MAURI v NEW ZEALAND POLICE [2022] NZHC 2266

MAURI v NEW ZEALAND POLICE [2022] NZHC 2266 [7 September 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-85[2022] NZHC 2266BETWEEN MANUEL KOTTON MAURIAppellantAND NEW ZEALAND POLICERespondentHearing: 5 September 2022Appearances: D Nairn for AppellantJ Toebes for RespondentJudgment: 7 September 2022JUDGMENT OF LANG J[on appeal against conviction]This judgment was delivered by me on 7 September 2022 at 10 am.Registrar/Deputy RegistrarDateSolicitors:Kayes Fletcher Walker, Manukau[1] Mr Mauri was charged with assault with intent to injure. He entered a plea ofnot guilty and elected to be tried by a Judge sitting without a jury.[2] Following a defended hearing on 17 February 2022 Judge J E Macdonaldfound Mr Mauri guilty.1 On the same date he sentenced Mr Mauri to nine monthssupervision and 150 hours of community work. Mr Mauri appeals against convictionon the basis that procedural errors that occurred during the hearing resulted in amiscarriage of justice.2Background[3] The charge was laid as a result of an incident that occurred on 24 October 2020.The prosecution alleged that Mr Mauri, who lived in the same apartment complex asthe male complainant, entered the complainant's apartment whilst the complainantwas dozing on a couch. An argument ensued when the complainant asked Mr Maurito leave. The complainant then placed Mr Mauri's cellphone and a can of pre-mixeddrink he had been carrying outside the door of the apartment. This allegedly resultedin Mr Mauri punching the complainant on several occasions.[4] At trial the prosecution called the complainant and two police officers who hadgone to the apartment complex after a female occupant of the complainant's addresscalled for assistance. One police officer spoke to the complainant whilst the otherspoke to, and subsequently arrested, Mr Mauri.[5] At the conclusion of the prosecution case Mr Nairn, Mr Mauri's counsel,sought an order that Mr Mauri be discharged under s 147 of the Criminal ProcedureAct 2011 on the basis that the prosecution case was insufficient to prove the charge.The Judge dismissed this application3 and, after Mr Mauri elected not to call evidence,delivered a second oral decision in which he found the charge proved beyondreasonable doubt.41 Police v Mauri [2022] NZDC 5003.2 Criminal Procedure Act 2011, s 232(2)(b).3 Police v Mauri [2022] NZDC 16589.4 Police v Mauri, above n 1.The appellate test[6] The appeal is governed by s 232 of the Criminal Procedure Act 2011 (the Act).This relevantly provides as follows:232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriageof justice has occurred; or(c) in any case, a miscarriage of justice has occurred for any reason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error,irregularity, or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected;or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellantpleaded guilty.Grounds of appeal[7] Mr Nairn contends the Judge made three procedural errors during the hearingand that these created a real risk that the outcome of the trial was affected and/orresulted in Mr Mauri receiving an unfair trial. The alleged errors are as follows:(a) The Judge was influenced by notes on the Court file about mattersdiscussed during an earlier case review hearing.(b) The complainant was wrongly permitted to give evidence about anearlier incident in which he had come into conflict with Mr Mauri.(c) The Judge applied the wrong test when he determined the s 147application.The notes from the case review hearing[8] At an early stage of the defended hearing, the Judge raised an issue to whichhe had been alerted in notes recorded by the Judge who had conducted a case reviewhearing on 23 February 2021. This was to the effect that the issue to be determined attrial was whether Mr Mauri had thrown more than one punch. By this stage the Judgehad become aware that this was not the issue to be determined at trial. Rather, theprincipal issue was whether the prosecution could prove that Mr Mauri was the personwho had entered the complainant's apartment and assaulted him.[9] The Judge was plainly concerned that the prosecutor may have been placed ata disadvantage by the information Mr Nairn had provided to the Judge who presidedat the case review hearing. He explored the issue with the prosecutor but she told himshe had not been disadvantaged by the information. The Judge then indicated hewould put the issue to one side. However, he referred to the issue again in both hisruling on the s 147 application and his substantive decision. Mr Mauri remainsconcerned that the issue may have influenced the Judge in reaching his decisions.[10] It is Mr Nairn's understanding that the discussion during the case reviewhearing occurred during an attempt to resolve the charge. He is concerned that thepresiding Judge kept a record of discussions that were conducted on a withoutprejudice basis.[11] A case review hearing may obviously serve several purposes. These includeidentification of the issues that will be in dispute at trial. The Judge may also use thehearing to explore the possibility of resolution. The notes taken by the presiding Judgein the present case do not record the circumstances in which the discussion occurred.However, I consider it much more likely that it occurred in the context of an enquiryinto the issues to be determined at the trial. It is difficult to see how it could haveformed part of a discussion about resolution.[12] Mr Mauri may perceive this issue as having had some influence on the ultimateoutcome, but it is plain from the reasoning contained in the two decisions that it didnot. The Judge was obviously concerned that the prosecutor may have beendisadvantaged by the fact that the issue at trial was different to that identified at thecase review hearing. However, I am satisfied that his interest in the issue went nofurther than that. This ground of appeal fails as a result.The evidence about the earlier incident[13] During evidence-in-chief the complainant began to talk about an earlierincident in which he said he had encountered Mr Mauri. The prosecutor and the Judgeimmediately intervened and told the complainant he should only talk about theincident that led to the present charge. Mr Mauri is concerned that the Judge may havebeen influenced about the evidence the complainant gave about the earlier incident.[14] There is no basis for this concern because the complainant was not permittedto give any detail about the earlier incident. Furthermore, given that the identity ofthe assailant was in issue, I consider the complainant ought to have been permitted togive evidence about earlier occasions on which he had dealt with the person whoentered his apartment and assaulted him. The extent to which he had had earlierdealings with that person was plainly relevant to his identification of Mr Mauri as theassailant.The s 147 application[15] This issue arises because of the procedure the Judge followed after Mr Nairnadvanced the application for discharge at the close of the prosecution case. A lengthydiscussion ensued between the Judge, Mr Nairn and the prosecutor. The Judge thendelivered an oral decision in which he summarised the evidence relied on by theprosecution as establishing that Mr Mauri was the person who went to thecomplainant's apartment and assaulted him. This concluded:[14] I have reached the conclusion that [the evidence] is enough and onthat basis, then, I am satisfied beyond reasonable doubt that the charge hasbeen proved and that is my conclusion.[16] At this point Mr Nairn alerted the Judge to the fact that his decision ought tohave related only to the application for discharge and not to the substantive issue ofwhether the prosecution had proved the charge beyond reasonable doubt. This resultedin the Judge adding the following comments to his decision:ADDENDUM[15] I will just backtrack. I have mis-stated it. It is simply a no casesubmission. I need to go back on that and I will take it that I have simply ruledthat there is a case to answer. I thought we had got to that stage. I have gotahead of myself so I accept that. We will treat it as there is a case to answer,Mr Nairn.[17] Mr Mauri then elected not to give evidence. Mr Nairn says there was littlepoint in Mr Mauri giving evidence because the Judge had already made it clear that hewas satisfied beyond reasonable doubt that Mr Mauri was the person who committedthe offence.[18] A Judge who decides a criminal case can be expected to deal with evidentialobjections and other similar issues without those matters affecting the Judge's abilityto bring an impartial mind to the substantive decision. The fact that a Judge dismissesan application for discharge does not normally have any significance for thesubsequent substantive decision. This is in part because the standard of proof fordischarge under s 147 is different to that for guilt. In a trial by jury, the test unders 147 is whether a properly directed jury could reasonably find the defendant guiltyon the basis of the evidence adduced by the Crown.5 The same test is applicable whena Judge is hearing a case without a jury. The standard of proof for a finding of guilt isproof beyond reasonable doubt.[19] As will be evident, the Judge's decision on the application for discharge notonly involved the application of the wrong test but also led him to state he was satisfiedbeyond reasonable doubt of Mr Mauri's guilt. He made that statement incircumstances where Mr Mauri had not yet elected whether to give or call evidence.[20] The Judge obviously considered the evidence had concluded and that he wasrequired to make a substantive determination of guilt or innocence. This is5 R v Flyger [2001] 2 NZLR 721 (CA) at 726.demonstrated by the fact that, when the error was brought to his attention, the Judgesaid he "thought we had got to that stage" and that he had "got ahead of [him]self". Itis also noteworthy that the Judge's second decision in which he found the chargeproved beyond reasonable doubt is framed in virtually identical terms to the decisionhe had just delivered in response to the application for discharge.[21] I consider the manner in which the Judge dealt with the application fordischarge amounted to an error or irregularity that created a real risk that the outcomeof the trial was affected. This constitutes a miscarriage of justice under s 232(4)(a) ofthe Act.Result[22] The appeal is allowed and the conviction and sentence are set aside.[23] I make a direction under s 233(3)(b) of the Act that the charge is to be thesubject of a rehearing in the District Court.Lang J