Sadler v Police

[2021] NZCA 413

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA604/2020
 [2021] NZCA 413

BETWEEN	CHRIS SADLER Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Clifford, Simon France and Edwards JJ
Counsel:	Applicant in person J A Eng for Respondent
Judgment: (On the papers)	30 August 2021 at 2 pm

JUDGMENT OF THE COURT

The application for recall is declined. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

1. Mr Sadler pleaded guilty in the District Court at Auckland to one charge of driving with excess blood alcohol (third or subsequent).[1]  Mr Sadler was subsequently sentenced on 11 October 2019 to six months’ community detention, disqualified from holding or obtaining a driver’s licence for one month, after which he could apply for an alcohol interlock licence, and ordered to pay fees and expenses of $173.[2] 

   [1]Land Transport Act 1998, s 56(2) and (4). 

   [2]Police v Sadler [2020] NZDC 26646. 

2. Mr Sadler’s appeals against his conviction and sentence were dismissed by the High Court on 13 October 2020.[3]  Mr Sadler’s application to this Court to bring a second appeal was declined on 31 May 2021.[4]  Mr Sadler now applies for recall of that decision.

   [3]Sadler v Police [2020] NZHC 2681.

   [4]Sadler v Police [2021] NZCA 219.

3. In Uhrle v R the Supreme Court clarified the approach to be taken to recall applications in the criminal jurisdiction.[5]  The correct approach was not, as this Court had said in an earlier recall decision involving Mr Uhrle, that the basis for recall in that jurisdiction was limited to fundamental procedural errors.[6]  Rather the traditional civil approach, enunciated in Horowhenua County v Nash (No 2),[7] was to be followed.[8]  Accordingly, and as this Court subsequently explained in Lyon v R (No 2):[9]

   … the test recognises three categories of case in which recall is permissible: (i) since the hearing a relevant statute or regulation has changed, or a relevant judicial decision of high authority has been delivered; or (ii) counsel failed at the hearing to direct the Court to a legislative provision or an authoritative and plainly relevant decision; or (iii) for some other very special reason justice requires that the judgment be recalled.

   [5]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.

   [6]See at [23]–[24], and Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [27].

   [7]Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC).

   [8]Uhrle v R, above n 5, at [25].

   [9]Lyon v R (No 2) [2020] NZCA 430 at [9].

4. In his memorandum supporting his application Mr Sadler does not directly address that test.  Rather he raises factual and legal matters that have featured in his earlier appeals to the High Court and in his application to bring a second appeal in this Court.  As such, it is clear that neither of the first two grounds on which recall may be granted is relevant here.  Nor does Mr Sadler’s memorandum identify any other “very special reason” why justice requires that the judgment be recalled. 

5. Rather, Mr Sadler in effect challenges again the District Court’s reasoning as he did in his unsuccessful appeal to the High Court, as he did again in his leave application to this Court.  For the same reasons as we declined leave for a second appeal, we also decline Mr Sadler’s application for recall.  As those reasons establish, the high test that justice requires the judgment be recalled is not met in these circumstances.

Result

1. The application for recall is declined.

Solicitors:
Crown Law Office, Wellington for Respondent