D’ESPOSITO v MINISTRY FOR PRIMARY INDUSTRIES [2019] NZCA 518

D'ESPOSITO v MINISTRY FOR PRIMARY INDUSTRIES [2019] NZCA 518 [24 October 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA446/2018[2019] NZCA 518BETWEEN ANTONINO GIOVANNI D'ESPOSITOApplicantAND MINISTRY FOR PRIMARY INDUSTRIESRespondentHearing: 8 August 2019Court: Stevens, Mallon and Moore JJCounsel: R B Squire QC and K A van Wijngaarden for ApplicantG J Burston and S K Brennan for RespondentJudgment: 24 October 2019 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] On 20 June 2017 Judge Henwood in the District Court convicted the applicant,Mr D'Esposito, on one charge of allowing a named fishing vessel to be put to seawithout an observer on board contrary to s 224 of the Fisheries Act 1996.1Mr D'Esposito appealed to the High Court. On 25 June 2018, Ellis J quashed1 Ministry for Primary Industries v Esplanade No 3 Ltd [2017] NZDC 8579 [District Courtjudgment].the conviction but, pursuant to s 234(2) of the Criminal Procedure Act 2011 (the CPA),substituted a conviction for an offence under s 246 of the Fisheries Act.2[2] Mr D'Esposito wishes to pursue a second appeal against conviction inthis Court. Under s 237 of the CPA, leave is required. The application is opposed bythe respondent, the Ministry for Primary Industries (the MPI), on the basis that nomatter of general or public importance arises, and neither will a miscarriage of justiceoccur if the appeal is not heard. The respondent says Ellis J, in substituting aconviction for an offence under s 246, correctly applied the provisions of s 234 of theCPA and carefully considered the evidence.Factual background[3] Mr D'Esposito is the managing director of two companies, Esplanade No 3 Ltd(Esplanade) and Danielle Fishing Enterprises Ltd (Danielle Fishing). On 9 July 2014,the MPI issued a notice of intention to place an observer on the fishing vessel,the Danielle, for its first departure after 14 July 2014. The Danielle fished on a permitheld by Esplanade. Mr D'Esposito received the notice in his capacity as director ofEsplanade and as service on that company. Ellis J found the notice was properly servedon Danielle Fishing, though that company was never charged.3[4] The Danielle was put to sea on 19 July 2014 without an observer on board.As a result, Mr D'Esposito, Esplanade and two other parties (who are not relevant forpresent purposes) were charged with offences under the Fisheries Act.In the District Court, Judge Henwood dismissed the charge against Esplanade becauseit had not been established it was the owner of the Danielle under the terms of s 224(1)of the Fisheries Act.4 Mr D'Esposito was convicted of an offence against s 224(2).5[5] Judge Henwood was satisfied that Danielle Fishing was the owner and operatorof the Danielle and Mr D'Esposito was a director of the company.6 He had failed totake all reasonable steps to prevent the Danielle being put to sea after receipt of2 D'Esposito v Ministry for Primary Industries [2018] NZHC 1529 [High Court judgment] at [50].3 At [43]–[44].4 District Court judgment, above n 1, at [39]–[42].5 At [88].6 At [61] and [66].the notice from the MPI.7 Although Mr D'Esposito was convicted of an offence unders 224(2), it seems that the Judge had relied on s 246 of the Fisheries Act as a deemingprovision.8[6] Mr D'Esposito appealed to the High Court. Between the hearing of the appealand delivery of the judgment of Ellis J, this Court delivered its judgment in D'Espositov Ministry for Primary Industries in which it held that s 246 creates an independentoffence requiring distinct charging.9 In the light of that decision, and in the absenceof any challenge by the MPI to Judge Henwood's finding that direct liability unders 224 was not made out against Mr D'Esposito, Ellis J quashed the conviction.10[7] Having quashed the conviction, Ellis J went on to consider whether it wasappropriate to exercise the power, available on appeal under s 234 of the CPA, tosubstitute a conviction against Mr D'Esposito for an offence under s 246 ofthe Fisheries Act.11 The Judge was satisfied that Judge Henwood was herself satisfiedto the necessary standard of proof of the facts necessary to convict Danielle Fishingof an offence against s 224, and that Mr D'Esposito had committed an offence againsts 246.12 Ellis J was also satisfied there was no "genuine risk of prejudice" arising fromthe substitution of a s 246 conviction.13Proposed arguments of applicant[8] Mr Squire QC sought to advance two arguments, should leave to bring a secondappeal be granted. The first concerns the fact that Ellis J, having quashedthe conviction in the District Court, decided to exercise the power under s 234 ofthe CPA to direct a conviction for a different offence.[9] The second ground is that there has been a miscarriage of justice. It is saidMr D'Esposito should not have been convicted of an offence against s 246 of7 At [67].8 Ellis J concluded that the Judge's analysis indicated that she used s 246 as "a pathway to a findingof liability under s 224": High Court judgment, above n 2, at [34].9 D'Esposito v Ministry for Primary Industries [2018] NZCA 9, [2018] NZAR 388 at [21] and [34].10 High Court judgment, above n 2, at [36]–[38].11 At [39]–[50].12 At [43]–[44].13 At [50].the Fisheries Act based on first available evidence and second on the structure of thatAct where an offence has been committed in respect of a fishing vessel.The leave provisions[10] Mr D'Esposito seeks leave to bring a second appeal against his conviction inthe High Court under s 237 of the CPA. Section 237(2) provides that this Court"must not" grant leave unless satisfied that either: (a) the appeal involves a matter ofgeneral or public importance; or (b) a miscarriage of justice may have occurred, ormay occur unless the appeal is heard.[11] This Court in McAllister v R held that the threshold for leave is a high one.14Under the first limb of s 237(2), the test will be met where the proposed appeal givesrise to an issue of "general principle or of general importance in the administration ofthe criminal law by the Courts".15 The question must have broad application beyondthe circumstances of the particular case.16 The threshold for the second limb ofshowing a miscarriage of justice is similarly high. Not every error will give rise to amiscarriage.17Our analysisThe substitution issue[12] Under s 234 of the CPA, an appellate judge has power, upon the quashing of aconviction for an offence (here under s 224 of the Fisheries Act), to directthe conviction for a different offence, including an offence the trial judge could havesubstituted. For substitution to occur in this case, Ellis J needed to be satisfied that:(a) Mr D'Esposito could have been found guilty at trial (for the s 224offence), of a different offence, namely, an offence against s 246 ofthe Fisheries Act; and14 McAllister v R [2014] NZCA 175, [2014] NZLR 764.15 At [36], citing Keenan v R [2005] NZSC 63 at [5].16 At [36].17 At [38].(b) the trial Judge in the District Court must have been satisfied of factsproving Mr D'Esposito was guilty of the offence against s 246.[13] As Mr Squire correctly submitted, the term "satisfied" is used twice in s 234(2)of the CPA. First it governs the degree of conviction the Judge must have in relationto the requirements specified in both s 234(2)(a) and (b). Second it is referable to theparticular issue in paragraph (b) whether the findings of the trial Judge in relation tothe offence in respect of which the appeal has been allowed necessarily encompassfactual findings which prove the substituted offence.[14] Mr Squire then submitted the interpretation of the word "satisfied" in s 234(2)of the CPA raises a question of general or public importance on the basis that on thetwo occasions it is used in s 234(2), it means "satisfied beyond reasonable doubt",requiring the appeal court to be satisfied beyond a reasonable doubt that the trial Judgefound proved facts which themselves prove beyond a reasonable doubt eachcomponent of the substituted offence.[15] For the respondent, Mr Burston disagreed and submitted such an approachwould introduce an anomalous interpretation of "satisfied" which would undulycomplicate the application of s 234 in particular cases. Mr Burston submitted themeaning of "satisfied", particularly in the context of criminal procedure, is wellestablished by the decisions of this Court.[16] Section 234(2) of the CPA provides as follows:(2) The first appeal court may direct that a judgment of conviction for adifferent offence (offence B), including an offence that the trial courtcould, in accordance with section 136(1), have substituted foroffence A, be entered if satisfied that—(a) the person could have been found guilty, at the person's trialfor offence A, of offence B; and(b) the trial judge or the jury, as required, must have been satisfiedof facts that prove the person guilty of offence B.[17] The starting point for consideration of the meaning of "satisfied" is the decisionof this Court in A (CA255/2009) v R which held there was no reason to depart fromthe well-established view that:18 the word "satisfied" in legislation invites a Judge to undertake anevaluation of all relevant matters and reach a judgment as to whether or nothe or she is satisfied.[18] In that case the statutory context in which the word "satisfied" was used wass 361D of the Crimes Act 1961, which provided a power to direct that long andcomplex trials be heard by a judge alone. The Court expressly rejected the suggestionthat "satisfied" implied any onus or standard of proof, rejecting a submission thatthe Judge must reach at least a clear conclusion "beyond a balance of probabilities"before the relevant criteria were met.19[19] This Court in R v Leitch had previously considered the word "satisfied" inrelation to preventive detention legislation.20 There the Court stated:21The need to be "satisfied" calls for the exercise of judgment by the sentencingCourt. It is inapt to import notions of the burden of proof and of setting aparticular standard, eg beyond reasonable doubt. As this Court said in R vWhite (David) [1998] 1 NZLR 264 at p 268 with reference to s 75(2),"The phrase 'is satisfied' means simply 'makes up its mind' and is indicativeof a state where the Court on the evidence comes to a judicial decision.There is no need or justification for adding any adverbial qualification ".[20] The approach in A (CA255/2009) v R was also endorsed by this Court inMcAllister v R.22 What the Judge is required to do when s 234(2) of the CPA speaksof being "satisfied" is to carry out a judicial evaluation or, as was said in R v Leitch,undertake an exercise of judgment.23[21] The problem with Mr D'Esposito's contention is that it involves reading thephrase "beyond reasonable doubt" into s 234(2) when this is unnecessary.Section 234(2)(b) states, after the words "must have been satisfied of facts", "that18 A (CA255/2009) v R [2009] NZCA 380 at [10].19 At [9]–[10].20 R v Leitch [1998] 1 NZLR 420 (CA).21 At 428.22 McAllister v R, above n 14, at [42].23 This Court in Christian v R [2017] NZCA 296 used the term "evaluation" at [31].prove the person is guilty". It does not need to say "that prove beyond reasonabledoubt that the person is guilty" because that is the applicable standard of proof.[22] For the above reasons, we are satisfied that this first issue raises no matter ofgeneral or public importance. The meaning of "satisfied" is well established by theauthorities to which we have referred. There is no need for the issue to be relitigatedwith a view to introducing into its application complicating notions of burdens orstandards of proof.Miscarriage of justice[23] Mr D'Esposito also wishes to argue that a miscarriage of justice will occur fortwo reasons. First, Ellis J wrongly applied s 234 of the CPA. Second, in any event,Mr D'Esposito could not be liable under s 246 of the Fisheries Act becauseDanielle Fishing was not capable of committing an offence under s 224 because it wasnot the "registered" owner of the Danielle.[24] For the respondent, Mr Burston submitted no miscarriage of justice occurredon either basis. We will now address both of the grounds advanced by Mr D'Esposito.[25] First is the question whether Ellis J could have been properly satisfied thatMr D'Esposito could have been found guilty of an offence under s 246 ofthe Fisheries Act.[26] Examining the approach of Ellis J, it is apparent that she applied both s 234(2)and s 136(1) of the CPA as she was required to do. This involved being satisfied, inthe orthodox use of that word, not only that the elements of a direct charge under s 246of the Fisheries Act were proved in the District Court, but also that there would be noretrospective prejudice to the defence of Mr D'Esposito arising from the substitution.24Ellis J noted:[41] As to the first, it is clear from her reasons that Judge Henwood didconsider the operation of s 246 and essentially concluded that the elements ofthat section were made out. That is unsurprising because as noted by the Courtof Appeal, viewing s 246 as creating a distinct offence rather than a deeming24 High Court judgment, above n 2, at [40].provision "... does not alter the substantive elements that must be proved.They remain entirely unchanged".(Footnote omitted.)[27] We agree with Mr Burston's submission that s 234(2)(b) of the CPA requiresonly that the High Court (as the first appeal court) be satisfied the trial Judge "musthave been satisfied of facts" that prove the guilt of the defendant on the substitutedoffence. This inevitably includes facts necessary to prove an offence under s 224against Danielle Fishing, whose liability is a necessary ingredient in the offending byMr D'Esposito under s 246. We also agree with Mr Burston that Judge Henwood'sfailure in the trial court to record expressly that Danielle Fishing had committed anoffence is not fatal. The focus of s 234 is upon the trial judge being satisfied of theexistence of facts necessary to prove an offence; it is not on whether the trial judgewas satisfied that the elements of the substituted offence were proved beyondreasonable doubt. Plainly, the trial Judge was considering a different offence and notthe one to be substituted.[28] Next we turn to examine the three elements of the substituted charge unders 246 of the Fisheries Act to determine whether Ellis J was correct to be satisfied thatthe District Court Judge must have been satisfied of the necessary facts to provethe charge beyond reasonable doubt.[29] The first element is that Danielle Fishing as a body corporate committed anoffence against the Fisheries Act, in that it, being in receipt of a s 224(1) notice inrelation to the Danielle, did allow the Danielle to be put to sea without having anobserver on board. There is no doubt that Danielle Fishing was in receipt of the MPInotice through its managing director Mr D'Esposito25 and that Danielle Fishingthrough Mr D'Esposito allowed the Danielle to put to sea without having an observeron board.26[30] The second element is that Mr D'Esposito was a director of Danielle Fishing.Again there is no doubt this element was established.2725 District Court judgment, above n 1, at [4].26 At [68].27 At [4].[31] The third element is that Mr D'Esposito knew or ought to have known thatthe offence was to be committed and failed to take all reasonable steps to prevent orstop it. There is no doubt that this element was established.28[32] As to the question of possible prejudice under s 136(2) of the CPA, Ellis Jexpressly considered whether Mr D'Esposito would have been misled or prejudicedin this defence if a charge were substituted on the first appeal.29 Ellis J considered theavailability of the defence Mr D'Esposito says he would have advanced (under s 241of the Fisheries Act) had he known he was in jeopardy of a conviction under s 246.30She concluded that the finding of guilt under s 246 would necessarily have precludedsuch a defence.31 Those issues were properly addressed at trial and no "genuine riskof prejudice" arose.32[33] Finally, we address the second claimed basis for a miscarriage of justice,namely, that Danielle Fishing could not have committed an offence against s 224 ofthe Fisheries Act because it was not the registered owner of the Danielle. We agreewith Mr Burston that s 224 is not concerned only with "registered" owners. Rather, itrefers to "the owner, master, operator, or licence holder". Section 224(2) provides that"no person" shall cause or allow the relevant vessel to be put to sea which is subjectto the notice, and s 224(3) provides that "every person" commits an offence whocontravenes s 224(2). We are satisfied s 224 is not limited in the way Mr Squiresuggested. Accordingly there is no risk of a miscarriage of justice arising because ofthis point.[34] We also agree with Mr Burston's submission that this is an argument that couldand should have been advanced before the first appellate court. In the High CourtMr D'Esposito did seek to challenge Danielle Fishing's possible liability under s 224,but this argument was rejected.33 Mr D'Esposito was well aware it was DanielleFishing's liability under s 224 of the Fisheries Act that gave rise to his vulnerability toconviction under s 246. This further argument should not be raised for the first time28 At [67]–[68].29 High Court judgment, above n 2, at [45] and following.30 At [48]–[50].31 At [48]–[49].32 At [50].33 At [43]–[44].on a second appeal. It should have been advanced before the High Court because it isnot the role of a second appeal court to provide appellants with a second "first appeal".Result[35] We are satisfied that the proposed grounds of appeal raise neither a matter ofgeneral or public importance, nor the prospect of any miscarriage of justice.[36] It follows that the application for leave to bring a second appeal is declined.Solicitors:Oceanlaw New Zealand, Nelson for ApplicantCrown Solicitor, Wellington for Respondent