R v Dodd
[2019] NZHC 667
•2 April 2019
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI 2017-088-000964
[2019] NZHC 667
THE QUEEN v
NICKY BRYAN DODD
Hearing: On the papers Counsel:
S Barnaart for Crown
J A Kincade for Mr Dodd
Ruling:
2 April 2019
JUDGMENT OF DUFFY J ON RECALL OF SENTENCE
This judgment was delivered by me on 2 April 2019 at 2.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
R v DODD [2019] NZHC 667 [2 April 2019]
[1] Counsel for Nicky Dodd seeks correction of an error in the sentence of Mr Dodd.
[2] Since receiving notice of the correction request I have issued a minute on 14 February 2019 and held two telephone conferences. In the minute of 14 February 2019, I acknowledged that an error had occurred in the sentencing of Mr Dodd through me wrongly attributing his brother Adam Dodd’s criminal history to Mr Dodd, which led to me uplifting the starting point of Mr Dodd’s sentence by two months. I also acknowledged that I would be prepared to correct this error in Mr Dodd’s sentence if persuaded that I had jurisdiction to do so.
[3] To date I have expressed doubts as to the jurisdiction of this Court to correct the sentencing error.
[4] However, I have now considered authorities and academic comment on the inherent jurisdiction of this Court to correct errors. This has led me to conclude that the inherent jurisdiction does permit correction of the error.
Scope of the inherent jurisdiction
[5] The academic commentator IH Jacob states in an article “The Inherent Jurisdiction of the Court” that under its inherent jurisdiction the High Court of England and Wales can:1
Again, under its inherent jurisdiction, the court can at any stage of the proceedings, even after judgment, vary, modify or extend its own order so as to express correctly its intention and meaning and thereby to ensure that the purposes of justice are not defeated.
[6] This article has often been referred to by New Zealand courts on occasions where there has been cause to consider the inherent jurisdiction.2
1 IH Jacob “The Inherent Jurisdiction of the Court” (1970) CLP 23 at 39.
2 Taylor v Attorney-General [1975] 2 NZLR 675 at 682 and 689; Mafart v Television New Zealand [2006] 3 NZLR 18 (SC) at [16]; Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [29]; and Re Lee [2018] 2 NZLR 731 at [29].
[7] In Mafart v Television New Zealand, the majority of the Supreme Court in a judgment delivered by Elias CJ referred to IH Jacob’s article with approval and stated:3
[16] The adjectival jurisdiction and powers of the High Court, which enable it to give effect to its substantive jurisdiction, are part of the general jurisdiction recognised by s 16 of the Judicature Act. They were derived from the practice of the superior Courts in England as at 1860, based on the inherent jurisdiction. Except to the extent modified by statute and rules, the Court continues to have inherent jurisdiction and powers to determine its own procedure. The inherent jurisdiction is not ousted by the adoption of rules, but is regulated by the rules, so far as they extend. To the extent that the rules do not cover a situation the inherent jurisdiction supplies the deficiency. The inherent jurisdiction is
… the authority of the judiciary to uphold, to protect, and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner. (footnotes omitted)
[8] This view of the purpose of the inherent jurisdiction was restated by Elias CJ and McGrath J in the Supreme Court’s decision Siemer v Solicitor-General.4 In Re Lee Heath J acknowledged that the Senior Courts Act 2016 has not impacted on the inherent jurisdiction.5 In this regard Heath J referred to s 12(a) of the Senior Courts Act 2016, which provides that this Court has “the jurisdiction that it had on the commencement of this Act.” Heath J went on to refer to the previous legislation, being s 16 of the Judicature Act 1908, which provided that the High Court continued “to have all the jurisdiction which it had on the coming into operation of this Act and all judicial jurisdiction which may be necessary to administer the laws of New Zealand.”
[9] Heath J referred to IH Jacob’s article on the inherent jurisdiction and the reliance Courts of this jurisdiction have placed on it, most notably by the Supreme Court in Marfart v Television New Zealand and Siemer v Solicitor-General. Heath J went on to say:6
The High Court’s inherent jurisdiction may be exercised as long as any order does not conflict with any statutory or regulatory provision. In some cases, its use may also be constrained by well-established principles of common law or equity.
(footnotes omitted).
3 Mafart v Television New Zealand [2006] NZSC 33, [2006] 3 NZLR 18.
4 Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [29].
5 Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 at [29].
6 At [30].
[10] Further, in Re Lee Heath J observed that it was the “unlimited” nature of a superior courts’ jurisdiction that provides the justification for its ability to use the inherent jurisdiction to fill a void when what the Court is being asked to do does not conflict with any statutory or regulatory requirements.7 In this regard Heath J relied on comment expressed by Lord Donaldson of Lymington MR in Re F (Mental Patient: Sterilisation) on a superior courts’ ability to fill legislative gaps by reference to the common law:8
... the common law is the great safety net which lies behind all statute law and is capable of filling gaps left by that law, if and in so far as those gaps have to be filled in the interests of society as a whole. This process of using the common law to fill gaps is one of the most important duties of the judges. It is not a legislative function or process – that is an alternative solution the initiation of which is the sole prerogative of Parliament. It is an essentially judicial process and, as such, it has to be undertaken in accordance with principle.
[11] In Auckland District Court v Attorney-General the Court of Appeal in passing commented on the power of the High Court to correct irregularities in its decisions:9
… the High Court cannot review its own decisions; it must determine its own jurisdiction and, if it is responsible for any irregularity, the defect must be corrected by the Court itself or in appeal.
[12] The ability of a Judge of a superior court of general jurisdiction to correct an irregularity comes from the unlimited jurisdiction which he or she enjoys. This ability of a Judge of a superior Court to determine the scope of his or her own jurisdiction was referred to by Cooke P in Black v Fulcher.10
[13] The Supreme Court in Zaoui v Attorney-General considered whether this Court’s inherent jurisdiction to grant bail was affected by Part 4A of the Immigration Act 1987.11 For such a jurisdiction to be taken away, it was held that it must be excluded by clear statutory wording.12
7 At [31].
8 At [31], citing Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (CA).
9 Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 348 (emphasis added).
10 Black v Fulcher [1988] 1 NZLR 417.
11 Zaoui v Attorney-General [2005] 1 NZLR 577 (SC).
12 At [44].
[14] In Watson v Clarke, Robertson J referred to a District Court’s inherent power in criminal proceedings to prevent abuse of its own processes, which the Judge distinguished from an inherent jurisdiction, describing the difference between the two in this way:13
The learned Judge made the important distinction between “inherent power” and “inherent jurisdiction”. The latter connotes an original and universal jurisdiction not derived from any other source, whereas the former connotes an implied power such as the power to prevent abuse of process, which is necessary for the due administration of justice under powers already conferred. Thus the High Court has an inherent jurisdiction as confirmed by s 16 of the Judicature Act 1908 whereas the District Court has an implied power within that jurisdiction as conferred by statute. It is not an inherent jurisdiction but a power which exists within that statutory jurisdiction.
(footnotes omitted)
[15] In Siemer v Solicitor-General the majority judgment of the Supreme Court drew a similar distinction between the inherent jurisdiction and the inherent powers of courts of statutory jurisdiction to control their own processes:14
All courts in New Zealand have inherent powers. While these powers have in the past sometimes been described as part of the “inherent jurisdiction” of the courts, we think that the term “inherent powers” more aptly describes them. “Jurisdiction” and “power” are two distinct concepts. The jurisdiction of a court is its substantive authority to hear and determine a matter. Jurisdiction may be inherent in a particular court or it may be conferred by statute. But every court has inherent powers which are incidental to or ancillary to its jurisdiction, whether that jurisdiction is inherent or statutory. (footnotes omitted)
[16] In Nakhla v McCarthy the Court of Appeal referred with approval to a statement of Sir John Salmond speaking as a judge of the Full Court of the Supreme Court in New Zealand Waterside Workers’ Federation Industrial Association of Workers v Fraser:15
The Supreme Court is a superior Court of general jurisdiction, bound, indeed, like all other Courts, to observe the appointed limits of its jurisdiction but possessed of authority to determine judicially and authoritatively what those limits are.
13 Watson v Clark [1990] 1 NZLR 715 at 718.
14 Siemer v Solicitor-General [2013] NZSC 68; (2013) 26 CRNZ 539 at [113] (emphasis added).
15 Nakhla v McCarthy [1978] 1 NZLR 291, citing New Zealand Waterside Workers' Federation Industrial Association of Workers v Frazer [1924] NZLR 689 at 707 (emphasis added).
[17] These general comments and observations on the inherent jurisdiction inform me that this Court is placed differently from other Courts because of the inherent jurisdiction of which it is seized. Courts that derive their jurisdiction from statute are limited to exercising their statutory authority and the inherent powers that are ancillary to such authority. For those Courts, unless there is a statutory source to enable them to revisit a decision, or such an exercise would fall within the inherent powers they possess, they cannot do so.16 On the other hand, the inherent jurisdiction of this Court permits it to determine the limits of its power, which can include recognising the power to revisit its decisions once satisfied that is appropriate to do so and that no statutory power stands in its way. I consider that this Court has a duty to act to ensure a defendant or offender is dealt with fairly and in accordance with law. This seems to me encompass a duty to ensure that an offender’s sentence is not partly based on adverse information that is known by all to be incorrect, either at the time of sentence or afterwards. Should adverse incorrect information be used in a sentencing and materially impact the end sentence, I consider that this Court can act to cure the irregularity, particularly when asked to do so by the offender. Refusing to act would be only be proper if there was a statutory bar to this Court acting in this manner..
[18] My view of the scope of the inherent jurisdiction to correct for sentencing irregularity is confirmed by case law where either this Court or the Court of Appeal have referred to use of the inherent jurisdiction to cure a sentencing irregularity.
[19] In R v Scott the Court of Appeal found that a District Court Judge had no power to impose further specific concurrent sentences after pronouncing sentences in open Court.17 The Court of Appeal referred to a passage in Stratford v Ministry of Transport where Eichelbaum CJ had stated that:18
Subject to very limited exceptions, once a judge has delivered the decision and reasons, the Court is functus officio.
[20]However, the Court of Appeal then went on to say in R v Scott:19
16 See discussion in Re Victim X [2003] 3 NZLR 220; and Nakhla (No 2) [1974] 1 NZLR 453 on when the functus officio principle will preclude the Court of Appeal from re-visiting a decision.
17 R v Scott CA381/02, 14 May 2003 at [39].
18 See R v Scott at [38], citing Stratford v Ministry of Transport (1991) 7 CRNZ 501, at 504.
19 R v Scott at [39] citing R v Dowling (1989) 88 Cr App R 88 at 91.
While there is jurisdiction to vary a sentence or to clarify a doubt or ambiguity in it, as stated by the English Court of Appeal in R v Dowling:
If a judge is minded [to do so] he should do so in open court. He should not do it behind the scenes or by transmitting a message.
[21] The statements by the Court of Appeal in R v Scott appear to accept the existence of a jurisdiction to vary a sentence by the sentencing Judge, even as the case was in Scott when the Judge sits in an inferior jurisdiction.20 It was the way in which the Judge in Scott imposed the sentences that led to the Court of Appeal requiring the sentences to be imposed afresh.
[22] In R v Ioane Toogood J re-sentenced Mr Ioane.21 The original sentence was imposed on 20 November 2014. At that time the Judge imposed a sentence of four years imprisonment. In doing so he erred as the intended sentence was one of three years and six months imprisonment. The error was clear on the face of the original sentencing notes. Mr Ioane was brought back before the Judge almost six months later (on 1 May 2015) and resentenced with the correct sentence of three years and six months imprisonment being imposed. At [2] the Judge acknowledges he made a mistake that was:
… necessary to correct … which I do in the exercise of the inherent jurisdiction that the Court has to correct any errors.
[23] In Carrick v New Zealand Police Davison J corrected factual errors which he had made in a judgment on an appeal from the District Court.22 The Judge did so relying upon r 1.6 of the Criminal Procedure Rules 2012 and this Court’s inherent jurisdiction.
[24] In R v Loumoli, the Court of Appeal recognised that there is scope for a trial judge to recall a discharged jury to correct an error or omission in the delivery or recording of a verdict.23 In doing so the Court of Appeal rejected the argument the jury was functus officio once it had delivered its verdict. The ability to recall would
20 In Stratford v Ministry of Transport the decision under appellate scrutiny had been made in the District Court, which lacks inherent jurisdiction.
21 R v Ioane [2015] NZHC 898.
22 Carrick v New Zealand Police CRI-2017-404-62.
23 R v Loumoli (1995) 13 CRNZ 7.
not permit the jury on recall to decide afresh and enter a different verdict on the same charge. However, a jury could, even after discharge, be brought back together to correct an error that was “satisfactorily established”.24 There was unanimity regarding the existence of the error and it was in the interests of justice for it be corrected, so the Court was persuaded that the power to correct by use of the inherent jurisdiction was appropriately exercised. Accordingly, I am satisfied that the principles of functus officio and finality in relation to the exercise of authority are not an obstacle to use of the inherent jurisdiction to correct irregularity.
[25] I was concerned that the provision of authority in s 180 of the Criminal Procedure Act 2011 to correct an erroneous sentence might be a barrier to use of the inherent jurisdiction to achieve that outcome. The authority in s 180 is limited to occasions where the erroneous sentence could not by law be imposed or is not the sentence required by law. The present circumstance falls outside the purview of s 180. However, my analysis of the principles relevant to the exercise of inherent jurisdiction leads me to conclude that its role is to fill the gaps not covered by legislation.25 Similarly, the authority in r 1.6 of the Criminal Procedure Rules 2012 to correct certain errors or omissions, such as clerical mistakes, is not a bar to using the inherent jurisdiction to correct irregularities that do not fall within r 1.6.
[26] Here the existence of specific powers in s 180 of the Criminal Procedure Act and the r 1.6 of the Criminal Procedure Rules to cover a particular set circumstances outside the present situation does not provide a bar to use of the inherent jurisdiction. Indeed, r 1.6 recognises that if the rules do not make sufficient provision for a matter that arises in a proceeding the court may give any directions or rulings that it thinks appropriate in the interests of justice. This seems to me to openly acknowledge that gaps in the rules may be cured by use of the inherent jurisdiction. Moreover, its use in the present circumstances does not conflict with any statutory or regulatory provision or principle of the common law.
[27] Accordingly, the analysis I have carried out informs me that in principle the inherent jurisdiction would allow me to recall Mr Dodd and correct the irregularity in
24 At 18-19.
25 See discussion at [10] herein.
his sentence. Before I did so however I would need to be sure: first that the irregularity is satisfactorily established; secondly, that Mr Dodd has taken no step to appeal against the sentence and thirdly, that the parties have had sufficient opportunity to address the Court on the exercise of this power.
[28] Regarding the first matter I have gained the impression from counsel the irregularity is unanimously accepted. However, I consider that before I take steps to recall the sentence the Crown should be given the opportunity to advise the Court whether it accepts the irregularity is satisfactorily established.
[29] Regarding the second matter, I note that in relation to recall of judgments delivered in this Court’s civil jurisdiction it is viewed as generally inappropriate for the Court to recall its judgment or order once an appeal has been lodged.26 I consider the same view might be taken of recall in the criminal jurisdiction. Accordingly, Mr Dodd will need to inform me as to whether an appeal against sentence has been lodged or not.
[30] Regarding the third matter, to date the focus of discussion with counsel, which have been most helpful, has been on whether there is jurisdiction to recall and correct a sentencing irregularity. Now that I have found that in principle such jurisdiction exists, the next step is to determine whether it is appropriate to do so here. Whilst the appropriateness of correcting the irregularity has been mentioned before, I consider that now I have found there is jurisdiction to do so the parties should be given an opportunity to address this consequential step.
Result
[31] The inherent jurisdiction provides authority to recall and to correct irregularity in a sentencing decision.
[32] Mr Dodd has 10 working days from delivery of this judgment to file any further submissions addressing the matters identified at [27] herein.
26 See Russell v Klinac HC, Whangarei, AP 14/02, 10 September 2002.
[33] The Crown has 10 working days from receipt of submissions from Mr Dodd to file any submissions in response.
[34] Mr Dodd has three working days from receipt of submissions from the Crown to file any submissions in reply.
Duffy J
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