Harding v The King - [2023] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA241/2017
[2023] NZCA 69

BETWEEN	BROWNIE JOSEPH HARDING Appellant
AND	THE KING Respondent

Court:	Courtney, Venning and Lang JJ
Counsel:	Appellant in Person T C Didsbury for Respondent
Judgment: (On the papers)	22 March 2023 at 10.30 am

JUDGMENT OF THE COURT
[Recall]

AThe application to adduce further evidence is declined.
BThe application to recall this Court’s judgment in Harding v R [2019] NZCA 259 is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Mr Harding has applied for a second time to recall this Court’s decision dismissing his appeal against conviction for methamphetamine related offending.[1]
[1]Harding v R [2019] NZCA 259 [Conviction appeal judgment].
Only in exceptional circumstances will a judgment of this Court be recalled. In particular, recall cannot be sought as a means of relitigating issues already determined. The Court needs to be satisfied that a substantial injustice has probably resulted from the judgment sought to be recalled and that recall is the appropriate course.[2]
[2]S(SC39/2017) v R [2022] NZSC 7; and Lyon v R [2020] NZCA 430 at [34].
The relevant background can be summarised briefly. In 2016 Mr Harding pleaded guilty to 11 charges relating to the manufacture and distribution of methamphetamine. He applied unsuccessfully to vacate four of the guilty pleas.[3]
[3]Harding v Police [2017] NZHC 1188 at [92].
In 2019 Mr Harding appealed unsuccessfully against his conviction — this is the judgment that is the subject of the current recall application.[4] His application for leave to appeal from that decision to the Supreme Court was refused.[5]
[4]Conviction appeal judgment, above n 1. Mr Harding also appealed his sentence. That appeal was dismissed as well: Harding v R [2020] NZCA 217. However, the Supreme Court granted Mr Harding leave to appeal that decision, and that appeal against sentence was ultimately allowed: Berkland v R [2022] NZSC 143
[5]Harding v R [2020] NZSC 127 [Supreme Court leave judgment].
In November 2021, Mr Harding brought his first application for recall of the judgment dismissing his conviction appeal. The application was brought on the basis that fresh evidence had emerged following his guilty pleas that would have changed his decision to plead guilty or, at least, the facts to which he pleaded. The evidence was the statement of a police officer, which Mr Harding said showed that methamphetamine had not actually come into existence during the manufacturing process. However, the statement was available to Mr Harding at the time of the disputed facts hearing that preceded his sentencing and the officer was cross‑examined.[6] The argument advanced on the recall application had been made before this Court in the unsuccessful conviction appeal and was rejected.[7] Given that, and the fact that Mr Harding also had the opportunity to advance the argument in the course of his unsuccessful application to the Supreme Court for leave to appeal, there was no basis on which to recall the judgment…

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 Harding v The King

Details

AGLC: Harding v The King [2023] NZCA 69
Case: [2023] NZCA 69
Decision Date: 22 March 2023 at 10.30 am

CaseChat Overview and Summary

Brownie Joseph Harding has appealed against the dismissal of his second application to recall the Court of Appeal's judgment dismissing his appeal against conviction for methamphetamine related offending. The Court of Appeal dismissed his first application to recall in 2022. The Court of Appeal was asked to decide whether the judgment should be recalled on the basis that Harding was pressured into pleading guilty because his then lawyer, Maria Pecotic, told him that if he did not plead guilty, the Crown would seek harsher penalties against his sons and father, who were also charged under the same investigation. The Court of Appeal found that none of the evidence that Harding wishes to rely on now is fresh and recalling the judgment would lead to the relitigating of an issue that has been fully argued and considered in this Court, and in respect of which the Supreme Court was unable to identify any appearance of a miscarriage of justice. No possible basis exists for recall.

The Court of Appeal concluded that the application to adduce further evidence is declined and the application to recall this Court’s judgment in Harding v R [2019] NZCA 259 is dismissed.

Orders