Clarke v Department of Corrections

[2012] NZHC 1764

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-463-55 [2012] NZHC 1764

BETWEEN  NEIL CLARKE Appellant

ANDDEPARTMENT OF CORRECTIONS Respondent

Hearing:         19 July 2012 (by telephone) Counsel:   N Clarke, Appellant in person

S T Simmers for Respondent

Judgment:      19 July 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Rotorua
Copy to:

Mr P N Clarke, 4 Hill Street, Hamilton Lakes          email: [email protected]

CLARKE V DEPARTMENT OF CORRECTIONS HC ROT CRI 2011-463-55 [19 July 2012]

[1]      Mr Clarke, formerly known as Mr Gilbert, has sought leave to appeal to the Court of Appeal against my judgment of 2 May 2012,[1]  in which I dismissed his appeal against conviction and sentence on a charge of breaching a condition of a sentence of home detention.  The circumstances are set out in my earlier judgment.

[1] Gilbert v New Zealand Police [2012] NZHC 873.

[2]      Mr Clarke did not have an opportunity to be heard before me for reasons that are identified in my earlier judgment.

[3]      I have heard from Mr Clarke and Mr Simmers, for the Police, by telephone today.  As a result of additional information provided by Mr Clarke, I am satisfied that he ought to have the opportunity to put that before me for further consideration.

[4]      In those circumstances, I treat Mr Clarke’s application as one to recall my

judgment of 2 May 2012.  I do so and make an order reinstating the appeal.[2]

[2] The jurisdictional basis to make a decision of this type was discussed in Brogden v Arnold

[2002] NZAR 80 (HC) at [12] and [13].

[5]      On or before 10 August 2012, Mr Clarke shall file and serve on Mr Simmers further submissions in writing with any supporting documentary evidence that he wishes me to consider in support of his appeal.

[6]      On  or  before  17  August  2012,  Mr  Simmers  shall  file  and  serve  any submissions in response.

[7]      On receipt of those submissions, the Registrar shall refer the appeal back to me and I will determine it afresh on the papers.  Mr Clarke understands and accepts

that there will be no further oral hearing.

P R Heath J