Reuben v Police

[2019] NZCA 629

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA548/2018
 [2019] NZCA 629

BETWEEN	STEWART CLIFTON REUBEN Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Brown, Simon France and Hinton JJ
Counsel:	Applicant in person M L Wong for Respondent
Judgment: (On the papers)	10 December 2019 at 11.30 am

JUDGMENT OF THE COURT
(Recall)

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

1. Following a Judge alone trial on 19 and 21 September 2017 in the District Court at Huntly, in a judgment dated 7 November 2017 Mr Reuben was found guilty of charges of contravening a protection order and unlawfully converting a motor vehicle.[1]  He was sentenced to 3 months’ imprisonment.[2]  His appeal against his conviction heard in the High Court at Hamilton on 20 March 2018 was dismissed by Toogood J in a judgment delivered on 26 July 2018.[3]

   [1]Police v Reuben [2017] NZDC 25049. 

   [2]Police v Reuben [2017] NZDC 25565.  He has served his sentence.

   [3]Reuben v Police [2018] NZHC 1870.

2. On 10 September 2018 Mr Reuben filed out of time an application for leave to bring a second appeal to this Court.  Mr Reuben’s application was dismissed in a judgment of this Court delivered on 24 October 2019,[4] Mr Reuben having failed to attend the hearing on 8 October 2019.

   [4]Reuben v Police [2019] NZCA 515.

3. Mr Reuben now seeks a recall of this Court’s judgment.  As this Court explained in Lyon v R there are three pre-conditions for recall:[5]

   (a)a fundamental error in procedure;

   (b)a substantial miscarriage of justice if the error is not corrected; and

   (c)the absence of an alternative effective remedy.

A fundamental error in procedure?

[5]Lyon v R [2019] NZCA 311 at [27].

1. Mr Reuben’s application for leave to bring a second appeal has a long history involving four adjournments.[6]  He did not provide any prior notice of the fact he would not be attending the hearing on 8 October 2019.  His submissions in support of his application for recall stated that his failure to attend was the result of several unforeseen circumstances “such as”:

   ·     vehicle issues ie licensed driver, reliable transport etc …

   ·     money for gas expenditures etc

   ·     several road works delay en route etc

   ·     other unsafe road users

As Ms Wong for the Crown submits, it appears that with better planning Mr Reuben could have attended the hearing.

[6]Reuben v Police, above n 4, at [7]–[10].

1. Following his non-appearance on 8 October 2019 it was open to this Court to dismiss Mr Reuben’s longstanding application.  There has been no fundamental procedural error.

A substantial miscarriage of justice?

1. Section 237(1) of the Criminal Procedure Act 2011 provides that this Court must not grant leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.  The test is a high one.[7]

   [7]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

2. It appears that Mr Reuben’s principal concern about the hearing in the District Court was that he was not allowed to finish giving his evidence.  Ms Wong submitted that the notes of evidence indicate that Mr Reuben’s evidence-in-chief was concluded on 19 September 2017.  He was not cross-examined.

3. As Ms Wong explained:

   He provided a detailed account of what he says occurred between him and [the complainant].  The Judge led Mr Reuben through his evidence and, where necessary, asked Mr Reuben questions that arose from the complainant’s account.  Towards the end of his evidence, the Judge asked Mr Reuben whether he wished to comment further on specific topics and generally whether he had anything further to add.  Mr Reuben answered by simply repeating evidence he had already given.  The Judge ended the hearing by asking three or four focussed questions relevant to the charge, to which Mr Reuben provided his answers.

   (Footnotes omitted.)

4. We agree with Ms Wong’s submission that there was no unfairness in the hearing and that the application for leave to appeal is without merit.  Hence there is no risk that a miscarriage of justice will occur if a recall is refused.

Result

1. The application for recall is declined.

Solicitors:
Crown Law Office, Wellington for Respondent