Home | Databases | WorldLII | Search | Feedback Court of Appeal of New Zealand

D'Esposito v Ministry for Primary Industries [2019] NZCA 518 (24 October 2019)

Last Updated: 31 October 2019

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] On 20 June 2017 Judge Henwood in the District Court convicted the applicant, Mr D’Esposito, on one charge of allowing a named fishing vessel to be put to sea without an observer on board contrary to s 224 of the Fisheries Act 1996.^[1] Mr D’Esposito appealed to the High Court. On 25 June 2018, Ellis J quashed the conviction but, pursuant to s 234(2) of the Criminal Procedure Act 2011 (the CPA), substituted a conviction for an offence under s 246 of the Fisheries Act.^[2]
[2] Mr D’Esposito wishes to pursue a second appeal against conviction in this Court. Under s 237 of the CPA, leave is required. The application is opposed by the respondent, the Ministry for Primary Industries (the MPI), on the basis that no matter of general or public importance arises, and neither will a miscarriage of justice occur if the appeal is not heard. The respondent says Ellis J, in substituting a conviction for an offence under s 246, correctly applied the provisions of s 234 of the CPA and carefully considered the evidence.

Factual background

[3] Mr D’Esposito is the managing director of two companies, Esplanade No 3 Ltd (Esplanade) and Danielle Fishing Enterprises Ltd (Danielle Fishing). On 9 July 2014, the MPI issued a notice of intention to place an observer on the fishing vessel, the Danielle, for its first departure after 14 July 2014. The Danielle fished on a permit held by Esplanade. Mr D’Esposito received the notice in his capacity as director of Esplanade and as service on that company. Ellis J found the notice was properly served on Danielle Fishing, though that company was never charged.^[3]
[4] The Danielle was put to sea on 19 July 2014 without an observer on board. As a result, Mr D’Esposito, Esplanade and two other parties (who are not relevant for present purposes) were charged with offences under the Fisheries Act. In the District Court, Judge Henwood dismissed the charge against Esplanade because it had not been established it was the owner of the Danielle under the terms of s 224(1) of the Fisheries Act.^[4] Mr D’Esposito was convicted of an offence against s 224(2).^[5]
[5] Judge Henwood was satisfied that Danielle Fishing was the owner and operator of the Danielle and Mr D’Esposito was a director of the company.^[6] He had failed to take all reasonable steps to prevent the Danielle being put to sea after receipt of the notice from the MPI.^[7] Although Mr D’Esposito was convicted of an offence under s 224(2), it seems that the Judge had relied on s 246 of the Fisheries Act as a deeming provision.^[8]
[6] Mr D’Esposito appealed to the High Court. Between the hearing of the appeal and delivery of the judgment of Ellis J, this Court delivered its judgment in D’Esposito v Ministry for Primary Industries in which it held that s 246 creates an independent offence requiring distinct charging.^[9] In the light of that decision, and in the absence of any challenge by the MPI to Judge Henwood’s finding that direct liability under s 224 was not made out against Mr D’Esposito, Ellis J quashed the conviction.^[10]
[7] Having quashed the conviction, Ellis J went on to consider whether it was appropriate to exercise the power, available on appeal under s 234 of the CPA, to substitute a conviction against Mr D’Esposito for an offence under s 246 of the Fisheries Act.^[11] The Judge was satisfied that Judge Henwood was herself satisfied to the necessary standard of proof of the facts necessary to convict Danielle Fishing of an offence against s 224, and that Mr D’Esposito had committed an offence against s 246.^[12] Ellis J was also satisfied there was no “genuine risk of prejudice” arising from the substitution of a s 246 conviction.^[13]

Proposed arguments of applicant

[8] Mr Squire QC sought to advance two arguments, should leave to bring a second appeal be granted. The first concerns the fact that Ellis J, having quashed the conviction in the District Court, decided to exercise the power under s 234 of the CPA to direct a conviction for a different offence.
[9] The second ground is that there has been a miscarriage of justice. It is said Mr D’Esposito should not have been convicted of an offence against s 246 of the Fisheries Act based on first available evidence and second on the structure of that Act where an offence has been committed in respect of a fishing vessel.

The leave provisions

[10] Mr D’Esposito seeks leave to bring a second appeal against his conviction in the High Court under s 237 of the CPA. Section 237(2) provides that this Court “must not” grant leave unless satisfied that either: (a) the appeal involves a matter of general or public importance; or (b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[11] This Court in McAllister v R held that the threshold for leave is a high one.^[14] Under the first limb of s 237(2), the test will be met where the proposed appeal gives rise to an issue of “general principle or of general importance in the administration of the criminal law by the Courts”.^[15] The question must have broad application beyond the circumstances of the particular case.^[16] The threshold for the second limb of showing a miscarriage of justice is similarly high. Not every error will give rise to a miscarriage.^[17]

Our analysis

The substitution issue

[12] Under s 234 of the CPA, an appellate judge has power, upon the quashing of a conviction for an offence (here under s 224 of the Fisheries Act), to direct the conviction for a different offence, including an offence the trial judge could have substituted. For substitution to occur in this case, Ellis J needed to be satisfied that:

• (a) Mr D’Esposito could have been found guilty at trial (for the s 224 offence), of a different offence, namely, an offence against s 246 of the Fisheries Act; and
• (b) the trial Judge in the District Court must have been satisfied of facts proving Mr D’Esposito was guilty of the offence against s 246.

[13] As Mr Squire correctly submitted, the term “satisfied” is used twice in s 234(2) of the CPA. First it governs the degree of conviction the Judge must have in relation to the requirements specified in both s 234(2)(a) and (b). Second it is referable to the particular issue in paragraph (b) whether the findings of the trial Judge in relation to the offence in respect of which the appeal has been allowed necessarily encompass factual findings which prove the substituted offence.
[14] Mr Squire then submitted the interpretation of the word “satisfied” in s 234(2) of the CPA raises a question of general or public importance on the basis that on the two occasions it is used in s 234(2), it means “satisfied beyond reasonable doubt”, requiring the appeal court to be satisfied beyond a reasonable doubt that the trial Judge found proved facts which themselves prove beyond a reasonable doubt each component of the substituted offence.
[15] For the respondent, Mr Burston disagreed and submitted such an approach would introduce an anomalous interpretation of “satisfied” which would unduly complicate the application of s 234 in particular cases. Mr Burston submitted the meaning of “satisfied”, particularly in the context of criminal procedure, is well established by the decisions of this Court.
[16] Section 234(2) of the CPA provides as follows:

(2) The first appeal court may direct that a judgment of conviction for a different offence (offence B), including an offence that the trial court could, in accordance with section 136(1), have substituted for offence A, be entered if satisfied that—

(a) the person could have been found guilty, at the person’s trial for offence A, of offence B; and

(b) the trial judge or the jury, as required, must have been satisfied of facts that prove the person guilty of offence B.

[17] The starting point for consideration of the meaning of “satisfied” is the decision of this Court in A (CA255/2009) v R which held there was no reason to depart from the well‑‑established view that:^[18]

... the word “satisfied” in legislation invites a Judge to undertake an evaluation of all relevant matters and reach a judgment as to whether or not he or she is satisfied.

[18] In that case the statutory context in which the word “satisfied” was used was s 361D of the Crimes Act 1961, which provided a power to direct that long and complex trials be heard by a judge alone. The Court expressly rejected the suggestion that “satisfied” implied any onus or standard of proof, rejecting a submission that the Judge must reach at least a clear conclusion “beyond a balance of probabilities” before the relevant criteria were met.^[19]
[19] This Court in R v Leitch had previously considered the word “satisfied” in relation to preventive detention legislation.^[20] There the Court stated:^[21]

The need to be “satisfied” calls for the exercise of judgment by the sentencing Court. It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt. As this Court said in R v White (David) [1998] 1 NZLR 264 at p 268 with reference to s 75(2), “The phrase ‘is satisfied’ means simply ‘makes up its mind’ and is indicative of a state where the Court on the evidence comes to a judicial decision. There is no need or justification for adding any adverbial qualification ...”.

[20] The approach in A (CA255/2009) v R was also endorsed by this Court in McAllister v R.^[22] What the Judge is required to do when s 234(2) of the CPA speaks of being “satisfied” is to carry out a judicial evaluation or, as was said in R v Leitch, undertake an exercise of judgment.^[23]
[21] The problem with Mr D’Esposito’s contention is that it involves reading the phrase “beyond reasonable doubt” into s 234(2) when this is unnecessary. Section 234(2)(b) states, after the words “must have been satisfied of facts”, “that prove the person is guilty”. It does not need to say “that prove beyond reasonable doubt that the person is guilty” because that is the applicable standard of proof.
[22] For the above reasons, we are satisfied that this first issue raises no matter of general or public importance. The meaning of “satisfied” is well established by the authorities to which we have referred. There is no need for the issue to be relitigated with a view to introducing into its application complicating notions of burdens or standards of proof.

Miscarriage of justice

[23] Mr D’Esposito also wishes to argue that a miscarriage of justice will occur for two reasons. First, Ellis J wrongly applied s 234 of the CPA. Second, in any event, Mr D’Esposito could not be liable under s 246 of the Fisheries Act because Danielle Fishing was not capable of committing an offence under s 224 because it was not the “registered” owner of the Danielle.
[24] For the respondent, Mr Burston submitted no miscarriage of justice occurred on either basis. We will now address both of the grounds advanced by Mr D’Esposito.
[25] First is the question whether Ellis J could have been properly satisfied that Mr D’Esposito could have been found guilty of an offence under s 246 of the Fisheries Act.
[26] Examining the approach of Ellis J, it is apparent that she applied both s 234(2) and s 136(1) of the CPA as she was required to do. This involved being satisfied, in the orthodox use of that word, not only that the elements of a direct charge under s 246 of the Fisheries Act were proved in the District Court, but also that there would be no retrospective prejudice to the defence of Mr D’Esposito arising from the substitution.^[24] Ellis J noted:

[41] As to the first, it is clear from her reasons that Judge Henwood did consider the operation of s 246 and essentially concluded that the elements of that section were made out. That is unsurprising because as noted by the Court of Appeal, viewing s 246 as creating a distinct offence rather than a deeming provision “... does not alter the substantive elements that must be proved. They remain entirely unchanged”.

(Footnote omitted.)

[27] We agree with Mr Burston’s submission that s 234(2)(b) of the CPA requires only that the High Court (as the first appeal court) be satisfied the trial Judge “must have been satisfied of facts” that prove the guilt of the defendant on the substituted offence. This inevitably includes facts necessary to prove an offence under s 224 against Danielle Fishing, whose liability is a necessary ingredient in the offending by Mr D’Esposito under s 246. We also agree with Mr Burston that Judge Henwood’s failure in the trial court to record expressly that Danielle Fishing had committed an offence is not fatal. The focus of s 234 is upon the trial judge being satisfied of the existence of facts necessary to prove an offence; it is not on whether the trial judge was satisfied that the elements of the substituted offence were proved beyond reasonable doubt. Plainly, the trial Judge was considering a different offence and not the one to be substituted.
[28] Next we turn to examine the three elements of the substituted charge under s 246 of the Fisheries Act to determine whether Ellis J was correct to be satisfied that the District Court Judge must have been satisfied of the necessary facts to prove the charge beyond reasonable doubt.
[29] The first element is that Danielle Fishing as a body corporate committed an offence against the Fisheries Act, in that it, being in receipt of a s 224(1) notice in relation to the Danielle, did allow the Danielle to be put to sea without having an observer on board. There is no doubt that Danielle Fishing was in receipt of the MPI notice through its managing director Mr D’Esposito^[25] and that Danielle Fishing through Mr D’Esposito allowed the Danielle to put to sea without having an observer on board.^[26]
[30] The second element is that Mr D’Esposito was a director of Danielle Fishing. Again there is no doubt this element was established.^[27]
[31] The third element is that Mr D’Esposito knew or ought to have known that the offence was to be committed and failed to take all reasonable steps to prevent or stop it. There is no doubt that this element was established.^[28]
[32] As to the question of possible prejudice under s 136(2) of the CPA, Ellis J expressly considered whether Mr D’Esposito would have been misled or prejudiced in this defence if a charge were substituted on the first appeal.^[29] Ellis J considered the availability of the defence Mr D’Esposito says he would have advanced (under s 241 of the Fisheries Act) had he known he was in jeopardy of a conviction under s 246.^[30] She concluded that the finding of guilt under s 246 would necessarily have precluded such a defence.^[31] Those issues were properly addressed at trial and no “genuine risk of prejudice” arose.^[32]
[33] Finally, we address the second claimed basis for a miscarriage of justice, namely, that Danielle Fishing could not have committed an offence against s 224 of the Fisheries Act because it was not the registered owner of the Danielle. We agree with Mr Burston that s 224 is not concerned only with “registered” owners. Rather, it refers to “the owner, master, operator, or licence holder”. Section 224(2) provides that “no person” shall cause or allow the relevant vessel to be put to sea which is subject to the notice, and s 224(3) provides that “every person” commits an offence who contravenes s 224(2). We are satisfied s 224 is not limited in the way Mr Squire suggested. Accordingly there is no risk of a miscarriage of justice arising because of this point.
[34] We also agree with Mr Burston’s submission that this is an argument that could and should have been advanced before the first appellate court. In the High Court Mr D’Esposito did seek to challenge Danielle Fishing’s possible liability under s 224, but this argument was rejected.^[33] Mr D’Esposito was well aware it was Danielle Fishing’s liability under s 224 of the Fisheries Act that gave rise to his vulnerability to conviction under s 246. This further argument should not be raised for the first time on a second appeal. It should have been advanced before the High Court because it is not the role of a second appeal court to provide appellants with a second “first appeal”.

Result

[35] We are satisfied that the proposed grounds of appeal raise neither a matter of general or public importance, nor the prospect of any miscarriage of justice.
[36] It follows that the application for leave to bring a second appeal is declined.

Solicitors:
Oceanlaw New Zealand, Nelson for Applicant
Crown Solicitor, Wellington for Respondent

^[1] Ministry for Primary Industries v Esplanade No 3 Ltd [2017] NZDC 8579 [District Court judgment].

^[2] D’Esposito v Ministry for Primary Industries [2018] NZHC 1529 [High Court judgment] at [50].

^[3] At [43]–[44].

^[4] District Court judgment, above n 1, at [39]–[42].

^[5] At [88].

^[6] At [61] and [66].

^[7] At [67].

^[8] Ellis J concluded that the Judge’s analysis indicated that she used s 246 as “a pathway to a finding of liability under s 224”: High Court judgment, above n 2, at [34].

^[9] D’Esposito v Ministry for Primary Industries [2018] NZCA 9, [2018] NZAR 388 at [21] and [34].

^[10] High Court judgment, above n 2, at [36]–[38].

^[11] At [39]–[50].

^[12] At [43]–[44].

^[13] At [50].

^[14] McAllister v R [2014] NZCA 175, [2014] NZLR 764.

^[15] At [36], citing Keenan v R [2005] NZSC 63 at [5].

^[16] At [36].

^[17] At [38].

^[18] A (CA255/2009) v R [2009] NZCA 380 at [10].

^[19] At [9]–[10].

^[20] R v Leitch [1998] 1 NZLR 420 (CA).

^[21] At 428.

^[22] McAllister v R, above n 14, at [42].

^[23] This Court in Christian v R [2017] NZCA 296 used the term “evaluation” at [31].

^[24] High Court judgment, above n 2, at [40].

^[25] District Court judgment, above n 1, at [4].

^[26] At [68].

^[27] At [4].

^[28] At [67]–[68].

^[29] High Court judgment, above n 2, at [45] and following.

^[30] At [48]–[50].

^[31] At [48]–[49].

^[32] At [50].

^[33] At [43]–[44].