On one of those subtle issues that would only occur to lawyers, the Supreme Court has decided how appeals under s 232(2)(b) of the Criminal Procedure Act 2011 against convictions in judge-alone trials, where the issue is the judge's assessment of the evidence, should be approached: Sena v Police [2019] NZSC 55.
They are not reviews, they are rehearings.
The difference? Reviews make allowance for the notion that reasonable minds may differ, and that, even if the appeal court might have reached a different conclusion, the judge’s verdict will be upheld if it was within the bounds of what was reasonable. Rehearings require the appeal court, once persuaded by the appellant that an error has occurred, to reach its own conclusion on the record of the evidence. But rehearings are not fresh hearings; the appeal court will recognise that in making findings of fact the trial judge had the advantages of seeing and hearing the witnesses, and had an overview which might not be available to appeal judges who may be given by counsel a rather selective view of the evidence. Where credibility is in issue, the appeal court will exercise “customary caution” (at [38]).
On rehearing, the appeal court will focus on whether it can be satisfied of guilt beyond reasonable doubt. This differs from a verdict insofar as if the court is not so satisfied it will usually order a new trial, rather than enter an acquittal, although the latter course may be taken in appropriate circumstances, such as long passage of time, the completion of a sentence, the unavailability of witnesses, or the compelling nature of fresh evidence of innocence.
On rehearing, the appeal court will focus on whether it can be satisfied of guilt beyond reasonable doubt. This differs from a verdict insofar as if the court is not so satisfied it will usually order a new trial, rather than enter an acquittal, although the latter course may be taken in appropriate circumstances, such as long passage of time, the completion of a sentence, the unavailability of witnesses, or the compelling nature of fresh evidence of innocence.
Sena does not decide how appeals under s 232(2)(a) from jury verdicts should be approached. The Court was careful to specify that it was dealing with appeals from judge-alone verdicts.
Section 232 is silent on whether either of these sorts of appeals are reviews or rehearings. The Court’s extensive survey of the previous law and the various interpretations of earlier legislation demonstrates how the correct approach to these appeals has not always been clear.
There was some mention of appeals against verdicts in jury trials, under the old law. This was relevant because the first appeal in Sena had been to the High Court, which had applied the jury verdict approach to this judge-alone verdict (at [2]).
The old law on the reasonableness of jury verdicts had been considered by the Supreme Court in R v Owen [2007] NZSC 102, which I noted here. As summarised in Sena, under that law “the ultimate issue for the appellate court was whether the jury could not reasonably have been satisfied of guilt beyond reasonable doubt” (at [14]). This required exercising a review function, not the appeal court substituting its own view of the evidence for that of the jury.
So we are left wondering whether there will continue to be a difference between appeals from judge-alone verdicts (now, rehearings) and appeals from jury verdicts (used to be review, but what now?)
A clue, almost so subtle that if you look at it directly it disappears, is in footnote 43 of Sena.
No one is saying that the review-or-rehearing classification is watertight for all kinds of appeal. Appeals brought under s 232(2)(c), claiming a miscarriage of justice for any reason, might involve issues concerning the correctness of a trial judge's exercise of a discretion together with other issues that are appropriately considered by way of rehearing.
[Update: For application of Sena, (to a case decided before the judgment in Sena was delivered), illustrating a failure to give adequate reasons for convictions in a judge-alone trial, see Webster v Police [2019] NZHC 1335.]
No one is saying that the review-or-rehearing classification is watertight for all kinds of appeal. Appeals brought under s 232(2)(c), claiming a miscarriage of justice for any reason, might involve issues concerning the correctness of a trial judge's exercise of a discretion together with other issues that are appropriately considered by way of rehearing.
[Update: For application of Sena, (to a case decided before the judgment in Sena was delivered), illustrating a failure to give adequate reasons for convictions in a judge-alone trial, see Webster v Police [2019] NZHC 1335.]
