Paterson v Police

[2020] NZCA 660

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA527/2019
 [2020] NZCA 660

BETWEEN	PHILIP ANTHONY PATERSON Appellant
AND	NEW ZEALAND POLICE Respondent

Court:	Courtney, Ellis and Brewer JJ
Counsel:	Appellant in Person R K Thomson for Respondent
Judgment: (On the papers)	18 December 2020 at 10 am

JUDGMENT OF THE COURT

The application for recall is declined. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

1. In 2018 Mr Paterson pleaded guilty to one charge of wilful trespass.  He was convicted and ordered to appear for sentence if called upon within nine months.[1]  Mr Paterson appealed his conviction unsuccessfully.[2]  His application for leave to bring a second appeal was declined.[3]  He now applies for a recall of the decision declining his application for leave to bring a second appeal. 

   [1]Police v Paterson [2018] NZDC 21458.

   [2]Paterson v Police [2019] NZHC 1796. Mr Paterson appealed his sentence at the same time but that appears not to have been determined by the High Court.

   [3]Paterson v Police [2020] NZCA 139.

2. The very limited grounds on which this Court will recall a decision were thoroughly considered by the Supreme Court in Uhrle v R[4] and by this Court in Lyon v R.[5]  In summary, once a judgment has been delivered it must stand for better or worse, subject only to rights of appeal.  The three recognised situations which might justify recall are (1) where there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and higher authority since the hearing (2) where counsel have failed to direct the Court’s attention to a legislative decision or authoritative decision of plain relevance and (3) where for some other very special reason justice requires that the judgment be recalled.[6]  The interests of justice are not limited to the interests of the applicant.  There is significant public interest in the finality of litigation.[7]

   [4]Uhrle v R [2020] NZSC 62.

   [5]Lyon v R [2020] NZCA 430.

   [6]Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

   [7]Lyon v R, above n 5, at [23]–[24].

3. An applicant seeking to recall a judgment of this Court must demonstrate how the decision to be recalled may be impeached.  An application for recall is not concerned with the first instance decision and is not an opportunity to revisit factual findings made at first instance.[8]  But that is what Mr Paterson seeks to do.

   [8]At [21]–[22] and [27]–[28]. 

4. Mr Paterson’s conviction turned on whether a water supply tank was situated on private property known as the Wilberg Farm or on Department of Conservation land.  Mr Paterson asserted a miscarriage of justice as a result of the hearing in the High Court being conducted by telephone, and the High Court Judge, Dunningham J, finding that the water supply tank was located on the Wilberg Farm on the basis of evidence presented by the prosecution.  The application for leave to bring a second appeal was refused because Mr Paterson failed to demonstrate any risk of a miscarriage of justice.  There was no merit in the first point.  As to the second, the Judge made the finding with the benefit of evidence provided by both Mr Paterson and the police and her decision was fully reasoned. 

5. Mr Paterson wishes to resume his challenge to Dunningham J’s factual finding on the basis of a Westland District Council report dated 27 August 2020.  He also seeks to raise issues regarding the reliability of witness statements, matters that were not raised in in the application for leave to bring a second appeal.  Mr Paterson does not suggest error in the decision of this Court refusing him leave to bring a second appeal.  He simply wants to relitigate the factual dispute that was the subject of a finding in the High Court.  This does not meet the criteria for recalling the decision refusing leave to bring a second appeal.

6. The application for recall is declined.

Solicitors:
Crown Law Office, Wellington for Respondent