Changes to appellate tests are in vogue in the senior appellate courts. And like one of those marble chute toys for children, the changes are kerplunking their way down the hierarchy of courts. But the path one of those cases is taking might deserve further thought.
Sena v Police
In Sena v Police [2019] NZSC 55 (and presumably coming to a Law Report near you) the Supreme Court held that the test on appeal against conviction from a judge-alone trial was a general appeal. That was on the basis of some detailed consideration of the legislative history. In Sena, the section of the Criminal Procedure Act 2011 that conferred the right of appeal was s 232. It’s set out next. Pay particular attention to s 232(2)(b):
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.
Sena was an “erred in his or her assessment of the evidence” case. Leave to one side the regrettable gender-binary language of the Act. The Supreme Court was critical of the trial judge’s reasons. There were conflicting witness accounts. The judge favoured one side and rejected the other. But the judge didn’t explain why, or engage with the conflicts in the accounts. That was sufficient to show an error in the judge’s assessment of the evidence, and it was to such an extent that a miscarriage of justice occurred.
Writing for a unanimous Court, William Young J’s key conclusions on the approach to be taken to s 232(2)(b) were as follows:
[36] … We see s 232(2)(b) as premised on the assumption that the s 106(2) (and common law) requirement for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute. As we explain later in these reasons, this case involves such a misapprehension.
[37] In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.
[38] To the extent that [counsel for the appellant’s] first line of argument is based on the premise that the approach in Austin, Nicholls applies to appeals from judge-alone trials, as indicated above, we agree. If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed. But, to the extent that Mr Jones was suggesting that the role of an appellate court is to consider the issues de novo as if there had been no hearing at first instance, then we do not agree. Since it is an appeal, it is for the appellant to show that an error has been made.
One of what I think is the most important points in there is that the Supreme Court viewed the statutory appeal ground in s 232(2)(b) as giving a meaningful consequence to the duty on a trial judge to give reasons. The duty exists in s 106 of the Criminal Procedure Act 2011 and at common law. A failure to comply is likely to translate into an error under the Act because you won’t have shown that you assessed the evidence properly.
Another important point of context (which isn’t unique to Sena) is that even on a general appeal, the appellate court does not automatically interfere. An appellate court will only do so if satisfied there is an error in the decision below. So the first thing an appellant has to do is convince the appellate court that there is an error. Only if they get past that stage will the appellate court then substitute its own views.
Sena changed (some would say clarified) the test on appeal from judge-alone trials. You get a general appeal, not a more limited review that jury trials get. As William Young J explained, the Court isn’t really changing the law. The Court’s conclusion is just a product of statutory interpretation: everyone had simply been using the wrong test since the advent of the Criminal Procedure Act 2011. But that’s not what has prompted the post. Up to now has simply been necessary background.
Sena, Palmer J and sentencing
What did Sena change? It changed the test for appeals against conviction from judge-alone trials. And it emphasised the importance of reasons. If you don’t get your reasons right, it will animate the ground of appeal in s 232(2)(b). That’s the section which lets you win your appeal if the judge has erred in his or her assessment of the evidence. Boiled down to its most simple: a failure to give proper reasons matters, because s 232(2)(b) gives you an appeal from the failure.
This week, Palmer J has taken the reasoning in Sena and applied it to sentence appeals. And I think sentence appeals are different.
Most importantly, sentence appeals are brought under a different section of the Criminal Procedure Act 2011. Section 250 of the Act provides:
250 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 the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
(3) The first appeal court must dismiss the appeal in any other case.
Section 250(2)(a) is what I care about. Your appeal gets allowed if there is an error “in the sentence imposed”. It’s outcome-focused. There has to be an error with that which was imposed. That stands in distinction to the process-focused ground of appeal in s 232(2)(b) where what matters is whether the judge “erred in his or her assessment of the evidence”.
Any sentencing judge has to give reasons. Any judge at all has to give reasons. That’s Judging 101. But s 250(2)(a) doesn’t turn that process failure into an automatic error on appeal. Instead, there has to be an error in the sentence imposed.
Justice Palmer appears to disagree. In Allport v Police [2019] NZHC 1306 his Honour set out the test on an appeal against sentence:
[15] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range. Consistent with the rule of law, and the requirement for rational and compelling reasons in Sena v New Zealand Police in relation to conviction appeals, I consider it self-evident that an unreasoned sentencing decision will require an appellate court to undertake the sentencing exercise afresh.
I read his Honour in that last sentence to be saying that, on a sentence appeal, a failure to give decent reasons automatically translates into an error in the sentence imposed. The significance of that is that that very first step of an appeal – demonstration of error – will already be met. That means that the appellate court can simply proceed to substitute its own views (in accordance with general appeal principles under Austin Nichols).
His Honour said something similar (perhaps a little softer) in Papa v Police [2019] NZHC 1309:
[5] Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range. Ms Lim, for the Police, is correct that this is not an appeal against discretion, as the Court of Appeal found in Palmer v R (no relation). If, on appeal, I am satisfied there is an error in the decision below then I must allow the appeal if I consider a different sentence should be imposed. That is consistent with the Supreme Court’s recent judgment of Sena v Police applying the Austin Nicholls [sic] approach to conviction appeals. I consider the requirement for reasons, and the rule of law itself, means an unreasoned sentencing decision will require an appellate court to undertake a sentencing exercise afresh. Absence of reasoning is highly likely to be an error.
I am not convinced that Sena v Police can be applied directly to sentence appeals. This is for three overlapping reasons (and I’m not convinced the first two aren’t just the same reason said in two different ways):
First, the statutory context is different. Section 232(2)(b) means appeals can be permitted in situations where there has been a process error – a judge didn’t set out all the reasons that they really should. And in Sena the Supreme Court set out what those shortcomings might look like. But s 250(2)(b) seems aimed at outcome: error in the sentence imposed. Admittedly, it is error “for any reason”, but that broad term is still brought down to earth by the words that follow: “the sentence imposed”. It follows that some care would need to be taken with translating Sena‘s reasoning over to sentence appeals, and doing so would need to account for the difference in statutory language. With respect, Palmer J’s reasoning does not do that.
Second, and building on the first reason, while Palmer J is absolutely correct that judges should show reasons in sentencing that does not mean that a failure to do so necessarily translates into something that matters on appeal. As a judgment, Sena is a link explaining why a failure by a judge to fulfil the duty to give reasons for a verdict will translate into an appeal under the relevant section of the Criminal Procedure Act 2011. But we don’t have that explanation (from the Supreme Court or from Palmer J) linking the failure to give reasons for a sentence to the relevant section for sentence appeals. As the first reason (above) sets out, s 250 doesn’t seem to be fertile ground for recognising that type of error anyway.
Third, we already have the Court of Appeal indicating that it is the end sentence that counts, even when the process is absolutely abysmal. For example, in R v S (CA64/06) [2007] NZCA 243, Hammond J said this about a sentence that was near impossible to unpack:
[79] The first point to be made here is that this Court has emphasised on a number of occasions that Judges must today “do the arithmetic”. That is they must indicate, in some manner which is amenable to review, where they started from and how they got to the sentence actually imposed. For instance, in this case — we cannot tell from the face of the sentencing notes — it is possible that the Judge adopted a higher starting point than 12 years and then discounted it somewhat. But we do not know.
Despite those errors, the Court of Appeal went on to demonstrate that there was no error in the sentence imposed. If anything, it was generous. So, it declined to intervene. That’s just one case but there are many more. I only picked it because it was Hammond J, and I’ve always liked the “do the arithmetic” quote. The point is, it’s substance, not process, that matters on sentence appeals.
None of this is to excuse sentencing judges from giving reasons. They should. They have to. It’s part of judging. They should be criticised when they don’t give adequate reasons. But it doesn’t mean there is an error in the sentence imposed. By itself, a failure to give adequate reasons in a sentencing decision should not be an error that automatically opens the door to the appellate court’s substitution of its own sentence.
A failure to provide reasons will, however, often mean that an appellate court is more likely to find error in what little a sentencing judge has bothered to articulate. If a sentencing judge hasn’t explained why there is only a 10% discount for remorse then it is more likely that an appellate judge could decide that there was in fact an error in the sentence imposed. The sentencing judge will have lost their best opportunity to have their sentence upheld.
And finally, what do I really know anyway? Maybe there is a good basis for applying Sena v Police to sentencing appeals. Justice Palmer is a hell of a lot smarter than I am. If other judges pick it up and run with it, then maybe we’ll get a longer explanation at some point.
In the meantime, if we could stop changing appellate tests for everything that would be great.
Strictly obiter 