R v E (CA308/06)

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.