Wiley v R

• Jurisdiction: New Zealand
• Judge: Randerson
• Judgment Date: 24 February 2016
• Neutral Citation: [2016] NZCA 28
• Docket Number: CA71/2015
• Court: Court of Appeal
• Date: 24 February 2016

Between

Antoni Karl Wiley

Appellant

and

The Queen

Respondent

Between

Phillip Layton Edwards

Appellant

and

The Queen

Respondent

[2016] NZCA 28

Court:

Randerson, French and Miller JJ

CA71/2015

CA224/2015

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

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

• 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 provision continues to apply to criminal proceedings commenced prior to 1 July 2013. 1 The grounds of appeal under the new provision are broadly similar but there are some differences of expression. Section 385(1) provides:

385 Determination of appeals in ordinary cases

…

• (1) On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion–

  • (a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

  • (b) that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

  • (c) that on any ground there was a miscarriage of justice; or

  • (d) that the trial was a nullity–

    and in any other case shall dismiss the appeal:

  provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

4 Section 232 of the CPA provides:

232 First appeal court to determine appeal

• (1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

• (2) The first appeal court must allow a first appeal under this subpart if satisfied that,–

  • (a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or

  • (b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

  • (c) in any case, a miscarriage of justice has occurred for any reason.

• (3) The first appeal court must dismiss a first appeal under this subpart in any other case.

• (4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that–

  • (a) has created a real risk that the outcome of the trial was affected; or

  • (b) has resulted in an unfair trial or a trial that was a nullity.

• (5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

5 Appellate courts had settled the modern approach to s 385, including the proviso, in a series of decisions following enactment of the New Zealand Bill of Rights Act 1990 (NZBORA): Sungsuwan v R, Condon v R, Owen v R, Matenga v R, R v Gwaze, and Guy v R. 2 The question arises whether the legislature intended any change to that approach.

6 Mr Lillico submitted for the Crown that the legislative history of s 232 made it clear the legislature intended to simplify and consolidate the law in respect of conviction appeals while ensuring the core principles established under s 385 were retained. Mr Cook, as counsel appointed to assist the Court, endorsed this approach. Mr Pyke for Mr Edwards took a slightly different view as we later discuss. Mr Fairbrother QC for Mr Wiley generally supported Mr Pyke's submissions.

7 We propose to summarise the changes effected by the new section and then deal with the approach to miscarriage of justice under s 385. We will then discuss the legislative history leading to the new section and express our views as to its interpretation.

The changes effected by the new section

8 The most obvious changes in the new section are the removal of the proviso in s 385 and the introduction of a definition of miscarriage of justice. We discuss the effect of these changes below.

9 Other changes include:

• (a) The clarification of the unreasonable verdict ground to remove the alternative of a verdict that “cannot be supported having regard to the evidence”. 3

• (b) The addition of a discrete appeal ground for Judge-alone trials in subs (2)(b).

• (c) The removal of errors of law as a separate appeal ground.

• (d) The introduction of subs (5) which provides that a “trial” for the purposes of the miscarriage of justice ground includes a proceeding in which the appellant pleaded guilty. 4

10 We summarise the broad effects of the new section:

• (a) For jury trials, there are two grounds of appeal:

  • (i) The verdict was unreasonable having regard to the evidence; or

  • (ii) For any reason, a miscarriage of justice has occurred.

• (b) For Judge-alone trials, there are two grounds of appeal:

  • (i) An error in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

  • (ii) For any reason, a miscarriage of justice has occurred.

• (c) The unreasonable verdict ground applicable to jury trials stands alone. The court must be satisfied that no jury applying the criminal standard of proof could reasonably have reached a guilty verdict on the evidence. 5 There is no requirement to go further to show a miscarriage of justice has occurred. If the unreasonable verdict ground is established, the section presumes the verdict cannot be supported.

• (d) We did not hear any argument about the effect of subs (2)(b) which relates solely to Judge-alone trials. It is not material to the appeals before us and we do not propose to offer any views on it. We simply note that the subsection requires the court to be satisfied there was an error in the Judge's assessment of the evidence and this was to such an

  extent that a miscarriage of justice has occurred. Necessarily therefore, the definition of miscarriage of justice in subs (4) is engaged.

• (e) Once the court is satisfied a ground of appeal under s 232 is established, no discretion remains. The appeal must be allowed. Conversely, if the court is not satisfied a ground of appeal is established, the appeal must be dismissed.

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

11 The approach to miscarriage of justice and, in particular, to the proviso was discussed and settled by the Supreme Court in Matenga. 6 The Court briefly traversed the history of the proviso...