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).

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 The Queen v Dolman

Details

AGLC: The Queen v Dolman [2009] NZCA 434
Case: [2009] NZCA 434
Decision Date: 28 September 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Jesse Dolman sought to appeal the dismissal of his application for an extension of time to file an appeal against his sentence, which was originally imposed on charges of causing grievous bodily harm with intent. The appeal against the sentence was delayed by approximately 15 months, prompting Dolman to seek an extension of time under section 388 of the Crimes Act 1961. The Court of Appeal dismissed the application for an extension of time and subsequently denied the recall application. Dolman argued that the Court had jurisdiction to reconsider its earlier decision based on section 383 of the Crimes Act, the Court's inherent jurisdiction, and a case law precedent. Dolman made three main points in support of the application, including the Court's alleged undue emphasis on the likely outcome of the appeal, the Court's consideration of the appeal on the merits, and the potential impact on his right to seek leave to appeal to the Supreme Court. The Court of Appeal assessed Dolman's application against the criteria established in previous case law, concluding that there was no fundamental error in procedure, no alternative remedy available, and no substantial miscarriage of justice that would result if the error was not corrected. Therefore, the Court of Appeal declined Dolman's application for recall.

Orders