Women and Justice: Court: Supreme Court of New Zealand

Domestic Case Law

Ah-Chong v. The Queen Supreme Court of New Zealand (2015)

Sexual violence and rape

Appellant Ah-Chong was convicted of assault with intent to commit sexual violation by rape.  As a defense, Ah-Chong claimed that the victim consented to the sexual activity.  The trial judge gave the jury instructions that they had to be satisfied beyond a reasonable doubt that the defendant had no reasonable grounds to believe that consent existed.  The appellant argued that the jury instructions were wrong, claiming that there were two separate mens rea elements: one for the assault and one for intention to rape.  The Supreme Court previously held in L v R that only a reasonable belief of consent, even if mistaken, could provide a defense to the charge of sexual violation by rape.  The appellant argued that a mistaken belief of consent constitutes a defense to the charge of assault, even if the belief was unreasonable.  The Court rejected this jury instruction.  The trial judge correctly informed the jury that based on the complainant’s account of the event, there was no possibility of finding a mistaken belief in consent relating to the assault, but not the intention to rape.  The Court extended the analysis from L v. R, holding that the mental element for attempted rape was satisfied if there was a mistaken and unreasonable belief that consent was present.



Clayton v. Clayton Supreme Court of New Zealand (2016)

Divorce and dissolution of marriage, Property and inheritance rights

This case concerned the determination of what constitutes relationship property in a divorce proceeding and how trusts may affect this determination (e.g. if a sham trust is implemented to hide assets, therefore affecting a woman’s economic rights in a divorce).  The term “relationship property” is defined in the Property Relationships Act of 1976, the principles of which focus on the equality of spouses and that at the end of a relationship, any economic divisions should reflect equal contributions made by the couple during the relationship.  However, any property constituting “trust property” is not available for division under the PRA.  In this case, the parties had been married for 17 years with two daughters.  During the marriage, the respondent-husband had become a successful business owner and set up several discretionary trusts.  The trusts ostensibly related to the business he had established.  The appellant-wife had assisted with her husband’s business ventures and was the main childcare provider during their marriage.  The Court concluded that, in this case, the powers under a trust deed constituted “property” under the PRA.  In applying the two-stage approach of section 182, the Court concluded that one of the discretionary trusts settled during the Clayton’s marriage constituted a nuptial trust under §182 of the Family Proceedings Act 1980 because of its connection to the marriage.  The court found that the “nature of the assets is not determinative of whether the settlement is nuptial or not,” and that a settlement “made for business reasons” and containing business assets can be a nuptial settlement.  The New Zealand Women’s Law Journal described this as a “decision that provided a much-needed step towards a more equal recognition of the traditional economic disadvantages faced by women.”



LM v. The Queen Supreme Court of New Zealand (2014)

Sexual violence and rape

Section 144 of the Crimes Act 1961 “provides for the prosecution of New Zealanders for conduct which, if it had occurred in New Zealand, would be contrary to specified provisions of the Crimes Act involving sexual offending against children and young people.” The appellant, a New Zealander, was found guilty of a sex crime against a child. The crime was committed in Russia and the other offender in the case was a Russian man. At issue on appeal was whether the aforementioned law allowed for “the prosecution of a New Zealander (being LM) on the basis of party liability for “offending” where the principal “offender” is not a New Zealander.” The Supreme Court dismissed the appeal, holding that the appellant was in fact liable as a principal and noting that a miscarriage of justice had not occurred. Furthermore, the Court stated that a “wrong decision” regarding party liability “does not warrant the allowing of the appeal.”