X v The Queen

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.

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, Mr X sought a recall of a judgment issued on 2 December 2021, in which the judge granted leave for the Crown to withdraw charges against him, including a primary charge of murder. The basis for the recall application was a relevant change of circumstance, namely that a trial involving Mr X’s two remaining co-defendants, which was to take place in February 2022, would no longer proceed as the Crown decided not to proceed against the co-defendants. Mr X argued that the change required the recall of the judgment as it was a relevant consideration for the original decision.

The legal issue before the court was whether the change in circumstances was such that it warranted a recall of the judgment. The court considered whether the loss of the trial of the co-defendants was a change that merited recall of the judgment, and whether it pointed to a different outcome. The court also considered whether there were other aspects of the first judgment that could be improved or corrected, but did not constitute a very special reason for recall.

The court held that the loss of the trial of the co-defendants was not a change that merited recall of the judgment. The court concluded that the judgment addressed all the relevant issues and that the change did not point to a different outcome. The court also found that any other aspects of the first judgment that could be improved or corrected did not constitute a very special reason for recall. The application for recall was therefore declined.

The final orders of the court were that the application for recall of the judgment issued on 2 December 2021 was declined.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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