The Queen v Dolman

[2009] NZCA 434

IN THE COURT OF APPEAL OF NEW ZEALAND

CA13/2009
[2009] NZCA 434

THE QUEEN

v

JESSE DOLMAN

Court:Ellen France, Randerson and Miller JJ

Counsel:P M Keegan for Applicant

K A L Bicknell for Crown

Judgment:28 September 2009 at 3 pm 

(on the papers)

JUDGMENT OF THE COURT

The application for recall is declined.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] This is an application that the Court reconsider its earlier decision dismissing the application for an extension of time to file an appeal against sentence: [2009] NZCA 302. We treat it as an application for recall.

Background

[2]       The applicant appealed against a sentence of 12 years imprisonment imposed on two charges of causing grievous bodily harm with intent to do so.  However, because there was a delay of some 15 months in filing the notice of appeal, the applicant sought an extension of time for filing the appeal under s 388 of the Crimes Act 1961.

[3]       The application for extension of time was set down to be heard separately on 14 May 2009.  At the commencement of the hearing the Court indicated that it wanted to hear argument on the merits of the appeal.  Counsel for the applicant indicated he was unprepared for such an argument and sought an adjournment.  The matter was adjourned for the hearing of both the application for an extension of time and the appeal.  That hearing took place on 8 July 2009. 

[4]       As we have noted, the Court dismissed the application for an extension of time after considering, amongst other matters, the reasons for the delay in filing the notice of appeal and the merits of the appeal.  Subsequently, the applicant filed the recall application on which we have had submissions from the Crown as well as from the applicant.  We indicated to counsel that the matter would be dealt with on the papers unless good reason was advanced for a hearing.  Neither counsel sought a hearing and so we have dealt with the matter on the papers.

[5]       The Crown opposes the recall application.

The recall application

[6]       The applicant says the Court has jurisdiction to reconsider and reopen its earlier decision.  The applicant relies for that proposition on s 383 of the Crimes Act (the right to appeal against conviction and sentence), R v Smith [2003] 2 NZLR 617 (CA) and the Court’s inherent jurisdiction.

[7]       The applicant makes three main points in support of the application, as follows:

(a)The Court in dismissing the application for extension of time placed undue weight on the likely outcome of the appeal;

(b)The Court in practical terms “heard” the appeal and should therefore have granted the extension sought; and

(c)Granting the application for an extension of time would have left open the right to seek leave to appeal to the Supreme Court (Mr Keegan relies on Simpson v Kawerau District Council (2004) 17 PRNZ 358 (SC) and see also Palmer v R SC CRI 13/2004 12 October 2004). 

The scope of the Court’s power to recall

[8]       The Court’s power to reopen a decision was discussed in R v Smith. In that case Elias CJ, delivering the judgment of the Court, noted that the Court has the jurisdiction conferred by statute. Further, Elias CJ observed at [28] that there was no statutory power to rehear appeals finally disposed of by judgment, “at least once the judgment has been perfected by entry on the Criminal Register of the Court (R v Nakhla(No. 2) [1974] 1 NZLR 453).”

[9]       The Court in Smith went on to say that the Court’s inherent or implied power to regulate its procedure and practice went further than simply enabling the Court to correct slips or omissions in a judgment and allowed reopening of cases in some circumstances. The Chief Justice concluded at [36] that this Court had:

[I]nherent power to revisit its decisions in exceptional circumstances when required by the interests of justice.  Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”.  Recourse to the power to reopen must not undermine the general principle of finality.  It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available.

[10]     Subsequently, in R v Palmer [2007] NZCA 350, William Young P at [8] considered that in light of Smith the jurisdiction to reopen a case which had been the subject of a final judgment depended on the Court being satisfied that:

(a)       There was a “fundamental error in procedure”;

(b)       There is no alternative remedy available; and

(c)A substantial miscarriage of justice would result if the error is not corrected.

Evaluation

[11]     There is no suggestion here that the decision to decline the extension was a nullity or was outside the jurisdiction in s 388.  Nor is this a case of a slip or other similar procedural error.  Accordingly, the issue is whether there are exceptional circumstances so as to enable the exercise of the inherent jurisdiction.  In our view there are no such circumstances.  There is no fundamental error of procedure here nor any substantial miscarriage. 

[12]     We take each of the matters relied on by the applicant in turn.  First, as to our consideration of the prospective merits, this Court has said previously in R v Knight [1998] 1 NZLR 583 (CA) that the test under s 388(2) is of the interests of justice in the particular case. A balancing of the wider interests of society and the finality of decisions against the interests of the individual applicant in having the decision reviewed is required. Relevant considerations include the strength of the proposed appeal, whether the liberty of the individual is involved, the length of the delay and the reasons for it, the extent of the impact on others affected and on the administration of justice, and the absence of prejudice to the Crown. (See R v Lee [2006] 3 NZLR 42 at [99] (CA) applying Knight.)

[13]     In the applicant’s case, the reasons for delay themselves were not a basis for granting an extension of time.  Given that, along with the length of the delay, the reality is that the potential merits of the appeal provided the only basis on which it could have been argued that the interests of finality were outweighed.  The Court concluded that the appeal had no merit and cannot be criticised for considering a potential basis on which an extension of time may have been granted. 

[14]     The applicant’s second point that the Court had in practical terms “heard” the appeal does not give rise to any error in approach.  As the Crown points out, an extension of time is required because the appeal is out of time.  There is no right to be given an extension of time and s 388(2) is silent as to the relevant criteria.  There can be no guarantee an extension of time will be granted.  Were it otherwise then those seeking to appeal out of time will be in the same position as those appealing within time.  That cannot have been intended.  The impact of the loss of any subsequent appeal rights has to be considered in that light.

[15]     Finally, even if there was some procedural error and assuming it has the effect on appeal rights contended for by Mr Keegan, then it has not been shown that any miscarriage of justice arises.  (The question of jurisdiction is of course for the Supreme Court.)  The applicant indicates the Court’s approach to his case has cut off an opportunity to apply for appellate review of the Court’s decision “should he have been able to find fault with it”.  While in reply submissions it is said that the Court’s decision was wrong in law, no particular fault is identified.

[16]     For these reasons we accept the Crown submission that the applicant’s case does not display the characteristics which give rise to the ability to exercise the inherent powers.

Disposition

[17]     For these reasons, the application for recall is declined.

Solicitors:

Crown Law Office, Wellington