DE MEY v R [2005] NZCA 74 (28 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA44/05

THE QUEEN



v



RAMON DIRK JOHANNES DE MEY

Hearing: 18 April 2005

Court: Anderson P, McGrath and O'Regan JJ

Counsel: Appellant in person
M D Downs for Crown

Judgment: 28 April 2005

JUDGMENT OF THE COURT

The application to reopen the appeal is dismissed.

REASONS

(Given by McGrath J)

[1]	Mr de Mey asks the Court to reopen his appeal against conviction for common assault which the Court had dismissed following a hearing on the papers (R v de Mey CA169/04 17 December 2004). He does so on the basis that it is necessary that the appeal be reopened to avoid injustice.
[2]	The applicant was convicted by a jury in the District Court of common assault. He was acquitted on the more serious alternative charge of assault with intent to injure. His appeal to this Court was determined on the papers under R 29 of the Court of Appeal Criminal Rules 2001, following consideration of written submissions by Mr de Mey and for the Crown.
[3]	The applicant’s contention in his written submissions had been that he should not have been convicted, because the complainant had previously made a statement to the police the tenor of which was inconsistent with his evidence in Court. For this reason the applicant said his evidence should have been preferred. He also submitted that if the jury had acquitted him on the assault with intent to injure charge, then he should then have been acquitted on both charges as his defence to each was the same. He says that this Court did not address the submissions.
[4]	The decision of this Court to dismiss the appeal was a final decision. Reconsideration of a final judgment of the Court can only take place in the very rare circumstance that it is necessary because a fundamental error in procedure would otherwise result in a substantial miscarriage of justice and no alternative remedy is reasonably available (R v Smith [2003] 3 NZLR 617 para [36]). In all other circumstances a person who is dissatisfied with a judgment of the Court must seek a remedy by way of appeal to the Supreme Court of New Zealand.
[5]	Although he has expressed his submission concerning the Court’s judgment by saying that the Court did not consider his submissions at all, in reality the applicant’s complaint is that the Court’s treatment of them in its judgment was wrong. His criticisms do not meet the test for the Court to allow the appeal to be reopened.
[6]	The application to reopen the appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington