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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE PERSON DESCRIBED IN THIS JUDGMENT AS W PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011.
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE PERSON DESCRIBED IN THIS JUDGMENT AS G PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA71/2015 [2016] NZCA 28
BETWEEN
ANTONI KARL WILEY
Appellant
AND
THE QUEEN Respondent
CA224/2015
BETWEEN PHILLIP LAYTON EDWARDS Appellant
ANDTHE QUEEN Respondent
Hearing:
11 November 2015
Court:
Randerson, French and Miller JJ
Counsel:
E R Fairbrother QC for Appellant Wiley W C Pyke for Appellant Edwards M J Lillico and M L Wong for Respondent K H Cook as Counsel Assisting
Judgment:
24 February 2016 at 2:15pm
WILEY v R [2016] NZCA 28 [24 February 2016]
JUDGMENT OF THE COURT
AThe application for an extension of time to file the appeal in CA71/2015 is granted.
B The appeal against conviction by Mr Wiley (CA71/2015) is dismissed.
CThe appeal against conviction by Mr Edwards (CA224/2015) is dismissed.
DOrder prohibiting publication of name, address, occupation or identifying particulars of the person described in this judgment as W
REASONS OF THE COURT (Given by Randerson J) Table of Contents
The respective cases at trial
The Crown case
The summing-up
The argument on appeal Analysis
The statutory framework
Meaning of taking away or detaining
Do the expressions “taking away” and “detaining” in
s 210 constitute separate and distinct offences?
Conclusions
Result
[96] [96] [102] [108] [111] [111] [120]
[122] [140] [149]
Introduction
[1] These two appeals were heard together at the request of the Court with a view to a judgment dealing with the interpretation of s 232 of the Criminal Procedure Act
2011 (the CPA). A particular focus is the meaning to be given to the term
“miscarriage of justice” as a ground of appeal against conviction.
[2] We propose to deal first with the issue of interpretation before considering the two appeals.
The interpretation of s 232
[3] Section 232 replaces s 385 of the Crimes Act 1961 although the latter provision continues to apply to criminal proceedings commenced prior to 1 July
2013.1 The grounds of appeal under the new provision are broadly similar but there
are some differences of expression. Section 385(1) provides:
385 Determination of…
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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AGLC
Wiley v R [2016] NZCA 28
Case
[2016] NZCA 28
Decision Date
CaseChat Overview and Summary
In Wiley v R and Edwards v R, the Court of Appeal of New Zealand considered the interpretation of section 232 of the Criminal Procedure Act 2011 (CPA), which replaced section 385 of the Crimes Act 1961 as a ground of appeal against conviction. The court held that section 232, which introduces a definition of "miscarriage of justice" and removes the proviso found in section 385, does not require any materially different approach to conviction appeals from that prevailing in practice under section 385. The court found that the removal of the proviso does not preclude the Crown from persuading the court that a conviction was inevitable despite an identified error. The court also held that a "taking away" under section 210 of the Crimes Act may continue beyond the point where the defendant initially obtains possession of the young person. Whether a taking away has occurred and the length of time for which it continues is a matter of fact and degree for the jury's assessment. In both cases, the appeals against conviction were dismissed.