| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA241/2017 [2023] NZCA 69 |
| BETWEEN | BROWNIE JOSEPH HARDING |
| AND | THE KING |
| Court: | Courtney, Venning and Lang JJ |
Counsel: | Appellant in Person |
Judgment: | 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…
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- Harding v The King [2023] NZCA 69
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- [2023] NZCA 69
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CaseChat Overview and Summary
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.
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