Yusuke (David) Sena v New Zealand Police

• Jurisdiction: New Zealand
• Judge: William Young J
• Judgment Date: 24 May 2019
• Neutral Citation: [2019] NZSC 55
• Court: Supreme Court
• Docket Number: SC 60/2018
• Date: 24 May 2019

Between

Yusuke (David) Sena

Appellant

and

New Zealand Police

Respondent

[2019] NZSC 55

Court:

William Young, Glazebrook, O'Regan Ellen France and Winkelmann JJ

SC 60/2018

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Criminal Procedure — appeal against conviction — appeals following trial on indictment before a judge alone — difference in approach to appeals from judge — alone trials depending on whether Summary Proceedings Act 1957 or Crimes Act 1961 applied — Judge's reasoning — Criminal Procedure Act 2011

Counsel:

D P H Jones QC and H T Drury for Appellant

M J Lillico and J E L Carruthers for Respondent

• A The appeal is allowed.

• B The convictions of the appellant are quashed.

• C We direct a new trial.

JUDGMENT OF THE COURT

REASONS

(Given by William Young J)

Table of Contents

	Para No.
The appeal	[1]
The correct appellate approach	[4]
The Summary Proceedings Act 1957	[7]
Section 385 of the Crimes Act 1961	[11]
Appeals following trial on indictment before a judge alone	[15]
Was there a significant difference in approach to appeals from judge-alone trials depending on whether s 119 of the Summary Proceedings Act or s 385 of the Crimes Act applied?	[20]
The legislative history of s 232(2)(b)	[23]
Is an appeal under s 232(2)(b) by way of rehearing?	[26]
The appellant's arguments as to what is required under s 232(2)(b)	[33]
Our approach to s 232(2)(b)	[36]
The challenge to the factual findings of the Judge	[41]
The general factual background	[41]
Our general approach	[46]
The events of 9 January 2016	[48]
The Judge's reasons	[51]
The High Court judgment	[53]
Do the reasons reveal an error in the “assessment of the evidence”?	[54]
The other charges	[59]
Other complaints about the reasons	[60]
Result	[65]

The appeal

1 Following a judge-alone trial, Judge Henwood found the appellant guilty on five charges of assaulting his children, S and K. 1 His appeal to the High Court against conviction and sentence was dismissed by Downs J, 2 as was a later application to the Court of Appeal for leave to appeal against conviction. 3

2 The appeal to Downs J was brought under s 232(2)(b) of the Criminal Procedure Act 2011. This provides for a first appellate court dealing with a challenge to a finding of fact made in judge-alone proceedings to allow the appeal if satisfied that:

… the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; ….

In Gotty v R, the Court of Appeal held that the factual findings of a judge sitting alone are to be treated on appeal as the equivalent of a jury verdict with the result that the principles applicable to factual challenges to jury verdicts also apply to s 232(2)(b). 4 This approach was adopted by both Downs J in dismissing the appeal to the High Court and by the Court of Appeal in refusing the appellant's application for leave to appeal against the judgment of Downs J. 5

3 There being room for debate whether the Gotty approach is correct, 6 this Court granted the appellant leave to appeal direct from the judgment of Downs J. 7

The correct appellate approach

4 Section 232 of the Criminal Procedure Act 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 Primarily relevant to this appeal is s 232(2)(b). But so too is s 232(2)(c). And material to both is the definition of “miscarriage of justice” in s 232(4).

6 Section 232 replaced appeal provisions in: (a) the Summary Proceedings Act 1957 governing appeals to the High Court against conviction in the District Court in respect of offences tried summarily; and (b) s 385 of the Crimes Act 1961 which provided for appeals to the Court of Appeal from convictions following trial on indictment. In assessing the legislative purposes which s 232 implements, it is necessary to understand the operation of those appeal provisions.

The Summary Proceedings Act 1957

7 This Act provided for the summary trial of offences with such trials typically (but not always) heard by professional judges, initially, stipendiary magistrates and, since 1980, District Court judges. Section 115 gave defendants a general right of appeal to the High Court against conviction. The procedure for such appeals was provided for by s 119 which, immediately before the Criminal Procedure Act came into effect, was in these terms:

119 Procedure on appeal

• (1) All general appeals shall be by way of rehearing.

• (2) Where any question of fact is involved in any appeal, the evidence taken in the District Court bearing on the question shall, unless the High Court otherwise directs, be brought before the High Court as follows:

  • (a) as to any evidence given orally, by the production of a copy of any note made by the District Court Judge or Justice or Justices or such other materials as the High Court may deem expedient:

  • (b) as to any evidence taken by affidavit and as to any exhibits, by the production of the affidavits and of such of the exhibits as may have been forwarded by the Registrar of the court appealed from and by the production by the parties to the appeal of such exhibits as are in their custody:

  • (c) as to any evidence taken under section 31 (which relates to taking the evidence of a defence witness at a distance) or under section 32 (which relates to taking the evidence of a person about to leave the country), or any statement admitted under section 33 (which relates to the admissibility of a statement made by a person who is seriously ill), by the production of a copy of that evidence or statement:

  provided that the High Court may in its discretion rehear the whole or any part of the evidence, and shall rehear the evidence of any witness if the court has reason to believe that any note of the evidence of that witness made by the District Court Judge or Justice or Justices is or may be incomplete in any material particular.

• (3) The High Court shall have the same jurisdiction and authority as the District Court, including powers as to amendment, and shall have full discretionary power to hear and receive further evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing, and for that purpose shall have the same jurisdiction and authority to make any order under section 31 or section 32 as the court from whose decision the appeal is made, or a District Court Judge, had.

8 The language of s 119 was largely borrowed from s 76 of the Magistrates' Courts Act 1947 which provided for appeals by way of rehearing in civil cases. In turn, s 76 broadly reflected the Judicature Act 1908 provision in respect of civil appeals from the Supreme Court to the Court of Appeal.

9 The nature of the appeal “by way of rehearing” provided for by s 119(1) was addressed in many judgments. The cases soon established that a de novo hearing on the merits was not required, 8 with the approach adopted in respect of civil appeals being treated as applicable to s 119. 9 This meant that the appellate court was required to form, and act on, its own assessment of the evidence, albeit that: 10

• (a) the onus was on the appellant to establish an error on the part of the trial judge; and

• (b) this would be difficult to do in cases where the complaint was directed at the facts as found by the trial judge (as distinct from the inferences to be drawn from, or an evaluative assessment of, them) and especially so in cases where those findings of fact were based on credibility assessments.

10 In a number of s 119 appeals, appellants complained as to the absence, or inadequacy, of the reasons given by the judge (or occasionally justice of the peace) when finding them guilty. 11 In R v Awatere —a case decided in 1982 —the Court of Appeal stopped short of imposing an absolute obligation to provide reasons. 12 But the reality, even then, was that an unreasoned decision was highly likely to be set aside on appeal 13 and, by the end of the last century, a requirement to give reasons not only applied to professional judges but had also been extended to lay justices of the peace dealing with minor summary offences. 14 What this meant in practice was that the

requirement to show an error on the part of the judge could be discharged by reference to the particular reasons given for the decision. As Fisher J in Herewini v Ministry of Transport observed, a recognised ground for an appeal under s 119 was “a factual error in the assessment of the evidence upon which the conviction was based”. 15

Section 385 of the Crimes Act 1961

11 This section provided for appeals following trial on indictment:

385 Determination of appeals in ordinary cases

…

• (1) On any appeal …, the Court of Appeal … 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...