Wong v R [2011] NZCA 563 (8 November 2011)

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Wong v R [2011] NZCA 563 (8 November 2011)

Last Updated: 16 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA227/2011 [2011] NZCA 563

BETWEEN ALEX KWONG WONG Appellant

AND THE QUEEN Respondent

Hearing: 24 August 2011

Court: O'Regan P, Arnold and Ellen France JJ

Counsel: F C Deliu for Appellant J C Pike for Respondent

Judgment: 8 November 2011 at 2.30 pm

JUDGMENT OF THE COURT

The application for leave to file a further appeal is dismissed. The application for bail is also formally dismissed.

REASONS OF THE COURT
(Given by Arnold J)

Background

[1] Following a jury trial before Winkelmann J in June 2006, the applicant, Mr Wong, was convicted on four charges relating to the importation, supply and possession of methamphetamine and one further charge of money laundering. On appeal to this Court his convictions were upheld,[1] but on further appeal to the Supreme Court they were quashed and a retrial was ordered.[2] The convictions were quashed because the jury had been reduced to ten members and the Court considered that there were no exceptional circumstances to warrant a trial with fewer than 11 members.
[2] The retrial took place in February 2009 before Potter J and a jury. Initially, Mr Wong acted for himself on various pre-trial matters, albeit with the assistance of a Court-appointed interpreter. At a call-over on 1 October 2008, Lang J urged Mr Wong to seek legal assistance and subsequently Mr Wong retained his present counsel, Mr Deliu. Although Mr Deliu acted for Mr Wong in relation to various pre-trial applications, Mr Wong terminated Mr Deliu’s instructions prior to trial and chose to act for himself. The Court then appointed an amicus, Mr Dacre, whose function was to assist the Court, to provide advice to Mr Wong (if requested) and to assist him with matters of procedure, evidence or other aspects of criminal law related to the charges.[3] In addition, Mr Wong applied for, and was granted, leave to have a McKenzie friend, his girlfriend Ms Anna Siu, present with him throughout the trial. The Court-appointed interpreter at Mr Wong’s retrial was Ms Sai Law.[4]
[3] The jury found Mr Wong guilty of one count of importing methamphetamine and another of having it in his possession for supply, but acquitted him on the three remaining charges. Mr Wong then appealed to this Court, being represented at that stage by Mr Deliu. Although there were numerous grounds of appeal, all were unsuccessful.[5] Mr Wong then sought leave to appeal to the Supreme Court, but his application was dismissed.[6]
[4] Following that, Mr Wong applied to the Supreme Court for leave to appeal directly to that Court against the convictions on a different ground from any previously raised. That ground was that he had not been provided with proper interpretation assistance at his retrial. Mr Deliu submitted that the application was necessary because the Court of Appeal was functus officio, having earlier dismissed Mr Wong’s appeal.
[5] The Supreme Court did not accept that this proposition was correct, but went on to say that Mr Wong “would have to persuade the Court of Appeal that the case falls within the inherent power of the Court of Appeal to revisit its decisions in exceptional circumstances when required by the interests of justice”.[7] The Court cited the decision of this Court in R v Smith.[8] Mr Wong then filed the application for leave to file a further appeal that is before us.

The basis for the application

[6] In his leave application, Mr Wong identified his grounds of appeal as follows:

1. The trial Court failed to provide me with a proper interpreter at, or interpretation of, my trial. The errors of the interpreter, an officer of the Court appointed by the trial Judge, are as particularized:
   • The interpreter may not have held the necessary qualifications or certification to interpret criminal trials;
   • The interpreter failed to interpret large, and crucial, parts of my trial including the Crown opening, Crown closing and Judge’s summing up;
   • The interpreter failed to interpret certain witness’s viva voce evidence and judicial rulings;
   • The interpreter failed to provide me with a simultaneous interpretation and instead mostly provided me with a summary of what was being said; and
   • The interpreter failed to help me communicate with the amicus curiae appointed by the Court.
2. The Police failed to provide me with a copy of transliterated disclosure therefore breaching my rights to disclosure.

100. The trial Judge/High Court Registry has wrongly refused me, on a number of occasions, a copy of the audio recording of my trial on 27 April, 19 July and 11 November 2010.

[7] In his submissions, Mr Deliu advised us that the issue raised in B of the proposed grounds of appeal was not pressed for present purposes. In relation to the issue raised in C, Ellen France J issued a minute on 23 May 2011, in which she indicated that Mr Deliu and any person assisting him should have access to the audio recording prior to the hearing and that the recording should be available for replaying at the hearing if that proved necessary. Mr Deliu listened to parts of the recording of the retrial on 22 July 2011 with Ms Lui, an interpreter who is fluent in English and Cantonese. Ms Lui has filed an affidavit, the effect of which we summarise below.[9]
[8] Accordingly, we are left with what was the essential basis for the application for leave, namely that Mr Wong was not provided with appropriate translation assistance. In particular, Mr Wong has deposed that his native tongue is Mandarin and that he does not read or write fluent English. He says that the interpreter, Ms Law, did not translate large parts of the trial for him, including the Crown’s opening and closing and the Judge’s summing up. When she did translate, she often provided a summary rather than a verbatim, simultaneous translation and spoke very softly. Mr Wong also deposes that the Judge’s rulings during the trial were not translated for him, and gives, as an example, rulings on the question whether his father could be present given that he was a potential witness. Mr Wong says that he did not understand what his rights in relation to translation were until June 2010, when his parents advised him of an advertisement they had read in a Chinese newspaper dealing with the topic.
[9] Ms Siu has also filed an affidavit. All that we need to say about that affidavit is that it largely supports Mr Wong’s account. In her affidavit Ms Lui said that she listened to parts of the audio recording of the trial which she described as being “in English with some Cantonese interspersed”. She described the interpretation at one point as being “very crude” and at another “very mucky”. She said that she was told by a Court official, Mr Shaheed, that the relevant microphone was very sensitive and would pick up any noise. On this basis, she said that there were periods when no interpretation was taking place. At the conclusion of her affidavit she expressed the following opinions:

1. Based on the recording and the statement of Mr Mohammed Shaheed, I am certain that the interpreter acting in this instance did not abide by the Guidelines of the Court in that she did not interpret completely all that was said in the Courtroom.
2. Even if I am wrong in my belief that she did not interpret all that was said, and the recording equipment could not have picked up the whispering, I believe that she failed to ensure that her speech was clearly heard and understood by everyone in the Courtroom, as required by the Guidelines.

Evaluation

The Court’s power to reopen a decision

[10] We begin with the Court’s power to reopen a decision. This Court addressed this question in Smith, a decision which followed on from the well-known decision of the Privy Council in R v Taito.[10] In Smith the appellant’s appeal had initially been dealt with by this Court in 1996 under the legal aid/appeal processes found to be unlawful in Taito. Following the Privy Council’s decision, Mr Smith applied to have his appeal set down for an oral hearing on the basis that the Court’s original determination was a nullity. The Crown applied to vacate the fixture, on the ground that the Court did not have jurisdiction to reopen an appeal which it had already determined other than on a reference under s 406 of the Crimes Act 1961 or if leave to rehear was granted under s 15 of the Crimes (Criminal Appeals) Amendment Act 2001.
[11] Delivering the judgment of the Court, Elias CJ noted that this Court’s jurisdiction was statutory and does not include a statutory power to rehear appeals that it has finally determined. However, the Chief Justice went on to say that the Court had the implied or inherent power to regulate its procedure or practice, including the power to correct slips or omissions in a judgment which do not affect its substance.[11] Elias CJ noted that the Court had previously accepted that it had inherent jurisdiction to set aside an order of the Court if it could properly be described as a nullity.[12]
[12] The Chief Justice went on to discuss a number of authorities before summarising the relevant principle as follows:[13]

The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”. Recourse to 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 fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.

[13] We make two points about this extract.

(a) First, the Court emphasised the importance of the principle of finality in this context. This principle has two relevant dimensions. The first is that there is a public interest in the resolution of proceedings. This gives certainty. Accordingly, parties will not generally be permitted a “second bite at the cherry”. The second is that a judicial decision, even a nullity, stands as a decision until set aside by a court of competent jurisdiction.[14]

(b) Second, and underscoring the significance of the first point, the inherent power is available only in exceptional circumstances when the interests of justice require, in particular where a substantial miscarriage would result if a fundamental error in procedure was not corrected and there is no effective alternative remedy reasonably available.

[14] The parties differed as to the scope of the words “fundamental error in procedure”. Mr Pike submitted that the words referred to procedures in this Court. In Smith (and in the other Taito cases) the appellant had not been afforded a genuine right of appeal, as guaranteed by s 25(h) of the New Zealand Bill of Rights Act 1990 (NZBORA), because the procedures followed by this Court in addressing his appeal were “contrary to fundamental conceptions of fairness and justice”.[15] Mr Pike said that, in the absence of any such procedural failing in this Court, the inherent jurisdiction was not available and the principle of finality should be given effect. He submitted that Mr Wong had been accorded a proper appeal in this Court: he was represented by counsel who filed extensive submissions on his behalf, the Court heard oral argument and it delivered a reasoned decision in writing addressing the various grounds raised. Mr Wong had sought leave to appeal against that decision to the Supreme Court, but was refused. Mr Pike said that Mr Wong is now simply seeking to raise a further ground of appeal which could have been raised in the earlier appeal. This was not a case where Mr Wong sought to re-open this Court’s earlier decision; rather, he seeks a second appeal. Mr Pike said that, Mr Wong’s appeal rights being exhausted, he would have to seek to utilise the procedures provided for in s 406 of the Crimes Act 1961 if he wished to raise further points. Mr Pike relied on authorities such as R v Wickliffe.[16]
[15] By contrast, Mr Deliu argued that the words could also encompass a procedural failure in the trial court, provided it was of a sufficiently serious nature. The principle in Smith was applicable even where an appellant sought a further appeal on new grounds rather than a re-hearing of a previous appeal. Mr Deliu submitted that, under s 24(g) of NZBORA, Mr Wong had a right to have the free assistance of an interpreter at his retrial. He argued that the interpreter’s performance was so deficient that Mr Wong was not afforded a fair trial. This, he submitted, was a fundamental violation of Mr Wong’s rights. The case was an exceptional one, so that Mr Wong should be given the opportunity to pursue a further appeal in this Court.
[16] We see considerable force in Mr Pike’s submissions on this point. In the Taito cases the unsuccessful appellants were effectively deprived of their statutory appeal rights as a result of the Court’s processes – they were not accorded genuine appeals. It is readily understandable that the Court should have the inherent power or jurisdiction to remedy its own denial of a protected right by allowing the affected appellants the opportunity to present, and to receive, proper appeals.
[17] However, it is much more difficult to see why an appellant whose right to a proper appeal has been satisfied should be accorded a further appeal in order to present an additional ground of appeal relating to the conduct of the trial. Such an approach runs directly counter to the principle of finality and is inconsistent with the structure of the Crimes Act, which provides the s 406 procedures to address situations where appeal rights have been exhausted.[17]
[18] There may be situations in which the Court should be prepared to reopen an appeal because the initial appeal has “misfired” in some way, although without any fault or failure on the Court’s part. An example may be R v Smail.[18] Mr Smail was charged with the murder of his tetraplegic flatmate, for whom he was the principal caregiver. He entered a plea of guilty to murder. The trial Judge considered that it would be manifestly unjust to impose a sentence of life imprisonment and sentenced Mr Smail to 12 years imprisonment with a minimum term of seven years. On a Solicitor-General’s appeal this Court increased the sentence to life imprisonment with a minimum term of 13 years.
[19] Mr Smail then sought leave to appeal to the Supreme Court against this Court’s decision. Only at that stage did it emerge that Mr Smail had entered his guilty plea following an indication to his counsel from the Judge that Mr Smail would receive a finite sentence of not more than ten year’s imprisonment and possibly less. The Supreme Court denied leave but pointed out that it was open to Mr Smail to apply to this Court for leave for an extension of time to appeal against his conviction.[19] Mr Smail then applied to this Court for an extension of time to appeal against both conviction and sentence. The Court granted leave and, on the basis that a sentencing indication had been given, allowed Mr Smail to withdraw his guilty plea, quashed his conviction and remitted the matter to the High Court for a retrial.[20]
[20] Mr Smail had, of course, never had a conviction appeal before he sought an extension of time, although he had had the opportunity to raise the sentence indication point on the Solicitor-General’s sentence appeal. Because the Court dealt with the matter through the conviction appeal it did not have to determine whether it had jurisdiction to reopen the sentence appeal. However, we think the Court may well have been entitled to reopen that appeal in such circumstances,[21] especially as the option of seeking leave to appeal to the Supreme Court had been exhausted. This is because on a Solicitor-General’s appeal the fact that Mr Smail had pleaded guilty in response to a sentence indication was critical information which should have been brought to the Court’s attention by the Crown as well as by Mr Smail’s counsel. In increasing Mr Smail’s sentence, the Court acted in ignorance of that critical information. Justice required some form of remedial response from the Court.
[21] While we accept that there may be other situations where, arguably, this Court should be prepared to reopen an appeal, even where the Supreme Court has refused leave, we do not need to determine the extent of any such jurisdiction here as we are satisfied that there is no proper basis to invoke it in this case. It is not suggested that there was any procedural failing in this Court. On the assumption that the jurisdiction is sufficiently broad to encompass situations where there has been a fundamental failure of trial (as opposed to appellate) process, we do not think it seriously arguable that there was any such failure in the present case, as we now go on to explain.

The right to the assistance of an interpreter

[22] Mr Wong wishes to argue on a further appeal that he was not accorded his right to an effective interpreter, as required by NZBORA. As this is an application for leave to file a further appeal, we do not have all the material that we would expect to have at a hearing of the substantive appeal. As a consequence, we must be cautious and our views must, to some extent, be preliminary in nature. Despite that, however, we are not persuaded on the basis of the material that has been put before us that it is seriously arguable that there was a fundamental failure of trial process.
[23] In a recent decision, Abdula v R, the Supreme Court considered the right to an interpreter.[22] The Court held that the right enshrined in s 24(g) of NZBORA had to be considered in conjunction with other protected rights, specifically the right to be present at trial and the right to present a defence.[23] The Court said that the standard of interpretation to be attained had to comply with those rights[24] and went on to say:[25]

That standard must reflect the accused person’s entitlement to full contemporaneous knowledge of what is happening at trial. Interpretation will not be compliant if, as a result of its poor quality, an accused is unable sufficiently to understand the trial process or any part of the trial that affects the accused’s interests, to the extent that there was a real risk of an impediment to the conduct of the defence.

Where the standard is breached, there has not been a fair trial.[26]

[24] Accordingly, the fundamental interest protected by the right to an interpreter is an accused’s right to know in detail the case against him or her so as to prepare and present a defence and (if relevant) instruct counsel. In the present case, there is the added dimension that, because he chose to represent himself, Mr Wong needed an interpreter to be able to communicate effectively with witnesses, the jury and the Judge. Indisputably, then, Mr Wong’s right to an interpreter was an important one. However, looking at the matter from the perspective just described, we do not consider that it is seriously arguable that Mr Wong’s rights were breached, for the reasons which follow.
[25] First, this was a retrial. At Mr Wong’s first trial, he had been provided with the assistance of an interpreter and had been represented by Mr Haigh QC. Accordingly, although a lay person, he was not a novice as far as the trial process was concerned.
[26] Second, Mr Wong has not pointed to any aspect of the conduct of his defence that was affected by any of the alleged failings on the part of Ms Law.[27] In particular, he does not say that he did not understand what the Crown case against him was. Mr Wong chose to represent himself at trial, and for some of the pre-trial period. He had an interpreter’s assistance throughout.[28] Clearly he felt that he was able to look after his own interests, and his conduct while acting for himself does not reveal a lack of understanding about what was happening. To the contrary, it shows that Mr Wong had a reasonable grasp of the relevant processes and concepts. In particular:

(a) In mid-2008, Mr Wong sought a further depositions hearing. Lang J addressed this in a minute dated 23 July 2008. He advised Mr Wong that there was no provision for a second depositions hearing but said he should communicate with the Crown Solicitor if he believed that the police were wrongly withholding relevant material. The Judge advised that if the Crown declined to provide material which Mr Wong considered to be relevant, he could ask that the matter be placed before the Court.

(b) The question of bail arose. When Lang J dealt with that on 6 August 2008 he was not aware of a minute issued by this Court on 16 July 2008. Mr Wong drew this Court’s minute to the Judge’s attention by letter dated 7 August 2008.

(c) There was a call-over on 1 October 2008. Prior to the call-over Mr Wong had filed a memorandum expressing confusion over the charges he was facing. This led to an application by the Crown to amend the indictment by removing the charges on which Mr Wong had been acquitted at his first trial. Lang J advised Mr Wong that the amended indictment contained the relevant charges and advised him to obtain legal assistance immediately. Mr Wong then instructed Mr Deliu, who immediately brought an application seeking a second preliminary inquiry. This application was dismissed by Venning J in a judgment dated 10 December 2008. Mr Wong then instructed Mr Deliu to appeal Venning J’s ruling and to seek an adjournment of the trial (scheduled to begin on 23 February 2009) to enable that to occur. A draft application to this effect was filed, but when the matter came to be argued before Wylie J additional, more broadly based applications were made. In a judgment dated 19 December 2008, Wylie J declined to adjourn the trial and said any further pre-trial applications should be filed immediately.

(d) The trial record reveals that Mr Wong did understand what was happening and was able to take meaningful steps in his own defence, either directly or through Mr Dacre. For example, Mr Wong sought and was granted leave to have a McKenzie friend, there were numerous applications as to the admissibility of evidence, there was a further application to adjourn the trial so that Mr Wong could appeal adverse pre-trial rulings and there was a s 347 application. Mr Wong requested a copy of the transcript of the evidence in his first trial, and according to his affidavit and that of Ms Siu, this was used to assist him in his cross-examination of Crown witnesses.

(e) Mr Wong points to his interaction with the Court over whether his father could be present during the trial as an example of the interpretation inadequacies. Whether his father could be present depended on whether or not Mr Wong proposed to call him as a witness (he had given evidence at Mr Wong’s first trial). There were a number of exchanges between Mr Wong, Mr Dacre and the Court on that topic, and the Judge had transcripts of these exchanges prepared and distributed to counsel and Mr Wong. They indicate that Mr Wong was well aware of what was happening. For example, the Crown intended to produce a hearsay statement from a witness who was unavailable. Mr Wong asked how it was that the Crown could use a hearsay statement but he could not use his father’s evidence at his first trial. The Judge explained the position to him.

[27] Third, Mr Wong was on overnight bail during the trial. The jury retired to consider its verdict at around 1 pm on 10 March 2009. They did not complete their deliberations that day and so were released overnight. Mr Dacre sought a continuation of Mr Wong’s overnight bail. This was granted by the Judge. In her ruling the Judge noted Mr Dacre’s submission that Mr Wong had worked hard at representing himself and that the Court need have no concerns about the seriousness with which he was treating the trial. Mr Dacre had said that Mr Wong’s dedication was exemplified by his approach to his closing address. From his closing address it is clear that Mr Wong understood that the case against him was circumstantial and that the Crown had asked the jury to draw certain inferences on the basis of particular facts. Mr Wong pointed out the dangers of drawing inferences and challenged the inferences that the Crown had asked the jury to draw. In doing so, he referred to the various counts against him, to particular submissions made by the Crown, to specific evidence, including exhibits, and asked why the police had not investigated further. He appears to have succeeded in raising a reasonable doubt in relation to the three counts on which he was acquitted.
[28] Fourth, Mr Wong says in one of his affidavits that he received no advice from Mr Dacre. The record simply does not support this. Rather, it shows that Mr Dacre gave advice to Mr Wong on numerous occasions immediately prior to and throughout the trial and that his advice was sometimes accepted and sometimes rejected. Mr Dacre is, of course, an experienced and skilled criminal barrister.
[29] Fifth, Mr Wong has had considerable experience with interpreters in the criminal justice context. In particular, he was assisted by an interpreter in relation to his retrial from at least October 2008 and Ms Law had been interpreting for him from at least 20 February 2009 (and perhaps earlier, the record is unclear). If he considered that he did not understand what was happening at any particular point, or that significant parts of the trial were not being translated for him so that he could not follow what was happening, we would have expected Mr Wong to have raised his concerns with Ms Law, and, if he did not receive a satisfactory response from her, with Mr Dacre or the Court. Mr Wong does say that Ms Law told him that he should understand what was happening given that this was a retrial, but there is no suggestion that any concern of the type Mr Wong now says he felt was brought to the attention of Mr Dacre or the Judge. Moreover, at the appeal following his retrial, Mr Wong led affidavit evidence from Ms Law as to what occurred when the jury’s verdicts were taken. He did not raise then any deficiencies in her interpretation at trial. We do not accept Mr Wong’s explanation that he did not understand his rights in relation to an interpreter at that stage, given his experience of the criminal justice system and his confidence that he could represent himself both before and during the trial despite his language difficulties.
[30] Sixth, in her summing up Potter J said:

[60] In this case Mr Wong has been assisted by an interpreter because English is not his first language. It is very important that the accused be able easily to follow the proceedings and the evidence given in Court. You must not draw any inference adverse to Mr Wong because of the use of the interpreter. However, sometimes something can be lost in translation even when, as here, we have had the benefit of an excellent interpreter in Ms Law. There are not always equivalent words between the two languages, so the interpreter has to do her best to convey the meaning of the accused’s question or statement to you as members of the jury. You will need to make allowance for the fact that Mr Wong throughout the trial asked questions in cross-examination though the interpreter and that he made his opening statement and closing address to you through the interpreter.

Plainly the Judge had no concerns about Ms Law’s performance of her role.

[31] Finally, while we acknowledge that we are not in any position to assess the technical quality of the interpretation services provided by Ms Law, we do have a significant question arising from Ms Liu’s evidence. As we have said, Mr Wong’s evidence is that his native language is Mandarin and this is the language that the record indicates he and Ms Law used at trial. Ms Liu says that she is fluent in English and Cantonese and refers to Ms Law and Mr Wong speaking Cantonese during the trial. Cantonese and Mandarin are quite different languages and speakers of one do not necessarily speak or understand the other. Mr Wong says nothing about being able to speak or understand Cantonese and Ms Liu says nothing about being able to speak or understand Mandarin. So, on the face of it, her evidence is not particularly helpful. We acknowledge, of course, that there may be some straight-forward explanation for this apparent anomaly.
[32] In the result, then, and making due allowance for the fact that this is an application for leave to file a further appeal rather than a substantive appeal, we do not consider that it is seriously arguable that Mr Wong’s right to an interpreter was breached. Accordingly, even on the assumption that the jurisdiction to reopen does extend beyond procedural failings in this Court to encompass procedural failings at trial, we do not consider that Mr Wong has established that it should be exercised in his case.

Conclusion

[33] In summary, we consider that Mr Wong has had a proper appeal in this Court and has exercised his right to apply to the Supreme Court for leave to appeal against this Court’s decision without success. He now wishes to raise for the first time a new ground of appeal which is not related to his previous appeal but to a further alleged failure at trial and is, on the material before us, without substance. We do not accept that Mr Wong has brought himself within the exceptional circumstances recognised in Smith. Mr Wong is, of course, free to pursue a s 406 application if he wishes.

Decision

[34] Accordingly, we refuse Mr Wong’s application for leave to file a further appeal. In these circumstances Mr Wong’s application for bail does not require consideration and is formally dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Wong [2007] NZCA 280.
[2] Wong v R [2008] NZSC 29, [2008] 3 NZLR 1.
[3] R v Wong HC Auckland CRI-2005-004-15296, 20 February 2009 at [13].

[4] It is clear from the material before us that Mr Wong was assisted by an interpreter from at least October 2008 in relation to his retrial and probably earlier. While it is clear that Ms Law was the Court-appointed interpreter from at least 20 February 2009, the record does not reveal whether or not she had been appointed to interpret for Mr Wong prior to that.
[5] R v Wong [2009] NZCA 440.
[6] Wong v R [2010] NZSC 14.
[7] Wong v R [2011] NZSC 18 at [4].
[8] R v Smith [2003] 3 NZLR 617 (CA).
[9] At [9].
[10] R v Taito [2003] 3 NZLR 577 (PC).
[11] At [28].
[12] See R v Nakhla (No 2) [1974] 1 NZLR 453 (CA).
[13] At [36]. (Emphasis added.)
[14] See the discussion in Smith at [46]–[49].
[15] Taito at [20].
[16] R v Wickliffe [1986] 1 NZLR 4 (CA).

[17] As occurred in the Bain case, for example – see R v Bain [2007] UKPC 33; (2007) 23 CRNZ 71 (PC).
[18] R v Smail [2007] 1 NZLR 411 (CA).
[19] Smail v R [2007] NZSC 77.
[20] R v Smail [2008] NZCA 6, [2008] 2 NZLR 448 (CA).

[21] See R v E(CA308/06) [2007] NZCA 403. By contrast, in R v Mey CA44/05, 28 April 2005 the appellant sought to reopen his appeal against his conviction, which this Court had dismissed on the papers. This Court said that the case did not fall within the “very rare circumstance” provided for in Smith and said that the appellant’s remedy was to seek leave to appeal to the Supreme Court: at [4].
[22] Abdula v R [2011] NZSC 130.
[23] NZBORA, s 25(a) and (e).
[24] At [42].
[25] At [43].
[26] At [44].
[27] See the extract from Abdula at [23] above.

[28] As noted at footnote 4 above, it is not clear whether Ms Law was his interpreter throughout.