R v E (CA308/06) - [2008] NZCA 403

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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…

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) [2008] NZCA 403
Case: [2008] NZCA 403
Decision Date: 11 September 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v E (CA308/06) involved an appeal against conviction and a subsequent application for the recall of the Court's judgment. The appellant, Mr. E, had been convicted and sentenced, and his appeal against the conviction was allowed on 21 November 2006. The Court subsequently ordered a retrial. However, after further submissions, the reasons for the judgment were issued on 12 June 2007. Mr. E's counsel subsequently applied for the recall of the Court's judgment, arguing that the order for a retrial was premature and that any retrial would be unfair and unsafe due to issues with the complainant's evidence. The Crown opposed the application, arguing that the Court was functus officio and that there was no jurisdiction to recall the judgment unless it was a nullity. The Court considered two issues: whether there was jurisdiction for a recall and, if so, whether the judgment should be recalled and the order for a retrial withdrawn.

The Court found that it did have jurisdiction to recall its judgment in exceptional circumstances, as per the decision in Smith. It held that the Court was not functus officio as the reasons for judgment were yet to be provided, and further submissions on additional grounds of appeal could have been heard before finalisation of the reasons. The Court also found that the criteria in Smith were met, as the appeal had proceeded in an unusual manner, with some grounds of appeal emerging during and after the hearing. This resulted in a fundamental error of procedure due to the lack of proper consideration of whether a retrial should be ordered. The Court concluded that the order for a retrial was premature and should not have been made without hearing from the parties and considering all relevant factors. Consequently, the Court recalled its judgment of 21 November 2006 and the reasons for judgment of 12 June 2007. The recalled judgment and reasons for judgment were re-issued with modifications, including the allowance of the appeal, the quashing of the conviction, and the entry of a verdict of acquittal. The Court also concluded that there should be no order for a retrial.

Orders