R v Meads HC Hamilton CRI 2009-019-8828

[2011] NZHC 1403

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-019-8828

THE QUEEN

v

GREGORY HOWARD MEADS

Hearing:         On the papers

Counsel:         R G Douch for Queen

M McKechnie for Meads

Judgment:      6 October 2011

RECALL JUDGMENT OF ALLAN J

Solicitor/counsel

Crown Solicitor Hamilton [email protected]

M McKechnie, Rotorua,  [email protected]

R V GREGORY HOWARD MEADS HC HAM CRI 2009-019-8828 6 October 2011

[1]      On 31 March 2011, Mr Meads was sentenced to life imprisonment following his conviction for the murder of his wife, Helen.  A minimum non-parole period of

11 years was imposed.

[2]      The court also made reparation orders in favour of Helen’s parents, her two daughters and  her sister.    No order was  made in respect  of Helen’s  adult  son, Michael Tye.  Subsequently the Solicitor General determined that it was appropriate to lodge an appeal against sentence, but only in respect of the court’s failure to make a reparation order in respect of Mr Tye.  The appeal to the Court of Appeal has yet to be heard.

[3]      Counsel for the Crown and for Mr Meads now join in the present application, in which the court is invited to recall its sentencing judgment, to the extent necessary to enable it to make an award of reparation to Mr Tye.   It is suggested that that course would effect a considerable saving in cost and inconvenience to the parties, when compared with the pending appeal.

[4]      The  general  principles  attending  the  court’s  jurisdiction  to  recall  its judgments have recently been revisited on more than one occasion.[1]     In Erwood Randerson J delivering the judgment of the Court of Appeal said:[2]

[1] Corbett v Western [2010] NZCA 369 and Erwood v Maxted [2010] NZCA 93 at [3]-[5].

[2] At [3]-[5].

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal.  Were it otherwise there would be great inconvenience and uncertainty.  There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority:   secondly, where counsel have failed to direct the court’s attention to a legislative provision or authoritative decision of plain relevance,  and thirdly, where for some other very special reason justice requires that the judgment be recalled.

…

While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal.  In particular there are some things that it can be said the power to

recall  does  not  extend  to.    It  does  not  extend  to  a  challenge  of  any substantive findings of fact and law in the judgment.  It does not extend to a party recasting arguments previously given, and re-presenting them in a new form.   It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

[5]      Counsel are agreed that this case falls within the second category, involving an omission to place before the court a central aspect of the issue for determination. By way of example, they refer to Police v Caudwell,[3]  in which John Hansen J accepted that he had jurisdiction to recall his judgment and impose a fresh sentence on appeal where home detention was substituted for a sentence of imprisonment, but no allowance had been made for that part of the sentence already served by the

prisoner.

[3] Police v Caudwell HC Auckland CRI-2008-404-255, 9 December 2008.

[6]      In the present case, no reparation order was made in respect of Michael Tye because, on the material available to the court, it appeared that no order was being sought in his favour.  Crown counsel, having dealt with members of Helen Meads’ immediate family as  a  group,  asked simply for appropriate orders in  favour of members  of  that  group.    Michael’s  situation  received  very little  prominence  in comparison with those in whose favour a reparation order was made.  Their situation was explained in significant detail to the court, whereas Michael’s was not.

[7]      Accordingly, Mr Douch understood that Michael formed part of the group for which the Crown was asking for a reparation order, but the court did not understand that to be the case.  The omission of the court to make a reparation order in Mr Tye’s favour was not drawn to the court’s attention on the date of sentence.

[8]      Counsel now join in submitting that the consequential omission to address reparation in respect of Mr Tye brings the case squarely within that category where the inherent jurisdiction of the court to recall its judgment may be exercised.  It is suggested that the omission be corrected by memorandum or addendum to the sentencing note already issued.  There is no need, counsel submit, to reconvene the

court in order to achieve the desired end.

[9]      I  accept  counsels’  submission.    I  consider  this  case  to  fall  within  the relatively rare category of cases in which the court, in the exercise of its inherent jurisdiction, ought to recall its judgment for the purpose of making a reparation order in favour of Mr Tye, which I certainly would have made had my attention been sufficiently drawn to his situation at the time when sentence was imposed and the other reparation orders made.

[10]     Mr McKechnie for Mr Meads submits that, while it may well be that a reparation order is appropriate in respect of Mr Tye, it does not follow that the order ought to be fixed at $15,000, being the sums ordered in respect of Helen’s parents and daughters.  There is a degree of substance in that submission.  The reparation orders were made in order to reflect the serious emotional harm suffered by each of the other family members.  The amounts awarded were in line with prior authority, and indeed were at the upper limit of what might possibly be awarded for emotional harm as distinct from financial loss.

[11]     Mr and Mrs White, Kimberley and Samantha, each suffered grievously by reason of Helen’s death.  Mr and Mrs White not only lost their daughter, but they were   also   forced,   of   necessity,   to   shoulder   the   burden   of   helping   their granddaughters come to terms with the loss of their mother.  In a sense they had a double burden.   Kimberley and Samantha were living at home and each was, as might be expected, deeply bonded with their mother.

[12]     Mr Tye’s position is slightly different.  At the time of the murder he was an adult living away from home and earning his own living.  Without playing down the extent of his loss at a personal and emotional level, the case for reparation is perhaps not quite at the same level as for Mr and Mrs White and their granddaughters.

[13]     But it would not be right, in my opinion, to draw a fine distinction in the context of all that this family has been through.  Mr Tye is no less deserving than the others, if a broad view is adopted.   He is relatively young, and had, until quite recently, been part of the common household.

[14]     I consider a figure of $15,000 to be appropriate by way of reparation for emotional harm suffered by Mr Tye.

[15]     For these reasons my earlier judgment is recalled.  This recall judgment is to be treated as an addendum to that earlier judgment.   Mr Meads is ordered to pay reparation of $15,000 to Mr Tye, such sum to be paid in one lump sum on or before

16 December 2011.

C J Allan J