AIK GUAN LAW v WAITAKERE CITY COUNCIL [2003] NZCA 109 (17 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA108/03

CA109/03

CA390/02

CA391/02

AIK GUAN LAW

KIM LAN LAI

v

WAITAKERE CITY COUNCIL

Hearing: 30 April 2003

Coram: Anderson J

Baragwanath J

Paterson J

Appearances: J K MacRae & J P Hassall for Applicants

M Casey and C S Knight for Respondent

Judgment: 17 June 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the applications

[1]	Mr Law and his wife Ms Lai apply for special leave to appeal to this Court from decisions of the High Court in connection with an appeal against summary convictions under the Building Act 1991.
[2]	In February 1996 the applicants, who were recent immigrants, bought land at 34 Rathgar Road, Henderson.There were two buildings on that property.One, near the front of the section, was a house and the other, situated behind it, seems to have been a garage or similar structure which had been developed for use as a dwelling.Whatever its provenance, it was a building within the meaning of s3 of the Building Act 1991. It is convenient to refer to the front building as “the house” and the rear building as “the dwelling”.
[3]	The applicants themselves occupied the dwelling for a few weeks and then let it to Ms Te Whata who lived there, along with her partner Mr Murphy and a number of children, for about the next four and a quarter years.The tenancy agreement was recorded in writing and the rent was $180 per week.
[4]	In July 2000 it came to the notice of the relevant local authority, the Waitakere City Council, that the dwelling had been developed without a permit and was being used for an unauthorised purpose.The respondent, who is a retired Building Surveyor, qualified as an Indentured Tradesman and a retired member of New Zealand Institutes related to the building industry, inspected the dwelling on 1 August 2000 and again on 14 December 2000 in his capacity as a full time Customer Field Adviser for the Council.On each occasion he was accompanied by Ms Kay McLeod, a Council health officer.On the first occasion Mr Law and two interpreters were also present.The Council officers were greatly troubled by widespread dampness and mould throughout the dwelling.Their inspections disclosed structural inadequacies and deficiencies of amenities which, in their opinion, were the causes of the excessive dampness.
[5]	As a result, the applicants were prosecuted on behalf of the Council on informations alleging that from on or about 1 April 1996 until on or about 11 July 2000, being a continuing offence, they committed an offence against s80(1)(b) of the Building Act 1991 in that they permitted another person to use a building on the property for a use for which the building was not sanitary.Particulars of the unsanitary conditions included excessive dampness and mould inside the building and inadequate sanitary facilities.
[6]	The applicants were tried summarily on those informations in the District Court at Waitakere in May 2001.The trial lasted two days at the conclusion of which the District Court Judge, for the reasons he explained in a nine page judgment, convicted the applicants.His verdicts were based on both moisture content and unhygienic facilities.He subsequently imposed fines totalling $40,500 and ordered the payment of costs of $400 and witness expenses of $100.The fines included an aggregate of $15,500 for the continuation of the offence by each applicant for a total of 1,550 days, being the term of the tenancy.The Judge directed that ninety per cent of the fines be paid to the Council pursuant to s84(1) of the Building Act and that ten per cent be paid to the tenant and her family pursuant to s28 of the Criminal Justice Act 1985.We remark, in passing, that the discretionary power under the Criminal Justice Act is arguably excluded by the mandatory terms of s84(1) of the Building Act. But the net consequence to the applicants would have been the same and the matter has not been argued before us.

Post trial developments

[7]	Inquiries made on behalf of the applicants, following their conviction, produced evidence which the applicants contend shows that any excessive dampness and mould inside the dwelling was attributable, not to deficiencies on their part, but to conduct on the part of the tenants.In particular, it is said, significant structural damage and the finding of a cannabis leaf in the number 4 bedroom, coupled with the incidence of excessive dampness and mould following the letting, is indicative of large scale cannabis cultivation, possibly by the hydroponic process, covertly carried out by or with the connivance of the adult tenants.In addition, damaged or inadequate facilities were the result of the tenants’ own dereliction.
[8]	The applicants appealed to the High Court against conviction and sentence.Although, given the nature of the new evidence and the likelihood that should an appeal succeed an order for rehearing in the District Court might seem apt, the applicants did not first apply to the District Court, pursuant to s75 of the Summary Proceedings Act 1957, for an order of that Court directing a rehearing.It is often advisable that an appeal in the High Court, raising issues of fresh evidence since the summary hearing, be adjourned pending an application to the District Court for a rehearing under the Summary Proceedings Act.
[9]	Be that as it may, the appeal was pursued after an interlocutory order granting leave to adduce new evidence was made and the appeal was subsequently argued before Harrison J for a full three days which included a large amount of oral evidence by way of cross-examination and re-examination.
[10]	Harrison J dismissed the appeals and, pursuant to s13(3) of the Costs in Criminal Cases Act 1987, ordered that the applicants pay the Council a total of $20,000 towards costs on the appeal.
[11]	The applicants subsequently applied to the High Court for orders granting leave to appeal to this Court against the dismissal of the appeals and in respect of the order for costs.
[12]	After hearing from the parties, Harrison J determined that except in one respect the only questions raised were questions of fact from which there could be no appeal.The only question of law concerned the test for considering fresh evidence on appeal.But, in his view, the question was merely of academic interest, not of general or public importance, because if it were answered in the applicant’s favour the appeal would be remitted to him again for decision.In such case the outcome would not change because, in effect, he would come to the same result by the alternative test.This is because first, in his view, expressed in his substantive judgment, as new evidence did not establish a probability that the indoor cultivation of cannabis in bedroom four was the primary or predominant cause of the conditions of dampness and mould.Second, the acceptance of the tenants’ evidence was not integral to the District Court’s findings of guilt but merely corroborative of the Council officers’ evidence.Third, the new evidence was an inadequate basis for an affirmative defence.In short, the High Court’s factual findings would, in effect, pre-empt a successful outcome of a rehearing of the appeal in which the alternative test were applied.
[13]	The applicants now seek special leave of this Court in respect of the convictions and sentences imposed by the District Court and the costs order made by the High Court.

Some statutory provisions

[14]	These applications are brought pursuant to s144(1) and (3) of the Summary Proceedings Act 1957 which provide as follows:

144Appeal to Court of Appeal

(1)Either party may, with the leave of the [High Court], appeal to the Court of Appeal against any determination of the [High Court] on any case stated for the opinion of the [High Court] under section 107 of this Act or against any determination of the [High Court] on a question of law arising in any general appeal:

Provided that, if the [High Court] refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

...

(3)Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the [High Court] or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[15]	There was no issue between the parties about the necessity for leave in respect of the costs order because any question of law arising in that respect would be a question of law arising in the general appeal.
[16]	The applicants were prosecuted pursuant to s80(1)(b) of the Building Act 1991 (“the Act”) which provides that every person commits an offence who, amongst other things, “permits any other person to use any building, for a use for which the building is not safe or sanitary”.By virtue of subs (2), every person who commits an offence against subs (1)(b) is liable on summary conviction to a fine not exceeding $200,000 and, in the case of a continuing offence, to a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued.
[17]	Section 64(4) of the Act provides as follows:

(4)A building shall be deemed to be insanitary if—

(a)It is so situated or of such construction or in such a state of disrepair as to be offensive or likely to be injurious to health; or

(b)Its provisions against moisture penetration are so insufficient or in such a defective condition as to cause dampness in the building or in any adjoining building; or

(c)It is without a supply of potable water adequate for its intended use; or

(d)It has inadequate sanitary facilities for its intended use.

[18]	Offences under the Act attract strict liability.Section 83 provides:

83Strict liability and defences

(1)In any prosecution for an offence of contravening or permitting a contravention of any of the provisions of this Act or of the building code, it is not necessary to prove that the defendant intended to commit the offence.

(2)Subject to subsection (3) of this section, it is a defence to a prosecution of the kind referred to in subsection (1) of this section if the defendant proves—

(a)That—

(i)The action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health or preventing serious damage to property; and

(ii)The conduct of the defendant was reasonable in the circumstances; and

(iii)The effects of the action or event were adequately mitigated or remedied by the defendant after it occurred; or

(b)That the action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage, and in each case -

(i)The action or event could not reasonably have been foreseen or been provided against by the defendant; and

(ii)The effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.

(3)Except with the leave of the Court, subsection (2) of this section does not apply unless, within 7 days after the service of the summons or within such further time as the Court may allow, the defendant delivers to the prosecutor a written notice—

(a)Stating that he or she intends to rely on subsection (2) of this section; and

(b)	Specifying the facts that support his or her reliance on subsection (2) of this section.
[19]	By reason of the statutory provisions and the relevant particulars alleged in the informations the prosecution had to prove beyond reasonable doubt each of the following ingredients in respect of a particular applicant:
(1)	That such person permitted another person to use the building as a dwelling; and
(2)	In the course of such use the building was or became not sanitary for such use.

Should those matters be proved in respect of a particular applicant, that person was liable to conviction unless he or she could set up a defence envisaged by s83.In the particular case an applicant would in reality have been required to prove on the balance of probabilities that:

(1)	the conditions which made the dwelling not sanitary for such purpose were beyond his or her control; and
(2)	could not reasonably have been foreseen or been provided against by that applicant; and
(3)	the unsanitary condition was adequately mitigated or remedied by that applicant after it occurred.
[20]	Counsel for the applicants submitted that the prosecution had to prove beyond reasonable doubt that a particular applicant permitted the unsanitary conditions to occur or, with knowledge of such conditions, permitted the use to continue.If that were the case, s83 would be meaningless and s80 would not be contemplating strict liability.It is plain to us that the respective burdens of proof on the prosecution and on the defence are as we have explained.

The District Court decision

[21]	The evidence in the District Court showed that although the building was intended to be a dwelling with four bedrooms and was in fact let to a family with young children, there were no laundry facilities.The tenants put a washing machine into the kitchen but the used water from it discharged into the kitchen sink with unhygienic implications for food preparation and dishwashing.According to the tenants, they complained on many occasions before the applicants provided power, water and a waste for the washing machine so that it could be installed in a carport.
[22]	The building did not have a bath but had a shower adjacent to the kitchen.The shower area was inadequately vented and a sheet of corrugated iron served as a partition between the shower tray and the toilet area.
[23]	The District Court Judge found that there was inadequate provision for food storage with food being placed in open cupboards beneath the sink.He found that water had penetrated the walls of one of the bedrooms, that flashing in certain parts of the building was not effective and permitted the entry of water during heavy rain.A stormwater pipe leading from the roof discharged directly on to the ground with no apparent means of run-off or soakage and the concrete slab floor appeared not to be entirely protected by a damp-proof membrane for preventing rising damp.The shower area had no shower tray but consisted of a concrete floor with a vinyl covering and this would also contribute to water or dampness problems.
[24]	The District Court Judge had no hesitation in concluding that the provisions against moisture penetration were not only contrary to the Building Code but also so insufficient and in such a defective condition as to cause in the building the widespread dampness of which Council officers had testified on the basis of their inspections.He referred specifically to the inadequate waterproof membrane under the concrete slab, the inadequate provision for drainage, the inadequate flashing, inadequate cladding which allowed water ingress in heavy rain and the inadequate ventilation, the combined effect of which must have resulted in excessive dampness.
[25]	The District Court Judge was also satisfied that the building was in such a state of disrepair as to be offensive and likely to be injurious to health.He cited holes in the outside walls which not only caused dampness but also enabled rats and cockroaches to enter, inadequate arrangements for food storage, the discharge of water from the washing machine into the sink and the fact that in such circumstances a family which included four children were expected to live.
[26]	The District Court Judge did not address the question of an affirmative defence under s83 of the Act because, it seems, no such defence was advanced, nor indeed notified pursuant to s83(3) of the Act.The central issue in the case, which was conducted for the applicants by counsel unconnected with the proceedings in the High Court and this Court, was whether the informant had proved that during the period in question the building was not sanitary.Because the applicants had plainly permitted the use in question, the finding against them on that central issue was determinative of liability.
[27]	The proceedings in the District Court were marked by considerable awkwardness.The applicants had limited or no familiarity with the English language or Court processes.They originally entered pleas of guilty, on legal advice, but later instructed Mr Yeh a lawyer who, like them, was of Chinese ethnicity and also had language difficulties.He advised them to apply for a change of plea, which they did and which the High Court granted.It seems Mr Yeh had been qualified for only about a year by the time he conducted the defence and, with all respect to his late memory (he having regrettably since died) his conduct of the summary trial was a testament to his inexperience in such matters.Language difficulties featured prominently, although we respectfully note the courtesy with which the District Court Judge conducted the hearing and the very great experience which he brought to bear.

The High Court appeal

[28]	As previously mentioned in this judgment, the theme of the appellants’ case in the High Court was that significant structural damage had been caused by the tenants who had also generated the excessive moisture observed by the Council officers in the course of their inspection, by illicit, significant cannabis cultivation possibly by a hydroponic method.Evidence was given in support of the appeal by a person who had examined the dwelling when the applicants were initially trying to let it, and had found it in a clean and tidy state.She ended up renting the front house because she was pre-empted by the letting to Ms Te Whata.In the course of the deponent’s tenancy she observed conduct and practices on the part of the tenants in the dwelling, and their children, suggestive of inferior housekeeping habits.There was a brief of evidence by Detective Sergeant Brazier, a very experienced police officer, about cannabis growing practices including hydroponic cultivation.His examination of the fourth bedroom disclosed evidence of tinfoil having been used to line walls,moisture absorbing media, cavities through the ceiling and other indications of cannabis cultivation.The appellants also called evidence from an expert in the building industry with a view to discounting the extent to which observable features of the dwelling, as compared with the presumed cannabis cultivation, were a contributor to excessive dampness.The appellants also, by counsel, alleged radical error on the part of Mr Yeh in the conduct of the trial.They themselves testified that the dwelling had a pantry which the tenants may have abstracted at the end of the tenancy and that a defective hand basin was in place at the outset of the tenancy. As well, the dwelling was in an acceptable state when they had occupied it.
[29]	Harrison J rejected the likelihood that conditions of dampness and mould in the building were caused or largely caused by the indoor cultivation of cannabis.He was prepared to accept that at some stage during their tenancy the tenants had cultivated cannabis in bedroom 4 and had modified that room accordingly, and that if such cultivation had been carried out in free-standing pots as opposed to hydroponic culture some moisture would have been released into the atmosphere by plant transpiration.But he found there was simply no evidence that such activities affected moisture levels elsewhere in the house and that the circumstantial evidence was that any manifestations of condensation, such as excesses of damp and mould on interior surfaces, were localised to bedroom 4.The worst excesses of damp and mould, apart from bedroom 4, were in bedroom 1 and those two rooms were the furthest apart from each other in the building.He accordingly rejected the submission that the new evidence showed a probability that the indoor cultivation of cannabis was the primary or predominant cause of the conditions of dampness.
[30]	Harrison J also rejected arguments that there were doubts about the credibility of the tenants’ evidence which rendered the conviction unsafe.He found that the Judge’s acceptance of the tenants’ evidence was not integral to his findings of guilt.He then disposed of the applicants’ attempt to mount an affirmative defence under s83(2)(b) on the basis that there would not be an arguable foundation for that defence unless the applicants could establish, on the balance of probabilities, that the dampness throughout the building was caused by the tenant.Having already found that not to be the case the defence could not be pursued.He concluded “that the fresh evidence could not have had an effect upon the Judge’s findings that the Laws’ permitted the tenants to use the dwelling in a condition that was not sanitary in terms of s80(1)(b).”
[31]	The effect of Harrison J’s judgment is that the evidence in both the District Court and the High Court disclosed five structural defects rendering the dwelling not sanitary.First, there was a lack of exterior waterproofing in consequence of dilapidated paint, inadequate flashings on corners, window surrounds and roof/wall junctions, gaps and rot in the weatherboards, some of which were wet to the touch from the inside of the dwelling.Second, there was lack of insulation on exterior walls which did not have building paper behind the weatherboards.Third, the concrete floor was only 100mm above ground level, compared to the requisite 225mm under Building Code requirements.Fourth, there was inadequate damp proofing in the bedrooms because of deficiencies in the weatherproof membrane.Fifth, the downpipe at the rear of the building discharged directly on to the ground adjacent to the exposed slab.
[32]	The evidence of the Council officers disclosed dampness in the interior with mould on ceilings and interior walls and those matters affecting hygiene and ventilation in the kitchen and shower area which have already been mentioned in this judgment.He held:

once the two conditions of structural deficiencies and excessive interior dampness were identified, the causal relationship between them was axiomatic.

[33]

He held that the District Court Judge had applied the correct criminal standard of proof and that it was open to him to conclude that the offence had been continuing from about the commencement of the letting.

[34]

On the matter of counsel incompetence, he noted evidence of Mr Yeh’s want of fluency in the English language and his limited trial experience.The transcript indicated many communication problems involving counsel, the Judge and witnesses, leading to confusion and disruption in the flow of proceedings.Counsel’s objections were in most cases “misconceived or misdirected”.Notwithstanding this, Harrison J was of the view that counsel’s incompetence would not have had a significantly prejudicial effect on the result.He held:

In my opinion, even if represented by a competent advocate, the Laws could never have shaken the direct and compelling evidence of Mr Wilson and Ms McLeod, corroborated by the tenants.Significantly, Mr MacRae did not suggest otherwise.I accept Mr Casey’s submission that the failure by the Laws’ former counsel to challenge their evidence is explicable on the basis that he had no evidential foundation for doing so.The Laws simply had no answer to the overwhelming weight of the council’s case.In the end, their former counsel’s incompetence did not matter and could not have mattered; the result would have been the same whether or not he was competent.Accordingly, I am satisfied that there was no miscarriage of justice on this ground.

[35]

Concerning sentence, Harrison J was not persuaded that the fines were manifestly excessive or that the Judge had adopted a wrong factual basis for determining what the fines should be.We note that the District Court Judge had proceeded on the basis of information that the applicants owned two properties in Henderson with a combined value of $350,000, that such were mortgage free, and that the dwelling had been rented for four years and three months for a total income of $39,780.We note that one of the arguments advanced before us was to the effect that Mr Yeh’s incompetence extended to a failure to inform the Court that the properties were in fact encumbered.They now appear to be, but we have no basis for accepting that the information conveyed to the District Court Judge was incorrect at that time.

The costs orders

[36]	Following the dismissal of the appeals, the respondents made an application for costs pursuant to s8 of the Costs in Criminal Cases Act 1987 and sought an order in excess of the maximum prescribed scale in reliance on s13(3) of the Act which provides:

Where any maximum scale of costs is prescribed by regulation, the Court may nevertheless make an order for the payment of costs in excess of that scale if it is satisfied that having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.

[37]

Harrison J noted that the Council’s actual costs on the appeal, including legal fees, disbursements and witness costs, totalled $54,778.07 including GST.Legal costs comprised almost $50,000 of that amount.By the Judge’s calculation at least $15,000 of those costs was incurred in arguing the various interlocutory applications consequent upon the application to call further evidence.The Council sought a contribution of $30,000 being sixty per cent of its actual legal costs and in addition witness costs of $4,791.95.The applicants opposed on the basis that the case was not of special difficulty, complexity or importance wherefore there should only be costs according to the scale, amounting in total to $1,661.

[38]

Harrison J noted that in consequence of the grant of leave to call evidence the hearing of the appeal lasted for three days.The written submissions filed on behalf of the applicants for that appeal occupied 50 pages.Counsel for the respondent submitted that although at one level the case was not difficult or complex, it nevertheless became so by the sustained and elaborate strategy pursued by the Laws prior to and during the appeal herein such that it was manifestly outside the norm for a case of its type.Harrison J held:

I agree with this succinct analysis.I am satisfied that the appeal was converted into one of special complexity in the sense that its complexity was significantly greater than as ordinarily encountered.It became unusually outside of the general run of criminal appeals from the District Court which rarely require more than a day to hear.

The questions

[39]	The application for special leave in relation to the High Court decision on conviction and sentence has been pursued on the basis that it raises two questions of law, articulated on behalf of the applicants as follows:
(1)	Is the test for considering fresh evidence on appeal whether or not it might reasonably have led the District Court Judge to acquit the applicants?
(2)	Was the High Court correct in law in holding that the acknowledged incompetence of the applicants’ former counsel was of no matter to the outcome of the prosecution?
[40]	As to the application for special leave in respect of the costs order, the applicants posit two questions of law, namely:
(1)	In finding that the appeals were of special complexity pursuant to s13(3) of the Costs in Criminal Cases Act 1987, did the High Court err in equating “special complexity” with the increase in the duration of the hearing and the volume of evidence and other material before the Court as a result of the Laws’ interlocutory application to call further evidence?
(2)	Did the costs award in this case amount to a further penalty or indemnity?

Discussion

[41]	In the present case, if the question of law is settled then its erroneous application by the High Court would not of itself justify submission to this Court because misapplication will be a matter of merely private concern, not general or public importance.Further, if the question of law is settled beyond any argument of possible need to revisit it, leave would not be granted unless there were other compelling reasons for departing from the statutory scheme which envisages a general principle of appellate review only by the High Court.
[42]	The fundamental inquiry of a court seized with an appeal against conviction is whether there has been a miscarriage of justice, the onus of establishing which is on the appellant.If the whole of the record before the appellate court is the same as that of the trial court, the latter will be concerned with either process, which includes the application of legal principles, or substance, by which we mean the evidential justification or otherwise for the verdict.In this last respect, the appellate court will inquire whether there was a rational evidential basis for the verdict.
[43]	However, should it receive fresh evidence, the appellate court’s correct approach is to inquire whether the verdict can safely stand in the face of the whole of the evidence.As this Court indicated in R v Barr [1973] 2 NZLR 95 at 98, approving R v Flower [1966] 1 QB 146 at 149-150, there may, at least in the case of a trial before a Judge and jury, be three possible outcomes.First, the appellate court might be satisfied that the fresh evidence is true and that it is conclusive of the appeal such that the conviction should be quashed.Alternatively, if not satisfied that the evidence is conclusive, the court might order a new trial so that a jury can consider the fresh evidence alongside that given at the original trial.The second possibility is that the court is not satisfied that the fresh evidence is proved but nevertheless thinks that it might be acceptable to and believed by a jury, in which case as a general proposition, the court would no doubt be inclined to order a new trial so that such evidence could be considered by the jury, assuming the weight of the fresh evidence would justify that course.We remark that the first alternative and second possibility assume that the fresh evidence could reasonably be accepted by a reasonable jury, properly directed in law and that because the appellant is entitled to a jury trial, evidence which might have a material bearing on verdict should be assessed by a jury and not by the appellate court.
[44]	The third possibility is that the appellate court having heard the evidence positively disbelieves it and is satisfied that the witness is not speaking the truth.In that event, a new trial is not called for because the fresh evidence is treated as worthless and the Court will then proceed to deal with the appeal as though the fresh evidence had not been tendered.We remark that such a view imports a conclusion by the appellate court that no reasonable jury properly directed could reasonably accept the fresh evidence.
[45]	The principle exemplified by R v Flower and R v Barr, is not necessarily inconsistent with the approach of the House of Lords in Stafford v Director of Public Prosecutions [1974] AC 878 at 880 and the House of Lords again in R v Pendleton [2001] UKHL 66,that the correct test is the effect of the fresh evidence on the mind of the appellate court and not the effect that such evidence would have had on the mind of the jury.This Court observed in R v Baker [1976] 1 NZLR 419, at 420 that Stafford may indicate a rather stricter approach than had sometimes been accepted by the Court in the past.But, essentially, where there is fresh evidence the issue is the impact of that on the mind of the appellate court rather than its hypothetical impact on the trial court. The difference may sometimes be subtle, but nevertheless significant.
[46]	There may be an issue whether the test is affected by the fact that a trial was before a Judge alone rather than before a jury. In any event, it is reasonably arguable that Harrison J applied the wrong test in attempting to assess the hypothetical effect of the new evidence on the mind of the trial Judge rather than the actual effect of it on his mind in relation to the safety of the verdicts.
[47]	With reference to Harrison J’s finding that the incompetence of trial counsel would have made no difference to the outcome, we consider that there will be cases where process has gone awry to the extent that, despite perceptions of inevitability of outcome, considerations of fairness of trial cause justifiable concern.Also, there may be such failings that it cannot really be predicted that outcomes would have been no different if the failings had not occurred.We have in mind the often cited remarks of Megarry J in John v Rees [1970] Ch 345 at 402 concerning the inconstancy of inevitability.It is not appropriate, of course, for us substantively to examine the justification for a conclusion of no injustice by reason of inadequate representation, but we are concerned that there may have been a significant failure of process in this case.And if that be so, then the High Court may have applied the wrong test by considering the possibility of the result rather than the fundamental issue of a fair trial.This, no less than the other question, and certainly together with it, warrants consideration by this Court.In the result, there are mixed questions of law of general or public importance, and other questions which, in combination, leads to the appropriately rare conclusion of “any other reason”, which justify reference to this Court.
[48]	With respect to Harrison J, what he considered was an indication against granting leave, namely that the appeal would, if successful, result in the matter being remitted to him with the same result, is not consistent with this Court’s powers under the Summary Proceedings Act.Those powers are described in s144 subs (3), (4) and (5) as follows:
(3)	Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the [High Court] or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(4)	On any appeal to the Court of Appeal under this section, the Court of Appeal shall have the same power to adjudicate on the proceedings as the [High Court] had.

(5) The decision of the Court of Appeal on any appeal under this section shall be final; and the same judgment shall be entered in the [High Court], and the same execution and other consequences and proceedings shall follow thereon, as if the decision of the Court of Appeal had been given in the [High Court].

[49]	The relevant powers of the High Court, which this Court will have, are contained in ss121 and 131 of the Summary Proceedings Act.They include a power to confirm a conviction, set it aside or amend it (s144(2)), or to remit to the District Court for a rehearing (s131(1)). They do not include a power to remit to the High Court and the terms of s144(5) could not countenance such a course.
[50]	Nor can it be assumed that the facts, including those disclosed by new evidence, would pre-empt a successful appeal.The correct test on appeal may require cognisance to be taken, not only of the implications of cannabis growing and the secrecy it must have entailed, but also of matters otherwise brought into account by the District Court Judge for which the applicants may not be accountable.For example, the District Court took account of hygiene factors relating to food storage, but it seems the tenants removed a pantry.Hand washing facilities were criticised but it seems the tenants damaged and removed the hand basin.
[51]	We think leave should be granted in this case for the following reasons.First, the way in which an appellate court should dispose of an appeal when it has received fresh evidence, and whether the test is the same in respect of appeals from the verdict of a jury or a judge, are questions of general or public importance.Second, if the excessive dampness in the dwelling might reasonably have been caused by wilful damage and illegal activity on the part of the tenants there would have been a basis for mounting an affirmative defence under s83 of the Act.The very nature of such possible conduct would have been secretive and concealed from opportunities for inspection.That fact and the inexperience and inadequacies of trial counsel denied the appellants the chance of mounting such a defence.Third, if Harrison J applied a wrong test, the applicants may have been doubly deprived, both of a fair trial and of a substantive appeal.Fourth, the matter is of considerable concern to the applicants.Beyond the impost of significant fines and the possibility of having been punished for their tenants’ own illegality, it takes little imagination to understand the grievous loss of face within their own expatriate society.To have suffered that without a fair trial and substantive appeal would be profoundly unjust.
[52]	We are also concerned about the extraordinary level of costs imposed on personal appellants for seeking redress in the High Court.It is the case, as Harrison J noted, that most appeals from the District Court would occupy significantly less time than three days, but there is a real question whether Harrison J applied a correct principle of law in determining, in effect, that because the appeal took longer than normal it was thereby characterised by complexity so as to found jurisdiction for making a costs order beyond the regulation scale.We are not persuaded that any punitive effect is a question of law rather than fact.But the issue of law relating to complexity warrants submission to this Court, particularly since it is an original order imposing liability, is very significant in amount, and tends to add to an overall impression that the applicants may have suffered a significant injustice.
[53]	Our misgivings in respect of the convictions and the costs order extend, consequentially, to the penalties imposed in the District Court.To the extent that they included an assessment on a continuing basis, they are integrated with issues relating to conviction and leave should therefore be granted in respect of them also.

Result

[54]	For the above reasons we grant special leave to appeal against the convictions, sentences and the order for costs made in the High Court.The costs in respect of this application are reserved.

Solicitors:

Phillips Fox, Auckland for Appellants

Kensington Swan, Auckland for Respondent