Harding v The Queen - [2020] NZCA 579

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA673/2018
[2020] NZCA 579

BETWEEN	BROWNIE JOSEPH HARDING Appellant
AND	THE QUEEN Respondent

Court:	Brown, Wylie and Whata JJ
Counsel:	Applicant in person K S Grau for Respondent
Judgment: (On the papers)	20 November 2020 at 11.30 am

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment in Harding v R [2019] NZCA 370 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Following a jury trial Mr Harding was convicted of kidnapping (unlawful detention of victim with consent obtained by duress) and male assaults female.[1] On 9 November 2010 he was sentenced to two years and six months’ imprisonment.[2] His appeal against sentence scheduled for hearing in September 2011 was abandoned. His application for the leave of this Court some six years later to withdraw his notice of abandonment was declined in November 2017.[3]
[1]He was acquitted on an alternative charge of kidnapping (unlawful detention without consent) and one of threatening to kill.
[2]R v Harding DC Whangarei, CRI-2009-088-3107.
[3]Harding v R [2017] NZCA 538.
In late 2018 he filed an appeal against both his conviction and sentence. This Court treated the proceeding as an application for an extension of time to appeal the conviction and an application for leave to bring a second sentence appeal. The applications were heard in June 2019 and dismissed in a judgment delivered on 16 August 2019.[4]
[4]Harding v R [2019] NZCA 370.
Mr Harding now seeks recall of that judgment.

The recall jurisdiction

In Uhrle v R[5] the Supreme Court held that the recall jurisdiction in the criminal jurisdiction is sufficiently captured within the three grounds articulated in Horowhenua County v Nash (No 2).[6] Relevantly for present purposes a judgment may be recalled where justice requires it for some very special reason.
[5]Uhrle v R [2020] NZSC 62 at [29].
[6]At [29]. See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 approved in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
In the light of Uhrle this Court took the opportunity in Lyon v R to examine the exercise of the recall jurisdiction as it applies to criminal proceedings in this Court.[7] The Court concluded:
[34] Following Uhrle, the reach of the recall jurisdiction is as extensive as the interests of justice require. And where grounds for recall clearly exist, the Court will continue to take a pragmatic approach. But exercise of the jurisdiction will remain exceptional, meaning that a recall application will succeed only when it can be shown, on the hearing of the recall application, that a substantial injustice has probably resulted from the decision to be recalled, and further that recall is the appropriate remedy. Recall applications which seek to relitigate the merits of this Court’s decision, or which allege a miscarriage of justice…

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 Queen

Details

AGLC: Harding v The Queen [2020] NZCA 579
Case: [2020] NZCA 579
Decision Date: 20 November 2020 at 11.30 am

CaseChat Overview and Summary

Brownie Joseph Harding, the appellant, sought a recall of the Court of Appeal's judgment concerning his conviction for kidnapping and assault of a female. The appeal against his conviction and sentence, initially dismissed in August 2019, was now being reconsidered. The Court of Appeal, comprising Brown, Wylie, and Whata JJ, was tasked with determining whether the appeal judgment should be recalled. The primary legal issues involved assessing whether justice required the recall of the earlier judgment due to a substantial injustice, and whether the appellant's rights to appeal had been exhausted.

The Court examined whether there were exceptional circumstances justifying the recall of the judgment, considering the appellant's failure to exhaust his statutory rights to appeal. The Court noted that while the appellant could theoretically appeal directly to the Supreme Court, it was highly unlikely that he would meet the threshold for such an appeal. The Court further examined the merits of the appellant's arguments and concluded that they did not present a credible suggestion of a miscarriage of justice. The evidence supported the jury's finding that the appellant had intended to detain the complainant by holding onto his son, and there was no basis to believe that the appellant's detention of his son was unrelated to the complainant's detention.

The Court held that the application for recall was unlikely to succeed because it did not demonstrate a substantial injustice resulting from the earlier decision. The Court emphasized that the recall jurisdiction should be exercised sparingly, particularly in cases involving domestic violence, where there is a strong public interest in the final determination of such matters. The Court also reiterated its earlier reasoning on the insufficiency of the proposed grounds for a second sentence appeal. Consequently, the application for recall was dismissed.

Orders