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Tracey Hu
August 21, 2019
Courts of New Zealand

New era for appellants in Judge-alone trials (Sena v Police [2019] NZSC 55)

In Sena v Police, the Supreme Court has ruled that appeals against conviction from Judge-alone trials are to be heard by way of rehearing.  This is a fundamental change.

In tandem with broadening the scope of appeals, the Court has emphasised the advantages first instance judges have in assessing evidence.

Previously, where the appellant challenged the trial judge’s verdict from a Judge-alone trial the appeal would only be allowed if the verdict was one that  “no [Judge] could reasonably have reached".  While the appellate court was required to bear in mind that reasonable minds might disagree on findings of fact, persuading the court that an appellant’s version of the facts was plausible was not enough; the appellant had to go further and show that the trial judge’s verdict was deficient, not just different.  

Now, if the appellate court comes to a different view of the evidence, the trial judge is presumed to have erred, and the appeal is allowed.  The inquiry is no longer about whether the trial judge’s verdict was one that could reasonably have been reached. Where reasonable minds disagree, the appellate court’s view of the facts prevails.

The Court has also re-affirmed two important principles.  The first is that where appeals proceed by rehearing the Court should not approach the appeal as if there had been no trial. Rather, the appellant must show that the lower court made an error.  The second is that trial courts have important advantages in assessing contested oral evidence that must be borne in mind before reversing factual findings.  

These observations will be welcome for those who have faced overly broad appeals in the years since Austin,Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.  

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