Cullen v The Queen

[2014] NZCA 429

IN THE COURT OF APPEAL OF NEW ZEALAND

CA769/2013
[2014] NZCA 429

BETWEEN	RHYS MICHAEL CULLEN Applicant
AND	THE QUEEN Respondent

Court:

White, Keane and MacKenzie JJ

Counsel:

Applicant in person
J E Mildenhall for Respondent

Judgment:

(On the papers)

2 September 2014 at 12 pm

JUDGMENT OF THE COURT

The application by Mr Cullen to recall the judgment of this Court dated 14 July 2014 is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

1. Mr Cullen, now representing himself, applies for a recall of our judgment dated 14 July 2014 dismissing his appeal against conviction on 15 counts of receiving stolen motor vehicles.[1]

   [1]Cullen v R [2014] NZCA 325.

2. The basis for the application is Mr Cullen’s contention that the Court did not address two “plainly relevant” and important arguments on the appeal, namely:

   (a)The significance of s 19 of the Secondhand Dealers and Pawnbrokers Act 2004 (the SDP Act) relating to transactions entered into by employees of Tamaki Metals Ltd (TML); and

   (b)The application of s 246(3) of the Crimes Act 1961 relating to the time when the crime of receiving is complete.

3. This Court has an inherent power in criminal cases to revisit its decisions in exceptional circumstances when required by the interests of justice.[2]  The principles are set out in R v Smith:

   [36]      ... The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice.  Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”.  Recourse to the power to reopen must not undermine the general principle of finality.  It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available.  Without such response, public confidence in the administration of justice would be undermined.

   [2]R v Smith [2003] 3 NZLR 617 (CA). See also Wong v R [2011] NZCA 563 at [10]–[21].

4. We do not consider this case is one of these exceptional cases. 

5. The relevant provisions of the SDP Act were addressed in our judgment.[3]  We rejected the principal submission for Mr Cullen that the acts of other employees should be attributed to TML.[4] 

   [3]At [5], [26(d)] and [28].

   [4]At [27]–[34].

6. The argument relating to the point of time at which recklessness for the crime of receiving had to be established was also addressed.[5]  The role of other employees was expressly considered in this context.[6]

   [5]At [37]–[42].

   [6]At [38].

7. We are therefore not persuaded that a fundamental error in procedure occurred resulting in a substantial miscarriage of justice.

8. Furthermore, there is an alternative effective remedy reasonably available to Mr Cullen, namely his right to seek leave to appeal to the Supreme Court.  We understand that he has in fact exercised that right.

9. Accordingly, the application by Mr Cullen to recall the judgment of this Court dated 14 July 2014 is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent