MARK ANTHONY MCKINNEY v NEW ZEALAND POLICE [2022] NZSC 29

MARK ANTHONY MCKINNEY v NEW ZEALAND POLICE [2022] NZSC 29 [25 March 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 30/2021[2022] NZSC 29BETWEEN MARK ANTHONY MCKINNEYApplicantAND NEW ZEALAND POLICERespondentCourt: O'Regan, Ellen France and Williams JJCounsel: A J Haskett for ApplicantR K Thomson for RespondentJudgment: 25 March 2022JUDGMENT OF THE COURTThe application for recall of this Court's judgment of 21 June2021 (McKinney v New Zealand Police [2021] NZSC 68)is dismissed.____________________________________________________________________REASONS[1] In a judgment delivered on 21 June 2021, this Court dismissed Mr McKinney'sapplication for leave to bring a leapfrog appeal against a decision of the High Court.1In the latter decision, the High Court allowed an appeal by the Police against a decisionof the District Court dismissing a charge against Mr McKinney for driving a vehiclewhile the proportion of alcohol in his breath exceeded 400 mcg of alcohol per litre ofbreath.2 The High Court Judge had followed the decision of the Court of Appeal inSolicitor-General's Reference (No 1 of 2020), and the objective of Mr McKinney's1 McKinney v New Zealand Police [2021] NZSC 68 [SC leave judgment].2 New Zealand Police v McKinney [2021] NZHC 330, allowing the appeal against the District Courtjudgment in New Zealand Police v McKinney [2020] NZDC 20169.appeal was, in effect, to challenge the correctness of that decision of the Court ofAppeal.3[2] The applicant argues that the leave judgment should be recalled and reversed,relying on this Court's decision in Uhrle v R.4 He argues that there are three "veryspecial reasons" that justice requires the judgment to be recalled.[3] Counsel for Mr McKinney filed a prolix (56 page) submission in support ofthe application for recall. In that submission, he argued that the three very specialreasons why this Court's leave decision should be recalled were:(a) the point at issue involved matters of the highest general and publicimportance, which were understated in the leave decision;(b) the leave decision misstated the applicant's legal arguments; and(c) the Court's reasons for declining leave were inadequate.[4] We deal with each in turn.[5] The applicant makes a number of arguments as to the public importance of theissue that were not made in his submission in support of his application for leave.However, it was common ground that a matter of public importance arose and this wasacknowledged in the leave judgment.5 This is not, therefore, a very special reason forrecalling the judgment.[6] The second point is that this Court is said to have misstated the applicant'slegal argument. In fact the Court well understood the applicant's argument, but unders 77 of the Senior Courts Act 2016, the Court's reasons for refusing to grant leave maybe stated briefly and in general terms only. Therefore, the full detail of the argumentwas not set out in the leave judgment. This is also not a very special reason for recall.3 Re Solicitor-General's Reference (No 1 of 2020) [2020] NZCA 563.4 Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].5 SC leave judgment, above n 1, at [11].[7] The third reason is that the Court's reasons for declining leave were inadequate.Again, s 77 of the Senior Courts Act applies: it is not necessary for the Court to set outdetailed reasons and the Court rarely does so in relation to leave applications. We donot see this as being a very special reason for recall either.[8] The points advanced in support of the application for recall are essentially arelitigation of points determined by the Court when refusing leave. As this Courtpointed out in Biddle v R and Foster v R, that is inappropriate: the fact that a partydisagrees with a decision is not a "very special reason" to recall that decision.6[9] The application for recall is dismissed.Solicitors:Crown Law Office, Wellington for Respondent6 Biddle v R [2021] NZSC 129 at [4]; and Foster v R [2021] NZSC 130 at [4].