Wilmhurst-Reti v The Queen - [2019] NZCA 233

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA499/2018
[2019] NZCA 233

BETWEEN	ZACHARY WILMSHURST-RETI Appellant
AND	THE QUEEN Respondent

Court:	Williams, Peters and Gendall JJ
Counsel:	N P Bourke for Appellant J E L Carruthers for Respondent
Judgment: (On the papers)	19 June 2019 at 10.00 am

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment [2019] NZCA 167 is granted.
BThe judgment is recalled.
C The judgment is amended and reissued with paragraphs [47], [48], [50] and Orders C, D and F deleted and a new paragraph [47] substituted which reads as follows: “A judgment of acquittal is entered with respect to the charge of wounding with reckless disregard.”

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REASONS OF THE COURT

(Given by Gendall J)

Application for recall

Mr Wilmshurst-Reti was convicted after a judge-alone trial in the District Court at New Plymouth of wounding with reckless disregard and was sentenced to a term of imprisonment of two years and four months.[1] He appealed successfully to this Court against his conviction but, given that conclusion, there was no need to consider his sentence appeal.[2] He now applies for recall of that judgment solely with respect to the direction we had made in the judgment for a retrial. In its place, Mr Wilmshurst-Reti seeks that this Court should substitute a direction that a judgment of acquittal be entered.

Background

[1]R v Wilmshurst-Reti [2018] NZDC 16251.

[2]Wilmshurst-Reti v R [2019] NZCA 167.

Mr Wilmshurst-Reti’s original conviction in the District Court for wounding with reckless disregard was entered on 1 June 2018. The incident in question had occurred in the evening on a roadside on the outskirts of New Plymouth. The complainant was standing with friends alongside the roadway having been turned away from a crowded house party. A number of cars were parked on the roadside and a further car pulled up. Inside was a woman and two men, Mr Wilmshurst-Reti and his cousin. Both men got out, one from the front passenger’s seat and one from behind the driver.
One of these men shoulder-barged one of the complainant’s friends. The Judge found the complainant had words with one of the men who then pushed the complainant onto the road. An oncoming car travelling at about 100 kilometres per hour struck the complainant and he suffered very serious injuries.
Immediately afterwards, Mr Wilmshurst-Reti, his cousin and their female companion got into their car and left the scene.
As we have noted, Mr Wilmshurst-Reti was convicted in the District Court at New Plymouth on one charge of wounding with reckless disregard.[3]

The appeal

[3]R v Wilmshurst-Reti [2018] NZDC 10679.

On Mr Wilmshurst-Reti’s original appeal to this Court, we held among other things, that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice had occurred. In our judgment at [42] we held that “[l]ooking at the evidence as a whole, we find here that there is no…

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 Wilmhurst-Reti v The Queen

Details

AGLC: Wilmhurst-Reti v The Queen [2019] NZCA 233
Case: [2019] NZCA 233
Decision Date: 19 June 2019 at 10.00 am

CaseChat Overview and Summary

Zachary Wilmshurst-Reti appealed against his conviction for wounding with reckless disregard, which was upheld in the District Court. The appeal was allowed, and the conviction was quashed. Wilmshurst-Reti subsequently applied for recall of the Court of Appeal's decision, seeking a substitution of a judgment of acquittal instead of a retrial. The Crown did not oppose the recall application. The primary issue before the Court was whether it had the jurisdiction to recall and amend its earlier judgment in light of the insufficient evidence to sustain a conviction and the appropriate remedy in such circumstances.

The Court of Appeal found that it had the inherent power to revisit its decisions in exceptional circumstances where it was necessary to prevent a substantial miscarriage of justice and no alternative remedy was available. The Court noted that generally, a new trial should not be ordered where a conviction has been set aside due to insufficient evidence. The Court referred to its earlier decision in R v Smith, which held that the power to order a new trial should not be exercised where the evidence was insufficient to justify a conviction by a reasonable jury, even if properly directed. In this case, the Court found that the recall application met the criteria set out in R v Smith, and the interests of justice required the exercise of its limited power to reopen the earlier judgment.

The Court of Appeal granted Wilmshurst-Reti's application for recall. The Court's earlier judgment was recalled, and the judgment was amended and reissued with a judgment of acquittal entered with respect to the charge of wounding with reckless disregard. Wilmshurst-Reti's conviction was set aside, and he was acquitted of the charge. The Court noted that any compensation claim by Wilmshurst-Reti was a separate matter and did not influence the Court's decision to grant the recall application and enter a judgment of acquittal.

Orders