A (SC 43/2012) v The Queen - [2015] NZSC 184

NOTE: THERE IS AN EXTANT ORDER SUPPRESSING THE NAMES AND IDENTIFYING PARTICULARS OF THE APPLICANT AND HER FATHER

IN THE SUPREME COURT OF NEW ZEALAND

SC 43/2012
[2015] NZSC 184

BETWEEN	A (SC 43/2012) Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, Arnold and O'Regan JJ
Counsel:	C Mitchell for Applicant K S Grau for Respondent
Judgment:	2 December 2015

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment ([2012] NZSC 76)
is dismissed.

____________________________________________________________________

REASONS

This is an application for recall of a judgment of this Court declining leave to appeal in a criminal matter.
The background to the application is most conveniently described in a brief chronology:
(a)On 2 November 2010, the applicant was convicted of conspiracy to commit incest and ordered to come up for sentence within 12 months if called upon. The applicant’s submission that she should be discharged without conviction was rejected by the sentencing Judge.

(b)On 19 July 2011, the applicant’s appeal against conviction was dismissed by the Court of Appeal.[1]
(c)On 24 August 2012, the applicant’s application for leave to appeal (which was filed some 13 months after the Court of Appeal decision) was dismissed by this Court.[2]
(d)On 16 October 2012, the applicant’s application to recall this Court’s judgment refusing leave was dismissed.[3]
(e)On 22 October 2015, the present application for recall was filed in this Court.
[1]A (CA747/2010) v R [2011] NZCA 328 (Glazebrook, Rodney Hansen and MacKenzie JJ).
[2]A v R [2012] NZSC 76.
[3]A v R [2012] NZSC 84.

The background to the case was summarised in this Court’s leave judgment as follows:
[2]The applicant pleaded guilty to a count of conspiracy to commit incest. It is accepted that no actual incest took place between the applicant and her natural father but plans to participate in sexual activity were made over a period of some months. The sentencing judge, in a fully reasoned decision in which he examined and rejected suggestions that the impact of a conviction would be disproportionate, rejected that submission that she be discharged without conviction. The applicant was convicted and ordered to come up for sentence within 12 months if called upon.
[3]The applicant’s appeal to the Court of Appeal was dismissed. The Court considered all matters advanced on behalf of the applicant as to the disproportionate effect of conviction. Given the permanent name suppression imposed by the judge, the Court considered that the suggestions of impact of conviction (upon the applicant’s employment and immigration status and on questions of access and custody relating to her children) were to some extent speculative, although accepting there could be such adverse effects. Nevertheless, it concluded that the “seriousness of the departure from community standards involved in [the offending]” meant that the consequences of conviction were not out of proportion to the gravity of the offending. The courts should not usurp the role of the relevant registration bodies, employers and the immigration service in assessing whether the convictions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZSC 184
Decision Date: 2 December 2015

CaseChat Overview and Summary

This case involved an applicant who had been convicted of conspiracy to commit incest. The applicant appealed the conviction and sought leave to appeal to the Supreme Court. The Supreme Court dismissed the application for leave to appeal, and the applicant then sought to recall this judgment. The Supreme Court again dismissed the recall application. The applicant was represented by C Mitchell, while K S Grau appeared for the respondent, the Crown.

The legal issues before the court were whether there were sufficient grounds to recall the Supreme Court's earlier judgment declining leave to appeal. The applicant argued that since the initial refusal of leave to appeal, she had been unable to obtain employment due to the conviction, which had led to significant mental health issues. The Crown argued that the inability to find employment was not an unexpected consequence of the conviction and therefore did not constitute a ground for recall.

The court found that while they had considerable sympathy for the applicant's situation, they did not consider it to be a ground for recalling the earlier judgment. The court noted that the sentencing decision was made with the understanding that it could adversely affect the applicant's future employment opportunities, and the fact that this had occurred did not alter that position. The court suggested that the applicant may have recourse under the Criminal Records (Clean Slate) Act 2004 after the rehabilitation period had elapsed.

The court dismissed the application for recall, maintaining that the situation facing the applicant did not provide a basis for reopening the case or recalling the earlier judgment.

Orders