REASONS (Given by Winkelmann CJ and Ellen France J)
Table of Contents
Para No.
Introduction
[1]
Is a direct appeal from the High Court available?
[7]
Characterisation of the application to the Court of Appeal
[15]
Is there jurisdiction for this Court to hear an appeal from a decision declining recall?
[18]
Is there jurisdiction to entertain a second application for leave?
[20]
Should the Court recall its earlier judgment and grant leave?
[30]
Result
[41]
Introduction
In 2013 Ms Uhrle was convicted, together with three co‑offenders, of murder.[1] Her appeal against conviction was dismissed by the Court of Appeal in 2015.[2] This Court declined leave to appeal from the decision of the Court of Appeal.[3]
[1]In sentencing Ms Uhrle, Cooper J, the trial Judge, considered it likely that the jury found Ms Uhrle guilty under s 66(2) of the Crimes Act 1961: R v Uhrle [2013] NZHC 922 at [13].
[2]Uhrle v R [2015] NZCA 412 (Winkelmann, Lang and Wylie JJ). This appeal to the Court of Appeal focused primarily on the trial Judge’s directions, particularly those as to party liability.
In September 2018, Ms Uhrle filed an application to “bring a ‘second appeal against conviction’” in the Court of Appeal on new grounds.[4] The application was brought on the basis there was fresh evidence, namely, a statement from Ms Uhrle’s husband and co‑offender, Faamanu Fesuluai, in which he claims sole responsibility for the murder. Ms Uhrle’s application was heard by the Court of Appeal along with two other applications to bring second appeals in unrelated cases.[5]
[4]This description is how the Court of Appeal recorded Ms Uhrle’s application: Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 (Kós P, Brown and Williams JJ) [Uhrle (CA recall)] at [3].
[5]Mr Lyon filed an application “to bring a second appeal” and Mr Boyes-Warren filed an application for leave “to bring a second appeal (against sentence)”.
The Court of Appeal dismissed the applications.[6] In assessing the applications, the Court said it was exercising the “inherent power” of the Court “to recall a final decision in exceptional circumstances when required by the interests of justice” as set out in R v Smith.[7]
Ms Uhrle then made an application to this Court for leave…
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.
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Details
AGLC
Uhrle v R [2020] NZSC 62
Case
[2020] NZSC 62
Decision Date
CaseChat Overview and Summary
Ms Uhrle sought leave to bring a second appeal against her conviction for murder. The Court of Appeal had declined leave for her to bring a second appeal on the basis of a statement by her husband and co-offender, Faamanu Fesuluai, claiming sole responsibility for the murder. This Court dismissed Ms Uhrle's application for leave to bring a second appeal. Ms Uhrle's appeal against conviction was dismissed by the Court of Appeal in 2015 and this Court declined leave to appeal from that decision in 2016. Ms Uhrle sought leave to bring a second appeal on the basis of the new evidence. The Court of Appeal declined leave to bring a second appeal on the basis that there was no fundamental error in procedure, there was no substantial miscarriage of justice if the error was not corrected and there was an alternative effective remedy. Ms Uhrle argued that the Court of Appeal had erred in its characterisation of the application, that the Court of Appeal had no jurisdiction to recall its judgment and that there was no alternative effective remedy. This Court rejected Ms Uhrle's arguments. The Court of Appeal had correctly characterised the application as one for recall. This Court had no jurisdiction to hear an appeal from the Court of Appeal's decision declining leave to bring a second appeal. This Court did, however, have jurisdiction to entertain a second application for leave. Ms Uhrle's application for leave to bring a second appeal did not warrant recall and reconsideration. There was no very special reason of justice requiring the judgment to be recalled. The proposed evidence faced a number of difficulties as a result of which it was not admissible. There was no fundamental error in procedure, no substantial miscarriage of justice if the error was not corrected and there was an alternative effective remedy.