but the judge will likely look at the application and affidavit evidence with more scrutiny.