R v Smith

[2015] NZHC 1648

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-011560 [2015] NZHC 1648

THE QUEEN

v

PHILLIP JOHN SMITH

Hearing:	(On the papers)
Counsel:	T Ellis for Applicant/Respondent DG Johnstone for Crown
Judgment:	14 July 2015

JUDGMENT OF VENNING J REGARDING RECALL APPLICATION

This judgment was delivered by me on 14 July 2015 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Meredith Connell, Auckland

Copy to:            T Ellis, Auckland

R v PHILLIP SMITH [2015] NZHC 1648 [14 July 2015]

[1]      The judgment of 6 July 2015 of this Court refers.  That was a decision on a second application by Mr Ellis on behalf of Mr Smith that his criminal proceedings be transferred to be heard in the High Court rather than the District Court.

[2]      Mr Ellis has now filed an application seeking to recall the judgment.

[3]      In the application Mr Ellis seeks to revisit and rehearse the matters that were raised in his memorandum in support of the second application.   The only new matter addressed is the report of the United Nations Working Group on Arbitrary Detention released on 8 July 2015.

[4]      Mr Ellis suggests, inter alia, that the Court failed to have regard to the rule of law.  With respect that submission is misguided.  The Court is of course well aware of the importance of the rule of law.   Like the presumption of innocence it is so fundamental it is unnecessary to repeat it.   The fact that a Court has considered a point but has decided not to expressly refer to it is not a ground for recall:  Unison

Networks Ltd v Commerce Commission.1

[5]      As noted, the only fresh development is the delivery of the opinion of the United Nations Working Group on Arbitrary Detention.  That opinion, based on the limited information before the Working Group, does not affect the decision of this Court on the transfer application.  To the extent it is relevant, Mr Ellis can rely on it in support of the stay application in the District Court.

[6]      None of the matters Mr Ellis seeks to raise in support of the application for recall affect the substance of the decision made, which was to decline the application to have the criminal proceedings heard in this Court.  The application for recall is dismissed.

[7]      Mr Ellis also seeks to revisit the issue of the suppression order made by the

Court.  The suppression order relating to the judgment was made under ss 200 and

205 of the Criminal Procedure Act 2011.  It was made to preserve Mr Smith’s fair

trial rights.

1      Unison Networks Ltd v Commerce Commission [2007] NZCA 49.

[8]       Given that it has not been necessary to canvass the detail of the issues raised in the transfer application on this recall decision there is in the circumstances no

need for a suppression order on this judgment.

Venning J