D’ESPOSITO v MINISTRY FOR PRIMARY INDUSTRIES [2018] NZCA 287

D'ESPOSITO v MINISTRY FOR PRIMARY INDUSTRIES [2018] NZCA 287 [2 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA N/A[2018] NZCA 287BETWEEN ANTONINO GIOVANNI D'ESPOSITOApplicantAND MINISTRY FOR PRIMARY INDUSTRIESRespondentCounsel: R B Squire QC for ApplicantJudgment:(On the papers)2 August 2018 at 10 amJUDGMENT OF GILBERT J(Review of Registrar's Decision)The application for review of the Registrar's decision is declined.____________________________________________________________________REASONS[1] Antonino D'Esposito was convicted following a Judge-alone trial in theDistrict Court of an offence under s 224(2) of the Fisheries Act 1996 — causing orallowing a vessel to put to sea without having on board the number of observersspecified in a notice given by the Chief Executive of Fisheries in accordance withs 224(1).1[2] Mr D'Esposito appealed against his conviction to the High Court. The appealwas allowed in part by Ellis J in that his conviction under s 224 of the Fisheries Act1 Ministry for Primary Industries v Antonino Giovanni D'Esposito [2017] NZDC 8579.was quashed and replaced with a conviction under s 246 of the Act.2 Section 246provides that if a body corporate commits an offence against the Act, every directorand every person concerned in the management of the body corporate, also commitsan offence if it is proved that the act or omission that constituted the offence took placewith that person's authority, permission or consent, or that person knew or should haveknown that the offence was to be or was being committed and failed to take allreasonable steps to prevent or stop it. Ellis J substituted a conviction under this sectionin exercise of the powers conferred on the first appeal court pursuant to s 234 ofthe Criminal Procedure Act 2011 (CPA).[3] Mr D'Esposito wishes to appeal against the substituted conviction.He contends that he has a general right of appeal to the Court of Appeal against thisconviction because it was entered by the High Court. For that reason, he argues thatthe present appeal must be regarded as a first appeal, not a second appeal for whichleave is required. Mr D'Esposito therefore commenced his appeal by filing a noticeof general appeal in Form 5 of the Court of Appeal (Criminal) Rules 2001, relying onr 6(3).[4] The Registrar declined to accept the notice of appeal for filing and advisedMr D'Esposito that a notice of application for leave to appeal in Form 2 is required.Mr D'Esposito applies for a review of the Registrar's decision.[5] Appeals against conviction are provided for in Subpart 3 of Part 6 of the CPA.Section 229 provides that any person convicted of an offence may appeal to the firstappeal court against the conviction. The first appeal court is specified in s 230:230 First appeal courtsThe first appeal court for an appeal under this subpart is—(a) the District Court presided over by a District Court Judge, if theappeal is against a conviction entered by the District Courtpresided over by 1 or more Community Magistrates or 1 or moreJustices of the Peace; or(b) the High Court, if the appeal is against a conviction entered bythe District Court presided over by a District Court Judge, otherthan a conviction for—2 D'Esposito v Ministry for Primary Industries [2018] NZHC 1529.(i) a category 3 offence after the convicted person elected a jurytrial; or(ii) a category 4 offence; or(c) either the Court of Appeal or the Supreme Court, in any other case.[6] Mr Squire QC, for Mr D'Esposito, submits that the conviction under s 246 ofthe Fisheries Act was not entered by a District Court presided over by a District CourtJudge. Accordingly, he argues that this appeal falls into the "any other case" categoryin s 230(c) and a right of general appeal lies to this Court. He emphasises that therehas been no prior appeal against the conviction entered under s 246.[7] I am unable to accept Mr Squire's submission. Section 232 of the CPAprovides that the first appeal court must determine a first appeal in accordance withthat section. The appeal must be allowed in the circumstances specified, includingwhere the first appeal court is satisfied that the Judge in a Judge-alone trial erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred. Section 234 of the CPA empowers the first appeal court to allow anappeal against conviction but direct that a judgment of conviction for a differentoffence be substituted. The direction that a judgment of conviction be substituted takeseffect as if the defendant had been convicted of that offence in the trial court. The firstappeal court can remit the matter to the trial court for sentencing on the substitutedoffence (s 234(5)). Any appeal against such a sentence would again lie to the samefirst appeal court.[8] There is nothing in the CPA to indicate that the first appeal court loses its statusas such merely because in determining the first appeal it exercises the power conferredon it under s 234 to direct that a judgment of conviction for a different offence beentered. Despite the exercise of that power, the High Court remains the first appealcourt in this case because Mr D'Esposito was originally tried in the District Court.Any further appeal would be to the second appeal court in terms of s 238.[9] It is clear from s 232 of the CPA that the Court of Appeal is not the first appealcourt in this case. This section prescribes the manner in which a first appeal courtmust determine an appeal and provides alternative tests depending on whether theconviction resulted from a jury trial or a judge-alone trial. The conviction here onMr Squire's analysis resulted not from a jury trial or a judge-alone trial, rather fromthe exercise of a power conferred on the first appeal court.[10] Further, if Mr Squire was right and the Court of Appeal is the first appeal courtin this case, the Supreme Court would be the first appeal court if the High Court(the first appeal court) had dismissed Mr D'Esposito's appeal against conviction andthen this Court (as the second appeal court) had granted leave for a second appeal andthen allowed the appeal in part by substituting a conviction under s 246. That is plainlynot the way appeal pathways are structured. There is only one general right of appealfrom a conviction entered in a trial court irrespective of how the first appeal court dealswith that appeal. Any further appeal requires leave.[11] In summary, Mr D'Esposito has exercised his general right of first appeal unders 229 of the CPA. His first appeal was to the High Court because he was tried inthe District Court. Any appeal to this Court would be a second appeal for which leaveis required under s 237.