Haden v Police - [2020] NZCA 498

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA171/2018
[2020] NZCA 498

BETWEEN	GRACE HADEN Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Cooper, Clifford and Collins JJ
Counsel:	Applicant in person A Markham for Respondent
Judgment: (On the papers)	16 October 2020 at 10.00 am

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment [2018] NZCA 255 is granted.
BThe application for leave is granted to determine the questions posed at [16].
CAn oral hearing is directed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Ms Haden applies for a recall of this Court’s judgment delivered on 16 July 2018, in which we declined Ms Haden’s application for leave to pursue a second appeal.[1]

Background

[1]Haden v Police [2018] NZCA 255.

In 2016, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found a practitioner guilty of a charge of negligence.[2] The Tribunal decided that the identity of the practitioner should be suppressed.[3]
[2]Waikato Bay of Plenty Standards Committee No 2 v M [2016] NZLCDT 24.
[3]Waikato Bay of Plenty Standards Committee No 2 v M [2016] NZLCDT 34.
Ms Haden decided to publish the name of the practitioner on a website called “Transparency New Zealand”. Judge Adeane found her guilty of five charges of breaching suppression orders contrary to s 263 of the Lawyers and Conveyancers Act 2006.[4]
[4]Police v Haden [2017] NZDC 28419.
Ms Haden appealed her conviction to the High Court. Her appeal was dismissed in 2018.[5] Ms Haden then sought leave to appeal to this Court in order to bring a second appeal. As we have noted at [1] that application was declined on 16 July 2018.[6]
[5]Haden v Police [2018] NZHC 498.
[6]Haden v Police, above n 1.
Ms Haden has throughout maintained that no formal suppression orders were made by the Tribunal. She now finds support for this proposition in a judgment of this Court in Siemer v Police, which considered a conviction for breaching the same suppression order.[7]
[7]Siemer v Police [2020] NZCA 178.
In Siemer, this Court:
(a)granted leave to bring a second appeal;[8] and
(b)allowed Mr Siemer’s appeal, finding that the Tribunal had not made the suppression order with sufficient clarity to found a prosecution against Mr Siemer for publishing the name of the practitioner.

Jurisdiction to recall

[8]Siemer v Police [2019] NZCA 574.

In Uhrle v R, the Supreme Court explained this Court’s recall jurisdiction is not confined to cases of fundamental procedural error.[9] In particular, a judgment may be recalled where justice requires that course be followed for very special reasons. A decision to reopen an appeal is, however, an exceptional measure that is taken only where it is necessary to do so in order to avoid an injustice.
[9]Uhrle v R [2020] NZSC 62 at [25]–[29].
Recently, in Lyon v R (No 2), this Court set out in…

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 Haden v Police

Details

AGLC: Haden v Police [2020] NZCA 498
Case: [2020] NZCA 498
Decision Date: 16 October 2020 at 10.00 am

CaseChat Overview and Summary

Ms. Grace Haden sought leave to appeal against a decision of the High Court, which dismissed her appeal against her conviction for breaching suppression orders. The Court of Appeal previously declined Ms. Haden's application for leave to appeal. Ms. Haden now seeks a recall of that decision, on the basis that the Court of Appeal has since reached a different outcome in Siemer v Police. The legal issues before the Court of Appeal were whether it had the jurisdiction to recall its earlier decision and, if so, whether the recall should be granted. The Court held that it has jurisdiction to recall its earlier decision in the circumstances of this case, even though the recall jurisdiction is not ordinarily invoked to depart from the finality principle, and that the recall should be granted to avoid an injustice. Ms. Haden's appeal against her conviction will now proceed to an oral hearing. The Court of Appeal granted Ms. Haden's application for recall and her application for leave to appeal, and directed an oral hearing.

Orders