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.

On being helpful

A defendant’s right to a fair trial is an absolute right, but is the right to procedural fairness absolute? Can a trial be fair if its procedure is less than fair?

At sentencing, the defendant may claim mitigation for having given assistance to the authorities. There may be good reasons for not making public the fact that such assistance was given, and procedures may be in place to provide information to the judge on a confidential basis. Such information can take the form of a memorandum prepared and agreed to by counsel for each side. But what if the prosecutor wishes to include information for the judge’s eyes only, favourable to the defendant, but where disclosure of it to the defendant might compromise ongoing investigations?

This was considered in HT v The Queen [2019] HCA 40 (13 November 2019). Three judgments were delivered, all agreeing in the result. The majority opinions were given jointly by Kiefel CJ, Bell and Keane JJ, with support from Gordon J. Generally, where this problem arises, counsel should approach the sentencing judge for an appropriate order restricting disclosure, for example to counsel for the defendant but not to the defendant, or for disclosure to independent counsel who will then obtain instructions from the defendant to the extent that it is possible to do so while still keeping the confidential information from the defendant. At the sentencing hearing suppression and non-publication orders, or an order for an in camera hearing, could also be made.

Nettle and Edelman JJ accepted that suppression and in camera orders could be used, but they dissented by holding that the defendant must see everything that the judge sees [59]. It should only rarely not be possible for counsel to agree on a memorandum describing assistance given by the defendant, and the drafting of a suitable memorandum must be done in the light of the prosecutor’s duty of fairness. They pointed to the need for legislation to cover situations where agreement could not be reached.

In New Zealand it has been held that there is no power to exclude the public from a sentencing hearing, or to hear submissions in chambers. There are rules concerning assistance to the authorities: Criminal Procedure Rules 2012, r 5A.8. Sentencing involves deciding on a starting point in view of the seriousness of the offending and the role of the offender, and then adjusting it for mitigating or aggravating circumstances relating to the offender, and then giving credit for any assistance rendered by the offender to the authorities, and finally giving such credit as is appropriate in the circumstances for any guilty plea. In the result, the mitigatory effect of assistance to the authorities can be substantial. Failure to follow the sealed envelope procedure in the rules led to problems in AB(CA300/2017) v R[2018] NZCA 51 (not publicly available online), where on appeal credit by way of reduction of sentence by one third was considered appropriate, in the absence of a guilty plea, but where important information had been given in relation to serious offending. Orders were made suppressing the details of the assistance, the identifying particulars of the appellant, and limiting access to the court file. The Court noted that there have been cases where, when credit for assistance is combined with that for a guilty plea, a reduction from the appropriate sentence of up to 60 per cent has been approved.