HADEN v NEW ZEALAND POLICE [2020] NZCA 498

HADEN v NEW ZEALAND POLICE [2020] NZCA 498 [16 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA171/2018[2020] NZCA 498BETWEEN GRACE HADENApplicantAND NEW ZEALAND POLICERespondentCourt: Cooper, Clifford and Collins JJCounsel: Applicant in personA Markham for RespondentJudgment:(On the papers)16 October 2020 at 10.00 amJUDGMENT OF THE COURTA The application for recall of this Court's judgment [2018] NZCA 255 isgranted.B The application for leave is granted to determine the questions posed at[16].C An oral hearing is directed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Ms Haden applies for a recall of this Court's judgment delivered on 16 July2018, in which we declined Ms Haden's application for leave to pursue a secondappeal.1Background[2] In 2016, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal(the Tribunal) found a practitioner guilty of a charge of negligence.2 The Tribunaldecided that the identity of the practitioner should be suppressed.3[3] Ms Haden decided to publish the name of the practitioner on a website called"Transparency New Zealand". Judge Adeane found her guilty of five charges ofbreaching suppression orders contrary to s 263 of the Lawyers and Conveyancers Act2006.4[4] Ms Haden appealed her conviction to the High Court. Her appeal wasdismissed in 2018.5 Ms Haden then sought leave to appeal to this Court in order tobring a second appeal. As we have noted at [1] that application was declined on16 July 2018.6[5] Ms Haden has throughout maintained that no formal suppression orders weremade by the Tribunal. She now finds support for this proposition in a judgment of thisCourt in Siemer v Police, which considered a conviction for breaching the samesuppression order.71 Haden v Police [2018] NZCA 255.2 Waikato Bay of Plenty Standards Committee No 2 v M [2016] NZLCDT 24.3 Waikato Bay of Plenty Standards Committee No 2 v M [2016] NZLCDT 34.4 Police v Haden [2017] NZDC 28419.5 Haden v Police [2018] NZHC 498.6 Haden v Police, above n 1.7 Siemer v Police [2020] NZCA 178.[6] In Siemer, this Court:(a) granted leave to bring a second appeal;8 and(b) allowed Mr Siemer's appeal, finding that the Tribunal had not made thesuppression order with sufficient clarity to found a prosecution againstMr Siemer for publishing the name of the practitioner.Jurisdiction to recall[7] In Uhrle v R, the Supreme Court explained this Court's recall jurisdiction isnot confined to cases of fundamental procedural error.9 In particular, a judgment maybe recalled where justice requires that course be followed for very special reasons. Adecision to reopen an appeal is, however, an exceptional measure that is taken onlywhere it is necessary to do so in order to avoid an injustice.[8] Recently, in Lyon v R (No 2), this Court set out in detail the basis upon whichit will consider recall applications in criminal cases emphasising the exceptionalnature of such a step.10Parties' positions[9] Ms Haden contends we should recall our 2018 judgment because in 2020this Court reached what she says is a different outcome from that which was reachedin her case.[10] Ms Markham, counsel for the respondent, submits:(a) There was no procedural error in this Court's decision decliningMs Haden's application for leave to appeal.(b) The delivery of a subsequent, apparently conflicting, judgment ofthis Court is not a basis for departing from the finality principle.8 Siemer v Police [2019] NZCA 574.9 Uhrle v R [2020] NZSC 62 at [25]–[29].10 Lyon v R (No 2) [2020] NZCA 430.(c) Ms Haden is not without an alternative remedy. Ms Markham submitsshe could seek leave to appeal to the Supreme Court from the judgmentof the High Court.11Analysis[11] We agree with Ms Markham that:(a) there was no procedural error in this Court's leave judgment; and(b) an apparently conflicting subsequent judgment from this Court will notnormally justify recall of an earlier judgment.[12] The recall jurisdiction will not normally be appropriate "where the applicanthas a further statutory right of appeal, or to seek leave to do so".12[13] Where this Court declines leave to bring a second appeal, as it did inMs Haden's case, there is no statutory jurisdiction for the Supreme Court to grant leaveto appeal against that decision.13 However, the Supreme Court may grant leave toappeal directly from a decision of the High Court where this Court has refused to grantleave. In Sena the Supreme Court described such cases as being rare and exceptional,and thus of a similar character to those which properly engage this Court's recalljurisdiction. The essence of the jurisdiction is the need to avoid injustice.[14] Consistent with that approach, we are satisfied that this is one of those rare andunusual cases in which the interests of justice require us to recall our earlier judgment,and grant Ms Haden leave to appeal the decision of the High Court. The recall isjustified for the following reasons:(a) Ms Haden has consistently maintained the Tribunal had not made asuppression order with sufficient clarity to sustain her conviction. ThisCourt accepted that argument when determining Mr Siemer's appeal.11 Sena v Police [2018] NZSC 92 at [4]; and Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at[3].12 Lyon v R (No 2), above n 10, at [18].13 Criminal Procedure Act 2011, s 213(3); and see for example Gorgus v R [2016] NZSC 161 at [3].(b) Ms Haden's appeal has not been considered by this Court. Instead herapplication for leave has been declined.(c) The same ruling by the Tribunal has given rise to both Ms Haden andMr Siemer's convictions being challenged on identical grounds.As matters stand, Ms Haden has not had the opportunity to argue in thisCourt that her conviction should be quashed.[15] These are very special reasons which make it appropriate in the circumstancesthat Ms Haden be given the opportunity to address the relevant issues on appeal.Denying her that opportunity causes a manifest injustice, even if there is a possibilitythat, upon considering Ms Haden's appeal, the Court might uphold her conviction.[16] Leave is granted on the following questions:(a) Did the High Court err in Haden v Police [2018] NZHC 498 in findingthe Tribunal's decision was sufficient to constitute an order under s 240of the Lawyers and Conveyancers Act in the circumstances of thiscase?(b) If the answer to the question in (a) is answered in favour of Ms Haden,should her convictions be quashed?Result[17] The application for recall is granted.[18] The application for leave to appeal is granted on the questions set out at [16].[19] An oral hearing is directed.Solicitors:Crown Law Office, Wellington for Respondent