Lepper v Police
[2025] NZHC 3564
•21 November 2025
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 by his McKenzie friend Mr Nicholas Ngāti Toa.
The fresh evidence application is granted. The evidence is attached to Mr Lepper’s affidavit filed on 10 October 2025. No opposition by the Crown and it is relevant and cogent being material that Mr Lepper said he requested be put before the Judge.
3 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
No application for sentencing council [sic] to be present was pursued in view of the grant of the fresh evidence application.
Mr Lepper will file a summary of [his] submissions by 4.30pm this Friday 24 October 2025.
[8] It follows that Mr Lepper decided not to pursue his application for counsel to be present to give evidence at the appeal hearing. The provision of a waiver of privilege and evidence from counsel is the expected process for pursuing a counsel competence point.4 Instead, it appears Mr Lepper was content to proceed on the basis that the affidavit he says his counsel should have placed before the District Court was admitted as fresh evidence on appeal.
[9] Putting to one side the difficulty with expressly analysing the case using a counsel competence framework in the absence of evidence from counsel, undertaking such an analysis would have made no difference to my decision. As the Supreme Court said in Sungsuwan v R, when counsel error is alleged on appeal, the Court must ultimately assess the impact of counsel’s conduct on the outcome of the case even if it may have been objectively reasonable conduct at the time.5 I was therefore required to make an assessment of the impact of the failure to file Mr Lepper’s affidavit despite the absence of evidence about the reasons for this. In respect of the conviction appeal, I had to assess whether the contents of the affidavit created a real risk that the outcome of the case was affected, or that the trial was unfair, despite Mr Lepper’s guilty plea.6 And in respect of the sentence appeal, the question was whether the material in the affidavit means there is an error in the sentence and a different sentence should be imposed.7 This is how I analysed the case.8
[10] In his recall application, Mr Lepper has again failed to identify how the contents of his affidavit provides a potential defence to the charge in circumstances
4 Hall v R [2015] NZCA 403.
5 Sungsuwan v R, above n 3, at [70]; Criminal Procedure Act 2011, s 232(4)(a). However, in cases of extreme misconduct that has effectively denied the defendant representation to fairly present a defence, there is likely to have been an unfair trial and thus a miscarriage of justice under s 232(4)(b); Sungsuwan at [65].
6 Criminal Procedure Act, s 232; Re Solicitor General’s Reference (No 1 of 2023) from CA636/2021
[2022] NZCA 504) [2023] NZSC 151, [2023] 1 NZLR 457 at [39] to [41].
7 Section 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
8 Lepper v New Zealand Police, above n 1, at [9]–[13].
where he acknowledges that he is guilty under law as it currently stands, but he considers the law should be changed.9
[11] I accept that my judgment does not deal with the allegation that Mr Lepper’s decision to plead guilty was based on a plea arrangement offered to him by his lawyer rather than by the prosecution. This was because I relied on the contents of Mr Lepper’s affidavit filed in support of his appeal, which states “I pleaded Guilty (sic) as a plea bargain was offered to work with a lawyer on including tikanga into the Land Transport Act”. As Mr Lepper did not state that he was induced to plead guilty due to an offer of a “plea bargain” made solely by his counsel, I inferred the term “plea bargain” carried its usual meaning of an arrangement involving the prosecution.10
[12] In his recall application Mr Lepper says that “the plea inducement came from his Barrister (sic), not from the prosecution” and therefore the High Court did not address the claim that “counsel’s representations influenced the guilty plea”. As already noted, this is because Mr Lepper did not specify what he meant by a “plea bargain” in his affidavit evidence for the appeal. In any event, I do not consider the way Mr Lepper puts matters now has any material bearing on my decision. Not only has Mr Lepper chosen not to call evidence from his counsel, his affidavit evidence provides no detail of what his counsel said to him in relation to this “plea bargain” nor any detail of how the “plea bargain”, and other considerations, impacted on the decision he made to plead guilty. Mr Lepper’s very limited evidence is insufficient to establish a miscarriage of justice, especially in circumstances where he understood the charges to which he was pleading guilty and where there is no evidence of an available defence.11
[13] Turning to the sentence appeal, nothing provided on the recall application persuades me that I have made a material mistake of fact that goes to the heart of the appeal. I was well aware that the specific contents of the affidavit were not before the District Court Judge, but I nevertheless considered there was nothing in the affidavit
9 Lepper v New Zealand Police, above n 1, at [11].
10 Lepper v New Zealand Police, above n 1, at [13].
11 In anticipation that Mr Lepper may attempt to file further affidavit evidence in support of his position, I note that a recall application is not the appropriate process for challenging my decision based on fresh evidence. Any further challenge should be made by an application to the Court of Appeal for leave to bring a second appeal under s 239 of the Criminal Procedure Act
that established that there has been an error in the sentence and a different sentence should be imposed.12
[14]I therefore decline the recall application.
La Hood J
Solicitors:
Crown Solicitor, New Plymouth for Respondent
12 Lepper v New Zealand Police, above n 1, at [9]–[13].