Harding v R [2023] NZCA 69 (22 March 2023)

Last Updated: 27 March 2023

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

CA241/2017 [2023] NZCA 69

	BETWEEN	BROWNIE JOSEPH HARDING Appellant
	AND	THE KING Respondent

Court:	Courtney, Venning and Lang JJ
Counsel:	Appellant in Person T C Didsbury for Respondent
Judgment: (On the papers)	22 March 2023 at 10.30 am

JUDGMENT OF THE COURT
[Recall]

1. The application to adduce further evidence is declined.
2. The application to recall this Court’s judgment in Harding v R [2019] NZCA 259 is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

[1] Mr Harding has applied for a second time to recall this Court’s decision dismissing his appeal against conviction for methamphetamine related offending.^[1]

[2] Only in exceptional circumstances will a judgment of this Court be recalled. In particular, recall cannot be sought as a means of relitigating issues already determined. The Court needs to be satisfied that a substantial injustice has probably resulted from the judgment sought to be recalled and that recall is the appropriate course.^[2]

[3] The relevant background can be summarised briefly. In 2016 Mr Harding pleaded guilty to 11 charges relating to the manufacture and distribution of methamphetamine. He applied unsuccessfully to vacate four of the guilty pleas.^[3]

[4] In 2019 Mr Harding appealed unsuccessfully against his conviction — this is the judgment that is the subject of the current recall application.^[4] His application for leave to appeal from that decision to the Supreme Court was refused.^[5]

[5] In November 2021, Mr Harding brought his first application for recall of the judgment dismissing his conviction appeal. The application was brought on the basis that fresh evidence had emerged following his guilty pleas that would have changed his decision to plead guilty or, at least, the facts to which he pleaded. The evidence was the statement of a police officer, which Mr Harding said showed that methamphetamine had not actually come into existence during the manufacturing process. However, the statement was available to Mr Harding at the time of the disputed facts hearing that preceded his sentencing and the officer was cross‑examined.^[6] The argument advanced on the recall application had been made before this Court in the unsuccessful conviction appeal and was rejected.^[7] Given that, and the fact that Mr Harding also had the opportunity to advance the argument in the course of his unsuccessful application to the Supreme Court for leave to appeal, there was no basis on which to recall the judgment and the application was declined.^[8]

[6] The present application for recall raises a different issue but it, too, is one that was addressed before this Court at the time of the original conviction appeal. Mr Harding says that he was pressured into pleading guilty because his then lawyer, Ms Pecotic,^[9] had told him if he did not plead guilty to the charges, the Crown would seek harsher penalties against his sons and father, who were also charged under the same investigation which led to Mr Harding being charged. He seeks to adduce the following evidence for the purposes of this application:

(a) extract of a letter from Ms Pecotic dated 2 May 2016;

(b) email from Ms Pecotic dated 14 November 2016;

(c) an affidavit of Casey Rewha dated 18 June 2019;

(d) Mr Harding’s own affidavit dated 14 September 2020 (sworn in relation to the application for leave to appeal to the Supreme Court).

[7] During his conviction appeal Mr Harding had argued that Ms Pecotic was acting in a position of conflict because she represented members of Mr Harding’s family as well as him and had conveyed to him that he should plead guilty for the sake of his family.^[10] His position was that he perceived the Crown to be threatening his family and felt he had no choice but to plead guilty.^[11]

[8] This issue was canvassed at some length in the judgment of this Court. It set out extracts from the affidavit sworn by Mr Harding for the purposes of the appeal:^[12]

On many occasions my former partner Casey Rewha pleaded with me to plead guilty, to save our family. As Maria Pecotic told her Brownie has to plead guilty or the Crown were going to punish your family.

Around April 2016 I asked Casey Rewha to email Maria Pecotic as part of my instructions, that I wanted to take all charges to trial.

I received a hand delivered letter dated 2^nd May 2016 from Maria Pecotic.

In this letter it stated: At a special callover and through my discussions with the crown, the resolution of your case also has an effect on how the crown would treat your family ...

[9] The judgment also referred to Ms Pecotic’s evidence, and to her file note of 23 May 2016 recording that:^[13]

[Mr Harding] is aware that at the moment – his resolving the case impacts on his family – so [I] would really like him to make up his mind sooner rather than later. I have already organised to get other lawyers involved in the case to assist as he knows.

...

At the end of the day it is [his] decision what he wants to do – if he takes the case to trial we [will] talk about the risks – in all likelihood his entire family excluding his dad will be in the dock with him.

...

We have [had] a lot of discussion over what would happen at trial and how a trial would run – and how he could handle giving evidence about all of this – talk[ed] about it being a Whangarei jury and how I am not sure what they are like – but juries do not like methamphetamine – you have to have a cast iron defence. Based on what he has told me – I do not like his chances. He says he wants to give evidence for his dad – I say that can happen if that situation arises. But it would not be a good idea to give evidence at his own trial thinking he can get everyone off – he could do a really bad job and make it 10 times worse for everyone else. At the moment the others could blame him – it is a little hard for them to do that with him sitting right there – saying he didn’t do anything and is not involved.

[10] This Court accepted Ms Pecotic’s file note as an accurate record of the discussions between her and Mr Harding about the effect his position could have on his family. It was considered very likely that Mr Harding had been influenced by family considerations in making the decision to plead, but it was not accepted that there was any improper influence by Ms Pecotic.^[14]

[11] Mr Harding raised this issue in his unsuccessful application for leave to appeal to the Supreme Court. The Court considered the conclusion reached by this Court and said that nothing Mr Harding had raised gave rise to an appearance of a miscarriage of justice in relation to this Court’s assessment of the facts.^[15]

[12] None of the evidence that Mr Harding wishes to rely on now is fresh. The letter from Ms Pecotic dated 2 May 2016 and her email of 14 November 2016 pre-dated the conviction appeal and the former was relied on in the conviction appeal.^[16] Ms Rewha’s affidavit is not fresh; it was sworn between the date of the conviction appeal hearing and the delivery of the judgment. If Mr Harding had wished to rely on it he could have sought leave to do so. Self-evidently, it was available at the time of the application for leave to appeal to the Supreme Court. In any event, it does not add anything to the relevant facts or the inferences to be drawn from them. Mr Harding’s own affidavit of 14 September 2020 was sworn in the context of the application for leave to appeal to the Supreme Court. It essentially reflects Mr Harding’s complaint that he felt he had no choice but to plead guilty in order to protect his family and does not add anything new. Nor could any of the evidence now sought to be relied on affect the conclusions reached by this Court and by the Supreme Court.

[13] Recalling the judgment would lead to the relitigating of an issue that has been fully argued and considered in this Court, and in respect of which the Supreme Court was unable to identify any appearance of a miscarriage of justice. No possible basis exists for recall.

Result

[14] The application to adduce further evidence is declined.

[15] The application to recall this Court’s judgment in Harding v R [2019] NZCA 259 is dismissed.





Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Harding v R [2019] NZCA 259 [Conviction appeal judgment].

^[2] S(SC39/2017) v R [2022] NZSC 7; and Lyon v R [2020] NZCA 430 at [34].

^[3] Harding v Police [2017] NZHC 1188 at [92].

^[4] Conviction appeal judgment, above n 1. Mr Harding also appealed his sentence. That appeal was dismissed as well: Harding v R [2020] NZCA 217. However, the Supreme Court granted Mr Harding leave to appeal that decision, and that appeal against sentence was ultimately allowed: Berkland v R [2022] NZSC 143

^[5] Harding v R [2020] NZSC 127 [Supreme Court leave judgment].

^[6] R v Harding [2017] NZHC 1181.

^[7] Conviction appeal judgment, above n1, at [34]–[36].

^[8] Harding v R [2022] NZCA 66.

^[9] Now District Court Judge Pecotic.

^[10] Conviction appeal judgment, above n 1, at [19].

^[11] At [23].

^[12] At [22].

^[13] At [25].

^[14] At [26].

^[15] Supreme Court leave judgment, above n 5, at [16].

^[16] Conviction appeal judgment, above n 1, at [23].