Wiley v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRanderson
Judgment Date24 Feb 2016
Neutral Citation[2016] NZCA 28
Docket NumberCA71/2015

[2016] NZCA 28

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Randerson, French and Miller JJ

CA71/2015

CA224/2015

Between
Antoni Karl Wiley
Appellant
and
The Queen
Respondent
Between
Phillip Layton Edwards
Appellant
and
The Queen
Respondent
Counsel:

E R Fairbrother QC for Appellant Wiley

W C Pyke for Appellant Edwards

M J Lillico and M L Wong for Respondent

K H Cook as Counsel Assisting

Appeal by the first appellant against his conviction for two counts of wounding with intent to cause grievous bodily harm and aggravated burglary — the sole issue at his trial was whether the jury could be sure W was the offender — appeal by the second appellant against his conviction under s210 Crimes Act (“CA”) (abduction of young person under 16) on the basis the Judge had misdirected the jury that a “taking” could involve a continuing act — the two appeals were heard together at the request of the Court with a view to a judgment dealing with the interpretation of s232 Criminal Procedure Act 2011 (first appeal court to determine appeal) — consideration of the definition “miscarriage of justice” as a ground of appeal against conviction — whether the legislative history pointed to a legislative intention to change the approach settled in Matenga v R [2009] 3 NZLR 145 — whether the identification evidence in the trial had been sufficient — whether “taking” under s210 CA could involve a continuing act.

The issues were: what was the definition of “miscarriage of justice” under s232 CPA; whether the legislative history pointed to a legislative intention to change the approach settled in Matenga v R [2009] 3 NZLR 145; whether the identification evidence in W's trial had been sufficient; and whether “taking” under s210 CA could involve a continuing act.

Held: The approach to miscarriage of justice and, in particular, to the proviso was discussed and settled by the Supreme Court in Matenga v R [2009] 3 NZLR 145. In Matenga, the Supreme Court began by finding the proviso could not apply to the unreasonable verdict or nullity grounds of appeal since, if either of those grounds were established, they must constitute a substantial miscarriage of justice. The approach adopted in Matenga to miscarriage of justice as a ground of appeal in s385(1)(c) CA concerned: establishing whether there was an error or irregularity; exclude irregularities which plainly could not, either singularly or collectively, have affected the result of trial; whether the adverse effect potentially arising from an error of that type “may actually have occurred”. If the court was satisfied a miscarriage of justice might actually have occurred then the Court may exercise its discretion to dismiss the appeal. In terms of the proviso to s382(2) CA, the expression a “substantial wrong or miscarriage of justice” required the Court to be satisfied that the error was “highly material to verdict, so that the integrity of verdict was undermined by it”.

The legislative history suggested there was no intention to make any substantive change to the law as it was understood under s385 CA.

Under s232 CA, “miscarriage of justice” meant any error, irregularity, or occurrence in or in relation to or affecting the trial that had created a real risk that the outcome of the trial was affected pursuant to s232(4)(a) CPA or had resulted in an unfair trial or a trial that was a nullity pursuant to s232(4)(b) CPA. The inquiry involved a two-step process: was there an error, irregularity or occurrence in or in relation to or affecting the trial and, if so, whether either of the two states of affairs in s232(4)(a) or (b) arose in consequence. A preliminary but important point applicable to both limbs of s2324(a) and s232(4)(b) CPA was the distinction to be drawn between the unreasonable verdict ground under s232(2)(a) CPA and the miscarriage of justice ground under s232(2)(c) CPA

Under s232(4)(a) CPA any such error, irregularity or occurrence may have arisen in the trial itself or in relation to the trial or affecting the trial. The Court did not attempt to define the range of matters which could fell within the scope of that part of the definition. A broad approach was supported by s25(h) New Zealand Bill of Rights Act 1990 (“NZBORA”) (minimum standards of criminal procedure - the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both) and the need to ensure the right of appeal is effective. Under s232(4)(a) CPA, the court must be satisfied that an error had created a real risk that the outcome of the trial was affected. The use of the term “real” meant that the inquiry was concerned with realistic rather than theoretical possibilities. Section 232(4)(a) CPA focused on an assessment of the potential risk of a different outcome.

The unfair trial ground was not specifically mentioned in s385(1) CA but was nevertheless a well understood ground of appeal even before the introduction of the NZBORA which affirmed the right to a fair and public hearing by an independent and impartial court.

It remained open under s232(2)(c) CPA for the Crown to endeavour to persuade the court that a conviction was inevitable in the Matenga sense despite the error identified. The removal of the term “substantial” was to overcome the awkwardness in s385 CA of distinguishing a miscarriage of justice from a substantial miscarriage of justice and to avoid the perception that public confidence could be undermined if a finding that a miscarriage of justice had occurred was insufficient by itself to warrant the overturning of a conviction. The legislative history showed that Parliament clearly had not intended to alter the substantive law on miscarriage. The removal of the proviso did not point to any change to the approach to appellate review. Section 232 CPA had removed the apparent difficulty in reconciling the linguistic differences between a miscarriage and a substantial miscarriage of justice. Section 232 CPA did not require any materially different approach to conviction appeals from that prevailing in practice under s385 CA.

The “identification evidence” in relation to W was more properly referred to as “recognition evidence” given that the witnesses relied upon by the Crown for the purpose of identifying W had all known him for substantial periods of time. There had been sufficient evidence for the jury to be satisfied beyond reasonable doubt that W was the offender. W's appeal against conviction was dismissed.

In the context of s210 CA, a taking was to be interpreted as obtaining or getting possession of the young person. Taking away for the purposes of s210 CA may continue in fact beyond the point where the defendant initially obtained possession of the young person. Whether a taking away had occurred and the length of time for which it continued was a matter of fact and degree for the jury's assessment. It was inappropriate and artificial to draw a bright line distinction between the concepts of taking away and detention since the two may be closely linked. Taking away and detention were legally distinct for the purposes of s210 CA whether they were treated as separate offences or as alternative ways of committing the crime of abduction. The Crown had been entitled to specify the period it relied on for the purpose of establishing the taking away. E's appeal against conviction was dismissed.

  • A The application for an extension of time to file the appeal in CA71/2015 is granted.

  • B The appeal against conviction by Mr Wiley (CA71/2015) is dismissed.

  • C The appeal against conviction by Mr Edwards (CA224/2015) is dismissed.

  • D Order prohibiting publication of name, address, occupation or identifying particulars of the person described in this judgment as W pursuant to s 202 of the Criminal Procedure Act 2011.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Randerson)

Table of Contents

Para No

Introduction

[1]

The interpretation of s 232

[3]

The changes effected by the new section

[8]

The approach to miscarriage of justice under s 385(1) of the Crimes Act

[11]

Legislative history leading to s 232

[14]

Miscarriage of justice under the CPA

[23]

Section 232(4)(a)

[26]

Section 232(4)(b)

[32]

The removal of the proviso

[42]

Conclusions

[56]

Mr Wiley's appeal

[57]

The facts

[58]

The identification evidence

[61]

Closing addresses

[69]

The summing-up

[70]

Discussion

[76]

Result

[83]

Mr Edwards' appeal

[84]

The facts

[86]

The respective cases at trial

[96]

The Crown case

[96]

The summing-up

[102]

The argument on appeal

[108]

Analysis

[111]

The statutory framework

[111]

Meaning of taking away or detaining

[120]

Do the expressions “taking away” and “detaining” in s 210 constitute separate and distinct offences?

[122]

Conclusions

[140]

Result

[149]

Introduction
1

These two appeals were heard together at the request of the Court with a view to a judgment dealing with the interpretation of s 232 of the Criminal Procedure Act 2011 (the CPA). A particular focus is the meaning to be given to the term “miscarriage of justice” as a ground of appeal against conviction.

2

We propose to deal first with the issue of interpretation before considering the two appeals.

The interpretation of s 232
3

Section 232 replaces s 385 of the Crimes Act 1961 although the latter...

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27 cases
  • S v R
    • New Zealand
    • Supreme Court
    • 20 December 2018
    ...result of the trial might have been different, that in any event being the inquiry under the first limb of the definition of miscarriage: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [37]; see also R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [77]. A failure in process can suffice to m......
  • Te Kani v R
    • New Zealand
    • Court of Appeal
    • 3 April 2017
    ...CA159/06, 12 September 2006 at [17]–[18] summarising the effect of Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730. See also Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [56] concluding the same approach applies to s 232 of Criminal Procedure Act as that which applied under s 385 of the Cri......
  • Hoeflich v Police
    • New Zealand
    • High Court
    • 8 August 2018
    ...8 9 10 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110]. Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]. Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at The first question on appeal is whether the Judge failed to properly consider and determine the factual circumstances of the p......
  • Hill v Police
    • New Zealand
    • High Court
    • 31 August 2017
    ...As will be seen it is relatively easy to identify the applicable principles; the difficulty lies in the application. 2 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [26]; Sungsuwan v R [2005] NZSC 57, 1 NZLR 730 at [67]. [6] In Henderson v R,3 the appellant claimed the trial Judge had acted ......
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