Monday, December 02, 2019

Appellate review to identify miscarriages of justice in conviction appeals

If you were ever worried about whether conviction appeals under s 232(2)(c) and (4) of the Criminal Procedure Act 2011 are determined by way of review or by rehearing, relax. Just by looking at Misa v R [2019] NZSC 134 you can see that the appeal court does not try to reach its own verdict (as it would if an appeal were to be heard by way of rehearing), so the approach is by way of review.

Just a wee cautionary note: don’t be confused by s 78 of the Senior Courts Act 2016, which provides that appeals to the Supreme Court are heard by way of rehearing. It just means a rehearing of the appeal in the court below, which was by way of review: see Sena v Police [2019] NZSC 55 (discussed here) at [25, fn 41] (referring to an identical earlier provision).

True, the Court in Misa does not declare itself to be conducting a review of what happened at the trial, but its focus was on substance rather than terminology. In substance ([48]): “the question is whether the error, irregularity, or occurrence in or in relation to or affecting this trial has created a real risk the outcome was affected. That, in turn, requires consideration of whether there is a reasonable possibility another verdict would have been reached.”

The second sentence elaborates the first which is a repetition of the statutory language of s 232(4)(a). That is, “real risk” equals “reasonable possibility” and “was” equals “would”.

On the facts, the proposed new evidence would not have made any material difference, so there was no error, irregularity or occurrence in or in relation to or affecting the trial that created a real risk that the outcome was affected (at [77]).

This conclusion was reached, not by the Court considering the whole of the evidence and reaching its own verdict, but by identifying the defence strategy at trial and assessing the effect of the proposed new evidence on that (at [74]). The defence strategy was to allege collusion as an explanation of the similarity of the evidence of two prosecution witnesses, thereby undermining them both. It was not to create differences between the witnesses. In the circumstances the chosen defence strategy was sound, and there had been no error of trial counsel in using it. Further, the proposed new evidence was not inconsistent with evidence that had been given at trial and it raised no new issues (see [76] and its references to the jury’s perspective).

But, you may say, won’t the Crown usually oppose the appeal against conviction by arguing that the conviction was inevitable on the evidence, so that to address that argument the appellate court will have to come to its own verdict? In other words, rehear the case on the record of the trial? That this is not precluded was recognised in Wiley v R [2016] NZCA 28 at [44], [49].

The Court in Misa did not have to address this aspect of Wiley, which was upheld in other respects (at [36]-[37]). Instead of arguing that the verdict was inevitable, the Crown here submitted, successfully, that the new evidence was inconsequential.