R v E (CA308/06)

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there was jurisdiction for a recall and, if so, whether the judgment should be recalled and the order for a retrial withdrawn.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.