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Jolley v R

Jolley v R

Case [2022] NZSC 150 19 December 2022

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 109/2018
[2022] NZSC 150

BETWEEN	GEORGE ROBERT JOLLEY Applicant
AND	THE KING Respondent

Hearing:	1 November 2022
Court:	Winkelmann CJ, Glazebrook, Ellen France, Kós and William Young JJ
Counsel:	J D Munro, J N Olsen and J W Wall for Applicant M J Lillico and T C Didsbury for Respondent
Judgment:	19 December 2022

JUDGMENT OF THE COURT

The application for recall of this Court’s judgment of 1 April 2019
(Jolley v R [2019] NZSC 34) is dismissed.

____________________________________________________________________

REASONS
(Given by Ellen France J)

Table of Contents

Para No
Introduction	[1]
Background	[4]
The trial	[5]
The proposed new evidence	[9]
The approach to recall	[10]
The decision of the Court of Appeal in Jolley	[10]
The test in Uhrle	[12]
Should the Court recall its earlier judgment declining leave to appeal?	[18]
Result	[25]

Introduction

The applicant, Mr Jolley, was convicted of attempted murder, participating in an organised criminal group, and unlawfully being in an enclosed building. He appealed unsuccessfully to the Court of Appeal against conviction.[1] This Court declined leave to appeal.[2] Some time later, the applicant applied to the Court of Appeal for recall of that Court’s earlier judgment. Recall was sought on the basis that there was fresh evidence which gave rise to a reasonable possibility that, if the new evidence was before the jury, a different outcome on the attempted murder charge would have resulted.[3] The Court of Appeal declined to recall the Court’s earlier judgment.[4] The applicant then made the present application asking this Court to recall its previous decision declining leave to appeal. The application is opposed by the respondent.
[1]Jolley v R [2018] NZCA 484 (Asher, Courtney and Moore JJ).
[2]Jolley v R [2019] NZSC 34 (William Young, O’Regan and Ellen France JJ).
[3]See Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [48].
[4]Jolley v R [2022] NZCA 295 (French, Courtney and Moore JJ) [CA recall judgment].
It is common ground that whether we should grant recall turns on whether this is a situation where “for any very special reason justice requires” recall. That is the relevant test for recall as set out by this Court in Uhrle v R.[5] As we shall explain, in this case that question turns on whether the availability of referral to Te Kāhui Tātari Ture | Criminal Cases Review Commission provides the applicant with an effective and efficient remedy to the claimed miscarriage of justice. In addition, as we indicated to the parties in setting the application down for an oral hearing,[6] it is useful to provide some further guidance on the test set out in Uhrle in light of the approach adopted by the Court of Appeal in this case and in the earlier decision of Lyon v R.[7] There is no right of appeal from the decision of the Court of Appeal declining recall so our comments…

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 Jolley v R

Details

AGLC: Jolley v R [2022] NZSC 150
Case: [2022] NZSC 150
Decision Date: 19 December 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand dismissed an application by George Robert Jolley to recall its earlier judgment declining leave to appeal his conviction for attempted murder, participation in an organised criminal group, and unlawful presence in an enclosed building. The applicant sought recall on the basis of fresh evidence from the victim and his brother, who claimed that Jolley was not the person who shot them, but rather, an unknown person who obtained the gun after Jolley's initial shot missed its target. The Court of Appeal had earlier declined to recall its judgment, holding that an effective alternative remedy was available through referral to the Criminal Cases Review Commission. The Supreme Court considered whether the availability of referral to the Commission provided Jolley with an effective and efficient remedy to the claimed miscarriage of justice. The Court concluded that further investigation would be necessary to assess the claimed miscarriage, and the Commission had the required powers to undertake such an investigation. As such, the Court found no very special reason justice required recall, and the application was dismissed.

The legal issues in the case were whether the Supreme Court should recall its earlier judgment declining leave to appeal and whether the availability of referral to the Criminal Cases Review Commission provided Jolley with an effective and efficient remedy to the claimed miscarriage of justice. The Court considered the relevant test for recall as set out in Uhrle v R and the approach adopted by the Court of Appeal in this case and in Lyon v R. The Court found that the Court of Appeal had added further barriers to an application for recall that were neither necessary nor consistent with the test in Uhrle. The Court also considered the effectiveness and efficiency of the alternative remedy provided by referral to the Criminal Cases Review Commission, and concluded that the Commission had the necessary powers to investigate the issues raised by the proposed new evidence. As such, the Court found no very special reason justice required recall, and the application was dismissed.

Orders