The Queen v Parker

[2009] NZCA 467

IN THE COURT OF APPEAL OF NEW ZEALAND

CA573/2008
[2009] NZCA 467

THE QUEEN

v

JOSEPH BOYD PARKER

Hearing:8 October 2009

Court:William Young  P, Panckhurst and Mackenzie JJ

Counsel:No appearances

Judgment:8 October 2009 

ORAL JUDGMENT OF THE COURT

The application is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]        The appellant was convicted in 1989 of sexual (and other) offending and sentenced to preventive detention.  A subsequent application to this Court for leave to appeal against conviction and sentence was dismissed on 26 April 1990. 

[2]        In September 2008, the appellant applied for a rehearing, seeking to invoke the automatic rehearing procedures established following judgment of this Court in R v Smith [2003] 3 NZLR 617 and as part of the aftermath of the Privy Council decision in R v Taito [2003] 3 NZLR 577.

[3]        Those procedures are not available to him.  His application for leave to appeal was determined before the coming into effect of the Crimes Amendment Act 1991 which provided for a right to appeal without leave against conviction and sentence.  It also antedated the coming into effect of the Legal Services Act 1991.  The judgment in Taito addressed the statutory scheme as it was from 1991.  That judgment is therefore not directly applicable in the current situation.  For this reason the practice of giving automatic rehearings upon request adopted as a result of Smith is not applicable.

[4]        The Registrar of the Court wrote to counsel for the appellant on 23 February 2009 explaining the legal position as just outlined.  That letter also noted that the appellant may invoke the more general jurisdiction referred to in Smith under which this Court, in exceptional circumstances, may revisit a prior decision and that it remains open to the appellant to apply under the Crimes (Criminal Appeals) Amendment Act 2001 for leave to have the application reheard.  The appellant appears to meet the criteria referred to in s 14(1) of that Act.  If, however, he wishes to pursue this option, he will have to point to a failure of the kind referred to in s 13(1) and establish an arguable case for the contention that a miscarriage of justice has occurred. 

[5]        No response to the letter of 23 February has been received.

[6]        The courses of action mentioned in the letter of 23 February 2009 remain open to Mr Parker should he wish to resort to them.  His present application, however, is misconceived and is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington