Haden v Police [2020] NZCA 498 (16 October 2020)

Last Updated: 19 October 2020

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

CA171/2018 [2020] NZCA 498

	BETWEEN	GRACE HADEN Applicant
	AND	NEW ZEALAND POLICE Respondent

Court:	Cooper, Clifford and Collins JJ
Counsel:	Applicant in person A Markham for Respondent
Judgment: (On the papers)	16 October 2020 at 10.00 am

JUDGMENT OF THE COURT

1. The application for recall of this Court’s judgment [2018] NZCA 255 is granted.
2. The application for leave is granted to determine the questions posed at [16].

100. An oral hearing is directed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

• [1] Ms Haden applies for a recall of this Court’s judgment delivered on 16 July 2018, in which we declined Ms Haden’s application for leave to pursue a second appeal.^[1]

Background

• [2] In 2016, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found a practitioner guilty of a charge of negligence.^[2] The Tribunal decided that the identity of the practitioner should be suppressed.^[3]
• [3] Ms Haden decided to publish the name of the practitioner on a website called “Transparency New Zealand”. Judge Adeane found her guilty of five charges of breaching suppression orders contrary to s 263 of the Lawyers and Conveyancers Act 2006.^[4]
• [4] Ms Haden appealed her conviction to the High Court. Her appeal was dismissed in 2018.^[5] Ms Haden then sought leave to appeal to this Court in order to bring a second appeal. As we have noted at [1] that application was declined on 16 July 2018.^[6]
• [5] Ms Haden has throughout maintained that no formal suppression orders were made by the Tribunal. She now finds support for this proposition in a judgment of this Court in Siemer v Police, which considered a conviction for breaching the same suppression order.^[7]
• [6] In Siemer, this Court:

(a) granted leave to bring a second appeal;^[8] and

(b) allowed Mr Siemer’s appeal, finding that the Tribunal had not made the suppression order with sufficient clarity to found a prosecution against Mr Siemer for publishing the name of the practitioner.

Jurisdiction to recall

• [7] In Uhrle v R, the Supreme Court explained this Court’s recall jurisdiction is not confined to cases of fundamental procedural error.^[9] In particular, a judgment may be recalled where justice requires that course be followed for very special reasons. A decision to reopen an appeal is, however, an exceptional measure that is taken only where it is necessary to do so in order to avoid an injustice.
• [8] Recently, in Lyon v R (No 2), this Court set out in detail the basis upon which it will consider recall applications in criminal cases emphasising the exceptional nature of such a step.^[10]

Parties’ positions

• [9] Ms Haden contends we should recall our 2018 judgment because in 2020 this Court reached what she says is a different outcome from that which was reached in her case.
• [10] Ms Markham, counsel for the respondent, submits:

(a) There was no procedural error in this Court’s decision declining Ms Haden’s application for leave to appeal.

(b) The delivery of a subsequent, apparently conflicting, judgment of this Court is not a basis for departing from the finality principle.

(c) Ms Haden is not without an alternative remedy. Ms Markham submits she could seek leave to appeal to the Supreme Court from the judgment of the High Court.^[11]

Analysis

• [11] We agree with Ms Markham that:

(a) there was no procedural error in this Court’s leave judgment; and

(b) an apparently conflicting subsequent judgment from this Court will not normally justify recall of an earlier judgment.

• [12] The recall jurisdiction will not normally be appropriate “where the applicant has a further statutory right of appeal, or to seek leave to do so”.^[12]
• [13] Where this Court declines leave to bring a second appeal, as it did in Ms Haden’s case, there is no statutory jurisdiction for the Supreme Court to grant leave to appeal against that decision.^[13] However, the Supreme Court may grant leave to appeal directly from a decision of the High Court where this Court has refused to grant leave. In Sena the Supreme Court described such cases as being rare and exceptional, and thus of a similar character to those which properly engage this Court’s recall jurisdiction. The essence of the jurisdiction is the need to avoid injustice.
• [14] Consistent with that approach, we are satisfied that this is one of those rare and unusual cases in which the interests of justice require us to recall our earlier judgment, and grant Ms Haden leave to appeal the decision of the High Court. The recall is justified for the following reasons:

(a) Ms Haden has consistently maintained the Tribunal had not made a suppression order with sufficient clarity to sustain her conviction. This Court accepted that argument when determining Mr Siemer’s appeal.

(b) Ms Haden’s appeal has not been considered by this Court. Instead her application for leave has been declined.

(c) The same ruling by the Tribunal has given rise to both Ms Haden and Mr Siemer’s convictions being challenged on identical grounds. As matters stand, Ms Haden has not had the opportunity to argue in this Court that her conviction should be quashed.

• [15] These are very special reasons which make it appropriate in the circumstances that Ms Haden be given the opportunity to address the relevant issues on appeal. Denying her that opportunity causes a manifest injustice, even if there is a possibility that, upon considering Ms Haden’s appeal, the Court might uphold her conviction.
• [16] Leave is granted on the following questions:

(a) Did the High Court err in Haden v Police [2018] NZHC 498 in finding the Tribunal’s decision was sufficient to constitute an order under s 240 of the Lawyers and Conveyancers Act in the circumstances of this case?

(b) If the answer to the question in (a) is answered in favour of Ms Haden, should her convictions be quashed?

Result

• [17] The application for recall is granted.
• [18] The application for leave to appeal is granted on the questions set out at [16].
• [19] An oral hearing is directed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Haden v Police [2018] NZCA 255.

^[2] Waikato Bay of Plenty Standards Committee No 2 v M [2016] NZLCDT 24.

^[3] Waikato Bay of Plenty Standards Committee No 2 v M [2016] NZLCDT 34.

^[4] Police v Haden [2017] NZDC 28419.

^[5] Haden v Police [2018] NZHC 498.

^[6] Haden v Police, above n 1.

^[7] Siemer v Police [2020] NZCA 178.

^[8] Siemer v Police [2019] NZCA 574.

^[9] Uhrle v R [2020] NZSC 62 at [25]–[29].

^[10] Lyon v R (No 2) [2020] NZCA 430.

^[11] Sena v Police [2018] NZSC 92 at [4]; and Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [3].

^[12] Lyon v R (No 2), above n 10, at [18].

^[13] Criminal Procedure Act 2011, s 213(3); and see for example Gorgus v R [2016] NZSC 161 at [3].