Berrett v The the Queen - [2022] NZCA 191

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA701/2018
[2022] NZCA 191

BETWEEN	QUINTON MURRAY BERRETT Applicant
AND	THE QUEEN Respondent

Court:	Kόs P, Woolford and Dunningham JJ
Counsel:	Applicant in person S A H Bishop and M E Page for Respondent
Judgment (on the papers):	18 May 2022 at 9 am

JUDGMENT OF THE COURT

The application for recall is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

On 8 November 2019, Mr Berrett’s appeal against conviction and sentence was dismissed.[1] He now applies for a recall of the judgment.

Jurisdiction to recall criminal appeal decision

[1]Berrett v R [2019] NZCA 545.

In Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2),[2] the Supreme Court said that three categories of cases had been recognised by the New Zealand courts in which a judgment may be recalled if not already perfected, adopting the following passage from the decision of Wild J in Horowhenua County v Nash (No 2) as a convenient statement of those principles:[3]
... first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[2]Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76.
[3]At [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
While Saxmere was a civil case, in Uhrle v R the Supreme Court recently confirmed that Saxmere contained a useful statement of the principles to govern applications for recall in the criminal jurisdiction as well.[4] The Court said:
[29] As to the test to be applied, we consider that this should be formulated to make clear the decision to reopen an appeal is an exceptional step, but also to ensure the court remains able to respond to the wide variety of circumstances that may necessitate that step in order to avoid injustice. We are content that these concepts are sufficiently captured within the three grounds for recall articulated in Horowhenua County and approved in Saxmere (No 2), and in particular in the third ground: whether for any very special reason justice requires the judgment to be recalled. It is the third ground that is likely to be the most relevant in the criminal jurisdiction.
(Footnotes omitted.)

Factual background

[4]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [25].

Following a jury trial in the District Court at Whanganui between 14 and 16 May 2018, Mr Berrett was convicted of one charge of threatening to destroy property,[5] two charges of blackmail[6] and one charge of attempting to pervert the course of justice.[7] On 10 October 2018, he was…

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.

Continue reading Berrett v The the Queen

Details

AGLC: Berrett v The the Queen [2022] NZCA 191
Case: [2022] NZCA 191
Decision Date: 18 May 2022

CaseChat Overview and Summary

Quinton Murray Berrett applied to the Court of Appeal for a recall of its judgment in his criminal appeal against his conviction and sentence. The appeal was dismissed on 8 November 2019. The Court of Appeal was required to decide whether there was a very special reason for which the judgment should be recalled. In particular, the Court of Appeal had to consider whether the police expert's evidence in relation to the ability to determine the origin of the emails in question was incorrect and whether this was a very special reason for recalling the judgment.
The Court of Appeal noted that the grounds for recall are limited and that the Court is not persuaded that there was a very special reason for recalling the judgment. The Court noted that Mr Berrett's application was essentially an attempted re-run of the trial. Mr Berrett had cross-examined the police expert and had not called or given evidence to deny that he sent the four emails in question. The Court found that the material put forward on the application, namely a link to a Microsoft Office manual page entitled "View internet message headers in Outlook", was insufficient to establish a very special reason necessary to grant the application. The Court dismissed the application for recall.

Orders