HWANG v NEW ZEALAND POLICE [2021] NZCA 602

HWANG v NEW ZEALAND POLICE [2021] NZCA 602 [15 November 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA687/2017[2021] NZCA 602BETWEEN JIMIN HWANGApplicantAND NEW ZEALAND POLICERespondentCourt: Kós P, Duffy and Woolford JJCounsel: Applicant in personR E King for RespondentJudgment:(On the papers)15 November 2021 at 9 amJUDGMENT OF THE COURTThe application for recall of judgment is declined.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Hwang was convicted of the theft of a laptop after a Judge-alone trial in theDistrict Court in 2017.1 His appeal to the High Court was dismissed.2 He was grantedleave by this Court to bring a second appeal, but ultimately that appeal too wasdismissed.31 Police v Hwang [2017] NZDC 12372.2 Hwang v Police [2017] NZHC 1171.3 Hwang v Police [2019] NZCA 553.[2] In our judgment we declined Mr Hwang's application to adduce freshevidence; rejected the submission made by counsel for Mr Hwang that the trial Judgehad reversed the onus of proof; and likewise rejected a further submission forMr Hwang that the trial Judge had erred in his assessment of evidence given by thecomplainant's wife as to identity.4[3] On 9 August 2021 Mr Hwang sought to bring a "third appeal out of time".His application was treated by this Court as an application for recall of judgment.The application is presented on the basis that the trial Judge did not see aDispute Tribunal decision between the complainant and Mr Hwang, nor a statementfrom the complainant to the effect that he did not want Mr Hwang to face criminalcharges. Mr Hwang also suggests there were differences in accounts given by thecomplainant before the police, the Dispute Tribunal referee and the trial Judge, butdetails are not provided.[4] The question in the present case, in accordance with the decision of theSupreme Court in Uhrle v R, is whether there is any very special reason of justicerequiring the judgment to be recalled.5 We consider that standard has not been methere. First, this is effectively an attempt to re-argue the second appeal on wholly newgrounds. Secondly, the material before the Court does not suggest any real likelihoodof a miscarriage of justice. Thirdly, recall is not an appropriate course where statutoryappeal rights subsist, and Mr Hwang has not exhausted his right to seek leave to appealto the Supreme Court under s 243 of the Criminal Procedure Act 2011.[5] The application for recall of judgment is declined.Solicitors:Crown Law Office, Wellington for Respondent4 At [15], [21] and [33].5 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].