Misa v R

Case [2019] NZSC 134 2 December 2019

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 93/2018
[2019] NZSC 134

BETWEEN	LEMUEL MISA Appellant
AND	THE QUEEN Respondent

Hearing:	11 July 2019
Court:	Winkelmann CJ, Glazebrook, Ellen France, Williams and Arnold JJ
Counsel:	W C Pyke for Appellant B J Horsley and M L Wong for Respondent
Judgment:	2 December 2019

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS
(Given by Ellen France J)

Table of Contents

Para No.
Introduction	[1]
Background circumstances and evidence	[3]
*Background*	[4]
*The trial*	[13]
*The Court of Appeal judgment*	[20]
The interpretation of “miscarriage of justice” in s 232(4)(a) of the Criminal Procedure Act 2011	[32]
*Submissions*	[37]
*The correct approach*	[38]
Was there a miscarriage of justice in this case?	[49]
*The new evidence*	[50]
*The approach taken in the Court of Appeal*	[57]
*Submissions*	[62]
*Assessment*	[65]
The directions about delay in complaint	[78]
Need for a direction under s 122(2)(e) of the Evidence Act 2006? Result	[81] [85]

Introduction

Lemuel Misa was convicted after a jury trial of 20 charges of acts of physical and sexual abuse against two complainants whom we shall call AB and BC. He was sentenced to a term of imprisonment of 13 years and six months.[1] He appealed unsuccessfully to the Court of Appeal against conviction[2] and now appeals with leave to this Court. The approved question is “whether there was a miscarriage of justice at [Mr Misa’s] trial”.[3] The following issues arise from that question:
(a)the proper approach to a “miscarriage of justice” under s 232(2)(c) and (4)(a) of the Criminal Procedure Act 2011 which sets out when an appeal against conviction must be allowed; and
(b)whether a miscarriage of justice has arisen in this case.
[1]R v Misa [2016] NZDC 15027 (Judge Bouchier).
[2]Misa v R [2018] NZCA 293 (Cooper, Whata and Thomas JJ) [Misa (CA)].
[3]Misa v R [2019] NZSC 42.
The first of these issues provides an opportunity for the Court to address aspects of the interpretation of s 232.[4] The second issue will turn, primarily, on the effect of the additional evidence adduced in support of the appeal to the Court of Appeal and also on various aspects of the summing up. We deal with the interpretation of s 232 first and then turn to the application of our approach to this case. We begin by setting out the relevant background.

Background circumstances and evidence

[4]This case relates to a jury trial so does not engage s 232(2)(b), which was dealt with in Sena v New Zealand Police [2019] NZSC 55.

The relevant background material is set out in the judgment of the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Misa v R

Details

AGLC: Misa v R [2019] NZSC 134
Case: [2019] NZSC 134
Decision Date: 2 December 2019

CaseChat Overview and Summary

The appeal was brought by Lemuel Misa against his conviction for 20 charges of acts of physical and sexual abuse against two complainants, AB and BC. The appeal was dismissed by the Supreme Court of New Zealand. The appeal raised two main issues. The first issue was the interpretation of “miscarriage of justice” under s 232(2)(c) and (4)(a) of the Criminal Procedure Act 2011. The second issue was whether a miscarriage of justice had arisen in this case. The court held that the proper approach to a “miscarriage of justice” under s 232(2)(c) and (4)(a) of the Criminal Procedure Act 2011 was to assess whether there was a real risk that the outcome of the trial was affected. The court also held that there was no miscarriage of justice in this case. The new evidence adduced in support of the appeal did not have a material impact on the outcome of the trial. The court concluded that 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. The appeal was therefore dismissed.

Orders