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Sena v Police [2018] NZCA 203 (19 June 2018)

Last Updated: 28 June 2018

JUDGMENT OF THE COURT

Application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

[1] Following a judge-alone trial, Judge Henwood found Mr Sena guilty on five charges of assaulting his children.^[1] She refused to discharge him without conviction.^[2]
[2] Downs J dismissed Mr Sena’s appeals against both conviction and sentence.^[3]
[3] Mr Sena now seeks leave to bring a second appeal in relation to his conviction only. That requires him to establish either a matter of general or public importance, or a risk that there will be a miscarriage of justice if the appeal is not heard.^[4] It is necessarily the latter ground upon which reliance is placed here.

Background

[4] The complainants were Mr Sena’s son (K) and his daughter (S) who were respectively aged between six and seven, and 10 and 11, at the relevant time. K and S lived with their mother, Ms H, but would often visit Mr Sena. It was during those visits that the offending occurred. The allegations on which the convictions were based were that:

• (a) Between August and December 2014 Mr Sena regularly pinched the children when he considered they had been disobedient.
• (b) In December 2014, while playing hide and seek with the children, Mr Sena accidentally opened a door onto K’s toe. When K began to cry Mr Sena became angry and slapped K twice across the face.
• (c) On 9 January 2016 Mr Sena pinched K on the arm at least twice, causing a bruise which Ms H later photographed. Mr Sena also pinched S on the same day.

[5] As well as the charges on which Judge Henwood found Mr Sena guilty, she found him not guilty in relation to a charge involving an allegation that he had slapped K on 9 January 2016. Although her decision is lengthy, in essence her conclusions were based on an assessment that S’s evidence (who had also witnessed the offending against K) was credible and reliable.^[5]

The appeal

[6] In his submissions in support of Mr Sena’s application for leave, Mr Jones QC submitted a risk of miscarriage existed because of what he said was Downs J’s failure to grapple with the deficiencies in Judge Henwood’s factual analysis, including her (alleged) disregard for:

• (a) contemporaneous documentary evidence (in the form of email messages) which are said to be supportive of Mr Sena’s position;
• (b) evidence from members of Mr Sena’s family who had been present in the house when the offending was said to have occurred and had reported neither seeing nor hearing anything untoward; and
• (c) Ms H’s alleged motive to lie (and to coach the children), namely her desire for custody of the children.

[7] This line of attack was necessarily based on the further submission that
Downs J erred in his own approach to the appeal, in that he failed to undertake his own assessment of the evidence at trial.
[8] Mr Jones also contended that there was a risk of miscarriage because Downs J’s assessment that Judge Henwood had given adequate reasons for her verdicts was wrong.

Discussion

Failure to undertake a fresh assessment of the evidence

[9] In an appeal against conviction after a judge-alone trial, the appellate court must consider whether the “Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”.^[6] This Court has recently summarised the appropriate appellate approach as follows:^[7]

[13] This appeal essentially attacks the factual findings made by a Judge sitting alone in accordance with the appeal ground set out in s 232(2)(b) of the Criminal Procedure Act 2011. The appellant must therefore demonstrate that the Judge's assessment of the evidence was attended by such error that there is “a real risk” the outcome of the trial was affected.

[14] As this Court has noted in Roest v R factual findings that form the basis of a verdict reached by a judge sitting alone are to be treated on appeal as the equivalent of a jury verdict. So where an appeal amounts to a challenge to those findings, the principles in R v Owen will apply accordingly. It is well to repeat those:

(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of honesty and reliability of the witnesses is a classic example.

(c) The weight to be given to individual pieces of evidence is essentially a jury function.

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f) An appellant who invokes s 385(1)(a) [now s 232 of the Criminal Procedure Act] must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowances for the points made above, the verdict should nevertheless be set aside.

[15] It is not for this Court to set aside a verdict on the basis that we disagree with the Judge's factual assessment. Something more is required to meet the “real risk” test.

(footnotes omitted)

[10] We are, accordingly, unable to accept Mr Jones’ submissions on this ground. Mr Sena was not entitled to Downs J’s “own assessment of the evidence”. Rather, the function the Judge undertook — that of review — is precisely what the relevant authorities require.
[11] Nor do we consider that any criticism can be levelled at the way in which Downs J conducted that review. It seems to us to be indisputable that there was evidence before Judge Henwood which, if accepted, proved the elements of the alleged offending. The only issue, therefore, was whether it was open to her to accept it.
[12] Downs J traversed the Judge’s evidential observations and the reasons given for her verdicts at some length. He concluded that all were available to her. He also carefully addressed and dismissed, with reference both to the evidence and the Judge’s findings, an array of complaints Mr Sena made about the evidence in relation to each charge. We agree with counsel for the Crown, Mr Carruthers, that nothing further was required.
[13] Given our view that Downs J’s approach to the evidence on appeal was correct it cannot be said that a risk of miscarriage arises.

Failure to give adequate reasons

[14] As Downs J noted, the relevant authorities make it clear that decisions given by judges sitting alone at trial should include a concise account of the evidence and a plain statement of the reasons for the findings reached.^[8] Put simply:^[9]

There should be enough to show that [the Judge] has considered the main issues raised at the trial and to make clear in simple terms why [the Judge] finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt.

[15] Downs J’s view that Judge Henwood’s decision met these requirements was plainly correct. She summarised the evidence at length. Her summary included reference to certain key propositions put to the prosecution witnesses in crossexamination, as well as the relevant aspects of the evidence given by Mr Sena and other defence witnesses. The Judge recorded that she had considered defence counsel’s submissions, and clearly understood Mr Sena’s principal line of defence, namely that Ms H had pressured the children into making false allegations.^[10] And she explained why she preferred the material aspects of the evidence given by the prosecution witnesses over the material aspects of the evidence given by Mr Sena and the defence witnesses. Her reasons included that:

• (a) although K struggled with memory and clarity, S, who was assaulted and who witnessed some of the assaults on K, was an honest, intelligent and reliable witness;^[11]
• (b) Ms H was also an honest and reliable witness who, rather than having indoctrinated her children, was in fact “doing her best to protect her children but not to transgress the law in any way”;^[12]
• (c) Ms H had taken a photograph of the bruise to K’s arm, allegedly the result of a pinch by Mr Sena;^[13] and
• (d) Mr Sena had previously been warned for slapping K, and appeared to have had issues with anger.^[14]

[16] While the Judge did not deal specifically with all the matters the defence had raised at trial, we agree with the Crown that she did not need to. Not only is that not the relevant requirement, the signal point is that the prosecution’s case turned on assessments of credibility. Therefore, as Downs J remarked:^[15]

... [a]cceptance of the children’s testimony was co-terminus with proof of guilt. If their evidence on the essential matters was accepted beyond reasonable doubt, Mr Sena’s evidence could not also be true.

[17] Given that the Judge had explained why she accepted the relevant portions of the children’s evidence, there was no need for her to go through and explain why she was unpersuaded by the various strands of Mr Sena’s defence.
[18] We also agree with Mr Carruthers that the care taken by the Judge is demonstrated by the fact that she did not simply find Mr Sena guilty on all charges. As noted earlier, the Judge found S to be both credible and reliable as a witness but could not be sure of K’s reliability. And so she found Mr Sena not guilty of slapping K, because the slap was not witnessed by S or any of the other adults present.^[16]

Result

[19] For the reasons we have given, we are not persuaded that Mr Sena has established a risk of miscarriage here. Leave to bring a second appeal is declined accordingly.

Solicitors:
Crown Law Office, Wellington for Respondent

^[1] R v Sena [2017] NZDC 3564. The charges were laid under s 194(a) of the Crimes Act 1961.

^[2] R v Sena [2017] NZDC 15091. Mr Sena was sentenced to 12 months’ supervision and l00 hours of community work.

^[3] Sena v Police [2017] NZHC 2319.

^[4] Criminal Procedure Act 2011, s 237.

^[5] K was less able to remember the events in question.

^[6] Criminal Procedure Act, s 232(2)(b).

^[7] Gotty v R [2017] NZCA 528.

^[8] Sena v Police, above n 3, at [24].

^[9] R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA) at 237–238.

^[10] R v Sena, above n 1, at [47].

^[11] At [69].

^[12] At [61].

^[13] At [68].

^[14] At [62]–[63].

^[15] Sena v Police, above n 3, at [56].

^[16] R v Sena, above n 1, at [71].