R v E (CA308/06) [2008] NZCA 403; [2008] 3 NZLR 145 (11 September 2007)

Last Updated: 2 February 2018

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

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˝ NOTE: ORDER FOR INTERIM SUPPRESSION OF THE NAME AND IDENTIFYING DETAILS OF THE APPELLANT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA308/06 [2007] NZCA 403

THE QUEEN

v

_{E (CA308/06)}

Hearing: 5 July 2007

Court: Glazebrook, John Hansen and Harrison JJ Counsel: G W Calver for Appellant

C L Mander for Crown

Judgment: 11 September 2007 at 4pmat 4pm

_{JUDGMENT OF THE COURT}

1. The judgment of this Court in CA308/06 of 21 November 2006 is recalled.

2. The reasons for judgment of 12 June 2007 ([2007] NZCA 234) are recalled.

R V E (CA308/06) CA CA308/06 11 September 2007

100. The judgment and reasons for judgment are reissued with the alterations outlined in this recall judgment, effective as at 4pm on 11

_{September 2007.}

REASONS OF THE COURT

_{(Given by Glazebrook J)}

Table of Contents

_{Para No}

Introduction [1] Is there jurisdiction for a recall? [3] The submissions of the parties [3] Was the Court functus officio? [8] Are the criteria in Smith met? [10]

Should we recall our judgment and withdraw the order

for a retrial? [20]

Result [21]

Introduction

[1] On 21 November 2006 (R v E (CA308/06) CA308/06 21 November 2006), we allowed Mr E’s appeal against conviction and ordered a retrial. Reasons for judgment were to follow after further submissions had been received from the parties. Delays occurred in the receipt of these submissions and the reasons for judgment were eventually issued on 12 June 2007 – see [2007] NZCA 234 at [2] and [3]. In the meantime, Mr Calver, for Mr E, had asked the Court to reconsider its

order for a retrial. A formal application to recall our judgment of 21 November 2006 was filed and an oral hearing conducted on 5 July 2007 on the recall application.

[2] Two issues were covered at that hearing:

(a) Whether there is jurisdiction for us to recall our judgment; and

(b) If so, whether we should recall the judgment and withdraw the order for a retrial.

Is there jurisdiction for a recall?

The submissions of the parties

[3] In Mr Calver’s submission, there is jurisdiction for a recall of our judgment of 21 November 2006. Because of the unusual manner in which the appeal proceeded, the parties have not been heard on the question of whether a retrial should be ordered. Further, taking into account the grounds on which the appeal was in the event allowed, any retrial would be unfair and any resulting conviction unsafe. This submission was based on the difficulties with the complainant’s evidence that arose both in her video interview and at trial. As to the appropriate order, Mr Calver submitted that a directed acquittal would be the correct result.

[4] The Crown opposed the application for recall. Mr Mander’s first submission on the Crown’s behalf was that the judgment was validly delivered on 21 November

2006 and has been recorded in this Court’s database kept by the Registrar. It has also, since 21 November 2006, been through a number of call-overs in the District Court at Napier. In Mr Mander’s submission, this means that this Court is functus officio and there is no jurisdiction to reopen the matter unless the decision is a nullity. The order for a retrial was, Mr Mander submitted, entirely uncontroversial and followed standard Court practice.

[5] Mr Mander recognised, however, that this Court, in R v Smith [2003] 3

NZLR 617 at [36], held that this Court has inherent power to revisit its decisions in

exceptional circumstances when required by the interests of justice. However, Mr Mander pointed out that this Court said that the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if a fundamental error in procedure is not corrected and where no alternative effective remedy is reasonably available.

[6] Mr Mander submitted that the Smith criteria are not met. For a start, there was no fundamental error in procedure. It is only in exceptional cases that a retrial would not be ordered and the defendant would be expected to raise the issue if he or she contended that his or her case was one of those exceptional cases. That was not done here. In any event, the order for a retrial was entirely conventional, it was properly made on the basis of the information available at the time and was the order that would inevitably have been made. Mr Mander submitted further that there are, in this case, alternative remedies available in the District Court, such as an application for stay or for a discharge under s 347 of the Crimes Act 1961, if there are concerns as to the fairness of any retrial.

[7] We propose to deal with the jurisdictional issues in the following order: (a) Is the Court functus officio?

(b) Are the criteria in Smith met?

Was the Court functus officio?

[8] The Crown’s first submission was that the Court is functus officio and that there is no jurisdiction to recall the judgment unless it is a nullity. The Crown recognises, however, that there is jurisdiction to recall a judgment in the circumstances set out in Smith. We discuss in the next section whether the Smith criteria are met.

[9] We do not consider, however, that the Court was functus officio after the

21 November judgment. Reasons for judgment were to be provided. There were additional grounds of appeal on which further submissions were sought. If the

parties had requested, a further oral hearing could have been conducted on the additional grounds of appeal before the reasons were finalised. In our view, it is of significance that this is not a case where all functions of the Court with regard to the appeal had ceased.

Are the criteria in Smith met?

[10] This appeal took an unusual form in that a number of the grounds of appeal emerged in the course of the hearing and some even subsequent to the hearing. It was clear at the end of the hearing on 20 November 2006 that the appeal had to be allowed on a number of grounds. Neither party, however, had had a full opportunity to provide submissions on a number of other grounds raised at the hearing. Given that Mr E was in prison, it was clearly unsatisfactory to wait for the further submissions before allowing the appeal. We thus did so on 21 November 2006. We also ordered a retrial, but without hearing from counsel on whether or not a retrial should be ordered and without being able to consider the question of whether or not a retrial should be ordered in the context of all of the grounds of appeal.

[11] We accept the Crown submission that counsel would usually be expected to alert the Court if they considered a retrial should not be ordered and, in the absence of any submissions on that subject, the Court would be entitled to assume that there was no reason not to order a retrial. This case, however, was unusual in that a number of the grounds of appeal had not been fully argued and decided at the time of the 21 November 2006 judgment.

[12] It is true that the grounds of appeal identified by the Court, including the concerns about the reasonableness of any jury’s verdict, could have been raised by Mr Calver on Mr E’s behalf at the initial hearing of the appeal. If he had raised these matters, it would have been obvious that there were possible issues with ordering a retrial. Any failure to have raised the question of whether there should be an order for a retrial earlier, however, cannot be visited on Mr E. Mr E is not legally trained and cannot be expected to have been aware of grounds of appeal that his counsel did not alert him to. In the circumstances there has been a fundamental error of procedure in relation to Mr E through no fault of his own.

[13] The Crown then submitted that the decision to order a retrial was correct, based on the grounds evident as at 21 November 2006, and that it should not be disturbed on the basis of grounds identified later. It is true that most of the grounds of appeal (whether supplied by the Court or by Mr E’s counsel) raised no concern about any possible retrial. There were a number of mistakes made in the first trial, but there is no reason to assume that they would be repeated in any retrial and, if they were, the remedy would be in a further appeal, as the Crown submitted.

[14] The main area of concern with regard to a retrial lies in the leading questions asked of the complainant both in examination-in-chief and in re-examination and the difficulties there would have been with her evidence absent those leading questions. We have checked our notes taken at the hearing and the leading questions had been identified during the hearing on 20 November 2006 as a concern. It is thus not correct that the order for a retrial was correct on the grounds evident as at 21

November 2006.

[15] There is a further flaw in the Crown’s argument. Even if the decision was correct on the basis of the grounds identified as at 21 November 2006, it was clear at the end of the hearing that there could be other successful grounds and, if it had been properly thought through, that some of those grounds might well raise concerns about the appropriateness of a retrial. Any decision therefore about a retrial must have been premature. A proper decision as to whether or not a retrial should have been ordered could only have been made when the full basis on which the appeal was to be allowed was clear. In our view, in the unusual circumstances of this case, the appropriate course would have been to have allowed the appeal and to have reserved the question of whether or not there would be an order for a retrial.

[16] The fact that the decision as to a retrial was taken prematurely without hearing from the parties and without proper consideration being able to be given to the relevant factors creates, in the very unusual circumstances of this case, exceptional circumstances in terms of Smith. We thus have the power to revisit the order for a retrial, subject to there being no other effective remedy – see at [5] above.

[17] We do not see the possibility of a remedy in the District Court as a real one. If this Court orders a retrial, it must be taken as ruling (on the basis of the information before it) that a retrial can legitimately take place if the Crown decides that is the appropriate course. Absent further developments or a consideration of matters not taken into account by this Court, it may even be that a trial court would lack jurisdiction to stop a retrial taking place. Certainly it would be reluctant to do so in the face of an order by this Court for a retrial. Further, given the nature of this appeal, this Court is very familiar with all aspects of the evidence, an advantage that a District Court Judge coming to the matter afresh would not have. This Court, therefore, is a much more appropriate forum for identifying any issues with a retrial than the District Court would be.

[18] The other possible remedy would be for Mr E to apply for leave to appeal to the Supreme Court. In the face of the failure to give proper consideration to the matter (given the unusual manner in which the appeal proceeded), it may well be that leave would be granted and that any appeal would be allowed. However, the likely result in that case would be for the matter to be remitted to this Court for a proper hearing and proper consideration. All that would be achieved therefore would be further delay and an unnecessary use of time and resources of the Judges and counsel involved. That cannot be in the interests of justice.

[19] Although the ability to apply for leave to appeal to the Supreme Court is less expensive and less uncertain than a petition to the Privy Council, we consider the comments in Smith at [38] to be still applicable and those comments are supportive of the above reasoning. The Court said:

While there is a theoretical opportunity for further appeal through petition for special leave to appeal to the Privy Council, the availability of the appeal is uncertain and expensive. The point has been emphatically resolved...It would be unfair alike to those appellants affected and to the Privy Council to require all to seek correction of acknowledged error through petition for special leave.

Should we recall our judgment and withdraw the order for a retrial?

[20] If, after hearing from the parties, we had been of the view that the order for a retrial was clearly correct, then there would be no need to recall the judgment. In this case, however, Mr Calver pointed to a number of concerns with any possible retrial. We consider that recall of the judgment of 21 November 2006 and the reasons for judgment of 12 June 2007 is the proper response so that the appropriate order can be properly considered.

Result

[21] For the above reasons, we make an order recalling the judgment of this Court of 21 November 2006 in CA308/06 and the reasons for judgment of 12 June 2007, [2007] NZCA 234. The recalled judgment and reasons for judgment are to be re-issued at the same time as this judgment on the application for recall.

[22] In the recalled and re-issued judgment, the judgment of the Court is varied. The appeal is allowed, the conviction quashed and a verdict of acquittal is entered. There is a new section at the end of the judgment at [145] – [181] dealing with whether or not there should be an order for a retrial (and concluding that there should not).

[23] There are amendments consequential on that new section at [3] (line 3), [4] (whole paragraph), [5] (line f), [19] (line 2), [27] (lines 3 - 4 and lines 11 - 12), [29] (lines 4 - 7), [30] (line 1), [33] (lines 3 - 5), [44] (line 5), [45] (line 1), [68] (line 6 - 7), [73] (line 6), [84] (lines 9 and 11), [89] (lines 9 - 10) and paragraphs [145] – [150] of the judgment dated 21 November 2006 have been deleted in the recalled judgment. There are also minor stylistic amendments at [3] (lines 1 - 4), [5] (line 1 and lines d - e), [9] (line 2), [47] (line 3), [48] (lines 8 - 9), [51] (line 10), [70] (deletion in lines 7 - 8), [87] (line 3), [88] (line 9), [132] (line 3) and [135] (line 8). There is a minor qualification added to [89] (addition of the word “preferably” at line 7), an update of a reference is made at [24] (line 6) and [48] (lines 8 - 10), an

expansion of a quotation is made at [70] (the first 19 lines of the quote). An interim suppression order is made at [183].

Solicitors:

Crown Law Office, Wellington