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S (SC39/2017) v R

S (SC39/2017) v R

Case [2022] NZSC 7 17 February 2022

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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

SC 39/2017
[2022] NZSC 7

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

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person M L Wong for Respondent
Judgment:	17 February 2022

JUDGMENT OF THE COURT

A The application for an oral hearing is dismissed.
BThe application for appointment of counsel as amicus curiae is dismissed.
CThe application for recall of this Court’s judgment of 16 November 2017 (S (SC 39/2017) v R) is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr S has filed an application for leave to appeal against a decision of the Court of Appeal.[1] The Court of Appeal dismissed Mr S’s appeal against conviction for sexual offending against his stepdaughter who was aged between nine and 14 at the time of the offending.
[1]S (CA361/2010) v R [2013] NZCA 179 (Stevens, Allan and Clifford JJ).
This is Mr S’s second application for leave to appeal. His previous application was dismissed in 2017 in S (SC 39/2017) v R (the 2017 judgment).[2] We therefore treat this as an application for recall of the 2017 judgment.[3]

Recall applications

[2]S (SC 39/2017) v R [2017] NZSC 169 (Elias CJ, William Young and O’Regan JJ).

[3]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [20].

The general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal.[4] A decision to recall a judgment will only be made in exceptional circumstances.[5] A recall application cannot be used to relitigate the reasons provided in the leave judgment.[6] Nor can it be a means of collateral attack on a decision.[7] Recall will be appropriate where some procedural or substantive error has occurred that would result in a miscarriage of justice.[8]

Grounds of application

[4]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].

[5]Wong v R [2011] NZCA 563 at [13]; and Uhrle v R, above n 3, at [29].

[6]Nuku v District Court at Auckland [2018] NZSC 39 at [2].

[7]R v Palmer CA334/03, 18 October 2004 at [29].

[8]Uhrle v R, above n 3, at [27].

Mr S argues that he has suffered a miscarriage of justice because:
(a)the medical opinion evidence adduced at trial was incorrect and misled the jury;
(b)trial counsel failed to call a crucial defence witness and also failed to introduce evidence that corroborated Mr S’s evidence;
(c)the Court of Appeal should not have accepted trial counsel’s…

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.

Continue reading S (SC39/2017) v R

Details

AGLC: S (SC39/2017) v R [2022] NZSC 7
Case: [2022] NZSC 7
Decision Date: 17 February 2022

CaseChat Overview and Summary

In the case of S (SC39/2017) v R, the applicant, Mr S, sought leave to appeal against a decision of the Court of Appeal that dismissed his appeal against his conviction for sexual offending against his stepdaughter. Mr S's application was considered by the Supreme Court of New Zealand, which dismissed the application for an oral hearing, the appointment of counsel as amicus curiae, and the recall of the Court's judgment of 16 November 2017. The applicant argued that he had suffered a miscarriage of justice due to several factors, including incorrect medical opinion evidence, trial counsel's failure to call a crucial defence witness, and the Crown's failure to follow up on evidence that would have corroborated Mr S's statements in evidence.

The legal issues that the Court was required to decide were whether Mr S's application met the high threshold for a recall, and if there was a risk of a miscarriage of justice. The Court noted that a recall of a judgment would only be made in exceptional circumstances, such as when a procedural or substantive error has occurred that would result in a miscarriage of justice. The Court also considered that recall applications could not be used to relitigate reasons provided in the leave judgment or as a means of collateral attack on a decision.

The Court concluded that Mr S's application did not meet the high threshold for a recall, as most of the arguments advanced by Mr S had already been thoroughly dealt with in the decision of the Court of Appeal or the 2017 judgment of this Court, or both. The Court found that any errors alleged were peripheral and would not have affected the outcome of the trial. The Court also determined that there was no risk of a miscarriage of justice, as Mr S's application was largely an attempt to relitigate matters already determined by the Court.

The Supreme Court of New Zealand dismissed the application for an oral hearing, the appointment of counsel as amicus curiae, and the recall of this Court's judgment of 16 November 2017 (S (SC 39/2017) v R). The Court did not consider it necessary to hear oral submissions or appoint counsel as amicus curiae, particularly in light of the fact that this was Mr S's second application for leave to appeal.

Orders