W (CA624/2022) v R [2023] NZCA 397

W (CA624/2022) v R [2023] NZCA 397 [25 August 2023]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONSUNDER THE AGE OF 18 YEARS PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA624/2022[2023] NZCA 397BETWEEN W (CA624/2022)ApplicantAND THE KINGRespondentHearing: 9 February 2023Court: Miller, Brown and Katz JJCounsel: E Huda for ApplicantR K Thomson for RespondentJudgment: 1 August 2023 at 2.00 pmReasons: 25 August 2023JUDGMENT OF THE COURTA The application for leave to appeal is declined.B Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This judgment responds to an application for leave to bring a pretrial appealunder s 217 of the Criminal Procedure Act 2011 (CPA). The proposed appeal wouldchallenge a decision that propensity evidence is admissible at the applicant's pendingtrial for injuring a child with intent to injure.1[2] The application for leave is being determined separately from the appeal.This Court takes the opportunity to revisit, in light of experience, the approach that itadopted to leave in 2015, in Hohipa v R.2ContextThe jurisdiction to hear pretrial appeals[3] The jurisdiction to hear pretrial appeals under the CPA was described inHohipa.3 For convenience, we repeat what we said there.[4] No general right of appeal lies from interlocutory decisions made before trial;rather, the CPA provides, like its predecessor,4 that specified decisions may beappealed by leave of the court appealed to. Those decisions are listed in: s 215, whichdeals with pretrial evidential decisions in judge-alone cases; s 217, which deals withcategory 4 and category 3 jury cases; and s 218, which deals with particulars and venuein jury cases.[5] Section 215 allows the defendant or the prosecutor a pretrial appeal by leaveof the court appealed to (the first appeal court) where the proceeding is to be tried bya judge alone. Such appeals are restricted to a small class of decisions:(2) The defendant or the prosecutor may, with the leave of thefirst appeal court, appeal to that court against a decision thatis one of the following:1 R v [W] [2022] NZDC 20319 [Pretrial decision].2 Hohipa v R [2015] NZCA 73, [2018] 2 NZLR 1.3 At [7]–[23].4 Crimes Act 1961, s 379A. See R v Livingston [2001] 1 NZLR 167 (CA) at [23]; and McGrath vR [2005] NZSC 50 at [4].(a) making or refusing to make an order under section 79(as to admissibility of evidence):(b) granting or refusing to grant permission undersection 44 of the Evidence Act 2006 (which relates tothe cross-examination of a complainant):(ba) granting or refusing to grant an application for adirection under section 106F of the Evidence Act2006 in respect of a notification under section 106Dof that Act that cross-examination evidence is to begiven by video record made before trial:(bb) granting or refusing to grant an application undersection 106H of the Evidence Act 2006 for furthercross-examination of a sexual case complainant orpropensity witness all of whose evidence has been oris to be given by video record made before trial:(c) giving or refusing to give leave on an applicationunder section 109(1)(d) of the Evidence Act 2006(which relates to the identity of a witness):(ca) making or refusing to make a pre-trial witnessanonymity order under section 110 of the EvidenceAct 2006:(d) making or refusing to make a witness anonymityorder under section 112 of the Evidence Act 2006.[6] The list of appealable decisions in ss 217 and 218 corresponds generally to thatformerly found in s 379A of the Crimes Act 1961. Section 217 allows the defendantor the prosecutor a much more extensive range of pretrial appeals in jury cases. Again,appeal is by leave of the first appeal court:(2) The defendant or the prosecutor may, with the leave of thefirst appeal court, appeal to that court against a decision thatis one of the following:(a) making or refusing to make an order under section 21(to amend, divide, or amalgamate charges):(b) making or refusing to make an order undersection 101 (pre-trial order about admissibility ofevidence):(c) making or refusing to make an order undersection 102 (that Judge-alone trial be held in caselikely to be long and complex):(d) making or refusing to make an order undersection 103 (that Judge-alone trial be held in caseinvolving intimidation of jurors):(e) amending or refusing to amend a charge undersection 133:(f) making or refusing to make an order undersection 138(4) (that defendant be tried separately on1 or more charges):(g) making or refusing to make an order undersection 151 (for a person to be retried on ground thatacquittal tainted):(h) refusing to make an order under section 157 (totransfer proceeding to a court at another place):(i) granting or refusing to grant permission undersection 44 of the Evidence Act 2006 (relating to thecross-examination of a complainant):(ia) granting or refusing to grant an application for adirection under section 106F of the Evidence Act2006 in respect of a notification under section 106Dof that Act that cross-examination evidence is to begiven by video record made before trial:(ib) granting or refusing to grant an application undersection 106H of the Evidence Act 2006 for furthercross-examination of a sexual case complainant orpropensity witness all of whose evidence has been oris to be given by video record made before trial:(j) giving or refusing to give leave on an applicationunder section 109(1)(d) of the Evidence Act 2006(relating to the identity of a witness):(ja) making or refusing to make a pre-trial witnessanonymity order under section 110 of the EvidenceAct 2006:(k) making or refusing to make a witness anonymityorder under section 112 of the Evidence Act 2006.[7] Section 218 allows the defendant (but not the prosecutor) to seek leave toappeal orders under ss 18 (further particulars of a charge) or 157 (change of venue) injury cases.[8] In an appeal under s 215 (judge-alone cases), s 216(2) specifies that the firstappeal court may refuse leave to appeal if, without limitation,5 it thinks it expedientthat the issue under appeal should be determined on a post-trial appeal. The legislationis otherwise silent about the criteria for deciding pretrial appeals.[9] The trial court may begin or continue the trial although an application for leave,or a pretrial appeal, has not been determined, if satisfied that it is in the interests ofjustice to do so.6 A similar provision was found in s 379A(6) of the Crimes Act, but itwas confined to pretrial appeals under s 344A of that Act (admissibility of evidence).The power now found in s 222 of the CPA is not confined to any subset of pretrialdecisions.Process[10] The Court of Appeal (Criminal) Rules 2001 provide that an application forleave to appeal must be made in Form 1.7 That form instructs the applicant to explainwhy the court should give leave to appeal. Where the appeal relates to theadmissibility of evidence to be called at trial, the evidence must be outlined and itsrelevance to the trial explained. Where the appeal relates to a question of law, thequestion to be answered should be identified.[11] Under r 5C of the Rules the respondent to the proposed appeal, usually theCrown, must file a reply memorandum. That memorandum should state whether therespondent considers the leave application should be heard separately from theproposed appeal, and why.8 The mode of hearing decision is made by a single judge,who need not give reasons.9[12] If heard separately from the proposed appeal, an application for leave to appealmay be decided by two judges,10 and the court may state its reasons briefly and ingeneral terms.11 Applications for leave to appeal may be decided on the papers. The5 Criminal Procedure Act 2011 [CPA], s 216(3).6 Section 222.7 Court of Appeal (Criminal) Rules 2001 [the Rules], r 5B(1)(b).8 Rule 5C(2)(b).9 Rule 5D.10 CPA, s 333(1).11 The Rules, r 5I.hearing time for those leave applications given an oral hearing is limited to 15 minutesper side with a brief reply.12 Written submissions are limited to five pages.13[13] Where the leave application is heard with the appeal, the hearing may also beon the papers, provided a judge is satisfied the appeal can fairly be determined on thatbasis.14[14] The duty of an appeal court to consider an appeal is subject to any leaverequirements being met.15[15] In Hohipa this Court explained that these provisions differ significantly fromthe predecessor provisions in the Crimes Act.16 Under both statutes a leave applicationmight be heard on the papers, but the Crimes Act presumed that it would be given anoral hearing (before a panel of three judges).17 Under the CPA there is no suchpresumption,18 and leave applications may be decided by two judges.19 As the Courtnoted, these provisions reflect a legislative desire to advance the interests of justice byassisting the courts to address causes of delay in their processes.20 The Court alsonoted, as it had done in R v Leonard,21 that pretrial appeals affect waiting times forsubstantive criminal and civil business, and this may be taken into account whendeciding how to deal with leave applications.22Legislative policy toward pretrial appeals[16] Provision for interlocutory criminal appeals was first made in New Zealandin 1967, in response to a High Court Judge's decision, as trial judge, to decline a strongapplication for change of venue for a high-profile trial in a provincial centre.23 AFull Court of the High Court reasoned that successive applications might be made and12 Rule 5G(3).13 Rule 5G(3).14 CPA, s 329.15 Section 213(4).16 Hohipa, above n 2, at [19] and [35].17 Crimes Act 1961, s 392A.18 Hohipa, above n 2, at [19].19 CPA, s 333(1).20 Hohipa, above n 2, at [35].21 R v Leonard [2007] NZCA 452, [2008] 2 NZLR 218 at [7].22 Hohipa, above n 2, at [34].23 R v Davis [1964] NZLR 417 (SC) at 418.such an application might be decided by two or more judges, so ingeniously permittingwhat amounted to an appeal to the Full Court.24 Recognising a need for expressjurisdiction, Parliament enacted s 379A of the Crimes Act to permit appeals to thisCourt.25 The object of the legislation was that of avoiding retrials by permittingappeals in cases where such appeals were clearly justified.26 F B Adams J argued, inopposition to the amendment, that while it might save retrials in some cases, suchcases would be infrequent in comparison with the likely volume of pretrial appeals,some of which would prove unnecessary.27 The legislature appears to have assumedthat this risk could be managed via the requirement for leave of the Court of Appeal .[17] Over time the ambit of s 379A was expanded. Notably, s 344A was added tothe Crimes Act in 1980 to permit trial judges to deliver pretrial rulings on admissibilityof evidence, the rationale being that jurors were inconvenienced by being kept waitingwhile rulings were made during trial.28 Provision was made for appeals by leave fromsuch pretrial rulings, the legislature adding that, notwithstanding an application forleave to appeal, the trial court might continue with the trial before leave was decidedif satisfied it was in the interests of justice to do so.29 The list of pretrial rulings whichmay be the subject of a pretrial appeal under the CPA is set out at [3] to [7] above.[18] The CPA was designed to achieve efficiency in criminal proceedings, reducingdelays to trial and the number of court events.30 Its processes contemplate case reviewhearings which follow initial disclosure and at which issues will be identified beforethe proceeding is adjourned for a judge-alone or jury trial.31 These issues may includematters which may be the subject of pretrial applications.[19] The CPA provides for pretrial evidence admissibility hearings.32 For a jurytrial, the prosecutor or the defendant may make such an application if they want to24 At 419–420.25 Crimes Amendment Act 1966, s 8(1).26 (15 June 1966) 346 NZPD 491; and Greg Taylor Interlocutory Criminal Appeals in Australia(Thomson Reuters, Sydney, 2016) at [1.80].27 F B Adams "Submission to the Department of Justice on the Crimes Amendment Bill 1966".28 Crimes Amendment Act 1980, s 3; and (1 August 1980) 432 NZPD 2294.29 Crimes Act, s 344A.30 Ministry of Justice Criminal Procedure (Reform and Modernisation) Bill Initial Briefing(7 February 2011) at [7].31 CPA, s 54.32 Sections 78 and 101.adduce any particular evidence and believe its admissibility may be challenged.33 Thismay be done before a proceeding is set down for a judge-alone trial or after it istransferred to the trial court for a trial callover.[20] These administrative provisions of the CPA ought to result in issues beingidentified and resolved during or shortly after the end of the case administration phaseand before the case is set down for trial. The expectation, as set out in a Departmentalbriefing paper to the Justice and Electoral Select Committee, was that they wouldreduce time to trial, and increase the proportion of cases which are resolved earlythrough change of plea or withdrawal of charges.34[21] Pretrial admissibility applications may be made as of right in proceedings tobe tried by jury.35 Permission is required where the admissibility issue arises in ajudge-alone trial.36 We mention the criteria for permission because they are a guide tolegislative policy toward pretrial applications and hence relevant to the grant of leaveto appeal. They are that:37(a) it is more convenient to deal with the issues pretrial: and(i) the admissibility issue is complex and the decision is likely tomake a substantial difference to the overall conduct of theproceeding; or(ii) the decision may avoid the need for a trial; or(b) the complainant or witness is particularly vulnerable and resolving theadmissibility issue is in the interests of justice.33 Section 101.34 Ministry of Justice, above n 30.35 CPA, s 101.36 Section 78.37 Section 78(4).[22] As noted earlier, all first pretrial appeals are by leave and, in contrast to otherappeals by leave, the legislation leaves the determination of the criteria for appeal tothe courts.38[23] As Ms Thomson noted for the Crown, legislation and judicial policy incomparable jurisdictions limit pretrial appeals:(a) in Canada pretrial appeals are generally prohibited, with certainexceptions for the Crown where the pretrial ruling effectively bringsthe proceeding to an end;39(b) in New South Wales and South Australia the Crown may appeal adecision about admissibility if the evidence concerned eliminates orsubstantially weakens the prosecution's case;40(c) in Victoria either party may appeal a decision on the admissibility ofevidence but only if the trial judge certifies its absence would"eliminate or substantially weaken the prosecution case".41 Otherinterlocutory decisions may only be appealed if the trial judge certifiesthat the issue is "of sufficient importance to the trial to justify it beingdetermined on an interlocutory appeal";42 and(d) in England and Wales pretrial rulings are uncommon and pretrialappeals lie by leave. The Crown may seek leave to appeal againstinterlocutory rulings but must accept that the defendant should be38 Second pretrial appeals are also by leave and the second court must be satisfied that the appealinvolves an issue of general or public importance or that there may be a miscarriage of justiceunless the appeal is heard: CPA, s 223. Where the Supreme Court is the second appeal court,s 74(4) of the Senior Courts Act 2016 imposes an additional requirement that it be in the interestsof justice to hear the appeal before the proceeding in which it is brought has been concluded.39 See Criminal Code RSC 1985 c C-46 (Can), ss 674 and 676. If a pretrial ruling gives the Crown"no reasonable alternative" but to withdraw the charges, the Crown may end the prosecution andappeal the interlocutory ruling, but that high threshold is strictly enforced: R v Tingley 2015 NBCA51, 444 NBR (2d) 1 at 114. There is a right of appeal against certain disclosure decisions foundin s 37.1(1) of the Canada Evidence Act RSC 1985 c C-5 (Can).40 Criminal Appeal Act 1912 (NSW), s 5F(3A); and Criminal Procedure Act 1921 (SA), s 157(1)(e)and (3).41 Criminal Procedure Act 2009 (Vic), s 295(3)(a).42 Section 295(3)(b).acquitted if the appeal fails.43 Further sections (which have not beenbrought into force) would have allowed the Crown to appeal onevidentiary rulings where the ruling would significantly weaken theCrown case.44 Either party may appeal, again with leave, againstcertain pretrial rulings in serious, lengthy, and complex cases.45Because pretrial appeals are "exceptional", leave will only be grantedin "appropriate" cases.46[24] Several rationales have been advanced for the conservative approach taken inthese jurisdictions:(a) interlocutory applications and appeals delay trials. In R v Mills, theSupreme Court of Canada stated that "experience has shown that theinterlocutory motion or appeal has all too frequently been theinstrument of delay";47(b) the trial is the appropriate place to decide many issues, especially thoseinvolving the admission of evidence, the trial judge is often best placedto assess the impact of the issue on the trial and balance relevantconsiderations, and the trial gives an appellate court a more completepicture of the case;48(c) interlocutory applications and appeals fragment trial issues which arefrequently interdependent, so should be discouraged unless the issueconcerned will have a major effect on the trial; and43 Criminal Justice Act 2003 (UK), ss 57, 58 and 61.44 Sections 62 and 63.45 Criminal Justice Act 1987 (UK), ss 7 and 9(11) (in respect of serious or complex fraudprosecutions); and Criminal Procedure and Investigations Act 1996 (UK), ss 29 and 35 (in respectof other complex, serious, and/or lengthy prosecutions).46 R v VJA [2010] EWCA Crim 2742 at [43] in relation to the Criminal Justice Act; and R v AJ [2019]EWCA Crim 647 at [62]–[63].47 R v Mills [1986] 1 SCR 863 at [276].48 Kourtessis v Minister of National Revenue [1993] 2 SCR 53 at [16]; R v Seaboyer [1991] 2 SCR577 at [117]; and Taylor, above n 26, at 16.(d) interlocutory appeals may demand more resources of the appellatecourt than they justify.49 This is another way of putting the point madeby FB Adams J; for every pretrial appeal which averts a retrial, therewill be a substantial number which are unnecessary or unsuccessful.50The Leonard and Hohipa criteriaLeonard[25] In Leonard the Court explained that its practice had been to hear leaveapplications with the merits so that trials were not unduly delayed by the appealprocess.51 However, that practice had resulted in leave being routinely granted inmany cases and the distinction between appeals as of right and those by leavebecoming inappropriately blurred.52 The Court decided that leave applications wouldbe heard separately unless the documents filed showed that leave likely would begranted.53[26] The Court identified policy reasons for and against pretrial appeals:[5] The existence of the leave requirement in s 379A recognises that thereare competing interests to be considered in pretrial appeals in criminal matters.Policy reasons in favour of pretrial appeals include:(a) If an accused is denied access to a pretrial appeal, he or shemust wait until the conclusion of a trial and a post-trial appeal(if convicted) for review of any error. The entire trial mustthen be repeated and both the accused and the legal systemhave expended considerable time and cost for naught. Thiswas the rationale for the insertion of s 379A given by theHon J R Hanan (the then Minister of Justice) on itsintroduction – (15 June 1966) 346 NZPD at 491;(b) Delay occasioned by postponing relief until after the trial mayimpact negatively on the memories of witnesses at any retrial.Delay may also limit the ability of either side to put their case;(c) If any error leads to a successful post-trial appeal, the parties(and in particular the Crown) may have an unwarrantedopportunity to improve their case at any retrial;49 CGL v Director of Public Prosecutions (No 2) [2010] VSCA 24, (2010) 24 VR 482 at [5]. Seegenerally Taylor, above n 26.50 Adams, above n 27.51 Leonard, above n 21, at [4].52 At [4].53 At [8].(d) The Crown has limited post trial appeal rights (see s 380 ofthe Crimes Act and s 107 Summary Proceedings Act 1957)and those that exist are used very sparingly. The Crownshould have the opportunity to test on appeal any rulingswhich will significantly affect its case at trial;(e) While an accused can appeal post trial if convicted, the testunder s 385 is more onerous than that under s 379A.[6] Policy reasons against appeals in pretrial matters include:(a) Hearing an appeal after the trial is ended permits the Court toaddress all appeal issues simultaneously and in the context ofthe completed trial, thus preventing the wasted time andconfusing fragmentation that may occur if several separateappeals arise out of a single trial. It also allows the Court toget a better gauge of the impact of any error, which isespecially important in terms of the application of the provisoto s 385;(b) Often the trial Judge is in the best position to determine theissue and primacy ought to be given to his or her decision;(c) Declining to hear a pretrial appeal ensures that the appeal istruly required and it is not later rendered moot by an acquittalor by a subsequent ruling made at trial;(d) Limiting pretrial appeals limits delay in the trial process. Notonly does the accused have the right to be tried within areasonable time, there is also a societal interest in dealingquickly with criminal charges, leading some commentators toargue that the effects of pretrial appeals are especiallypernicious in criminal proceedings – see Layton "ThePre-trial Removal of Counsel for Conflict of Interest:Appealability and Remedies on Appeal" (1999) 4 Can Crim LRev 25 at 30;(e) An expeditious trial lessens the attendant strain oncomplainants and witnesses – see Clark v R [2005] 2 NZLR747 at [11] (SC).[27] The Court noted that pretrial appeals have resourcing implications for theCourt, which was dealing with about 70 pretrial leave applications a year and foundthat some had been hopeless from inception, related to matters of little significancefor the trial, or concerned issues that might be revisited at trial.5454 At [7].[28] The Court established criteria which would be taken into account to the extentapplicable in any given case. Factors pointing towards leave were:55(a) The argument is based on a novel point or is of significancefor other cases;(b) There is conflicting authority covering the issue to bedetermined on the proposed appeal;(c) The application relates to an identified error of law;(d) The application involves the admissibility of evidence that isimportant to one of the parties;(f) The matter cannot be dealt with adequately in any appeal afterthe trial or there are only limited post-trial appeal right (as willoften be the case for Crown applications);(g) The proposed grounds of appeal are arguable.[29] Factors pointing against leave were:56(a) The issue will need to be revisited at trial or is best dealt within the context of the trial;(b) The application involves the admissibility of evidence thatwould not make a significant difference to the course of thetrial and is unlikely to lead to post conviction appeal success;(c) The issue is best dealt with in the context of any postconviction appeal;(d) The application challenges a factual finding, especially wherethe finding rests on an assessment of credibility;(e) The application challenges the exercise of a discretion. Insuch cases leave should not be granted unless there aregrounds articulated which point to the fact that the judge has,in exercising his or her discretion, acted on some wrongprinciple, has given weight to extraneous or irrelevantmatters, has failed to give sufficient weight to relevantconsiderations, or is plainly wrong;(f) The appeal will cause unnecessary delay: for example wherethere is not time to hear the appeal before the trial commencesor where it would unduly delay the trial;(g) The proposed appeal is without merit.55 At [13].56 At [14].[30] The Court noted that the onus was on the applicant to justify leave and statedthat adequate information must be provided with the leave application.57The information required corresponded generally to that now required by Form 1.Hohipa[31] The Court took the opportunity in Hohipa to revisit its approach to pretrialappeals in light of its initial experience with the then-new CPA.58 The Court observedthat legislation continued to leave it to this Court to develop criteria for decidingpretrial appeals in the exercise of its supervisory jurisdiction.59[32] The Court held that the Leonard criteria remained relevant and should continueto apply under the CPA, but it would evolve as appropriate.60[33] The Court explained that in practice its expectation, following Leonard, thatleave applications would be heard separately as a matter of course had not been met.61This reflected experience: time savings from hearing leave applications separatelywere minimal and separate leave hearings would delay trials in which leave wasgranted. The Court accordingly saw the CPA's provision for on the papers hearings assignificant.62 It proposed to respond by deciding more leave applications on thepapers.63Recent experience[34] The number of leave applications doubled following Hohipa, reaching about140 per year.64 About 60 per cent of them relate to the admissibility of evidence.Contrary to the Court's expectation in both Leonard and Hohipa, in most cases leaveand merits are still argued together. There are, we think, two reasons for this.57 At [12] and [33].58 We confine discussion to cases in which this Court is a first appeal court dealing with pretrialappeals. This judgment does not address the Court's approach to other appeals by leave.59 Hohipa, above n 2, at [23].60 At [27].61 At [31].62 At [35].63 At [36].64 This Court in Hohipa, above n 2, at [34] noted the number of pretrial leave applications filed hadremained static, at about 70 per year. The increase predated the COVID-19 pandemic. There hasbeen a decline in numbers in recent months, with 60 having been filed so far this year.[35] First, it is usually obvious from the leave application that the issue matters tothe party seeking leave. For example, appeals against the admission of propensityevidence matter to the applicant because such evidence increases the likelihood ofconviction. However, applications often fail to identify any issue of widersignificance, address the impact of the appeal on the prosecution case, advise whetherthe outcome will avoid a trial or substantially affect its scope and duration, or explainwhy the issue cannot be dealt with in a conviction appeal. Seldom is the Court toldthat its decision will avert a trial. The Crown's reply memorandum under r 5C of theRules often rehearses the leave criteria without adding much information, possiblybecause Crown counsel have learned from experience that leave seldom receives aseparate hearing.[36] Second, a substantial and growing number of leave applications — about43 per cent — are made in close proximity (90 days or fewer) to the scheduled trialdate. This appears to be a consequence of late applications in the trial courts, ratherthan a delay in bringing appeals. This Court almost always delivers a judgmentswiftly, in the expectation that the trial will proceed or resolve by plea on the scheduleddate. The pressure of time usually makes it necessary to decide leave and meritstogether. Occasionally a judge indicates that the Court cannot hear a pretrial appealbefore the scheduled trial date and the trial judge should consider whether to proceedwith the trial under s 222 of the CPA.65[37] So the Court's practice is underpinned by an expectation that trials will proceedon schedule or be avoided by a plea on that date. It has become increasingly clear thatexpectation is not being met. In the year ended 30 June 2022 there were 146 pretrialapplications. In 10 cases a guilty plea was entered following the pretrial hearing. In91 cases the pending trial was recorded as "not complete", meaning it was adjournedor rescheduled. Jury trials were affected by the pandemic in that year, but the patternwas also evident in 2017 and 2018. In the year ended 30 June 2019 there were 116pretrials. In 16 of those cases a guilty plea followed the decision. In 61 cases the trialdid not proceed on the scheduled date.65 This happens in about 16 cases annually.[38] After argument was heard in this application, the Ministry of Justice publisheda study on increased delays in guilty pleas and increases in jury trial elections since2016 in the District Courts at Auckland, Christchurch and Manukau.66 Thesignificance of the study for our purposes is that it rests on data which confirms thatguilty pleas are more often being entered close to the eventual trial date. The authorsstate that between 2016 and 2019 the likelihood of a late guilty plea rose by about20 per cent.67[39] We did not invite further submissions on the study because we need not expressa view on its suggestions about the complex causes of these developments.68 It was afocus group study and the authors acknowledge that it should be seen as qualitativeand exploratory.69 It points to a need for better information about issues including thesize and timing of guilty plea discounts and the use of sentencing indications. For ourpurposes, what can be said is that a pattern of adjournments after pretrial appealsfollowed by much later guilty pleas suggests that other factors are making a substantialcontribution to outcomes.[40] From this Court's perspective, that is not surprising. It remains true, as it waswhen Leonard and Hohipa were decided, that a substantial majority of pretrial appealsfail and many obviously lack merit. It is a reasonable supposition that most of theseproceedings would have ended in a guilty plea in any event. If so, both the pretrialruling and the appeal were unnecessary. Pretrial applications are most likely todetermine whether the proceeding ends in abandonment, plea or trial where: a) thepretrial ruling resulted in strongly probative evidence being ruled in or out; and b) theapplication had reasonable prospects of success. Challenges to police searches are agood example of pretrial applications in which the outcome is often decisive but theprospects of excluding the evidence are frequently slight, either because no real errorof process affected the search or the balancing exercise under s 30 of the Evidence Act2006 manifestly favours admission.66 Research First Ltd A Qualitative Insight Into the Increase in Later Guilty Pleas and Election ofJury Trials (Ministry of Justice, 30 June 2021).67 At 3.68 We heard from counsel on questions of policy and practice but (as in Hohipa, above n 2) did notinvite submissions from professional bodies. The issues are substantially matters of judicialadministration.69 Research First Ltd, above n 66, at 5.[41] This raises two questions: why are pretrial applications made, and why is leaveto appeal sought, in so many cases? We do not have empirical information about that.But something can be said about incentives to isolate issues for decision before trial.In an appeal after conviction the court is interested not only in whether somethingwent wrong at trial but also in the materiality of an error to the jury's verdict.70 Theappellate court is also better informed because it has the evidence actually led at trial,the full trial record and the views of the trial judge. These considerations usuallyfavour declining leave. The pattern of late applications and adjournments alsosuggests that, far from saving time, pretrial applications and appeals may becontributing to delay in some cases.Restatement of the leave criteria[42] We have concluded that the exercise of the Court's leave jurisdiction requiressome change to the leave criteria.Review of policy considerations[43] Pretrial appeals allow this Court to settle issues of law and practice in criminalproceedings, and to exercise its general supervisory jurisdiction over jury trials. Theleave jurisdiction will continue to be exercised to that end.[44] The original rationale for pretrial appeals — avoiding retrials which result fromserious and obvious pretrial errors — retains its potency. It favours leave where theprospects of the pretrial ruling being shown to be in error are high and the error carriesa real risk of affecting the outcome of the trial. These are cases in which a convictionappeal likely will result in an order for retrial.[45] The other historic rationale for pretrial rulings — saving the time of juries whomust otherwise wait while admissibility issues are argued during trial — does notjustify a pretrial appeal.70 Taylor, above n 26, at 15 citing Y Kamisar and others Modern Criminal Procedure: Cases,Comments and Questions (12th ed, Thomson/West Academic Publishing, St Paul, 2008) at 1542f.[46] Protecting vulnerable witnesses is an important consideration for trial judges,who are almost always best placed to decide how to do this. Most pretrial appeals arebrought by defendants, who usually can invoke this consideration only when theoutcome might avoid trial altogether or the pretrial ruling will lead to a retrial. It ismost likely to affect leave where the pretrial ruling requires witnesses to give evidencetwice, in separate trials. In those cases the leave application is brought by the Crown.[47] One of the objectives of pretrial rulings and appeals is to reduce overall trialdelays and the number of court events. This is a question of system efficiency in whichthe interests being balanced include those of defendants and witnesses in a fair andprompt trial, as well as those of the state, in an effective justice system. Pretrialappeals may promote these interests, as s 217 of the CPA envisages. A substantialminority of pretrial applications are brought soon after the case administration phasein the District Court and a substantial minority of pretrial appeals result in proceedingsbeing concluded by abandonment, plea, or trial on the scheduled trial date. Sometimesthe pretrial appeal significantly affects the scope and duration of the trial.[48] However, in practice, pretrial appeals often do not achieve these ends. Thereare too many in which leave is granted, and the merits heard urgently, in theexpectation that the trial will proceed or the proceeding will be otherwise concluded,on an impending trial date. The need to ensure the trial can proceed on that datefrequently outweighs considerations that otherwise weigh against leave. This mightbe acceptable if trials proceeded, or pleas were entered, on the scheduled date. In toomany cases that is not happening.[49] In addition, system efficiency considerations must be weighed against the riskof error when issues are fragmented by deciding some of them in isolation from thetrial. In an appeal after trial the appellate court has the advantage of the evidenceactually led there, the full trial record and the views of the trial judge, who is betterplaced than an appellate court to assess the evidence and issues. The issue can beplaced accurately in context. All of this is lacking in a pretrial appeal. (The judgewho decided the application at first instance did so before the trial commenced andmay not have been the designated trial judge in any event.) For these reasons thisCourt may decline leave where the trial judge will have an opportunity to review apretrial ruling at or before trial.71[50] As the Court noted in Leonard, resourcing is also a relevant consideration inpretrial appeals.72 The CPA recognises that,73 as the Court explained in Hohipa,74leave applications may be decided by two judges on the papers, and reasons fordeclining leave may be brief. Appeals require three judges and fuller reasons.75 Thisfavours separate consideration of leave applications unless the case for leave isobvious or the court is persuaded that a scheduled trial date will be vacated unless theappeal is heard without delay.[51] The volume of pretrial appeals in this Court has continued to grow, and as wehave explained, they are given priority over other business. Time savings in trialcourts that are achieved by pretrial appeals must be balanced against delays in dealingwith this Court's substantive criminal and civil business. From a system efficiencyperspective the overall objective, after all, is to minimise delays in final dispositions.We noted in Hohipa that waiting times in criminal appeals were six months, and incivil cases before the Permanent Court, 12 months.76 The position remains the samefor conviction appeals today, but civil waiting times for Permanent Court hearingshave grown to 15 months and they would be longer but for the increasing use ofDivisional Courts to decide civil appeals.Restatement of leave criteria.[52] The overall criterion remains the interests of justice. The considerations listedbelow are designed to facilitate this Court's supervisory jurisdiction over trial practice.They are:(a) the proposed appeal raises a novel issue or point of law;71 In Hamed v R [2011] NZSC 27, [2011] 3 NZLR 725 the Supreme Court granted leave to bring asecond appeal partly because the issue could not be revisited by the trial Judge.72 Leonard, above n 21, at [7].73 CPA, ss 327, 331, 333(1) and 340; and the Rules, r 5I.74 Hohipa, above n 2, at [18].75 Senior Courts Act, s 47(1).76 Hohipa, above n 2, at [34].(b) the proposed appeal raises an issue of wider significance — forexample, it is the subject of conflicting authority;(c) where the proposed appeal concerns the admission of evidence, theoutcome will eliminate or substantially weaken or strengthen theprosecution case;(d) the proposed appeal has merit, and if not corrected, the pretrial rulingis likely to result in a retrial being ordered under s 232 of the CPA;(e) the outcome may avert the need for a trial, or may significantly alter itsscope and duration;(f) the issue cannot be dealt with adequately in a conviction appeal aftertrial, or post-trial appeal rights are limited (the latter distinguishes leaveapplications brought by the Crown);(g) the pretrial ruling can be revisited by the trial judge in light of the issuesand evidence which emerge at trial;(h) the issue is best dealt with in a conviction appeal after trial, perhapsbecause the evidence led there may vary from that disclosed beforetrial, the trial will better put the issue in context, or an appeal wouldbenefit from the opinion of the trial judge;(i) the outcome will affect a complainant or witness who is particularlyvulnerable;(j) the pretrial appeal will require this Court to undertake an extensiveevaluation of evidence to be led at trial, replicating work which willneed to be done in the event of an appeal against conviction;(k) the application challenges a factual finding made by the judge whoheard the pretrial application;(l) the decision challenged is highly evaluative, such that it will not be easyto show that the first instance judge was wrong;(m) the appeal will delay the defendant's trial.[53] Applications for leave, and r 5C reply memoranda from the Crown, shouldaddress these considerations to the extent applicable. It is unlikely that any givenapplication will engage all the considerations listed. The Court also appreciates thatcounsel sometimes may not be in a position to say whether, for example, the outcomeof the appeal may avert the need for a trial. But if a given consideration is said to beengaged the application should explain why that is so and provide sufficientinformation to allow the court to assess the application against it. Box-checking willnot assist the Court in its exercise of judgement.[54] The court will take an overall approach to the considerations. It may not sufficethat one or more of them is met, if others favour declining leave.[55] It sometimes will remain necessary to hear pretrial appeals brought after theend of the case administration phase and when a trial has been scheduled. In suchcases a judge will continue to consider whether the court will hear leave and meritstogether, to ensure the trial can proceed on the scheduled date. Counsel must advisethe court if the trial date is provisional or they anticipate that the trial may be adjournedfor other reasons.[56] Where a judge directs that leave be argued separately, the Registrar ordinarilywill assign the application to a panel of two judges for hearing on the papers.[57] Where leave is granted, no reasons will be given unless the panel thinks itappropriate. Where leave is declined, the reasons given ordinarily will be as brief asthe circumstances allow.The application for leave to appeal[58] We turn to the application for leave to appeal, which we assess (in fairness tothe applicant) by reference to the Leonard criteria to the extent they assist him.[59] The applicant faces two charges of injuring his infant daughter with intent toinjure between 27 May 2020 and 22 February 2021. One charge alleges bruising toher face (Charge 1), the other injuries to her left tibia and fibula (Charge 2). Charge 1rests on evidence that the child was injured while in his care and his explanation — afall in the bath — is unlikely to account for the extensive bruising seen on medicalexamination several days later. During examination healing fractures were observedto her leg, hence Charge 2. The child was not yet a toddler. Expert witnesses will saythat the injuries are not consistent with an accident.[60] The pretrial issue concerns the admissibility of propensity evidence, in theform of a conviction for ill-treating his older daughter in 2012, when she was betweensix to nine months of age. We will call this the 2012 propensity evidence.[61] The applicant argues that the medical evidence is insufficient in itself to sustainconvictions and, that being so, the Crown case rests on the 2012 propensity evidence.That evidence is said to be prejudicial, and also lacking in probative value because theapplicant has matured since 2012. He was 19 then, and there was evidence from thechild's mother that his parenting exhibited impulsive behaviour consistent with hisyouth. There is a good deal of evidence, in addition to the summary of facts, that hewould punish the child physically for not staying still or for crying. He was 27 at thetime of the index charges and the mother of this child says she has never seen him useor threaten violence against her.[62] The proposed appeal raises no novel question or issue of wider application.It is a routine application of settled principles to the case at hand.[63] The evidence is important to the applicant, in that it significantly increases thelikelihood of conviction. But notwithstanding the absence of direct evidence ofidentity for Charge 2, we do not accept that the 2012 propensity evidence willsubstantially strengthen the Crown case. Identity is not in issue for Charge 1, whichrests on evidence that the injuries are consistent with assault and not consistent withthe applicant's explanation. The jury may rely on the evidence for Charge 1, usingpropensity reasoning, to help establish identity when it comes to Charge 2. Intent, forboth charges, will rest primarily on inferences to be drawn from the nature of theinjuries.[64] The proposed appeal is arguable, but its merits are not strong. The propensityevidence is robust, and the propensity is sufficiently distinctive. The evidence is notillegitimately prejudicial, and its evaluation is a jury question. There is no reason tothink the jury will not follow the usual directions.[65] In addition, the evidence is not settled. We were told that the proposed expertevidence about the bone injuries is to change. It is possible that the ruling will needto be revisited in light of the evidence actually led at trial. It is unclear to what extentevidence about the 2012 incidents will be led, in addition to the summary of facts towhich he pleaded at that time. The impact of the propensity evidence can be gaugedmore accurately by the trial judge and, if necessary, in an appeal against conviction.[66] There is some reason to think that a partial success on appeal might result in aresolution. However, the propensity evidence will not significantly alter the trial'sscope or duration.[67] It appears the proposed appeal will not delay the trial. A trial date has yet tobe allocated.[68] When the applicable considerations are viewed overall, the proposed appealdoes not merit leave.Disposition[69] The application for leave to appeal is declined.[70] In order to protect W's fair trial rights, we make an order prohibitingpublication of this judgment and any part of the proceeding (including the result) innews media or on the internet or other publicly available database until finaldisposition of trial. Publication in a law report or law digest is permitted.Solicitors:Crown Law Office, Wellington for Respondent