R v E (CA308/06) - [2007] NZCA 403

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
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˝ NOTE: ORDER FOR INTERIM SUPPRESSION OF THE NAME AND IDENTIFYING DETAILS OF THE APPELLANT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA308/06 [2007] NZCA 403

THE QUEEN

v

E (CA308/06)

Hearing: 5 July 2007
Court: Glazebrook, John Hansen and Harrison JJ Counsel: G W Calver for Appellant
C L Mander for Crown

Judgment: 11 September 2007 at 4pmat 4pm

JUDGMENT OF THE COURT

AThe judgment of this Court in CA308/06 of 21 November 2006 is recalled.

BThe reasons for judgment of 12 June 2007 ([2007] NZCA 234) are recalled.

R V E (CA308/06) CA CA308/06 11 September 2007

CThe judgment and reasons for judgment are reissued with the alterations outlined in this recall judgment, effective as at 4pm on 11
September 2007.

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

Introduction [1] Is there jurisdiction for a recall? [3] The submissions of the parties [3] Was the Court functus officio? [8] Are the criteria in Smith met? [10]
Should we recall our judgment and withdraw the order

for a retrial? [20]

Result [21]

Introduction

[1] On 21 November 2006 (R v E (CA308/06) CA308/06 21 November 2006), we allowed Mr E’s appeal against conviction and ordered a retrial. Reasons for judgment were to follow after further submissions had been received from the parties. Delays occurred in the receipt of these submissions and the reasons for judgment were eventually issued on 12 June 2007 – see [2007] NZCA 234 at [2] and [3]. In the meantime, Mr Calver, for Mr E, had asked the Court to reconsider its

order for a retrial. A formal application to recall our judgment of 21 November 2006 was filed and an oral hearing conducted on 5 July 2007 on the recall application.

[2] Two issues were covered at that hearing:

(a) Whether there is jurisdiction for us to recall our judgment; and

(b)If so, whether we should recall the judgment and withdraw the order for a retrial.

Is there jurisdiction for a recall?

The submissions of the parties

[3] In Mr Calver’s submission, there is jurisdiction for a recall of our judgment of 21 November 2006. Because of the unusual manner in which the appeal proceeded, the parties have not been heard on the question of whether a retrial should be ordered. Further, taking into account the grounds on which the appeal was in the event allowed, any retrial would be unfair and any resulting conviction unsafe. This submission was based on the difficulties with the complainant’s evidence that arose both in her video interview and at trial. As to the appropriate order, Mr Calver submitted that a directed acquittal would be the correct result.

[4] The Crown opposed the application for recall. Mr Mander’s first submission on the Crown’s behalf was that the judgment was validly delivered on 21 November
2006 and has been recorded in this Court’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v E (CA308/06)

Details

AGLC: R v E (CA308/06) [2007] NZCA 403
Case: [2007] NZCA 403
Decision Date: 11 September 2007

CaseChat Overview and Summary

In the case of CA308/06, the Court of Appeal of New Zealand considered an appeal against conviction by Mr E. The primary issues revolved around the jurisdiction of the Court to recall its previous judgment, and whether it should withdraw the order for a retrial. The appeal was initially allowed on 21 November 2006, with reasons for judgment to follow after further submissions from the parties. However, delays in receiving these submissions resulted in the reasons for judgment being issued on 12 June 2007. During this period, Mr E's counsel applied for the Court to reconsider its order for a retrial, leading to the formal application to recall the judgment of 21 November 2006, which was heard on 5 July 2007.

The first legal issue was whether the Court had jurisdiction to recall its judgment. The appellant's counsel argued that jurisdiction existed, citing the exceptional manner in which the appeal proceeded, which precluded the parties from being heard on the question of whether a retrial should be ordered. The Crown opposed the application, asserting that the Court was functus officio and could only reopen the matter if the decision was a nullity. The Court determined that it was not functus officio, as reasons for judgment were yet to be provided, and additional grounds of appeal could have been heard before finalisation. The second issue was whether the criteria in Smith were met for the Court to revisit its decision. The Court found that exceptional circumstances existed due to the fundamental error of procedure in not considering whether a retrial should be ordered, particularly in light of concerns about the complainant's evidence. The Court concluded that there was no effective remedy available in the District Court and that recalling the judgment was in the interests of justice.

The Court recalled the judgment of 21 November 2006 and the reasons for judgment of 12 June 2007, reissuing them with amendments. The appeal was allowed, the conviction quashed, and a verdict of acquittal entered. The Court also concluded that there should not be an order for a retrial, addressing this in a new section of the judgment. Various amendments were made to the original judgment to reflect this decision. An interim suppression order was also made regarding the identification of the complainant.

Orders