S (SC 24/2023) v Attorney-General - [2023] NZSC 111

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 24/2023
[2023] NZSC 111

BETWEEN	S (SC 24/2023) Applicant
AND	ATTORNEY-GENERAL First Respondent DISTRICT COURT AT AUCKLAND Second Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	Applicant in person Z R Hamill and W P So for First Respondent H M Carrad for Second Respondent
Judgment:	23 August 2023

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 18 July 2023 (S (SC 24/2023) v Attorney-General [2023] NZSC 86) is dismissed.

BThere is no order as to costs.

____________________________________________________________________

REASONS

On 18 July 2023, this Court dismissed the applicant’s application for leave to bring a direct appeal to this Court against a decision of the High Court.[1] The applicant had brought judicial review proceedings challenging a District Court Judge’s decision to commit him to trial, which the High Court struck out as an abuse of process.[2] The High Court also dismissed a parallel application for (effectively) bail pending the determination of the proceedings. The applicant now applies for recall of this Court’s decision.
[1]S (SC 24/2023) v Attorney-General [2023] NZSC 86 (Glazebrook, Williams and Kós JJ).
[2]S v The Attorney-General [2022] NZHC 2992 (Powell J).
The general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal.[3] A judgment will only be recalled in exceptional circumstances.[4] A recall application cannot be used to relitigate the reasons for refusing leave.[5] Recall will be appropriate where some procedural or substantive error has occurred that would result in a miscarriage of justice.[6]
[3]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 as cited in Craig v Williams [2019] NZSC 60 at [10]. Exceptions to this are discussed in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2]; and Green Growth No 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC 115 at [20].
[4]Wong v R [2011] NZCA 563 at [13]; and Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].
[5]Nuku v District Court at Auckland [2018] NZSC 39 at [2].
[6]Uhrle, above n 4, at [27].
The applicant’s arguments relitigate points already raised in his submissions and rejected by this Court in refusing leave to appeal. He also argues that this Court does not have jurisdiction to refuse an application for leave to appeal made under s 75 of the Senior Courts Act 2016.[7]
[7]That section provides the circumstances for when this Court can grant leave to appeal against a decision of a court that is not the Court of Appeal.
Nothing raised by the applicant meets the threshold for a recall application to be granted. The jurisdictional argument is misconceived.

Result

The application for recall is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZSC 111
Decision Date: 23 August 2023

CaseChat Overview and Summary

The Supreme Court of New Zealand recently dismissed an application for recall of an earlier decision in the case of S (SC 24/23) v Attorney-General. The applicant, who was represented in person, sought to appeal a High Court decision which had dismissed a judicial review challenging the decision of a District Court Judge to commit him to trial. The High Court had also dismissed a parallel application for bail pending the determination of the proceedings. The Court had previously dismissed the applicant’s application for leave to bring a direct appeal to the Supreme Court.

The applicant’s appeal for recall raised arguments that had already been considered and rejected by the Court. The applicant also argued that the Court did not have jurisdiction to refuse an application for leave to appeal made under s 75 of the Senior Courts Act 2016. The applicant’s arguments did not meet the threshold for a recall application to be granted. The Court found the jurisdictional argument to be misconceived.

The Court held that a judgment, once delivered, must stand for better or worse, subject to appeal. A judgment will only be recalled in exceptional circumstances. A recall application cannot be used to relitigate the reasons for refusing leave. Recall will be appropriate where some procedural or substantive error has occurred that would result in a miscarriage of justice. The applicant’s arguments did not meet this threshold. The application for recall was dismissed. There was no order as to costs.

Orders