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
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
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.
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…
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.
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Details
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.