Wilmhurst-Reti v R [2019] NZCA 233 (19 June 2019)

Last Updated: 2 July 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA499/2018 [2019] NZCA 233

	BETWEEN	ZACHARY WILMSHURST-RETI Appellant
	AND	THE QUEEN Respondent

Court:	Williams, Peters and Gendall JJ
Counsel:	N P Bourke for Appellant J E L Carruthers for Respondent
Judgment: (On the papers)	19 June 2019 at 10.00 am

JUDGMENT OF THE COURT

1. The application for recall of this Court’s judgment [2019] NZCA 167 is granted.
2. The judgment is recalled.

100. The judgment is amended and reissued with paragraphs [47], [48], [50] and Orders C, D and F deleted and a new paragraph [47] substituted which reads as follows: “A judgment of acquittal is entered with respect to the charge of wounding with reckless disregard.”

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REASONS OF THE COURT

(Given by Gendall J)

Application for recall

[1] Mr Wilmshurst-Reti was convicted after a judge-alone trial in the District Court at New Plymouth of wounding with reckless disregard and was sentenced to a term of imprisonment of two years and four months.^[1] He appealed successfully to this Court against his conviction but, given that conclusion, there was no need to consider his sentence appeal.^[2] He now applies for recall of that judgment solely with respect to the direction we had made in the judgment for a retrial. In its place, Mr Wilmshurst-Reti seeks that this Court should substitute a direction that a judgment of acquittal be entered.

Background

[2] Mr Wilmshurst-Reti’s original conviction in the District Court for wounding with reckless disregard was entered on 1 June 2018. The incident in question had occurred in the evening on a roadside on the outskirts of New Plymouth. The complainant was standing with friends alongside the roadway having been turned away from a crowded house party. A number of cars were parked on the roadside and a further car pulled up. Inside was a woman and two men, Mr Wilmshurst-Reti and his cousin. Both men got out, one from the front passenger’s seat and one from behind the driver.
[3] One of these men shoulder-barged one of the complainant’s friends. The Judge found the complainant had words with one of the men who then pushed the complainant onto the road. An oncoming car travelling at about 100 kilometres per hour struck the complainant and he suffered very serious injuries.
[4] Immediately afterwards, Mr Wilmshurst-Reti, his cousin and their female companion got into their car and left the scene.
[5] As we have noted, Mr Wilmshurst-Reti was convicted in the District Court at New Plymouth on one charge of wounding with reckless disregard.^[3]

The appeal

[6] On Mr Wilmshurst-Reti’s original appeal to this Court, we held among other things, that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice had occurred. In our judgment at [42] we held that “[l]ooking at the evidence as a whole, we find here that there is no reasonable basis on which the Judge could have found the charge proved beyond reasonable doubt.”
[7] And, further, at [43] we found that “[t]he evidence before the Judge was not sufficiently clear to show beyond reasonable doubt that the appellant was the person who pushed the victim onto the roadway”.
[8] Our judgment quashed the conviction for wounding with reckless disregard and ordered a retrial. The present recall application is brought in reliance on s 233 of the Criminal Procedure Act 2011. That section provides that if this Court allows a first appeal, it must set aside the conviction and, amongst other options, it may direct that either a new trial be held or a judgment of acquittal be entered.

This Court’s power to revisit its own decisions

[9] The decision of this Court to allow Mr Wilmshurst-Reti’s appeal and to direct a retrial was a final decision. This Court in R v De Mey has noted:^[4]

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 [2002] NZCA 335; [2003] 3 NZLR 617 para [36]). In all other circumstances a person who is dissatisfied with a judgment of [the Court of Appeal] must seek a remedy by way of appeal to the Supreme Court of New Zealand.

[10] In that earlier mentioned decision, R v Smith, this Court stated:^[5]

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.

The merits of an acquittal

[11] Responding to Mr Wilmshurst-Reti’s present application, the Crown has filed a memorandum which states:

...

2. The Crown agrees in large part with the points made by the appellant. On finding there to have been insufficient evidence to sustain a guilty verdict, the orthodox course would have been to enter an acquittal.
3. That said, the point is largely academic now¹ as the Crown sought — and was granted — leave to withdraw the charge in the District Court on the grounds that it is not in the public interest to proceed to a retrial...

^{_____________________________________}

1. “Arguably” because withdrawal of a charge under the Criminal Proceedings Act 2011 does not necessarily preclude the relaying of the same charge in the future, though the circumstances would likely have to be exceptional.

[12] In exercising the discretion under s 233 of the Criminal Procedure Act to either enter a judgment of acquittal or direct a new trial be held, this Court is faced with no hard and fast rules. Notwithstanding that, it seems New Zealand courts have generally declined to order a new trial in situations where a conviction has been set aside because it cannot be sustained having regard to the evidence. This is in line with the approach taken by the Privy Council in Reid v R which held that:^[6]

Save in circumstances so exceptional that their Lordships cannot readily envisage them [the power to order a new trial] ought not to be exercised where, as in the instant case, a reason for setting aside the verdict is that the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury even if properly directed. It is not in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant.

[13] We accept that R v Smith establishes that, notwithstanding principles of finality, this Court does have an inherent power to reopen an appeal in exceptional circumstances where the interests of justice require. The Court’s jurisdiction to hear Mr Wilmshurst-Reti’s appeal was a statutory one and the inherent power to reopen is strictly limited, as the decision in R v Smith makes clear.
[14] In our earlier decision allowing Mr Wilmshurst-Reti’s appeal, essentially, we found that his conviction was to be set aside because it could not be sustained having regard to the evidence which was before the Judge. With this in mind, and noting the submissions advanced for the Crown, first that the recall application was not opposed and, secondly, that although the point was largely academic now, the orthodox course in these circumstances would have been to enter an acquittal, we are satisfied the application for recall does come within the criteria set out in R v Smith and the broad interests of justice here mean that this is an appropriate case for the exercise of this Court’s limited power to reopen the earlier judgment.
[15] A retrial should not have been ordered and an acquittal is to be substituted in its place. We note that in a second memorandum dated 28 May 2019, counsel advises that Mr Wilmshurst-Reti wishes to seek compensation for which the acquittal he has sought was necessary. That is a matter for Mr Wilmshurst-Reti. We took no account of any intended compensation application he may choose to make in our ultimate conclusion that acquittal was the correct result.

Result

[16] Mr Wilmshurst-Reti’s application for recall in respect of the direction for retrial is granted.
[17] Orders are now made as follows:

• (a) This Court’s judgment in [2019] NZCA 167 is recalled.
• (b) The judgment is amended and reissued with paragraphs [47], [48], [50] and Orders C, D and F of that judgment deleted and a new paragraph [47] substituted which reads as follows: “A judgment of acquittal is entered with respect to the charge of wounding with reckless disregard.”

Solicitors:
Crown Law Office, Wellington, for Respondent

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^[1] R v Wilmshurst-Reti [2018] NZDC 16251.

^[2] Wilmshurst-Reti v R [2019] NZCA 167.

^[3] R v Wilmshurst-Reti [2018] NZDC 10679.

^[4] R v De Mey CA44/05, 28 April 2005 at [4].

^[5] R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA) at [36].

^[6] Reid v R [1980] AC 343 (PC) at 349–350.