Nuku v District Court at Auckland [2017] NZCA 471 (20 October 2017)

Last Updated: 26 October 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA601/2016 [2017] NZCA 471
BETWEEN	KARL TEANGIOTAU NUKU Appellant
AND	THE DISTRICT COURT AT AUCKLAND First Respondent THE ATTORNEY-GENERAL Second Respondent

Hearing:	13 September 2017
Court:	Cooper, Winkelmann and Clifford JJ
Counsel:	Appellant in person No appearance for First Respondent I R Murray for Second Respondent
Judgment:	20 October 2017 at 3 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] The appellant, Karl Nuku, faced trial, together with Mikhail PandeyJohnson, before Judge Collins and a jury in the District Court at Auckland on charges of aggravated robbery and unlawful possession of firearms. Mr Nuku and Mr PandeyJohnson were each found guilty on both charges. Mr Nuku was sentenced to eight and a half years’ imprisonment and Mr PandeyJohnson to 12.^[1]
[2] Mr Nuku subsequently appealed his conviction and sentence to this Court, and applied to the High Court for judicial review of aspects of the way his trial was conducted in the District Court. This Court has already dealt with Mr Nuku’s appeal against conviction and sentence, dismissing it.^[2]
[3] This appeal is against the High Court’s rejection of Mr Nuku’s application for judicial review.^[3]
[4] Mr Nuku’s appeal was filed out of time. As counsel for the Crown, Mr Murray, properly observed, there appear to be valid reasons for this. We therefore grant Mr Nuku’s application for an extension of time to appeal.

The High Court decision

[5] In his judicial review proceedings Mr Nuku raised an issue of unfairness (relating to Judge Collins’s decision to allow certain evidence to be admitted) and another of illegality (relating to the way the Judge had dealt with his unsuccessful application for discharge under s 347 of the Crimes Act 1961 at the end of the Crown case). Only the latter is raised in this appeal. As to that, Mr Nuku says Venning J was wrong to conclude Judge Collins had not erred in material ways when, after he had heard from Mr Nuku in support of his s 347 application, he said he did not need to hear from the Crown and when, having said he would give written reasons for that decision later, Judge Collins failed to do so.
[6] In dismissing Mr Nuku’s application for review, Venning J reasoned:

• (a) The substantive issue, of the sufficiency of the evidence to support Mr Nuku’s conviction, had been dealt with on appeal to this Court.^[4] To that extent, Mr Nuku’s review application was an abuse of process.^[5]
• (b) There was no requirement to hear from an opposing party where an application was being declined.^[6] Thus, while the Judge was obliged to hear Mr Nuku’s s 347 application, he had no obligation to hear from the Crown unless he determined it was necessary to do so.
• (c) It was best practice for a Judge to give written reasons.^[7] Here, however, the basis on which Judge Collins declined Mr Nuku’s s 347 application was abundantly clear from the transcript: that is, the strong evidence linking Mr Nuku to the crime.^[8]
• (d) Further, that issue was moot.^[9] The Court of Appeal had considered the strength of the evidence (the supposed lack of which had been the reason for the s 347 application in the first place) and concluded that it was overwhelmingly strong.^[10] That removed any prejudice Mr Nuku could possibly have suffered from the Judge’s failure to give reasons.

Appeal

[7] Mr Nuku’s appeal is based on the following propositions:

• (a) Venning J failed to conduct the judicial review application in an appropriate matter, instead conducting it as a de novo appeal hearing. In doing so, Venning J failed to consider the substantive procedural error at trial.
• (b) Section 347 reflects an inherent duty to consult. Section 347(1)(b) states that the Judge may grant an application “after giving both the prosecutor and the accused reasonable opportunity to be heard on the matter”. Alternatively, by virtue of common practice, there is a legitimate expectation that each party will be heard on the matter. The Judge’s failure to hear from both parties rendered his decision ultra vires.
• (c) Likewise the District Court Judge erred in failing to provide reasons for his decision not to discharge Mr Nuku. Open justice requires reasons. Failure to record the reasons also means the Court’s criminal record was incomplete. Venning J erred in finding otherwise.
• (d) The Court of Appeal in its criminal jurisdiction had no jurisdiction to deal with s 347 applications. Thus Mr Nuku’s application for judicial review in the High Court was not moot.
• (e) Moreover, Venning J made comments adverse to Mr Nuku. Those comments need to be quashed on appeal by a grant of certiorari.

[8] Mr Nuku filed comprehensive submissions in support of his appeal. Mr Nuku made a first principles argument, based on the distinction between the role of this Court when considering an appeal against conviction and the role of the High Court in its judicial review jurisdiction. In doing so Mr Nuku emphasised, as is indeed the case, that judicial review generally focuses on process, while a conviction appeal focuses on the merits. The process error, of failing to hear from the Crown, not only breached the specific procedural requirements of s 347, but also represented a failure to accord with public law requirements for consultation. Thus, as we understood the argument, the decision of this Court dismissing Mr Nuku’s appeal against conviction was no answer to his High Court application for judicial review.
[9] Mr Nuku placed the issue of the Judge’s failure to provide reasons in the context of the developing jurisprudence on the importance of judges providing reasons for maintaining public confidence in the judicial system and providing substantial procedural fairness. Without reasons, rights of appeal will be frustrated.
[10] Mr Nuku cited an impressive and extensive range of authorities as regards both those matters.

Analysis

[11] It is a fundamental principle of law that a procedural error will not of itself require, in the judicial review context, the quashing of the relevant decision or, in the context of a criminal appeal against conviction, the appeal to be allowed. In judicial review, the High Court has, not withstanding an identified process error, an important discretion as to whether to grant relief.^[11] In criminal appeals, the question is whether any particular error has given rise to a miscarriage of justice: that is, whether absent the error there was a real possibility that a more favourable verdict may have been returned.^[12] In other words, the courts take a substantive, not a formalistic, approach to questions of procedural error.
[12] Given that important principle, we are satisfied this appeal must be dismissed. We can explain our reasons for that conclusion succinctly.
[13] The provision under which a defendant could, at the time Mr Nuku stood trial, apply during trial to be discharged because of an insufficiency of evidence was found in s 347(3) of the Crimes Act:^[13]

[T]he Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.

[14] The well-established test a judge applies when considering an application to discharge a defendant under s 347 is whether there is not sufficient evidence upon which a properly instructed jury, acting reasonably, could find the defendant guilty.^[14]
[15] There was, and is, no right of appeal against a decision dismissing such an application. There are a number of reasons for that. Most importantly, and as a matter of principle, where a judge declines such an application the charge is left with the jury. If convicted, a defendant may then appeal on the basis that there was insufficient evidence for the jury’s verdict. That right of substantive appeal effectively involves the review of the decision of the trial judge on that application. It is that very right which Mr Nuku unsuccessfully exercised.
[16] More particularly, Mr Nuku sought to ground his judicial review challenge on the direction found in s 347(1)(b) of the Crimes Act that refers to the Judge making his decision “after giving both the prosecutor and the accused reasonable opportunity to be heard on the matter”. Section 347(1) applies on committal for trial. It is in those circumstances that Parliament saw fit to provide some procedural guidance. Once the trial is underway, the Judge is left to deal with the question of discharge at his or her discretion. Obviously, as is in all things, the Judge needs to be fair.
[17] The opportunity to be heard is a fundamental requirement of fairness for both sides. Mr Nuku’s interest was in being heard through his trial counsel (Mr Wimsett). Mr Nuku does not allege that he was not heard. If the prosecutor had a material concern that the Judge may have overlooked some aspect of Mr Nuku’s application, we have no doubt he would have taken the opportunity provided by the Judge’s comment to him to address the Judge.
[18] We are therefore satisfied Venning J reached the correct decision on this aspect of Mr Nuku’s judicial review application.
[19] The second ground of Mr Nuku’s appeal relates to the developing jurisprudence on obligations of judges to give reasons. We note first that, on current authority,^[15] there is no absolute rule that reasons must always be provided for judicial decisions. Mr Nuku suggested, picking up on observations of the Chief Justice in Lewis v Wilson & Horton Ltd,^[16] that this was an appropriate opportunity for this Court to review that authority.
[20] We are satisfied that this is not that opportunity. Moreover, we are satisfied from the record of the exchanges between Judge Collins and Mr Wimsett that the Judge’s reasons for declining Mr Nuku’s discharge application were clearly communicated to, and understood by, Mr Wimsett.
[21] At the hearing of this appeal, Mr Nuku raised a substantive argument which he had not made in the High Court. At the time Mr Wimsett made the application for discharge, the Crown had not — Mr Nuku said — specified which approach to party liability it was taking as regards Mr Nuku on the aggravated robbery charge. That, Mr Nuku explained to us, was why he thought the Judge should have heard from the Crown. We acknowledge the law on parties can be complex. We are satisfied, however, that Mr Wimsett had clarified that point with Judge Collins when he made his submissions. That is, immediately upon Mr Wimsett indicating he was about to make a s 347 application, Judge Collins explained to Mr Wimsett the basis upon which he anticipated instructing the jury on the party issue. He said:

... [I]f the matter is to go to the jury I would be constructing the question trail in such a way that if the jury found Mr PandeyJohnson not guilty they would have to then find Mr Nuku not guilty but if the jury was satisfied beyond reasonable doubt that Mr PandeyJohnson was involved then the issue would be for them that they are satisfied beyond reasonable doubt that Mr Nuku had done something intentionally for the purpose of providing assistance and had actually provided actual assistance so I suppose where my thinking has developed, why would it be wrong for the jury to conclude that, sorry, put the other way. Why is it that this jury could not conclude that by merely being on the inside, as an ally, Mr Nuku emboldened Mr PandeyJohnson and the other intruder to do what he did?

[22] There followed a discussion between the Judge and Mr Wimsett as to the adequacy of that approach. Mr Wimsett’s concern was the absence of a reference to the Crown proving Mr Nuku knew of the aggravating presence of the firearm during the robbery. The outcome of that discussion was that, on the charge of aggravated robbery, the Judge would include in his directions that the jury had to be sure Mr Nuku knew a firearm was to be involved. Mr Wimsett accepted that was the correct approach (whilst still contending that there was not sufficient evidence for it to go to the jury).
[23] There was no ambiguity or uncertainty as to the approach which would be taken on the party issue, such that Mr Nuku was prejudiced by the Crown not explicitly addressing that point in the context of the s 347 application.
[24] We are therefore satisfied that Venning J was also correct when he declined this aspect of Mr Nuku’s application for judicial review.
[25] We mention one final matter. In his decision, Venning J observed:

[22] Mr Nuku criticised the Court of Appeal for dealing with the issue in a “cavalier way”, but his remedy for such a complaint was to seek leave to appeal to the Supreme Court rather than pursuing this judicial review. In making that observation I make it clear to Mr Nuku I do not consider there is any merit in his criticism.

[26] Mr Nuku was concerned that the Judge’s use of the word “criticism” implied that Mr Nuku may have acted intemperately, or without proper respect to the Court, when advancing his submissions. We are satisfied that is not what Venning J intended. Rather, he was recording, as he would as regards any counsel’s submissions, the substance of the legal point Mr Nuku was making.

Result

[27] The application for an extension of time to appeal is granted.
[28] Mr Nuku’s appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Nuku DC Auckland CRI-2011-443-15, 10 June 2014.

^[2] Nuku v R [2016] NZCA 179 at [29].

^[3] Nuku v The District Court at Auckland [2016] NZHC 2237.

^[4] At [20].

^[5] At [23].

^[6] At [24].

^[7] At [26].

^[8] At [26].

^[9] At [29].

^[10] At [29].

^[11] Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 136 — an error may not be “significant enough ... to lead a reviewing court to intervene”.

^[12] Wiley v R [2016] NZCA 28 at [27].

^[13] The equivalent procedure is now found at s 147 of the Criminal Procedure Act 2011.

^[14] Parris v Attorney-General [2004] 1 NZLR 519 (CA), now codified in Criminal Procedure Act, s 147(4)(c).

^[15] R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644 (CA) at 649.

^[16] Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 (CA) at [85].