X v The Queen

[2021] NZHC 3541

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-3073

[2021] NZHC 3541

X

v

THE QUEEN

Hearing:	14 December 2021
Counsel:	R M Lithgow QC and A Jeremich for Mr X G J Burston and A C R M Jeffares for Crown
Judgment:	17 December 2021

JUDGMENT OF SIMON FRANCE J

[1]                 Mr X seeks recall of a judgment issued on 2 December 2021.1 In that judgment I resolved competing applications by the Crown for leave to withdraw charges that had been brought against X, and by the defence for a dismissal of the charges under  s 147 of the Criminal Procedure Act 2011. The primary charge is murder. Leave to withdraw was given.

[2]                 The basis for the recall application is that there has been a relevant change of circumstance. When I issued judgment, a trial involving Mr X’s two remaining

1      R v X [2021] NZHC 3279.

X v R [2021] NZHC 3541 [17 December 2021]

co-defendants was to take place in February 2022. The Crown had advanced its application for leave to withdraw the charges against Mr X in part on the prospect that the looming trial might produce evidence against Mr X. The extent to which my judgment placed weight on that factor is a matter of dispute, but I accept it was a relevant consideration. The trial will not now take place at all. The Crown is not proceeding against the co-defendants.

[3]                 The Crown accepts this is a relevant change and that Mr X’s application should be considered on the same basis as that advanced by his co-defendants. However, it submits the change is not one which requires recall or a different decision.

[4]                 The application relies on the third situation identified in Horowhenua County v Nash (No 2), namely that for some very special reason justice requires that the judgment be recalled.2 I agree that if the change were such as to point to a different outcome, it would be appropriate to recall.

[5]                 Mr X’s co-defendants made the same application and contemporaneously I am issuing judgment on those applications.3 The analysis in that judgment includes consideration of the propositions advanced by Mr Lithgow QC on the recall application. The conclusion is that I do not consider the loss of the trial of any particular significance, and do not regard it as a change that merits recall of this judgment. That judgment addresses all the relevant issues.

[6]                 Mr Lithgow also identified other aspects of the first judgment that could be improved or corrected. He may be right on some of them but they do not constitute a very special reason.

[7]The application for recall is declined.

Simon France J

2      Horowhenua County v Nash (No 2) [1968] NZLR 632 and 633; Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286; and Lyon v R (No 2) [2020] NZCA 430.

3      R v AB and CD [2021] NZHC 3524.