Sena v Police

Case [2019] NZSC 55


NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

 SC 60/2018
 [2019] NZSC 55
BETWEEN

YUSUKE (DAVID) SENA
Appellant

AND

NEW ZEALAND POLICE
Respondent

Hearing:

13 February 2019

Court:

William Young, Glazebrook, O’Regan, Ellen France and Winkelmann JJ

Counsel:

D P H Jones QC and H T Drury for Appellant
M J Lillico and J E L Carruthers for Respondent

Judgment:

24 May 2019

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe convictions of the appellant are quashed.

CWe direct a new trial.

____________________________________________________________________

REASONS
(Given by William Young J)

Table of Contents

Para No.
The appeal [1]
The correct appellate approach [4]
The Summary Proceedings Act 1957 [7]
Section 385 of the Crimes Act 1961 [11]
Appeals following trial on indictment before a judge alone [15]
Was there a significant difference in approach to appeals from judge-alone trials depending on whether s 119 of the Summary Proceedings Act or s 385 of the Crimes Act applied?

[20]

The legislative history of s 232(2)(b) [23]
Is an appeal under s 232(2)(b) by way of rehearing? [26]
The appellant’s arguments as to what is required under s 232(2)(b)

[33]

Our approach to s 232(2)(b) [36]
The challenge to the factual findings of the Judge [41]
The general factual background [41]
Our general approach [46]
The events of 9 January 2016 [48]
The Judge’s reasons [51]
The High Court judgment [53]
Do the reasons reveal an error in the “assessment of the evidence”?

[54]

The other charges

Other complaints about the reasons

[59]
[60]
Result [65]

The appeal

  1. Following a judge-alone trial, Judge Henwood found the appellant guilty on five charges of assaulting his children, S and K.[1]  His appeal to the High Court against conviction and sentence was dismissed by Downs J,[2] as was a later application to the Court of Appeal for leave to appeal against conviction.[3]

    [1]R v Sena [2017] NZDC 3564.  The charges were laid under s 194(a) of the Crimes Act 1961.

    [3]Sena v New Zealand Police [2018] NZCA 203 (Miller, Ellis and Woolford JJ) [Sena (CA)].

  2. The appeal to Downs J was brought under s 232(2)(b) of the Criminal Procedure Act 2011.  This provides for a first appellate court dealing with a challenge to a finding of fact made in judge‑alone proceedings to allow the appeal if satisfied that:

    … the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; … .

In Gotty v R, the Court of Appeal held that the factual findings of a judge sitting alone are to be treated on appeal as the equivalent of a jury verdict with the result that the principles applicable to factual…

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AGLC
Sena v Police [2019] NZSC 55
Case
[2019] NZSC 55
Decision Date

CaseChat Overview and Summary

In the Supreme Court, the appellant, Yusuke (David) Sena, appealed against his conviction and sentence following a judge-alone trial. The appeal was brought under s 232(2)(b) of the Criminal Procedure Act 2011. The appellant was found guilty on five charges of assaulting his children, S and K. The appeal raised questions as to the appropriate appellate approach when reviewing the factual findings of a judge in a judge-alone trial and the adequacy of the reasons given by the trial judge. The Court allowed the appeal, quashed the convictions, and directed a new trial. The Court found that the Judge's reasons for finding the appellant guilty of assaulting his children on 9 January 2016 showed that she had erred in her assessment of the evidence to such an extent that a miscarriage of justice had occurred. The Court concluded that the Judge had not adequately considered the defence evidence from those who had been present in the house on 9 January 2016. The Judge had assessed the evidence of the children as being broadly consistent with that of the appellant's witnesses, particularly Ms Rojas, when in fact the chain of events as described by the children could hardly have escaped the attention of people who were in the house, particularly given some of them were there for the purpose of supervising access against a background of complaints as to what had happened on earlier occasions. The Court found that the inadequacies in respect of the charges in relation to 9 January 2016 cast a shadow over the other convictions which was sufficient to warrant them being quashed as well.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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