S v Police HC Wellington CRI-2007-485-121

[2008] NZHC 2224

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-121

S

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 March 2008

Counsel:         R M Gould for Appellant

D R La Hood and FSR McKeever for Respondent

Judgment:      10 March 2008 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This appeal against sentence raised the issue of whether the discretion to discharge without conviction should have been exercised in favour of the appellant. It came before me on the 11th of December 2007, when both counsel then appearing indicated that some of the facts on which the plea of guilty had been entered were now in dispute, and counsel for the appellant indicated an intention to make application to vacate the guilty plea.  The Respondent did not indicate any opposition to  that  course  and  I  accordingly  dismissed  the  appeal  in  anticipation  that  an

application to vacate the guilty plea would be made.

S V NZ POLICE HC WN CRI-2007-485-121  10 March 2008

[2]      Subsequently, counsel filed a joint memorandum in which they indicated that an application to vacate the plea was not appropriate.  They sought that the matter should be returned to this court with an outcome, which counsel agreed, that the sentence should be quashed and the matter remitted to the District Court for consideration of fresh evidence which has now be adduced.

[3]      In a minute issued on 3rd  of March I raised with counsel issues as to the power of this court to deal with the matter in this way:  in particular the power to recall the judgment which I delivered on the 11th of December 2007 and to re-open the appeal, and secondly, if that were done the power to remit to the District Court.  I also raised with counsel, for their consideration, the possibility that the matter might be disposed in this court on this appeal.

[4]      Counsel for the Respondent have filed helpful written submissions dealing with the two issues which I had raised.  The first is the question of whether there is a power to recall the judgment.   The notes to Brooker’s commentary on s 121 in Brooker’s Summary Proceedings note two conflicting decisions on the ability to reopen an appeal which has been finally disposed of in this court.  The first is the judgment of Doogue J in Tapara v Police (1988) 3 CRNZ 346.  There His Honour was  faced  with  a  situation  where  he  became  aware  of  an  authority which  was relevant to the appeal after the appeal had been dismissed.   He held that he had power to order a rehearing and cited s 121(6) as inferentially giving this power.  That decision was questioned by Holland J in Spencer v Police [1994] HC CHCH AP

224/94 18 October 1994, where he expressed grave doubts as to whether this court has jurisdiction to grant a rehearing of an appeal which has been dismissed.

[5]      Counsel for the Respondent submits that the view in Tapara is to be preferred and that s 121 does contain sufficient power to enable the court to make an order recalling the earlier judgment, or that, in the alternative, the inherent jurisdiction of the court may be invoked to the same effect.  I accept the submission that there is power.  The power in s 121(1) is broad in relation to the powers of the court to hear and determine every appeal.   Subsection (7) states that the decision of the High Court on any general appeal shall be final, but I do not read that as restricting the broad powers to deal with the appeal including, if necessary, the power to recall a

judgment which has disposed of the appeal in a manner which subsequent events have  indicated  was  inappropriate.    If  the  powers  contained  in  s 121  are  not themselves broad enough to achieve that result, I consider that the inherent jurisdiction may be invoked.  It would not be a just result if, an appeal having been disposed on a basis which was subsequently acknowledged as wrong, the appellant had  no  recourse  other  than  the  ability to  show  a  question  of  law  of  sufficient importance to justify a further appeal under s 144 of the Act.   That would be an unjust outcome.

[6]      Accordingly, I grant an order recalling the judgment delivered on the 11th of

December 2007 dismissing the appeal.

[7]      The appeal then being reinstated, the question is whether it should now be remitted or whether the substantive appeal should be dealt with here.  Again counsel for the Respondent’s helpful submissions deal with the question.   In Hook v New Zealand Police HC WN CRI 2005-485-60 15 June 2005, Miller J found that s 121(1) and s 131 of the Summary Proceedings Act, when read together, were sufficiently flexible to allow an appeal against sentence to be remitted to the District Court where there was a dispute as to facts which had not been adequately resolved in the District Court. That is in effect a similar situation to that which applies here.

[8]      I agree with the submission that, where the matter can be remitted to the District Court, the power to proceed in this court to a new sentencing exercise should be exercised with restraint, because no further general right of appeal would be available from this court’s finding.  Both counsel here have expressed, both in the original memorandum and in submissions today, a preference to have the matter remitted and in the circumstances I consider that that is the better course.

[9]      The appeal will accordingly be allowed and the matter will be remitted to the District Court for reconsideration in the light of the further evidence which it is intended may be called before that court.

“A D MacKenzie J”

Solicitors:         Rennie Gould, PO Box 12-450, Wellington for Appellant

Crown Solicitors Office, Wellington for Respondent