Harding v The Queen
[2020] NZCA 579
•20 November 2020 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA673/2018 [2020] NZCA 579 |
| BETWEEN | BROWNIE JOSEPH HARDING |
| AND | THE QUEEN |
| Court: | Brown, Wylie and Whata JJ |
Counsel: | Applicant in person |
Judgment: | 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.
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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 at first instance, are likely to be dismissed on the ground that the applicant must exhaust their statutory appeal rights.
Discussion
[7]Lyon v R (No 2) [2020] NZCA 430.
As this Court stated in Lyon the recall jurisdiction is not ordinarily available where the applicant has a further statutory right to either appeal or seek leave to do so.[8] Ms Grau first observed that Mr Harding has not exhausted his rights of appeal. Technically that submission is correct because Mr Harding is entitled to seek to appeal the lower court decision directly to the Supreme Court. However such a course is only available where exceptional circumstances are established[9] and we consider that there is no realistic possibility of Mr Harding attaining that threshold.
[8]At [18].
[9]Supreme Court Act 2003, s 14.
In addressing the application for an extension of time to appeal against conviction the Court addressed the considerations referred to in R v Lee.[10] It concluded that the prosecution case was strong and the merits of the proposed appeal weak. Other factors which supported the refusal of an extension of time to appeal were the ten year interval since the offending, the delay in making the application for an extension of time together with the absence of explanation, and the fact that the sentence had been served several years ago.
[10]R v Lee [2006] 3 NZLR 42 (CA) at [99].
Mr Harding’s submissions in support of recall emphasised the point raised in his 2018 application that although he had been holding his son, that had not been for the purpose of detaining the complainant in the motor vehicle. However on the evidence we consider that the jury was entitled to conclude that Mr Harding’s object was to prevent the complainant leaving the motor vehicle. In that connection we note the following description of events by the trial judge on sentencing:
[4]What did happen is clearly you wanted to talk to the complainant. She did not want to talk to you, she wanted to go. You suggested going to the Blue Goose and I accept her evidence on that point. At that stage she got frightened and wanted to get out of the car, but you did not want her to go because you wanted to have that discussion. So, you did the one thing that you knew would stop her getting out of the car; you grabbed hold of your son and you hung onto him. She got into a struggle with you, trying to get her son so she could leave the car. You did not let her initially. During the struggle she made a movement to get out of the car, you pulled her back and she ended up literally on the back with her head between the two seats. An independent witness saw your arm in the vicinity of her head or chest area. The complainant said that you had your forearm across her throat. I have seen the photographs, I listened to the evidence, and I am satisfied that that is what happened.
[5]Accordingly, the jury came to the decision that you had kidnapped the complainant, simply by keeping her in that car, using her son as the way in which to keep her there. You mostly certainly assaulted her by putting your forearm over her throat in an attempt to stop her getting her son.
In our view the recall application contains no credible suggestion of a miscarriage of justice. The maintenance of the public interest in the administration of justice weighs heavily against the application for, as the judgment noted, there is a strong public interest in the final determination of cases involving domestic violence.
In declining Mr Harding’s application for leave to bring a second sentence appeal our judgment recited the explanation for the six month uplift contained in this Court’s 2017 judgment declining leave to withdraw the earlier notice of abandonment of a sentence appeal.[11] In our view that explanation demonstrated why Mr Harding’s proposed ground of appeal based on the New Zealand Bill of Rights Act 1990 was misconceived.
[11]See Harding v R, above n 3, at [11]–[12].
In his submissions in support of recall Mr Harding revisits his previous contentions. However repetition of the arguments previously rejected provide no basis for the exercise of the recall jurisdiction in this case.
Result
The application for recall of this Court’s judgment in Harding v R is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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