Suckling v R - [2016] NZSC 133

IN THE SUPREME COURT OF NEW ZEALAND

SC 112/2016
[2016] NZSC 133

BETWEEN	MORRIS BURTON SUCKLING Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and Arnold JJ
Counsel:	Applicant in person P D Marshall for Respondent
Judgment:	4 October 2016

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B There is no order for costs.

____________________________________________________________________

REASONS

The applicant, Mr Suckling, has filed an application for leave to appeal against a decision of the Court of Appeal dismissing his appeal against conviction and sentence on various taxation charges.[1] This is the second application for leave that he has filed – the Court dismissed the first in a decision delivered on 4 July 2016.[2]
[1]Suckling v R [2016] NZCA 187, (2016) 27 NZTC 22-051 (French, Simon France and Ellis JJ) [Suckling (CA)].
[2]Suckling v R [2016] NZSC 80, (2016) 27 NZTC 22-059 [Suckling (SC)].
In Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, this Court held that despite an earlier refusal of leave on unrelated grounds, the Court had

jurisdiction to entertain a second application for leave.[3] In that case, after the original leave application was dismissed, further factual information, previously unknown to the appellant, had come to light on an issue that raised important questions concerning the administration of justice. The Court was prepared to grant leave on a second application in those circumstances.

[3]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2008] NZSC 94, (2008) 19 PRNZ 132 at [1]–[2].

Mr Suckling seeks to take advantage of this very limited exception by arguing that his second application is based on fresh grounds not considered by the Court in its judgment on his first application. In his submissions, Mr Suckling says:
The grounds raised in this appeal are either issues that the Court of Appeal avoided ruling upon even though they were placed before that court, or they are restatements of the actual issues placed before the Court of Appeal that never received proper consideration because they were not stated as specific grounds of appeal, or they are based on events that occurred subsequent to that appeal.
This extract indicates why this second application for leave is misconceived. The first two sets of issues referred to in the extract indicate that Mr Suckling is seeking to re-run or re-cast arguments previously made and rejected. This is an abuse of the appellate process. Matters that could have been raised in his first application for leave to appeal should have been raised then and cannot be raised on a second application in a re-cast form. In relation to the third set of issues, Mr Suckling refers to events that occurred subsequent to the appeal before the Court of Appeal. However, no new factual matters capable of affecting the outcome have become apparent since this Court’s earlier judgment, as occurred in Saxmere.
Mr Suckling identifies seven grounds of appeal. Mr Suckling submits that:
(a)the admissibility…

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 Suckling v R

Details

AGLC: Suckling v R [2016] NZSC 133
Case: [2016] NZSC 133
Decision Date: 4 October 2016

CaseChat Overview and Summary

Morris Burton Suckling sought leave to appeal against his conviction and sentence on various taxation charges, following the dismissal of his appeal by the Court of Appeal. The Supreme Court of New Zealand, consisting of William Young, Glazebrook, and Arnold JJ, considered the second application for leave to appeal, after previously dismissing the first on 4 July 2016. The legal issues before the court involved whether the court should grant a second application for leave to appeal, given that the previous application was dismissed on unrelated grounds. The court had to decide if the fresh grounds presented in the second application justified revisiting the matter.

The court found that the applicant's second application for leave was misconceived. The grounds raised in the second application were either issues that were previously avoided or not properly considered by the Court of Appeal, or they were based on events that occurred subsequent to the appeal. The court noted that Mr Suckling was seeking to re-run or re-cast arguments that were previously made and rejected. Additionally, the new factual matters presented did not affect the outcome as they did not reach the level of significance as in the case of Saxmere Co Ltd v Wool Board Disestablishment Co Ltd. The court concluded that the applicant's second application did not provide sufficient grounds to justify granting leave to appeal. Therefore, the application for leave to appeal was dismissed, and there was no order for costs.

Orders