King v R [2017] NZCA 46 (7 March 2017)

Last Updated: 13 March 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA7/2013 [2017] NZCA 46
BETWEEN	DEREK LESTER KING Appellant
AND	THE QUEEN Respondent

Court:	Harrison, Heath and Collins JJ
Counsel:	Appellant in person J Hurd for Respondent
Judgment: (On the papers)	7 March 2017 at 10.15 am

JUDGMENT OF THE COURT

The application is declined.
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REASONS OF THE COURT

(Given by Harrison J)

[1] In a judgment delivered on 29 October 2015 this Court dismissed an appeal by the applicant, Derek King, against his conviction in the High Court for numerous sexual offences and his sentence of preventive detention.^[1]
[2] On 13 February 2017 Mr King filed a voluminous four-part application to recall our judgment on numerous grounds. The Crown opposes his application on a number of grounds.
[3] We reject the application for these reasons:

• (a) Mr King has failed to show a fundamental error in procedure in this Court’s determination of his appeal or that a substantial miscarriage of justice would result if there was. Our decision to refuse Mr King’s application for an adjournment took into account all relevant factors including our satisfaction that he had abused the Court’s processes by engineering a situation where he remained unrepresented and certain medical records were unavailable. In any event, we were satisfied that none of Mr King’s grounds of appeal against his conviction or sentence were arguable.
• (b) As this Court emphasised in R v Smith, the power to recall is not be exercised where an applicant has an effective remedy reasonably available.^[2] Mr King is aware of his rights to appeal to the Supreme Court.^[3] In a minute issued on 16 December 2016, the Supreme Court referred to documents filed by Mr King in its Registry between August and November, and his later application to the Registrar to withdraw his scheduling of “a non existence application” for an appeal. Mr King’s conduct as narrated in the Supreme Court’s minute is consistent with his approach to the substantive appeal in this Court. Mr King knows of his entitlement to apply for leave to appeal but after taking affirmative steps to advance that right of appeal to the Supreme Court he has made a deliberate decision not to exercise it. He must accept the consequences.
• (c) A decision to recall within the Court’s inherent power is only made in exceptional circumstances. A party should not seek recourse to that power if it might undermine the general principle of finality. In our judgment Mr King is seeking to undermine that principle here.

[4] The application to recall is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] King v R [2015] NZCA 506.

^[2] R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA) at [36].

^[3] See minute of the Supreme Court issued in SC 133/2016, 14 December 2016.