S (SC 39/2017) v The the Queen

NOTE: PUBLICATION OF NAMES 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 39/2017
[2022] NZSC 57

BETWEEN	S (SC 39/2017) Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person R E King for Respondent
Judgment:	10 May 2022

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 16 November 2017 (S (SC 39/2017) v R) is dismissed.
BWe direct the Registrar to reject any further applications related to this Court’s judgment of 16 November 2017.

____________________________________________________________________

REASONS

Mr S has filed an application to recall this Court’s judgment of 16 November 2017.[1] That judgment dismissed his application for leave to appeal against a Court of Appeal judgment dismissing his appeal against conviction for sexual offending against a young family member.[2]
[1]S (SC 39/2017) v R [2017] NZSC 169 (Elias CJ, William Young and O’Regan JJ).
[2]S (CA361/2010) v R [2013] NZCA 179 (Stevens, Allan and Clifford JJ).
Mr S has applied to recall this Court’s judgment previously. That application was dismissed on 17 February 2022.[3] He has also unsuccessfully sought to have the judgment of the Court of Appeal recalled on more than one occasion and advanced other challenges to his conviction.[4]
[3]S (SC 39/2017) v R [2022] NZSC 7 (Glazebrook, O’Regan and Ellen France JJ).
[4]S (CA361/2010) v R [2013] NZCA 359 (first recall); S (CA361/2010) v R [2015] NZCA 259 (second recall); and S (CA361/2010) v R [2015] NZCA 358 (third recall).
Mr S’s current application for recall essentially raises the same grounds raised in his previous recall application. Those have already been considered and rejected by this Court.[5]

Result

[5]Recall applications cannot be used to relitigate the reasons provided in the leave judgment: Nuku v District Court at Auckland [2018] NZSC 39 at [2].

The application to recall this Court’s judgment of 16 November 2017 (S (SC 39/2017) v R) is dismissed.
We direct the Registrar to reject any further applications related to this Court’s judgment of 16 November 2017. Such applications would be an abuse of process.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand has considered an application by S for the recall of the Court’s judgment dismissing his application for leave to appeal against a Court of Appeal judgment which dismissed his appeal against conviction for sexual offending against a young family member. The applicant appeared in person, while the respondent was represented by counsel. The Court, comprising Glazebrook, O’Regan, and Ellen France JJ, delivered its judgment on 10 May 2022.

The legal issue before the Court was whether the application for recall of the Supreme Court’s judgment should be granted. Mr S had previously applied to recall the judgment and had been unsuccessful. He now sought to recall the judgment again, raising the same grounds as previously considered and rejected. The Court considered whether recall applications could be used to relitigate the reasons provided in the leave judgment, and whether the application was an abuse of process.

The Court held that recall applications cannot be used to relitigate the reasons provided in the leave judgment. It found that Mr S’s current application essentially raised the same grounds as his previous recall application, which had already been considered and rejected by the Court. The Court concluded that such applications would be an abuse of process, and dismissed the application for recall. The Court also directed the Registrar to reject any further applications related to the Supreme Court’s judgment of 16 November 2017.

In summary, the Court dismissed the application for recall of its judgment dismissing Mr S’s application for leave to appeal against his conviction for sexual offending against a young family member. The Court held that recall applications cannot be used to relitigate the reasons provided in the leave judgment, and that the application was an abuse of process. The Court directed the Registrar to reject any further applications related to the Supreme Court’s judgment of 16 November 2017.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established