IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2022-404-85
[2022] NZHC 2266	

BETWEEN	MANUEL KOTTON MAURI
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	5 September 2022	
Appearances:	D Nairn for Appellant
J Toebes for Respondent	
Judgment:	7 September 2022	

JUDGMENT OF LANG J
[on appeal against conviction]

This judgment was delivered by me on 7 September 2022 at 10 am.

Registrar/Deputy Registrar Date……………

Solicitors:
Kayes Fletcher Walker, Manukau

MAURI v NEW ZEALAND POLICE [2022] NZHC 2266 [7 September 2022]

[1]	Mr Mauri was charged with assault with intent to injure. He entered a plea of not guilty and elected to be tried by a Judge sitting without a jury.

[2]	Following a defended hearing on 17 February 2022 Judge J E Macdonald found Mr Mauri guilty.1 On the same date he sentenced Mr Mauri to nine months supervision and 150 hours of community work. Mr Mauri appeals against conviction on the basis that procedural errors that occurred during the hearing resulted in a miscarriage of justice.2

Background

[3]	The charge was laid as a result of an incident that occurred on 24 October 2020. The prosecution alleged that Mr Mauri, who lived in the same apartment complex as the male complainant, entered the complainant’s apartment whilst the complainant was dozing on a couch. An argument ensued when the complainant asked Mr Mauri to leave. The complainant then placed Mr Mauri’s cellphone and a can of pre-mixed drink he had been carrying outside the door of the apartment. This allegedly resulted in Mr Mauri punching the complainant on several occasions.

[4]	At trial the prosecution called the complainant and two police officers who had gone to the apartment complex after a female occupant of the complainant’s address called for assistance. One police officer spoke to the complainant whilst the other spoke to, and subsequently arrested, Mr Mauri.

[5]	At the conclusion of the prosecution case Mr Nairn, Mr Mauri’s counsel, sought an order that Mr Mauri be discharged under s 147 of the Criminal Procedure Act 2011 on the basis that the prosecution case was insufficient to prove the charge. The Judge dismissed this application3 and, after Mr Mauri elected not to call evidence, delivered a second oral decision in which he found the charge proved beyond reasonable doubt.4

1	Police v Mauri [2022] NZDC 5003.
2	Criminal Procedure Act 2011, s 232(2)(b).
3	Police v Mauri [2022] NZDC 16589.
4	Police v Mauri, above n 1.

The appellate test

[6]	The appeal is governed by s 232 of the Criminal Procedure Act 2011 (the Act). This relevantly provides as follows:

232	First appeal court to determine appeal

(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,—

(a)	in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or

(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

(c)	in any case, a miscarriage of justice has occurred for any reason.

(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—

(a)	has created a real risk that the outcome of the trial was affected; or

(b)	has resulted in an unfair trial or a trial that was a nullity.

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

Grounds of appeal

[7]	Mr Nairn contends the Judge made three procedural errors during the hearing and that these created a real risk that the outcome of the trial was affected and/or resulted in Mr Mauri receiving an unfair trial. The alleged errors are as follows:

(a)	The Judge was influenced by notes on the Court file about matters discussed during an earlier case review hearing.

(b)	The complainant was wrongly permitted to give evidence about an earlier incident in which he had come into conflict with Mr Mauri.

(c)	The Judge applied the wrong test when he determined the s 147 application.

The notes from the case review hearing

[8]	At an early stage of the defended hearing, the Judge raised an issue to which he had been alerted in notes recorded by the Judge who had conducted a case review hearing on 23 February 2021. This was to the effect that the issue to be determined at trial was whether Mr Mauri had thrown more than one punch. By this stage the Judge had become aware that this was not the issue to be determined at trial. Rather, the principal issue was whether the prosecution could prove that Mr Mauri was the person who had entered the complainant’s apartment and assaulted him.

[9]	The Judge was plainly concerned that the prosecutor may have been placed at a disadvantage by the information Mr Nairn had provided to the Judge who presided at the case review hearing. He explored the issue with the prosecutor but she told him she had not been disadvantaged by the information. The Judge then indicated he would put the issue to one side. However, he referred to the issue again in both his ruling on the s 147 application and his substantive decision. Mr Mauri remains concerned that the issue may have influenced the Judge in reaching his decisions.

[10]	It is Mr Nairn’s understanding that the discussion during the case review hearing occurred during an attempt to resolve the charge. He is concerned that the presiding Judge kept a record of discussions that were conducted on a without prejudice basis.

[11]	A case review hearing may obviously serve several purposes. These include identification of the issues that will be in dispute at trial. The Judge may also use the hearing to explore the possibility of resolution. The notes taken by the presiding Judge in the present case do not record the circumstances in which the discussion occurred. However, I consider it much more likely that it occurred in the context of an enquiry into the issues to be determined at the trial. It is difficult to see how it could have formed part of a discussion about resolution.

[12]	Mr Mauri may perceive this issue as having had some influence on the ultimate outcome, but it is plain from the reasoning contained in the two decisions that it did not. The Judge was obviously concerned that the prosecutor may have been disadvantaged by the fact that the issue at trial was different to that identified at the case review hearing. However, I am satisfied that his interest in the issue went no further than that. This ground of appeal fails as a result.

The evidence about the earlier incident

[13]	During evidence-in-chief the complainant began to talk about an earlier incident in which he said he had encountered Mr Mauri. The prosecutor and the Judge immediately intervened and told the complainant he should only talk about the incident that led to the present charge. Mr Mauri is concerned that the Judge may have been influenced about the evidence the complainant gave about the earlier incident.

[14]	There is no basis for this concern because the complainant was not permitted to give any detail about the earlier incident. Furthermore, given that the identity of the assailant was in issue, I consider the complainant ought to have been permitted to give evidence about earlier occasions on which he had dealt with the person who entered his apartment and assaulted him. The extent to which he had had earlier dealings with that person was plainly relevant to his identification of Mr Mauri as the assailant.

The s 147 application

[15]	This issue arises because of the procedure the Judge followed after Mr Nairn advanced the application for discharge at the close of the prosecution case. A lengthy discussion ensued between the Judge, Mr Nairn and the prosecutor. The Judge then delivered an oral decision in which he summarised the evidence relied on by the prosecution as establishing that Mr Mauri was the person who went to the complainant’s apartment and assaulted him. This concluded:

[14] … I have reached the conclusion that [the evidence] is enough and on that basis, then, I am satisfied beyond reasonable doubt that the charge has been proved and that is my conclusion.

[16]	At this point Mr Nairn alerted the Judge to the fact that his decision ought to have related only to the application for discharge and not to the substantive issue of whether the prosecution had proved the charge beyond reasonable doubt. This resulted in the Judge adding the following comments to his decision:

ADDENDUM

[15] I will just backtrack. I have mis-stated it. It is simply a no case submission. I need to go back on that and I will take it that I have simply ruled that there is a case to answer. I thought we had got to that stage. I have got ahead of myself so I accept that. We will treat it as there is a case to answer, Mr Nairn.

[17]	Mr Mauri then elected not to give evidence. Mr Nairn says there was little point in Mr Mauri giving evidence because the Judge had already made it clear that he was satisfied beyond reasonable doubt that Mr Mauri was the person who committed the offence.

[18]	A Judge who decides a criminal case can be expected to deal with evidential objections and other similar issues without those matters affecting the Judge’s ability to bring an impartial mind to the substantive decision. The fact that a Judge dismisses an application for discharge does not normally have any significance for the subsequent substantive decision. This is in part because the standard of proof for discharge under s 147 is different to that for guilt.   In a trial by jury,  the test under   s 147 is whether a properly directed jury could reasonably find the defendant guilty on the basis of the evidence adduced by the Crown.5 The same test is applicable when a Judge is hearing a case without a jury. The standard of proof for a finding of guilt is proof beyond reasonable doubt.

[19]	As will be evident, the Judge’s decision on the application for discharge not only involved the application of the wrong test but also led him to state he was satisfied beyond reasonable doubt of Mr Mauri’s guilt. He made that statement in circumstances where Mr Mauri had not yet elected whether to give or call evidence.

[20]	The Judge obviously considered the evidence had concluded and that he was required to make a substantive determination of guilt or innocence. This is

5	R v Flyger [2001] 2 NZLR 721 (CA) at 726.

demonstrated by the fact that, when the error was brought to his attention, the Judge said he “thought we had got to that stage” and that he had “got ahead of [him]self”. It is also noteworthy that the Judge’s second decision in which he found the charge proved beyond reasonable doubt is framed in virtually identical terms to the decision he had just delivered in response to the application for discharge.

[21]	I consider the manner in which the Judge dealt with the application for discharge amounted to an error or irregularity that created a real risk that the outcome of the trial was affected. This constitutes a miscarriage of justice under s 232(4)(a) of the Act.

Result

[22]	The appeal is allowed and the conviction and sentence are set aside.

[23]	I make a direction under s 233(3)(b) of the Act that the charge is to be the subject of a rehearing in the District Court.

Lang J