HARDING v R [2020] NZCA 579

HARDING v R [2020] NZCA 579 [20 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA673/2018[2020] NZCA 579BETWEEN BROWNIE JOSEPH HARDINGAppellantAND THE QUEENRespondentCourt: Brown, Wylie and Whata JJCounsel: Applicant in personK S Grau for RespondentJudgment:(On the papers)20 November 2020 at 11.30 amJUDGMENT OF THE COURTThe application for recall of this Court's judgment in Harding v R[2019] NZCA 370 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a jury trial Mr Harding was convicted of kidnapping (unlawfuldetention of victim with consent obtained by duress) and male assaults female.1On 9 November 2010 he was sentenced to two years and six months' imprisonment.21 He was acquitted on an alternative charge of kidnapping (unlawful detention without consent) andone of threatening to kill.2 R v Harding DC Whangarei, CRI-2009-088-3107.His appeal against sentence scheduled for hearing in September 2011 was abandoned.His application for the leave of this Court some six years later to withdraw his noticeof abandonment was declined in November 2017.3[2] In late 2018 he filed an appeal against both his conviction and sentence.This Court treated the proceeding as an application for an extension of time to appealthe conviction and an application for leave to bring a second sentence appeal.The applications were heard in June 2019 and dismissed in a judgment delivered on16 August 2019.4[3] Mr Harding now seeks recall of that judgment.The recall jurisdiction[4] In Uhrle v R5 the Supreme Court held that the recall jurisdiction in the criminaljurisdiction is sufficiently captured within the three grounds articulated inHorowhenua County v Nash (No 2).6 Relevantly for present purposes a judgment maybe recalled where justice requires it for some very special reason.[5] In the light of Uhrle this Court took the opportunity in Lyon v R to examine theexercise of the recall jurisdiction as it applies to criminal proceedings in this Court.7The Court concluded:[34] Following Uhrle, the reach of the recall jurisdiction is as extensive asthe interests of justice require. And where grounds for recall clearly exist, theCourt will continue to take a pragmatic approach. But exercise of thejurisdiction will remain exceptional, meaning that a recall application willsucceed only when it can be shown, on the hearing of the recall application,that a substantial injustice has probably resulted from the decision to berecalled, and further that recall is the appropriate remedy. Recall applicationswhich seek to relitigate the merits of this Court's decision, or which allegea miscarriage of justice at first instance, are likely to be dismissed on theground that the applicant must exhaust their statutory appeal rights.3 Harding v R [2017] NZCA 538.4 Harding v R [2019] NZCA 370.5 Uhrle v R [2020] NZSC 62 at [29].6 At [29]. See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 approved inSaxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR76 at [2].7 Lyon v R (No 2) [2020] NZCA 430.Discussion[6] As this Court stated in Lyon the recall jurisdiction is not ordinarily availablewhere the applicant has a further statutory right to either appeal or seek leave to doso.8 Ms Grau first observed that Mr Harding has not exhausted his rights of appeal.Technically that submission is correct because Mr Harding is entitled to seek to appealthe lower court decision directly to the Supreme Court. However such a course is onlyavailable where exceptional circumstances are established9 and we consider that thereis no realistic possibility of Mr Harding attaining that threshold.[7] In addressing the application for an extension of time to appeal againstconviction the Court addressed the considerations referred to in R v Lee.10 It concludedthat the prosecution case was strong and the merits of the proposed appeal weak.Other factors which supported the refusal of an extension of time to appeal were theten year interval since the offending, the delay in making the application for anextension of time together with the absence of explanation, and the fact that thesentence had been served several years ago.[8] Mr Harding's submissions in support of recall emphasised the point raised inhis 2018 application that although he had been holding his son, that had not been forthe purpose of detaining the complainant in the motor vehicle. However on theevidence we consider that the jury was entitled to conclude that Mr Harding's objectwas to prevent the complainant leaving the motor vehicle. In that connection we notethe following description of events by the trial judge on sentencing:[4] What did happen is clearly you wanted to talk to the complainant. Shedid not want to talk to you, she wanted to go. You suggested going tothe Blue Goose and I accept her evidence on that point. At that stageshe got frightened and wanted to get out of the car, but you did notwant her to go because you wanted to have that discussion. So, youdid the one thing that you knew would stop her getting out of the car;you grabbed hold of your son and you hung onto him. She got intoa struggle with you, trying to get her son so she could leave the car.You did not let her initially. During the struggle she made a movementto get out of the car, you pulled her back and she ended up literally onthe back with her head between the two seats. An independent witnesssaw your arm in the vicinity of her head or chest area.8 At [18].9 Supreme Court Act 2003, s 14.10 R v Lee [2006] 3 NZLR 42 (CA) at [99].The complainant said that you had your forearm across her throat.I have seen the photographs, I listened to the evidence, and I amsatisfied that that is what happened.[5] Accordingly, the jury came to the decision that you had kidnapped thecomplainant, simply by keeping her in that car, using her son as theway in which to keep her there. You mostly certainly assaulted her byputting your forearm over her throat in an attempt to stop her gettingher son.[9] In our view the recall application contains no credible suggestion ofa miscarriage of justice. The maintenance of the public interest in the administrationof justice weighs heavily against the application for, as the judgment noted, there isa strong public interest in the final determination of cases involving domestic violence.[10] In declining Mr Harding's application for leave to bring a second sentenceappeal our judgment recited the explanation for the six month uplift contained in thisCourt's 2017 judgment declining leave to withdraw the earlier notice of abandonmentof a sentence appeal.11 In our view that explanation demonstrated why Mr Harding'sproposed ground of appeal based on the New Zealand Bill of Rights Act 1990 wasmisconceived.[11] In his submissions in support of recall Mr Harding revisits his previouscontentions. However repetition of the arguments previously rejected provide no basisfor the exercise of the recall jurisdiction in this case.Result[12] The application for recall of this Court's judgment in Harding v R is declined.Solicitors:Crown Law Office, Wellington for Respondent11 See Harding v R, above n 3, at [11]–[12].