YUSUKE (DAVID) SENA v NEW ZEALAND POLICE [2018] NZSC 92
Leave to appeal to the Supreme Court was granted because the proper approach to appellate review under s232(2)(b) following a judge-alone trial is a question of general and public importance requiring authoritative determination; therefore the issue warranted direct appeal despite the Court of Appeal declining leave.
Source-derived case information.
- Citation
- [2018] NZSC 92
- Parties
- Applicant: Yusuke (David) Sena; Respondent: New Zealand Police
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 10 October 2018
- Procedural Posture
- Criminal Appeal / Leave to Appeal Direct to Supreme Court Granted
- Outcome
- Leave to appeal direct to the Supreme Court granted
- Legal Topics
- Judge Alone Trial, Appellate Review Standard, Miscarriage of Justice, Criminal Procedure Act 2011 S232(2)(b)
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yusuke (David) Sena
Applicant
New Zealand Police
Respondent
Procedural Posture
Criminal Appeal / Leave to Appeal Direct to Supreme Court Granted
Legal Issues
- 1 What is the correct appellate approach under s232(2)(b) following a judge-alone trial?
- 2 Whether a first appeal under s232(2)(b) entitles the appellate Judge to conduct their own assessment of the evidence rather than a review.
- 3 When does an error in assessment amount to a miscarriage of justice?
Ratio Decidendi
Leave to appeal to the Supreme Court was granted because the proper approach to appellate review under s232(2)(b) following a judge-alone trial is a question of general and public importance requiring authoritative determination; therefore the issue warranted direct appeal despite the Court of Appeal declining leave.
Court Disposition
Leave to appeal direct to the Supreme Court granted
Orders
- Leave to appeal direct to the Supreme Court granted
- Approved ground of appeal limited to whether the High Court was correct to dismiss the appeal under s232(2)(b) of the Criminal Procedure Act 2011
Full Case Text
Judgment text and source record
1 paragraphs
YUSUKE (DAVID) SENA v NEW ZEALAND POLICE [2018] NZSC 92 [10 October 2018]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 60/2018[2018] NZSC 92BETWEEN YUSUKE (DAVID) SENAApplicantAND NEW ZEALAND POLICERespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: D P H Jones QC for ApplicantJ E L Carruthers for RespondentJudgment: 10 October 2018JUDGMENT OF THE COURTA Leave to appeal direct to this Court, against the HighCourt's judgment (Sena v New Zealand Police [2017] NZHC2319), is granted.B The approved ground of appeal is whether the High Courtwas correct to dismiss Mr Sena's appeal against convictionbrought under s 232(2)(b) of the Criminal Procedure Act2011.____________________________________________________________________REASONS[1] After a Judge-alone trial, Mr Sena was found guilty on five charges ofassaulting two children.1 He appealed unsuccessfully against conviction and sentence1 R v Sena [2017] NZDC 3564 (Judge Henwood).to the High Court.2 Leave to bring a second appeal in relation to his conviction havingbeen declined by the Court of Appeal,3 leave is sought to appeal directly to this Court.[2] In dismissing the application for leave, the Court of Appeal did not accept thesubmission for Mr Sena that, on an appeal under s 232(2)(b) of the Criminal ProcedureAct 2011 following a Judge-alone trial, he was entitled to the High Court Judge's "ownassessment of the evidence".4 "Rather", the Court of Appeal observed, "the functionthe Judge undertook – that of review – is precisely what the relevant authoritiesrequire".5[3] The proposed appeal to this Court would raise a question as to the correctapproach to be taken on an appeal under s 232(2)(b). That section provides that a firstappeal must be allowed where the Court is satisfied that, "in the case of a Judge-alonetrial, the Judge erred in his or her assessment of the evidence to such an extent that amiscarriage of justice has occurred".[4] The approach to appellate review under s 232(2)(b) is a question of general andpublic importance. It is also unclear when the question may arise again fordetermination in this Court given the issue will likely be determined in the same wayif raised again in the Court of Appeal. In the circumstances, this is one of those rare,and exceptional,6 cases where leave to appeal should be granted notwithstanding thedecision of the Court of Appeal to decline leave.Solicitors:Croftfield Law, Auckland for ApplicantCrown Law Office, Wellington for Respondent2 Sena v New Zealand Police [2017] NZHC 2319 (Downs J).3 Sena v New Zealand Police [2018] NZCA 203 (Miller, Ellis and Woolford JJ).4 At [10].5 At [10].6 See, for example, Burke v Western Bay of Plenty District Council [2005] NZSC 46, (2005)18 PRNZ 560 and Clarke v R [2005] NZSC 60.