Wiley v R [2016] NZCA 28; [2016] 3 NZLR 1; (2016) 27 CRNZ 668 (24 February 2016)

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE PERSON DESCRIBED IN THIS JUDGMENT AS W PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE PERSON DESCRIBED IN THIS JUDGMENT AS G PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

Hearing:	11 November 2015
Court:	Randerson, French and Miller JJ
Counsel:	E R Fairbrother QC for Appellant Wiley W C Pyke for Appellant Edwards M J Lillico and M L Wong for Respondent K H Cook as Counsel Assisting
_Judgment:	_{24 February 2016 at 2:15pm}

Para No

Introduction

The interpretation of s 232

The changes effected by the new section

The approach to miscarriage of justice under s 385(1) of the

Crimes Act

Legislative history leading to s 232

Miscarriage of justice under the CPA

Section 232(4)(a)

Section 232(4)(b)

The removal of the proviso

Conclusions

Mr Wiley’s appeal

The facts

The identification evidence

Closing addresses The summing-up Discussion

Result

Mr Edwards’ appeal

_{The facts}

[1] [3] [8]

[11] [14] [23] [26] [32] [42] [56] [57] [58] [61] [69] [70] [76] [83] [84] [86]

[1] These two appeals were heard together at the request of the Court with a view to a judgment dealing with the interpretation of s 232 of the Criminal Procedure Act

[2] We propose to deal first with the issue of interpretation before considering the two appeals.

[3] Section 232 replaces s 385 of the Crimes Act 1961 although the latter provision continues to apply to criminal proceedings commenced prior to 1 July

2013.¹The grounds of appeal under the new provision are broadly similar but there

(a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b) that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(3) The first appeal court must dismiss a first appeal under this subpart in any 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—

(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[5] Appellate courts had settled the modern approach to s 385, including the proviso, in a series of decisions following enactment of the New Zealand Bill of Rights Act 1990 (NZBORA): Sungsuwan v R, Condon v R, Owen v R, Matenga v R,

R v Gwaze, and Guy v R.²The question arises whether the legislature intended any change to that approach.

[6] Mr Lillico submitted for the Crown that the legislative history of s 232 made it clear the legislature intended to simplify and consolidate the law in respect of conviction appeals while ensuring the core principles established under s 385 were retained. Mr Cook, as counsel appointed to assist the Court, endorsed this approach. Mr Pyke for Mr Edwards took a slightly different view as we later discuss. Mr Fairbrother QC for Mr Wiley generally supported Mr Pyke’s submissions.

[7] We propose to summarise the changes effected by the new section and then deal with the approach to miscarriage of justice under s 385. We will then discuss the legislative history leading to the new section and express our views as to its interpretation.

[8] The most obvious changes in the new section are the removal of the proviso in s 385 and the introduction of a definition of miscarriage of justice. We discuss the effect of these changes below.

(a) The clarification of the unreasonable verdict ground to remove the alternative of a verdict that “cannot be supported having regard to the evidence”.³

(b) The addition of a discrete appeal ground for Judge-alone trials in subs (2)(b).

³In Owen v R, above n 2, at [12] the Supreme Court found there was no practical distinction between an unreasonable verdict and one that could not be supported having regard to the evidence. See also B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [66], [69] and [105]–[106]: an inconsistent verdict argument is to show that a jury’s guilty verdict is unreasonable and should be quashed.

(d) The introduction of subs (5) which provides that a “trial” for the purposes of the miscarriage of justice ground includes a proceeding in which the appellant pleaded guilty.⁴

(ii) For any reason, a miscarriage of justice has occurred. (b) For Judge-alone trials, there are two grounds of appeal:

(i) An error in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

The court must be satisfied that no jury applying the criminal standard of proof could reasonably have reached a guilty verdict on the evidence.⁵There is no requirement to go further to show a miscarriage of justice has occurred. If the unreasonable verdict ground is established, the section presumes the verdict cannot be supported.

(d) We did not hear any argument about the effect of subs (2)(b) which relates solely to Judge-alone trials. It is not material to the appeals before us and we do not propose to offer any views on it. We simply note that the subsection requires the court to be satisfied there was an

extent that a miscarriage of justice has occurred. Necessarily therefore, the definition of miscarriage of justice in subs (4) is engaged.

(e) Once the court is satisfied a ground of appeal under s 232 is established, no discretion remains. The appeal must be allowed. Conversely, if the court is not satisfied a ground of appeal is established, the appeal must be dismissed.

[11] The approach to miscarriage of justice and, in particular, to the proviso was discussed and settled by the Supreme Court in Matenga.⁶The Court briefly traversed the history of the proviso drawing upon the extensive discussion by the High Court of Australia in Weiss v R.⁷The proviso in s 385(1) can be traced back to s 4(1) of the Criminal Appeal Act 1907 (UK). It was introduced as a response to the so-called Exchequer rule under which any departure from trial according to law, regardless of its nature or significance, was sufficient to result in a retrial.⁸The Crown noted in its submission that a differently worded version of the proviso appeared in New Zealand law much earlier than the Crimes Act 1961. Section 415 of the Criminal Code Act 1893 referred to identification of “some substantial wrong or miscarriage”.

[12] In Matenga, the Supreme Court began by finding the proviso could not apply to the unreasonable verdict or nullity grounds of appeal since, if either of those grounds were established, they must constitute a substantial miscarriage of justice.⁹

We summarise the approach adopted in Matenga to miscarriage of justice as a ground of appeal in s 385(1)(c):

or process of the case that has not been cured or become irrelevant to the verdict.¹⁰

(b) The second is to exclude irregularities which plainly could not, either singularly or collectively, have affected the result of trial: a true miscarriage is an error capable of affecting the outcome of the trial.¹¹

This shows that New Zealand did not follow the Exchequer rule: an error had to have the capacity to have a material effect on outcome in order to constitute a miscarriage.

(c) The third stage is for the court to consider whether the adverse effect potentially arising from an error of that type “may actually, that is in reality, have occurred”.¹²

(d) If the court is satisfied a miscarriage of justice might actually have occurred then:¹³

The Court may exercise its discretion to dismiss the appeal [under the proviso] only if, having reviewed all the admissible evidence, it considers that, notwithstanding there has been a miscarriage, the guilty verdict was inevitable, in the sense of being the only possible verdict, on that evidence... In order to come to the view that the verdict of guilty was inevitable the Court must itself feel sure of the guilt of the accused.

[13] The approach adopted in Matenga was endorsed by the Supreme Court in its unanimous judgment delivered by the Chief Justice in R v Gwaze in the context of a Solicitor-General’s appeal on a case stated under s 380 of the Crimes Act.¹⁴It was held that the court could not conclude that no substantial miscarriage of justice has occurred under the proviso to s 385 unless the court is “affirmatively satisfied of guilt”.¹⁵In terms of the proviso to s 382(2), the expression a “substantial wrong or miscarriage of justice” required the court to be satisfied that the error was “highly

_{material to verdict, so that the integrity of verdict is undermined by
it”.}¹⁶

[14] We now turn to consider whether the legislative history points to a legislative intention to change the approach settled in Matenga. In a comprehensive and helpful submission Mr Cook traced the legislative history of the Criminal Procedure (Reform and Modernisation) Bill which led to the passage of the CPA. The general purpose of the Bill according to the explanatory note was: to ensure the fair conduct of criminal prosecutions in New Zealand (as reflected in s 25 of the NZBORA); to simplify criminal procedure; and to provide an enduring legislative framework that was fair, reduced unnecessary delay, was flexible and able to take advantage of

approach was generally to consolidate existing legislative provisions and to simplify and modernise language.

... inserting new clause 236(5), which defines the term a “substantial miscarriage of justice” as any error or irregularity that creates a real risk that the outcome of the trial was affected, or results in an unfair trial or a trial that is a nullity.

[16] At this point, the recommendation was that the Bill should continue to refer

[17] Mr Cook drew attention to evidence before the Justice and Electoral Select Committee that might have given rise to this recommendation. The New Zealand Law Society and the New Zealand Bar Association had raised a concern about the burden of persuading an appeal court that there had been a substantial miscarriage of justice. It was submitted the appeal provision in the Bill differed from existing law which required the appellant to persuade the court there had been a miscarriage but then placed on the Crown the burden of persuading the court there had been no

¹⁷_{Criminal Procedure (Reform and Modernisation) Bill 2010
(243-1) (explanatory note) at 1.}

¹⁸Criminal Procedure (Reform and Modernisation) Bill 2010 (243-2) (select committee report) at

[18] The changes recommended by the Select Committee may also have been influenced by a submission to the Committee made by the Chief Justice in which she drew attention to the deficiencies in s 385 of the Crimes Act and suggested a further change be considered, namely abandoning the use of the word “substantial”.¹⁹The Chief Justice’s letter stated:

The expression “substantial miscarriage of justice” is evidently being used because it is familiar from the proviso to the present s 385(1) of the Crimes Act 1961. In that subsection, it is contrasted with the term “miscarriage of justice”. It seems likely that the general public would consider that anything called a miscarriage of justice should result in the overturning of a conviction. It may therefore be preferable to drop the word “substantial” but to include a definition of “miscarriage of justice” which makes it clear that the phrase is intended to have the same meaning as was given to “substantial miscarriage of justice” in the decisions in Matenga and Gwaze.

[19] The Select Committee’s recommendation for a change to the Bill reflected a recommendation made in a departmental report to the Committee.²⁰It is clear departmental officials considered the change recommended by the Select Committee was appropriate to clarify the law without changing the approach to “substantial miscarriage of justice” under existing law:²¹

1127. Against this background, the approach adopted in the Bill is to integrate the proviso into the grounds of appeal, making it clear that the ultimate test for allowing an appeal remains a “substantial miscarriage of justice”, as that term is currently understood. This approach follows section 276 of the Criminal Procedure Act 2009 (Vict.) and underlines the policy intent to make the law more coherent and simpler to apply without changing the core principles.

[20] The departmental report also said it was agreed in principle it would be better to abandon the term “substantial” but it was thought this term should be maintained “at this time”.²²It appears the authors of the report considered that abandoning the word “substantial” might create some complexities with s 13 of the Supreme Court Act 2003 which uses the term “substantial miscarriage of justice” as a ground for

¹⁹Letter to Select Committee dated 25 February 2011. This letter was provided by the Chief Justice as part of the formal Select Committee process and is not subject to any issues of confidentiality.

²⁰Departmental Report for the Justice and Electoral Select Committee: Criminal Procedure

(Reform and Moderation) Bill (Crime Prevention and Criminal Justice Unit, Ministry of Justice,

27 September 2011 that the term “substantial” was removed and s 232 was amended to its current form.²³The explanatory note said:²⁴

The amendment simplifies but does not alter the test for allowing an appeal against conviction. For this purpose, clause 236 defines “miscarriage of justice” in line with current case law.

[22] The legislative history suggests there was no intention to make any substantive change to the law as it was understood under s 385.

[23] We turn to the interpretation of a miscarriage of justice in the CPA. For convenience, we set out again the new definition:

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

[24] The inquiry involves a two-step process: was there an error, irregularity or occurrence in or in relation to or affecting the trial and, if so, did either of the two states of affairs in subs (4)(a) or (b) arise in consequence?

[25] A preliminary but important point applicable to both limbs of subs (4) is the distinction to be drawn between the unreasonable verdict ground under s 232(2)(a) and the miscarriage of justice ground under s 232(2)(c). Under the former, if the verdict was not supported on the evidence, it cannot be reasonable.²⁵In contrast, the fact that the verdict may have been open on the evidence is not relevant to the latter. Section 232(2)(c) is concerned with whether something material has gone wrong

²³Supplementary Order Paper 2011 (281) Criminal Procedure (Reform and Modernisation) Bill

[26] Dealing first with subs (4)(a), the terms “error, irregularity or occurrence” reflect the breadth of matters that might be regarded as giving rise to a miscarriage of justice. Any such error, irregularity or occurrence may have arisen in the trial itself or in relation to the trial or affecting the trial. We do not attempt to define the range of matters which could fall within the scope of this part of the definition. Suffice to say, it covers all the matters that have hitherto have been regarded as affording grounds for appeal including errors of law (no longer specifically stated to be a ground of appeal). As noted in Sungsuwan, the courts will always reserve the flexibility to identify and intervene to prevent a miscarriage of justice however

caused.²⁷A broad approach is supported by s 25(h) of the NZBORA and the need to

ensure the right of appeal is effective. For ease of reference only, we will use the

[27] Under subs (4)(a) the court must be satisfied that an error has created a real risk that the outcome of the trial was affected. We accept the Crown’s submission that it is appropriate to adopt Tipping J’s formulation of the approach to the assessment of what amounts to a real risk. In Sungsuwan, he said a real risk arises if there is a reasonable possibility that a not guilty (or a more favourable verdict)²⁸

[28] The use of the term “real” means that the inquiry is concerned with realistic rather than theoretical possibilities. Errors that could not have had any effect on the outcome of the trial cannot found a successful appeal against conviction on the basis of a miscarriage of justice, as was noted by the Supreme Court in Matenga.³⁰

[29] Section 232(4)(a) focuses on an assessment of the potential risk of a different outcome. Applying the statutory language in its terms, the court must consider whether the identified error has created a real risk that the outcome of the trial was

_{affected in the sense discussed by Tipping J in Sungsuwan: is
there a reasonable}

possibility that a not guilty or more favourable verdict would have been delivered if nothing had gone wrong? If this real risk is identified, the court must allow the appeal.³¹

[30] We are satisfied this interpretation accords with the text and purpose of s 232. In most cases this will not amount to any material departure from the approach adopted under s 385 of the Crimes Act.

[31] Beyond these observations, we do not consider it is appropriate to put any gloss on the statutory language.

[32] The second alternative ground upon which an error may give rise to a miscarriage of justice is under s 232(4)(b): where any such error has resulted in an unfair trial or a trial that was a nullity.

[33] It is unnecessary to dwell on the nullity ground since an appeal on this ground is likely to be a very rare occurrence such as where the trial takes place in the wrong court.

[34] The unfair trial ground is not specifically mentioned in s 385(1) of the Crimes Act but was nevertheless a well understood ground of appeal even before the introduction of the NZBORA which affirms the right to a fair and public hearing by an independent and impartial court.³²In Condon the Supreme Court described the right to a fair trial as an absolute right.³³A breach of the right for any reason means that the conviction must be quashed. The Court cited with approval the observations of Deane J in Jago v District Court of New South Wales:³⁴

The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law.

[35] Not every error, irregularity or occurrence will result in an unfair trial as the Supreme Court in Condon pointed out.³⁵The assessment is to be made in relation to the trial overall. The Supreme Court referred to Lord Bingham’s observation in Randall that there will come a point when a departure from good practice is so gross, or so persistent, or so prejudicial, or so irremedial, an appellate court will have no choice but to condemn the trial as unfair and quash the conviction as unsafe.³⁶

[36] The approach to be applied in cases involving unfair trial grounds has been recently discussed by the Chief Justice in Guy where material not in evidence was received by the jury.³⁷Delivering judgment for herself and Glazebrook J, the Chief Justice said that where a trial is properly characterised as unfair, there is no question of application of the proviso to s 385(1).³⁸In considering whether a trial is fair, the inquiry is directed to the right to fair trial itself, and not the guilt of the accused.³⁹Two other members of the Court⁴⁰did not address this point and the fifth member⁴¹appears to have taken a different view.⁴²

[37] If the court finds there has been an unfair trial in terms of subs (4)(b), it is unnecessary to consider whether this may have affected the outcome of the trial. Section 232(4)(b) assumes that if an accused person has not received a fair trial then any conviction arising must be set aside. This is consistent with the authorities establishing that a conviction resulting from an unfair trial cannot be sustained even if a different outcome was unlikely or a conviction was inevitable.

[38] The more difficult question is what types of error were intended to fall into the category of an unfair trial. On one view, any error that could have affected the outcome of the trial under subs (4)(a) could also be regarded as resulting in an unfair trial under subs (4)(b). The difficulty of correctly characterising the error is

_{illustrated by the division of opinion in the Supreme Court’s
decision in Guy in}

which material not in evidence had been placed before the jury. ⁴³The Court in Guy was addressing the unfair trial issue in the context of s 385 of the Crimes Act. The views of the Chief Justice and Glazebrook J are helpful in addressing the approach we consider is appropriate to the unfair trial ground under s 232.

[39] We would prefer to determine the approach to this question in a case in which the question plainly arises. It does not arise in either of the two appeals before us. However, we offer some preliminary observations. It appears the legislature had in mind cases where an error or circumstance has occurred of sufficient seriousness to warrant the setting aside of the conviction without further inquiry. That is evident from the contrasting approaches under subs (4)(a) and (b). The former is concerned with the potential effects of the error on outcome while the latter assumes that if an unfair trial has resulted then the verdict cannot be sustained.

[40] We hesitate to give examples of cases of error, irregularity or occurrence that might be appropriately treated as resulting in an unfair trial under subs (4)(b) since the range of such matters may be extensive. However, without in any way limiting the type of cases that might fall into this category we instance merely by way of example: Condon (lack of legal representation);⁴⁴Hall (failure by counsel to follow the defendant’s instructions on fundamental issues such as plea, the giving of evidence and advancing a defence based on the defendant’s version of events);⁴⁵

[41] We do not consider it would necessarily be helpful to suggest expressions such as those identified at [35] above to characterise what might be regarded as giving rise to an unfair trial. All that can usefully be reiterated is that the error, irregularity or occurrence must be of sufficient seriousness to warrant the verdict being set aside without further inquiry. The courts will no doubt have regard to examples of such cases under the former s 385 as a guide in appeals under the new

[42] What then is the effect of the removal of the proviso in s 385? As noted, the legislative history we have discussed supports the Crown’s submission that there was no intention to alter existing case law as to the meaning of a substantial miscarriage of justice. The Crown pointed to this Court’s decision in R v McAllister, in which the criteria for leave for a second appeal under s 264(2) of the CPA were at issue, for the proposition that the omission of the word “substantial” did not necessarily mean

the law had changed.⁴⁷Under that provision, the court may grant leave if the appeal

involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur if the appeal is not heard. The Court noted that the leave criteria in s 13 of the Supreme Court Act 2003 were virtually identical save for the addition of the word “substantial” to miscarriage in s 13(2)(b). Observing that at the leave stage, the Court was only considering a likelihood of a miscarriage, the Court was of the view that the use of “almost identical wording” suggests the leave

provisions should, in general, be interpreted consistently.⁴⁸The Court in McAllister

[43] The Crown submitted that the definition of miscarriage of justice should be interpreted as excluding from its scope cases in which an “otherwise fatal, uncorrected error is of no consequence because conviction was inevitable”. The Crown submitted the term “inevitable” in this context should be given the meaning expressed in Matenga (the only reasonably possible verdict).⁴⁹

[44] We agree. As a matter of construction it remains open under s 232(2)(c) for the Crown to endeavour to persuade the court that a conviction was inevitable in the Matenga sense despite the error identified. However it does not necessarily follow that an appeal will fail if the court is satisfied a conviction was inevitable. As we have already discussed in relation to s 232(4)(b), the nature of some errors may be

⁴⁷McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [34]. The Court noted that the removal of the word “substantial” in the leave provision was effected by the same Supplementary Order Paper we have referred to above at [21] and noted that the explanatory note stated that the change simplified but did not alter the test for allowing an appeal against conviction.

[45] Mr Pyke submitted the removal of the proviso must have been intended to have some effect and the court should not read the word “substantial” back into the section. He referred us to the decision of the High Court of Australia in Baini v R already briefly mentioned.⁵⁰This considered the interpretation of s 276 of the Victorian legislation upon which s 232 is said to have been based.⁵¹Mr Pyke submitted the case was illustrative of the differing approaches that the members of

[46] The Victorian legislation is not directly comparable to s 232 of the CPA in the form now enacted. The crucial difference is that the Victorian provision still uses the term “substantial” miscarriage of justice. Care therefore needs to be taken in applying Baini in the New Zealand context. Nevertheless, the majority judgment⁵²provides some support for our conclusion that it remains open for the Crown to persuade the court that a conviction was inevitable despite the error identified. The reasons why that might not be possible to determine in some cases and the conclusion that the court’s satisfaction as to the inevitability of conviction will not necessarily be determinative in some cases is also recognised.⁵³

[47] To interpret miscarriage of justice in s 232 of the CPA in a similar way to the approach adopted under s 385 of the Crimes Act does not involve reading back the term “substantial” into the new provision. The existing law under s 385 has long since abandoned the Exchequer rule. It puts to one side errors that are inconsequential or immaterial to the outcome of the trial and focuses on errors of substance. A miscarriage is established under s 385(1)(c) where there is a real risk the error adversely impacted on the outcome or the trial was unfair.

[48] In our view, the removal of the term “substantial” was to overcome the awkwardness in s 385 of distinguishing a miscarriage of justice from a substantial miscarriage of justice and to avoid the perception that public confidence could be undermined if a finding that a miscarriage of justice had occurred was insufficient by

[49] Our review of the legislative history shows that Parliament clearly did not intend to alter the substantive law on miscarriage. In the usual case, the Crown would endeavour to persuade the court there was no real risk of a different outcome. But as we have found, the removal of the proviso does not preclude the Crown from assuming the greater burden of endeavouring to persuade an appellate court in cases falling within s 232(4)(a) that the verdict was inevitable in the Matenga sense despite an identified error. Necessarily, a finding to that effect would mean there was no risk at all of a different outcome.

[50] In recent years, the courts have been sparing in applying the proviso to s 385, recognising the difficulties inherent in reaching an affirmative conclusion about the guilt of an appellant purely on the written record of the trial. We do not anticipate any change of approach in this respect.

[51] We are also satisfied that to interpret s 232 of the CPA in a similar way to the approach adopted hitherto under s 385 of the Crimes Act is consistent with s 25 of the NZBORA. It has not been doubted that the right of appeal conferred by s 383 of the Crimes Act complies with s 25(h) of the NZBORA.⁵⁴We recognise of course that the right of appeal is fundamental and must be effective. It should not be interpreted in a way that undermines the enjoyment of the right.⁵⁵As it is put by the authors of The New Zealand Bill of Rights: A Commentary, the guaranteed right to an appeal “according to law” “allows for regulation of the right to appeal, but prohibits its emasculation”.⁵⁶

[52] Our conclusion about s 25(h) of the NZBORA is supported by these considerations. First, the right of appeal is available as of right. Second, the grounds of appeal enable the appellate court to address both factual and legal issues. Third, the wide interpretation to be given to errors, irregularities or occurrences in the

_{definition of miscarriage of justice enables a comprehensive and
flexible approach to}

⁵⁵Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Oxford,

appellate review. Finally, s 232(4)(b) recognises the fundamental right to a fair trial in accordance with s 25(a) of the NZBORA. Section 232 allows an appellate court both to ensure that justice has been done case by case, so protecting the individual’s right to an effective appeal, and to balance the dual public interests in ensuring that miscarriages of justice are remedied and unmeritorious appeals are dismissed.⁵⁷

[53] Mr Pyke also submitted the removal of the proviso to s 385 should not be interpreted as increasing the burden on an appellant in establishing his or her grounds of appeal. The concern was that under s 385, the appellant had an initial burden to show a miscarriage of justice and the Crown then had to show it was not substantial.

[54] We do not consider there is substance in these concerns. To speak of an onus in the context of a conviction appeal needs some explanation. An appellant has only ever had an initial persuasive burden to establish an error capable of affecting the outcome. It is then a matter for the Crown to endeavour to persuade the court the error was not material in the circumstances. The new section does not change that. Ultimately, it is for the court to be satisfied the ground is established. Moreover, in

[55] For these reasons, we do not consider the removal of the proviso points to any change to the approach to appellate review.

[56] We are satisfied s 232 as enacted reflects the aims expressed in the Parliamentary materials to which we have been referred. It has removed the complications inherent in s 385 of the Crimes Act, including in particular the apparent difficulty in reconciling the linguistic differences between a miscarriage

_{and a substantial miscarriage of justice. And, for the reasons given,
we do not}

⁵⁷See also International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1996, entered into force 23 March 1976), art 14(5) and Peter Marshall “A Comparative Analysis of the Right of Appeal” (2011) 22 Duke J Comp & Int’l L 1.

consider the new section requires any materially different approach to conviction appeals from that prevailing in practice under s 385.

[57] Mr Wiley was convicted after a jury trial in the District Court before Judge Rea on two counts of wounding with intent to cause grievous bodily harm and aggravated burglary. He was sentenced to seven years imprisonment.⁵⁹The sole issue at trial was whether the jury could be sure Mr Wiley was the offender. Mr Wiley appeals against his convictions on two grounds:

(a) the trial Judge failed to give adequate directions to the jury on the topic of identification; and

[58] In the early hours of the morning of 1 January 2014, a masked assailant broke into a sleepout at the rear of a Napier property. The assailant was armed with a metal bar and assaulted one of the occupants, Mr Cross. The assailant then drove off in a black ute.

[59] Three other people were present in the sleepout at the time, Ms Familton, Ms Larkin and Ms Morris. Mr Cross, Ms Familton and Ms Larkin all knew Mr Wiley and gave evidence that they recognised him as the assailant. All three also identified the black ute as one belonging to Mr Wiley. Mr Cross had known Mr Wiley for 30 years and Ms Larkin had known him for 24 years. Ms Familton had known Mr Wiley for 16 years, and had been in a relationship with him for two years. This ended about six weeks prior to the assault.

[60] When interviewed by the police, Mr Wiley denied the offending. His defence at trial was that he had not been correctly identified as the offender. He did not give

evidence but called a witness who said he had been with Mr Wiley earlier that evening and had been socialising with him at a hotel bar until it closed. Mr Wiley had left on foot, dressed in jeans and in a long-sleeved shirt 20 to 25 minutes before the assault took place some distance away on the other side of town. This evidence, if accepted, did not exclude Mr Wiley as the offender but, as Mr Fairbrother put it, made his presence at the scene less likely.

[61] We use the term “identification evidence” in this judgment but it is more properly referred to as “recognition evidence” given that the witnesses relied upon by the Crown for the purpose of identifying Mr Wiley had all known him for substantial periods of time.⁶⁰

[62] Mr Cross confirmed he knew Mr Wiley well from the lengthy period he had known him. Despite the fact that the assailant was wearing a German helmet, a Halloween-style black mask, a tight vest, black jeans and boots, he recognised Mr Wiley from his posture and the way he walked. He had seen Mr Wiley in the German helmet before. He also recognised the ute which he had seen Mr Wiley driving previously. He accepted the incident had happened very quickly. The assailant had stood in front of him at a distance of about three metres for two to three seconds before attacking him.

[63] Ms Familton’s evidence was that the assailant was wearing a German helmet and a black balaclava-type mask. She had seen the same sort of helmet being worn by Mr Wiley before and she had also seen the face mask around his house. Although only the assailant’s eyes were visible, they were large and blue and she thought they were Mr Wiley’s eyes. Ms Familton yelled out the name “Tui” (Mr Wiley’s nickname) because she thought it was him. There was no response. The assailant was about a metre or a metre and a half away from her.

[64] She also recognised the vehicle in which Mr Wiley left the premises as his ute. It was the vehicle he had while she was in a relationship with him and she had

seen him driving in that car every day. She said the number plate of the departing

[65] In cross-examination, she accepted she could have been mistaken about the identification of the ute and was not “absolutely certain” the assailant was Mr Wiley. The incident had been a “quick shock”. The assailant had stood in the room for a couple of seconds before assaulting Mr Cross. She also accepted that her perception of the assailant’s identity could have been affected by alcohol and drugs she had consumed that evening.

[66] Ms Larkin described the assailant as wearing a leather jacket, camo pants, a “Kraut lid” or German helmet, a pair of boots as well as a balaclava. The balaclava covered the assailant’s face but not his eyes. She recognised the assailant as Mr Wiley because of his clothing, the way he walked, the way he handled himself and his eyes. She said Mr Wiley had something wrong with his hip and she noticed a difference in the way he walked. When she observed the assailant, he was only a foot away from her. Ms Larkin added that she had seen Mr Wiley wearing the clothes worn by the assailant before. She was familiar with Mr Wiley’s ute because she had helped him sand the vehicle down before painting the year previously. In cross-examination, she accepted that the event was quite frightening, happened quite quickly and that her focus was on the metal bar. However, she denied a suggestion put to her by defence counsel that identifying someone in the circumstances could be extremely difficult. She did not accept that suggestion because she had seen the assailant get into his car and drive off. She was just starting to drink a second glass of beer when the assault took place.

[67] The fourth person present, Ms Morris, had not previously known Mr Wiley. Her evidence was largely confined to a description of what she saw happen at the time of the assault. She referred to the assailant wearing “a Kraut lid” helmet. Later, she noticed that he was wearing a balaclava as well. She accepted in cross-examination that she had seen other people wearing similar helmets,

⁶¹It was an agreed fact that Mr Wiley owned a ute with the registration number SX2961.

[68] The Crown also relied on evidence that DNA belonging to Mr Cross was found on the steering wheel of the vehicle. This evidence was of limited assistance for reasons the Judge gave in his summing-up which we discuss below.

[69] The evidence at trial occupied a little more than a day. The closing addresses and the Judge’s summing-up were all completed on the second day. As expected, counsel for the Crown and Mr Wiley focused their addresses on the issue of identification dealing with each of the witnesses who gave evidence on that topic. Defence counsel (not Mr Fairbrother) emphasised the difficulties in identifying the assailant in the circumstances; discrepancies between Mr Cross’ description of the assailant’s mask and clothing when compared to the evidence of Ms Larkin and Ms Morris; Ms Familton’s acceptance that she might have been wrong and her acceptance that she had been consuming alcohol and drugs; the speed at which the events had happened; the fact that the items of clothing the assailant was wearing were not specific to Mr Wiley; discrepancies by the witnesses in the description of the vehicle in which the assailant made his escape; and the prospect that if the witnesses had mistakenly believed the assailant was Mr Wiley, they may have assumed the vehicle was his as well, or vice versa.

[70] The Judge rightly focused on identification as the real issue in the case. He drew the jury’s attention to the three Crown witnesses who gave evidence on this topic: Mr Cross, Ms Larkin and Ms Familton. He warned the jury in robust terms of the risk of mistaken identity:

[13] Now this case depends exclusively on your view of the identification witnesses and what you make of them. It is my job to warn you that there is a special need for caution before finding the defendant guilty in reliance on the correct identification of a witness. It is necessary to tell you that mistaken identifications can result in serious miscarriages of justice and they have done in the past. It is necessary to remind you that a mistaken witness can be a convincing witness, and that is what I said to you before, they may have got it wrong but they look like they know what they are talking about. And lastly, where there is more than one identification witness, there is a possibility that all of them are mistaken.

[14] Now ladies and gentlemen, I am required to give you this caution as a matter of law and it wasn’t just somebody who thought it up as a great idea for Judges to do for juries, this is based on years and years and years of experience where people do make mistakes when they identify others. Now I bet you when you go out to that jury room and you have a chat amongst yourselves, you will have more than one of you that has walked up in the street and tapped someone on the shoulder thinking it was a mate of yours only for them to turn around and find it is somebody different. You will have had constant arguments in your household about the identification of particular actors in particular television programmes. This is the human condition, we all make mistakes about identification from time to time and the law recognises that and the law says you have to be particularly careful on convicting anybody, finding them guilty based on identification evidence and it says that even if there is more than one identification witness, you still have to be very cautious because these mistakes can happen.

[71] The Judge invited the jury to look at all the circumstances surrounding the identifications including the fact that it was a very traumatic event:

[16] So put yourself in that situation, the shock of that intrusion. Do you find that that might affect the accuracy? Do you find that you might be searching your mind for somebody who you think could be going to do something like this? You also have to look at how much of the person they had under observation and in this case, while there are other things like his posture, his physical positioning, the key issue for some of them was his eyes. How long did each of these witnesses have the person under observation? At what distance? And of course the Crown says to you, as far as Ms Larkin is concerned, the distance was very small, about a foot or two. What were the conditions like to be able to make the identification? Was the lighting any good? And this applies to the vehicle as well. Was there anything that physically impeded the identification of the person and of the vehicle? And of course Ms Graham says to you, “Well some trees did,” when we are talking about the vehicle.

[72] The Judge then dealt with the fact that three of the Crown witnesses had known Mr Wiley for a number of years:

[17] Had the person making the identification ever seen the person they were identifying before? Now obviously in this case they had known each other for a generation, for years, so you take all that into account. Did they know each other? Answer, yes. How well did they know each other? Was there anything about the situation that caused them to particularly take note of who the person was? And added to that, did the circumstances of the situation cause such trauma that the accuracy of the identification would have to be suspect? All a matter for you. What period of time did they have them under observation? What, in fact, were they observing? These are all the sorts of questions you will have to ask yourself, and you will be able to think of others, when you put this identification evidence under the microscope. Because ladies and gentlemen, as I keep saying, there is nothing else.

[73] The Judge concluded this part of his summing-up by referring again to the standard of proof required and the risk of identification evidence being unreliable. To add further emphasis to the “strong caution” the Judge had already given, he said:

[19] Now I think I have made my position very clear on that, what the law is in relation to identification. Mistaken witnesses can be convincing. Mistaken identifications can and have caused serious miscarriages of justice and even if there is more than one witness, they can all be mistaken and you need to look at that closely.

[22] Now the Crown case consisted of Ms Guthrie outlining the various factors to you as to why you should accept those three witnesses. Essentially it is around their long association with the defendant, their knowledge of him, in fact in one case, a romantic attachment right up until six weeks before this incident and she says to you, “They knew jolly well that it was Tui and they knew at the time to the extent that his name was called out.” Ms Graham [defence counsel], on the other hand, goes through the timings for you and says, “Well if you accept what Mr Willis [defence witness] has to say, that he was with him at the Cabana, then the timings don’t make any sense in terms of somebody then heading home, however he got there, gearing up and going and carrying out this sort of attack.” And Ms Graham says to you, “Well the vehicle issue is important as well.” She says that people expect to see what they expect to see so once you have identified in your own mind that Tui is the attacker, the vehicle that you see him leave in clearly is Tui’s vehicle because that is what you would expect. And she says that while it has largely gone under the radar in terms of the way the trial has run, it is equally important that you look at the identification of that Ute as well because it is the Crown case obviously that it is more than coincidence that the witnesses say it was him and his vehicle is also there. Ms Graham says to you, “You need to scrutinise the evidence about the reliability of the identification of that vehicle as well and really is it just a situation of some other vehicle being there and those that in their own mind had identified Tui, transposing that and saying, well that’s clearly his vehicle, in circumstances where they weren’t in a very good position either to see it or assess it.”

[75] The Judge then dealt with two other topics relevant to identification. First, he effectively neutralised the Crown’s reliance on the DNA evidence by saying that DNA from Mr Cross could have been located in the ute whether it was being driven by Mr Wiley or by someone else. Finally, he reminded the jury to consider the evidence of the defence witness.

[76] Mr Fairbrother’s principal argument as advanced orally was that the Judge

ought to have drawn the jury’s attention to weaknesses in the evidence, particularly

the uncertainty expressed by Ms Familton and her acceptance that her perception may have been tainted by the alcohol and drugs she had consumed. Mr Fairbrother submitted also that the Judge should have reminded the jury that there was no known reason for Mr Wiley to be the aggressor; there was a lack of detail about the lighting and the vagueness of Mr Cross’ evidence as to identification. Finally, Mr Fairbrother submitted that the Judge should have warned the jury of the danger of the unconscious projection of what the witnesses expected to see or hear once the attacker was addressed as “Tui”.

[77] In terms of s 232 Mr Fairbrother placed particular reliance on the miscarriage of justice ground under subs (2)(c). He also relied, less strongly, on the unreasonable verdict ground under subs (2)(a). As to the first, Mr Fairbrother relied on the well-known decision of the English Court of Appeal in R v Turnbull.⁶²As part of the guidelines suggested in that case, Lord Widgery CJ, speaking for the Court, said that judges should remind the jury of any specific weaknesses which had appeared in identification evidence.⁶³

[78] If a judge misdirects a jury or does not adequately direct a jury on a material matter then this would undoubtedly constitute an error “in or in relation to or affecting the trial” for the purposes of s 232(4). It would then be necessary to consider whether the error created a real risk that the outcome of the trial was affected or had resulted in an unfair trial. However, we are not persuaded that the Judge misdirected the jury or that there was any inadequacy in the directions the Judge gave on identification. To the contrary, the Judge gave a very strong warning about the risks of mistaken identity in terms Mr Fairbrother accepted were robust. There was no challenge to the Judge’s directions in that respect. The Judge then drew the jury’s attention to the three witnesses who gave evidence on this topic and invited the jury to consider the circumstances in which their identifications had been made. He described in some detail the circumstances the jury ought to take into account, tailored to the facts of the case under consideration. As well, the Judge summarised the cases presented by the Crown and defence and, in the course of

_{doing so, drew attention to defence counsel’s submission about the
identification of}

the vehicle and the risk of the jury making assumptions in that respect based on their belief that Mr Wiley was the assailant.

[79] We accept that the Judge did not specifically identify the weaknesses in the evidence of each of the Crown witnesses in the terms Mr Fairbrother outlines. But we do not consider there was any need for the Judge to have done so. The Turnbull guidelines can be helpful but the form in which directions are given on the topic of identification must be tailored to the circumstances of the case. In the context of a short trial with the Judge’s summing-up immediately following the detailed addresses made by counsel, we are satisfied there was no need for the Judge to do more than he did. We conclude that there was no error in the summing-up.

[80] As to the unreasonable verdict ground, as we have already noted, a verdict will be unreasonable if the jury could not reasonably have been satisfied to the required standard of the defendant’s guilt.⁶⁴Mr Fairbrother did not strongly press this ground of appeal. We are satisfied there was sufficient evidence for the jury to be satisfied beyond reasonable doubt that Mr Wiley was the offender. The salient points are that each of the three witnesses relied upon by the Crown knew Mr Wiley very well for a very long period. Their testimony was therefore in the nature of recognition evidence. The fact that the assailant’s facial features were hidden except

for his eyes did not have the significance this feature would have had if the witnesses were seeking to identify an offender previously unknown to them. Rather, the witnesses relied on features such as the assailant’s posture and the way he walked. The German helmet, although not uniquely worn by Mr Wiley, was a relevantly distinctive feature the witnesses associated with Mr Wiley. So too the prominent blue eyes, which Ms Familton particularly could be expected to recognise. The jury were entitled to take into account that Ms Familton recognised Mr Wiley as the assailant at an early point when she shouted out his nickname.

[81] Finally, the black ute was a distinctive vehicle familiar to each of the three witnesses relied upon by the Crown. It was not in dispute that Mr Wiley owned a vehicle of that description and Ms Familton’s evidence about the partial registration

_{number clearly supported the conclusion that the vehicle was owned by Mr
Wiley.}

Mr Fairbrother accepted that the evidence of the sole defence witness did not necessarily exclude Mr Wiley as the assailant.

[82] We are satisfied there was sufficient evidence on which a jury could be satisfied beyond reasonable doubt that Mr Wiley was the offender.

[84] Mr Edwards was convicted on one charge of abducting a child after a jury trial before Judge Sharp and sentenced to three years imprisonment.⁶⁵He also pleaded guilty to two charges of male assaults female arising from two assaults on the child’s mother prior to the alleged abduction. The Crown case on the abducting charge was that Mr Edwards had taken the child away with intent to deprive the child’s mother of possession of the child in terms of s 210(1) of the Crimes Act 1961.

[85] The primary ground of appeal is that the Judge misdirected the jury that a “taking” could involve a continuing act. Under the CPA, this ground would fall within s 232(c). If established, there could be no doubt that an error of this type would necessitate a new trial since there could be no doubt the verdict could not be sustained. The jury would have approached its task on the basis of a material error of law. Mr Edwards also raised as a secondary ground that the failure of the Crown to state its case with particularity led to unfairness for the defence. Mr Pyke acknowledged on Mr Edwards’ behalf that when this ground of appeal was raised he did not have available to him a transcript of a discussion which took place between the Judge and trial counsel before the trial began. This substantially clarified the

[86] In August 2013 the child’s mother Ms W was living at an address in Auckland with her mother and two young children, M aged three and G aged two. Mr Edwards was not their father. Some years before, he had a brief relationship with Ms W which was renewed in July 2013. He stayed at Ms W’s address for four days prior to the weekend of 10 and 11 August. Initially, Ms W’s mother and both children were present. However, over the weekend in question, only Mr Edwards, Ms W and the younger child G were staying there. During the course of the weekend, Mr Edwards admitted assaulting Ms W on two occasions. Ms W’s evidence was that the first assault occurred on the Saturday evening after she accidentally kicked Mr Edwards during a play fight. She said Mr Edwards hit her a number of times and, when she tried to run outside, he dragged her back by her hair.

[87] The second assault occurred on the Sunday morning. Ms W said Mr Edwards was angry with her because she had hidden his cellphone. Mr Edwards slapped her across the face a number of times, grabbed a bottle of beer she was drinking and tipped the contents over her. He then hit her on the head with something hard. She fell to the ground but managed to get up and run outside to a nearby telephone box.

[88] Mr Edwards accepted he had hit Ms W but strongly denied her account of how that occurred. Mr Edwards’ version was that Ms W became angry when he pretended to be talking to another woman on his cellphone. She was self-harming by trying to cut her wrists using knives available in the house. He had slapped her only to stop her self-harming. Ms W categorically denied the suggestion that she had attempted to self-harm. She admitted only to an attempt to self-harm many years before, a fact she had revealed to Mr Edwards at that time.

[89] When she reached the telephone box on the Sunday, Ms W called 111. The conversation recorded by the police began at 12.44 pm. While she was doing so, Ms W’s evidence was that Mr Edwards came running towards her holding G. She said Mr Edwards “looked crazy”. By the expression on his face, she believed Mr Edwards was going to do something to her son. The police record of the 111 call

is revealing because it includes a record of what Ms W was saying to Mr Edwards when he came up to the payphone with the child. We set this out in full:

COMMS: What, what’s your name? CALLER: It’s [Ms W – Ms W]. COMMS: [Ms W] who?

CALLER: (sobbing and yelling in background) Give my fucken son back you (inaudible) (sobbing)

[90] Ms W’s evidence was that when Mr Edwards approached the telephone box, she ran out of the booth because she was scared he was going to bash her up. When Mr Edwards realised she was talking to the police, he ran off with G. He was moving away from her address. She ran to her address to wait for the police to arrive and did not see Mr Edwards again. She was not reunited with G until about

9 pm that evening after the police had located him in a small shed behind a house

[91] After receiving the 111 call, the police instituted a large-scale search involving door-to-door calling and the use of the police helicopter. Communication was established with Mr Edwards by text messaging. When G was eventually located about 7 pm on the Sunday Mr Edwards was not with him. Mr Edwards was not located for some 23 days and was then arrested.

[92] Mr Edwards gave evidence at trial describing the events which had taken place prior to Ms W’s 111 call. He described the events of the evening before in the terms we have already canvassed. He said Ms W had been drinking and had begun drinking again on the Sunday morning. She had gone outside for a cigarette while he and G remained inside. He sent G outside to his mother then heard him crying. He (Mr Edwards) went outside and saw G walking around by himself. He picked him up at the end of the driveway of the address and took him to look for Ms W. He saw her at the payphone, she was screaming as he approached and she ran around the back of the phone booth. He did not speak to her and thought it best to keep going. When asked why he did not leave the child there with Ms W he said she was hysterical and intoxicated and had tried to self-harm the evening before. Instinctively, he felt it was best to keep moving.

[93] He said he did not plan to kidnap G. Rather, they were going for a walk until his mother calmed down. He did not know the area and ended up at the residential property where G was later located. He then began to receive text messages from the police and from someone using the cellphone of Ms W’s sister. There was some confusion in the evidence about the timing of Mr Edwards’ receipt of text messages because Mr Edwards gave evidence that the texts were received in batches. For that reason, some texts were not received until some time after they had been sent. However, it appears to be clear that, after unsuccessful attempts by the police to telephone Mr Edwards, the police sent text messages to his cellphone expressing concern about G’s wellbeing and asking him to advise where G was.

[94] Mr Edwards accepted that he received the first three clusters of texts while he was at the rear of the property where he and G were. After he had received these texts, it began to rain and he took G into the shed, staying with him for shelter. His response to the text messages was that he wanted to know what was going on and he wanted to speak to Ms W. At no stage did he reveal where he and G were. He said he told the police he would drop the boy off once he had talked to Ms W. At intervals, the police helicopter had been circling overhead and he had concerns for his own safety. The police response had been that he could speak to Ms W when they were sure G was safe.

[95] It appears that Mr Edwards remained in the shed with G until about 6.30 pm when he escaped over a fence and disappeared. By then it would have been dark. The police described the weather as wet and bitterly cold. It appears that Mr Edwards and G were at the property for about five to six hours.

[96] Initially, Mr Edwards was charged under s 209 of the Crimes Act with unlawfully carrying G off without his consent with intent to cause him to be confined. The charge was subsequently amended to abduction under s 210 of the Crimes Act. The charge stated:

Phillip Layton Edwards, on or about 11 August 2013, at Auckland, with intent to deprive [Ms W] of the possession of [G], unlawfully took [G] away.

[97] Mr Pyke submitted there were insufficient particulars to fully and fairly inform Mr Edwards of the substance of the offence as required by s 17(4) of the CPA. However, we are satisfied there is no substance in that submission which Mr Pyke did not ultimately press with any vigour. Before the jury was empanelled, the Judge discussed certain issues with trial counsel. Defence counsel (not Mr Pyke) raised an issue about the distinction between a “taking away” and a “detention”. The latter is an alternative available under s 210(1) of the Crimes Act:

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person, unlawfully takes or entices away or detains the young person.

[98] After a lengthy discussion, the Crown prosecutor made it clear the Crown was not relying on detention. Rather, the Crown case was that the taking away occurred over a “continuum”, a period that commenced at the telephone box and ended at the point where Mr Edwards took the child into the shed. Defence counsel made it clear that Mr Edwards did not accept there could be a taking over a period of time such as the Crown alleged. Nevertheless, it is patently clear from the transcript of the discussions at that time that defence counsel understood the basis on which the Crown proposed to proceed. No complaint was made thereafter about any unfairness on that account.

[99] In closing the case for the Crown, the prosecutor submitted that Mr Edwards had taken G away with the necessary intention to deprive Ms W of possession of the child at the time Mr Edwards took the child away from the telephone box. Alternatively, if the jury were not sure about that it was submitted that, on Mr Edwards’ own version of events, he had received text messages to the effect that Ms W was worried about G before he took G into the shed. At that point, Mr Edwards was depriving Ms G of the possession of her son by declining to reveal G’s whereabouts when requested by the police until such time as he had spoken to Ms W. There was no excuse or justification for him continuing to take G.

[100] Finally the Crown submitted there was no basis in fact for Mr Edwards’ claim that, in good faith, he had a right to the possession of G in terms of s 210A of the Crimes Act.

[101] Although the defence ranged over a number of points, the essential defence was that Mr Edwards did not have the necessary intention to deprive Ms W of the possession of her son. Section 210A was also relied upon. Given his concerns for her state of mind and for G’s safety, he took G away until she had calmed down. If she rang him, they could all go home. If he had wanted to abduct the child, he would

have put G in his car and taken off. He accepted he should have left G at the driveway, jumped in his car and left but he did not want to leave G standing by himself and the situation had just got way out of control.

[102] At the close of the defence case there was a discussion with the Judge in chambers about the scope and duration of the “taking away” and how the Judge would direct the jury. The prosecutor sought confirmation that the Judge would direct the jury that the taking away could be a continuing act over the period from the telephone box to the shed. Defence counsel argued that, by the time Mr Edwards arrived at the other property, the taking away had ended. It was submitted the taking away had become a detention by then. The Judge ultimately accepted that a taking away is a continuing act which, in law, did not come to an end until the victim is released.

[103] The Judge was able to provide straightforward directions to the jury. Counsel had agreed on the following admission of facts in terms of s 9 of the Evidence Act

[104] The Judge defined two remaining issues the Crown must prove beyond reasonable doubt. These were expressed in a question trail and in the summing-up in these terms:

Are you sure that when Phillip Edwards took [G] away from his mother, Phillip Edwards did not do so in order to protect him because of his mother’s self-harming?

Are you sure that when Phillip Edwards took [G] away from his mother he did so intending to deprive her of possession of the child?

[105] Dealing with the element of the unlawful taking away of a child, the Judge said:

[13] Now, I am going to talk to you about the charge of abduction. An abduction, which is the name of this charge, is an intentional unlawful taking away of a child from the person that has their lawful care with intent to deprive that person of the possession of the child. Now, a taking away, which is acknowledged to have happened here, can be a continuous activity, but it will not be unlawful unless all of the necessary legal elements are present at one point. That can happen at any time along a continuum. The Crown is saying here that the taking away of the child actually happened at the phone box, but the Crown is saying that if you do not accept that is when Mr Edwards took the child away, you can find that he took the child away at any point right up until he entered the shed. Now I do not think I need to discuss with you why the Crown has decided that entering the shed is the cut-off point. It is not relevant. You just have to know that these are the two points of the continuum.

[14] So in this case, as I have said, the Crown alleges that that continuum is between Mr Edwards passing the phone box whilst he held [G] and entering the shed with him. Now, if you decided, for example, that Mr Edwards took [G] away from his mother at the phone box but, at that time, he did not intend to deprive his mother of [G], or if you are of the view that, at that point, Mr Edwards believed that the child needed protecting from his mother because of her self-harming, then that is not just the end of the case there and then. That does not mean that you automatically find the defendant not guilty, because you must examine all the rest of the evidence of what occurred along that timeline continuum right up until Mr Edwards and the child entered the shed, because the important thing is that all of the necessary elements have to align at one point. So there has to be a taking away combined with intent to deprive [Ms W] of her possession of [G], along with your being satisfied beyond reasonable doubt that, at that moment, Mr Edwards did not believe that [G] needed protecting. If he believed that [G] needed protecting, then that would be a lawful justification for his taking the child away.

[106] An addendum attached to the question trail was expressed in very similar terms.

[30] So the defence is that he never, up until the time he entered the shed, had any intention to deprive [Ms W] of the child; that he always, after he left the phone box until he entered the shed, believed that he was protecting the child because of his fear of the mother’s self-harming, and that his texts saying, “I want to talk to [Ms W],” “Get [Ms W] to call me,” indicate that he was happy to give the child back as long as [Ms W] would talk to him.

[108] The essence of Mr Pyke’s submission for Mr Edwards was that the Judge was wrong to have accepted the Crown’s proposition that a taking away for the purposes of s 210 of the Crimes Act was a continuing offence. Mr Pyke submitted that taking away a young person was a distinct and separate offence from detaining the young person. The taking away was complete at the moment when this first occurred and, to the extent G was under Mr Edwards’ possession thereafter, the proper charge was that Mr Edwards was detaining him.

[109] On the facts of the present case, Mr Pyke submitted that the taking away of G was complete when Mr Edwards left the area of the telephone box with him. It was at that point that the Crown was required to prove that Mr Edwards intended to deprive Ms W of the possession of G and to exclude Mr Edwards’ claim that he had a good faith right to the possession of G in terms of s 210A. At that stage, Mr Pyke submitted, Mr Edwards was entitled to rely on s 210A on the footing that he considered it was necessary to take the child away for his own safety having regard to Mr Edwards’ view of the mother’s hysterical state and her risk of self-harming. It was not open to the Crown to rely on the taking continuing up to the point where G was taken to the shed. It followed that the Crown was not entitled to rely on the formation of the necessary intent and the absence of a claim of good faith during the ensuing period up to the point where the child was taken into the shed. Finally, Mr Pyke submitted the Crown was not entitled to stipulate the period of the taking in the way that it did in this case.

[110] To the contrary, Mr Lillico submitted for the Crown that the Judge had correctly directed the jury in the way she did. What constituted a taking away for the purposes of s 210 was a question of fact and degree. It was artificial to treat the taking away as complete at an instant of time. Rather, the correct approach was to treat the taking away as a continuing offence. If the jury did not accept that the relevant intent and the absence of a good faith claim to a right to possession had been established at the telephone box, these elements could all occur at a later stage. On this footing, it was open for the jury to conclude that the Crown had proved all necessary elements to constitute the taking away (both physical and mental) at some

point during the period up to the time G was taken into the shed. In the Crown’s assessment, keeping G in the shed was better viewed as a detention from the point when that happened.

[111] It is unnecessary for us to dwell on the legislative history of s 210 which is discussed in detail by Richardson P in R v Tauiliili.⁶⁶It is enough to record that, in varying forms, New Zealand legislation has long made it an offence to take away or detain children with intent to deprive the parent or guardian from possession of the child. This has been so from the time the Criminal Code Act 1893 was enacted. As Richardson P found, s 210 (in the form in which it stood at the time Tauiliili was decided) was an amalgam of ss 229 and 230 of the Crimes Act 1908. Historically, this offence has developed separately from the offence of kidnapping (whether at common law or under statute). Kidnapping under English law is described as an aggravated form of false imprisonment.⁶⁷

[112] In 2005, ss 208 to 210 of the Crimes Act 1961 were repealed and the present ss 208 to 210A were substituted.⁶⁸The changes effected at that time are not material to the present issue. As presently enacted, ss 208, 209 and 210 all require proof that a person has been taken away or detained.⁶⁹Sections 208 and 209 create offences punishable by up to 14 years imprisonment. Section 208 (abduction for the purposes of marriage or sexual connection) makes it an offence to unlawfully take away or detain a person without his or her consent (or with his or her consent obtained by fraud or duress) with one of three alternative intentions linked to marriage or sexual connection. Section 209 (kidnapping) makes it an offence to unlawfully take away or detain a person without his or her consent (or with his or her consent obtained by

_{fraud or duress) and with one of three defined intentions. These are
holding the}

⁶⁷David Ormerod and Karl Laird Smith and Hogan’s Criminal Law (14th ed, Oxford University

person for ransom or service, causing the person to be confined or imprisoned, or causing the person to be sent or taken out of New Zealand.

[113] For the purposes of ss 208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.⁷⁰

(2) Every one is liable to imprisonment for a term not exceeding 7 years who receives a young person, knowing that he or she has been unlawfully taken or enticed away or detained with intent to deprive a parent or guardian or other person having the lawful care or charge of him or her of the possession of him or her.

(a) it is immaterial whether the young person consents, or is taken or goes or is received at his or her own suggestion; and

(b) it is immaterial whether the offender believes the young person to be of or over the age of 16.

210A People claiming in good faith right to possession of young person under 16

A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or section 210 because he or she gets possession of the young person.

(a) A young person under the age of 16 years has been unlawfully taken or enticed away or has been detained by the defendant.

(b) The defendant intended to deprive the parent, guardian or other person having the lawful care or charge of the young person of the possession of that person.

[117] There is no dispute that it was necessary for the Crown to prove the necessary intent and to exclude Mr Edwards’ claim to a good faith right to possession of G at the time he was taken away. Rather, the argument focused on when the taking away occurred and whether the taking could embrace an ongoing state of affairs.

[118] As s 210(3) makes clear, it is immaterial whether the young person consents to the taking or even suggests it. Nor is it material that the defendant believed the young person to be over 16.

[119] Unlike ss 208 and 209, s 210 does not require proof of an intention to interfere with or carry out any specified act to or with the person taken away or detained. All that is required is proof of an unlawful taking away or detention of the young child or young person with the intention of depriving the parent or guardian or other person of possession of the young person. Another way of putting this is that the focus of ss 208 and 209 is on the loss of liberty, harm or disadvantage to the person taken away or detained, while s 210 is concerned with depriving the parent or guardian or other person of the possession of the child to which they are lawfully entitled.

[120] In the context of s 210, a taking is to be interpreted as obtaining or getting possession of the young person. This is consistent with the language used in s 210A.

To take a young person away is to remove the child from the possession of the parent, guardian or other person having the lawful care or charge of him or her. To detain the young person means to place or keep him or her in confinement. We do not consider it is desirable or helpful to define these terms in any greater detail.

[121] The taking away or detention must be unlawful. The Crown must prove that the defendant had no lawful right to do what he or she did or any good faith right to claim a right to the possession of the young person.

Do the expressions “taking away” and “detaining” in s 210 constitute separate and

[122] Mr Pyke relied on this Court’s decision in R v Crossan in support of his submission that taking away or detaining the young person in terms of s 210 are separate and distinct offences.⁷¹Crossan was concerned with a plea of duplicity, the appellant being charged with an offence under s 226 of the Crimes Act 1908. This made it an offence to take away or detain against her will any woman or girl with intent to marry or carnally know her. The complaint was that the appellant had taken

a woman away from her home at a specific address to another specific address where he detained her against her will. Crucially, the indictment alleged the appellant had both taken away and detained the woman.

[123] This Court accepted the appellant’s argument that s 226 created separate and distinct offences.⁷²First, taking the woman away and second, detaining her. The first offence was held to be complete when the appellant took the woman away against her will. Having taking her away, he detained her against her will and this conduct constituted a new and different offence. However, for reasons not relevant for present purposes, the Court found that the indictment was not bad for duplicity.

[124] We accept the Crown’s submission that Crossan is distinguishable in that, unlike the present case, the indictment in Crossan alleged both a taking away and a detention, each attributed to different parts of the appellant’s conduct. On the facts,

_{there was a clear distinction between the taking away and the detention.
The Court’s}

focus was on the validity of the indictment, and not the elements of the offence. The issue of whether the taking away might continue did not arise for consideration.

[125] Mr Pyke also relied on the judgment of the English Court of Appeal in R v Reid.⁷³The appellant had been convicted of the common law offence of kidnapping. He had gone to the address where his wife was living, held a knife to her throat and threatened to kill her unless she returned to live with him. Out of fear of the consequences she complied with his demand. The principal point on appeal was whether a husband could be found guilty of kidnapping his wife. The Court

found that he could and dismissed the appeal. A secondary point argued on appeal was whether some secreting or concealment of the victim was necessary to constitute the offence of kidnapping. In the course of dealing with this point, Cairns LJ speaking for the Court, said:⁷⁴

We can find no reason in authority or in principle why the crime should not be complete when the person is seized and carried away, or why kidnapping should be regarded, as was urged by counsel, as a continuing offence involving the concealment of the person seized.

[126] We are not persuaded that these remarks assist the resolution on the point before us. They were made in the context of a discussion of a statement made in East’s Pleas of the Crown to the effect that:⁷⁵

The most aggravated species of false imprisonment is the stealing and carrying away, or secreting of some person, sometimes called kidnapping, which is an offence at common law.

[127] We are satisfied that the observations made by Cairns LJ were directed to the question whether some form of ongoing concealment was required for the common law offence of kidnapping. We do not view his observations as precluding the Crown’s proposition that a taking away may be viewed as a continuing state of affairs for the purposes of s 210.

[128] We find the authorities referred to by Mr Lillico to be helpful and persuasive. The point at issue was discussed in an insightful judgment of the New South Wales

Court of Criminal Appeal in Davis v R.⁷⁶The Court was considering an appeal by Mr Davis after conviction on three counts, one of which was for offending under s 86(2) of the Crimes Act 1900 (NSW). The legislation made it an offence to take or detain a person without consent with the intention of holding the person to ransom or obtaining any other advantage. The basic offence was treated as aggravated by, amongst other things, the victim being subjected to actual bodily harm. The facts were that, on the day in question, the appellant forced the complainant into the rear of her motor vehicle in a car park in Parramatta and then drove the vehicle to several different locations during the course of which he demanded to have sex with her and seriously assaulted her when she refused. The appellant then drove the complainant back to Parramatta in the vehicle and left the scene.

[129] Davis was concerned with an offence of aggravated kidnapping but its relevance for present purposes is the discussion of the terms “taking” or “detaining” a person. These terms were defined by s 86(7) to mean:

“detaining” a person includes causing the person to remain where he or she is.

[130] Despite the inclusion of definitions of these terms, the case remains instructive on the point at issue in this appeal. The trial was conducted on the basis that the taking of the complainant had started in Parramatta and continued throughout the period she was in the company of the appellant until their return to Parramatta. Just as in the present case, the indictment alleged a taking rather than a detention. The argument presented on behalf of the appellant was much the same as that raised in Mr Edwards’ appeal. It was submitted on his behalf that taking and detaining were separate and distinct offences. It was said that the taking had come to an end at one of the intermediate points along the journey and that the complainant

_{was detained thereafter. It was said further that the assault on the
complainant took}

place after the commencement of the detention and that he could not therefore be guilty of the offence of aggravated kidnapping which alleged only a taking.

[131] The prosecution in Davis argued to the contrary that a single offence is created by the section that might be committed in two, possibly overlapping, ways. Although the concepts of a taking away and a detention might be different, they were not so mutually exclusive that the conduct of an offender must fall into one or other category at any particular point in time. This would have the effect that the offence changes according to the varying factual circumstances in which the offender and the complainant are together.

[132] Delivering the judgment of the Court in Davis, Howie J found that the relevant section in the New South Wales legislation contained only one offence but it could be committed in one of two ways so far as the actus reus of the offence was concerned: by taking or detaining the victim. The Judge noted that every taking

would include a detention but not every detention would involve a taking.⁷⁷The

Court found that policy and practical considerations pointed against the appellant’s

What seems to be implicit in the appellant’s submissions is that an act cannot simultaneously constitute a taking and a detention. In a factual scenario such as arose in the present case, the argument is that the detention does not begin until the taking is complete. Such an interpretation would unnecessarily import into s 86 the artificial and arbitrary question of when a taking ends and a detention begins. The difficulties that this question raises are well illustrated in the present case: why, for instance, should the taking be said to be complete at the time the car left the car park rather than at the time the victim (allegedly) was pushed into the car? Why single out the leaving of the car park [at Parramatta] rather than, say, the leaving of the suburb of Parramatta? Other possible points in time could be singled out ad infinitum, which illustrates the fact that there is no rational basis for distinguishing one time from another, particularly in cases where the victim is transported repeatedly from one place to another rather than simply held in one place.

[133] Justice Howie went on to point out that, if the appellant’s submissions were correct, it would appear that he had committed a number of offences of taking and detaining the complainant at various stages of the journey. The Judge considered

_{whether the English Court of Appeal’s decision in Reid
or the decision of the}

Queensland Court of Criminal Appeal in R v Campbell and Brennan⁷⁹supported the proposition that a taking ceases to be a taking at the moment the kidnapper becomes criminally liable for the offence. That proposition was rejected in these terms:⁸⁰

The offence might at that moment be complete in law, because the taking has been completed for the purposes of proving the offence, but it is not necessarily complete in fact. Once it has been established that a person has been “taken”, in the sense that he or she has been compelled to go where he or she did not want to go, the “taking” continues until the compulsion ceases. It does not cease merely because the person has been taken for a certain distance or for a certain time or even because the kidnapper has ceased to physically move the victim and has commenced detaining that person in the one place. In a real sense, the kidnapper is taking the victim, that is causing the victim to accompany him or her, for the entire duration of the time, however long it is, that the victim is, as a result of the kidnapper’s conduct, involuntarily detained in a place that is not the place where the victim was first detained. The taking begins with the detention and asportation of the victim, and only ends when the victim is released or ceases to withhold consent to the detention.

[134] The Court concluded that the words “takes or detains” do not create two offences, but merely provide two ways of committing the offence.⁸¹That was not considered to deprive the term detaining of any work to do, because there could be a detention without a taking. On the facts, the taking commenced at Parramatta and continued until the appellant and the complainant returned to Parramatta. That was how the matter was placed before the jury and there could be no potential for

[135] A similar question came before the Supreme Court of Canada in R v Vu, again in the context of kidnapping.⁸²The victim had been kidnapped at gunpoint and held in captivity in three different houses in a suburb of Vancouver. Five people including the appellant were charged with kidnapping and unlawful confinement under ss 279(1) and (2) of the Criminal Code RSC 1985 c C-46. Forensic evidence connected the appellant to all three houses where the complainant was confined but the trial Judge found there was no evidence to place him at the scene of the initial

_{Relevantly, one of the issues was whether kidnapping was an ongoing
offence. The}

appellant submitted that the kidnapping ended the moment the victim was seized and carried away, at which point the offence for unlawful confinement began.

[136] The Supreme Court determined that the legislature intended to include the offence of unlawful confinement in the offence of kidnapping so as to capture, under the crime of kidnapping, the victim’s ensuing captivity. While the crime of kidnapping might be complete in law when the victim was initially apprehended and moved, the crime would not be complete in fact until the victim was freed.⁸³

Delivering the judgment of the Supreme Court, Moldaver J discussed the decision of

the New South Wales Court of Criminal Appeal in Davis, finding the reasoning to be persuasive.⁸⁴

[137] The approach taken in Davis is consistent with this Court’s decision in R v Smith.⁸⁵The appellant was appealing against his conviction on a charge under s 210 of the Crimes Act 1961 in the form in which it then stood. It was alleged that he had unlawfully taken away a girl aged 15 years with intent to have sexual intercourse with her. The facts disclosed that a 14 year old girl had gone willingly with the appellant in his car over an extended period of several days travelling to a

variety of destinations. The main point on appeal related to an alleged misdirection about whether the taking was unlawful. The Court noted that the substance of the offence in respect of the taking must be a matter of fact and degree.⁸⁶The Court’s observation in Smith was endorsed by this Court in R v Waaka in which the appellant was charged with taking away a woman with intent to have sexual intercourse contrary to s 208 of the Crimes Act 1961 as it then stood.⁸⁷The woman had been taken only a short distance in a comatose state. The appellant’s complaint was that the distance was too short to constitute a taking away. This Court cited Smith for the proposition that the taking must be a matter of fact and degree and agreed with the trial Judge’s view that the complainant had been taken from one place to another on the facts of the case.⁸⁸The Court also confirmed that the relevant intent (in that case

_{to have sexual intercourse with the woman) could be formed at any time
during the}

taking away.⁸⁹If the taking away commenced without the necessary intent, the intent could be formed during the taking away.

[138] Finally, we refer to this Court’s judgment in R v Hou where the appellant was charged under s 209 of the Crimes Act 1961 in the form it then stood on a charge of detaining without consent and with intent to confine.⁹⁰It was argued on the appellant’s behalf that the District Court Judge had misdirected the jury by referring in his summing-up to “carrying off” rather than “detaining”. The Crown case was that the complainant had been forced by another offender into a car owned and driven by the appellant. The appellant drove the car to several locations in Auckland during which demands for money were made. He was then forced out of the car and

assaulted. Eventually the appellant left the car at an address in Mt Albert Road and two other men who had been involved and the complainant drove back to Newmarket where the journey had commenced.

[139] This Court acknowledged that the Judge had referred on a number of occasions during the summing-up to the complainant having been carried off without consent rather than detaining without consent. However, the Court found that, in the circumstances of the case, there was really no difference between the two concepts.⁹¹

On the facts, the case was, in effect, a detention by carrying off.⁹²The Court also

found that it would have been sufficient for the Crown to have established a detention without consent with intent to confine at any stage of the journey.⁹³

[140] The preponderance of authority supports the Crown’s proposition that a taking away for the purposes of s 210 of the Crimes Act may continue in fact beyond the point where the defendant initially obtains possession of the young person. Whether a taking away has occurred and the length of time for which it continues is

[141] The length of time over which a taking away continues will depend on the circumstances. A taking away may be brief and may involve no great physical distance as demonstrated in R v Wellard in which the English Court of Appeal held that, for the purposes of kidnapping, it was sufficient for the victim to be carried away for less than 100 yards before being released.⁹⁴But in other cases, the taking away may extend for a considerable period of time and involve the victim being taken from place to place as occurred in Davis and in Hou.

[142] It is inappropriate and artificial to draw a bright line distinction between the concepts of taking away and detention since the two may be closely linked. As most clearly articulated in Davis and Hou, a taking away may well also amount to the victim being detained at the same time. That is not to say the distinction between the two concepts is immaterial since a person may be detained without being taken away as occurred in Tauiliili.⁹⁵There, a father had lawfully obtained possession of his daughter for the purposes of access but had detained her by refusing to return her at the end of the agreed access period.

[143] We accept too that taking away and detention are legally distinct for the purposes of s 210 whether they are treated as separate offences or as alternative ways of committing the crime of abduction.

[144] Factually, there may be a point of time at which a taking away ends and is thereafter more properly regarded as a detention. For example, the victim may be taken away to a particular place or destination and then confined at that place. While the journey to that place is continuing, it may be said that the taking away continues. If the victim is held or confined at that place thereafter, then he or she may be regarded as being detained.

[145] In the present case, Mr Edwards obtained possession of G at the telephone box but, in a real sense, the taking away continued thereafter at least to the point where he arrived at the house where the shed was located. According to

_{Mr Edwards’ account he did not know the area and was intending to
take the child to}

a beach. Not knowing where he was, he took G around the back of a house apparently chosen at random. He stayed there with the child out of sight until it began to rain. Then he and the child went into the shed to shelter where they stayed for some time before Mr Edwards decamped leaving G in the shed.

[146] We are satisfied it was open for the jury to conclude that the taking away continued up to the point when the child was taken into the shed. Up to that time, it was entirely possible that Mr Edwards would have taken the child somewhere else but for the intervention of the police and the onset of rain.

[147] It was also open for the jury to accept that from the time Mr Edwards began receiving text messages inquiring about the child’s whereabouts and welfare (prior to entering the shed), his refusal to cooperate until he had spoken with Ms W demonstrated an intention to deprive her of possession of the child as well as showing the absence of a good faith claim to a right to the possession of the child. The Judge therefore correctly directed the jury that so long as they were satisfied that all the necessary elements aligned at some point up to the time Mr Edwards entered the shed with G, it was open for them to convict the appellant. That is, that the taking continued during that period; Mr Edwards intended to deprive Ms W of possession of G; and Mr Edwards did not have a good faith right to claim possession of G.

[148] We are satisfied that the Crown was entitled to specify the period it relied on for the purpose of establishing the taking away. It was a matter for the jury to determine whether there was a taking away and, if so, how long it continued. In deciding whether to charge an offender with a taking away or detaining, the Crown will obviously consider which of these options best captures the essence of the criminality alleged on the facts of the case. In some cases, where doubt exists, it may be preferable for charges of taking away and detaining to be brought as alternatives.

[150] We make an order prohibiting publication of the name, address, occupation or identifying particulars of the person described in this judgment as W pursuant to s 202 of the CPA in order to protect the identity of G.

BETWEEN	ANTONI KARL WILEY Appellant
AND	THE QUEEN Respondent

Court of Appeal of New Zealand

Wiley v R [2016] NZCA 28; [2016] 3 NZLR 1; (2016) 27 CRNZ 668 (24 February 2016)