Ball v R [2013] NZCA 248 (20 June 2013)

Last Updated: 26 June 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA222/2010 [2013] NZCA 248
BETWEEN	GLENN ANDREW BALL Applicant
AND	THE QUEEN Respondent

Court:	Arnold, Keane and MacKenzie JJ
Counsel:	B J Hart for Applicant M D Downs for Respondent
Judgment: (On the papers)	20 June 2013 at 12 pm

JUDGMENT OF THE COURT

The application for recall is dismissed.
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REASONS OF THE COURT

(Given by Arnold J)

[1] The applicant, Mr Ball, and an associate, Mr Hodgkinson, faced trial on a number of drug charges. Prior to trial, they challenged the admissibility of certain evidence obtained under various search warrants. Following a ruling in the District Court that the evidence was admissible, Messrs Ball and Hodgkinson appealed to this Court. In a decision dated 7 October 2010, we dismissed their appeal.^[1] The Supreme Court dismissed their application for leave to appeal against our decision.^[2]
[2] Almost a year later, on 26 September 2011, Mr Ball, through his then counsel Mr Barry Hart, filed an application to recall this Court’s decision. The grounds on which the application was made were as follows:

• (i) a substantial miscarriage of justice would otherwise result;
• (ii) there is no alternative remedy reasonably available, in particular given the legislation intended to be put before parliament, and to be passed under urgency; and
• (iii) without such response, public confidence in the administration of justice would be undermined.

[3] The application gave no greater detail than this and was not supported by a memorandum from counsel or by any submissions. The reference to proposed legislation in (ii) appears to be to the Video Camera Surveillance (Temporary Measures) Bill, which was introduced as a response to the Supreme Court’s decision in Hamed v R.^[3]
[4] On 5 October 2011, Arnold J issued a minute which drew attention to the generality of the grounds of the application and gave timetabling directions as to the provision of more detailed grounds and the filing of submissions in support of, and in opposition to, the recall application. The effect of these directions was that all steps were to be completed by Friday 11 November 2011. The Court would then have considered the application.
[5] Unfortunately, it later transpired that the Registry failed to distribute Arnold J’s minute to counsel or to Mr Ball when it was issued. As a consequence, no further steps were taken. This did not come to light until July 2012.
[6] When he learnt of the problem, Arnold J issued a further minute on 30 July 2012 in which he apologised to the parties for the Registry’s oversight and made new timetabling directions. Mr Ball’s more detailed grounds of application and submissions in support were to be filed and served by Friday 17 August 2012 and the Crown’s submissions in response by Friday 24 August 2012. The minute indicated that after the submissions were received, the Court would determine whether it needed to hear oral argument or could deal with the application on the papers.
[7] Nothing having been filed, the Registry followed up with Mr Hart on 21 August 2012. Mr Hart advised that, because he was moving offices, he had not received Arnold J’s minute of 30 July 2012. Mr Hart sought a copy of the minute and an extension of time. Arnold J then varied the timetable to provide that Mr Ball’s submissions were to be filed and served by Friday 7 September 2012 and the Crown’s by 14 September 2012.
[8] Nothing further was received on behalf of Mr Ball (or from the Crown, given that there was nothing to respond to). The Registry attempted to contact Mr Hart again, without success.
[9] Having considered the application as best we can, we see no legitimate basis to recall our judgment. The question of the admissibility of the relevant evidence was squarely raised in the application for leave to appeal to the Supreme Court and was addressed by that Court when it dismissed the application. In particular, the Supreme Court found that this Court’s conclusions did not raise any issue of general or public importance and, more importantly for present purposes, did not give rise to any miscarriage of justice. We do not see subsequent developments as relevant to the Court’s analysis of the position.
[10] Accordingly, we dismiss the application for recall.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Hodgkinson & Ball v R [2010] NZCA 457.

^[2] Hodgkinson & Ball v R [2010] NZSC 145.

^[3] Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.