R v Henderson
[2014] NZCA 598
•8 December 2014 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA493/2014 [2014] NZCA 598 |
| BETWEEN | THE QUEEN |
| AND | JOHN ALEXANDER HENDERSON |
| Hearing: | 19 November 2014 |
Court: | Ellen France P, Asher and Clifford JJ |
Counsel: | D R La Hood and A R van Echten for Applicant |
Judgment: | 8 December 2014 at 12 pm |
JUDGMENT OF THE COURT
A The application for leave to appeal against the refusal to refer a question of law is dismissed.
BCosts are reserved. The respondent is to file submissions on costs within five working days of the date of this judgment and the applicant within five working days of the date of filing by the respondent.
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REASONS OF THE COURT
(Given by Asher J)
Introduction
As the Cook Strait ferry Santa Regina was berthing in Wellington on 26 April 2011 it was caught by a gust of wind, and it lightly struck a small unused vessel that was berthed nearby. As a result of this collision, the Santa Regina suffered a gash of 3.5–4 metres some six metres above the water line on the starboard quarter of “D” deck, and a 1.85 metre length of plating was opened up.
Following the collision the master of the ship, John Alexander Henderson, who is the respondent in this appeal, inspected the vessel. He did not discover this gash and the vessel departed on its next scheduled passage to Picton with the damage unrepaired. Another small gash that was nearby had been discovered and repaired. The larger gash was discovered when the vessel returned to Wellington the next morning.
Mr Henderson was charged in the District Court under s 64(1) of the Maritime Transport Act 1994 (the Act) with doing an act which caused unnecessary danger or risk. He elected trial by jury. The trial proceeded, and at the end of the Crown and defence evidence Judge Broadmore discharged Mr Henderson under s 347(3) of the Crimes Act 1961. Central to his decision was his conclusion, which is not challenged by the Crown, that no actual risk or danger to any person arose from Mr Henderson’s actions.[1]
[1]R v Henderson (No 3) DC Wellington CRI-2011-085-5182, 19 March 2014 at [26], [29] and [34].
On 10 April 2014 the Crown applied under s 381A of the Crimes Act to have two questions of law arising from the decision referred to this Court. In a decision delivered on 3 September 2014 Judge Broadmore declined to refer the questions to this Court.[2] One of his reasons was that he could see little practical purpose in a new trial.[3] The Crown now seeks leave to appeal the Judge’s refusal to refer the questions of law to this Court.
[2]R v Henderson DC Wellington CRI-2011-085-5182, 3 September 2014. At [40], the Judge referred to some observations of Mr La Hood in argument acknowledging the weakness of the Crown case at a new trial. Given the informal nature of the discussion and the qualified nature of Mr La Hood’s statements, we do not proceed on the basis of any concession by the Crown.
[3]See at [40].
There are three relevant decisions to be taken into account. The first is Judge Broadmore’s oral statement to the jury discharging Mr Henderson and briefly setting out his reasons for doing so. The second is the ruling R v Henderson (No 3) dated 19 March 2014 where the Judge amplified his reasons for allowing the application to discharge Mr Henderson.[4] The third is his decision of 3 September 2014 declining to state a case.[5]
The proposed questions of law
[4]R v Henderson (No 3), above n 1.
[5]R v Henderson, above n 2.
The questions that the Crown seeks to have referred to this Court are as follows:
(a)Was [the Judge] correct to conclude that, as a matter of law, for the element of causing “unnecessary danger or risk to any other persons” in s 64(1) of the Maritime Transport Act 1994 to be satisfied the evidence needed to be disclosed some risk which objectively could cause harm, and that it will not be satisfied in the circumstances where the master of a vessel fails to detect and properly address damage caused by the collision even if there was no objective possibility of harm posed by the condition of the vessel?
(b)Was [the Judge] correct to conclude that there was insufficient evidence for the jury to find that Mr Henderson failed to conduct an adequate inspection of the vessel?
The Judge in his decision refusing to refer the questions to this Court proceeded on the basis that both questions gave rise to issues of law.[6] However, in his view, the first question of law had been “definitively resolved by a full bench of the Court of Appeal” in Tell v Maritime Safety Authority and he was not prepared to question that decision.[7] The Judge reviewed the facts in detail and indicated that he regarded Mr Henderson’s explanation as to what he did and other evidence as showing that there was an adequate inspection.[8]
[6]At [18] and [20].
[7]At [18]; Tell v Maritime Safety Authority [2008] NZAR 306 (CA).
[8]At [39].
The Judge referred back to his decision when he discharged Mr Henderson at the conclusion of the evidence.[9] In that earlier decision that he had given in orally explaining to the jury why the trial was not proceeding, the Judge said that he had concluded that the evidence was that all the areas of the ship that were “critical” had been thoroughly inspected. By this it can be taken that he meant that all parts of the ship where an impact could have caused risk or danger had been properly inspected by Mr Henderson.
Should leave be granted?
[9]At [39].
Section 381A provided:
381AQuestion of law arising out of discharge under section 347 or stay of prosecution may be referred to Court of Appeal
(1)A Judge who directs that an accused be discharged under section 347 or for any reason that a prosecution be stayed may, on the application of the prosecutor, refer for the opinion of the Court of Appeal any question of law arising out of that direction.
(2)The prosecutor must apply as soon as reasonably practicable after the Judge gives his or her reasons for the direction, and in no case later than 10 days after the reasons for the direction are given.
(3)When a question is referred to the Court of Appeal, the accused who has been discharged or whose prosecution has been stayed is subject to again being arrested or summoned to appear if the Court of Appeal orders a new trial.
(4)The Judge who refers a question to the Court of Appeal must approve and sign the form of the question.
(5)If the Judge refuses to refer a question to the Court of Appeal, the prosecutor may apply to the Court of Appeal for leave to appeal against that refusal.
(6)The Court of Appeal may, on considering any evidence it requires, grant or refuse leave.
(7)If leave to appeal is granted, a case must be stated for the opinion of the Court of Appeal as if the question had been referred under subsection (1).
Under s 381A(5) the prosecutor may apply to this Court for leave to appeal against a refusal by a Judge to refer a question to this Court. Under s 381A(6) this Court “may, on considering any evidence it requires, grant or refuse leave”. The legislative history of this section was summarised by this Court in R v Kim.[10] This Court has a discretion under s 381A(6) as to whether to grant the Crown leave to appeal. Section 381A, although it applies to this application, is now replaced by the new regime set out in subpart 8 of pt 6 of the Criminal Procedure Act 2011.
[10]R v Kim [2009] NZCA 294 at [19]–[21].
Before us Mr La Hood for the Crown accepted that there was actual no risk to the ship or its passengers as a consequence of the gash in question. In our assessment this was not the original approach of the Crown, which embarked on the trial on the basis that Mr Henderson’s actions had caused actual risk or danger. It was driven to this concession by the evidence as it unfolded in the District Court.
As best we could discern, the real question of law that the Crown wished to raise was whether s 64(1) of the Act required some risk that could actively cause harm (such as dangerous water ingress), or whether even absent any possibility of actual harm arising in the circumstances, a master could be in breach of the section if there was a failure to carry out the proper procedures required as a matter of good practice (which in this case should have included internally inspecting the upper decks).
Whatever the merits of this argument, this is a proceeding of no practical moment. An inspection was carried out after the accident. The evidence was that the inspection to the parts of the ship where a gash could cause danger to the safety of the vessel was adequate. At worst any failure on Mr Henderson’s part following the collision will have been to not have carried out an adequate inspection of those parts of the ship where damage from an impact could not give rise to any danger. We see that as relatively unimportant and academic.
The incident in question took place over three and a half years ago. Under s 64 of the Act an individual on conviction can be imprisoned for up to 12 months or fined up to $10,000. Mr Henderson was involved in a five day hearing, and has lived with this serious charge hanging over him for a long time. If leave were granted there would then be further delay, and in due course a hearing of the appeal in this Court. Mr Henderson would face that hearing, and the prospect of a remission back to the District Court for a further trial of the same duration as the first. Such a trial would take place some four or five years after the incident in question.
Given the fact that it is accepted that there was no danger to the public, and given the relatively minor nature of any failing on Mr Henderson’s part (should that ultimately be proven), there is, in our view, no public interest in leave being granted, the questions of law being answered and Mr Henderson potentially facing a retrial. We do not think it in the interests of the good administration of justice that leave should be granted to continue such serious litigation, relating to such a minor alleged transgression.
For that reason we dismiss the application.
Result
The application for leave to appeal against the refusal to refer a question of law is dismissed.
Costs
Mr Orpin for the respondent requested that costs be reserved in the event the application was dismissed. We consider it is appropriate to reserve costs.[11] The respondent is to file submissions on costs within five working days of the date of this judgment and the applicant within five working days of the date of filing by the respondent.
[11]Costs are available for applications for leave to appeal under the schedule to the Costs in Criminal Cases Regulations 1987.
Solicitors:
Crown Solicitor, Wellington for Applicant
Izard Weston, Wellington for Respondent
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