McMillan v R [2021] NZCA 146 (30 April 2021)

Last Updated: 4 May 2021

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

CA103/2011 [2021] NZCA 146

	BETWEEN	SERA MCMILLAN Applicant
	AND	THE QUEEN Respondent

Court:	French, Brown and Courtney JJ
Counsel:	M T Fitzgerald for Applicant J E Mildenhall for Respondent
Judgment: (On the papers)	30 April 2021 at 9 am

JUDGMENT OF THE COURT

The judgment of this Court in McMillan v R of 6 September 2011 is recalled and orders are made as set out at [8].
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REASONS OF THE COURT

(Given by French J)

Introduction

• [1] In 2010 Ms McMillan pleaded guilty to one charge of possessing cannabis for sale,^[1] one charge of possessing utensils for consuming cannabis^[2] and one charge of possessing cannabis oil.^[3] On 28 January 2011 Judge Garland sentenced her to one year and nine months’ imprisonment.^[4] She successfully appealed her sentence to this Court. The sentence of imprisonment was quashed and substituted with one of four months’ home detention.^[5]
• [2] Recently, after contacting the Ministry of Justice regarding her eligibility under the clean slate scheme, Ms McMillan discovered that her conviction for possessing cannabis oil continues to show a sentence of imprisonment on her conviction history.
• [3] Counsel filed a joint memorandum submitting that the anomaly in Ms McMillan’s conviction history is due to some accidental slip or omission that occurred when the sentence appeal was heard — this Court’s 2011 decision does not mention the charge of possessing cannabis oil and there does not appear to be any basis for this omission. Counsel requested that the judgment be amended under r 45B of the Court of Appeal (Criminal) Rules 2001 so that Ms McMillan’s conviction history accurately reflects the judgment of this Court.

Discussion

• [4] We have made enquiries and are satisfied that, due to an error, the charge of possessing cannabis oil ought to have been drawn to this Court’s attention at the time of the sentence appeal but was not. However, we consider that the most appropriate course of action is to recall the 2011 judgment and reissue it with the necessary corrections.
• [5] The scope of this Court’s recall jurisdiction in criminal proceedings has recently been clarified in the decisions of Uhrle v R and Lyon v R.^[6] There are three categories of cases in which recall may be granted:

(a) There has been a legislative change or new decision since the hearing.

(b) A relevant authority or legislative provision was overlooked by the court whose decision is sought to be recalled.

(c) For some other very special reason justice requires that the judgment be recalled.

• [6] For important reasons of policy and principle explained in Lyon, recall is exceptional.^[7] However, we consider this is one of the rare cases where justice requires recall for some very special reason. Ms McMillan can point to a clear basis on which this Court’s decision can be impeached and there is no other effective remedy available to her. In our opinion the amendments required are too extensive to be made under r 45B, which is used to correct slips and omissions that do not alter the substance of the decision.^[8]

Result

• [7] We recall the judgment of this Court in McMillan v R of 6 September 2011.^[9]
• [8] The judgment is amended and reissued as follows:

(a) The following sentence is to be inserted before the sentence beginning “They were sentenced” in [1]:

Both Mr Hotai and Ms McMillan had also pleaded guilty to possessing cannabis oil.

(b) The following paragraph is to be inserted after [10]:

The Judge also sentenced Ms McMillan to one month’s imprisonment each on the charges of possessing utensils for consuming cannabis and possessing cannabis oil, to be served concurrently.

(c) The words “in respect of all the charges” are to be inserted after the word “quashed” in the final paragraph.



Solicitors:
Porirua Kapiti Community Law Centre, Porirua for Applicant
Crown Law Office, Wellington for Respondent

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^[1] Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2)(c).

^[2] Sections 13(1)(a) and 13(3).

^[3] Sections 7(1)(a) and (7)(2)(b).

^[4] R v Hotai DC Palmerston North CRI-2010-054-1227, 28 January 2011.

^[5] McMillan v R [2011] NZCA 392 [Results judgment]; and McMillan v R [2011] NZCA 442 [Reasons judgment].

^[6] Uhrle v R [2020] NZSC 62; and Lyon v R [2020] NZCA 430.

^[7] At [6].

^[8] Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [22], citing R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA).

^[9] Reasons judgment, above n 5.