Maid v The the Queen

[2022] NZCA 344

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA68/2021
 [2022] NZCA 344

BETWEEN	PREETAM PRAKASH MAID Applicant
AND	THE QUEEN Respondent

Court:	Clifford, Thomas and Muir JJ
Counsel:	Applicant in person J A Eng for Respondent
Judgment: (On the papers)	29 July 2022 at 10.30 am

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1. The applicant, Mr Maid, applies for recall of this Court’s judgment of 10 September 2021 dismissing his appeal against conviction.[1] 

Background

[1]Maid v R [2021] NZCA 456 [Appeal decision].

1. Mr Maid worked as an aviation security officer at Dunedin International Airport.  He was found guilty following trial by jury on a charge of taking an imitation improvised explosive device (IIED) into a security enhanced area (SEA) in breach of s 11(1A) of the Aviation Crimes Act 1972.  After taking it through the SEA, Mr Maid placed a satchel containing the IIED at the entrance of a localiser hut on the runway in an effort to cause a security incident to expose what he considered to be deficits in the Airport’s security system.  Mr Maid was sentenced to three years’ imprisonment, the Judge having taken account of the fact Mr Maid’s actions took place two days after the Christchurch Mosque attacks and of the serious disruption his actions caused.[2]

   [2]R v Maid [2021] NZDC 1547.

2. The Crown case was circumstantial.  It relied on extensive CCTV and access‑card evidence, as well as expert handwriting analysis of a note accompanying the IIED.  No one, however, saw Mr Maid assembling the device itself or carrying it into the SEA. 

3. On appeal, Mr Maid submitted there was no evidence he took the device into an SEA as there were different routes to the patrol vehicle that did not require him to pass through an SEA.  Whilst this Court accepted the argument as conceivable, we held it was more than open to the jury to conclude, based on the circumstantial evidence as a whole, that the IIED had been taken into the SEA.[3]  We also dismissed Mr Maid’s other arguments as to alleged errors in the Judge’s summing up.[4] 

   [3]Appeal decision, above n 1, at [29].

   [4]At [33]–[38].

4. We did, however, allow Mr Maid’s sentence appeal and reduced the term of imprisonment to 17 months.  The Judge had set a manifestly excessive starting point by focusing on the overall consequences of Mr Maid’s activities that day, rather than of the limited criminal act itself.[5]  As we noted, had Mr Maid placed the IIED at the localiser hut without taking it through the SEA, no offence under the Aviation Act would have occurred.[6]

   [5]At [61].

   [6]At [17]. However, the Court considered Mr Maid could have been liable under s 307A of the Crimes Act 1961 relating to threats of harm to people or property: Appeal decision, above n 1, at [66].

5. Following our judgment, Mr Maid sought leave to appeal his conviction to the Supreme Court, which that Court declined in a judgment of 4 April 2022.[7] 

   [7]Maid v R [2022] NZSC 39.

6. The day after the Supreme Court gave its judgment, Mr Maid, representing himself, filed a document entitled “request for leave to appeal by person convicted”.  In accordance with this Court’s decision in Lyon v R and the Supreme Court’s decision in Urhle v R, we treat that document as an application by Mr Maid for recall of this Court’s judgment dismissing his conviction appeal.[8]

Analysis

[8]Lyon v R [2019] NZCA 311 at [25]; and Urhle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [17].

1. The recall jurisdiction is exceptional and discretionary.  An applicant must impeach this Court’s earlier decision and show a substantial injustice has probably occurred.[9] 

   [9]Lyon v R [2020] NZCA 430 at [19]–[21].

2. The Supreme Court in Urhle v R explained the content of the test to be applied for recall in the criminal context is sufficiently captured within the three grounds for recall articulated in Horowhenua County v Nash (No 2).[10]  Mr Maid’s application would appear to be based on the third of those grounds: that is, he argues there is a “very special reason” why justice requires recall. 

   [10]Urhle v R, above n 8, at [29]; and Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

3. We do not agree.  Mr Maid’s proposed grounds largely seek to relitigate his unsuccessful appeal; an appeal in which he was represented by very experienced senior counsel.  In those circumstances we may dismiss the application shortly.[11]  Recall is not the appropriate context for a challenge of substantive findings of fact or law in the judgment sought to be recalled by recasting arguments previously given and re-presenting them in a new form, or putting forward further arguments that could have been raised at the earlier hearing but were not.[12]  As the Supreme Court of the United Kingdom recently observed when dealing with an application for recall, the Court “should not start from anything like neutrality or even-balanced scales”.[13]  The principle of finality is of fundamental public importance. 

   [11]Lyon v R, above n 9, at [30].

   [12]At [25].

   [13]AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16 at [32].

4. Assessed in that context, Mr Maid’s application clearly fails to come within the Horowhenua County criteria.  First, Mr Maid’s argument that s 11(1A) of the Aviation Act requires the Crown to prove he was found with the IIED within the SEA is simply not correct.  His claims that the Crown failed to prove the IIED was in fact an “imitation” device, or that the SEA was in fact an SEA, were raised and dismissed during his trial and those findings were not challenged on appeal.  The issue raised as regards the handwriting evidence was raised in his notice of appeal but he elected not to pursue it on appeal.  Finally, his claim a falsified map was before the Court, even if correct (which the Crown rejects), does not show any injustice because it would not have affected the outcome in any event. 

Result

1. The application for recall is declined.

Solicitors:
Crown Law Office, Wellington for Respondent