Pierson v New Zealand Food Safety Authority

[2010] NZCA 210

IN THE COURT OF APPEAL OF NEW ZEALAND

CA659/2009
[2010] NZCA 210

BETWEENROBIN SHARPE PIERSON

Applicant

ANDNEW ZEALAND FOOD SAFETY AUTHORITY

Respondent

Court:Randerson, Priestley and MacKenzie JJ

Counsel:T G Stapleton for Applicant

A M Powell and B M Piper for Respondent

Judgment

(On the papers):              24 May 2010 at 3.30 p.m.

JUDGMENT (NO 2) OF THE COURT

The application to recall the judgment of this Court dated 1 April 2010 is dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

[1]        The applicant applies for an order recalling our judgment dated 1 April 2010 in which we declined special leave to appeal under s 144(3) of the Summary Proceedings Act 1957.

[2]        The essential basis for the application is the applicant’s contention that a new decision of relevance has emerged, namely the decision of this Court in Wallace v R[1] delivered on 3 March 2010.  In particular, the applicant relies on an observation made at [48] of Wallace to the effect that “bad science” could lead to an unsafe or wrong conviction and that “the door can never be closed even if the ‘better science’ is not ‘fresh’ in the conventional sense”.

[1]      Wallace v R [2010] NZCA 46.

[3]        The applicant seeks to raise once more the contention, already advanced before us when the application for special leave was heard, that an exchange of emails between his brother and the respondent’s expert witness, Dr Cook, throws doubt upon the evidence given by Dr Cook at trial in the District Court as to the level of contamination required to cause illness through the ingestion of contaminated food.

[4]        The applicant submits that the evidence of the exchange of emails should have been taken into account and asks that there be a rehearing of the application for special leave confined to the third question raised in the application.  This asked whether the High Court Judge had erred in failing to direct herself or apply the principle that the charge could only be proved beyond reasonable doubt if the inference of guilt was the only rational conclusion to be drawn from the evidence relied upon by the prosecution.

[5]        The respondent opposes the application for recall on the grounds that there is no proper basis for the exercise of the exceptional jurisdiction recognised in R v Smith[2] justifying the recall.

[2]      R v Smith [2003] 3 NZLR t617.

[6]        The Court of Appeal (Criminal) Rules 2001 make no provision for an application to recall a judgment of this Court although, as held in Smith, this Court does have inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice.  The following passage from Smith sets out the relevant principle:

The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice.  Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”.  Recourse to the power to reopen must not undermine the general principle of finality.  It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available.  Without such response, public confidence in the administration of justice would be undermined.

[7]        We acknowledge there is no further right of appeal available to the applicant, but we accept the respondent’s submission that no exceptional circumstances are established which would justify the recall of the judgment.  We were invited to, and did, read the affidavit of the applicant’s brother, including the relevant email correspondence.  We were not persuaded of the probative force of the affidavit given the lack of technical expertise by the deponent, his lack of independence and the equivocal nature of the material.  Dr Cook did not recant from the evidence he gave at trial.  We were also satisfied that the evidence was not fresh in that there was no reason why contrary expert evidence to that of Dr Cook could not have been led at trial.

[8]        We are not persuaded that the decision of this Court in Wallace raises any new issue which would justify the recall of our judgment. In a proper case, this Court always stands ready to correct an injustice if, on the merits, that course is justified as we observed at [16] of our original judgment. But we see the present application as simply an attempt to revisit factual issues which were fully canvassed at the original hearing of the application for special leave. In that respect, we reiterate the observations we made at [36] of our original judgment in relation to the third question of law the applicant sought to raise.

[9]        For these reasons, the application to recall the judgment is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent