LEX & LORE Episode 1: The Push-Me-Pull-You of ACC Coverage | The Safety Valve of Three-Strikes Sentencing

08 April 2021 00:00 by Geoff McLay


From whose perspective should the risk of an unforeseen medical consequence be considered for the purposes of ACC compensation? Should unforeseen consequences be approached holistically by the courts, or broken up into a series of events? How do courts distinguish between injury and illness? Geoff and Dr Eddie Clark discuss the critical cases that provide an insight into these divisions in our healthcare system.

As the courts deal with a judicial backlog in the midst of a pandemic, Eddie shares his thoughts on the review of COVID-19 lockdown breach prosecutions. Are these prosecutions necessary as a deterrent, regardless of the judicial backlog in civil and criminal matters?

At the heart of this episode is Dr Nessa Lynch’s discussion on how presumptive sentencing has been applied under the three-strikes law and the potential for injustice to arise as a result. An inherent tension exists between mandatory sentencing and judicial discretion – manifest injustice ought to be a safety valve which can be applied by the courts, but how does this play out across the nuanced historical, cultural and personal circumstances of individuals who are sentenced on their third strike?

About the Guests

Dr Nessa Lynch, Associate Professor, Victoria University of Wellington
Specialises in criminal law, New Zealand Law Reports, discretion, youth justice and police action.

Dr Eddie Clark, Lecturer, Victoria University of Wellington
Areas of interest include Judicial review, administrative law, courts and democracy/public accountability.

Cases Discussed

ACC compensation:
W v ACC [2018] NZHC 937,  [2018] 3 NZLR 859
ACC v Ng [2018] NZHC 2848

Three-strikes sentencing:
Fitzgerald v R [2020] NZCA 292
R v Allen [2020] NZHC 1796

Individual accountability in sentencing:
Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648
Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37
Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 24