Hwang v Police
[2021] NZCA 602
•15 November 2021 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA687/2017 [2021] NZCA 602 |
| BETWEEN | JIMIN HWANG |
| AND | NEW ZEALAND POLICE |
| Court: | Kós P, Duffy and Woolford JJ |
Counsel: | Applicant in person |
Judgment: | 15 November 2021 at 9 am |
JUDGMENT OF THE COURT
The application for recall of judgment is declined.
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REASONS OF THE COURT
(Given by Kós P)
Mr Hwang was convicted of the theft of a laptop after a Judge‑alone trial in the District Court in 2017.[1] His appeal to the High Court was dismissed.[2] He was granted leave by this Court to bring a second appeal, but ultimately that appeal too was dismissed.[3]
[1]Police v Hwang [2017] NZDC 12372.
[2]Hwang v Police [2017] NZHC 1171.
[3]Hwang v Police [2019] NZCA 553.
In our judgment we declined Mr Hwang’s application to adduce fresh evidence; rejected the submission made by counsel for Mr Hwang that the trial Judge had reversed the onus of proof; and likewise rejected a further submission for Mr Hwang that the trial Judge had erred in his assessment of evidence given by the complainant’s wife as to identity.[4]
[4]At [15], [21] and [33].
On 9 August 2021 Mr Hwang sought to bring a “third appeal … out of time”. His application was treated by this Court as an application for recall of judgment. The application is presented on the basis that the trial Judge did not see a Dispute Tribunal decision between the complainant and Mr Hwang, nor a statement from the complainant to the effect that he did not want Mr Hwang to face criminal charges. Mr Hwang also suggests there were differences in accounts given by the complainant before the police, the Dispute Tribunal referee and the trial Judge, but details are not provided.
The question in the present case, in accordance with the decision of the Supreme Court in Uhrle v R, is whether there is any very special reason of justice requiring the judgment to be recalled.[5] We consider that standard has not been met here. First, this is effectively an attempt to re-argue the second appeal on wholly new grounds. Secondly, the material before the Court does not suggest any real likelihood of a miscarriage of justice. Thirdly, recall is not an appropriate course where statutory appeal rights subsist, and Mr Hwang has not exhausted his right to seek leave to appeal to the Supreme Court under s 243 of the Criminal Procedure Act 2011.
[5]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].
The application for recall of judgment is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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