Pue v The King

[2024] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA424/2022
 [2024] NZCA 123

BETWEEN	ADA SHARON PUE Applicant
AND	THE KING Respondent

Court:	Katz, Palmer and Jagose JJ
Counsel:	S L Abdale for Applicant M R L Davie for Respondent
Judgment:  (On the papers)	22 April 2024 at 9.30 am

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

1. On 12 February 2024, this Court issued a judgment dismissing Ms Ada Pue’s appeal of her conviction and sentence for possessing methamphetamine for supply and supplying methamphetamine.[1]  In the same judgment, the Court dismissed Mr Dion Hunt’s appeal of his sentence for the same offences. 

The judgment

[1]Hunt v R [2024] NZCA 10.

1. One of the grounds of Ms Pue’s conviction appeal was that an amendment of the charges she faced was unfair.  This Court stated, relevantly:

   [14]     During the trial, the charge list was amended to remove a reference to s 66(1) [of the Crimes Act 1961] in relation to the possession for supply charge. There is a lack of clarity about what led to this. Mr Weir, as counsel for Mr Hunt at trial and on appeal, recalls that the Judge raised with counsel for the Crown that, in his view, the way in which the charging document was expressed … presented problems for the Crown, following which the further charging document was filed. Ms Abdale cannot locate her notes of the trial.

   Submissions

   [15]     Ms Abdale submits the Judge erred in inviting, and then permitting, the Crown to amend the charge notice to remove the alleged party liability nature of the charge of possession for supply under s 66(1). Ms Abdale invites us to obtain a transcript of the Judge’s conversation with counsel and otherwise, effectively, to infer from the Crown’s closing submissions, and from the Judge’s summing up, that the possession for supply charge against Ms Pue was based on party liability under s 66(2) at the end of the trial, as opposed to party liability under s 66(1) for which she was originally charged. She submits that substantially changed the entire nature of the case. It was made too late in the trial and prejudiced the defence.

   …

   The amendment

   …

   [19]     We obtained a transcript of the legal discussion between the Judge and counsel, to which Ms Abdale referred. There was no discussion of liability under s 66(2). The Crown stated that, from the outset, its case had always been one of joint possession. Party liability for both Mr Hunt and Ms Pue under s 66(1) was under s 66(1)(a). The Crown submitted it was entitled to preserve its position on the type of party liability under s 66(1) until the Crown closings and defence counsel agreed with this. The Judge agreed that the Crown’s case has been one of joint possession, and said he would prepare his summing up and the question trail on that basis. It was Mr Weir who asked for the reference to s 66(1) to be removed from the charge list. We consider the record is clear that there was no substantive change in the case against Ms Pue and, therefore, she was not prejudiced. We dismiss this ground of appeal.

The application for recall

1. On 29 February 2024, Ms Abdale, for Ms Pue, filed a memorandum explaining that she had located her notes of the trial.  She had intended to file this memorandum on 16 November 2023, but, mistakenly, filed a different memorandum.  In response to the Court’s request for clarification of what directions were sought, Ms Abdale filed an application to recall this Court’s judgment.

2. This Court may recall a judgment when:  there has been an amendment to a relevant statute or new judicial decision since the hearing; counsel have failed to direct the Court’s attention to a provision or decision of plain relevance; or for any other very special reason, where justice requires the judgment to be recalled.[2]

   [2]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633. Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29] noted the third ground is likely to be the most relevant in criminal jurisdiction.

3. Ms Abdale submits her error in filing the wrong memorandum is a special reason for justice requiring the judgment to be recalled.  That is because the memorandum she had intended to file referred, in addition to the legal discussion transcribed by the Court, to two other occasions during the trial when the nature of the charges had been discussed.  Ms Abdale therefore submits that the Court may have overlooked information that supported Ms Pue’s position.  Mr Davie, for the Crown, submits that this does not constitute a very special circumstance and does not meet the high threshold for recalling a judgment.

4. Ms Abdale’s trial notes indicate that the Judge briefly raised queries with the Crown regarding the nature of the charges on two occasions prior to the legal discussion that was transcribed by the Court.  Ms Abdale’s trial notes do not, however, suggest that there was any substantive discussion with counsel on either of those occasions.  Rather, on the second occasion, Ms Abdale’s notes record that the Judge “indicated he needed the Crown’s response before the weekend”.  The substantive discussion that has been transcribed, and which is referred to in our judgment, took place the following day, when Ms Abdale was absent due to illness.  The decision to amend the relevant charge to remove the reference to s 66(1), at Mr Weir’s request, was made on that occasion. 

5. In the circumstances, we do not consider it to be necessary for the Court to obtain transcripts of the two earlier exchanges where the Judge raised queries or made comments regarding the nature of the charges.  There is nothing in Ms Abdale’s trial notes that suggest that the relevant passages are likely to contain any matters of substance that could potentially impact the outcome of the appeal.  

6. Ms Abdale’s mistake in filing the wrong memorandum therefore adds nothing to the transcript of the legal discussion obtained by the Court regarding the decision.  That discussion is consistent with the Court’s judgment.  This is not a ground on which the judgment may properly be recalled.

Result

1. The application for recall is declined.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent