C (CA667/2020) v R [2022] NZCA 182

C (CA667/2020) v R [2022] NZCA 182 [12 May 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: DISTRICT COURT ORDER [2016] NZDC 20286 PROHIBTINGPUBLICATION OF THE APPLICANT'S NAME REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA667/2020[2022] NZCA 182BETWEEN C (CA667/2020)ApplicantAND THE QUEENRespondentCourt: Goddard, Venning and Peters JJCounsel: Applicant in personR K Thomson for RespondentJudgment:(On the papers)12 May 2022 at 11.00 amJUDGMENT OF THE COURTThe application for recall of this Court's judgment delivered on 24 June 2021 isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] Mr C was convicted on four charges of sexual offending against hisstep-daughter. He was also convicted on a representative charge of supplying her withcannabis. His trial took place in August 2016, and on 12 October 2016, Mr C wassentenced to four years' imprisonment, with a minimum non-parole period oftwo years.1[2] On 17 November 2020, some four years after the expiry of the time for filingan appeal, Mr C filed a notice of appeal against conviction. He sought an extensionof time for filing that appeal under s 231(3) of the Criminal Procedure Act 2011 (CPA).This Court declined to grant an extension of time.2 This Court was firmly of the viewthat the overall interests of justice did not favour extending time to bring an appeal.The delay was lengthy. Much of it had not been satisfactorily explained.3The apparent strength of the proposed grounds of appeal fell well short of the levelrequired to justify re-opening the proceedings after such a long delay.4[3] Mr C has filed a notice of application for leave to appeal in which he complainsthat he was not given a chance to provide evidence in support of his application for anextension of time. He says there is fresh evidence that was not supplied but will bemade available in the proceedings. The application concludes:I have had an appeal on the papers. But it was unfairly considered by theJudges. I seek an oral hearing in the interest of justice.[4] The application for an extension of time was, as usual, decided on the papers.[5] Mr C was legally represented at the time he sought an extension of time toappeal. However he is now self-represented.[6] We treat the application as an application for recall of this Court's judgmentdeclining an extension of time to appeal.[7] It is now clearly established that a judgment determining a criminal appeal maybe recalled where for any very special reason justice requires the judgment to be1 R v [C] [2016] NZDC 20286 at [34]–[38].2 C (CA667/2020) v R [2021] NZCA 271.3 At [42].4 At [44].recalled. The jurisdiction will only be exercised in exceptional circumstances. A recallapplication will succeed only where: 5 it can be shown, on the hearing of the recall application, that a substantialinjustice has probably resulted from the judgment to be recalled, and thatrecall is the appropriate remedy. Recall applications which seek to re-litigatethe merits of this Court's judgment, or which allege a miscarriage of justice atfirst instance, are likely to be dismissed on the ground that the applicant mustexhaust their statutory appeal rights.[8] Mr C challenges this Court's previous judgment on two grounds:(a) he was denied an oral hearing; and(b) he wishes to adduce fresh evidence that he says was not previouslyprovided from a witness who gave evidence at trial. It appears from hisapplication to be evidence that he says could be given by his wife, whowas the mother of the complainant. That evidence has not beenprovided to the Court.Discussion[9] The CPA expressly provides that an application to extend time for filing anotice of appeal may be dealt with on the papers, without an oral hearing.6 As notedabove, Mr C was legally represented and his lawyer filed extensive writtensubmissions in support of his application. Mr C has not identified any respect in whichhe was disadvantaged by the hearing of his application on the papers, apart from thefact that the Court did not receive the further evidence referred to in his application.That issue is addressed below. That apart, we are satisfied that the application couldbe dealt with fairly on the papers. In terms of the test for recall, we are satisfied thatthe hearing of the application on the papers rather than orally did not result in anyinjustice, let alone a substantial injustice.[10] As already mentioned, the further evidence on which Mr C relies was notprovided to us. We do not know what, if anything, the complainant's mother would5 Lyon v R [2020] NZCA 430 at [34]. See also the discussion in that case at [8]–[13]; and Uhrle vR [2020] NZSC 62, [2020] 1 NZLR 286 at [25]–[29].6 Criminal Procedure Act 2011, ss 327 and 329.say that differed from the evidence she gave at trial. In the absence of such evidence,it is impossible to say that a substantial injustice has probably resulted from thedecision to decline an extension of time.[11] More fundamentally still, the possibility that Mr C could now provide furtherevidence that was not before this Court when it decided the application is not a groundfor a recall of this Court's earlier decision, because it does not impeach that decision.New evidence is not a ground for recall.7[12] Thus none of the issues raised by Mr C in his application identifies any reasonfor recall of this Court's judgment. The application simply seeks to re-litigate thequestion whether an extension of time to appeal should have been granted. There isnothing before the Court to suggest that a substantial injustice may have occurred, letalone that such an injustice has probably resulted from the judgment that Mr C seeksto have recalled.Result[13] The application for recall of this Court's judgment delivered on 24 June 2021is declined.Solicitors:Crown Law Office, Wellington for Respondent7 Tranter v R [2020] NZCA 28 at [18].