YUSUKE (DAVID) SENA v NEW ZEALAND POLICE [2019] NZSC 55

YUSUKE (DAVID) SENA v NEW ZEALAND POLICE [2019] NZSC 55 [24 May 2019]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 OF THECRIMINAL 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[2019] NZSC 55BETWEEN YUSUKE (DAVID) SENAAppellantAND NEW ZEALAND POLICERespondentHearing: 13 February 2019Court: William Young, Glazebrook, O'Regan, Ellen France andWinkelmann JJCounsel: D P H Jones QC and H T Drury for AppellantM J Lillico and J E L Carruthers for RespondentJudgment: 24 May 2019JUDGMENT OF THE COURTA The appeal is allowed.B The convictions of the appellant are quashed.C We direct a new trial.____________________________________________________________________REASONS(Given by William Young J)Table of ContentsPara No.The appeal [1]The correct appellate approach [4]The Summary Proceedings Act 1957 [7]Section 385 of the Crimes Act 1961 [11]Appeals following trial on indictment before a judge alone [15]Was there a significant difference in approach to appeals fromjudge-alone trials depending on whether s 119 of the SummaryProceedings Act or s 385 of the Crimes Act applied? [20]The legislative history of s 232(2)(b) [23]Is an appeal under s 232(2)(b) by way of rehearing? [26]The appellant's arguments as to what is required unders 232(2)(b) [33]Our approach to s 232(2)(b) [36]The challenge to the factual findings of the Judge [41]The general factual background [41]Our general approach [46]The events of 9 January 2016 [48]The Judge's reasons [51]The High Court judgment [53]Do the reasons reveal an error in the "assessment of theevidence"? [54]The other chargesOther complaints about the reasons[59][60]Result [65]The appeal[1] Following a judge-alone trial, Judge Henwood found the appellant guilty onfive charges of assaulting his children, S and K.1 His appeal to the High Court againstconviction and sentence was dismissed by Downs J,2 as was a later application to theCourt of Appeal for leave to appeal against conviction.31 R v Sena [2017] NZDC 3564. The charges were laid under s 194(a) of the Crimes Act 1961.2 Sena v Police [2017] NZHC 2319 [Sena (HC)].3 Sena v New Zealand Police [2018] NZCA 203 (Miller, Ellis and Woolford JJ) [Sena (CA)].[2] The appeal to Downs J was brought under s 232(2)(b) of the CriminalProcedure Act 2011. This provides for a first appellate court dealing with a challengeto a finding of fact made in judge-alone proceedings to allow the appeal if satisfiedthat: the Judge erred in his or her assessment of the evidence to such anextent that a miscarriage of justice has occurred; .In Gotty v R, the Court of Appeal held that the factual findings of a judge sitting aloneare to be treated on appeal as the equivalent of a jury verdict with the result that theprinciples applicable to factual challenges to jury verdicts also apply to s 232(2)(b).4This approach was adopted by both Downs J in dismissing the appeal to the HighCourt and by the Court of Appeal in refusing the appellant's application for leave toappeal against the judgment of Downs J.5[3] There being room for debate whether the Gotty approach is correct,6 this Courtgranted the appellant leave to appeal direct from the judgment of Downs J.7The correct appellate approach[4] Section 232 of the Criminal Procedure Act provides: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,—4 Gotty v R [2017] NZCA 528 at [14]. Those principles as they applied to s 385(1)(a) of the CrimesAct are reviewed in R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].5 Sena (HC), above n 2, at [48], [55], [67]–[68] and [71]; and Sena (CA), above n 3, at [9].6 There has been divergence in the High Court as to the approach a first appellate court should adoptwhen applying s 232(2)(b): see Yang v R [2016] NZHC 1165 at [4]; R v Police [2016] NZHC 523at [11]; Flemming v Police [2016] NZHC 2734 at [13]; Marino v New Zealand Police [2017]NZHC 1348 at [11]; Cummings v New Zealand Police [2018] NZHC 338 at [14]; Sullivan v NewZealand Police [2018] NZHC 397 at [18]; Malone v R [2018] NZHC 1059 at [18]; de la Harpe vNew Zealand Police [2018] NZHC 1080 at [16]; and Murdoch v New Zealand Police [2018]NZHC 2849 at [11], but compare: Parfoot v R [2018] NZHC 2702 at [19]; Nishant v New ZealandPolice [2019] NZHC 18 at [16]; Waite v New Zealand Police [2019] NZHC 213 at [21]–[22]; andAramoana v New Zealand Police [2019] NZHC 225 at [16]–[17].7 Sena v New Zealand Police [2018] NZSC 92. Although we would not normally hear an appealfrom a High Court judgment where the Court of Appeal has refused leave, the effect of Gotty andSena (CA) on the way appeals to the High Court are dealt with is that the issue might not otherwisebe presented for determination in this Court.(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 amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(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 wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[5] Primarily relevant to this appeal is s 232(2)(b). But so too is s 232(2)(c). Andmaterial to both is the definition of "miscarriage of justice" in s 232(4).[6] Section 232 replaced appeal provisions in: (a) the Summary ProceedingsAct 1957 governing appeals to the High Court against conviction in the District Courtin respect of offences tried summarily; and (b) s 385 of the Crimes Act 1961 whichprovided for appeals to the Court of Appeal from convictions following trial onindictment. In assessing the legislative purposes which s 232 implements, it isnecessary to understand the operation of those appeal provisions.The Summary Proceedings Act 1957[7] This Act provided for the summary trial of offences with such trials typically(but not always) heard by professional judges, initially, stipendiary magistrates and,since 1980, District Court judges. Section 115 gave defendants a general right ofappeal to the High Court against conviction. The procedure for such appeals wasprovided for by s 119 which, immediately before the Criminal Procedure Act cameinto effect, was in these terms:119 Procedure on appeal(1) All general appeals shall be by way of rehearing.(2) Where any question of fact is involved in any appeal, the evidencetaken in the District Court bearing on the question shall, unless theHigh Court otherwise directs, be brought before the High Court asfollows:(a) as to any evidence given orally, by the production of a copyof any note made by the District Court Judge or Justice orJustices or such other materials as the High Court may deemexpedient:(b) as to any evidence taken by affidavit and as to any exhibits,by the production of the affidavits and of such of the exhibitsas may have been forwarded by the Registrar of the courtappealed from and by the production by the parties to theappeal of such exhibits as are in their custody:(c) as to any evidence taken under section 31 (which relates totaking the evidence of a defence witness at a distance) orunder section 32 (which relates to taking the evidence of aperson about to leave the country), or any statement admittedunder section 33 (which relates to the admissibility of astatement made by a person who is seriously ill), by theproduction of a copy of that evidence or statement:provided that the High Court may in its discretion rehear the whole orany part of the evidence, and shall rehear the evidence of any witnessif the court has reason to believe that any note of the evidence of thatwitness made by the District Court Judge or Justice or Justices is ormay be incomplete in any material particular.(3) The High Court shall have the same jurisdiction and authority as theDistrict Court, including powers as to amendment, and shall have fulldiscretionary power to hear and receive further evidence, if thatfurther evidence could not in the circumstances have reasonably beenadduced at the hearing, and for that purpose shall have the samejurisdiction and authority to make any order under section 31 orsection 32 as the court from whose decision the appeal is made, or aDistrict Court Judge, had.[8] The language of s 119 was largely borrowed from s 76 of the Magistrates'Courts Act 1947 which provided for appeals by way of rehearing in civil cases. Inturn, s 76 broadly reflected the Judicature Act 1908 provision in respect of civilappeals from the Supreme Court to the Court of Appeal.[9] The nature of the appeal "by way of rehearing" provided for by s 119(1) wasaddressed in many judgments. The cases soon established that a de novo hearing onthe merits was not required,8 with the approach adopted in respect of civil appealsbeing treated as applicable to s 119.9 This meant that the appellate court was requiredto form, and act on, its own assessment of the evidence, albeit that:10(a) the onus was on the appellant to establish an error on the part of thetrial judge; and(b) this would be difficult to do in cases where the complaint was directedat the facts as found by the trial judge (as distinct from the inferencesto be drawn from, or an evaluative assessment of, them) and especiallyso in cases where those findings of fact were based on credibilityassessments.[10] In a number of s 119 appeals, appellants complained as to the absence, orinadequacy, of the reasons given by the judge (or occasionally justice of the peace)when finding them guilty.11 In R v Awatere – a case decided in 1982 – the Court ofAppeal stopped short of imposing an absolute obligation to provide reasons.12 But thereality, even then, was that an unreasoned decision was highly likely to be set aside onappeal13 and, by the end of the last century, a requirement to give reasons not onlyapplied to professional judges but had also been extended to lay justices of the peacedealing with minor summary offences.14 What this meant in practice was that the8 Toomey v Police [1963] NZLR 699 (SC); Page v Police [1964] NZLR 974 (SC); and Reilly vPolice [1967] NZLR 842 (SC). Prior to the Summary Proceedings Act 1957 coming into effect,conviction appeals were dealt with by the Supreme Court by way of de novo hearing, that is byretrial: see DW McMullin "Appeals from Magistrates: Principles Applicable" (1958) 34 NZLJ183.9 Toomey, above n 8, at 701, relying on Gillard v Cleaver Motors Ltd [1953] NZLR 885 (SC) at886.10 Toomey, above n 8, at 700–701. See also DW McMullin "Appeals From Magistrates – PrinciplesApplicable" [1964] NZLJ 54 [McMullin (1964)] at 56.11 See, for example, Connell v Auckland City Council [1977] 1 NZLR 630 (SC); Beard v Police HCChristchurch M40/80, 4 September 1980; Anderson v Police HC Wellington M599/80, 6 March1981; and Mead v Police HC Auckland M899/81, 13 October 1981.12 R v Awatere [1982] 1 NZLR 644 (CA). The Court observed that while it would be "undesirableand impractical" to impose an absolute obligation to provide reasons, judges "should always dotheir conscientious best to provide with their decisions reasons which can sensibly be regarded asadequate to the occasion": at 649. The approach in Awatere was affirmed by a majority of theCourt of Appeal in the next case in the Law Reports: see R v MacPherson [1982] 1 NZLR 650(CA) at 653.13 See, for example, R v Atkinson [1984] 2 NZLR 381 (CA).14 Jefferies v Police HC Timaru AP18/98, 5 March 1999 [Jefferies (HC)]; aff'd R v Jefferies [1999]3 NZLR 211 (CA).requirement to show an error on the part of the judge could be discharged by referenceto the particular reasons given for the decision. As Fisher J in Herewini v Ministry ofTransport observed, a recognised ground for an appeal under s 119 was "a factual errorin the assessment of the evidence upon which the conviction was based".15Section 385 of the Crimes Act 1961[11] This section provided for appeals following trial on indictment:385 Determination of appeals in ordinary cases(1) On any appeal , the Court of Appeal must allow the appeal if itis of opinion—(a) that the verdict of the jury should be set aside on the groundthat it is unreasonable or cannot be supported having regardto the evidence; or(b) that the judgment of the court before which the appellant wasconvicted should be set aside on the ground of a wrongdecision on any question of law; or(c) that on any ground there was a miscarriage of justice; or(d) that the trial was a nullity—and in any other case shall dismiss the appeal:provided that the Court of Appeal may, notwithstanding that it is of [the]opinion that the point raised in the appeal might be decided in favour of theappellant, dismiss the appeal if it considers that no substantial miscarriage ofjustice has actually occurred.We note in passing that in s 385(1)(a), the words "cannot be supported having regardto the evidence" were otiose, as this Court pointed out in R v Owen.16[12] Section 389 provided for the Court of Appeal (and later the Supreme Court)17to hear further evidence, a power which corresponded to that in s 119 of the SummaryProceedings Act, albeit that the two sections were differently expressed.15 Herewini v Ministry of Transport [1992] 3 NZLR 482 (HC) at 490.16 Owen, above n 4, at [12].17 See Supreme Court Act 2003, s 48(1) and sch 1.[13] New Zealand courts never saw the application of s 385(1)(a) as requiring a"rehearing" of the case in the sense s 119 of the Summary Proceedings Act providedfor. This point was made very starkly in R v Hand:18It has not been the law in New Zealand that if the Court of Appeal considersthere exists a reasonable doubt, then so too must the jury.In our view R v Ramage encapsulates the view expressed in other authoritiesto the effect that the Court on appeal "... does not proceed on such lines asthese – look at the evidence, see what conclusion the Court would have cometo and set aside the verdict if it does not correspond with such conclusion".19As that passage indicates, the leading New Zealand case was R v Ramage where thetest was put this way by Somers J:20A verdict will be of such a character if the Court is of the opinion that a juryacting reasonably must have entertained a reasonable doubt as to the guilt ofthe applicant. It is not enough that this Court might simply disagree with theverdict of the jury: see R v Mareo (No 3) [1946] NZLR 660; R v Ross [1948]NZLR 167; R v Kira [1950] NZLR 420; Chamberlain v R (1984) 51 ALR 225.[14] There are some New Zealand cases where judges used the expression "lurkingdoubt",21 an expression drawn from English cases and suggestive of a de novo or freshconsideration of the evidence.22 The lurking doubt approach was not discussed ineither Ramage or Hand and was firmly rejected in the decisions of the Court of Appealin R v Munro23 and the Supreme Court in Owen.24 On the approach adopted in thosecases, the ultimate issue for the appellate court was whether the jury could notreasonably have been satisfied of guilt beyond reasonable doubt.18 R v Hand CA200/98, 28 October 1998 at 11.19 R v Hancox (1913) 8 Cr App R 193 (Crim App) at 197.20 R v Ramage [1985] 1 NZLR 392 (CA) at 393.21 See, for instance, R v Lui [1989] 1 NZLR 496 (CA) at 501; and Herewini, above n 15, at 491.Herewini concerned an appeal from summary conviction and was in the slightly different contextof determining what should happen where there had been a procedural irregularity.22 See R v Cooper [1969] 1 QB 267 (CA) at 271. At least formally, the "lurking doubt" approachhas been abandoned in England and Wales: see R v F [1999] Crim LR 306 (CA); and LH Leigh"Lurking Doubt and the Safety of Convictions" [2006] Crim LR 809. In R v Fanning [2016]EWCA Crim 550, [2016] 1 WLR 4175 at [58], Lord Thomas CJ, speaking for the Court of Appeal,went as far as to say: "We deprecate the use of the phrase 'lurking doubt' as it represents aninvitation to this court to substitute its view for that of the jury." But a similar approach, albeitwithout the use of the expression "lurking doubt", has continued to be adopted on occasion: seeR v Graham [1997] 1 Cr App R 302 (CA) at 308; and Dookran v The State (Trinidad and Tobago)[2007] UKPC 15 at [36].23 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [45] and [88].24 Owen, above n 4, at [17].Appeals following trial on indictment before a judge alone[15] Amendments made to the Crimes Act in 1979 provided for trials on indictmentto be dealt with, in some instances, by a judge alone.25 A defendant convicted at sucha trial had the usual rights of appeal under s 385 but this section was not amended todeal specifically with convictions following a judge-alone trial. In particular, therewas no amendment to s 385(1)(a) which continued to refer only to "the verdict of thejury". In R v Connell, the Court of Appeal was required to decide how, in such cases,challenges to the factual findings of a judge should be dealt with.26 This was addressedby Cooke J, for the Court, in this way:27A number of the grounds of appeal allege that the Judge was in error in factualconclusions or in failing to give sufficient weight to certain factors or in failing"to address" certain factors.It may have been overlooked when the notice of appeal and the argument onappeal were prepared that the grounds for allowing an appeal against aconviction on indictment are limited by s 385(1) of the Crimes Act 1961 .It will be seen that the only two grounds capable of covering challenges tofactual findings or reasoning are (a) and (c).The available grounds were not altered when the 1979 Amendment Actintroduced provisions whereby the accused may apply for trial by a Judgealone. Reading the principal Act and the Amendment Act together, there is nodifficulty in accepting that the verdict of a Judge sitting alone is to be treatedas the equivalent of the verdict of a jury and may be challenged on the groundthat it is unreasonable or cannot be supported having regard to the evidence.But no new or more extensive ground of appeal has been given. In particularthis Court is not authorised to retry the case on the facts.[16] This approach, which remained current until the Criminal Procedure Act cameinto effect, meant that a challenge to the factual findings of a judge was required to bedealt with as if the judge's decision was a jury verdict.28 The corollary was that theapproach to appeals under s 385(1)(a) in respect of jury verdicts was applied to25 Crimes Amendment Act (No 2) 1979, s 2.26 R v Connell [1985] 2 NZLR 233 (CA).27 At 237.28 See Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56] in which the Court said, in relationto an appeal under s 385(1)(a), "the verdict of a judge sitting alone in a criminal trial is to betreated for appeal purposes as the equivalent of the verdict of a jury".decisions by a judge sitting alone and para (a) was applied as if the words "the verdict"were not followed by "of the jury".29[17] Unlike juries, judges customarily give reasons for their conclusions. Theextent to which such reasons were required was also addressed by Cooke J inConnell:30To require the Judge to set out in writing all the matters that he has taken intoaccount and to deal with every factual argument would be to prolong andcomplicate the criminal process to a degree which Parliament cannot havecontemplated. There are cases where a point or argument is of suchimportance that a Judge's failure to deal expressly with it in his reasons willlead this Court to hold that there has been a miscarriage of justice. Ademonstrably faulty chain of reasoning may be put in the same category. Butit is important that the decision to convict or acquit should be made withoutmuch delay. Careful consideration is an elementary need, but not longexposition.In practice, if the reasons are of some length it has sometimes been foundfairest to announce the verdict at the outset. There can be no invariable rule;the Judge will wish to take into account the implications case by case. Ifnecessary the reasons can be delivered later in writing, although preferablythey should be given with the verdict.Only in most exceptional cases, if ever, is it likely to be consistent with thejudicial role in trying an indictment to give no reasons for the verdict. If theverdict is not guilty, however, occasionally a very brief statement of reasonsis best. In other cases, whether the verdict is guilty or not guilty, it is obviouslyimpossible to work out a formula covering all circumstances. But in generalno more can be required than a statement of the ingredients of each charge andany other particularly relevant rules of law or practice; a concise account ofthe facts; and a plain statement of the Judge's essential reasons for finding ashe does. There should be enough to show that he has considered the mainissues raised at the trial and to make clear in simple terms why he finds thatthe prosecution has proved or failed to prove the necessary ingredients beyondreasonable doubt. When the credibility of witnesses is involved and keyevidence is definitely accepted or definitely rejected, it will almost always beadvisable to say so explicitly.[18] In R v Eide, the Court of Appeal added a codicil to those remarks:31Underpinning the approach then taken were two interrelated considerations:first, a Judge's decision in such a case is technically a verdict; and, secondly,the rights of appeal in relation to such a decision are the same as those whichapply to jury verdicts. It may be that these considerations do not justify29 Jeffries v R [2013] NZCA 188 at [93].30 Connell, above n 26, at 237–238.31 R v Eide [2005] 2 NZLR 504 (CA) at [20]–[21].current practice and this Court may have to consider whether the Connellapproach continues to be appropriate.The problems with short-form judgments are particularly acute in fraudprosecutions. The parties (that is, the prosecutor and accused) are obviouslyentitled to know the key elements of the Judge's reasoning. In a case of anycomplexity, this will not be possible unless the Judge provides an adequatesurvey of the facts. As well, in this context a Judge is addressing an audiencewhich is wider than the prosecutor and accused. If the verdict is guilty, theJudge should explain clearly the features of the particular scheme which he orshe finds to be dishonest. There is a legitimate public interest in having thedetails of such a scheme laid out in comprehensible form. Similarconsiderations apply if the verdict is not guilty. Further, some regard shouldbe had to how the case will be addressed on appeal. A judgment which is soconcise that some of the key facts in the case are required to be reconstructedby this Court on appeal is too concise. We will indicate shortly a particularaspect of the present case that illustrates the problem. All of this points to theneed for a judgment to be able to be read as a stand-alone document.[19] Where the reasons provided by the trial judge did not show a rational andcomplete basis for the verdict, the Court of Appeal would allow the resulting appeal.32As well, the corollary of judges providing reasons for their decisions was thats 385(1)(a) had to be applied in a context in which the court could assess thereasonableness of the particular steps in the judge's actual reasoning. In a practicalsense, this gave appellants convicted by a judge scope for challenging factual findingswhich was rather greater than that afforded to those found guilty by a jury.33Was there a significant difference in approach to appeals from judge-alone trialsdepending on whether s 119 of the Summary Proceedings Act or s 385 of the CrimesAct applied?[20] Conceptually, there was a sharp distinction between appeals by way ofrehearing under s 119 of the Summary Proceedings Act and those provided for bys 385 of the Crimes Act. Section 119 required the appellate court to form its own viewof the facts and determine the appeal accordingly. Under s 385(1)(a), the issue for theappellate court was whether the verdict arrived at was reasonably open to the trier offact (that is, the jury in a jury trial, or the judge in a judge-alone trial). On the former32 See Wenzel v R [2010] NZCA 501.33 See the discussion in R v Slavich [2009] NZCA 188 at [33] where, although it did not need todecide the point, the Court said that an appellant "[p]robably" gets "the advantage of a 'fuller'appeal if his or her trial has been before a judge alone who has delivered full reasons". In Roest,above n 28, at [56] the Court also acknowledged that "where full reasons are given, an appellatecourt is in a better position to assess the justification for, and correctness of, the judge's verdictsthan in a jury case".approach, an appeal against conviction would necessarily be allowed if the appealcourt was left with a reasonable doubt as to guilt. As we have said, this was not thecase in respect of s 385(1)(a).[21] This conceptual distinction was of practical significance in certain types ofcase. By way of example, determinations which largely came down to inferences tobe drawn from, or the evaluation of, undisputed facts were as susceptible to appeal onfactual grounds in criminal proceedings under the Summary Proceedings Act as incivil cases.34 Likewise, in appeals under s 119, an appellate court concerned aboutsome objective implausibility in the prosecution case would be entitled to substituteits own opinion for that of the trial judge, just as might happen in a civil appeal. Inthese respects s 119 provided greater scope for factual challenge than s 385(1)(a). Aswell, there were differences as to what should happen when some error or other mishapmay have influenced the finding of guilt. Under s 385(1), the appellate court wasrequired to allow the appeal unless the proviso could be invoked. In contradistinction,under s 119 it was open to the appeal court to address the case in terms of its ownappreciation of the evidence,35 albeit that with the approach adopted in R v Matengato the proviso to s 385(1), the practical significance of this distinction was muchdiminished.36[22] All of that said, the conceptual difference of approach was of limited momentin respect of findings of fact based simply on conflicting oral evidence. In appealsunder s 119, it was for the appellant to establish that there had been an error. Incircumstances where the trial judge's finding was reasonably open on the evidencegiven at trial, it would be difficult, if possible at all, to establish such an error.37 Thatthe two approaches were similar is well illustrated by R v Puru.38 A District CourtJudge had conducted a trial in respect of two offences, one of which was prosecutedindictably and the other summarily. Appeals from the convictions were heard by thesame three Judges sitting, in one case, as the Court of Appeal and, in the other, as a34 See Toomey, above n 8, at 701; and McMullin (1964), above n 10, at 56.35 This occurred in Jefferies (HC), above n 14.36 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145.37 McMullin (1964), above n 10, at 56. See also Sullivan v New Zealand Police HC AucklandCRI-2008-404-152, 2 October 2008.38 R v Puru (2001) 19 CRNZ 290 (CA).Full Court of the High Court. Although the Judges were meticulous in applying s 385in the first appeal and s 119 in the latter, the standards of review applied werepractically similar.The legislative history of s 232(2)(b)[23] As introduced, cl 236 of the Criminal Procedure (Reform and Modernisation)Bill 2010 (243-1) set out the statutory grounds on which a first appeal court couldallow an appeal against conviction. It included sub-cl (2) which provided that appealsagainst conviction from judge-alone trials "must proceed by way of rehearing". Theexplanatory note to the Bill, however, also observed that the threshold for allowing anappeal would be whether there had been a substantial miscarriage of justice:39A modified Crimes Act 1961 model is adopted for both Judge-alone trials andjury trials and the Bill sets out the grounds on which the appeal court maydetermine an appeal. The same principles will apply to all appeals againstconviction and the appeal court will determine an appeal by applying an errorcorrection approach. However, in an appeal against a conviction entered in aJudge-alone trial, the rehearing procedure is retained (as in section 119(1) ofthe Summary Proceedings Act 1957).The policy implemented in this subpart is to make substantial miscarriage ofjustice the ultimate test for determining an appeal against conviction. Thisapproach follows section 276 of the Criminal Procedure Act 2009 (Vict.) andaddresses aspects of section 385 of the Crimes Act 1961 (such as the provisoto subsection (1)) discussed in the reported decisions Owen v R [2007] NZSC102 and Matenga v R [2009] NZSC 18 and elsewhere.[24] The provision for appeals against conviction in judge-alone trials under cl 236,which eventually became s 232 of the Act, to be by way of rehearing was, however,removed from the Bill when it was reported back by the Select Committee. Thealteration was explained in this way:40We recommend that clause 236(2) be deleted as it implies that appeals againstconviction from jury trials do not proceed by way of rehearing. This is not anaccurate reflection of the law, as section 24 of the Supreme Court Act 2003states that all appeals to that court are by way of rehearing.39 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note)[Explanatory note] at 65–66.40 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-2) (select committee report)[Select Committee report] at 9–10.[25] As will be apparent from what we have said – and contrary to the understandingof the Select Committee – appeals to the Court of Appeal from jury verdicts unders 385 of the Crimes Act were not by way of rehearing. And although it is true that s 24of the Supreme Court Act 2003 did provide that all appeals to this Court were toproceed "by way of rehearing", this was primarily addressed to appeals from the Courtof Appeal to the Supreme Court (in respect of which the Supreme Court conducts a"rehearing" of what happened in the Court of Appeal).41 In the case of appeals directfrom jury verdicts to the Supreme Court (a right provided for in s 385, but neverinvoked) or from the Court of Appeal to the Supreme Court, the jurisdiction toentertain the appeal was controlled by s 385, as s 10 of the Supreme Court Act madeclear.Is an appeal under s 232(2)(b) by way of rehearing?[26] Although the legislative history is untidy, we think it reasonably clear that theunderlying legislative purpose in respect of what became s 232(2)(b) was that appealsinvoking that ground were to be dealt with in the same manner as appeals under s 119of the Summary Proceedings Act. There are a number of reasons why we say this.[27] First, if the parliamentary purpose had been a continuance of the Connellapproach, s 232(2)(a) would have been expressed in terms which encompassed bothjury and judge-alone verdicts. It would thus have read something like this: the verdict of the jury or judge (as the case may be) was unreasonable.[28] Secondly, and relatedly, the language of s 232(2)(b) requires a focus on thejudge's assessment of the evidence, a focus which presupposes the existence ofreasons from which the substance of that assessment can be discerned. Thispresupposition is reinforced by s 106(2) of the Criminal Procedure Act whichexplicitly requires the giving of reasons in judge-alone trials. It is perhaps nocoincidence that the language of s 232(2)(b) – and in particular the reference to an41 Section 24 of the Supreme Court Act was the subject of the discussion in Paper ReclaimLtd v Aotearoa International Ltd (Further Evidence) (No 2) [2007] NZSC 1, [2007] 2 NZLR 124.At [16], the Court noted that an appeal by way of rehearing "does not contemplate a right to a newhearing of the evidence", rather the Court is limited to determining the "issues which had to bedetermined in the proceeding of the Court appealed from on the basis of the evidence appearingin the lower Court's record".error in the "assessment of the evidence" – appears to have been borrowed from thepassage in the judgment of Fisher J in Herewini outlining the grounds of appeal unders 119, which we have set out earlier.42[29] Thirdly, the legislature assumed that an appeal under s 232(2)(b) was to beheard by way of rehearing as had been the case with appeals under s 119 of theSummary Proceedings Act. This is apparent from the legislative history to which wehave referred. Although cl 236(2) was removed, this was on the mistaken basis thatappeals under s 385 were by way of rehearing.43 The underlying parliamentarypurpose remains clear despite this mistake.[30] Fourthly, there is no sensible policy reason why the approach to appellatereview of decisions made by a judge should be less intensive in criminal cases than incivil cases. In this respect we do not accept the suggestion made in the respondent'ssubmissions that this would have an appreciable effect on the workload of the HighCourt. It represents a return to the approach adopted under the Summary ProceedingsAct, is one which a number of High Court judges have been taking under s 232(2)(b)44and, in practice, should not be significantly more time-consuming to administer thanthe approach adopted in Gotty.[31] Finally, the appeal by way of rehearing procedure provides a mechanism farmore suitable for determining appeals from judge-alone trials than the old s 385(1)(a)approach.[32] It follows from what we have just said that the approach adopted in Austin,Nichols & Co Inc v Stichting Lodestar in respect of civil appeals conducted by way ofrehearing is applicable to appeals under s 232(2)(b).4542 See above at [10]. The explanatory note to the Bill, in discussing appeals against conviction fromjudge-alone trials, quotes this passage of Herewini: see Explanatory note, above n 39, at 65.43 It follows that the legislature assumed that appeals under s 232(2)(a) should also be by way ofrehearing. In this respect, however, we would place rather more emphasis on the legislature'smore significant assumption that appeals under s 232(2)(a) would be dealt with on substantiallythe same basis as appeals under s 385(1)(a): see Explanatory note, above n 39, at 65–66; and SelectCommittee report, above n 40, at 9.44 See the cases referred to in n 6 above.45 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.The appellant's arguments as to what is required under s 232(2)(b)[33] For the appellant, Mr Jones QC relied on two lines of argument, which in hissubmissions were closely intertwined.[34] The first was the contention that the function of an appellate court unders 232(2)(b) extends to full reconsideration of the case. In developing this submission,and in reliance on Austin, Nichols, Mr Jones contended that we should re-evaluate theevidence afresh and that the "review function of whether a finding was open to thetrial Judge has no application". He claimed that:An appellant is entitled to the appeal court's determination of whether the firstinstance Judge was right or wrong substantively on the outcome.On this approach, if: the appellate court comes to a different view on the evidence, the trial Judgenecessarily will have erred in their assessment.[35] In his second line of argument, Mr Jones emphasised the need for trial judgesto give reasons:Put simply, a Judge has to justify their findings. How a decision is reachedand what was taken into account (and what was not) is of importance. A globalcredibility finding (explicit or implicit) is not enough. Reasons are thejustification for decisions. If the analysis or reasons are deficient, theconclusion is flawed and unsubstantiated.Our approach to s 232(2)(b)[36] As will be apparent, we broadly accept the second line of argument justreferred to. We see s 232(2)(b) as premised on the assumption that the s 106(2) (andcommon law) requirement for reasons has been satisfied. Connell and Eide indicatethe kind of reasons which judges should provide. They should show an engagementwith the case, identify the critical issues in the case, explain how and why those issuesare resolved, and generally provide a rational and considered basis for the conclusionreached. Reasoning which consists of a conclusory credibility preference is unlikelyto suffice. The language of s 232(2)(b) reflects an assumption that the reasons givenby a judge will reflect that judge's assessment of the evidence and why that assessmentresulted in a conviction. A failure to provide such an assessment frustrates theoperation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that areasoned judgment is essential to a fair trial. A failure to provide a reasoned resolutionof a significant evidential dispute may, alternatively, suggest a misapprehension of theeffect of the evidence, for instance a misapprehension of the significance of thedispute. As we explain later in these reasons, this case involves such amisapprehension.[37] In saying all of this, we accept that imperfection of expression is practicallyunavoidable, particularly in oral judgments. Accordingly, appellate courts shouldassess reasons contextually, in light of the evidence given and allowing for the burdenfor judges of balancing the need for prompt determination of criminal cases with otherworkload requirements. The adequacy (or not) of reasons must be assessed in light ofthe type of case (including seriousness) and the issues involved. What is required arereasons which address the substance of the case advanced by the losing party.Depending on the circumstances, this can be achieved without necessarily referring indetail (or sometimes at all) to every issue or argument which that party has advanced.[38] To the extent that Mr Jones' first line of argument is based on the premise thatthe approach in Austin, Nicholls applies to appeals from judge-alone trials, as indicatedabove, we agree. If an appellate court comes to a different view on the evidence, thetrial judge necessarily will have erred and the appeal must be allowed. But, to theextent that Mr Jones was suggesting that the role of an appellate court is to considerthe issues de novo as if there had been no hearing at first instance, then we do notagree. Since it is an appeal, it is for the appellant to show that an error has been made.Further, in assessing whether there has been an error, an appellate court must take intoaccount any advantages a trial judge may have had. Because of this, where thechallenge is to credibility findings based on contested oral evidence, an appellate courtwill exercise "'customary' caution".46 There are two main, overlapping, reasons forthis.[39] The first is that a slow-paced trial, at which the evidence emerges gradually,provides a good opportunity for evaluating the strengths and weaknesses of a case. In46 Austin, Nichols, above n 45, at [13] (footnote omitted).assessing the plausibility of what is said by the witnesses, the judge has the advantageof being also able to form a view as to what sort of people they are. This is anappreciable consideration despite the now well-recognised difficulties withdemeanour-based credibility assessments.47[40] The second consideration, in effect the other side of the coin to the first, is thatappellate judges dealing with a case on the basis of a written record of what happenedat trial and the submissions of counsel are unlikely to be as well-placed as a trial judgeto determine contested questions of fact based on contested oral evidence. Forinstance, what a witness means may be conveyed, at least in part, by gesture orintonation, something which will not be apparent on the written record.48 Moregenerally, the appellate process in which appellate judges are taken, sometimes ratherselectively, to the aspects of the evidence on which counsel rely does not replicate theadvantages of a trial judge which we have just described.The challenge to the factual findings of the JudgeThe general factual background[41] The appellant and Ms H married in either late 2004 or early 2005. S was bornon 15 June 2004; K on 8 March 2008. The appellant and Ms H separated in 2011 andtheir marriage was dissolved in 2013. The complainants were the appellant's son (K)and his daughter (S) who were respectively aged between six and seven, and 10 and11, at the time of the alleged offending. From separation Ms H had primary care ofthe children but they saw the appellant during access visits. In June 2014, the appellantslapped K who was then six. This occurred during an access visit. Present at the timewas the appellant's mother who did not intervene on behalf of K. Ms H brought theincident to the attention of the police who, in September 2014, spoke with the appellantregarding the incident and later issued him with a formal warning.[42] Further allegations were made of assaults occurring during access visitsbetween August and December 2014 and, as a result, access ceased from January 2015.47 See the discussion in Taniwha v R [2016] NZSC 121, [2017] 1 NZLR 116 at [26]–[35].48 A similar point was made in both Taniwha, above n 47, at [29]; and Munro, above n 23, at [74].[43] On 15 December 2015, the Family Court directed the resumption of access buton a supervised basis, the supervisors being the appellant's mother and sister. Accesswas exercised pursuant to this order on 19 and 26 December 2015 without incident.There was further access on 9 January 2016. Present when the appellant had thechildren were his parents and a Spanish friend (Tamara Rojas) of his sister. His sisterwas present for part of the day. On the case for the police, the appellant assaulted bothchildren on this occasion.[44] The appellant's case was premised on the contentions that Ms H had causedthe children to be estranged from the appellant and that the complaints which were thesubject of the charges were a function of this estrangement. There were a number ofcomponents to this theory of the case. Much attention was paid to family dynamics.It was argued that there were incongruities between the allegations against theappellant and what had been said in contemporaneous emails between him and Ms H.As well, there was considerable focus on inconsistencies between the evidence of thechildren and that of the others who were present on 9 January 2016. More generally,the evidence was sharply conflicting and the case hard fought.[45] The charges on which the appellant was found guilty alleged that:(a) Between August and December 2014 the appellant pinched thechildren.(b) In December 2014, while playing hide and seek with the children, theappellant accidentally opened a door onto K's toe. When K began tocry the appellant became angry and slapped K twice across the face.(c) On 9 January 2016, the appellant pinched both K and S.Our general approach[46] In his submissions in support of the appeal, Mr Jones challenged the factualfindings of the Judge in a number of respects and on a number of grounds. Amongsthis arguments was the contention that we should conclude, on the basis of areconsideration of the evidence, that the charges on which the appellant was foundguilty had not been established beyond reasonable doubt. Given that we propose toallow the appeal on other grounds and direct a new trial, it is not appropriate for us toengage with this argument in any detail. For present purposes, it is sufficient to saythat we do not consider it appropriate for us, on the basis of the written record of theproceedings, to determine the case.[47] Mr Jones' alternative argument was that the reasons given by the Judge forfinding the appellant guilty were inadequate. As will be apparent, we are satisfied thatthe appeal must be allowed on this ground. We propose to address this primarily byreference to the way in which the Judge dealt with the offending which was alleged tohave occurred on 9 January 2016 and, in particular, with the defence evidence fromthose who had been present in the house on that day. As will become apparent, weconsider that the Judge's reasons show that she "erred in her assessment of theevidence to such an extent that a miscarriage of justice has occurred". Given thisprovides a sufficient basis to allow the appeal in respect of all the convictions, we neednot deal in detail with other aspects of her reasoning which were challenged byMr Jones, albeit that we will revert to them briefly later in these reasons.The events of 9 January 2016[48] On the evidence of the children, the offending on 9 January 2016 involved theappellant pinching them both. Their evidence was that after they had been pinched,they took refuge in a room and blocked the door into it with a chair. According to S(whose evidence was generally more detailed than that of K), the appellant came intothe room through a window. She was terrified. K was crying and the appellant toldhim to shut up. K cried out for help which resulted in the appellant trying to punchhim. Afterwards, at a point when the children were in the living room, K ran,screaming, outside to a trampoline, got onto it and closed the net to stop the appellantgetting on. He was crying and the appellant told him to shut up as he might be heardby the neighbours. S said that she went to her grandmother for help but that sheprovided no assistance.[49] The prosecution evidence included a photograph which Ms H said she hadtaken. It depicted bruising on K's arm which, on the prosecution case, was caused bythe appellant having pinched him. The defence challenged the authenticity of thephotograph. The photograph was supplied to the police (undated) on 3 April 2016 but,on the eve of the trial, a second version was sent to the police dated 15 January 2016.Neither the bruise, nor the photograph, were mentioned in contemporaneous emailexchanges between Ms H and the appellant.[50] The appellant gave evidence in which he denied assaulting the children on9 January 2016. As we have noted, for the entire period that the children were in thehouse that day, the appellant's parents and Ms Rojas were present. As well, for partof the day, the appellant's sister was also at the house. The appellant's mother, sisterand Ms Rojas (who had returned from Spain for the trial) all gave evidence to theeffect that they saw and heard nothing untoward. All three were cross-examined onthe basis that the assaults may have occurred without them noticing, a propositionwhich they generally denied (save that the appellant's sister could speak only of thetime that she was at the house). As well, it was suggested, albeit not very explicitly,to the appellant's mother that she was giving evidence in an attempt to help theappellant out. It was not put to Ms Rojas in cross-examination that she was lying.The Judge's reasons[51] In her judgment, the Judge reviewed the evidence at some length. She did not,however, engage closely with the detail of what the children alleged in respect of9 January 2016. And her reasons for finding the appellant guilty of pinching thechildren on that day were succinct:[68] Charge 5029 assault on child, on 9 January 2016 when the childrenwere visiting the defendant's home and [K] was watching television the Courthis satisfied that the defendant pinched him on his arm and caused to becomered. A photograph was produced by the mother to the Court, both [K] and hismother have said that this is a bruise from that pinching and the Court hasaccepted their evidence and as a truthful account of events and has acceptedthat that pinching and that bruise was inflicted by the defendant.[69] Charge 5031 and on the same visit on 9 January 2016 [S] was allegedto have been pinched by the defendant on her legs. She is a very sensitive andhighly intelligent young woman, she has been extremely stressed with herrelationship with her father and said that she has been afraid of him almost aslong as she can remember. She had rejected the father, the grandmother andthe aunty. She had previously been on a good relationship with aunty andprobably grandmother in the past but events have occurred for which she feelsthat her grandmother and her aunty are unable to protect her or unwilling toprotect her when they are in the custody of their father at the house.[70] The Court listened to the evidence of the defendant, the aunty, thewoman from Spain and gave weight to it but Court accepted beyondreasonable doubt that the evidence of [S] was reliable. That the defendant puton a good front when other people were around but when he had momentsalone with the children that he would change his personality and unexpectedlyor unexplainably turn on them and either pinch or slap them. The assault theCourt finds [S's] evidence to be correct and that she was pinched by her fatheron the same visit of the night of 9 January 2016.[52] The events of 9 January 2016, as described by both children and particularlyS, were florid in nature. It is not likely that the events as described would have escapedthe attention of other adults in the house at the time. So the evidence of the childrenand that of the appellant's mother and Ms Rojas at least, could not be sensiblyreconciled on the basis that everyone but the appellant was telling the truth and theassaults occurred when the children were alone with the appellant.The High Court judgment[53] In the High Court, Downs J dealt with this aspect of the case in this way:[65] Mr Jones also submitted the children's description of the events of9 January were such these could not have gone unnoticed by the defencewitnesses. For example, K said:We came to visit him when he just didn't feel like it and on the lastvisit erm he like pinched me on the arm and turned red and then itstarted to turn into a bruise and then erm and then erm he started topinch my sister as well and then, then she didn't like it and I didn'tlike it. So we just, just erm, so we just, just went into our room anderm locked the door and yeah but the door didn't have any locks butwe put a chair in it. And like keep it stuck in the door so[66] The Judge considered the evidence from Ms Rojas and Mr Sena'ssister and mother added little, which explains why the Judge did not treat theirtestimony as giving rise to a reasonable doubt. More particularly, the Judgenoted Mr Sena's sister was only present for two hours on the 9th, .[67] In any event, it was open to the Judge to place little weight on thisevidence. Mr Sena's sister and mother said they disbelieved the children'sallegations, so bias was a live issue. On S's account, Mr Sena's mother wasfrequently in the bedroom on her computer, uninterested in what was goingon, and according to S, an untruthful witness. Mr Sena's mother said she sawthe June 2014 slapping; in turn implying Mr Sena was untroubled to act in thismanner in front of her.[68] Mr Jones described Ms Rojas as an "independent" witness. However,Ms Rojas is a friend of Mr Sena's sister and stayed with her from December2015. In evidence-in-chief, Ms Rojas said she saw nothing untoward on the9th in circumstances in which Mr Sena was never alone with the children. Incross-examination, Ms Rojas accepted there was at least one occasion K wasnot in her presence while Ms Rojas was watching a belly dancing performanceon a laptop computer. And, S said Mr Sena pretended to be nice in front ofthe "Spanish lady". Experience suggests a defence based on absence ofopportunity often lacks realism. That view was open to the Judge.(footnote omitted)Do the reasons reveal an error in the "assessment of the evidence"?[54] In Connell Cooke J observed:49When the credibility of witnesses is involved and key evidence is definitelyaccepted or definitely rejected, it will almost always be advisable to say soexplicitly.It may be that, at a stretch, the Judge's reasons can be read as encompassing an implicitrejection of the appellant's mother's evidence; this based on her lack of response tothe June 2014 incident and affinity for the appellant. At what would be more of astretch, the reasons might be treated as a rejection of the evidence of the appellant'ssister. But in relation to the evidence of Ms Rojas, no such rejection is even implicitin the Judge's reasons and no reason proffered for such a rejection.[55] We consider that it may have been open to the Judge to find the appellant guiltyon the 9 January 2016 charges. There was, as she noted, a photograph of K's armwhich showed marks consistent with his evidence, albeit that the authenticity of thisphotograph was challenged.50 Further, if the Judge had squared up to what we see asthe inconsistency between the evidence of the children and that of the appellant'switnesses she might, conceivably, have been able to justify convictions; this on thebasis that:(a) the children, and particularly S, may have been guilty of exaggerationbut the essence of their evidence was correct; or49 Connell, above n 26, at 238.50 To the extent to which the Judge relied on the photograph, reasons for rejecting the challenge toits authenticity were necessary. No such reasons were provided.(b) the inconsistent evidence adduced for the appellant was rejected, albeitthat the limited challenge to Ms Rojas in cross-examination may havestood in the way of this.As will be apparent, the reasons given by the Judge did not proceed on either of thosebases.[56] It follows that we see this aspect of the case as falling squarely withins 232(2)(b). The Judge assessed the evidence of the children as being broadlyconsistent with that of the appellant's witnesses, particularly Ms Rojas (and also thatof the appellant's mother unless her evidence is to be treated as rejected). In thisrespect, the substance of the evidence which the children had given wasmischaracterised. The chain of events as described by the children could hardly haveescaped the attention of people who were in the house, particularly given some of themwere there for the purpose of supervising access against a background of complaintsas to what had happened on earlier occasions.[57] In this context, we do not regard the convictions as saved by Downs J'sreconsideration of the arguments. In the first place, he addressed the point by specificreference only to the evidence of K rather than the more detailed narrative given byS.51 His reference to defences based on absence of opportunity often lacking realismdid not engage with the narratives given by the children.52 And in the case ofMs Rojas, in particular, he attributed to the Judge a rejection of her evidence whichgoes beyond anything she said in her judgment.[58] We accordingly conclude that the Judge erred in her "assessment of theevidence to such an extent" that the process miscarried. The basis upon which shefound the appellant guilty of the 9 January 2016 offending is thus not sustainable andit is not practicable for us, on a consideration of the transcript of the hearing, to besatisfied of guilt. The result is that those convictions must be quashed.51 Sena (HC), above n 2, at [59]–[66].52 At [68].The other charges[59] We are satisfied that the inadequacies we have identified in respect of thecharges in relation to 9 January 2016 cast a shadow over the other convictions whichis sufficient to warrant them being quashed as well. The allegations against theappellant related to what, on the police case, was a single course of conduct involvinga pattern of very particular behaviour against the children. The events of 9 January2016 were investigated shortly after they occurred and the evidence in respect of themwas far more detailed than that in respect of earlier alleged offending. The Judge'sreasons in respect of all charges she found proved came down largely to a preferencefor the credibility of the children. If she had not been satisfied beyond reasonabledoubt that the 9 January 2016 charges had been made out, reasons more finely grainedthan those provided would have been required to justify convictions on the earliercharges.Other complaints about the reasons[60] Section 105 of the Criminal Procedure Act provides:105 Conduct of Judge-alone trial(1) Unless the court directs otherwise, neither the prosecutor nor thedefendant may make an opening statement other than,—(a) in the case of the prosecutor, a short outline of the charge orcharges the defendant faces; and(b) in the case of the defendant, a short outline of the issue orissues at the trial.(4) Unless the court directs otherwise, neither party may—(a) make submissions on the facts; or(b) address the court on the evidence given by either party.(5) Despite subsection (4), the defendant, whether or not he or she intendsto call evidence, may address the court at the end of the prosecutor'scase to submit that the charge should be dismissed.[61] This section is based on s 67 of the Summary Proceedings Act which appliedonly to summary trial.[62] In the present case, neither the prosecutor nor defence counsel made closingaddresses. The transcript we have does not record any discussion about this but weinfer from a document to which we are about to refer that there was such a discussion,the upshot of which was that: (a) counsel was to file a chronology; but (b) there wereto be no submissions on the facts. As it turned out, counsel for the defendant did filea memorandum with the Court around a week after the hearing which was describedon the cover sheet as "submissions on behalf of defendant". In it, counsel observed:There are specific issues which the defence wishes to raise in terms of thecourt's consideration of the charges. As discussed at the hearing, these issueswill not be submissions on the facts relating to the individual charges but relateto matters the defence considers are particularly relevant to the overallconsideration of the evidence.The submissions addressed a number of points: the context provided by antipathy onthe part of the children to the appellant and his family; the contemporaneous emails;the context around the 9 January 2016 incident (including nearly all of the points onwhich we have decided to allow the appeal); and general comments on the evidentialinterviews and evidence of the children. These last comments were prefaced by theobservation that the Court did "not wish to have submissions on the various EVIs andthe children's evidence generally". Presumably for this reason the comments weregeneral in nature only. Attached to those submissions was the chronology.[63] Despite counsel's characterisation of what he was doing, it would beunderstandable if the Judge had seen the document filed as submissions on the factswhich had been proffered despite her not having given permission for this to happenas required under s 105(4). Possibly for this reason she did not, in her judgment, referto the document.[64] Given our conclusions on the adequacy of the reasons of the Judge which wehave already given, we need say no more about this aspect but we add that in cases offactual complexity, judges would be well advised to seek submissions from counselon the facts. These would be of assistance to judges in ensuring that the prosecutionand defence cases are understood and dealt with in the reasons.Result[65] In the result:(a) The appeal is allowed.(b) The convictions of the appellant are quashed.(c) We direct a new trial.Whether a retrial is in fact practical or appropriate given the elapse of time will be, inthe first instance, a matter for the prosecutor to determine.Solicitors:Croftfield Law, Auckland for AppellantCrown Law Office, Wellington for Respondent