SADLER v NEW ZEALAND POLICE [2021] NZCA 413

SADLER v NEW ZEALAND POLICE [2021] NZCA 413 [30 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA604/2020[2021] NZCA 413BETWEEN CHRIS SADLERApplicantAND NEW ZEALAND POLICERespondentCourt: Clifford, Simon France and Edwards JJCounsel: Applicant in personJ A Eng for RespondentJudgment:(On the papers)30 August 2021 at 2 pmJUDGMENT OF THE COURTThe application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] Mr Sadler pleaded guilty in the District Court at Auckland to one charge ofdriving with excess blood alcohol (third or subsequent).1 Mr Sadler was subsequentlysentenced on 11 October 2019 to six months' community detention, disqualified fromholding or obtaining a driver's licence for one month, after which he could apply foran alcohol interlock licence, and ordered to pay fees and expenses of $173.21 Land Transport Act 1998, s 56(2) and (4).2 Police v Sadler [2020] NZDC 26646.[2] Mr Sadler's appeals against his conviction and sentence were dismissed bythe High Court on 13 October 2020.3 Mr Sadler's application to this Court to bring asecond appeal was declined on 31 May 2021.4 Mr Sadler now applies for recall ofthat decision.[3] In Uhrle v R the Supreme Court clarified the approach to be taken to recallapplications in the criminal jurisdiction.5 The correct approach was not, as this Courthad said in an earlier recall decision involving Mr Uhrle, that the basis for recall inthat jurisdiction was limited to fundamental procedural errors.6 Rather the traditionalcivil approach, enunciated in Horowhenua County v Nash (No 2),7 was to be followed.8Accordingly, and as this Court subsequently explained in Lyon v R (No 2):9 the test recognises three categories of case in which recall is permissible:(i) since the hearing a relevant statute or regulation has changed, or a relevantjudicial decision of high authority has been delivered; or (ii) counsel failed atthe hearing to direct the Court to a legislative provision or an authoritative andplainly relevant decision; or (iii) for some other very special reason justicerequires that the judgment be recalled.[4] In his memorandum supporting his application Mr Sadler does not directlyaddress that test. Rather he raises factual and legal matters that have featured in hisearlier appeals to the High Court and in his application to bring a second appeal inthis Court. As such, it is clear that neither of the first two grounds on which recall maybe granted is relevant here. Nor does Mr Sadler's memorandum identify any other"very special reason" why justice requires that the judgment be recalled.[5] Rather, Mr Sadler in effect challenges again the District Court's reasoning ashe did in his unsuccessful appeal to the High Court, as he did again in his leaveapplication to this Court. For the same reasons as we declined leave for a secondappeal, we also decline Mr Sadler's application for recall. As those reasons establish,the high test that justice requires the judgment be recalled is not met in thesecircumstances.3 Sadler v Police [2020] NZHC 2681.4 Sadler v Police [2021] NZCA 219.5 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.6 See at [23]–[24], and Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [27].7 Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC).8 Uhrle v R, above n 5, at [25].9 Lyon v R (No 2) [2020] NZCA 430 at [9].Result[6] The application for recall is declined.Solicitors:Crown Law Office, Wellington for Respondent