Foster v R

[2021] NZSC 130

NOTE: PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS (EXCLUDING OCCUPATION) OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

 NOTE: COURT OF APPEAL ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT’S FATHER PURSUANT TO S 202 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

 NOTE: SUPPRESSION ORDER IN RELATION TO ASPECTS OF THE COURT OF APPEAL JUDGMENT PURSUANT TO S 205 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

 NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF THE NAME OF THE APPLICANT’S UNIT REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

 SC 40/2021
 [2021] NZSC 130

BETWEEN	JAMIE ANTHONY FOSTER Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	P L Borich QC for Applicant P D Marshall and S E Trounson for Respondent
Judgment:	7 October 2021

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment of 19 July 2021
(Foster v R [2021] NZSC 90) as reissued on 12 August 2021 is dismissed.

____________________________________________________________________

REASONS

1. On 19 July 2021, this Court dismissed Mr Foster’s application for leave to appeal against the decision of the Court of Appeal dismissing his appeal to that Court against his convictions for sexual violation by unlawful sexual connection and indecent assault.[1]

   [1]Foster v R [2021] NZSC 90; and Foster v R [2021] NZCA 90 (Courtney, Woolford and Mander JJ). This Court’s decision was reissued on 12 August 2021 with amendments addressing an issue relating to suppression.

2. Mr Foster now applies for recall of this Court’s judgment.  He argues that there is “a very special reason” why the Court should recall its judgment.[2]  As this Court made clear in its judgment in Uhrle v R, recall is an exceptional step. 

   [2]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29], referring to Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

3. The “very special reason” is said to be that this Court misconstrued and misapplied s 74 of the Senior Courts Act 2016.  That section provides that the Court must not give leave to appeal unless it is satisfied that it is necessary in the interests of justice for the Court to hear and determine the appeal.  The Court was not so satisfied in the present case.

4. The points advanced in support of the application take issue with the Court’s findings or involve relitigation of points already determined by the Court when refusing leave.  That is inappropriate.  The fact that a party disagrees with a decision is not “a very special reason” to recall the decision.  The applicant’s arguments that this Court misconstrued and misapplied s 74 are wrong.  The Court is not required to give leave to appeal when it considers the argument that is to be advanced if leave is given has insufficient prospects of success.[3]

   [3]LFDB v SM [2014] NZSC 197, (2014) 22 PRNZ 262 at [19]–[21]; and Ngaronoa v Attorney-General [2017] NZSC 183 at [2].

5. No reason, let alone a very special reason, for recall of the leave judgment has been established.  The application for recall is therefore dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent