NUKU v THE DISTRICT COURT AT AUCKLAND [2017] NZCA 471

NUKU v THE DISTRICT COURT AT AUCKLAND [2017] NZCA 471 [20 October 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA601/2016[2017] NZCA 471BETWEEN KARL TEANGIOTAU NUKUAppellantAND THE DISTRICT COURT ATAUCKLANDFirst RespondentTHE ATTORNEY-GENERALSecond RespondentCourt: Cooper, Brown and Clifford JJCounsel: Appellant in personNo appearance for First RespondentI R Murray for Second RespondentJudgment: 20 October 2017 at 3 pmReissued: 4 December 2017JUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The appellant, Karl Nuku, faced trial, together with Mikhail Pandey-Johnson,before Judge Collins and a jury in the District Court at Auckland on charges ofaggravated robbery and unlawful possession of firearms. Mr Nuku andMr Pandey-Johnson were each found guilty on both charges. Mr Nuku was sentencedto eight and a half years' imprisonment and Mr Pandey-Johnson to 12.1[2] Mr Nuku subsequently appealed his conviction and sentence to this Court, andapplied to the High Court for judicial review of aspects of the way his trial wasconducted in the District Court. This Court has already dealt with Mr Nuku's appealagainst conviction and sentence, dismissing it.2[3] This appeal is against the High Court's rejection of Mr Nuku's application forjudicial review.3[4] Mr Nuku's appeal was filed out of time. As counsel for the Crown, Mr Murray,properly observed, there appear to be valid reasons for this. We therefore grantMr Nuku's application for an extension of time to appeal.The High Court decision[5] In his judicial review proceedings Mr Nuku raised an issue of unfairness(relating to Judge Collins's decision to allow certain evidence to be admitted) andanother of illegality (relating to the way the Judge had dealt with his unsuccessfulapplication for discharge under s 347 of the Crimes Act 1961 at the end of the Crowncase). Only the latter is raised in this appeal. As to that, Mr Nuku says Venning J waswrong to conclude Judge Collins had not erred in material ways when, after he hadheard from Mr Nuku in support of his s 347 application, he said he did not need tohear from the Crown and when, having said he would give written reasons for thatdecision later, Judge Collins failed to do so.1 R v Nuku DC Auckland CRI-2011-443-15, 10 June 2014.2 Nuku v R [2016] NZCA 179 at [29].3 Nuku v The District Court at Auckland [2016] NZHC 2237.[6] In dismissing Mr Nuku's application for review, Venning J reasoned:(a) The substantive issue, of the sufficiency of the evidence to supportMr Nuku's conviction, had been dealt with on appeal to this Court.4 Tothat extent, Mr Nuku's review application was an abuse of process.5(b) There was no requirement to hear from an opposing party where anapplication was being declined.6 Thus, while the Judge was obliged tohear Mr Nuku's s 347 application, he had no obligation to hear fromthe Crown unless he determined it was necessary to do so.(c) It was best practice for a Judge to give written reasons.7 Here, however,the basis on which Judge Collins declined Mr Nuku's s 347 applicationwas abundantly clear from the transcript: that is, the strong evidencelinking Mr Nuku to the crime.8(d) Further, that issue was moot.9 The Court of Appeal had considered thestrength of the evidence (the supposed lack of which had been thereason for the s 347 application in the first place) and concluded that itwas overwhelmingly strong.10 That removed any prejudice Mr Nukucould possibly have suffered from the Judge's failure to give reasons.Appeal[7] Mr Nuku's appeal is based on the following propositions:(a) Venning J failed to conduct the judicial review application in anappropriate matter, instead conducting it as a de novo appeal hearing.In doing so, Venning J failed to consider the substantive proceduralerror at trial.4 At [20].5 At [23].6 At [24].7 At [26].8 At [26].9 At [29].10 At [29].(b) Section 347 reflects an inherent duty to consult. Section 347(1)(b)states that the Judge may grant an application "after giving both theprosecutor and the accused reasonable opportunity to be heard on thematter". Alternatively, by virtue of common practice, there is alegitimate expectation that each party will be heard on the matter. TheJudge's failure to hear from both parties rendered his decision ultravires.(c) Likewise the District Court Judge erred in failing to provide reasons forhis decision not to discharge Mr Nuku. Open justice requires reasons.Failure to record the reasons also means the Court's criminal recordwas incomplete. Venning J erred in finding otherwise.(d) The Court of Appeal in its criminal jurisdiction had no jurisdiction todeal with s 347 applications. Thus Mr Nuku's application forjudicial review in the High Court was not moot.(e) Moreover, Venning J made comments adverse to Mr Nuku. Thosecomments need to be quashed on appeal by a grant of certiorari.[8] Mr Nuku filed comprehensive submissions in support of his appeal. Mr Nukumade a first principles argument, based on the distinction between the role of thisCourt when considering an appeal against conviction and the role of the High Courtin its judicial review jurisdiction. In doing so Mr Nuku emphasised, as is indeed thecase, that judicial review generally focuses on process, while a conviction appealfocuses on the merits. The process error, of failing to hear from the Crown, not onlybreached the specific procedural requirements of s 347, but also represented a failureto accord with public law requirements for consultation. Thus, as we understood theargument, the decision of this Court dismissing Mr Nuku's appeal against convictionwas no answer to his High Court application for judicial review.[9] Mr Nuku placed the issue of the Judge's failure to provide reasons in thecontext of the developing jurisprudence on the importance of judges providing reasonsfor maintaining public confidence in the judicial system and providing substantialprocedural fairness. Without reasons, rights of appeal will be frustrated.[10] Mr Nuku cited an impressive and extensive range of authorities as regards boththose matters.Analysis[11] It is a fundamental principle of law that a procedural error will not of itselfrequire, in the judicial review context, the quashing of the relevant decision or, in thecontext of a criminal appeal against conviction, the appeal to be allowed. Injudicial review, the High Court has, not withstanding an identified process error, animportant discretion as to whether to grant relief.11 In criminal appeals, the questionis whether any particular error has given rise to a miscarriage of justice: that is,whether absent the error there was a real possibility that a more favourable verdictmay have been returned.12 In other words, the courts take a substantive, not aformalistic, approach to questions of procedural error.[12] Given that important principle, we are satisfied this appeal must be dismissed.We can explain our reasons for that conclusion succinctly.[13] The provision under which a defendant could, at the time Mr Nuku stood trial,apply during trial to be discharged because of an insufficiency of evidence was foundin s 347(3) of the Crimes Act:13[T]he Judge may in his discretion, at any stage of any trial, whether before orafter verdict, direct that the accused be discharged.[14] The well-established test a judge applies when considering an application todischarge a defendant under s 347 is whether there is not sufficient evidence uponwhich a properly instructed jury, acting reasonably, could find the defendant guilty.1411 Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 136 — an error may not be"significant enough to lead a reviewing court to intervene".12 Wiley v R [2016] NZCA 28 at [27].13 The equivalent procedure is now found at s 147 of the Criminal Procedure Act 2011.14 Parris v Attorney-General [2004] 1 NZLR 519 (CA), now codified in Criminal Procedure Act,s 147(4)(c).[15] There was, and is, no right of appeal against a decision dismissing such anapplication. There are a number of reasons for that. Most importantly, and as a matterof principle, where a judge declines such an application the charge is left with the jury.If convicted, a defendant may then appeal on the basis that there was insufficientevidence for the jury's verdict. That right of substantive appeal effectively involvesthe review of the decision of the trial judge on that application. It is that very rightwhich Mr Nuku unsuccessfully exercised.[16] More particularly, Mr Nuku sought to ground his judicial review challenge onthe direction found in s 347(1)(b) of the Crimes Act that refers to the Judge makinghis decision "after giving both the prosecutor and the accused reasonable opportunityto be heard on the matter". Section 347(1) applies on committal for trial. It is in thosecircumstances that Parliament saw fit to provide some procedural guidance. Once thetrial is underway, the Judge is left to deal with the question of discharge at his or herdiscretion. Obviously, as is in all things, the Judge needs to be fair.[17] The opportunity to be heard is a fundamental requirement of fairness for bothsides. Mr Nuku's interest was in being heard through his trial counsel (Mr Wimsett).Mr Nuku does not allege that he was not heard. If the prosecutor had a materialconcern that the Judge may have overlooked some aspect of Mr Nuku's application,we have no doubt he would have taken the opportunity provided by the Judge'scomment to him to address the Judge.[18] We are therefore satisfied Venning J reached the correct decision on this aspectof Mr Nuku's judicial review application.[19] The second ground of Mr Nuku's appeal relates to the developingjurisprudence on obligations of judges to give reasons. We note first that, on currentauthority,15 there is no absolute rule that reasons must always be provided for judicialdecisions. Mr Nuku suggested, picking up on observations of the Chief Justice inLewis v Wilson & Horton Ltd,16 that this was an appropriate opportunity for this Courtto review that authority.15 R v Awatere [1982] 1 NZLR 644 (CA) at 649.16 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [85].[20] We are satisfied that this is not that opportunity. Moreover, we are satisfiedfrom the record of the exchanges between Judge Collins and Mr Wimsett that theJudge's reasons for declining Mr Nuku's discharge application were clearlycommunicated to, and understood by, Mr Wimsett.[21] At the hearing of this appeal, Mr Nuku raised a substantive argument which hehad not made in the High Court. At the time Mr Wimsett made the application fordischarge, the Crown had not — Mr Nuku said — specified which approach to partyliability it was taking as regards Mr Nuku on the aggravated robbery charge. That,Mr Nuku explained to us, was why he thought the Judge should have heard from theCrown. We acknowledge the law on parties can be complex. We are satisfied,however, that Mr Wimsett had clarified that point with Judge Collins when he madehis submissions. That is, immediately upon Mr Wimsett indicating he was about tomake a s 347 application, Judge Collins explained to Mr Wimsett the basis upon whichhe anticipated instructing the jury on the party issue. He said: [I]f the matter is to go to the jury I would be constructing the question trailin such a way that if the jury found Mr Pandey-Johnson not guilty they wouldhave to then find Mr Nuku not guilty but if the jury was satisfied beyondreasonable doubt that Mr Pandey-Johnson was involved then the issue wouldbe for them that they are satisfied beyond reasonable doubt that Mr Nuku haddone something intentionally for the purpose of providing assistance and hadactually provided actual assistance so I suppose where my thinking hasdeveloped, why would it be wrong for the jury to conclude that, sorry, put theother way. Why is it that this jury could not conclude that by merely being onthe inside, as an ally, Mr Nuku emboldened Mr Pandey-Johnson and the otherintruder to do what he did?[22] There followed a discussion between the Judge and Mr Wimsett as to theadequacy of that approach. Mr Wimsett's concern was the absence of a reference tothe Crown proving Mr Nuku knew of the aggravating presence of the firearm duringthe robbery. The outcome of that discussion was that, on the charge of aggravatedrobbery, the Judge would include in his directions that the jury had to be sure Mr Nukuknew a firearm was to be involved. Mr Wimsett accepted that was the correctapproach (whilst still contending that there was not sufficient evidence for it to go tothe jury).[23] There was no ambiguity or uncertainty as to the approach which would betaken on the party issue, such that Mr Nuku was prejudiced by the Crown not explicitlyaddressing that point in the context of the s 347 application.[24] We are therefore satisfied that Venning J was also correct when he declinedthis aspect of Mr Nuku's application for judicial review.[25] We mention one final matter. In his decision, Venning J observed:[22] Mr Nuku criticised the Court of Appeal for dealing with the issue in a"cavalier way", but his remedy for such a complaint was to seek leave toappeal to the Supreme Court rather than pursuing this judicial review. Inmaking that observation I make it clear to Mr Nuku I do not consider there isany merit in his criticism.[26] Mr Nuku was concerned that the Judge's use of the word "criticism" impliedthat Mr Nuku may have acted intemperately, or without proper respect to the Court,when advancing his submissions. We are satisfied that is not what Venning J intended.Rather, he was recording, as he would as regards any counsel's submissions, thesubstance of the legal point Mr Nuku was making.Result[27] The application for an extension of time to appeal is granted.[28] Mr Nuku's appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent