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Accident Compensation Cases

M v Accident Compensation Corporation (HC, 02/08/06)

Judgment Text

ORAL JUDGMENT OF RANDERSON J 
Randerson J
[1]
This is an application for leave to appeal to the Court of Appeal under s 163 Injury Prevention Rehabilitation and Compensation Act 2001. 
[2]
This follows the delivery of my judgment on 12 May 2006 dismissing an appeal from a decision of Judge Ongley in the District Court. That decision was itself an appeal from a decision of the Accident Compensation Corporation denying cover to the appellant for mental or nervous shock suffered by her upon discovering that her sexual partner was HIV positive. 
[3]
Mr Miller for the appellant has sought leave to appeal on three questions of law which are as follows: 
[a]
Does the wording of s 8(3) and the First Schedule [of the 1992 Act] include any criminal offence of a sexual nature and if so is the offence of criminal nuisance in this case, which had a sexual component, so included? 
[b]
If cover is restricted to the specific criminal offences listed in the First Schedule does the wording in s 8(3) and (4) mean that not all the elements of those criminal offences need be established so that the acts involved in this case come within the description of any of those offences? 
[c]
If cover is restricted to the specific offences listed in the schedule is the action of the offender in withholding his HIV status from the claimant sexual violation or indecent assault? 
[4]
Having heard from counsel, it is not in dispute that the principles under s 163(1) of the 2001 Act are similar to those which are applied on an application for leave to appeal to the Court of Appeal under s 67 Judicature Act 1908. Under that provision, there must be some question of law capable of bona fide and serious argument involving some interest public or private of sufficient importance to warrant the further appeal: Waller v Hider [1998] 1 NZLR 412
[5]
I am satisfied that it is appropriate to apply that test in the present case, although as Mr Barnett has pointed out, an appeal to the Court of Appeal under this legislation is effectively a third appeal. Despite that difference, it seems to me appropriate for the same or similar test to be applied under s 163. 
[6]
The first two questions posed in the application for leave were dealt with by me in my judgment. I am not persuaded that there is any fairly arguable question of law arising in relation to those two issues for the reasons set out in my judgment. In relation to those two questions leave to appeal is refused. 
[7]
However in relation to the third question, I made it clear in my judgment that, while in my view the law does not currently provide that the failure to disclose HIV status to a sexual partner vitiates consent to sexual intercourse or indecent assault, there have been some suggestions in the law elsewhere which might favour that argument. In particular, the decision of the Supreme Court of Canada in R v Cuerrier [1998] 2 SCR 371 and some obiter remarks made by the Court of Appeal in R v Yong Bum Lee CA 437/04 7 April 2006 at [309]. My view of the matter was that a substantive change in the existing criminal law should properly be a matter for Parliament but I acknowledge that the Court of Appeal could take a different view on that point. 
[8]
Mr Barnett has pointed out that in terms of s 163(4) of the 2001 Act the decision of the Court of Appeal on any appeal is final and there is no appeal to the Supreme Court. However, it seems to me that that is not a factor which should militate against the grant of leave, indeed I view it as a factor in favour of leave. It is, however, a matter which might go to the willingness or otherwise of the Court of Appeal to make a substantive change in the criminal law without the benefit of a further appeal to the Supreme Court. That however is a matter to be dealt with on the appeal. 
[9]
Mr Barnett has also mentioned that, if leave is granted, it may be worthwhile for the Court of Appeal to consider whether leave should be granted to the Solicitor-General to intervene, in view of the implications for the criminal law of the change which the appellant seeks to the existing law. That is a matter for the Court of Appeal but on the face of things it does seem to have some merit. Alternatively, the Court of Appeal may seek to appoint an amicus. However I do not presume to advise the Court of Appeal upon these matters. They are a matter for that court to determine. 
[10]
After discussion with counsel and hearing opposing argument, I have decided to grant leave to appeal on the substantive issue in this case. I am satisfied there is a question of law which ought to be determined by the Court of Appeal and it is of sufficient public importance to warrant a further appeal. I have discussed the form of the question with counsel. It will be as follows: 
Whether the failure of the appellant's partner to disclose his HIV status to the appellant is capable of vitiating her consent to sexual intercourse so as to constitute a sexual violation or indecent assault for the purposes of cover for mental or nervous shock under s 8 and the First Schedule of the Accident Rehabilitation and Compensation Insurance Act 1992. 
[11]
Leave is granted to the appellant on the basis of that question of law. 

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