Tempora mutantur nos et mutamur in illis - or do we?

Would the result in Lundy v R [2019] NZSC 152 have been the same if it had been determined under our current appeal provisions, s 232 of the Criminal Procedure Act 2011?

Applying the former law, the Supreme Court held that the wrongful admission of evidence at trial had not created a substantial miscarriage of justice because if the error had not occurred guilt would still have been proved beyond reasonable doubt, and the trial had not been unfair because the error was not fundamental. It was not necessary to consider the new law, or the extent to which the old law might be affected by the legislative change. But this is really the live issue for lawyers.

If the new law had applied to the Lundy appeal, s 232(4)(a) would be of central concern: did the error at trial create “a real risk” that the outcome of the trial was affected?

It is helpful to consider some dicta from the High Court of Australia in Baini v The Queen [2012] HCA 59. I have previously discussed this case here (December 13, 2012).  As a matter of interpretation, the Court had to ask what was the relevance of a former appeal provision (similar to our former one) to ascertaining the meaning of a new appeal provision. The new legislation considered in Baini is set out at [12], and although its form and language differs from ours, the difference is not presently material. The approach to its construction is described at [14]-[15]. The majority judges then made three observations:

At [29]:

“First, in many cases ... an appellate court will not be in a position to decide whether the appellant must have been convicted if the error had not been made. The nature of the error, irregularity or cause of complaint contemplated by [the legislation] will often prevent that conclusion from being reached by an appellate court on the record of the trial given the "natural limitations" [Footnote: See Dearman v Dearman (1908) 7 CLR 549 at 561; [1908] HCA 84; Fox v Percy (2003) 214 CLR 118 at 125-126 [23]; [2003] HCA 22.] that attend the appellate task.”

At [31]:

“If it is submitted that a guilty verdict was inevitable, an appellant need not prove his or her innocence to meet the point. An appellant will meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter, it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant's conviction was inevitable.”

And at [32]:

“... the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. (Whether the verdict was open is the question presented by [the equivalent of New Zealand’s s 232(2)(a)].) If it is said that a guilty verdict was

inevitable (which is to say a verdict of acquittal was not open), the Court of

Appeal must decide that question on the written record of the trial with "the

'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record” [Footnote: Fox v Percy (2003) 214 CLR 118 at 125-126 [23]]. That the jury returned a guilty verdict may, in appropriate cases [Footnote: See generally Weiss (2005) 224 CLR 300 at 317 [43]; Baiada Poultry Pty Ltd v The Queen (2012) 86 ALJR 459 at 466 [28]; 286 ALR 421 at 430; [2012] HCA 14.], bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt [Footnote: cf R v Grills (1910) 11 CLR 400 at 431 per Isaacs J; [1910] HCA 68.] Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.”

And at [33]:

“...an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a "... miscarriage of justice" if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a ... miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.”

There would be no “real risk” that the outcome of the trial had been affected by the error if the appeal court could be satisfied that the verdict was inevitable. That was the position in Lundy. The result would have been the same under our new law. On this view, our new law would continue the practice of sometimes allowing appeal courts to effectively act in place of a jury. It will be important to identify whether a case falls into the category mentioned at [29] of Baini, as opposed to the category mentioned at [31], and to decide whether this classification is determined by the respondent’s tactic in argument.

But the other view, and the one which I prefer, is (developing what is said at [31] above) that once the appellant shows a real risk that the verdict was adversely affected by the error, it is for the respondent to dispute that; the issue is not inevitability, just real risk. The appeal judges do not act as jurors; they just decide the real risk issue.

Update: A year later, on 18 December 2020, the New Zealand Supreme Court decided how appeals against conviction based on alleged error relating to a trial (ie not those involving allegedly unreasonable verdicts, unfairness or nullity) should be approached. Effectively, the Court read-in a proviso: if an error that is not immaterial or inconsequential is identified, and if it gave rise to a real risk that the result of the trial was affected, then the appeal court must decide whether it is satisfied of the appellant's guilt. The appeal will be allowed, provided (my word) that it will be dismissed if the appeal court is satisfied of the appellant's guilt: [Name Suppressed] v R [2020] NZSC 153. This is not the approach I have preferred. It amounts to a trial by appellate judges, in the appellant's absence, without witnesses appearing, and in reliance on the record of the trial in the lower court.