Max Pakinga-Barber

Summary

The Court of Appeal upheld a decision to grant public law damages to two individuals who had been prejudiced by disclosure failures in a criminal prosecution.

Background

In March 2014, Lance Morrison and Richard Blackwood (“Respondents”) were charged with a number of offences relating to the financial dealings of a company they were associated with.

During the first trial, it emerged that the Crown had failed to disclose nearly 14,000 potentially relevant documents, in breach of the Criminal Disclosure Act 2008 (“CDA”). This came to light approximately halfway through the trial hearing.

The trial court accepted that the Crown had not deliberately withheld the documents, but described the scale of the non-disclosure as “unprecedented.” In those circumstances, the Respondents could not be guaranteed a fair trial. The proceeding was discontinued.

The Crown chose not to re-prosecute Mr Morrison but continued against Mr Blackwood. Mr Blackwood’s retrial commenced in August 2018. He was convicted at trial, but the convictions were later overturned on appeal.  

This meant that, in total, Mr Blackwood had to wait 5 years from the time he was charged before he was acquitted. Mr Morrison waited 3 years before the charges against him were dropped.

Following Mr Blackwood’s acquittal, both men commenced proceedings against the Crown seeking public law damages for breaches of their fair trial rights under ss 24 and 25 of the New Zealand Bill of Rights Act 1990 (“NZBORA”).

The High Court held that the Respondents fair trial rights had been breached by the non-disclosure and awarded each $10,000 in public law damages. It also awarded Mr Blackwood an additional $5,000 to reflect the undue delays in the second trial, which were directly caused by the Crown’s disclosure failures.

The Attorney-General appealed.

The case

Public law damages are a form of relief available against the state for breaches of rights guaranteed under NZBORA. The purpose of such damages, usually set at a modest sum, is to vindicate breaches of NZBORA rights, and to deter public officials from infringing such rights in future.

The rights engaged in this case were the minimum standards of criminal procedure guaranteed under ss 24 and 25 of NZBORA. These included the umbrella right to a fair and public hearing by an independent and impartial court, as well as subsidiary procedural rights such as the right to be tried without delay, to be present at trial and present a defence, to have adequate time and facilities to prepare a defence, and to effectively examine witnesses. All of these were affected by the disclosure failures.

Availability of public law damages

Earlier New Zealand cases had expressed doubt about whether public law damages could be awarded for breaches of fair trial rights, holding that those rights could be safeguarded through procedural remedies, and that the prospect of damages could have unintended consequences for prosecutorial and judicial decision-making.

The Court of Appeal in this case departed from this approach, confirming that public law damages were available for breaches of ss 24 and 25. It held that damages for breaches of fair trial rights would only arise in the most serious cases and would not have distortionary effects. There was no principled reason to exclude them, particularly as Canadian courts had already recognised their availability for a breach of fair trial rights.

First ground of appeal – Intention requirement

The central issue was whether damages required proof of intentional non-disclosure. In the Canadian Supreme Court case Henry v British Columbia, the majority held that damages required intentional withholding, knowledge that the non-disclosure would harm the defendant’s case, a constitutional breach, and resulting harm. The minority applied the same test but without the intention requirement.

The majority justified the intention threshold on concerns that without it prosecutors might be chilled in their work and litigation might expand uncontrollably. The minority was not persuaded.

The High Court in New Zealand in this case had followed the Canadian minority. The Attorney-General argued that this was an error and that the majority should have been followed.

The Court of Appeal upheld the High Court and adopted the minority approach in Henry. It emphasised that damages deter rights infringements and promote good governance, and that most disclosure issues are dealt with as part of court procedure. Given disclosure under the CDA was mandatory, it would in fact be beneficial to incentivise prosecutors to err on the side of caution and disclose documents of uncertain relevance. There was no reason to treat fair trial rights differently to other rights guaranteed under the NZBORA, where no requirement to prove intention existed.

Accordingly, the High Court had been correct in following the Henry minority and not requiring the Respondents to establish the documents were intentionally withheld.

Second ground of appeal – Additional damages for undue delay

The Attorney-General also appealed against the additional $5,000 awarded to Mr Blackwood for delay.

The Court dismissed this appeal. The disclosure failures had directly caused the retrial, which took place more than four years after the initial charge. Another defendant, who was convicted, received a 19-month sentence reduction for the same delay. There was no reason Mr Blackwood, who was acquitted, should be denied a remedy

Result

The Court of Appeal upheld the High Court’s awards of public law damages to the Respondents.

The decision shows a departure from the more conservative approach signalled by the New Zealand courts to public law damages under ss 24 and 25 of the NZBORA.

For further information on this case or similar issues please contact Director Brigitte Morten

Summary

The High Court dismissed a judicial review against the Judicial Conduct Commissioner’s recommendation to convene a panel to investigate alleged misconduct by District Court Judge Ema Aitken.  

Background

Statutory framework

The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (“Act”) sets out a detailed process for accountability of judges for misconduct. The Act aims to maintain the balance between these accountability mechanisms and the need to protect security of judicial tenure from political interference.

Under the Act, the Judicial Conduct Commissioner is the point of first receipt for complaints of judicial misconduct. In the most serious cases, the Commissioner may recommend to the Attorney-General to convene a Judicial Conduct Panel to investigate the alleged misconduct. When a Panel is convened, they are tasked with investigating the matter and making a recommendation as to whether the judge should be removed from office.

The Attorney-General may commence the process for removal of the judge if (and only if) the Panel recommends this course of action following their investigation.

The incident

In December 2024, several media reports surfaced alleging that District Court Judge Ema Aitken and her partner verbally attacked Deputy Prime Minister Winston Peters and other New Zealand First members at a Christmas party at Auckland’s Northern Club (“Incident”).

Following a complaint about the Incident, the Commissioner recommended that the Attorney-General convene a Panel. The Commissioner noted that there were differing accounts of what occurred during the Incident, and particularly whether Judge Aitken’s outburst had a political motive.  

Before the Attorney-General acted on the recommendation, Judge Aitken filed judicial review proceedings alleging the recommendation was unlawful on four grounds and seeking that the matter be referred back to the Commissioner for further investigation.

In February2025, the court granted interim orders recommending that the Crown take no further action to convene the Panel.

The Case

Commissioner’s role

The court held that the Act was intended to propose a number of discrete steps that must be satisfied before a judge could be removed from office.

The Commissioner’s function within this scheme was to filter out unmeritorious complaints, and to recommend appropriate next steps for meritorious ones. Given their function, the Commissioner was expected only to form a preliminary view of the subject-matter of the complaint. The Commissioner could recommend convening a Panel if they were satisfied that the complaint was plausible and that the alleged conduct, if substantiated, could warrant consideration of removing the Judge from office.  

The Commissioner did not have licence to determine disputed issues of fact, which was a function reserved by the Act for a Panel (if one was appointed).

First ground - Failure to identify legal standard

Judge Aitken alleged the Commissioner had erred in law by failing to expressly identify the legal standard against which the alleged conduct was to be measured.

The court held there was no general rule that the Commissioner had to expressly identify the relevant standard. In marginal cases, failure to do so might indicate that the Commissioner had misapplied the legal test, but this was not such a case. If a political dimension to the Judge’s conduct was substantiated, this would certainly warrant consideration of Judge Aitken’s removal.

Second ground - Failure to provide sufficient reasons

Judge Aitken’s second ground alleged the Commissioner had failed to provide sufficient reasons for their decision (as required by s 18(2) of the Act) because they had failed to identify the relevant legal standard and clearly apply that standard to the facts before them.

The court was satisfied that the Commissioner’s reasons were adequate in the circumstances.

The ambit of any statutory requirement to provide reasons was context-dependent. A quasi-judicial body might be expected to provide fairly robust reasons if they were making authoritative determinations on facts and law, particularly where the decisions made were publicly available and relied on by third parties. However, given the Commissioner’s determinations were both preliminary and (ordinarily) confidential, the requirement to provide reasons was far less stringent.

In these circumstances, Commissioner’s reasons were sufficient. They were neither required nor permitted to go into any further detail than they had regarding conflicting factual accounts of the Incident.  

Third ground - Insufficient preliminary examination

The Judge’s third ground alleged that the Commissioner could not properly form the opinion required under s 18(1) without referring her response about alleged political animus back to the complainant.

The court rejected this argument. An iterative approach to disputed evidence might be necessary in particular cases, but it was not an absolute legal requirement. There was no evidence it would have made any difference in this case. The claim was in essence an invitation for the Commissioner to determine disputed factual allegations, a function that the Act did not permit the Commissioner to perform.

Fourth ground – Failure to determine initial scope of Panel enquiry

Judge Aitken’s final ground of challenge was that the Commissioner’s cursory reasons meant that the scope of the resulting Panel inquiry would be unclear.

The court held that the scope of the inquiry was clear. While the Commissioner did not expressly set it out, his reasons read as a whole and with regard to attachments and appendixes clearly established that the Panel would investigate the Incident, including the allegation that Judge Aitken’s actions were politically motivated. If that motivation were made out, this would suggest breach of constitutional convention that could certainly warrant removal from office.

Result

The court dismissed the application in its entirety and allowed interim orders restricting further action to lapse. Before the hearing, the Attorney-General recused herself from further involvement, as it had been her that referred the complaint to the Panel.

The acting Attorney-General, who is now responsible for the matter, convened a panel on 22 July 2025. The Panel is scheduled to hear the complaint in February 2026, and to report back to the Attorney-General with its recommendations by Easter 2026.

This decision sets a clear precedent about the limits of the Judicial Conduct Commissioner’s functions, which provides welcome clarity following earlier cases that developed the law in response to more complex facts.

For further information on this or similar cases please contact Director, Brigitte Morten.

Summary

The Supreme Court, in a two part judgment, determined customary rights in the foreshore and seabed in the Eastern Bay of Plenty.

Background

Following repeal of the Foreshore and Seabed Act 2004, Māori customary rights in the foreshore and seabed are recognised under the Marine and Coastal Areas (Takutai Moana) Act 2011 (“MACA”). Customary rights applicants can apply for two types of orders – customary marine title (“CMT”), and protected customary rights (“PCR”).

CMT and PCR can be recognised through court ordered “recognition orders”, or via agreements negotiated with the Crown. Any “applicant group” can apply for CMT and PCR. Applicant group means 1 or more iwi, hapū, or whanau groups seeking customary rights, including a person appointed by 1 or more of those groups to represent them in seeking those rights

The High Court determined a number of claims relating to the Eastern Bay of Plenty in 2021. Subsequently, many of those claims were appealed to the Court of Appeal and then to the Supreme Court.

In 2024, the Supreme Court delivered its first part judgment on the appeals, overturning in part the Court of Appeal’s test for CMT under s 58 of MACA. It confirmed that “exclusive use and occupation” must be interpreted in light of tikanga, and therefore does not require possession to the exclusion of all others (as is the case in the Western conception of property rights). However, it found the Court of Appeal had erred in treating any significant third-party activity as a substantial interruption, rather than requiring proof that such activity displaced the applicants’ tikanga-based authority.

The Court’s decision also held that overlapping CMT claims could be recognised, though it left the detail of this, along with several other matters, to a second part of the judgment.

That second judgment (the subject of this brief) addresses the applicability of MACA rights to the beds of navigable rivers, overlapping CMT claims, the status and mandate of applicant groups, and how the correct approach to factors relevant to the “exclusive use and occupation” requirement of CMT, including the relative weight to give evidence of physical control compared to spiritual and cultural connection.

Concurrently to these proceedings, the government introduced the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, which it states returns the test for CMT to  the original intent of Parliament. The Select Committee reported on the Bill in December 2024 and is currently awaiting its second reading.

The case

Customary rights in “navigable rivers” not extinguished

The area encompassed in one of the CMT orders made in the High Court included the mouths of two rivers. MACA recognised that CMT in the coastal marine area could extend up to 1 km up river. However, CMT and PCR could not be recognised where the underlying customary rights had been extinguished by law.

The Attorney-General submitted that customary rights in navigable rivers had been extinguished by s 261(2) of the Coal Mines Act 1979. Section 261(2) of the Coal Mines Act 1979 deemed that, unless the Crown had granted property rights in the riverbed, the riverbed “shall remain and be deemed to have always been vested in the Crown.” It also confirmed that minerals, including coal, within such riverbeds were the Crown’s “absolute property”.

The High Court held the section did extinguish customary rights. The Court of Appeal did not consider the issue, holding that even if customary rights had been extinguished, they were revived by s 11(3) of the MACA. The Attorney-General appealed, arguing the section vested beneficial ownership in navigable riverbeds in the Crown in a manner inconsistent with underlying customary rights.

The Supreme Court upheld the Court of Appeal’s decision, but on the basis that s 261(2) did not, as a matter of statutory interpretation, extinguish customary rights. Following Attorney-General v Ngati Apa (which concerned a similarly worded statute), the Court held the statutory language was insufficiently clear to extinguish customary title. It did not expressly extinguish such rights, nor did it do so impliedly. Notwithstanding its sweeping language, the court held that Parliament intended s 261(2) as the declaration of the common law principle that where the Crown granted land abutting a navigable river, it did not relinquish property rights (including mineral rights) up to the middle of the river.

The court relied on contextual clues, Parliamentary materials, and the Ngati Apa case to support this interpretation, which read limitations into s261(2) that are not contained in its text.

Because customary rights had not been extinguished, it followed that MACA recognition orders could extend to navigable rivers in the coastal marine area. The effect of this finding on the relevant CMT order was left to be dealt with by the High Court in a subsequent hearing.

“Shared exclusivity” affirmed

Te Upokorehe, a group claiming to be an iwi, sought CMT around Ōhiwa Harbour to the exclusion of the Te Whakatōhea iwi and its hapū, a claim disputed by those groups.

The Court of Appeal held the MACA allowed for joint management (or “shared exclusivity”) of overlapping CMT claim areas by different applicant groups, but that it did not provide for separate but overlapping claims. Te Upokorehe appealed.

The Supreme Court upheld the Court of Appeal’s decision, affirming the MACA definition of “applicant group” implicitly recognised the complex inter-relationships between the rights of local iwi, hapū, and whānau groups. Separate but overlapping claim areas were inconsistent with MACA, and would cause significant practical difficulties for third parties (given that CMT confers quasi-property rights).

Accordingly, the court dismissed Te Upokorehe’s appeal.

Flexible approach to “applicant group”

The MACA defines applicant group as “one or more iwi, hapū, or whānau groups”. To obtain PCR or CMT in a particular area, the applicant group must establish they meet the statutory requirements for those rights as a collective.  

Applicant group status was an issue in three of the appeals heard by the Supreme Court.

WKW appeal

Applicant group Whakatōhea Kotahitanga Waka(“WKW”) sought CMT and PCR on behalf of the iwi Te Whakatōhea. Hapū of Te Whakatōhea initially supported the claim, but subsequently withdrew their support, and challenged WKW’s claim for recognition orders on behalf of the entire iwi.

The Supreme Court, upholding the Court of Appeal, held that whatever the practical benefits of having an unfragmented, iwi-wide recognition orders, the withdrawal of hapū mandate meant the WKW appeal was no longer seeking recognition on behalf of the iwi, and therefore no longer an applicant group.

Ngāti Muriwai appeal

Ngāti Muriwai applied for recognition orders as a hapū of the Te Whakatōhea iwi. Other hapū argued that Ngāti Muriwai was not an applicant group as it was not a distinct hapū within the iwi.  

The lower courts rejected Ngāti Muriwai’s application because they had not been a distinct hapū of Te Whakatōhea at 1840. Ngāti Muriwai appealed.

The Supreme Court allowed the appeal. Even if Ngāti Muriwai did not meet the definition of hapū, it was still a “whānau group” per the definition of applicant group. Accordingly, it was entitled to participate in joint management of the claim area in combination with the iwi and other hapū. This would be the case even if Ngāti Muriwai could not independently establish that it met the requirements for CMT or PCR in the claim area.

Kutarere Marae appeal

Kutarere Marae, formed in the 1930s from a number of disparate whānau unaffiliated to local hapū, sought recognition of their customary rights through negotiating with the Crown rather than court order.

The lower courts held that it was not an “applicant group” and could not pursue such negotiations. The Supreme Court overturned these decisions, holding that it was not the role of the courts to prevent any alleged applicant group from negotiating with the Crown.

Holistic approach to “exclusive use and occupation”

This group of appeals concerned applications by various local iwi and hapū (including Te Whakatōhea, Ngāti Awa, Ngāi Tai, and Te Whānau-ā-Apanui) for CMT over Whakaari/White Island and the nearby Te Paepae o Aotea. The lower courts rejected all the claims, placing weight on disputes between applicants over exclusivity and concluded that evidence of seasonal resource use, shared connections, and spiritual associations did not meet the requirement of continuous and exclusive use and occupation.

The Supreme Court reframed the test. Drawing on the first part of its judgment, it held that “exclusive use and occupation” must be assessed through a tikanga lens, and that it can be manifested not only by physical settlement but also by rāhui, spiritual authority, collective control, and enduring customary practice.

A key contextual factor in the claim area was that Whakaari and Te Paepae o Aotea were uninhabitable – this made reliance on Western notions of physical use and occupation less appropriate, and consequently greater weight could be given to spiritual and cultural connections with the claim area, provided these connections were “holistic” and demonstrated an exercise of mana over the area.

The lower courts, in adopting a less holistic approach that focused largely on inter-iwi disputes about seasonal fishing rights, had asked themselves the wrong question. The court therefore referred the matter back to the High Court for redetermination in line with the Supreme Court’s broader approach.

Result

Following determination of the appeals, the determination of customary rights claims for several applicant groups (Ngāti Muriwai, Kutarere Marae, and Te Kāhui in respect of Whakaari and Te Paepae o Aotea) and the effect of the navigable rivers judgment on the relevant CMT order were referred to the High Court for another hearing. The remaining appeals were dismissed

Implications

The decision affirmed several notable points about MACA from the first part of the judgment, including:

• The principle of “shared exclusivity”, with the court noting that joint administration of customary rights would be “the rule not the exception”;
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• A liberal approach to who qualifies as an “applicant group” that gives due recognition of the complex interplay of interests and duties among iwi, hapū, and whanau groups; and
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• A holistic approach to “exclusive use and occupation” under s 58 that does not give undue weight to physical connection/control of the area at the expense of spiritual and cultural connections.  

The rulings are likely to lead to further activity in the High Court, and increased complexity in granting and administering recognition orders. The holistic approach to “exclusive use and occupation” may make CMT orders easier to obtain. All of this, however, is subject to the passage of Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill, currently awaiting its second reading. The Bill, if enacted, will result in a test for CMT that fundamentally differs from that adopted by the courts, with those changes taking effective retrospectively from 25 July 2024 (the date the Bill was announced by the Government).

More significant is the court’s judgment on navigable rivers, which is applicable beyond MACA. The court’s determination that customary title to navigable riverbeds was not extinguished by the Coal Mines Act, thereby raising the question of whether it has been extinguished at all. Future litigation on this point seems almost inevitable, inviting comparisons between this case and the Ngati Apa case in 2003 that preceded the Foreshore and Seabed Act. Whether this decision has the same significance as Ngati Apa remains to be seen.

For further information on this case or similar issues, please contact Director Brigitte Morten.

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Franks Ogilvie appeared alongside Jack Hodder KC for the Landowners' Coalition in this matter.