Lepper v Police - [2025] NZHC 3564

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2025-443-000039 [2025] NZHC 3564

BETWEEN
WAYNE MAURICE LEPPER

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: On the papers

Counsel:

Appellant in person

Judgment:

21 November 2025

JUDGMENT OF LA HOOD J

(Application for recall of judgment)

[1] By application dated 17 November 2025, Mr Lepper seeks recall of my judgment of 11 November 2025 dismissing his appeal against conviction and sentence.1 The background to this matter is set out in that judgment and I will not repeat it here.

[2] Mr Lepper applies for recall on the basis that my judgment was based on material mistakes of fact that go to the foundation of the appeal. I accept that if this was the case the test for recall would be met.2

[3] Mr Lepper makes the following submissions in support of his application. First, he submits that I treated the affidavit he filed on appeal (which he says his lawyer failed to provide to the District Court) as if its contents were before the District Court

1 Lepper v New Zealand Police [2025] NZHC 3426.
2 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.

LEPPER v NEW ZEALAND POLICE [2025] NZHC 3564 [21 November 2025]

Judge because there were references to his views on tikanga in the stand-down pre- sentence report available at sentencing. He says this is a material factual error because I did not assess the failure of counsel to file the affidavit and all the consequences of that failure.

[4] Second, Mr Lepper submits that I wrongly applied the test for miscarriage of justice because I did not address counsel error principles in determining that there was no miscarriage of justice.3 He says the question is whether counsel’s failure to file the affidavit rendered the plea or sentence unsafe and I did not apply this framework.

[5] Mr Lepper’s third submission is that I misunderstood the plea inducement argument because I referred to the plea inducement coming from the prosecution when the argument was that the plea inducement came from Mr Lepper’s lawyer. This meant I did not address the claim that counsel’s conduct induced and influenced the guilty plea.

[6] Finally, Mr Lepper submits that I was wrong to hold that tikanga was considered because it was mentioned in the stand-down report when specific evidence contained in his affidavit, relating to whakapapa and cultural matters, was not before the sentencing judge.

Decision

[7] Mr Lepper appeared, along with his McKenzie friend, by VMR at the call of his appeal in the Criminal Appeals List before Grice J on 23 October 2025. Prior to that, Mr Lepper had filed an application for the Court to issue a subpoena for his former counsel to give evidence at the appeal hearing. Grice J’s minute following the hearing records the following:
The appeal date is confirmed for 11am 29 October. Mr Lepper will appear by VMR accompanied…

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 Lepper v Police

Details

AGLC: Lepper v Police [2025] NZHC 3564
Case: [2025] NZHC 3564
Decision Date: 21 November 2025

CaseChat Overview and Summary

The case of Lepper v Police involved an application by Wayne Maurice Lepper for recall of a previous judgment dismissing his appeal against both conviction and sentence. The appeal was originally heard by La Hood J in the High Court of New Zealand, New Plymouth Registry. Lepper sought recall on the basis that the previous judgment contained material mistakes of fact which undermined the foundation of the appeal. He argued that the court had not properly assessed the impact of his lawyer's failure to file an affidavit on appeal and had not correctly applied the principles for determining a miscarriage of justice.

The legal issues before the court involved whether the judgment contained material mistakes of fact that warranted recall under the test set out in Uhrle v R. Lepper contended that the court had erred in treating his affidavit as if it was before the District Court, in not properly assessing the impact of counsel’s failure to file the affidavit, and in not applying the correct framework for determining a miscarriage of justice. The court considered whether these submissions demonstrated that the judgment was based on material mistakes of fact that went to the foundation of the appeal.

In its judgment, the court found that while some issues identified by Lepper were worthy of consideration, they did not amount to material mistakes of fact warranting recall. The court was satisfied that it had properly assessed the impact of the failure to file the affidavit and had applied the correct principles for determining a miscarriage of justice. The court also found that Lepper had not demonstrated how the contents of his affidavit could have established a miscarriage of justice, especially given his acknowledgment of guilt. The court therefore declined the application for recall.

The court also noted that any further challenge based on fresh evidence should be made by an application to the Court of Appeal for leave to bring a second appeal under section 239 of the Criminal Procedure Act. The court emphasised that a recall application is not the appropriate process for challenging a decision based on fresh evidence.

Orders