While the Courts are described as an “essential service” they are not business as usual.
The only matters in the District Court and High Court that will continue are those where the person is in custody (prison). Those in custody will appear during lockdown on the scheduled dates by audio-visual link (AVL). Lawyers – and even Judges – may also appear via AVL. The Courts are no longer open to the public for the duration of the lockdown.
However, jury trials, Judge-alone trials and pre-trial hearings (with witnesses) will no occur during the lockdown. Those in custody with matters of this nature scheduled during the lockdown will appear and be adjourned to a callover date.
For people on bail, all appearances scheduled for the duration of the lockdown will be adjourned to other dates. They will not be required to attend court, instead their bail will continue until the new date.
Prior to the lockdown, all jury trials were suspended for 2 months. It is unclear whether this will impact jury trials scheduled after this period.
Radio New Zealand Coronavirus: Government looking at an exit plan
By James Olsen
Following the tragic loss of life by a terrorist in Christchurch Mosque shootings, the New Zealand Government rushed though, under urgency, an amendment to the Arms Act 1983 preventing the sale and possession of military style semi-automatic firearms along with a range of other measure.
A group of licenced firearms holders formed the Kiwi Party Inc to challenge the legality of that action. However, a High Court Judge strike-out their claims in relation to the legislation. They appealed to the Court of Appeal. The Court, unanimously, rejected all of their arguments.
The Kiwi Party claimed that New Zealanders had a ‘constitutional right to bear arms’ which allowed them to have access to semi-automatic weapons. The Court of Appeal dismissed this entirely. The Court said that there is no constitutional right to bear arms in New Zealand and there never has been. They observed that only 3 counties in the world have some from of constitutional right to bear arms.
The Kiwi Party made a number of claims about the process in Parliament. However, no court can entertain such claims because it would breach the Parliamentary Privileges Act (which prevents the courts enquiring into matters relating to Parliament).
Finally, the Kiwi Party tried to challenge the Amendment Act itself. The Court of Appeal was critical of these claims and direct in its observation that they could not be sustained.
Ultimately, New Zealand is not like the United States. Firstly, there is no second amendment right; but, importantly, even if there were such a right, the courts in New Zealand cannot strike down legislation passed by Parliament. What Parliament says goes.
By James Olsen
We all enjoy dogs. They are, after all, man’s (and women’s) best friend.
Fate of our dogs
But their fate is grim if they attack a person, stock, poultry, domestic animal or protected wildlife after a decision of the Court of Appeal in Auckland Council v Hill  NZCA 52.
Mr Hill took his beloved dog to his workshop. The dog, Kratos, was asleep when two ladies pulled up and parked in the workshops ‘private parking’. Kratos woke and bit one of the ladies on the forearm. Mr Hill took Kratos to dog behavioural training for three weeks, which Kratos had responded well too. Additionally, Mr Hill had taken measures by fully-fencing his property.
The law requires that when convicted of an attack a dog must be put down unless there were exceptional circumstances.
The District Court Judge found there were exceptional circumstances and refused to make an order for destruction of Kratos. This was principally because of the steps that Mr Hill had taken after the attack by fully-fencing his property and taking Kratos to dog training.
The Council appealed, but a High Court Judge agreed there were exceptional circumstances.
Again, the Council appealed – and, finally, it got its way. The Court of Appeal made an order for the destruction of Kratos. Its decision has implications for all dog owners where their dog attacks.
The Court said that in order to avoid destruction a person must show that the circumstances of the offence are exceptional and do not warrant destruction.
The Court has ruled out matters occurring after the offence (such as fencing, dog training, etc) being used to mitigate the offending. The Court said these matters do not make the offending exceptional. Instead, for example, an exceptional case would be a dog attacking another dog who had rushed at their owner.
The consequence of this is that now almost all dogs will be destroyed if they attack their local cat, a sheep or a person.
Consequences for owners
While a dog may attack for whatever reason, we – as owners – have no control over what our dogs think and do. However, the High Court has ruled that you can now go to prison if your dog seriously attacks another person: Shepherd v Auckland Council  NZHC 1660.
Mr Shepherd brought a bullmastiff cross. He’d been told not to leave it alone with children. He posted a picture of his dog online with the message that the dog would “eat you alive”.
Tragically, the dog savagely attacked his 4 year old son. Mr Shepherd had left his son alone with the dog while cooking dinner inside. After hearing a blood-curdling scream from his son, he ran outside to find the dog attacking his son’s face and head. Mr Shepherd picked up his son and the dog further went in to attack his son.
His son suffered extreme injuries requiring significant medical treatment and has been left with a permanently disfigured face. The District Court Judge sentenced him to community work for being the owner of the dog.
The Council appealed. The High Court Judge rejected that sentence entirely, he said his offending required a sentence of between 12-15 months’ imprisonment. Mr Shepherd avoided prison because of delays he’d caused since the offending had occurred.
The obligations on dog owners are strict. If your dog attacks, you are liable simply by reason of owning the dog. The law prevents you from arguing that you were unaware that an attack would occur.
Now, the stakes are even higher if your dog seriously attacks. You could go to prison.
By John Munro
A new offence for the crime of strangulation or suffocation case into force in December 2018 after attracting the attention of the Law Commission.
Prior to the new charge, strangulation was often under charged as more minor domestic offence, such as a male assault female charge with a two year maximum sentence, where there had been no signs of injury.
In fact, strangulation always had the hallmarks of a serious violent offence regardless of visible signs of injury.
Since then, there have been very few appeals in the senior courts of New Zealand.
Most notable are the two High Court cases of Ackland v Police and the case of T v Police.
These two appeals have set the framework of sentencings to come and a worthy of some note.
In Ackland, the High Court discussed key culpability factors of offending from the Law Commission's report and set three bands of offending. The key culpability factors identified were:
These factors were meant as a guide (capable of amendment) for the courts to assess the gravity of the offence. The three bands identified were:
In T v Police, which followed Ackland, the High Court warned against applying a rigid banding approach with strangulation sentencings because it had:
“… potential to restrict an examination of the complexities of this form of offending…..”
".… it was necessary for the Courts to undertake a full evaluation of he circumstances of each case in a domestic context and be aware of and responsive to the impact of this offending on victims.”
It appears that Ackland can be used to set the board category of the offence within the maximum sentence and aggravating factors of the offending, but with flexibility and care not to loose sight of a full evaluation of circumstances and effect on the victim.
From Morning Report, 7:27 am on 20 December 2019
An Auckland criminal barrister says historical sexual offending charges are notoriously difficult to both prosecute and defend.
Arthur Allan Thomas - who was pardoned after twice being convicted of the 1970 murders of Harvey and Jeanette Crewe - is now facing historical rape and indecent assault charges.
Mr Thomas, who is 81, has pleaded not guilty in the Manukau District Court.
Corin Dann speaks to barrister John Munro.
To listen to the audio click here.
A New Zealand case involving a false rape complaint made by a woman who lied about her ex-partner sexually assaulting her has made international headlines and raised issues about the criminal justice process being used as a vehicle for retribution.
Last week Judge Denys Barry sentenced Esha Verma of Wellington, 37, to a year of home detention after she pled guilty to a charge of attempting to pervert the course of justice after confessing that she had made a false rape complaint against her ex-partner, who has name suppression. The complaint was made more than a year ago and raised concerns with the police when they noticed inconsistencies in Verma’s account, such as that neither she nor her ex-partner could have been home at the time she said he raped her according to travel and telephone records.
Verma later confessed in writing that she had lied about the occurrence of the rape because she was angry that her ex-partner had ended the relationship.
During sentencing, Judge Barry described the accusation as "soul destroying" for Verma’s ex-partner and found that he was "overwhelmed with despair” and had considered suicide. In rejecting an application by defence counsel for a discharge without conviction on the basis that a conviction could result in her deportation, Judge Barry described the offending as “so serious that possible revocation of residency or deportation is not of itself a consequence that is out of all proportion to the gravity of the offending”.
He said the offending was “motivated by spite”, characterised it as a “sustained and clinical course of deception” and held that Verma had displayed “no real remorse [or] palpable empathy”. He put a protection order in place for the benefit of the ex-partner as well as the sentence of home detention.
In recent years, there has been sustained media commentary about the way that police respond to accusations of sexual assault, especially in light of the Independent Police Conduct Authority’s finding in 2015 that there were “deficiencies in the [police’s] investigation practices” in the high-profile ‘Roastbusters’ case. In 2017, Labour MP Poto Williams suggested that, in order to ameliorate the problem of rape victims opting not to report their assaults to police because they have little faith in the justice system, rape accusers should be believed by police as a starting point.
The Verma case demonstrates why calls to shift the onus of proof from the complainant to the accused are fraught and go too far. A presumption that rape accusers should be believed could cause cases like Verma’s to become more common; an outcome that should be guarded against cautiously to protect the rights of accused persons and the integrity of the legal system more generally.
The presumption of innocence is the bedrock of the criminal justice system in New Zealand and a fundamental human right enshrined in the Bill of Rights Act. It should not be chipped away at because of difficulties with the prosecution of sexual violence.